Campbell v. Colvin, No. 2:2013cv03112 - Document 20 (E.D. Wash. 2015)
Court Description: ORDER denying Plaintiff's 15 Motion for Summary Judgment; granting Defendant's 18 Motion for Summary Judgment Signed by Judge Stanley A Bastian. (JW, Operations Clk)
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Campbell v. Colvin Doc. 20 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 TRACY LYNN CAMPBELL, Plaintiff, 9 NO. 2:13-cv-03112-SAB v. 10 11 CAROLYN W. COLVIN, Commissioner ORDER DENYING 12 of Social Security Administration, PLAINTIFF’S MOTON FOR Defendant. 13 SUMMARY JUDGMENT; 14 GRANTING DEFENDANT’S 15 MOTION FOR SUMMARY 16 JUDGMENT 17 18 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 19 15, and Defendant’s Motion for Summary Judgment. ECF No. 18. The motions 20 were heard without oral argument. 21 I. 22 On March 26, 2010, Plaintiff filed a supplemental security income (“SSI”) Jurisdiction 23 application. Plaintiff alleged she is disabled, beginning June 10, 2008, due to 24 chronic lower back pain, anxiety and depression among other conditions. 25 Her application was denied initially on December 10, 2010 and again denied 26 on reconsideration on February 28, 2011. A request for a hearing was made on 27 May 19, 2011. On March 26, 2012, Plaintiff appeared at a hearing in Yakima, 28 Washington before Administrative Law Judge (“ALJ”) James W. Sherry. ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Vocational expert (“VE”) Trevor Duncan also participated. Plaintiff was 2 represented by attorney Jeremy D. Wallace. James Tree represents Plaintiff at this 3 Court. The ALJ issued a decision on April 20, 2012 finding that Plaintiff was not 4 5 disabled. Plaintiff requested review by the Appeals Council, which was denied. 6 The Appeals Council’s denial of review makes the ALJ’s decision the final 7 decision of the Commissioner. 42 U.S.C. §405(h). Plaintiff filed a timely appeal with the U.S. District Court for the Eastern 8 9 District of Washington on October 15, 2013. The instant matter is before this 10 Court pursuant to 42 U.S.C. § 405(g). 11 II. Sequential Evaluation Process 12 The Social Security Act defines disability as the “inability to engage in any 13 substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or 15 can be expected to last for a continuous period of not less than twelve months.” 16 42 U.S.C. § 423(d)(1)(A). A claimant shall be determined to be under a disability 17 only if his impairments are of such severity that the claimant is not only unable to 18 do his previous work, but cannot, considering claimant’s age, education and work 19 experiences, engage in any other substantial gainful work which exists in the 20 national economy. 42 U.S.C. §423(d)(2)(A). 21 The Commissioner has established a five-step sequential evaluation process 22 for determining whether a person is disabled. 20 C.F.R. § 416.920(a)(4); Bowen v. 23 Yuckert, 482 U.S. 137, 140-42 (1987). 24 Step One: Whether the claimant is engaged in substantial gainful activities. 25 20 C.F.R. § 416.920(b). Substantial gainful activity is work done for pay and 26 requires compensation above the statutory minimum. 20 C.F.R. § 416.972(a); 27 Keyes v. Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 in substantial activity, benefits are denied. 20 C.F.R. § 416.971. If she is not, the 2 ALJ proceeds to step two. 3 Step Two: Whether the claimant has a medically-severe impairment or 4 combination of impairments. 20 C.F.R. § 416.920(c). If the claimant does not have 5 a severe impairment or combination of impairments, the disability claim is denied. 6 A severe impairment is one that lasted or must be expected to last for at least 12 7 months and must be proven through objective medical evidence. 20 C.F.R. § 8 416.909. If the impairment is severe, the evaluation proceeds to the third step. 9 Step Three: Whether the claimant’s impairment meets or equals one of the 10 listed impairments acknowledged by the Commissioner to be so severe as to 11 preclude substantial gainful activity. 20 C.F.R. § 416.920(d); 20 C.F.R. § 404 12 Subpt. P. App. 1. If the impairment meets or equals one of the listed impairments, 13 the claimant is conclusively presumed to be disabled. If the impairment is not one 14 conclusively presumed to be disabling, the evaluation proceeds to the fourth step. 15 Before considering Step Four, the ALJ must first determine the claimant’s 16 residual functional capacity. 