Pyle v. Commissioner of Social Security, No. 2:2016cv00172 - Document 22 (E.D. Wash. 2017)
Court Description: ORDER Granting 20 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)
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Pyle v. Commissioner of Social Security Doc. 22 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Aug 14, 2017 1 SEAN F. MCAVOY, CLERK 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 ADAM D. PYLE, No. 2:16-CV-00172-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 18, 20. Attorney Dana C. Madsen represents Adam D. Pyle (Plaintiff); Special 19 Assistant United States Attorney Daniel P. Talbert represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 6. After reviewing the administrative record and briefs 22 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 23 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 25 JURISDICTION Plaintiff received Supplemental Security Income (SSI) benefits as a child. 26 Tr. 30. Upon turning 18, his case was reviewed and it was deemed that he met the 27 definition of disability for adults. Tr. 30, 47. On September 19, 2011, a review of 28 the case found that his disability ceased as of September 1, 2011. Tr. 31, 47. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Plaintiff requested reconsideration of the cessation, Tr. 50, and the cessation was 2 affirmed, Tr. 51. On February 2, 2012, Plaintiff attended a hearing with a 3 Disability Hearing Officer. Tr. 54. The Hearing Officer determined that cessation 4 of benefits was appropriate, but the correct cessation date was April 1, 2012. Tr. 5 64. Plaintiff requested a hearing by an Administrative Law Judge (ALJ). Tr. 65. 6 On February 6, 2013, ALJ Lori Freund held a hearing and continued the matter to 7 allow Plaintiff time to hire an attorney. Tr. 811-827. A second hearing was held 8 on August 21, 2013, and the ALJ heard testimony from Plaintiff and vocational 9 expert, K. Diane Kramer. Tr. 828-870. The ALJ issued an unfavorable decision 10 on April 21, 2014. Tr. 15-28. The Appeals Council denied review on March 31, 11 2016. Tr. 1-7. The ALJ’s April 21, 2014 decision became the final decision of the 12 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 13 405(g). Plaintiff filed this action for judicial review on May 26, 2016. ECF No. 1, 14 4. STATEMENT OF FACTS 15 The facts of the case are set forth in the administrative hearing transcript, the 16 17 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 18 here. 19 Plaintiff was 19 years old at the date of cessation, April 1, 2012. Tr. 32. 20 Plaintiff has an eleventh grade education followed by a GED. Tr. 610. He 21 received services from Division of Vocational Rehabilitation but has no work 22 history. Tr. 611-612. His alleged impairments include Asperger’s syndrome, 23 schizo-affective disorder, Ehlers-Danlos Syndrome (EDS), anxiety, irritable bowel 24 syndrome (IBS), and a sun allergy. Tr. 210, 228, 855-859. 25 26 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 27 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 28 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 2 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 3 not supported by substantial evidence or if it is based on legal error. Tackett v. 4 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 5 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 6 another way, substantial evidence is such relevant evidence as a reasonable mind 7 might accept as adequate to support a conclusion. Richardson v. Perales, 402 8 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 9 interpretation, the court may not substitute its judgment for that of the ALJ. 10 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 11 findings, or if conflicting evidence supports a finding of either disability or non- 12 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 13 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 14 substantial evidence will still be set aside if the proper legal standards were not 15 applied in weighing the evidence and making the decision. Brawner v. Secretary 16 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 SEQUENTIAL EVALUATION PROCESS 18 The Commissioner has established an eight-step sequential evaluation 19 process for determining whether a person’s disability has ended. 20 C.F.R. § 20 416.994(b)(5). This process is similar to the five-step sequential evaluation 21 process used to evaluate initial claims, with additional attention as to whether there 22 has been medical improvement. Compare 20 C.F.R. § 416.920 with 20 C.F.R. § 23 416.994(b)(5). A claimant is disabled only if his impairment is “of such severity 24 that he is not only unable to do his previous work[,] but cannot, considering his 25 age, education, and work experience, engage in any other kind of substantial 26 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 27 The first step addresses whether the claimant has an impairment or 28 combination of impairments that meet or equal the severity of listed impairments ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 set forth at 20 C.F.R. pt. 404, subpt. P, app. 1. 