Dulmaine v. Colvin, No. 2:2014cv00218 - Document 19 (E.D. Wash. 2015)
Court Description: DECISION AND ORDER denying ECF No. 14 Plaintiff's Motion for Summary Judgment and granting ECF No. 16 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge Victor E. Bianchini. (PH, Case Administrator)
Download PDF
<![CDATA[
Dulmaine v. Colvin Doc. 19 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 Case No. 2:14-CV-00218-VEB 8 JENNIFER LEE DULMAINE, 9 Plaintiff, DECISION AND ORDER 10 vs. 11 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 14 I. INTRODUCTION 15 In January of 2011, Plaintiff Jennifer Lee Dulmaine applied for Disability 16 Insurance Benefits (“DIB”) under the Social Security Act. The Commissioner of 17 Social Security denied the application. 18 19 20 1 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB Dockets.Justia.com 1 Plaintiff, represented by Randy J. Fair, Esq., Calbom & Schwab, P.C. 2 commenced this action seeking judicial review of the Commissioner’s denial of 3 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). The parties consented to 4 the jurisdiction of a United States Magistrate Judge. (Docket No. 6). 5 On March 30, 2015, 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. 18). 8 II. BACKGROUND 9 The procedural history may be summarized as follows: 10 Plaintiff applied for DIB on January 27, 2011, alleging disability beginning 11 November 8, 2010. (T at 222).1 12 reconsideration. Plaintiff requested a hearing before an Administrative Law Judge 13 (“ALJ”). On July 10, 2012, a hearing was held before ALJ R.J. Payne. (T at 36). 14 Plaintiff appeared with an attorney and testified. (T at 44-47). The ALJ also received 15 testimony from two medical experts, Dr. Alexander White (T at 39-42) and Dr. 16 Margaret E. Moore. (T at 42-44, 48-59). A supplemental hearing was held on January The application was denied initially and on 17 18 19 20 1 Citations to (“T”) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 11, 2013. Plaintiff again appeared with her attorney and testified. (T at 68-89). The 2 ALJ also received testimony from Jinnie Lawson, a vocational expert. (T at 90-97). 3 On February 14, 2013, the ALJ issued a written decision denying the 4 application for DIB. (T at 12-35). The ALJ’s decision became the Commissioner’s 5 final decision on May 1, 2014, when the Appeals Council denied Plaintiff’s request 6 for review. (T at 1-6). 7 On June 30, 2014, Plaintiff, acting by and through her counsel, timely 8 commenced this action by filing a Complaint in the United States District Court for 9 the Eastern District of Washington. (Docket No. 3). The Commissioner interposed an 10 Answer on October 6, 2014. (Docket No. 10). 11 Plaintiff filed a motion for summary judgment on January 27, 2015. (Docket 12 No. 14). The Commissioner moved for summary judgment on March 13, 2015. 13 (Docket No. 16). Plaintiff filed a reply brief on March 30, 2015. (Docket No. 17). 14 15 For the reasons set forth below, the Commissioner’s motion is granted, Plaintiff’s motion is denied, and this case is closed. 16 17 18 19 20 3 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 2 III. DISCUSSION A. Sequential Evaluation Process 3 The Social Security Act (“the Act”) defines disability as the “inability to engage 4 in any substantial gainful activity by reason of any medically determinable physical 5 or mental impairment which can be expected to result in death or which has lasted or 6 can be expected to last for a continuous period of not less than twelve months.” 42 7 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a plaintiff shall 8 be determined to be under a disability only if any impairments are of such severity 9 that a plaintiff is not only unable to do previous work but cannot, considering 10 plaintiff’s age, education and work experiences, engage in any other substantial work 11 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 12 Thus, the definition of disability consists of both medical and vocational components. 13 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 Commissioner has established a five-step sequential evaluation process for 15 determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one 16 determines if the person is engaged in substantial gainful activities. If so, benefits are 17 denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker 18 proceeds to step two, which determines whether plaintiff has a medially severe 19 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 20 4 The DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 416.920(a)(4)(ii). If plaintiff does not 2 have a severe impairment or combination of impairments, the disability claim is 3 denied. If the impairment is severe, the evaluation proceeds to the third step, which 4 compares plaintiff’s impairment with a number of listed impairments acknowledged 5 by the Commissioner to be so severe as to preclude substantial gainful activity. 20 6 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If 7 the impairment meets or equals one of the listed impairments, plaintiff is conclusively 8 presumed to be disabled. If the impairment is not one conclusively presumed to be 9 disabling, the evaluation proceeds to the fourth step, which determines whether the 10 impairment prevents plaintiff from performing work which was performed in the past. 11 If a plaintiff is able to perform previous work he or she is deemed not disabled. 