20 C.F.R. § 416.920(e). An individual’s residual 17 functional capacity is her ability to do physical and mental work activities on a 18 sustained basis despite limitations from her impairments. 19 Step Four: Whether the impairment prevents the claimant from performing 20 work she has performed in the past. 20 C.F.R. § 416.920(f). If the claimant is able 21 to perform her previous work, she is not disabled. Id. If the claimant cannot 22 perform this work, the evaluation proceeds to the fifth and final step. 23 Step Five: Whether the claimant is able to perform other work in the 24 national economy in view of her age, education, and work experience. 20 C.F.R. § 25 416.920(g). 26 The initial burden of proof rests upon the claimant to establish a prima facie 27 case of entitlement to disability benefits. Tackett v. Apfel, 108 F.3d 1094, 1098 28 (9th Cir. 1999). This burden is met once a claimant establishes that a physical or ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 mental impairment prevents her from engaging in her previous occupation. Id. At 2 step five, the burden shifts to the Commissioner to show that the claimant can 3 perform other substantial gainful activity. Id. 4 III. Standard of Review 5 The Commissioner’s determination will be set aside only when the ALJ’s 6 findings are based on legal error or are not supported by substantial evidence in 7 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) 8 (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 9 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.” 10 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). Substantial 11 evidence is “such relevant evidence as a reasonable mind might accept as adequate 12 to support a conclusion.” Richardson, 402 U.S. at 401. The Court must uphold the 13 ALJ’s denial of benefits if the evidence is susceptible to more than one rational 14 interpretation, one of which supports the decision of the administrative law judge. 15 Batson v. Barnhart, 359 F.3d 1190, 1193 (9th Cir. 2004). But “[i]f the evidence 16 can support either outcome, the court may not substitute its judgment for that of 17 the ALJ.” Matney, 981 F.2d at 1019. A decision supported by substantial evidence will be set aside if the proper 18 19 legal standards were not applied in weighing the evidence and making the decision. 20 Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 21 1988). An ALJ is allowed “inconsequential” errors as long as they are immaterial 22 to the ultimate nondisability determination.” Stout v. Comm'r, Soc. Sec. Admin., 23 454 F.3d 1050, 1055 (9th Cir. 2006). 24 IV. Statement of Facts 25 The facts have been presented in the administrative transcript and the ALJ’s 26 decision. They will only be summarized here. 27 /// 28 /// ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 At the time of the hearing, Plaintiff was forty-three years old. Plaintiff has 1 2 previous work experience including operating an in-home daycare, working at a 3 community college, and bartending. She has not worked since 2005. Plaintiff was in a motor vehicle accident in 1999 and a bicycle accident in 4 5 2009. She reports frequent anxiety and has trouble going out in public or 6 interacting with other people. Plaintiff reports she was physically, sexually, and 7 emotionally abused by her parents. She also reports sexual abuse from partners. 8 Plaintiff has been diagnosed with degenerative disc disease, hypothyroidism, 9 hepatitis C, and recurrent headaches. She has also been diagnosed with depression, 10 post-traumatic stress disorder delayed onset, generalized anxiety disorder, and 11 panic disorder with agoraphobia. Plaintiff has a history of polysubstance 12 dependence including methamphetamine and cocaine use. She received inpatient 13 and outpatient treatment for substance abuse in 2000, she now reports being able 14 to stay clean and sober. 15 V. The ALJ’s findings 16 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 17 activity since March 26, 2010, the alleged onset date. (Tr. 30.) 18 At step two, the ALJ found Plaintiff has the following severe impairments: 19 degenerative disc disease; hypothyroidism; hepatitis C; history of recurrent 20 headaches; depression; post-traumatic stress disorder; generalized anxiety disorder; 21 panic disorder with agoraphobia; psychotic disorder (not otherwise specified); 22 schizoid and avoidant personality traits; and history of polysubstance abuse and 23 dependence, in remission. (Tr. 30.) 24 At step three, the ALJ found that Plaintiff’s impairments or combination of 25 impairments does not meet or medically equals the severity of one of the listed 26 impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 31.) 