Winkel v. Colvin, No. 2:2014cv00076 - Document 19 (E.D. Wash. 2015)
Court Description: DECISION AND ORDER denying ECF No. 13 Plaintiff's Motion for Summary Judgment and granting ECF No. 16 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge Victor E. Bianchini. (PH, Case Administrator)
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Winkel v. Colvin Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 9 Case No. 2:14-CV-00076-VEB JAMES A. WINKEL, 10 Plaintiff, DECISION AND ORDER 11 vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. 14 15 I. INTRODUCTION 16 In July of 2009, Plaintiff James A. Winkel applied for Disability Insurance 17 Benefits (“DIB”) and supplemental security income (“SSI”) benefits under the 18 Social Security Act. The Commissioner of Social Security denied the applications. 19 20 1 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB Dockets.Justia.com 1 Plaintiff, represented by Dana Chris Madsen, Esq., commenced this action 2 seeking judicial review of the Commissioner’s denial of benefits pursuant to 42 3 U.S.C. §§ 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a 4 United States Magistrate Judge. (Docket No. 6). 5 On October 30, 2014, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 14). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 Plaintiff applied for DIB and SSI benefits on July 28, 2009, alleging disability 12 beginning August 21, 2007. (T at 282-90, 291-93).1 The applications were denied 13 initially and on reconsideration and Plaintiff requested a hearing before an 14 Administrative Law Judge (“ALJ”). On November 17, 2010, a hearing was held 15 before ALJ Caroline Siderius. (T at 49). Plaintiff appeared with an attorney and 16 testified. (T at 58-78). The ALJ also received testimony from Dr. Kent Layton, a 17 medical expert (T at 53-58), and Jenny Lawson, a vocational expert. (T at 78-89). 18 19 20 1 Citations to (“T”) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 On January 10, 2011, ALJ Siderius issued a written decision denying the 2 applications for benefits and finding that Plaintiff was not disabled within the 3 meaning of the Social Security Act. (T at 137-53). 4 Council granted Plaintiff’s request for review and issued a Remand Order on March 5 19, 2012. (T at 154-59). In sum, the Appeals Council directed further development 6 of the record (including a consultative examination) regarding Plaintiff’s mental 7 health limitations. (T at 155-57). The Social Security Appeals 8 An administrative hearing on remand was held before ALJ Siderius on August 9 23, 2012. Plaintiff appeared with his attorney and offered additional testimony. (T at 10 111-22). The ALJ also received testimony from Dr. Joseph Cools, a medical expert 11 (T at 96-111), and Thomas Polsin, a vocational expert. (T at 123-31). 12 On September 12, 2012, the ALJ issued a second decision finding that 13 Plaintiff was not disabled. (T at 17-42). The ALJ’s second decision became the 14 Commissioner’s final decision on January 30, 2014, when the Appeals Council 15 denied Plaintiff’s request for review. (T at 1-6). 16 On March 18, 2014, Plaintiff, acting by and through his counsel, timely 17 commenced this action by filing a Complaint in the United States District Court for 18 the Eastern District of Washington. (Docket No. 3). The Commissioner interposed 19 an Answer on May 19, 2014. (Docket No. 10). 20 3 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 Plaintiff filed a motion for summary judgment on October 17, 2014. (Docket 2 No. 13). The Commissioner moved for summary judgment on November 26, 2014. 3 (Docket No. 16). Plaintiff filed a reply memorandum of law on December 16, 2014. 4 (Docket No. 18). 5 6 For the reasons set forth below, the Commissioner’s motion is granted, Plaintiff’s motion is denied, and this case is closed. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 4 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 2 III. DISCUSSION A. Sequential Evaluation Process 3 The Social Security Act (“the Act”) defines disability as the “inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff’s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 5 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff’s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff’s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 20 6 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 The initial burden of proof rests upon plaintiff to establish a prima facie case 2 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 3 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 4 met once plaintiff establishes that a mental or physical impairment prevents the 5 performance of previous work. The burden then shifts, at step five, to the 6 Commissioner to show that (1) plaintiff can perform other substantial gainful 7 activity and (2) a “significant number of jobs exist in the national economy” that 8 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 B. Standard of Review 10 Congress has provided a limited scope of judicial review of a Commissioner’s 11 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 12 made through an