Hackbart v. Colvin, No. 2:2014cv00072 - Document 21 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT ECF No. 18 and denying ECF No. 15 Plaintiff's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (TR, Intake Clerk)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 8 9 KIMBERLY KAY HACKBART, 10 Plaintiff, 11 v. 12 No. CV-14-00072-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 CAROLYN W. COLVIN, 14 Commissioner of Social Security, 15 Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 Nos. 15, 18. Attorney Randy J. Fair represents Plaintiff, and Special Assistant 19 United States Attorney Terrye E. Shea represents the Commissioner of Social 20 Security (Defendant). The parties have consented to proceed before a magistrate 21 judge. ECF No. 7. After reviewing the administrative record and the briefs filed 22 by the parties, the court GRANTS Defendant’s Motion for Summary Judgment 23 and DENIES Plaintiff’s Motion for Summary Judgment. 24 25 JURISDICTION On February 28, 2011, Plaintiff filed both a Title II application for a period 26 of disability and disability insurance benefits and a Title XVI application for 27 supplemental security income. Tr. 18; 119-20. In both applications, Plaintiff 28 alleged disability beginning August 1, 2009. Tr. 18; 121;133. Plaintiff reported ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 1 that she was unable to work due to depression, Hepatitis C, fibromyalgia, 2 rheumatoid arthritis, and suicide ideation. Tr. 286. The claims were denied 3 initially and on reconsideration, and Plaintiff requested an administrative hearing. 4 Tr. 18;119-208; 210-20. On October 25, 2012, Administrative Law Judge Caroline 5 Siderius presided over a hearing and heard testimony from medical expert Kent 6 Layton, Ph.D., vocational expert Diane Kramer, and Plaintiff, who was represented 7 by counsel. Tr. 43-93. On November 30, 2012, the ALJ issued a decision finding 8 Plaintiff not disabled. Tr. 18-36. The Appeals Council declined review. Tr. 1-5. 9 The instant matter is before this court pursuant to 42 U.S.C. § 405(g). 10 11 STATEMENT OF FACTS The facts have been presented in the administrative hearing transcript, the 12 ALJ’s decision, and the briefs of the parties and, thus, they are only briefly 13 summarized here. At the time of the hearing, Plaintiff was 44 years old and living 14 with her mother. Tr. 80-81. 15 Plaintiff testified that every day she has pain in her shoulders, back and “all 16 over.” Tr. 76. Plaintiff explained that she has muscle spasms that shoot up her 17 shoulders, back, and buttocks. Tr. 76. Plaintiff said her depression started when 18 her father died about four years ago, and it has worsened over the years. Tr. 77. 19 Plaintiff said she shops late at night when her body is not hurting. Tr. 78. 20 She testified that her mother does her housecleaning and prepares her meals. Tr. 21 78. Plaintiff said she spends most of her time sleeping, and she leaves the house 22 about twice per week. Tr. 79-80. 23 At the hearing, Plaintiff testified that she has abstained from alcohol and 24 methamphetamine since she completed an inpatient program in 2005. Tr. 70. She 25 said she has a prescription for medical marijuana, and she grows plants for her 26 personal consumption. Tr. 70-71. Plaintiff explained that she used the marijuana 27 to ease pain caused by her fibromyalgia. Tr. 71. Plaintiff said that she attends 28 regular meetings, similar to Alcoholics Anonymous, at her church. Tr. 73-74. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is relevant evidence that a reasonable 11 mind might accept as adequate to support a conclusion. Richardson v. Perales, 12 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 13 interpretation, the court may not substitute its judgment for that of the ALJ. 14 Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 15 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial 16 evidence will still be set aside if the proper legal standards were not applied in 17 weighing the evidence and making the decision. Brawner v. Secretary of Health 18 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 19 supports the administrative findings, or if conflicting evidence supports a finding 20 of either disability or non-disability, the ALJ’s determination is conclusive. 