20 C.F.R. § 416.994(b)(5)(i). If the 2 impairment does not equal a listed impairment, the second step addresses whether 3 there has been medical improvement in the claimant’s condition. 20 C.F.R. § 4 416.994(b)(5)(ii). Medical improvement is “any decrease in the medical severity” 5 of the impairment that was present at the time the individual was disabled or 6 continued to be disabled. 20 C.F.R. § 416.994(b)(1)(i). If there has been medical 7 improvement, a step three determination is made addressing whether such 8 improvement is related to the claimant’s ability to perform work—that is, whether 9 there has been an increase in the individual’s residual functional capacity. 20 10 11 C.F.R. § 416.994(b)(5)(iii). If the answer to step three is yes, the Commissioner skips to step five and 12 inquires whether all of the claimant’s current impairments in combination are 13 severe. At step five, if medical improvement is shown to be related to the 14 claimant’s ability to work, a determination will be made to assess whether the 15 claimant’s current impairments, in combination, are severe—that is, whether they 16 impose more than a minimal limitation on his physical or mental ability to perform 17 basic work activities. 20 C.F.R. § 416.994(b)(5)(v). If the answer to that inquiry is 18 yes, the claim proceeds to step six and the ALJ must determine whether the 19 claimant can perform past relevant work. 20 C.F.R. § 416.994(b)(5)(vi). If the 20 claimant can perform past relevant work, his disability will be deemed to have 21 ended. Id. If the claimant cannot perform his past relevant work, at step seven a 22 limited burden of production shifts to the Commissioner to prove there is 23 alternative work in the national economy that the claimant can perform given his 24 age, education, work experience, and residual functional capacity. 20 C.F.R. § 25 416.994(b)(5)(vii). Similarly, if the claimant has no past relevant work, step eight 26 mimics step seven in considering his ability to perform other work in the national 27 economy. 20 C.F.R. § 416.994(b)(5)(viii). If the claimant cannot perform a 28 significant number of other jobs, he remains disabled despite medical ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 improvement; if, however, he can perform a significant number of other jobs, 2 disability ceases. 20 C.F.R. § 416.994(b)(5)(vii)-(viii). 3 Alternatively, if the answers to steps two or three is no, the evaluation 4 proceeds to step four. At step four, consideration is given to whether the case 5 meets any of the special exceptions to medical improvement for determining that 6 disability has ceased. 20 C.F.R. § 416.994(b)(5)(iv). If no special exception 7 applies, the claimant’s disability will be found to continue. 8 9 While the claimant bears the burden of proving disability, Tackett, 180 F.3d at 1098-1099, once a claimant has been found disabled, a presumption of 10 continuing disability arises in his favor. Bellamy v. Sec. of Health & Human Serv., 11 755 F.2d 1380, 1381 (9th Cir. 1985). The Commissioner bears the burden of 12 producing evidence sufficient to rebut this presumption. Id. 13 ADMINISTRATIVE DECISION 14 On April 21, 2014, the ALJ issued a decision finding Plaintiff’s disability 15 under section 1614(a)(3)(A) of the Social Security Act ended on April 1, 2012 and 16 that Plaintiff had not been disabled again since that date. Tr. 28. 17 The ALJ identified the most recent favorable medical decision in the case to 18 be November 15, 2010 and deemed it the point of comparison. In that 19 determination, Plaintiff had the medically determinable impairments of EDS and 20 Asperger’s disorder and was found to meet section 11.04B of 20 C.F.R. Part 404, 21 Subpart P, Appendix 1. Tr. 17. 22 The ALJ then found that as of April 1, 2012, Plaintiff had the following 23 medically determinable impairments: hypermobility syndrome; IBS; somatization 24 disorder; attention deficit hyperactivity disorder (ADHD); anxiety disorder, not 25 otherwise specified; and personality disorder with schizoid and dependent features. 26 Tr. 17. 27 28 At step one, the ALJ found that Plaintiff did not have an impairment or combination of impairments which met or medically equaled the severity of an ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 2 3 4 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 17. At step two, the ALJ determined that medical improvement had occurred as of April 1, 2012. Tr. 19. At step three, the ALJ found the medical improvement was related to the 5 ability to work, because as of April 1, 2012, the impairments present at Plaintiff’s 6 point of comparison, EDS and Asperger’s Syndrome, no longer met or medically 7 equaled the same listing. Tr. 19. 