27 The ALJ concluded that Plaintiff has the following residual 28 functional capacity (“RFC”): ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 The claimant is able to lift up to 20 pounds at a time, and can frequently lift or carry 10 pounds. She can stand and/or walk for a total of 6 hours in an 8-hour workday, and can sit for a total of 6 hours in an 8-hour workday. Pushing and pulling are unlimited within the aforementioned lift and carry restrictions. The claimant can occasionally stop, crouch, kneel, and climb ladders, ropes and scaffolds. She can frequently crawl and climb ramps and stairs. She should avoid concentrated exposure to excessive noise, excessive vibration, hazards such as unprotected heights and moving machinery, poorly ventilated areas, and irritants such as fumes, odors, dusts, and gases. She is capable of performing simple, routine, repetitive tasks, as well as well learned non-complex tasks. She is capable of lowstress jobs that require occasional decisionmaking, and can adjust to occasional changes in the work setting. She would need more time to learn new work processes and procedures. She should not work with fast-paced production requirements. She would work best away from the general public. She is capable of superficial interaction with coworkers in small-group settings, and superficial interaction with supervisors. (Tr. 32-33). 2 3 4 5 6 7 8 9 10 11 12 13 14 At step four, the ALJ found Plaintiff was not capable of performing any past 15 16 relevant work. (Tr. 41.) At step five, the ALJ found there were jobs that exist in significant numbers 17 18 in the national economy that Plaintiff can perform. (Tr. 41.) The ALJ relied on the 19 Medical-Vocational Guidelines and found that Plaintiff could perform light work 20 with additional limitations. Such restrictions would still allow Plaintiff to perform 21 the job of office cleaner, mail clerk, and hand packager. As a result, the ALJ 22 concluded that Plaintiff has not been under a disability, as defined in the Social 23 Security Act, since March 26, 2010. 24 VI. Issues for Review 25 1. Did the ALJ commit reversible error by disregarding the opinions of 26 the Claimant’s treating and examining physicians? 27 2. Did the ALJ commit reversible error by dismissing the Claimant’s 28 subjective complaints as not credible? ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 3. Was the ALJ’s finding at step five, disregarding the opinion of the 2 vocational expert, supported by substantial evidence? 3 VII. Discussion 4 1. 5 ALJ’s weighing of evidence from treating and examining physicians 6 Plaintiff argues the ALJ committed reversible error for failing to take into 7 account the opinions of several treating and examining physicians. Specifically, 8 Plaintiff contends the ALJ errantly gave too little weight to the opinions of Drs. 9 Roland Dougherty, Marie Ho, and Fady Sabry, and of Dick Moen and Christopher 10 Clark. An uncontradicted opinion from an examining physician must be accepted 11 by an ALJ unless he provides clear and convincing reasons to reject the opinion. 12 Turner v. Commissioner of Social Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) 13 (citing Lester v. Chater, 81 F.3d. 821, 830-31 (9th Cir. 1995). A contradicted 14 opinion of an examining doctor may only be rejected for “specific and legitimate 15 reasons.” Id. a. Dr. Dougherty 16 17 Plaintiff claims the ALJ “largely dismissed parts of Dr. Dougherty’s 18 psychological examination” from October 2010. Plaintiff objects to the ALJ’s 19 treatment of Dougherty’s opinion in three specific ways. First, the ALJ found the 20 Global Assessment of Functioning (“GAF”) score of forty that Dougherty 21 assigned to Plaintiff was “not consistent” with Plaintiff’s functional capacity and 22 was based on factors that were not probative of mental residual functional capacity. 23 Therefore, the ALJ assigned little weight to the GAF score. Second, Plaintiff 24 complains that the ALJ noted Dougherty’s observation that Plaintiff “may be 25 mildly exaggerating her symptoms” but failed to note Dougherty also described 26 Plaintiff as “not obviously malingering.” Third, Plaintiff disputes the ALJ’s 27 description of Dougherty’s medical source statement as “somewhat vague.” 