Moore v. Commissioner of Social Security, No. 2:2016cv00107 - Document 19 (E.D. Wash. 2017)
Court Description: ORDER AFFIRMING DECISION - denying 13 Plaintiff's Motion for Summary Judgment; granting 18 Defendant's Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (VR, Courtroom Deputy)
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Moore v. Commissioner of Social Security 1 Doc. 19 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 3 4 LAURIE ANN MOORE, Plaintiff, 5 v. 6 7 2:16-CV-107-FVS ORDER AFFIRMING DECISION NANCY A. BERRYHILL, Acting Commissioner of Social Security, 8 Defendant. 9 10 11 12 13 THIS MATTER comes before the Court based upon cross motions for summary judgment. At issue is the validity of a decision denying Laurie Ann Moore’s claim for supplemental security income. The plaintiff is represented by 14 15 16 Jeffrey Schwab. The defendant is represented by Richard M. Rodriguez. PROCEDURAL HISTORY 17 18 19 20 Laurie Ann Moore was born on November 1, 1968. (TR 52.) On April 8, 2013, Ms. Moore applied for Title XVI supplemental security income (“SSI”). 42 U.S.C. §§ 1381-1383f. The Social Security Administration (“SSA”) denied her 21 22 23 24 initial application and her request for reconsideration, whereupon she exercised her right to a hearing before an administrative law judge. The hearing took place on April 8, 2015. (TR 43.) On May 6, 2015, the ALJ issued an order setting 25 26 27 Order ~ 1 Dockets.Justia.com 1 2 3 forth the determinations she made at each step in the SSA’s five-step sequential evaluation process. 20 C.F.R. § 416.920(a)(4). Ms. Moore accepts the findings the ALJ made at steps one through three. 4 5 6 7 That is to say, she has not engaged in substantial gainful activity since she allegedly became disabled. (Step one.) She suffers from the severe impairments identified by the ALJ, viz., “migraine headaches; degenerative changes in the 8 9 cervical spine; status post right hand injury in 1993; obesity; depression; and 10 anxiety.” (Step two.) But her impairments are not severe enough to create a 11 12 13 14 conclusive presumption of disability. (Step three.) It is at step four that Ms. Moore’s objections begin. She alleges the ALJ improperly formulated her Residual Functional Capacity (“RFC”). The latter is 15 16 17 18 the most she can do despite her impairments. 20 C.F.R. § 416.945(a)(1). An RFC is expressed in terms of an exertional level, i.e., whether the claimant is capable of performing a job that is “sedentary, light, medium, heavy, [or] very heavy.” 20 19 20 21 22 C.F.R. § 416.967. In order to determine Ms. Moore’s RFC, the ALJ had to weigh the evidence. While the ALJ was not unsympathetic to Ms. Moore, the ALJ did not fully credit 23 24 her description of the limitations she experiences as a result of her impairments. 25 (TR 32.) Nor did the ALJ fully credit the opinions of John Arnold, Ph.D., a 26 27 Order ~ 2 1 2 3 psychologist. Indeed, she accorded Dr. Arnold’s opinions “little weight.” (TR 3334.) Ms. Moore objects to the ALJ’s decision to discount both Dr. Arnold’s 4 5 6 7 opinions and her description of the limitations she experiences. Had the ALJ given proper weight to this evidence, says Ms. Moore, the ALJ would have found she typically suffers 15-20 migraine headaches per month, and when she is 8 9 experiencing a migraine headache, which can last for hours at a time, she is 10 incapable of performing even sedentary work. According to Ms. Moore, no 11 12 13 14 employer would retain an employee who missed as much work as she would. The ALJ did not see it that way. The ALJ found Ms. Moore presently is capable of performing light work (step four) and “there are jobs that exist in 15 16 17 18 significant numbers in the national economy that the claimant can perform.” (Step five.) As a result, the ALJ ruled Ms. Moore is not disabled. (TR 35-36.) Ms. Moore asked the Appeals Council to review the ALJ’s unfavorable 19 20 ruling. On February 9, 2016, the Council declined to do so. With that, the ALJ’s 21 ruling became the final decision of the Social Security Administration. 20 C.F.R. § 22 416.1484(b)(2). Ms. Moore commenced this action on April 5, 2016. 23 24 STANDARD OF REVIEW 25 A district court has the “power to enter, upon the pleadings and transcript 26 27 of the record, a judgment affirming, modifying, or reversing the decision of the Order ~ 3 1 2 3 Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). However, review is limited. “The findings of the Commissioner of Social Security as to any fact, if supported by substantial 4 5 6 7 evidence, shall be conclusive[.]” Id. As a result, the Commissioner’s decision “will be disturbed only if it is not supported by substantial evidence or it is based on legal error.” Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986). “Substantial 8 9 10 evidence” means more than a mere scintilla, . . . but less than a preponderance.” Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) 11 12 (internal punctuation and citations omitted). 