Aldrich v. Colvin, No. 2:2013cv00401 - Document 18 (E.D. Wash. 2014)

Court Description: ORDER Granting 16 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Aldrich v. Colvin Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON KEN MARK ALDRICH, No. 2:13-CV-00401-JTR 8 9 Plaintiff, 10 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 CAROLYN W. COLVIN, 12 Commissioner of Social Security, 13 Defendant. 14 15 16 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 17 Nos. 15, 16. Attorney Dana C. Madsen represents Plaintiff; Special Assistant 18 United States Attorney Summer Stinson represents the Commissioner of Social 19 Security (Defendant). The parties have consented to proceed before a magistrate 20 judge. ECF No. 8. After reviewing the administrative record and the briefs filed 21 by the parties, the court GRANTS Defendant’s Motion for Summary Judgment 22 and DENIES Plaintiff’s Motion for Summary Judgment. 23 24 JURISDICTION On November 29, 2010, Plaintiff filed a Title II and a Title XVI application 25 for a period of disability and disability insurance benefits, alleging in both 26 applications disability beginning December 31, 2004. Tr. 17; 235. Plaintiff 27 indicated that he was unable to work due to back and hip problems, headaches, 28 depression, anxiety, skin condition, knee problems and high blood pressure. Tr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 228. The claim was denied initially, denied upon reconsideration, and Plaintiff 2 subsequently requested a hearing. Tr. 147-66. On July 11, 2012, ALJ Marie 3 Palachuk presided over an administrative hearing, at which medical expert Samuel 4 Landau, M.D., Jay Toews, Ph.D., vocational expert Jinnie Lawson, and Plaintiff, 5 who was represented by counsel, testified. Tr. 36-91. The ALJ denied Plaintiff’s 6 claim on August 17, 2010. Tr. 17-30. The Appeals Council declined review. Tr. 7 1-3. The instant matter is before this court pursuant to 42 U.S.C. § 405(g). 8 9 STATEMENT OF FACTS The facts have been presented in the administrative hearing transcript, the 10 ALJ’s decision, and the briefs of the parties and thus, they are only briefly 11 summarized here. At the time of the hearing, Plaintiff was 52 years old, lived 12 alone and twice-divorced. Tr. 367. Plaintiff graduated from high school, and his 13 last job was working part-time, recovering refrigerant. Tr. 62-63. 14 Plaintiff testified that his hip and back caused him pain along his sciatic 15 nerve. Tr. 64. He also said he experiences headaches daily. Tr. 66-67. Plaintiff 16 explained that if his leg is throbbing, he takes codeine which reduces his pain to a 17 “one” on a scale of one to ten. Tr. 69. Plaintiff added that the codeine tends to put 18 him in a stupor, and makes it hard for him to sleep at night. Tr. 69. Plaintiff also 19 reported that he is depressed, and he cannot separate out his depression symptoms 20 from his physical pain symptoms. Tr. 68. 21 Plaintiff also testified that he spends much of his day lying down, but he also 22 washes dishes and clothing, listens to the radio, watches television and cooks 23 dinner. Tr. 71. He said he has no hobbies. Tr. 72. Plaintiff said he shops for 24 groceries once per week. Tr. 74. He reported that he can walk for about 50 yards 25 before he has to stop and rest. Tr. 75. 26 27 28 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 2 deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 3 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 4 only if it is not supported by substantial evidence or if it is based on legal error. 5 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 6 defined as being more than a mere scintilla, but less than a preponderance. Id. at 7 1098. Put another way, substantial evidence is such relevant evidence as a 8 reasonable mind might accept as adequate to support a conclusion. Richardson v. 9 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 10 rational interpretation, the court may not substitute its judgment for that of the 11 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 12 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 13 substantial evidence will be set aside if the proper legal standards were not applied 14 in weighing the evidence and making the decision. Brawner v. Secretary of Health 15 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 16 supports the administrative findings, or if conflicting evidence supports a finding 17 of either disability or non-disability, the ALJ’s determination is conclusive. 