21 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 22 23 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 26 through four, the burden of proof rests upon the claimant to establish a prima facie 27 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 28 burden is met once a claimant establishes that a physical or mental impairment ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 prevents her from engaging in her previous occupation. 20 C.F.R. §§ 2 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do her past relevant work, the 3 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 4 (1) the claimant can make an adjustment to other work, and (2) specific jobs exist 5 in the national economy that the claimant can perform. Batson v. Commissioner of 6 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 7 adjustment to other work in the national economy, claimant is found “disabled.” 8 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 9 10 ALJ’S FINDINGS At step one of the sequential evaluation process, the ALJ found Plaintiff has 11 not engaged in substantial gainful activity since August 1, 2009, the alleged onset 12 date. Tr. 20. At step two, the ALJ found Plaintiff suffered from the severe 13 impairments of hepatitis C, fibromyalgia, degenerative disc disease at C4-5 and 14 C6-7 with spondylosis, anxiety, depression and somatoform disorder. Tr. 20. 15 At step three, the ALJ found Plaintiff’s impairments, alone or in combination, do 16 not meet or medically equal the severity of one of the listed impairments in 20 17 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 18 416.926). Tr. 21. The ALJ found Plaintiff has the residual functional capacity to 19 perform light work. Tr. 22-23. At step four, the ALJ found that Plaintiff is unable 20 to perform any past relevant work. Tr. 34. At step five, the ALJ found that 21 considering Plaintiff’s age, education, work experience and residual functional 22 capacity, jobs exist in significant numbers that Plaintiff can perform, such as 23 Cleaner I and mail clerk. Tr. 35. As a result, the ALJ concluded that Plaintiff has 24 not been disabled within the meaning of the Social Security Act at any time from 25 the date the application was filed through the date of the decision. Tr. 36. 26 27 28 ISSUES Plaintiff contends that the ALJ erred in weighing six medical opinions, and by failing to meet the ALJ’s burden at Step Five. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 A. Anjna Grover, M.D. 2 Plaintiff contends that the ALJ erred by rejecting the opinion of Dr. Grover 3 for three reasons: (1) the doctor’s opinion was vague; (2) the opinion relied upon 4 subjective complaints; and (3) the opinion was not supported by objective 5 evidence. ECF No. 15 at 12-13. 6 Anjna Grover, M.D. completed a Physical Evaluation form dated December 7 25, 2009. Tr. 811-14. In that form, Dr. Grover listed Plaintiff’s primary 8 impairment as fibromyalgia, and noted Plaintiff was limited by paresthesia. Tr. 9 812. In addition to fibromyalgia and parathesia, Dr. Grover’s diagnoses on the 10 form included back pain, hepatitis C and depression. Tr. 813. Dr. Grover found 11 that Plaintiff’s diagnoses caused several marked and moderate limitations in a 12 variety of basic work related activities. Tr. 813. Dr. Grover opined Plaintiff was 13 limited to light or sedentary work. Tr. 813. Dr. Grover provided few notations or 14 explanations on the form to support her opinion. Tr. 811-14. 15 The ALJ found that Dr. Grover failed to provide objective evidence to 16 support her conclusion that Plaintiff was limited to light or sedentary work. Tr. 29. 17 The ALJ specifically noted Plaintiff’s complaint of paresthesia in her upper 18 extremities was undermined by nerve conduction studies that did not confirm 19 paresthesia. Tr. 29. The ALJ found that Dr. Grover’s statements about Plaintiff’s 20 pain were vague and appeared based upon subjective complaints. Tr. 29. 