ALJ, when the determination is not based on legal error and is 13 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 14 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 15 determination that a plaintiff is not disabled will be upheld if the findings of fact are 16 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 17 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 18 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 19 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 20 7 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 Substantial evidence “means such evidence as a reasonable mind might accept as 2 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 3 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] 4 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 5 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 6 whole, not just the evidence supporting the decision of the Commissioner. Weetman 7 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 8 526 (9th Cir. 1980)). 9 It is the role of the Commissioner, not this Court, to resolve conflicts in 10 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 11 interpretation, the Court may not substitute its judgment for that of the 12 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 13 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 14 set aside if the proper legal standards were not applied in weighing the evidence and 15 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 16 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 17 administrative findings, or if there is conflicting evidence that will support a finding 18 of either disability or nondisability, the finding of the Commissioner is conclusive. 19 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 20 8 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 C. Commissioner’s Decision 2 The ALJ found that Plaintiff met the insured status requirements of the Social 3 Security Act through March 31, 2011, and had not engaged in substantial gainful 4 activity since August 21, 2007, the alleged onset date. (T at 22). The ALJ 5 determined that Plaintiff’s cervical degenerative disc disease, carpal tunnel 6 syndrome, depression, learning disorder, cannabis abuse, and mild cognitive 7 disorder were “severe” impairments under the Act. (Tr. 22-25). 8 However, the ALJ concluded that Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled one of the impairments 10 set forth in the Listings. (T at 26-27). The ALJ determined that Plaintiff retained the 11 residual functional capacity (“RFC”) to perform a limited range of light work as 12 defined in 20 CFR § 416.967 (b). The ALJ found that Plaintiff was limited to 13 occasional lifting overhead with the right (dominant) upper extremity, occasional 14 pushing/pulling the right upper extremity, no climbing of ladders/ropes/scaffolds, 15 and occasional crawling. The ALJ determined that Plaintiff could not perform any 16 job that required constant turning of the neck. The ALJ found that Plaintiff could 17 perform frequent (but not constant) gripping with his right hand, 1-3 step tasks, and 18 no detailed work. She concluded that Plaintiff was limited to occasional changes in 19 20 9 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 the work setting, occasional contact with the general public, and jobs that did not 2 require more than elementary reading and spelling skills. (T at 27-34). 3 The ALJ found that Plaintiff could not perform his past relevant work as a 4 landscape laborer, home attendant, cutoff saw operator, or lumber grader. (T at 34). 5 However, considering Plaintiff’s age (45 on the alleged onset date), education (high 6 school), work experience, and RFC (limited light work), the ALJ determined that 7 there were jobs that exist in significant numbers in the national economy that 8 Plaintiff can perform. (T at 35-36). 9 As such, the ALJ concluded that Plaintiff had not been disabled, as defined 10 under the Act, from August 21, 2007 (the alleged onset date), through September 13, 11 2012 (the date of the ALJ’s decision) and was therefore not entitled to benefits. (Tr. 12 36). As noted above, the ALJ’s decision became the Commissioner’s final decision 13 when the Appeals Council denied Plaintiff’s request for review. (Tr. 1-6). 14 D. 15 Plaintiff’s Arguments Plaintiff contends that the Commissioner’s decision should be reversed. He 16 offers two (2) principal arguments in support of this position. 17 challenges the ALJ’s credibility determination. Second, Plaintiff contends that the 18 ALJ did not properly evaluate the medical evidence. This Court will address both 19 arguments in turn. 20 First, Plaintiff 10 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 1. 