18 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 19 20 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 21 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 22 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 23 through four, the burden of proof rests upon the claimant to establish a prima facie 24 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 25 burden is met once a claimant establishes that a physical or mental impairment 26 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 27 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 28 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 2 in the national economy which claimant can perform. Batson v. Commissioner of 3 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 4 adjustment to other work in the national economy, a finding of “disabled” is made. 5 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 6 7 ALJ’S FINDINGS At step one of the sequential evaluation process, the ALJ found Plaintiff had 8 not engaged in substantial gainful activity since December 31, 2004, the alleged 9 onset date. Tr. 19. At step two, the ALJ found Plaintiff had the following severe 10 impairments: degenerative disc disease of the lumbosacral spine, right hip labral 11 fraying, history of broad-based tear of the posterior horn and medial meniscus of 12 the right knee and history of left knee torn meniscus, status post arthroscopic 13 surgery bilateral knees, headaches; and adjustment disorder with anxiety and 14 depression secondary to chronic pain. Tr. 19-20. The ALJ concluded that Plaintiff 15 did not have an impairment or combination of impairments that meets or medically 16 equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart 17 P, Appendix 1, (20 C.F.R. §§ 416.929(d), 416.925 and 416.926). Tr. 20. The ALJ 18 concluded that Plaintiff has the residual functional capacity to perform light work, 19 with some exertional and non-exertional limitations that included: 20 21 22 23 24 25 The claimant is able to understand, remember, and carry out simple, routine, and repetitive tasks and instructions. Although his concentration, persistence, and pace might wax and wane, he would be able to maintain such for two hour intervals between regularly scheduled breaks. His interaction with the general public should be limited to occasional and he can have superficial (non-collaborative) interaction with co-workers. 26 Tr. 21. The ALJ found that Plaintiff is incapable of performing past relevant work. 27 Tr. 28. The ALJ concluded that considering Plaintiff’s age, education, work 28 experience and residual functional capacity, jobs exist in significant numbers in the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 national economy that Plaintiff can perform, such as storage rental clerk, bakery 2 conveyor-line worker, and fruit sorter. Tr. 29. As a result, the ALJ concluded 3 Plaintiff was not disabled as defined by the Social Security Act. Tr. 30. 4 ISSUES 5 Plaintiff contends that the ALJ erred by (1) finding he was not credible; (2) 6 improperly weighing the medical evidence; and (3) rejecting GAF scores from 7 multiple providers. ECF No. 15 at 11-15. 8 A. 9 10 11 Credibility Plaintiff attacks several of the reasons the ALJ used in finding Plaintiff was not credible. ECF No. 15 at 11-12. In deciding whether to admit a claimant's subjective symptom testimony, the 12 ALJ must engage in a two-step analysis. Smolen v. Chater, 80 F.3d 1273, 1281 13 (9th Cir. 1996). First, the claimant must produce objective medical evidence of an 14 underlying “impairment,” and show that the impairment, or a combination of 15 impairments, could reasonably be expected to produce pain or other symptoms. 16 Smolen, 80 F.3d at 1281-82; see Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir. 17 1986). If this test is satisfied, and if no evidence exists of malingering, then the 18 ALJ, under the second step, may reject the claimant's testimony about severity of 19 symptoms with “specific findings stating clear and convincing reasons for doing 20 so.” Smolen, 80 F.3d at 1284. “[Q]uestions of credibility and resolutions of 21 conflicts in the testimony are functions solely of the Secretary.” Sample v. 22 Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. Gardner, 452 23 F.2d 855 n.7 (9th Cir. 1971). However, if malingering is established, the 24 adjudicator is not bound by the "clear and convincing standard. See, e.g., Rollins v. 25 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 26 In determining a claimant's credibility, an ALJ may consider, among other 27 factors, inconsistencies between the claimant's testimony and the claimant's daily 28 activities, conduct and/or work record. Light v. Social Sec. Admin., 119 F.3d 789, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 792 (9th Cir. 1997). “If the ALJ's credibility finding is supported by substantial 2 evidence in the record, [the court] may not engage in second-guessing.” Thomas v. 3 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 4 In this case, the ALJ found that Plaintiff had little credibility. The ALJ 5 provided an extensive discussion of the reasons supporting the negative credibility 6 conclusion. Tr. 23-25. 