8 9 10 11 12 13 A step four determination was not necessary, as medical improvement was found at step two and the medical improvement was found to be related to the ability to work at step three. At step five, the ALJ found that as of April 1, 2012, Plaintiff continued to have a severe impairment or combination of impairments. Tr. 19. At step six, the ALJ found that as of April 1, 2012, Plaintiff had a residual 14 functional capacity to perform work at all exertional levels with the following 15 nonexertional limitations: 16 17 18 19 20 21 The claimant can occasionally climb ladders, rope[s], and scaffolds. He should avoid exposure to hazardous machinery and unprotected heights and operational control of moving machinery. The claimant is limited to simple, routine, and repetitive tasks. He should work away from the general public and he can have superficial interaction with a small number of coworkers. He cannot perform tandem tasks. He can work in a low stress environment with only occasional decision-making and occasional changes in the work setting. 22 23 Tr. 19-20. The ALJ found Plaintiff had no past relevant work, resulting in step seven 24 being skipped. Tr. 26. 25 At step eight, the ALJ determined that, considering Plaintiff’s age, 26 education, work experience and residual functional capacity, and based on the 27 testimony of the vocational expert, there were jobs that exist in significant numbers 28 in the national economy Plaintiff could perform, including the jobs of laundry ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 worker II, dishwasher, and industrial cleaner. Tr. 27. The ALJ concluded 2 Plaintiff’s disability ended as of April 1, 2012 and he had not become disabled 3 again since that date. Tr. 27-28. ISSUES 4 5 The question presented is whether substantial evidence supports the ALJ’s 6 decision ending benefits and, if so, whether that decision is based on proper legal 7 standards. Plaintiff contends the ALJ erred by failing to properly weigh the 8 medical opinions in the file. 9 DISCUSSION 10 Plaintiff challenges the weight the ALJ assigned to Beth Fitterer, Ph.D., 11 Dennis R. Pollack, Ph.D., Allen D. Bostwick, Ph.D., John T. Jaccard, M.D., and 12 Norman Staley, M.D. ECF No. 18 at 13-20. 13 In weighing medical source opinions, the ALJ should distinguish between 14 three different types of physicians: (1) treating physicians, who actually treat the 15 claimant; (2) examining physicians, who examine but do not treat the claimant; 16 and, (3) nonexamining physicians who neither treat nor examine the claimant. 17 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 18 weight to the opinion of a treating physician than to the opinion of an examining 19 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 20 should give more weight to the opinion of an examining physician than to the 21 opinion of a nonexamining physician. Id. 22 When a treating physician’s opinion is not contradicted by another 23 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 24 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 25 physician’s opinion is contradicted by another physician, the ALJ is only required 26 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 27 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 28 physician’s opinion is not contradicted by another physician, the ALJ may reject ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 the opinion only for “clear and convincing” reasons, and when an examining 2 physician’s opinion is contradicted by another physician, the ALJ is only required 3 to provide “specific and legitimate reasons.” Lester, 81 F.3d at 830-831. The specific and legitimate standard can be met by the ALJ setting out a 4 5 detailed and thorough summary of the facts and conflicting clinical evidence, 6 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 7 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 8 conclusions, she “must set forth [her] interpretations and explain why they, rather 9 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 10 1988). 11 1. 12 Beth Fitterer, Ph.D. On September 19, 2011, Dr. Fitterer, a state agency reviewer, reviewed 13 Plaintiff’s medical records and completed a Psychiatric Review Technique 14 Assessment and a Mental Residual Functional Capacity Assessment (MRFCA). 15 Tr. 456-462. Dr. Fitterer opined that Plaintiff did not have an impairment that met 16 or medically equaled a listing. Tr. 456-458. On the MRFCA, she stated that 17 Plaintiff was moderately limited in the ability to perform activities within a 18 schedule, maintain regular attendance, and be punctual within customary 19 tolerances, the ability to work in coordination with or in proximity to others 20 without being distracted by them, and the ability to interact appropriately with the 21 general public. Tr. 459-461. In the narrative sections of the MRFCA, she stated 22 that “[d]espite consistent reporting of anxiety and ADHD, [claimant] is capable of 23 performing complex tasks without significant interference of [concentration, 24 persistence, and pace],” and that “[medical] reports social skills remain impaired. 