21 An ALJ may discredit physician opinions that are conclusory, brief, and 22 unsupported by the record as a whole, or by objective medical findings. Batson, 23 359 F.3d at 1195. Also an ALJ may give little weight to a physician's opinion that 24 is based on a claimant's subjective complaints which were properly discounted. 25 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 26 Plaintiff argues that objective evidence provides sufficient objective support 27 for Dr. Grover’s opinion, but the pages cited by Plaintiff do not support her 28 argument. For example, Plaintiff cites as supporting evidence several pages that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 are simply lab test results and that appear unrelated to her argument. See, e.g., Tr. 2 377-89. Plaintiff also points to a record that reveals she had carpal tunnel release 3 performed on each hand, but the record lacks any indication Plaintiff has enduring 4 issues with either hand, and is devoid of facts that support Dr. Grover’s assessed 5 limitations. Tr. 370. Similarly, Plaintiff cites abnormal lab findings –related to red 6 blood cell counts, epithelial cells and bacteria in her urine – but Plaintiff fails to 7 explain how the findings support the limitations assessed by Dr. Grover. Tr. 378; 8 385. 9 Plaintiff also lists several findings from a December 17, 2009, x-ray that 10 reveal narrowing of disk space, bony spurs and degenerative changes, but again 11 Plaintiff fails to provide or point to an explanation that establishes these findings 12 support the severe limitations assessed by Dr. Grover. 13 Finally, Plaintiff cites an Urgent Care record also from December 17, 2009, 14 during which Plaintiff presented as: “extremely agitated … with a slight tremor in 15 her hand … somewhat emotionally labile during the exam.” Tr. 400. Plaintiff 16 complained of mid-back pain and pain in the left side of her neck, but the 17 physician could not find a source of the pain. Tr. 400-01. Plaintiff was diagnosed 18 with osteoarthritis with disk collapse, midscapular back pain on the left with no 19 obvious source, and no radicular findings. Tr. 400-01. It is unclear, and Plaintiff 20 provides no explanation, how this urgent care visit supports Dr. Grover’s opinions 21 that Plaintiff was severely restricted in the ability to stand and use her hands. 22 Plaintiff’s assertion that these records establish objective medical evidence 23 that support Plaintiff’s alleged severity of limitations is not persuasive and, thus, 24 this evidence does not undermine the ALJ’s conclusion that Dr. Grover’s 25 assessments were based upon subjective complaints. 26 B. 27 28 Irene Kimura, M.D. Plaintiff contends that he ALJ erred in rejecting the opinions of Dr. Kimura related to Plaintiff’s exertional limitations, on the basis that the opinion was ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 2 unsupported by objective findings. ECF No. 15 at 14. On April 22, 2012, Irene Kimura, M.D., completed a check-the-box Physical 3 Medical Source Statement. Tr. 731-33. Dr. Kimura wrote that Plaintiff’s 4 diagnosis was hepatitis C, with +ANA, +RNP, and she indicated Plaintiff was 5 deficient in vitamin D. Tr. 733. The space for the physician to provide objective 6 findings that identify the cause of Plaintiff’s symptoms was left blank. Tr. 733. 7 In an accompanying fill-in-the-blank Physician Statement, Dr. Kimura 8 opined that Plaintiff’s hepatitis C, depression, anxiety, and fibromyalgia limited 9 Plaintiff to standing only two to three hours per day, lifting no more than five 10 pounds occasionally, using her hands for fingering, moving, or grasping two to 11 three hours per day. Tr. 734. Dr. Kimura concluded that Plaintiff was unable to 12 work a full time job. Tr. 734. 13 The ALJ found that Dr. Kimura failed to provide objective evidence to support 14 the assessment that Plaintiff was limited to less than sedentary work. Tr. 29. The 15 ALJ observed that Dr. Kimura’s treatment notes lacked information about 16 Plaintiff’s gait, range of motion, sensation, deep tendon reflexes or other objective 17 evidence related to exertional and non-exertional abilities. Tr. 29. Moreover, the 18 ALJ noted that the treatment notes lack descriptions of symptoms related to 19 hepatitis C. Finally, the notes mention Plaintiff’s headache, eye problems, 20 swelling of her right extremities, wrist pain, dental issues, and sinusitis, but the 21 ALJ observed that these complaints are unrelated to Hepatitis C. Tr. 29. 