7 1. Lack of Treatment 8 Plaintiff complains that the ALJ failed to examine Plaintiff’s reasons for not 9 obtaining treatment, and erred by simply inferring that the lack of treatment meant 10 Plaintiff’s symptoms were not as severe as he claimed. ECF No. 15 at 11. In 11 assessing a claimant's credibility, the ALJ may properly rely on "'unexplained or 12 inadequately explained failure to seek treatment or to follow a prescribed course of 13 treatment.'" Tommasetti v. Astrue, 533 F.3d 1035, 1039 (quoting Smolen, 80 F.3d 14 at 1284). Moreover, a claimant’s failure to assert a good reason for not seeking 15 treatment, “or a finding by the ALJ that the proffered reason is not believable, can 16 cast doubt on the sincerity of the claimant’s pain testimony.” Fair v. Bowen, 885 17 F.2d 597, 603 (9th Cir. 1989). 18 One of the bases for the negative credibility finding was Plaintiff’s failure to 19 seek “the type of treatment [for] his physical impairments one would expect for a 20 totally disabled individual.” Tr. 23. Plaintiff argues that the ALJ should have 21 considered that Plaintiff’s mental impairments caused him to isolate himself and 22 avoid leaving his home, and thus he was unable to seek treatment. ECF No. 15 at 23 11. 24 However, the ALJ found that the record did not support Plaintiff’s 25 allegations of disabling depression. Tr. 25. The ALJ noted that the record 26 revealed a pattern wherein Plaintiff reported severe depression around the time of 27 disability assessments, and after the assessments, his depression improved until the 28 next disability assessment. Tr. 25. For example, on December 9, 2010, Plaintiff ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 presented for a Psychological Evaluation, and he reported continued suicidal 2 ideation, hearing voices, he had a flat affect, he was unable to describe any activity 3 that brings him pleasure, and he reported constant worry and pessimism). By 4 contrast, less than two weeks later, on December 20, 2010, Plaintiff was examined 5 by Dr. Maeda, who noted Plaintiff was smiling more, appeared less negative, was 6 looking forward to reading a new book, his appetite was good, and Plaintiff 7 appeared “much improved!” Tr. 329. The ALJ cited several similar examples in 8 the record that support the conclusion that Plaintiff’s symptoms appeared 9 magnified when he was examined in connection with the disability process. As a 10 result, Plaintiff’s explanation that he was unable to seek treatment due to constant 11 disabling psychological limitations is not persuasive. 12 2. Other source opinion 13 Also, Plaintiff argues that the credibility assessment is flawed because the 14 ALJ relied upon notes from a physical therapist, an unacceptable medical source 15 ECF No. 15 at 11. 16 On January 12, 2012, physical therapist Violet Eberly, PT, DPT, noted that 17 Plaintiff had an incident of “writhing pain with his hamstring stretching in which 18 he grabbed his abdomen and began jumping around, throwing himself on the mat 19 with complaints of a muscle that was popping out of his abdomen.” Tr. 476. He 20 reported that the pain stopped, and he was able to complete the rest of his 21 exercises. Tr. 476. Ms. Eberly concluded, “Patient with hyper-exaggerated reports 22 of pain today.” Tr. 476. 23 In analyzing Plaintiff’s credibility related to pain complaints, the ALJ noted 24 that physical therapy chart notes revealed Plaintiff “had hyper-exaggerated reports 25 of pain, throwing himself on the floor.” Tr. 24. The ALJ also relied upon the 26 physical therapists’ notes in determining Plaintiff’s physical functional abilities. 27 Tr. 24. 28 In a disability proceeding, the ALJ must consider the opinions of acceptable ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 medical sources. 20 C.F.R. §§ 404.1527(d), 416.927(d); S.S.R. 96-2p; S.S.R. 96- 2 6p. Acceptable medical sources include licensed physicians and psychologists. 20 3 C.F.R. §§ 404.1513(a), 416.913(a). In addition to evidence from acceptable 4 medical sources, the ALJ may also use evidence from “other sources” including 5 nurse practitioners, physicians' assistants, therapists, teachers, social workers, 6 spouses and other non-medical sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). 7 The ALJ is required to “consider observations by non-medical sources as to 8 how an impairment affects a claimant's ability to work.” Sprague, 812 F.2d at 9 1232. Because an ALJ is required to review evidence from “other sources,” 10 Plaintiff’s argument that the ALJ erred by considering chart notes from the 11 physical therapist fails. 12 3. Support in the Record 13 Finally, Plaintiff argues that some of the ALJ’s credibility findings are not 14 supported by the record. Plaintiff also argues that the record does not support the 15 ALJ’s findings relating to Plaintiff’s ability to concentrate despite pain, evidence 16 of malingering, his activities of daily living, and whether Plaintiff’s medication 17 made him alert or sleepy. ECF No. 15 at 12. 