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Plaintiff argues the ALJ’s assessment of Dougherty’s GAF score was in 1 2 error because Dougherty simply did not specifically say what factors played a role 3 in the GAF score. Plaintiff is correct that Dougherty did not indicate the factors 4 that determined Plaintiff’s GAF score, however, the ALJ’s assignment of little 5 weight to the score does not constitute reversible error. Plaintiff has been assigned 6 at least three other GAF scores over a two-year period including scores of 43, 50, 7 and 60. Because Dougherty did not expand on the factors he relied upon in 8 determining the GAF score, it is impossible to know—and reasonable for the ALJ 9 to assume—the score may reflect factors irrelevant to a disability determination. 10 See 65 Fed. Reg. 50,746 (Aug. 21, 2000); Doney v. Astrue, 485 Fed.Appx. 163 11 (9th Cir. 2012); McFarland v. Astrue, 228 Fed.Appx. 357, 359 (9th Cir. 2008). 12 Additionally, ALJ gave reasons for rejecting the contradicted GAF score while 13 assigning more weight to parts of Dougherty’s opinion that had a more direct link 14 to a disability determination. The ALJ’s assignment of little weight to Dougherty’s 15 GAF assessment of Plaintiff was not error. Next, Plaintiff complains that ALJ noted Dougherty’s observation that she 16 17 may have been “mildly exaggerating her symptoms” but did not note that 18 Dougherty also described her as “not obviously malingering.” These two 19 descriptions, however, are not mutually exclusive. Furthermore, the ALJ simply 20 used the description as one of several reasons to assign Dougherty’s assigned GAF 21 score little weight. As previously explained, the ALJ’s consideration of the GAF 22 score was not reversible error. Correspondingly, the ALJ’s failure to mention 23 every line of Dougherty’s opinion in rejecting the GAF score is also not reversible 24 error. 25 Plaintiff also complains that the ALJ described Dougherty’s medical source 26 statement as “somewhat vague” despite the lengthy report that preceded it. 27 Plaintiff misunderstands the role and significance of medical source statements. A 28 medical source statement is “[a] statement about what [a claimant] can still do ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 despite . . . impairment(s).” 20 CFR 404.1513(b). This statement is an opinion 2 submitted by a medical source based on that source’s own medical findings. Titles 3 II & Xvi: Med. Source Opinions on Issues Reserved to the Comm'r, SSR 96-5P 4 (S.S.A. July 2, 1996). In Dougherty’s case, his report consisted of eight pages, the 5 majority a history as given by Plaintiff. The report concludes with a paragraph 6 explicitly labeled “Medical Source Statement.” The statement reads: 7 8 9 10 11 Mrs. Campbell was pleasant and cooperative with me. Her social skills appear to be fair. She reported being able to run a daycare for 10 years and did well at a work study program in college despite her chronic disorders. She should be able to understand, recall, and follow simple directions. Her abilities might improve with appropriate medication. Tr. 246. 12 Only the latter two sentences in the statement can reasonably be described as 13 forward-looking and describing what the claimant can still do despite her 14 impairments. Dougherty’s two prospective sentences include little detail and both 15 include qualifiers rendering the sentences near meaningless. Plaintiff’s suggestion 16 that Dougherty included other relevant information is noted, however, it appears it 17 was all self-reported. Medical source statements are particularly relevant to ALJ 18 determinations because they are the opinion of an accepted medical source rather 19 than merely a regurgitation of self-reported ailments. The ALJ’s assignment of 20 Dougherty’s medical source statement “some weight” due to it being “somewhat 21 vague” and failing to give “a specific assessment of the claimant’s social 22 limitations” was based on substantial evidence and does not constitute legal error. 23 24 b. Dr. Ho Plaintiff contends the ALJ’s assignment of Dr. Ho’s opinion “some weight” 25 was error. Plaintiff complains that the ALJ disregarded Ho’s opinion by 26 mistakenly claiming Ho did not take into account Plaintiff’s activities of daily 27 living (“ADLs”), and for dismissing Ho’s mental limitation statement as “vague 28 and speculative.” The ALJ also provided an additional reason for giving Ho’s ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 opinion some weight: Ho did not have an opportunity to review the whole 2 record—a record that conflicted with Ho’s finding that Plaintiff had decreased 3 sensation in her hands. 