22 As noted above, an ALJ may discredit physician opinions that are 23 conclusory, brief, and unsupported by the record as a whole, or by objective 24 medical findings. Batson, 359 F.3d at 1195. In this case, the ALJ did not confine 25 review to the check-the-box-form, but instead properly examined and discussed Dr. 26 Kimura’s treatment notes. Tr. 29. 27 28 Plaintiff asserted that the treatment records support Dr. Kimura’s opinion, and Plaintiff listed seven cites to the record. ECF No. 15 at 15. First, Plaintiff ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 relies upon treatment notes that reveal complaints of pain in Plaintiff’s right upper 2 quadrant with a subsequent gallbladder ultrasound, but the ultrasound findings 3 were “unremarkable” and revealed that her organs were operating within “within 4 normal limits.” Tr. 687; 694. These records do not support Plaintiff’s argument. 5 Plaintiff also relies upon treatment notes from May 13, 2011, in which 6 Plaintiff complained of tenderness in her biceps and near her elbow, and notes from 7 October 14, 2011, when she complained of shoulder tenderness, decreased range of 8 motion, and weak deltoids. Tr. 686; 719. Finally, Plaintiff cites a February 3, 9 2012, blood tests results that Plaintiff characterizes as “abnormal.” Tr. 710. 10 However, Plaintiff fails to explain how the records related to her pain complaints 11 and blood test results support Dr. Kimura’s opinion that Plaintiff was limited to 12 less than sedentary work, and no correlation is obvious to the Court. Plaintiff establishes an impairment only if the record includes signs – the 13 14 results of "medically acceptable clinical diagnostic techniques," such as tests – as 15 well as symptoms, i.e., Plaintiff’s representations regarding her impairment. See 16 Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). As the ALJ found, the 17 record lacks evidence, and Plaintiff fails to provide persuasive analysis, that the 18 evidence supports Dr. Kimura’s opinion that Plaintiff is unable to work. Tr. 761- 19 69. As such, the ALJ did not err in giving little weight to Dr. Kimura’s opinion. 20 C. 21 Jill Simon, M.D. Plaintiff contends the ALJ erred by rejecting the opinion of Jill Simon, 22 M.D., who opined Plaintiff was limited to sedentary work. ECF No. 15 at 15-16. 23 On February 8, 2010, Dr. Simon completed a “progress note,” that consists 24 of diagnoses and a list of affected work activities with an estimate of the severity 25 of each limitation. Tr. 821-25. The diagnoses listed by Dr. Simon were 26 unspecified myalgia/myositis, chronic hepatitis C, proteinuria, and depression. Dr. 27 Simon assessed Plaintiff with several marked and moderate limitations in her work 28 abilities. Tr. 824. Dr. Simon noted that she saw Plaintiff twice in 2010, but ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 Plaintiff switched treating physicians and Dr. Kimura treated her for the past two 2 years. Tr. 825. The form did not indicate whether Dr. Simon reviewed Plaintiff’s 3 current medical records. Finally, Dr. Simon opined that Plaintiff was limited to 4 sedentary work. Tr. 824. 5 In this case, the ALJ gave little weight to the opinion from Dr. Simon that 6 limited Plaintiff to sedentary work. Tr. 29. The ALJ noted that Dr. Simon had not 7 treated Plaintiff in two years, and thus would not be considered a treating 8 physician. Tr. 29. Moreover, the ALJ noted that Dr. Simon’s opinion lacked 9 substantial supporting treatment notes and lab tests. Tr. 29. Finally, the ALJ 10 observed that Dr. Simon’s treatment notes were primarily comprised of subjective 11 complaints and the mental health treatment notes indicated Plaintiff’s depression 12 and anxiety symptoms were well controlled with medication and counseling. Tr. 13 29. 