18 Plaintiff argues that the ALJ misinterpreted medical notes from Dr. 19 Thompson related to Plaintiff’s ability to concentrate, despite his pain. ECF No. 20 15 at 11. The ALJ discussed Plaintiff’s various reports of pain levels, and noted 21 that during an April 12, 2011, exam with Renee Thompson, Psy.D., Plaintiff 22 estimated his pain was a 40 out of 100. Tr. 24. The ALJ noted, “Dr. Thompson 23 stated this confirms he is able to overcome his pain focus and participate in 24 evaluation,” which was copied directly from Dr. Thompson’s report. Tr. 24; 367. 25 The ALJ’s recitation of the chart note is accurate, and thus the record supports the 26 ALJ’s conclusion. 27 28 Plaintiff also argues that the record does not support the ALJ’s conclusion that the timing of his depression symptom exacerbation was suspicious. ECF No. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 15 at 11-12. First, Plaintiff contends that the ALJ “completely ignored” counseling 2 records, but contrary to Plaintiff’s allegation, the ALJ provided an extensive 3 discussion, with citation to the record, detailing Plaintiff’s psychological treatment. 4 Tr. 25. 5 Also, Plaintiff asserts that no evidence exists of malingering, citing the 6 examination note from Rene Thompson, Psy.D.: “[n]o evidence of malingering or 7 factitious behavior is evident though pain-related behavior is not observed during 8 this evaluation.” Tr. 368. However, the ALJ relied upon that same examination in 9 which Dr. Thompson opined that Plaintiff was “evasive with sparse responses 10 when responding to questions regarding mental health symptoms.” Tr. 369. Also, 11 Dr. Thompson concluded Plaintiff “acts as if he does not wish to disclose 12 information.” Tr. 371. The record supports the ALJ’s findings and Plaintiff’s 13 alternative interpretation of the record is not persuasive. 14 Next, Plaintiff argues that the record does not support the ALJ’s findings 15 about Plaintiff’s daily activities. ECF No. 15 at 12. Plaintiff argues that he hauled 16 water only in an emergency, and his helping with an appliance repair business in 17 exchange for room and board was irrelevant and thus not properly considered by 18 the ALJ. ECF No. 15 at 12. 19 As part of the credibility analysis, the ALJ cited several inconsistencies in 20 Plaintiff’s assertions about his limitations. Tr. 26. For example, the ALJ noted 21 that Plaintiff said he could not carry grocery bags, yet Plaintiff told his physician 22 that the day prior he not only grocery shopped, he also carried four gallons of 23 water because he had no running water, and he cleaned fifteen pounds of laundry. 24 Tr. 26; 401. During that visit, James Maeda, M.D., noted Plaintiff had a normal 25 gait, full range of movement at the waist, and his hips, and his motor strength, 26 reflexes and sensations were normal, although he was mildly tender over his right 27 buttock. Tr. 401. While Plaintiff contended he could not perform such activities, 28 when he did, the subsequent physician visit did not reveal objective medical signs ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 or symptoms that indicated Plaintiff had suffered severe consequences. The ALJ’s 2 interpretation is supported by the record. 3 Also, the ALJ cited Plaintiff’s assertion that he had stopped working three 4 years prior to the hearing. Tr. 26. The ALJ pointed out the record revealed 5 Plaintiff told John Brucklier, M.S.W., on November 1, 2010, that his “boss” told 6 him to “produce or get out.” Tr. 26; 294. The ALJ acknowledged it was not clear 7 the number of hours per day or per week that Plaintiff was working. Tr. 26. Also, 8 the ALJ noted Plaintiff worked by assisting in an appliance repair business. Tr. 26. 9 The ALJ concluded, based upon these facts, that Plaintiff was capable of 10 performing activities of a higher level than he alleged in his testimony. Tr. 26. 11 Plaintiff argued that the Vocational Expert (VE) testified that this work was 12 not relevant. ECF No. 15 at 12. However, the ALJ cited these facts as additional 13 examples of Plaintiff’s inconsistencies, not as evidence of his relevant past work, 14 and thus the VE testimony about the “relevancy” of the work is immaterial. This 15 finding is supported by the record. 16 Finally, Plaintiff argued that the record did not support the ALJ’s findings 17 that Plaintiff provided inconsistent responses about the side effects of his 18 medication. ECF No. 15 at 12. The ALJ concluded that contrary to Plaintiff’s 19 “testimony that his medications made him fall asleep,” Plaintiff told Dr. Maeda in 20 late 2010 that his new anti-depressant medication helped him stay awake longer. 21 Tr. 25. The record referenced by the ALJ was dated December 10, 2010,1 and 22 noted that since Plaintiff began taking anti-depression medication Sertraline, 23 Plaintiff reported he was able to stay awake later and was looking forward to 24 reading a new cowboy book. Tr. 329. 25 At the hearing, Plaintiff indicated that when he takes ibuprofen for 26 27 28 1 The ALJ erroneously stated that the examination was conducted in September 2010. Tr. 25. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 headaches, it puts him to sleep. Tr. 66-67. By contrast, Plaintiff testified that 2 when he takes codeine for his sciatica pain, the medication does not affect him 3 much during the day, but keeps him awake at night. Tr. 69. Plaintiff denied that 4 codeine makes him sleepy or groggy. Tr. 70. Thus, the record supports the fact 5 that some medications make Plaintiff sleepy and some medications allow him to 6 stay awake. Plaintiff is correct that these isolated facts do not establish an 7 inconsistency. However, this error is harmless because specific, legitimate reasons 8 supported by substantial evidence sustain the remaining reasons for discounting 9 Plaintiff’s credibility. Batson, 359 F.3d at 1197 (finding error to be harmless 10 because it did not negate the validity of the ALJ's ultimate conclusion, which was 11 still supported by substantial evidence, and because the ALJ provided other 12 specific and legitimate reasons for discrediting Plaintiff's testimony). Thus, ALJ’s 13 findings related to Plaintiff’s credibility are supported by substantial evidence in 14 the record. 15 B. 16 Medical Opinions Plaintiff argues that the ALJ erred in weighing opinions from six medical 17 sources. ECF No. 15 at 13-16. In weighing medical source opinions in Social 18 Security cases, the Ninth Circuit distinguishes among three types of physicians: (1) 19 treating physicians, who actually treat the claimant; (2) examining physicians, who 20 examine but do not treat the claimant; and (3) non-examining physicians, who 21 neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 22 1995). 23 Generally, more weight should be given to the opinion of a treating 24 physician than to the opinions of non-treating physicians. Id. Similarly, an 25 examining physician’s opinion is generally entitled to more weight than a non- 26 examining physician’s opinion. Id. When a conflict exists between the opinions 27 of a treating physician and an examining physician, the ALJ may disregard the 28 opinion of the treating physician only if he sets forth "specific and legitimate ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 reasons supported by substantial evidence in the record for doing so." Id. 2 1. Samuel Landau, M.D. 3 Plaintiff contends that the ALJ erred as a matter of law by relying upon an 4 assessment of Plaintiff’s RFC from a non-examining, consultant physician, Samuel 5 Landau, M.D. ECF No. 15 at 13. Plaintiff relies upon Penny v. Sullivan, 2 F.3d 6 953, 958 (9th Cir. 1993). In Penny, the court found that the ALJ erred by relying 7 solely on a non-examining physician’s opinion, where the physician reviewed only 8 a portion of the records and did not hear Plaintiff talk about this pain. Id. 9 In this case, unlike the Penny case, the ALJ did not solely rely upon the 10 opinion of testifying Dr. Landau in determining Plaintiff’s RFC, and instead gave 11 varying weight, as explained in detail in the ALJ’s decision, to the opinions of 12 Plaintiff’s treating physician, treating mental health provider, and examining 13 physicians. See Tr. 26-28. As such, Penny is not applicable, and the ALJ did not 14 err on this basis. 15 2. James Madea, M.D. 16 Plaintiff argues that while the ALJ gave significant weight to Dr. Maeda’s 17 opinion, the RFC did not include his opinion that Plaintiff was limited to lifting 15 18 pounds occasionally. ECF No. 15 at 13. 19 On September 21, 2010, James Maeda, M.D., completed a DSHS Functional 20 Assessment form. Tr. 305-06. In that form, Dr. Maeda indicated that Plaintiff 21 could lift 20 pounds occasionally and five to ten pounds frequently. Tr. 305. On 22 May 4, 2011, Dr. Maeda completed a second DSHS Functional Assessment form 23 in which he indicated that Plaintiff could lift 15 pounds occasionally and five 24 pounds frequently. Tr. 425. Dr. Maeda provided a handwritten notation: “above 25 these designated weight limits, [patient] states aggravation of low back [and right] 26 hip pain.” Tr. 425. 27 28 The ALJ found that the amended 15-pound restrictions were based upon Plaintiff’s self-report, and no evidence existed that Plaintiff’s condition ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 deteriorated between September 2010 and May 2011 in such a way as to justify the 2 greater restriction. Tr. 27. 3 A physician's opinion may be rejected if it is based on a claimant's 4 subjective complaints which were properly discounted. Tonapetyan v. Halter, 242 5 F.3d 1144, 1149 (9th Cir. 2001). In this case, Dr. Maeda explained the weight 6 restriction as based upon Plaintiff’s self-report. The ALJ properly discounted 7 Plaintiff’s credibility and, thus, properly rejected the lifting limitation of 15 8 pounds. Moreover, Plaintiff fails to cite evidence in the record that indicate his 9 condition deteriorated between September 2010 and May 2011 that justified the 10 decrease in Plaintiff’s ability to lift. Thus, the ALJ properly provided specific and 11 legitimate reasons, supported by the record for rejecting Dr. Maeda’s amended 12 lifting restriction. 