25 However, [claimant] is capable of superficial social interactions at school and with 26 medical providers. He would be capable of interacting appropriately with others in 27 the workplace.” Tr. 461-462. In her decision, the ALJ gave Dr. Fitterer’s opinion 28 significant weight, summarizing the opinion as “[s]he said the claimant is capable ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 of complex tasks without significant interference from concentration, persistence, 2 and pace and [s]he is capable of superficial social interactions.” Tr. 24. 3 Plaintiff challenged the ALJ’s treatment of the opinion, asserting that the 4 ALJ failed to address all of the opinion and any portion of the opinion not 5 explicitly rejected by the ALJ should have been included in the residual functional 6 capacity determination. ECF No. 18 at 14. Plaintiff also argued that the ability to 7 perform complex tasks was inconsistent with Dr. Fitterer’s statement that Plaintiff 8 would have difficulty with attention, concentration, scheduling, attendance, and 9 tardiness. 10 However, the Program Operations Manual System1 (POMS) DI 24510.060 11 details Social Security’s Operating Policy as to the MRFCA forms complete by 12 psychological consultants and directs that the moderate limitations provided by Dr. 13 Fitterer do not constitute her opinion. While the provision speaks specifically to 14 Form SSA-4734-F4-SUP, the Court finds that the premise of how a MRFCA 15 provided by the agency is to be read can be extrapolated from this provision. 16 17 1 The POMS does not impose judicially enforceable duties on the Court or 18 the ALJ, but it may be “entitled to respect” under Skidmore v. Swift & Co., 323 19 U.S. 134 (1944), to the extent it provides a persuasive interpretation of an 20 ambiguous regulation. See Christensen v. Harris Cnty., 529 U.S. 576, 587-588, 21 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); Lockwood v. Comm’r Soc. Sec. Admin., 22 616 F.3d 1068, 1073 (9th Cir. 2010). Here, the issue is not determining the 23 meaning of an ambiguous regulation, but instead understanding how to correctly 24 read a form produced and distributed by the Social Security Administration to its 25 medical consultants. Therefore, by relying on the POMS provision in this case, the 26 Court is not allowing the provision to set a judicially enforceable duty on the ALJ, 27 but only using it as a guide to define the parameters of a medical consultant’s 28 opinion on an agency supplied form. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 Accordingly, the section of the MRFCA form that includes mental function items 2 with limitations ranging from “not significantly limited” to “markedly limited,” “is 3 merely a worksheet to aid in deciding the presence and degree of functional 4 limitations and the adequacy of documentation and does not constitute the [residual 5 functional capacity] assessment.” POMS DI 24510.060. Instead, the actual 6 residual functional capacity assessment is recorded in the narrative provided on the 7 MRFCA, explaining the conclusions indicated in the moderate limitations 8 expressed above the narrative. Id. Therefore, the opined residual functional 9 capacity assessment was not the moderate limitations given by Dr. Fitterer, but the 10 narrative sections. The opinion expressed in the narrative section is adequately represented in 11 12 the residual functional capacity determination, which limits Plaintiff to simple, 13 routine, and repetitive tasks and work away from the general public. Tr. 19-20. As 14 such, the ALJ did not error in her treatment of Dr. Fitterer’s opinion. 15 2. 16 Dennis R. Pollack, Ph.D. In August of 2013, Dr. Pollack met with and administered physiological 17 testing to Plaintiff. Tr. 715-725. The Wechsler Adult Intelligence Scale-IV 18 (WAIS-IV) revealed a Full Scale IQ of 116, in the High Average range, and all the 19 subtests were in the average to superior range. Tr. 718. The Minnesota 20 Multiphasic Personality Inventory-2 (MMPI-2) gave Plaintiff “mildly elevated 21 scores for the L scale and indicating that he was attempting to present himself in a 22 most favorable light and that he was most likely understating his difficulties. At 23 the same time he is reporting some unusual experiences that most people do not 24 have.” Id. His Aphasia Screening Test demonstrated dyscalculia. Tr. 719. 