14 Plaintiff first argues that Dr. Simon’s opinion was entitled to “some weight” 15 notwithstanding the fact that she had not examined Plaintiff in two years. ECF No. 16 15 at 16. In determining the weight to give to a medical provider, an ALJ properly 17 considers the number of times the provider examined Plaintiff, and the length of 18 time the provider treated Plaintiff. 20 C.F.R. §§ 404.1527(c)(2)(i). The ALJ 19 properly considered that Dr. Simon treated Plaintiff twice, and the most recent 20 exam was two years earlier. 21 Plaintiff also argues that substantial evidence supports Dr. Simon’s opinion, 22 and again provides a list of citations to Plaintiff’s medical record, without 23 argument or analysis. ECF No. 15 at 16-18. In the absence of meaningful 24 argument about how the designated records support Dr. Simon’s recommendation 25 of sedentary work, Plaintiff’s contention is unpersuasive. Moreover, the record 26 supports the ALJ’s interpretation of the record that Dr. Simon’s treatment notes 27 were primarily comprised of subjective complaints, and contrary to Plaintiff’s 28 assertions otherwise, the mental health treatment notes indicated Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 depression and anxiety symptoms were controlled with medication. Tr. 29; 432 2 (Plaintiff quit taking Effexor because she was feeling better); 445 (Effexor “quite 3 helpful”); 546 (Mark Duris, Ph.D., notes record reflects medication relieves 4 Plaintiff’s depression and anxiety); 641 (depression is abating). 5 The ALJ provided valid reasons, supported by substantial evidence in the 6 record, for giving little weight to the opinion from Dr. Simon. 7 D. 8 9 10 Rick Chapman, M.S.W. Plaintiff contends that the ALJ erred by rejecting the opinion of Rick Chapman, M.S.W. ECF No. 15 at 18-19. On July 17, 2009, Mr. Chapman completed a Psychological/Psychiatric 11 Evaluation form. Tr. 478-83. On the form, Mr. Chapman indicated he observed 12 several of Plaintiff’s symptoms, including extreme recurring depression, 13 distressing memories, flashbacks from physical and emotional abuse as a young 14 adult, depressed mood, arthritis in her hands and knees, and poor memory. Tr. 15 479. Mr. Chapman assessed Plaintiff with six marked impairments in cognitive 16 and social factors including the ability to: (i) understand, remember and follow 17 simple (one or two step) instructions; (ii) understand, remember and follow 18 complex (more than two step) instructions; (iii) learn new tasks; (iv) exercise 19 judgment and make joint decisions; (v) relate appropriately to co-workers and 20 supervisors; (vi) respond appropriately to and tolerate the pressures and 21 expectations of a normal work setting. Tr. 481. Mr. Chapman noted that Plaintiff 22 was working on her depression and her PTSD symptoms, and she was improving. 23 Tr. 482. 24 The ALJ gave little weight to Mr. Chapman’s opinion for several reasons. 25 Tr. 31. The ALJ noted that Mr. Chapman diagnosed Plaintiff with PTSD, but 26 Plaintiff does not allege symptoms consisted with the diagnostic criteria for PTSD. 27 Tr. 31. The ALJ also found that Mr. Chapman was not a treating provider. Tr. 31; 28 478-83; 487-94 . Finally, the ALJ found that the medical records Mr. Chapman ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 reviewed from Grant Mental Health Services revealed that despite temporary 2 situational depressors, Plaintiff’s anxiety and depression improved with therapy 3 and medication. Tr. 31. 4 First, Plaintiff argues that it was improper for the ALJ to reject Mr. 5 Chapman’s opinion on the basis that he was not a treating provider. However, the 6 ALJ opinion includes the fact Mr. Chapman was not a treating provider as one of 7 many reasons to explain the weight given the opinion. Tr. 31. The fact of whether 8 the medical provider is a treating, examining, or reviewing provider is a proper 9 factor to consider when weighing opinions. See Lester v. Chater, 81 F.3d 821, 830 10 (9th Cir. 1995) (treating physician's opinion should be accorded more weight than 11 opinions of examining physician; examining physician's opinion is entitled to 12 greater weight than a non-examining physician's opinion). The ALJ properly 13 considered the non-treating relationship status as a factor in weighing Mr. 14 Chapman’s opinion. 