13 3. Renee Thompson, Psy.D. 14 Plaintiff argues that the ALJ gave significant weight to Dr. Thompson’s 15 opinion, but erred by failing to incorporate Plaintiff’s limitation in interacting with 16 supervisors. ECF No. 15 at 13. 17 As noted above, on April 12, 2011, Renee Thompson, Psy.D., examined 18 Plaintiff and produced a narrative report. Tr. 367-71. Dr. Thompson opined that 19 Plaintiff was capable of understanding, remembering and carrying out simple work 20 related instructions. Tr. 371. Dr. Thompson also opined that Plaintiff “would have 21 difficulty interacting in a work setting with coworkers and supervisors.” Tr. 371. 22 The ALJ gave Dr. Thompson’s evaluation significant weight, with the 23 exception of the limitation related to coworkers and supervisors. Tr. 27. The ALJ 24 rejected those limitations, and explained the record did not support the restriction, 25 and the ALJ cited particular circumstances of problems with supervisors that were 26 limited to the facts and did not evince a pattern of problems. Tr. 27. 27 An ALJ may discredit physicians' opinions that are unsupported by the 28 record as a whole, or by objective medical findings. Batson, 359 F.3d at 1195. In ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 this case, as the ALJ found, Plaintiff’s difficulty with one boss was a result of the 2 boss behaving in an abusive manner, not problems that originated with Plaintiff. 3 Tr. 296. Also, the record supports the ALJ’s conclusion that Plaintiff’s problem 4 experienced with a supervisor was readily resolved. Tr. 77. In the absence of 5 evidence supporting Dr. Thompson’s assessed limitation, the ALJ properly rejected 6 the assessed limitation related to Plaintiff’s ability to work with a supervisor. The 7 ALJ’s conclusion that Plaintiff does not have limitations related to supervisors is a 8 reasonable interpretation of the evidence. The finding will not be disturbed. See 9 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (court upholds ALJ's 10 decision where the evidence is susceptible to more than one rational 11 interpretation). 12 4. 13 Plaintiff contends that the ALJ erred by giving significant weight to Mr. John Brucklier, MSW, MHP 14 Brucklier’s opinion, but failing to incorporate his opinion that Plaintiff’s severe 15 mental health symptoms would significantly impact his ability to work. ECF No. 16 15 at 14. 17 John Brucklier, MSW, MHP, completed a Psychological/Psychiatric 18 Evaluation form on December 9, 2010. Tr. 313-16. Mr. Brucklier noted that he 19 reviewed Plaintiff’s mental health records and he spoke on the telephone with 20 Plaintiff’s primary physician. Tr. 313. Mr. Brucklier found that Plaintiff’s ability 21 to perform basic work-related activities was severely affected by fatigue, 22 hopelessness, sadness and worry. Tr. 314. He also found that Plaintiff’s ability to 23 perform work tasks was markedly affected by psychosis and indecisiveness. Tr. 24 314. 25 However, in the check-the-box assessment, Mr. Brucklier estimated that 26 Plaintiff had no more than mild limitations in all cognitive and social factors 27 related to Plaintiff’s ability to perform a normal workday. Tr. 315. Mr. Brucklier 28 concluded, “the client is capable of living a simple life, with limited stress and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 physical demands.” Tr. 315. At that time, Plaintiff had recently started to take 2 psychotropic medication and the effects were not yet established. Tr. 316. 3 The ALJ gave great weight to Mr. Brucklier’s opinion that indicated 4 Plaintiff had no more than mild functional limitations. Tr. 27-28. The ALJ found 5 that this assessment was consistent with other reports from that time that revealed 6 Plaintiff’s depression was improving and under control. Tr. 27-28. 7 Mr. Brucklier’s Psychological/Psychiatric Evaluation form contains 8 contradictory assessments of Plaintiff’s limitations. In one part of the form, he 9 indicates Plaintiff’s fatigue, hopelessness, sadness and worry will severely affect 10 Plaintiff’s ability to work, and yet he also found Plaintiff had no significant 11 interference in cognitive and social impairments in performing a normal work day 12 from his diagnosed conditions. Tr. 314-15. Where evidence is susceptible to more 13 than one rational interpretation, one of which supports the ALJ's decision, the 14 ALJ's conclusion must be upheld. Thomas, 278 F.3d at 954. In this case, the ALJ 15 resolved the ambiguity by relying upon the assessment that indicates Plaintiff will 16 have no significant interference from cognitive and social impairments in 17 performing a workday. The ALJ’s notation that this assessment was consistent 18 with other medical records from the same time period is supported by the record. 