4 Plaintiff is correct that Ho had knowledge of many—though not all of— 5 Plaintiff’s ADLs. However, the ADLs that Ho did not indicate in her opinion are 6 also the ADLs that most suggest a higher functional level, such as cycling for 7 exercise and taking care of her mother. 8 Next, Plaintiff complains that the ALJ’s description of Ho’s conclusion 9 regarding Plaintiff’s mental limitations was “vague and speculative.” Ho’s 10 statement was “History of anxiety/depression, agoraphobia, panic disorder, and 11 posttraumatic stress disorder may limit her ability to function in the workplace.” 12 Tr. 258. That Plaintiff’s history “may” limit her ability to function in the 13 workplace in some unnamed manner is undoubtedly vague. Additionally, the ALJ 14 did not disagree with that statement in determining the Plaintiff’s residual 15 functioning capacity. In sum, the ALJ’s treatment of Dr. Ho’s medical opinion was 16 reasonable, based on substantial evidence, and he did not commit reversible error. 17 18 c. Dr. Sabry Plaintiff further argues that Dr. Sabry’s opinion merited more than the “little 19 weight” the ALJ assigned. The ALJ gave little weight to Sabry’s opinion because 20 the opinion was self-contradictory. Sabry diagnosed Plaintiff with neuropathy and 21 had gross or fine motor skill restrictions despite finding she had grossly normal 22 motor skills and sensory skills. Notes from a treating or examining doctor that are 23 self-contradictory provide a clear and convincing reason for an ALJ to reject even 24 an otherwise-uncontradicted opinion. Bayliss v. Barnhart, 427 F. 3d 1211, 1216 25 (9th Cir. 2005). The ALJ’s treatment of Dr. Sabry’s opinion was appropriate and 26 based on substantial evidence. 27 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 2 d. Dick Moen, MSW The ALJ gave Moen’s second opinion—from February 2010—little weight 3 because his opinion was not tied to the mental status exam performed, he based his 4 opinion largely on Plaintiff’s self-reporting, and he did not consider Plaintiff’s 5 history of drug abuse. Plaintiff complains this treatment of Moen’s opinion was 6 improper because the ALJ did not provide examples of disparities between the 7 mental status exam and Moen’s opinion. The ALJ did not, in fact, explain how the 8 opinion and exam conflicted or how Moen should have tied the two together. This 9 would be problematic if this had been the only reason the ALJ provided in 10 assigning Moen’s opinion little weight, however, the ALJ provided several other 11 legitimate reasons for his treatment of Moen’s opinion. The ALJ explains that 12 Moen did not consider Plaintiff’s history of drug abuse, that Moen’s opinion was 13 vague, and that his medical source statement only described Plaintiff as capable of 14 “crying, writing.” Tr. 39. These additional reasons, particularly Moen’s 15 insufficient medical source statement, provide substantial legitimate reasons for 16 the ALJ’s assignment of Moen’s opinion little weight. 17 18 e. Christopher Clark Lastly, Plaintiff argues the ALJ should have given Christopher Clark’s 19 evaluation and mental status exam more weight. The ALJ assigned little weight to 20 Clark’s first opinion saying it was incomplete, that the mental status exam was not 21 tied to his opinion, that the opinion was based mostly on self-reporting, and that 22 the opinion was inconsistent with Plaintiff’s daily activities. Tr. 39. Plaintiff is 23 correct that Clark’s first opinion does appear complete and the ALJ’s proffered 24 explanation for this point is inadequate. The ALJ describes Clark’s opinion as 25 incomplete because Clark provided a written assessment of Plaintiff’s remote 26 memory rather than using one of the check-boxes provided. Clark’s opinion was 27 not incomplete. However, the ALJ provided other, more compelling, justifications 28 in assigning Clark’s opinion little weight, namely that it contradicted with the ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Plaintiff’s activities of daily life. Because the ALJ is granted deference in sorting 2 through contradicting records, his treatment of Clark’s first assessment was proper, 3 even though each of the ALJ’s given reasons was not individually sufficient. 