25 Validity testing showed no indication of malingering. Id. The Millon Clinical 26 Multiaxial Inventory-III (MCMI-III) gave him acceptable scores and included an 27 elevated score for anxiety. Id. Dr. Pollack diagnosed Plaintiff with an anxiety 28 disorder, ADHD, and a personality disorder with schizoid and dependent traits. Tr. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 721. Dr. Pollack then completed a Mental Medical Source Statement stating that 2 Plaintiff had a marked 2 limitation in the ability to perform activities within a 3 schedule, maintain regular attendance, and be punctual within customary 4 tolerances, and the ability to complete a normal workday and workweek without 5 interruptions from psychologically based symptoms and to perform at a consistent 6 pace without an unreasonable number and length of rest periods. Tr. 723. He also 7 stated that Plaintiff would have a moderate3 limitation in the ability to maintain 8 attention and concentration for extended periods and the ability to accept 9 instructions and respond appropriately to criticism from supervisors. Tr. 723. 10 The ALJ gave Dr. Pollack’s opinion little weight because (1) the intelligence 11 test scores were inconsistent with his opinion expressed on the Mental Medical 12 Source Statement, (2) the limitations were based on self-reports including the 13 subjective responses on the MMPI-2 and MCMI-III, (3) the test results showing 14 high scores in anxiety were inconsistent with the treatment records, and (4) 15 Plaintiff’s activities were inconsistent with the Dr. Pollack’s conclusion of 16 avoidance. 17 The ALJ’s first reason for giving Dr. Pollack’s opinion little weight, that the 18 intelligence test scores were inconsistent with the opinion on the Mental Medical 19 Source Statement, is legally sufficient. Internal inconsistencies between the 20 physician’s opinion and the physician’s report meets the clear and convincing 21 standard. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, the ALJ 22 found that “[t]he WAIS-IV results average to superior range are not indicative of 23 difficulty with concentration, confused thinking, and forgetfulness, which Dr. 24 25 26 27 28 2 A marked limitation is defined as a “[f]requent interference on the ability to function in a work setting.” Tr. 722. 3 A moderate limitation is defined as an “[o]ccasional interference on the ability to function in a work setting.” Tr. 722. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 Pollack neglected to point out.” Tr. 25. Considering the high scores on the WAIS- 2 IV, the ALJ’s finding was supported by substantial evidence and legally sufficient. 3 Plaintiff acknowledged that his intelligence test were better than average, but 4 argued that the lower score in short term memory and eye-hand motor coordination 5 had a great effect on his work performance and interaction with supervisors. ECF 6 No. 18 at 15. Dr. Pollack recognized that Plaintiff’s “lowest score was a scaled 7 score of 9 for the Coding subtest, a measure of short term memory and eye-hand 8 coordination.” Tr. 718. However, Dr. Pollack gave no indication that this was 9 below average or corresponded to a negative performance in specific workplace 10 11 abilities. Id. The ALJ’s second reason for rejecting Dr. Pollack’s opinion, that he relied 12 on Plaintiff’s self-reports and the subjective responses on the MMPI-2 and MCMI- 13 III, is not legally sufficient. An ALJ may discount a treating provider’s opinion if 14 it appears it is based on a claimant’s unreliable self-reports, but the ALJ must 15 provide the basis for her conclusion that the opinion was based on a claimant’s 16 self-reports. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the 17 basis provided by the ALJ was that Dr. Pollack relied on the MMPI-2 and MCMI- 18 III and these tests were based on subjective responses from the Plaintiff. Tr. 25. 19 The MMPI-2 is an objectively interpreted instrument with empirically validated 20 scales possessing clearly established meanings. KENNETH S. POPE ET AL., THE 21 MMPI, MMPI-2 AND MMPI-A IN COURT: A PRACTICAL GUIDE FOR EXPERT 22 WITNESSES AND ATTORNEYS 12 (3rd ed. 2006). The MCMI-III is a “rationally 23 derived scale that assesses individuals according to Millon’s (e.g., 1969, 1981, 24 1987, 1994) conceptualization of clinical and personality disorders.” Id. at 455. 25 Therefore, the ALJ’s conclusion that Dr. Pollack’s reliance on these tests equates 26 to reliance on subjective accounts from Plaintiff, is not accurate. While the ALJ 27 erred in this reason for the weight prescribed to Dr. Pollack’s opinion, this error is 28 harmless as she provided other legally sufficient reasons supported by substantial ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 evidence. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (An 2 error is harmless when “it is clear from the record that the . . . error was 3 inconsequential to the ultimate nondisability determination.”). 