13 ANALYSIS 14 Ms. Moore 15 16 17 18 The ALJ gave several reasons for discounting Ms. Moore’s credibility. First, the ALJ questioned whether Ms. Moore is committed to finding a job. Second, the ALJ questioned whether she has followed through with treatment 19 20 recommendations that have been made by her health care providers. Third, the 21 ALJ questioned whether Ms. Moore is a reliable reporter of information. 22 One of the ALJ’s concerns was motivation. This concern stemmed from the 23 24 fact Ms. Moore did not hold a full-time job at any time during the ten-year period 25 before she applied for Title XVI benefits. (TR 67-69, 195-96.) Ms. Moore 26 27 attributes her lack of employment to chronic migraine headaches. (TR 63.) Order ~ 4 1 2 3 While headaches are part of the story, there appears to be more. On January 6, 2012, Ms. Moore advised Anna Charbonneau, a licensed mental health counselor, she had used drugs and alcohol “most of her adult life.” She made a similar 4 5 6 7 statement to a treating physician. (TR 432.) Thus, the ALJ reasonably wondered whether substance abuse was a significant factor in her inability to hold a fulltime job. (TR 32.) 8 9 Another of the ALJ’s concerns was Ms. Moore’s willingness to follow 10 treatment recommendations. This was a two-part concern. The first part 11 12 involved treatment for mental health problems. The record reflects Ms. Moore 13 had an opportunity to participate in counseling, but as of her appointment with 14 Ms. Charbonneau, she had not done so. Consequently, during the meeting, Ms. 15 16 17 18 Charbonneau “[]gently discussed [Ms. Moore’s history] of no-showing and not following up.” (TR 407.) The second part of the ALJ’s concern involved treatment for migraine 19 20 headaches. (TR 32.) Beginning in 2013, Ms. Moore had a number of 21 appointments with William T. Allred, M.D., a neurologist. He prescribed 22 medication for her headaches, but also he also made a number of 23 24 recommendations he thought would help her manage her headaches. (TR 434.) 25 One of them was to sharply curtail her use of over-the-counter analgesics. Id. 26 27 Although Ms. Moore continued to experience headaches (TR 425-26), Dr. Order ~ 5 1 2 3 Allred’s suggestions seemed to help, at least for a while. (TR 421 ([Ms. Moore “is currently satisfied with the headache control.”)) However, by May of 2014, her condition had deteriorated. (TR 415.) Dr. Allred attributed the changes to a 4 5 6 7 combination of mental health problems, “hormonal changes,” and “analgesic overuse.” (TR 417.) The ALJ’s final concern was Ms. Moore’s reliability. The ALJ decided she 8 9 10 has a tendency to exaggerate her symptoms when she thinks it serves her interest to do so. For example, Ms. Moore told Dr. Arnold she had been in six 11 12 vehicle collisions. (TR 308.) By contrast, she told Steve Hufman, M.D., she had 13 been in three collisions. (TR 303.) Were that the only instance of exaggeration, 14 the ALJ might not have been concerned. But as the ALJ pointed out, there was a 15 16 17 18 second instance. During Ms. Moore’s appointment with Dr. Allred on May 5, 2014, she reported she was seeing a counselor. (TR 415.) The ALJ looked in the record for evidence indicating Ms. Moore was participating in counseling at that 19 20 time, but the ALJ was unable to confirm the accuracy of her statement. (TR 32.) 21 These, then, are the ALJ’s reasons for discounting Ms. Moore’s testimony. 22 The issue is whether they are adequate. The test is well established. Absent 23 24 evidence of malingering, an “ALJ may reject the claimant's testimony regarding 25 the severity of her symptoms only if he makes specific findings stating clear and 26 27 Order ~ 6 1 2 3 convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1283 (9th Cir.1996). It is instructive to consider Ms. Moore’s employment history. This is not a 4 5 6 7 case in which the applicant had been working steadily until the alleged onset of disability. Instead, this is a case in which the applicant had been unemployed for years before disability allegedly began. At least two circumstances appear to 8 9 10 have played a role in Ms. Moore’s inability to hold a job. One was substance abuse. Another was chronic migraine headaches. 11 12 Let there be no misunderstanding. Ms. Moore’s migraine headaches are a 13 serious matter. However, there is reason to think she can manage her 14 headaches if she carefully follows treatment recommendations. Two 15 16 17 18 recommendations are especially important. Ms. Carbonneau gently, but firmly, urged Ms. Moore to participate in counseling. Ms. Moore says she has done so, but there are no records from mental health professionals confirming her claim. 19 20 The other critical recommendation involves the use of analgesics. Dr. Allred 21 repeatedly admonished her to limit her consumption of them. When she 22 followed his recommendation, she experienced fewer headaches. When she did 23 24 not follow his recommendation, she had more headaches and more severe 25 headaches. 