15 Next, Plaintiff challenges the ALJ’s assertion that Plaintiff’s mental 16 functioning improved with medication. ECF No. 15 at 19. Plaintiff cites to several 17 chart notes that reflect Plaintiff reported symptoms of depression. ECF No. 15 at 18 19. The ALJ acknowledged that Plaintiff experienced situational setbacks. Tr. 32. 19 For example, Plaintiff cites an intake assessment wherein Plaintiff had stopped 20 taking anti-depressant medication one week earlier, and her boyfriend recently 21 learned he had three to six months to live. Tr. 560. 22 As the ALJ noted, treatment notes reveal Plaintiff’s symptoms improve 23 when she consistently takes medication. See Tr. 432; 445; 546; 641; 821-25. If 24 the evidence is susceptible to more than one rational interpretation, one of which is 25 the ALJ's, the Court may not substitute its own interpretation for that of the ALJ. 26 Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). The ALJ’s observation that 27 Plaintiff’s depression symptoms improve with medication is a rational 28 interpretation of the record. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 Additionally, Plaintiff argues that the ALJ erred by noting Mr. Chapman 2 failed to provide detailed explanations to support the significant limitations, 3 because “Mr. Chapman was not required to set forth every supporting fact on his 4 form.” ECF No. 15 at 19. The ALJ noted “Mr. Chapman provided minimal detail 5 on the check-box assessment … to support his opinion.” Tr. 32. However, an ALJ 6 may properly reject a treating physician's opinion that is conclusory and 7 unsupported by clinical findings, particularly check-the-box style forms. See 8 Batson, 359 F.3d at 1195 (ALJ did not err in giving minimal evidentiary weight to 9 opinion that was in the form of a checklist, lacked supportive objective evidence 10 was contradicted by other evidence, and was based on subjective descriptions); 11 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (treating physician's 12 opinion may be rejected if it is brief, conclusory, and inadequately supported by 13 clinical findings); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ 14 permissibly rejected psychological evaluations because they were check-the-box 15 reports that did not contain explanations of the bases of their conclusions). 16 Contrary to Plaintiff’s assertions, the lack of supporting objective medical evidence 17 and the fact that the opinion was provided on a check-box form, are both proper 18 considerations in determining the weight to give to an opinion. Plaintiff’s 19 arguments that the ALJ erred in weighing the opinion from Mr. Campbell are 20 unavailing. 21 E. Phillip Richins, M.Ed. 22 Plaintiff contends that the ALJ erred by rejecting the opinion of Mr. Richins, 23 who assessed Plaintiff with several marked limitations in mental functioning. ECF 24 No. 15 at 20. 25 Philip N. Richins, M.Ed., LMHC, examined Plaintiff on both September 4, 26 2008, and June 5, 2010, and completed two corresponding Psychological/ 27 Psychiatric Evaluation forms. Tr. 503-08; 807-10. 28 Mr. Richin’s first evaluation was conducted with Dee Deifer, B.A., and the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 pair diagnosed Plaintiff with major depressive disorder, recurrent, moderate. Tr. 2 808. The report indicated no evidence existed of recent alcohol or drug abuse, and 3 none of Plaintiff’s mental health symptoms were affected by substance abuse or 4 dependence. Tr. 808. The examiners assessed Plaintiff with marked limitations in 5 every cognitive factor, and with marked limitations in two of five social factors. 6 Tr. 809. The form provided brief notations. Tr. 809-10. 7 After the June 5, 2010, exam, Mr. Richins diagnosed Plaintiff with anxiety 8 disorder, NOS, and major depressive disorder, recurrent, moderate. Tr. 505. Mr. 9 Richins indicated that no evidence existed of recent alcohol or drug abuse, and no 10 mental health symptoms were affected by substance abuse or dependence. Tr. 505. 