4 The third reason the ALJ provided for giving Dr. Pollack’s opinion little 5 weight, that the test results showing high scores in anxiety were inconsistent with 6 the treatment records, is legally sufficient. The ALJ found that MCMI-III results 7 showing high levels of anxiety were not consistent with the medical records. Tr. 8 25. The ALJ was accurate. The MCMI-III results showed Plaintiff’s Clinical 9 Syndrome BR score was elevated for anxiety. Tr. 719. However, the record 10 frequently showed mild anxiety or none at all. Tr. 537, 539, 541, 543, 550, 624, 11 642, 646, 668, 674, 699, 708, 745. While the records from Frontier Behavioral 12 Health submitted after the ALJ hearing show an increase in anxiety starting in 13 December of 2012, by April of 2013, it had improved to the point Plaintiff was 14 playing games with a group on Mondays and by the end of his treatment records, 15 his mood and affect are within normal limits. Tr. 758-771, 782, 793-794, 797-798, 16 801. As such, the ALJ’s conclusion is supported by substantial evidence. 17 The ALJ’s fourth reason for giving Dr. Pollack’s opinion little weight, that 18 Plaintiff’s activities were inconsistent with the Dr. Pollack’s conclusion of 19 avoidance, is legally sufficient. A claimant’s testimony about his daily activities 20 may be seen as inconsistent with the presence of a disabling condition. See Curry 21 v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990). Here, Plaintiff reported that he 22 visits friends weekly to engage in social games. Tr. 849. This is inconsistent with 23 Dr. Pollack’s conclusions of avoidance. Tr. 720. As such, the Court will not 24 disturb the ALJ’s treatment of Dr. Pollack’s opinion. 25 3. Allen D. Bostwick, Ph.D. 26 On August 22, 2012, Dr. Bostwick completed a psychological evaluation. 27 Tr. 610-619. Dr. Bostwick diagnosed Plaintiff with a somatization disorder with 28 probable delusional aspects associated with his physical complaints, ADHD ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 combined type by history, and schizotypal personality disorder. Tr. 618. Dr. 2 Bostwick stated that Plaintiff “will be a rather poor candidate for education and/or 3 work retraining due largely to his history of absenteeism and frequent illnesses 4 which appear to be largely associated with this Somatization Disorder.” Tr. 619. 5 While Dr. Bostwick found Plaintiff to be a poor candidate for vocational 6 retraining, he “recommended that [Plaintiff] continue with his mental health 7 treatment until he becomes stabilized and demonstrates an improved track record 8 for illness and absenteeism.” Id. The ALJ gave Dr. Bostwick’s opinion little 9 weight because it was (1) based on Plaintiff’s self-report and (2) not consistent 10 11 with the substantial evidence of record. Tr. 24. The ALJ’s first reason, that it was based on Plaintiff’s unreliable self-report, 12 is legally sufficient. An ALJ may discount a treating provider’s opinion if it 13 appears it is based on a claimant’s unreliable self-reports, so long as the ALJ 14 provides the basis for her conclusion that the opinion was based on a claimant’s 15 self-reports. Ghanim, 763 F.3d at 1162. In his opinion, Dr. Bostwick concluded 16 Plaintiff had problems with absenteeism. Tr. 619. However, that ALJ concluded 17 that the record and Plaintiff’s other testimony did not support this conclusion. 18 Plaintiff’s no-shows to appointments were not due to illness, Tr. 554, 558, 560- 19 561, 579, 597-599, and his report of completing a three year course at the Skill 20 Center in only six months is inconsistent with a forty percent rate of absenteeism, 21 Tr. 612. The only information that supported this conclusion was Plaintiff’s 22 reported absenteeism. Tr. 619. Therefore, Dr. Bostwick’s opinion relied heavily 23 on Plaintiff’s self-reports, which the ALJ found to be unreliable. Tr. 21. Plaintiff 24 did not challenge the ALJ’s credibility determination in his briefing.4 ECF No. 18. 25 26 4 The Court will not consider issues not addressed in Plaintiff’s opening 27 brief. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th 28 Cir. 2008). ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 2 As such, this reason is a legally sufficient reason to reject Dr. Bostwick’s opinion. The ALJ’s second reason for discounting Dr. Bostwick’s opinion, that it was 3 inconsistent with the record, is legally sufficient. Inconsistency with the majority 4 of objective evidence is a sufficient reason for rejecting a physician’s opinions. 5 Batson, 359 F.3d at 1195. The ALJ pointed out that Dr. Bostwick’s reliance on 6 Plaintiff’s absenteeism was not supported by his education records and there was a 7 lack of repeated injuries or illnesses to support the conclusion. Tr. 24. While 8 Plaintiff cites letters from providers stating that Plaintiff would miss school due to 9 his conditions, ECF No. 18 at 18, there is no evidence of Plaintiff’s actual rate of 10 absenteeism. In fact, recent medical records show that the majority of missed 11 appointments were not medical related. See supra. 