26 27 Order ~ 7 1 2 3 Finally, there is the matter of Ms. Moore’s reliability as a reliable reporter. The ALJ reasonably was concerned. Her concern arose, in part, as a result of comments Ms. Moore made about counseling. As will be recalled, she told Dr. 4 5 6 7 Allred she was participating in therapy. (TR 415.) If she was, one would expect to find records of counseling sessions, but there do not appear to be any. The absence of such records tends to undermine her credibility. 8 9 10 In conclusion, the reasons the ALJ provided for discounting Ms. Moore’s credibility are sufficient to support her determination. Ms. Moore was not 11 12 actively participating in the work force long before the alleged onset of 13 disability. She has failed to follow important treatment recommendations, and 14 she has not always been a reliable reporter of information. 15 16 17 18 Psychologist John Arnold The Washington State Department of Social and Health Services asked John Arnold, Ph.D., to perform a psychological evaluation of Ms. Moore. Dr. 19 20 Arnold examined her on April 30, 2013. Dr. Arnold administered several simple 21 tests, including both the Beck Depression Inventory and the Beck Anxiety 22 Inventory. (TR 308.) Given the results of the tests, and given his observations, 23 24 Dr. Arnold decided Ms. Moore was anxious and depressed. (TR 309.) Having 25 made that determination, he went on to assess her ability to engage in sustained 26 27 Order ~ 8 1 2 3 activity over a normal workday. (TR 310.) He found one marked impairment and eight moderate impairments. (TR 311.) Without question, an examining expert’s findings are entitled to 4 5 6 7 substantial deference. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998) (an ALJ’s decision to discount the opinion of an examining expert may be upheld only if the ALJ provided “specific and legitimate reasons” that are “supported by 8 9 substantial evidence in the record”). However, substantial deference does not 10 mean uncritical acceptance. Before accepting an expert’s findings, an ALJ must 11 12 determine whether they are based upon adequate data and whether the expert 13 arrived at them by means of an appropriate methodology. In this instance, the 14 ALJ was troubled by two circumstances. 15 16 17 18 One of the ALJ’s concerns was whether Dr. Arnold’s findings adequately explain all of the data. Of particular interest to her were the results of the mental status exam that Dr. Arnold conducted. The results of the exam are set 19 20 forth on page four of a form that is entitled “Psychological/Psychiatric 21 Evaluation.” (TR 308-311.) 22 Dr. Arnold began by summarizing his observations. He indicated Ms. 23 24 Moore appeared depressed and anxious. (TR 311.) That said, he also indicated 25 her speech was progressive and logical, she was open and cooperative (even 26 27 talkative), and her affect was only mildly constricted. Id. Order ~ 9 Dr. Arnold then proceeded to describe Ms. Moore’s cognitive functions. He 1 2 3 reported Ms. Moore did not fall “within normal limits” with respect to “concentration.” Id. That said, he also reported she fell within normal limits 4 5 6 with respect to “thought processes and content,” “orientation,” “perception,” “fund of knowledge,” “abstract thought,” and “insight and judgment.” Id. 7 After reviewing Dr. Arnold’s report, the ALJ appears to have asked a 8 9 10 sensible question, “If Ms. Moore is as impaired as Dr. Arnold indicates, why the ambiguity in the results of the mental status exam? 1 ” The ALJ looked in Dr. 11 12 Arnold’s report for an answer to her question, but she could find none. Nor 13 could she find a meaningful explanation of the process by which Dr. Arnold 14 arrived at his findings. In essence, he just checked boxes. Given the absence of a 15 16 17 18 meaningful explanation, the ALJ had no way to assess either the validity or the reliability of Dr. Arnold’s findings. Consequently, she properly accorded “little weight” to his pessimistic assessment. 19 20 RULING 21 A reviewing court should not substitute its assessment of the evidence for 22 the ALJ’s. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). To the contrary, 23 24 a reviewing court must defer to an ALJ’s assessment as long as it is supported by 25 1 26 27 That she posed this question, or one like it, reasonably may be implied from what she wrote in her ruling. Order ~ 10 1 2 3 substantial evidence. 42 U.S.C. § 405(g). Here, the ALJ’s written opinion indicates she engaged in a careful review of the evidence. She provided clear and convincing reasons for discounting both Ms. Moore’s description of her 4 5 6 7 symptoms and the pessimistic assessment of Dr. Arnold. Since the ALJ’s analysis and conclusions are supported by substantial evidence, the Court will affirm her ruling. 8 9 10 IT IS HEREBY ORDERED: 1. The defendant’s motion for summary judgment (ECF No. 18) is granted 11 12 and the plaintiff’s (ECF No. 13) is denied. 13 3. The ALJ’s decision of May 6, 2015 (TR 411) is affirmed. 14 IT IS SO ORDERED. The District Court Executive is directed to file this 15 16 17 Order, enter judgment accordingly, furnish copies to counsel, and close the case. DATED this 31st day of May, 2017. 18 19 s/Fred Van Sickle FRED VAN SICKLE Senior United States District Judge 20 21 22 23 24 25 26 27 Order ~ 11
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