11 Mr. Richins assessed Plaintiff with four marked limitations in the ability to: (i) 12 understand, remember and follow complex (more than two steps) instructions; (ii) 13 exercise judgment and make decisions; (iii) respond appropriately to and tolerate 14 the pressures and expectations of a normal work setting; and (iv) maintain 15 appropriate behavior in a work setting. Tr. 506. Mr. Richins also assessed 16 Plaintiff with multiple moderate limitations. Tr. 506. 17 The ALJ gave little weight to the 2008 opinion from Mr. Richins because 18 the assessment was completed one year prior to the alleged onset date, current 19 treatment notes did not corroborate the severity of limitations, and because Mr. 20 Richins failed to consider Plaintiff’s significant history of substance abuse. Tr. 32. 21 Similarly, the ALJ gave little weight to the 2010 opinion because the check-box 22 form had only brief notations, and because Mr. Richins failed to consider 23 Plaintiff’s significant history of substance abuse. Tr. 32. 24 Plaintiff again argues that the ALJ erred in giving less weight to Mr. 25 Richin’s opinion because he was not required to set forth “every supporting factor” 26 on the form. ECF No. 15 at 20. As analyzed above, the lack of supporting 27 explanation and the check-box format of the opinion are proper considerations in 28 determining the weight to give to an opinion. Batson, 359 F.3d at 1195. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 Plaintiff also argued that her substance abuse was irrelevant to the 2 assessment of her functional abilities, and the ALJ could consider substance abuse 3 only after completing a DAA analysis. ECF No. 15 at 20. The testifying expert, 4 Kent Layton, Ph.D., commented that Plaintiff’s use of substances, including 5 marijuana, “makes her concentration worse and capability to learn new things 6 worse. It makes depression worse.” Tr. 55-56. The check-box form itself requires 7 the provider to address substance abuse: “Is there indication of alcohol or drug 8 abuse?” Tr. 808. If the provider answers yes, the provider is directed to list each 9 condition likely caused by drug or alcohol abuse, answer whether treatment would 10 decrease the severity of the condition, and describe the effect of abstinence on the 11 conditions. Tr. 808. As indicated by the expert testimony and the questions on the 12 form itself, the current or past use of substances is a relevant factor in analyzing a 13 claimant’s abilities. An examining provider’s awareness of Plaintiff’s history, 14 including abuse of substances, is properly considered in weighing the opinion. As 15 a result, the ALJ did not err in weighing Mr. Richin’s opinion. 16 F. 17 Thomas Genthe, Ph.D. Plaintiff contends that the ALJ improperly rejected the opinion of Thomas 18 Genthe, Ph.D., on the basis that his report suggested malingering and Plaintiff 19 made inconsistent statements to him. ECF No. 15 at 21. On February 15, 2010, 20 Dr. Genthe examined Plaintiff and completed a Psychological/Psychiatric 21 Evaluation form. Tr. 724-30. Dr. Genthe diagnosed Plaintiff with undifferentiated 22 somatization disorder, major depressive disorder, recurrent, anxiety disorder, NOS, 23 cannabis dependence, amphetamine abuse/alcohol dependency, and borderline 24 intellectual functioning. Tr. 724. Dr. Genthe noted, “[d]ue to the chronic nature of 25 [Plaintiff’s] somatization process and lack of gainful employment in over 8 years, a 26 referral for SSI track appears warranted.” Tr. 726. Dr. Genthe also noted that 27 Plaintiff appeared to have recently used alcohol or drugs: 28 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 2 3 4 5 [A]lthough she adamantly denies recent alcohol or drug use, her presentation today suggests she may not have been forthright regarding substance usage. Thus, it is highly recommended she abstain completely from substance abuse as it is likely to interfere with her motivation to engage in work-related activities and could contribute to exacerbation of depression, anxiety and paranoid ideation. 6 7 Tr. 726. 8 The ALJ gave little weight to Dr. Genthe’s opinion for several reasons. 9 Among the reasons was that Plaintiff’s test results suggested malingering and, thus, 10 Plaintiff’s efforts on all tests could be questioned. Tr. 32. The ALJ also noted 11 Plaintiff’s inconsistent reporting regarding her substance abuse and social 12 activities. Tr. 32. 