12 4. John T. Jaccard, M.D. 13 On January 24, 2013, Dr. Jaccard sent a letter stating that he was in 14 treatment at Spokane Mental Health and was diagnosed with psychosis, not 15 otherwise specified, rule out schizophrenia, generalised anxiety disorder, ADHD 16 combined, and Asperger’s. Tr. 620. Dr. Jaccard ended the letter with the 17 following: [His] already poor social functioning has deteriorated and the Vocational Rehabilitation assessed that he was unfit for their program until his anxiety was reduced to enable learning. Initial gains in treatment have completely disappeared after he stopped attendance at a small structured high school for adolescents with significant dysfunction secondary to Axis I psychiatric disorders. Increasing symptoms are also consistent with the onset of thought disorders in the later part of the second decade of life. He is unable to live independently. Prognosis is guarded. 18 19 20 21 22 23 24 25 Tr. 620. The ALJ gave the letter little weight because (1) the most recent medical 26 records from Dr. Jaccard was from December 2011, (2) treatment notes from Dr. 27 Jaccard did not suggest significant symptoms, and (3) there were no records 28 supporting a significant increase in symptoms. Tr. 25. ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 All of the ALJ’s reasons focus on a lack of evidence. After the ALJ’s 2 decision, Plaintiff submitted Dr. Jaccard’s treatment notes from February 3, 2012 3 through August 8, 2013, Tr. 741-810, to the Appeals Council. Tr. 7, 29. While 4 this evidence was not available to the ALJ, this Court must consider evidence that 5 was submitted to the Appeals Council in determining whether the ALJ’s 6 determination is supported by substantial evidence. Brewes v. Comm’r of Soc. Sec. 7 Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). This new evidence demonstrates that 8 that the ALJ’s reasons may not be supported by substantial evidence. 9 However, any error resulting from the ALJ’s rejection of Dr. Jaccard’s 10 opinion would be harmless error. See Tommasetti, 533 F.3d at 1038 (An error is 11 harmless when “it is clear from the record that the . . . error was inconsequential to 12 the ultimate nondisability determination.”). The opinion did not prescribe any 13 functional limitations. It simply asserted poor social functioning and anxiety being 14 present. Tr. 620. The ALJ accounted for impaired social functioning and anxiety 15 in his residual functional capacity assessment. Tr. 19-20. Furthermore, the ALJ 16 provided legally sufficient reasons for rejecting Dr. Pollack’s similar conclusions 17 regarding Plaintiff’s anxiety, which included specific functional limitations. As 18 such, the Court finds that the ALJ’s error in weighing Dr. Jaccard’s opinion was 19 inconsequential to the ultimate finding of Plaintiff’s ineligibility. 20 5. Norman Staley, M.D. 21 On September 19, 2011, Dr. Staley reviewed the medical evidence available 22 in the record and opined that Plaintiff had a residual functional capacity with no 23 weight, postural, manipulative, or environmental restrictions. Tr. 463. The ALJ 24 gave his opinion significant weight because the opinion was supported by medical 25 evidence showing relatively normal examinations and x-rays. Tr. 24. 26 Plaintiff alleges that Dr. Staley “merely reviewed the medical record without 27 making any opinion.” ECF No. 18 at 19. However, Dr. Staley stated, “[Residual 28 functional capacity] projected with no weight, postural, manipulative or ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 environmental restrictions.” Tr. 463. Therefore, Dr. Staley did provide an 2 opinion. 3 Plaintiff next alleges that the ALJ failed to recognize the diagnosis of EDS 4 or find it severe. ECF No. 18 at 19. However, the ALJ found that there was “no 5 documented laboratory findings or objective physical findings supporting a 6 diagnosis of [EDS].” Tr. 19. Regulations require that a medically determinable 7 impairment be established by objective medical evidence, a claimant’s statement of 8 symptoms, a diagnosis, or a medical opinion will not suffice. 20 C.F.R. § 416.921. 9 As such, the Court will not disturb the ALJ’s treatment of Dr. Staley’s opinion. 10 CONCLUSION 11 Having reviewed the record and the ALJ’s findings, the Court finds the 12 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 13 Accordingly, IT IS ORDERED: 14 15 16 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is DENIED. 17 The District Court Executive is directed to file this Order and provide a copy to 18 counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 19 and the file shall be CLOSED. 20 DATED August 14, 2017. 21 22 23 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 17
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