19 Tr. 329; 392-95. As a result, the ALJ did not err. 20 5. Ron Casebeer, M.Ed. 21 Plaintiff argues that the ALJ erred by giving little weight to the opinions 22 from Ron Casebeer, M.Ed., on the basis that it was inconsistent with treating 23 physician Dr. Maeda’s opinion. Plaintiff contends that Mr. Casebeer’s opinion 24 was entitled to more weight because Mr. Casebeer is a specialist, and Dr. Maeda’s 25 opinion was not detailed. ECF No. 15 at 14. 26 On June 9, 2011, Mr. Casebeer completed a Psychological/Psychiatric 27 Evaluation, in which he opined that Plaintiff was severely impaired in his ability to 28 understand, remember and persist in tasks following simple instructions. Tr. 429. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 Mr. Casebeer also found that Plaintiff was markedly impaired in his ability to 2 perform routine tasks without undue supervision. Tr. 429. He diagnosed Plaintiff 3 with major depressive disorder, recurrent, severe. Tr. 429. 4 The ALJ gave little weight to the opinion of Mr. Casebeer. Tr. 28. The ALJ 5 explained that Mr. Casebeer is not Plaintiff’s treating mental health provider, and 6 as a result, he does not have a history with Plaintiff. Tr. 28. The ALJ also noted 7 that Mr. Casebeer’s opinion was inconsistent with Dr. Maeda’s assessment that 8 Plaintiff’s depression improved by June, 2011. Tr. 28. 9 The regulations permit an ALJ to give more weight to the opinion of a 10 specialist in the relevant area. See 20 C.F.R. § 404.1527(c)(5) ("We generally give 11 more weight to the opinion of a specialist about medical issues related to his or her 12 area of specialty than to the opinion of a source who is not a specialist"); see 13 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (an opinion concerning 14 mental impairments by a psychiatrist was entitled to greater weight than the 15 opinion of a physician assistant). However, the treating physician’s opinion may 16 outweigh the opinion of an examining or non-examining specialist: 17 18 19 20 21 22 The treating physician's continuing relationship with the claimant makes him especially qualified to evaluate reports from examining doctors, to integrate the medical information they provide, and to form an overall conclusion as to functional capacities and limitations, as well as to prescribe or approve the overall course of treatment. This is particularly true … where the parts of the functional restrictions arising from the claimant's physical impairments cannot be separated from the parts arising from his mental impairments. 23 24 Lester, 81 F.3d at 833. Thus, contrary to Plaintiff’s suggestion, the ALJ was not 25 required to give more weight to the opinion from a one-time examiner, than to the 26 opinion from Plaintiff’s treating physician. 27 28 Moreover, the record supports the ALJ’s conclusion that, according to Dr. Maeda’s records, Plaintiff’s depression improved by this time. See Tr. 393-95. As ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 a result, the ALJ did not err in weighing the opinion from Mr. Casebeer.2 2 6. Clark Ashworth, Ph.D. 3 Plaintiff challenges the reasons the ALJ provided for giving little weight to 4 the opinion from Clark Ashworth, Ph.D. ECF No. 15 at 15. Plaintiff contends Dr. 5 Ashworth’s opinion is entitled to the most weight because it is the most recent. 6 Also, Plaintiff argues that the ALJ’s reliance on “social pleasantries” as evidence 7 of conflict with objective test results is error. ECF No. 15 at 15. 8 9 On November 18, 2011, Dr. Ashworth examined Plaintiff and completed a Psychological/Psychiatric Evaluation. Tr. 437-40. He described Plaintiff as 10 “polite, friendly, cooperative, disclosing.” Tr. 439. Dr. Ashworth reported that 11 Plaintiff’s MMPI responses suggest a “man who is unsociable and afraid of 12 emotional involvement, depression, unusual physical complaints, anxiety with 13 post-traumatic quality and tension, resentfulness and suspicion of others, 14 somatization and significant discomfort in social situations.” Tr. 440. Dr. 15 Ashworth opined that the MMPI results were valid, and he detected no evidence of 16 malingering during the MSE. Tr. 439-40. 17 The ALJ gave some weight to Dr. Ashworth’s opinion from November 18, 18 2011. Tr. 28. The ALJ observed that Dr. Ashworth’s comments support a finding 19 of not disabled. Tr. 28. Specifically, the ALJ noted that Plaintiff’s MMPI test 20 results suggested that Plaintiff was unsociable and had severe difficulty in 21 interacting with people, but those findings were contrasted by Dr. Ashworth’s 22 experience with Plaintiff as polite, friendly, and forthcoming. Tr. 28. The ALJ 23 24 2 The Court notes that while the ALJ did not rely upon this reason, Mr. 25 Casebeer is an “other” medical source, and the ALJ properly gave greater weight 26 to Dr. Maeda, an accepted medical source. See 20 C.F.R. §§ 404.1527, 416.927 27 (ALJ should give more weight to the opinion of an acceptable medical source than 28 that of an "other source"). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 concluded that the observations and objective evidence reported by Dr. Ashworth 2 was consistent with Plaintiff’s RFC. Tr. 28. 3 In arguing that the ALJ erred by giving too little weight to Dr. Ashworth’s 4 opinion, Plaintiff asserts “[t]he most recent medical opinion is the most probative,” 5 and cites Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). However, Young 6 does not stand for such a broad proposition. Instead, the Young court noted that 7 “[w]here a claimant’s condition is progressively deteriorating, the most recent 8 medical report is the most probative.” Young, 803 F.2d at 968. In this case, as in 9 Young, “it is far from clear that [Plaintiff’s] condition was progressively 10 deteriorating.” Id. Plaintiff does not advance an argument that Plaintiff’s 11 condition was deteriorating, and as discussed above, the evidence revealed his 12 depression was improving with medication. 13 Plaintiff also asserts that it is error to rely upon “simple social pleasantries” 14 to establish an inconsistency with objective record evidence, and he cites Micus v. 15 Bowen, 979 F.2d 602, 606 (7th Cir. 1992). In Micus, the ALJ discredited the 16 claimant’s complaints of pain, fatigue and nausea based upon claimant’s “positive, 17 cheerful attitude” reflected in her repeated responses to treating doctors asserting 18 that she “felt good.” Micus, 979 F.2d at 606. The Seventh Circuit concluded that 19 the ALJ erred by relying up the claimant’s statements that she felt good “because 20 there is neither an analysis of these statements' relevance nor an analysis of 21 objective criteria for determining disability in spite of what is described as her 22 positive, cheerful attitude.” Id. 23 The present facts are distinguishable. The ALJ noted that the results of 24 Plaintiff’s MMPI described a person who would experience significant difficulty 25 presenting as “polite, friendly, cooperative, disclosing.” Tr. 439. Because the 26 MMPI results and Plaintiff’s affect during the exam were contradictory, the ALJ 27 was entitled to resolve the contradiction. See Thomas, 278 F.3d 947, 954 (9th Cir. 28 2002). The ALJ did not err. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 C. 2 GAF Scores 3 Plaintiff complains that the ALJ erred by not fully considering the GAF 3 score assessed by Dr. Thompson, Mr. Brucklier and Dr. Ashworth. ECF No. 15 at 4 15-16. The Global Assessment of Functioning ("GAF") score is the clinician's 5 judgment of the individual's overall level of functioning. See Diagnostic and 6 Statistical Manual of Mental Disorders, DSM-IV,4 30-32 (4th ed. 1994). An ALJ 7 has no obligation to credit or even consider GAF scores in the disability 8 determination. See 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000) (GAF scale 9 does not have a direct correlation to the severity requirements in SSA mental 10 disorders listings.); see also Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 11 (6th Cir. 2002) (GAF score is not essential to RFC accuracy). 12 The ALJ need not credit GAF scores because the scores include a significant 13 number of non-medical factors, such as homelessness and legal troubles, that do 14 not necessarily translate into work-related functional impairments, and the scores 15 reflect the "clinician's judgment of the individual's overall level of functioning." 16 DSM-IV 32-33. In other words, a GAF score encompasses psychological, social 17 and occupational functioning, but the GAF score is not meant to be a conclusive 18 medical assessment of overall functioning. Id. Because the ALJ need not consider 19 the GAF score in determining an RFC, Plaintiff’s contention that the ALJ erred by 20 ignoring the GAF scores from various providers is unpersuasive. 21 22 23 3 Plaintiff raises the identical issue that the ALJ erred by failing to account 24 for GAF scores assessed by Dr. Thompson, Mr. Brucklier and Dr. Ashworth, and 25 because the identical analysis applies to all contentions, the issue is addressed as 26 one. 27 28 4 The 2013 DSM–V dropped the use of the GAF. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 16 (5th ed. 2013). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 2 CONCLUSION Having reviewed the record and the ALJ’s conclusions, this court finds that 3 the ALJ’s decision is supported by substantial evidence and free of legal error. 4 Accordingly, 5 IT IS ORDERED: 6 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is 7 GRANTED. 8 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 9 The District Court Executive is directed to file this Order, provide copies to 10 11 the parties, enter judgment in favor of defendant, and CLOSE this file. DATED November 24, 2014. 12 13 14 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20

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