4 The ALJ gave Clark’s second opinion little weight because his opinion was 5 based largely on Plaintiff’s self-reporting and because his assessment was based 6 partially on the “specter of undiagnosed and untreated lupus” and the fact that 7 Plaintiff had not held a job in the previous six years. Tr. 40. The ALJ deemed that 8 Clark, a licensed mental health counselor, was not properly situated to incorporate 9 an undiagnosed condition into Plaintiff’s assessment. An ALJ need not give 10 meaningful weight to an opinion that is out of the examiner’s scope of 11 specialization. See Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001). 12 Additionally, Clark’s reliance on Plaintiff’s history of failing to maintain a job is 13 far less compelling when Clark did not consider Plaintiff’s prior drug abuse 14 problems as a possible contributor to her failure to maintain employment. In sum, 15 the ALJ’s interpretation of Clark’s two opinions were supported by substantial 16 evidence and he did not commit harmful error. 17 Ultimately, the ALJ had to weigh fifteen different medical assessments that 18 often reached drastically different conclusions. The ALJ provided specific and 19 legitimate reasons supported by substantial evidence for rejecting the opinions that 20 he assigned less weight to. Therefore, the ALJ reasonably weighed the medical 21 opinion evidence and did not commit harmful error. 22 2. ALJ’s determination that Plaintiff lacked credibility 23 The ALJ determined that some of Plaintiff’s alleged symptoms were 24 consistent with the medical evidence but that some of her symptoms were not 25 credible. The ALJ gave several reasons for finding a lack of credibility. These 26 included: inconsistent reports of hallucinations and delusions without seeking 27 follow-up mental health treatment; discrepancies in Plaintiff’s reporting of alcohol 28 use and abuse; failure to follow-up with Suzanne Rodriguez, MSW after such a ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 recommendation was made; and that her alleged symptoms are inconsistent with 2 some of her described daily activities. 3 In determining whether a claimant’s testimony regarding symptoms is 4 credible, an ALJ must first determine if the Plaintiff has presented objective 5 medical evidence of an underlying impairment which could reasonably cause the 6 symptoms alleged. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 7 If there is no evidence of malingering, the ALJ can only reject the claimant’s 8 testimony about her symptoms by “offering specific, clear, and convincing reasons 9 for doing so.” Id. (internal citation omitted). 10 In this case, the ALJ determined that some of Plaintiff’s medically 11 determinable impairments could reasonably cause some of the alleged symptoms. 12 Tr. 33. Although the record contains some limited suggestions of malingering, the 13 ALJ did not make any specific finding regarding malingering. The ALJ also found 14 several specific, clear and convincing reasons for not fully accepting Plaintiff’s 15 symptoms as she described them in her testimony. 16 First, the ALJ found Plaintiff’s daily activities were inconsistent with her 17 alleged symptoms. Tr. 37. Inconsistencies between testimony and daily activities 18 are grounds for discrediting Plaintiff’s testimony, even if the activities suggest 19 some disability functioning. Molina v. Astrue, 674 F. 3d 1104, 1112-13 (9th Cir. 20 2012). The ALJ notes that Plaintiff’s ability to cook, do chores like dishes and 21 laundry, and maintain her own budget is inconsistent with her allegations of 22 disabling limitations. Tr. 37. Additionally, Plaintiff was able to take care of her 23 mother and, at least in 2009, cycled for exercise. The ALJ reasonably found these 24 activities to be inconsistent with the complete range of alleged symptoms. 25 Second, the ALJ found that Plaintiff had made several statements to treating 26 doctors that were inconsistent with either her testimony or statements to other 27 doctors. An ALJ may use ordinary techniques of determining a claimant’s 28 credibility, such as considering prior inconsistent statements. Fair v. Bowen, 885 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 F.2d 597, 604 n.5 (9th Cir. 1989). Here, the ALJ describes several discrepancies in 2 Plaintiff’s reported alcohol use, medication use, and psychotic symptoms. Tr. 31, 3 34. The ALJ also noted that two doctors had expressed some belief that Plaintiff 4 may exaggerate symptoms. Tr. 35. These inconsistencies represent a specific, clear, 5 and convincing reason to not fully accept Plaintiff’s alleged symptoms. 