2 A claimant’s subjective complaints concerning his or her limitations are an 3 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 4 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 5 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 6 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 7 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 8 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 9 findings are insufficient: rather the ALJ must identify what testimony is not credible 10 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 11 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Credibility 12 In this case, Plaintiff testified as follows: 13 He left his last employment at Goodwill Industries due to pain resulting from 14 standing for prolonged periods. (T at 60-61). He attempted to attend school, but 15 struggled with concentration. (T at 64). He has difficulty sleeping. (T at 65). He has 16 a criminal record, which includes domestic violence charges and DWI offenses. (T 17 at 66). Spine and shoulder pain are serious, long-standing issues. (T at 67-68). 18 Sitting, standing, and walking are all difficult. (T at 68-69). He tries to avoid 19 overhead lifting. (T at 69). At the time of the first administrative hearing, Plaintiff 20 11 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 identified carpal tunnel in his right hand as an issue, with surgery a possibility. (T at 2 69-70, 73). He lives alone. (T at 70). He offsets some of his rental expense by 3 shoveling snow, mowing lawns, and minor maintenance. (T at 71). He uses public 4 transportation. (T at 72). He has limited hobbies and little social interaction. (T at 5 73). He has neck pain, which got worse following a March 2004 surgery. (T at 74). 6 The neck pain limits his ability to turn his head. (T at 75). Right shoulder pain is an 7 issue. (T at 75-76). He cannot sit for more than an hour. (T at 76). Standing is 8 limited to 15-20 minutes. (T at 76). He avoids climbing stairs due to back pain. (T at 9 76). He has breathing problems. (T at 78). 10 At the second administrative hearing, Plaintiff testified that he had carpal 11 tunnel surgery in January of 2011 and experienced some improvement. (T at 112). 12 He has significant sleep difficulties. (T at 114). He spends most of his day watching 13 television and visiting with neighbors. (T at 114). He has troubling using his right 14 arm and experiences dizziness upon exertion. (T at 115). Severe migraines are an 15 issue; he must lie down to get relief. (T at 115). This happens 3 to 4 times per day. 16 (T at 116). His neck pain has been increasing and continues to limit his ability to 17 turn his head. (T at 116-17). His right shoulder “pops and grinds.” (T at 117). He 18 can pick up 10 pounds, but cannot carry that amount. (T at 118). He needs help to 19 20 12 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 do shopping and laundry. (T at 118-19). He has depression symptoms, which have 2 been somewhat improved with medication. (T at 122-23). 3 The ALJ concluded that Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause the alleged symptoms, but that his statements 5 concerning the intensity, persistence, and limiting effects of the symptoms were not 6 entirely credible. (T at 29). 7 For the following reasons, this Court finds the ALJ’s decision to discount 8 Plaintiff’s credibility supported by substantial evidence and consistent with 9 applicable law. 10 No treating or examining physician identified any specific, significant work- 11 related limitations arising from Plaintiff’s back, neck, or wrist issues. Although Dr. 12 Frank Otto, a treating physician, opined in August 2007 that Plaintiff could not 13 perform sedentary work (T at 424-27), in April of 2008, he reported that Plaintiff 14 was capable of light work. (T at 430-33). Dr. Otto’s assessments were not supported 15 by detailed clinical findings. 16 In June of 2008, David Jeter, a physical therapist, conducted a physical 17 capacities evaluation and concluded that Plaintiff could perform “light to medium 18 level work.” (T at 450). In October of 2009, Dr. Charles Wolfe, a non-examining 19 State Agency review consultant, opined that Plaintiff could occasionally lift/carry 20 20 13 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 pounds, frequently lift/carry 10 pounds, stand/walk for about 6 hours in an 8-hour 2 workday, and sit for about 6 hours in an 8-hour workday. (T at 575). Dr. Wolfe 3 assessed some postural and manipulative limitations, consistent with the ALJ’s RFC 4 determination. (T at 575-77). Dr. Wolfe’s findings were adopted by Dr. Howard 5 Platter, another State Agency review consultant, in February of 2010. (T at 615). 6 As outlined by the ALJ, the treatment Plaintiff received for his neck, back, 7 and wrist issues was conservative and the objective findings were generally mild. (T 8 at 29). For example, Dr. William Weigel, an examining physician, noted that 9 Plaintiff’s grip strength and rotation of his wrists appeared “adequate,” with no 10 atrophy or spasticity. (T at 412-13). A May 2009 MRI found mild C4-C5 vertebral 11 spondylosis without cord deformity, mild to moderate bilateral C4-C5 neural 12 foraminal narrowing, mild left and moderate right C5-C6 neural foraminal 13 narrowing (unchanged since a 2007 MRI), and mild right C6-C7 neural foraminal 14 narrowing. (T at 504). In a December 2010 treatment note following carpal tunnel 15 release surgery, Dr. Kurt Anderson described Plaintiff as experiencing “symptomatic 16 relief” and “very pleased.” (T at 737). 