20 12 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff’s residual 13 functional capacity (RFC) is considered. If plaintiff cannot perform past relevant 14 work, the fifth and final step in the process determines whether plaintiff is able to 15 perform other work in the national economy in view of plaintiff’s residual functional 16 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 17 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 18 19 20 5 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 The initial burden of proof rests upon plaintiff to establish a prima facie case of 2 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 met 4 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 activity 7 and (2) a “significant number of jobs exist in the national economy” that plaintiff can 8 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, made 12 through an ALJ, when the determination is not based on legal error and is supported 13 by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); 14 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 6 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-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, 348 5 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a whole, 6 not just the evidence supporting the decision of the Commissioner. Weetman v. 7 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 Commissioner. 12 Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 13 Nevertheless, a decision supported by substantial evidence will still be set aside if the 14 proper legal standards were not applied in weighing the evidence and making the 15 decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th 16 Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, 17 or if there is conflicting evidence that will support a finding of either disability or 18 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 19 F.2d 1226, 1229-30 (9th Cir. 1987). 20 7 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 C. Commissioner’s Decision 2 The ALJ determined that Plaintiff had not engaged in substantial gainful 3 activity since November 8, 2010 (the alleged onset date) and met the insured status 4 requirements of the Social Security Act through December 31, 2015 (the date last 5 insured). (T at 17). The ALJ found that Plaintiff’s morbid obesity, polycystic ovary, 6 diabetes mellitus (type 2), headaches (mixed), asthma, pain disorder, and chronic 7 posttraumatic stress disorder were “severe” impairments under the Act. (Tr. 17). 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 set 10 forth in the Listings. (T at 18). 11 The ALJ determined that Plaintiff retained the residual functional capacity 12 (“RFC”) to perform light work as defined in 20 CFR § 404.1567 (b), with the 13 following limitations: lifting and carrying 20 pounds occasionally and 10 pounds 14 frequently; stand/walk/sit 6 hours in an 8-hour workday; unlimited pushing and 15 pulling within lifting restrictions; avoid climbing ladders, ropes, scaffolds, crawling, 16 and concentrated exposure to extreme cold/heat, fumes, odors/dusts/gases, poor 17 ventilation; avoid moderate exposure to hazards such as machinery and heights; mild 18 to moderate limitation with regard to maintaining attention and concentration for 19 extended periods; moderate limitation as to working in coordination with or proximity 20 8 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 to others without being distracted by them; and moderate limitation with regard to 2 interacting appropriately with the general public and in responding appropriately to 3 changes in the work setting. (T at 19). 4 The ALJ concluded that Plaintiff could not perform her past relevant work as a 5 social service case worker or intensive in-home support worker. (T at 29). However, 6 considering Plaintiff’s age (39 on the alleged onset date), education (at least high 7 school), work experience, and residual functional capacity (light work, with 8 limitations described above), the ALJ determined that, as of September 2, 2012, there 9 were jobs that exist in significant numbers that Plaintiff could perform. (T at 29-30). 10 Accordingly, the ALJ determined that Plaintiff was not disabled within the 11 meaning of the Social Security Act between November 8, 2010 (the alleged onset 12 date) and February 14, 2013 (the date of the decision) and was therefore not entitled 13 to DIB. (T at 31). 14 D. Plaintiff’s Arguments 15 Plaintiff contends that the Commissioner’s decision should be reversed. She 16 offers four (4) main arguments. First, she contends that the ALJ did not properly 17 assess the medical opinion evidence. 18 credibility determination. Third, she asserts that the ALJ improperly rejected lay Second, Plaintiff challenges the ALJ’s 19 20 9 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 witness evidence. Fourth, Plaintiff argues that the ALJ’s step five analysis was 2 flawed. This Court will address each argument in turn. 3 4 IV. ANALYSIS A. Medical Opinion Evidence 5 In disability proceedings, a treating physician’s opinion carries more weight 6 than an examining physician’s opinion, and an examining physician’s opinion is given 7 more weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 8 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If the 9 treating or examining physician’s opinions are not contradicted, they can be rejected 10 only with clear and convincing reasons. Lester, 81 F.3d at 830. If contradicted, the 11 opinion can only be rejected for “specific” and “legitimate” reasons that are supported 12 by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th 13 Cir. 1995). 