13 Plaintiff argues that Dr. Genthe considered Plaintiff’s malingering and 14 inconsistent statements when he opined that Plaintiff could not sustain work, and 15 thus these factors tempered the opinion. Plaintiff misses the point. The ALJ found 16 that Plaintiff’s malingering and inconsistent reporting called into question her 17 effort on all testing administered during the evaluation. Tr. 32. Plaintiff’s test 18 scores provided at least a partial basis for Dr. Genthe’s opinions about her 19 functional abilities. For example, Dr. Genthe relied upon the WAIS-IV test results 20 in concluding that Plaintiff’s general cognitive ability is within the borderline 21 range of intellectual functioning. Tr. 728. Dr. Genthe concluded, based upon 22 those test results, that Plaintiff’s “borderline intellectual abilities are likely to 23 interfere with her ability to learn new tasks, follow complex instructions, and keep 24 up with her peers in a variety of positions requiring verbal and non-verbal 25 training.” Tr. 725. Moreover, Dr. Genthe noted that the test results of Plaintiff’s 26 PAI test “potentially involve considerable distortion and are unlikely to be an 27 accurate reflection of her objective clinical status.” Tr. 730. Thus, in the absence 28 of objective evidence –such as reliable test scores – to support Dr. Genthe’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 opinion, the remainder of Dr. Genthe’s opinion appears to be based upon 2 Plaintiff’s self-reporting. 3 Dr. Genthe found that Plaintiff did not accurately report her symptoms on 4 the PAI test, and she tended “to portray herself in an especially negative or 5 pathological manner.” Tr. 730. Also, Dr. Genthe noted that Plaintiff engaged in 6 denial related to her drinking and drug use. Tr. 730. Because Plaintiff’s self- 7 reporting was unreliable, the ALJ properly discounted Dr. Genthe’s report that was 8 based upon self-reporting. As stated earlier, a physician's opinion may be rejected 9 if it is based on a claimant's subjective complaints which were properly discounted. 10 Tonapetyan, 242 F.3d at 1149. The ALJ did not err by discounting Dr. Genthe’s 11 report. 12 H. 13 14 Step Five Plaintiff contends that the ALJ erred in failing to meet her Step Five burden, because she relied upon an incomplete hypothetical. 15 The hypothetical that ultimately served as the basis for the ALJ's 16 determination, i.e., the hypothetical that is predicated on the ALJ's final RFC 17 assessment, must account for all of the limitations and restrictions of the particular 18 claimant. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 19 2009). "If an ALJ's hypothetical does not reflect all of the claimant's limitations, 20 then the expert's testimony has no evidentiary value to support a finding that the 21 claimant can perform jobs in the national economy." Id. (citation and quotation 22 marks omitted). However, the ALJ "is free to accept or reject restrictions in a 23 hypothetical question that are not supported by substantial evidence ." Greger v. 24 Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). 25 A claimant fails to establish that a Step 5 determination is flawed by simply 26 restating argument that the ALJ improperly discounted certain evidence, when the 27 record demonstrates the evidence was properly rejected. Stubbs-Danielson v. 28 Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). In this case, Plaintiff failed to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 establish that the ALJ improperly rejected medical evidence. As a result, 2 Plaintiff’s issue fails. 3 4 CONCLUSION Having reviewed the record and the ALJ’s conclusions, this court finds that 5 the ALJ’s decision is supported by substantial evidence and free of legal error. 6 Accordingly, 7 IT IS ORDERED: 8 1. 9 Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 10 2. 11 IT IS SO ORDERED. The District Court Executive is directed to file this 12 Order, provide copies to the parties, enter judgment in favor of Defendant, and 13 CLOSE this file. 14 DATED January 13, 2015. 15 16 17 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17
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