17 conservative treatment for his impairments was a clear and convincing reason for The fact that Plaintiff received only 18 19 20 14 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 discounting his credibility. See Johnson v. Shalala, 60 F.3d 1428,1434 (9th Cir. 2 1995). 2 The record also contains evidence sufficient to justify the ALJ’s decision to 3 4 discount Plaintiff’s claims of disabling mental health impairments. 5 Bostwick, a psychologist, performed a consultative evaluation in May of 2009. Dr. 6 Bostwick diagnosed cognitive disorder NOS (with generally mild neurobehavioral 7 deficits), disorder of written expression (severe), pain disorder, cannabis dependence 8 (in questionable early remission), alcohol dependence (in apparent partial to full 9 remission), and polysubstance dependence (in long-term sustained remission). (T at 10 521). Dr. Bostwick assigned a Global Assessment of Functioning (“GAF”) score 3 of 11 65 (T at 521), which is indicative of mild symptoms. See Wright v. Astrue, CV-09- 12 164, 2010 U.S. Dist. LEXIS 53737, at *27 n. 7 (E.D. Wa. June 2, 2010). He 13 assessed no social or interpersonal limitations with regard to a customer service- 14 oriented occupation. (T at 522). Dr. Allen 15 16 17 18 2 The ALJ did not credit Plaintiff’s allegations concerning his migraines. Plaintiff does not specifically challenge this aspect of the ALJ’s conclusion or point to any evidence contradicting the ALJ’s (implicit) conclusion that the migraines did not cause disabling limitations. 3 19 “A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 15 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 Dr. Joyce Everhart, an examining psychologist, completed a report in May of 2 2012, in which she diagnosed cognitive disorder (NOS), major depressive disorder, 3 pain disorder, alcohol dependence (in sustained full remission), and personality 4 disorder. (T at 787). She assigned a GAF of 55 (T at 788), which is indicative of 5 moderate symptoms or difficulty in social, occupational or educational functioning. 6 Amy v. Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 (E.D.Wa 7 Jan. 7, 2013). Dr. Everhart assessed attention and concentration within normal 8 limits and opined that Plaintiff had the ability to understand, remember, and follow 9 simple directions. (T at 788). She opined that Plaintiff had moderate limitations 10 with regard to his ability to make judgments on simple work-related decisions and 11 understand and remember complex instructions. (T at 790). Dr. Everhart assessed 12 mild limitations with respect to Plaintiff’s ability to interact appropriately with the 13 public, supervisors, and co-workers and moderate restriction with responding 14 appropriately to usual work situations and changes in a routine work setting, (T at 15 791). The form completed by Dr. Everhart defined “moderate” as “more than a 16 slight limitation . . ., but the individual is still able to function satisfactorily.” (T at 17 790). 18 19 20 Dr. Joseph Cools, a clinical psychologist, reviewed the record and testified at the second administrative hearing as a medical expert. Dr. Cools opined that 16 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 Plaintiff had mild limitations as to his activities of daily living, moderate impairment 2 with regard to social functioning, and moderate impairment as to concentration, 3 persistence, and pace. (T at 108-109). Dr. Cools did not believe the suggestions of a 4 personality disorder were supported by the record. (T at 109-110). He noted that 5 Plaintiff was described as “gregarious and social” with friends he had know for a 6 long time and that he did not have any social barriers in terms of interacting with 7 others. (T at 110). The ALJ asked Dr. Cools whether Plaintiff should be limited to 8 only occasional public contact. Dr. Cools responded that it would “probably” be “a 9 little easier” for Plaintiff, but that it would not “make a whole lot of difference in his 10 ability to function.” (T at 111). 11 In November of 2009, Dr. James Bailey, a non-examining State Agency 12 review consultant, opined that Plaintiff could understand, remember, and carry out 13 non-complex work instructions and tasks in a position where employee goals were 14 clearly set; could interact with the public and co-workers; but would need to be 15 “shown some changes.” (T at 584). Dr. Bailey assessed mild restriction in activities 16 of daily living, mild difficulties in maintaining social functioning, and moderate 17 difficulties in maintaining concentration, persistence, or pace. (T at 596). In January 18 of 2010, Dr. Jerry Gardner, another non-examining State Agency review consultant, 19 affirmed Dr. Bailey’s conclusions. (T at 614). See Henderson v. Astrue, 634 F. Supp. 20 17 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 2d 1182, 1190 (E.D.W.A. 2009)(“The opinion of a non-examining physician may be 2 accepted as substantial evidence if it is supported by other evidence in the record and 3 is consistent with it.”)(citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 4 1995)). 