6 Third, the ALJ found that Plaintiff’s frequent failure to seek treatment or 7 follow recommended treatment decreased Plaintiff’s credibility as to alleged 8 symptoms. Tr. 34-37. An unexplained, or inadequately explained, failure to follow 9 a prescribed course of treatment or failure to seek treatment altogether constitutes 10 a form of evidence that can contribute to finding a Plaintiff not credible. Fair, 885 11 F.2d at 603. The ALJ noted several instances where Plaintiff failed to seek follow12 up treatment recommended to her, such as by Dr. Sabry (Tr. 36.) and Ms. 13 Rodriguez. Tr. 34. Plaintiff argues any failure in seeking treatment was due to her 14 lack of insurance or other ability to pay for such treatment. The ALJ, however, 15 noted that Plaintiff did not seek mental-health treatment either through emergency 16 room or low-cost clinic options. Tr. 34. Plaintiff cites Gamble v. Chater, for the 17 proposition that disability benefits cannot be denied on the basis that a claimant 18 did not obtain treatment she could not obtain due to lack of funds. 68 F.3d 319, 19 321 (9th Cir. 1995). Gamble, however, involved the determination of whether a 20 claimant was disabled due to being unable to afford a prosthesis. Here, the ALJ 21 instead uses the fact that Plaintiff did not attempt to seek any low-cost treatment as 22 one of several factors in finding that Plaintiff was not fully credible as to all of her 23 alleged symptoms. Although Plaintiff’s failure to seek follow-up mental health 24 treatment is not as compelling a reason to find the claimant not credible as 25 inconsistencies in the record of Plaintiff’s statements, and the conflict between the 26 alleged symptoms and Plaintiff’s daily activities, it was not harmful error for the 27 ALJ to consider failure to seek treatment in his credibility determination. 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 The ALJ properly provided specific, clear, and convincing reasons for 2 finding the Plaintiff not fully credible with regard to her alleged symptoms. 3 3. Disregarding part of the vocational expert’s testimony 4 Plaintiff contends the ALJ committed harmful reversible error by 5 disregarding the opinion of the vocational expert that Plaintiff could not sustain 6 employment. The ALJ asked the vocational expert: “[w]ould a person with the 7 limitations that [Plaintiff] described be able to perform competitive employment 8 on a regular and continuous basis?” Tr. 93. The vocational expert replied: “[a]s the 9 claimant described, no, your honor.” Id. Plaintiff argues that the ALJ’s failure to 10 consider this opinion was error. 11 The VE opinion that Plaintiff fixates on is the opinion based solely on 12 Plaintiff’s self-described symptoms. As previously discussed, the ALJ properly 13 discounted some of Plaintiff’s alleged symptoms as being not credible. Therefore, 14 the ALJ need not accept the VE’s answer to a hypothetical based on those same 15 symptoms the ALJ already rejected. The ALJ posed other hypotheticals to the VE, 16 including one that matches the residual functioning capacity the ALJ assigned to 17 Plaintiff in his opinion. Tr. 31-32, 90-91. Accordingly, the ALJ did not commit 18 harmful reversible error by disregarding the hypothetical based on Plaintiff’s self19 described symptoms. 20 VIII. Conclusion 21 The ALJ’s determination was based upon substantial evidence in the record. 22 The extensive record contained medical opinions from fifteen sources and 23 contained conflicting information. The ALJ provided proper and appropriate 24 reason for balancing the various opinions. Additionally, the ALJ provided specific, 25 clear, and convincing reasons for not finding all of the claimant’s self-described 26 symptoms to be credible. Based on his appropriate credibility determination, the 27 ALJ properly disregarded a hypothetical based on the self-described symptoms. In 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 sum, the ALJ’s determination was based on substantial evidence and was well 2 within the scope of deference which this Court must accord the ALJ. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 5 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 6 3. The decision of the Commissioner denying benefits is affirmed. 7 4. The District Court Executive is directed to enter judgment in favor of 8 Defendant and against Plaintiff. 9 IT IS SO ORDERED. The District Court Executive is hereby directed to 10 file this Order and provide copies to counsel. 11 DATED this 16th day of January 2015 12 13 14 15 16 17 18 Stanley A. Bastian United States District Judge 19 20 21 22 23 24 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16
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