5 The opinions of Dr. Bostwick, Dr. Everhart, Dr. Bailey, Dr. Gardner, and Dr. 6 Cools support the ALJ’s decision to discount Plaintiff’s claims regarding his mental 7 health impairments. In addition, the ALJ also found Plaintiff’s activities of daily 8 living (which included preparing meals, shopping, using public transportation, 9 making candles, playing cars, managing a savings account) inconsistent with his 10 claims of disabling limitations. (T at 28). Plaintiff also testified that he offsets some 11 of his rental expense by shoveling snow, mowing lawns, and performing minor 12 maintenance jobs. (T at 71). Although the lack of supporting medical evidence 13 cannot form the sole basis for discounting pain testimony, it is a factor the ALJ may 14 consider when analyzing credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 15 2005). Subjective complaints contradicted by medical records and by daily activities 16 may be discounted. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 17 (9th Cir. 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 18 Plaintiff complains that the ALJ improperly discounted his credibility because 19 of “inconsistent” testimony concerning his marijuana use. In particular, Plaintiff 20 18 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 sometimes denied using marijuana to examiners, but then admitted daily marijuana 2 use (allegedly for medicinal purposes) on other occasions. (T at 31). Plaintiff posits 3 alternative explanations for these inconsistencies, citing a lack of insight on his part 4 and varying patterns of drug use. 5 evidence on this score (or to the extent reasonable people might read the same 6 evidence differently), this Court may not substitute its judgment for that of the 7 Commissioner. See Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 8 1999)(“[Q]uestions of credibility and resolutions of conflicts in the testimony are 9 functions solely of the [Commissioner].”). In any event, even viewing the evidence 10 of marijuana use in the light most favorable to Plaintiff (i.e. even assuming that the 11 inconsistencies identified by the ALJ have an “innocent” explanation), there remains 12 sufficient evidence (as detailed above) to sustain the Commissioner’s decision to 13 discount Plaintiff’s credibility. However, to the extent there is conflicting 14 2. 15 Plaintiff also contends that the ALJ did not properly assess the various 16 medical opinions. This Court finds the ALJ’s consideration of the medical opinions 17 consistent with applicable law and supported by substantial evidence. Medical Evidence 18 In disability proceedings, a treating physician’s opinion carries more weight 19 than an examining physician’s opinion, and an examining physician’s opinion is 20 19 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 given more weight than that of a non-examining physician. Benecke v. Barnhart, 2 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1995). If the treating or examining physician’s opinions are not contradicted, they 4 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 5 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 6 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 7 1035, 1043 (9th Cir. 1995). 8 Historically, the courts have recognized conflicting medical evidence, and/or 9 the absence of regular medical treatment during the alleged period of disability, 10 and/or the lack of medical support for doctors’ reports based substantially on a 11 claimant’s subjective complaints of pain, as specific, legitimate reasons for 12 disregarding a treating or examining physician’s opinion. Flaten v. Secretary of 13 Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 14 In September of 2009, Dr. W. Scott Mabee, an examining psychologist, 15 completed a psychological evaluation. 16 disorder (NOS), alcohol abuse (sustained partial remission), and personality disorder 17 (NOS, with histrionic features). (T at 537). He assigned a GAF score of 50 (T at 18 537), which is indicative of serious impairment in social, occupational or school 19 functioning. Onorato v. Astrue, No. CV-11-0197, 2012 U.S. Dist. LEXIS 174777, at 20 20 He diagnosed pain disorder, depressive DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 *11 n.3 (E.D.Wa. Dec. 7, 2012). Dr. Mabee assessed marked limitation with regard 2 to Plaintiff’s ability to exercise judgment and make decisions, relate appropriately to 3 co-workers and supervisors, and respond appropriately to and tolerate the pressures 4 and expectations of a normal work setting. (T at 539). 5 Dr. John Arnold, an examining psychologist, completed a 6 psychological/psychiatric evaluation in February of 2011. 7 disorder and personality disorder with histrionic features. (T at 807). Dr. Arnold 8 assigned a GAF score of 53 (T at 807), which is indicative of moderate symptoms or 9 difficulty in social, occupational or educational functioning. Amy v. Astrue, No. CV- He diagnosed pain 10 11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 (E.D.Wa Jan. 7, 2013). 11 assessed marked limitation with regard to Plaintiff’s ability to communicate and 12 perform effectively in a setting with public contact, but found no limitation with 13 regard to understanding/remembering/persisting in simple instructions and mild 14 limitations as to learning new tasks and performing routine tasks without undue 15 supervision. (T at 808). He 16 The ALJ recognized that there were conflicting opinions concerning 17 Plaintiff’s mental health impairments and, in particular, with regard to Plaintiff’s 18 ability to interact with others. (T at 30-31). The ALJ asked Dr. Cools to address this 19 inconsistency. Dr. Cools noted that Plaintiff was described as “gregarious and 20 21 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 social” with friends he had know for a long time and that he did not have any social 2 barriers in terms of interacting with others. (T at 110). The ALJ accepted Dr. 3 Cools’s conclusion, which was consistent with the opinions provided by Dr. 4 Bostwick, who assessed no social or interpersonal limitations with regard to a 5 customer service-oriented occupation, (T at 522); Dr. Everhart, who found mild 6 limitations with regard to Plaintiff’s ability to interact appropriately with the public, 7 supervisors, and co-workers, (T at 791); and the State Agency review consultants 8 (Dr. Bailey and Dr. Gardner), who assessed mild difficulties in maintaining social 9 functioning. (T at 596, 614). 10 It is the role of the Commissioner, not this Court, to resolve conflicts in 11 evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 12 U.S. at 400. If the evidence supports more than one rational interpretation, this 13 Court may not substitute its judgment for that of the Commissioner. Allen v. 14 Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial evidence to support the 15 administrative findings, or if there is conflicting evidence that will support a finding 16 of either disability or nondisability, the Commissioner’s finding is conclusive. 17 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s finding 18 was supported by substantial evidence and should be sustained. See Tackett v. Apfel, 19 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if evidence reasonably supports the 20 22 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 Commissioner’s decision, the reviewing court must uphold the decision and may not 2 substitute its own judgment). 3 Plaintiff also points to a handwritten note dated October 28, 2011, in which 4 Dr. Lylanya Cox, a treating physician, indicated that “with the current information I 5 have, [Plaintiff] is not able to work,” (T at 758). The ALJ discounted this opinion. 6 (T at 33). This Court finds no error in the ALJ’s decision. 7 First, Dr. Cox’s handwritten note was brief and conclusory; it contained no 8 detailed findings or explanation for her opinion. See Lingenfelter v. Astrue, 504 F.3d 9 1028, 1044-45 (9th Cir. 2007) (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th 10 Cir. 2002)(noting that the ALJ is not obliged to accept a treating source opinion that 11 is “brief, conclusory and inadequately supported by clinical findings”). 12 Second, the opinion appears to have been based largely on Plaintiff’s 13 subjective complaints, which the ALJ discounted for the reasons outlined above. It 14 is reasonable for an ALJ to discount a physician’s opinion predicated on subjective 15 complaints found to be less than credible. Bray v. Comm’r of Soc. Sec., 554 F.3d 16 1219, 1228 (9th Cir. 2009). 17 Lastly, Dr. Cox’s was contracted by other evidence of record, including the 18 clinical and objective findings (T at 29-30), the conservative course of treatment, the 19 20 23 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 April 2008 assessment of Dr. Otto (T at 430-33), and the opinion of Dr. Wolfe (T at 2 575), which was affirmed by Dr. Platter (T at 615). 3 4 IV. CONCLUSION 5 After carefully reviewing the administrative record, this Court finds 6 substantial evidence supports the Commissioner’s decision, including the objective 7 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 8 examined the record, afforded appropriate weight to the medical evidence, including 9 the assessments of the examining medical providers and the non-examining 10 consultants, and afforded the subjective claims of symptoms and limitations an 11 appropriate weight when rendering a decision that Plaintiff is not disabled. This 12 Court finds no reversible error and because substantial evidence supports the 13 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 14 that Plaintiff’s motion for judgment summary judgment is DENIED. 15 16 17 18 19 20 24 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB 1 2 V. ORDERS IT IS THEREFORE ORDERED that: 3 Plaintiff’s motion for summary judgment, Docket No. 13, is DENIED. 4 The Commissioner’s motion for summary judgment, Docket No. 16, is 5 6 7 8 GRANTED. The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of the Commissioner, and close this case. DATED this 13th day of January, 2015. 9 10 11 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 25 DECISION AND ORDER – WINKEL v COLVIN 14-CV-00076-VEB
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