14 An ALJ satisfies the “substantial evidence” requirement by “setting out a 15 detailed and thorough summary of the facts and conflicting clinical evidence, stating 16 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 17 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 18 “The ALJ must do more than state conclusions. He must set forth his own 19 interpretations and explain why they, rather than the doctors’, are correct.” Id. 20 10 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 Plaintiff argues that the ALJ erred in weighing the medical opinions offered by 2 a consultative examiner, treating nurse practitioner, and State Agency review 3 consultants. This Court will summarize these opinions, as well as the opinion offered 4 by Dr. Moore, a medical expert who testified at the first administrative hearing, and 5 then explain its consideration of the ALJ’s evaluation of those opinions. 6 1. 7 In March of 2011, Dr. Jennifer Zimberoff, a consultative examiner, performed Dr. Zimberoff 8 a psychological diagnostic evaluation. 9 “exhibited obvious evidence of psychomotor agitation in the form of extreme and 10 constant leg and/or arm shaking, and stuttering” as she became more anxious during 11 the exam. (T at 341). Dr. Zimberoff found “no overt signs of malingering or factitious 12 behavior.” (T at 341). Dr. Zimberoff reported that Plaintiff 13 She opined that Plaintiff appeared “to be impaired by her serious anxiety and 14 panic attacks” and reported that Plaintiff would only be able to perform employment 15 tasks while isolated, without social interaction, in a controlled environment, “with 16 limited impinging stress.” (T at 344-45). Dr. Zimberoff assigned a Global Assessment 17 18 19 20 11 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 of Functioning (“GAF”) score2 of 45 (T at 345), which is indicative of serious 2 impairment in social, occupational or school functioning. Onorato v. Astrue, No. CV- 3 11-0197, 2012 U.S. Dist. LEXIS 174777, at *11 n.3 (E.D.Wa. Dec. 7, 2012). 4 Dr. Zimberoff concluded that Plaintiff was functioning so poorly that it was 5 unlikely that she could continue to work, even on a part-time basis, and found it 6 “doubtful” that Plaintiff was “stable enough to complete the requirements of a 7 working environment.” (T at 346). 8 The ALJ gave little weight to Dr. Zimberoff’s opinion, finding it based heavily 9 on Plaintiff’s subjective reports and contradicted by the overall medical record. (T at 10 28). 11 2. 12 Plaintiff had an extended treating relationship with Wenatchee Valley Clinical 13 Behavioral Health, where she was seen primarily by Michael Hanley, a psychiatric 14 advanced registered nurse practitioner (“ARNP”). On December 28, 2011, Mr. 15 Hanley prepared a letter summarizing Plaintiff’s care over the prior 5 years. He 16 explained that Plaintiff had “made considerable progress but still struggles with Mr. Hanley 17 18 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 12 2 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 chronic mood issues.” (T at 395). He diagnosed PTSD, obsessive compulsive 2 disorder, major depressive disorder, ADHD, and panic with agoraphobia. (T at 395). 3 He opined that Plaintiff was disabled by these disorders because of difficulty leaving 4 her home and the likelihood that she would experience “[s]evere pain and anxiety” if 5 she was forced to be away from her home, which Mr. Hanley described as Plaintiff’s 6 “security zone.” (T at 395). Mr. Hanley also opined that Plaintiff’s impairments met 7 Listings § 12.06 (A), (B), and (C). (T at 396). 8 In evaluating a claim, the ALJ must consider evidence from the claimant’s 9 medical sources. 20 C.F.R. §§ 404.1512, 416.912. Medical sources are divided into 10 two categories: “acceptable” and “not acceptable.” 20 C.F.R. § 404.1502. Acceptable 11 medical sources include licensed physicians and psychologists. 20 C.F.R. § 404.1502. 12 Medical sources classified as “not acceptable” (also known as “other sources”) include 13 nurse practitioners, therapists, licensed clinical social workers, and chiropractors. SSR 14 06-03p. 15 The opinion of an acceptable medical source is given more weight than an 16 “other source” opinion. 20 C.F.R. §§ 404.1527, 416.927. For example, evidence from 17 “other sources” is not sufficient to establish a medically determinable impairment. 18 SSR 06-03p. However, “other source” opinions must be evaluated on the basis of 19 their qualifications, whether their opinions are consistent with the record evidence, the 20 13 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 evidence provided in support of their opinions and whether the other source is “has a 2 specialty or area of expertise related to the individual's impairment.” See SSR 06-03p, 3 20 CFR §§404.1513 (d), 416.913 (d). The ALJ must give “germane reasons” before 4 discounting an “other source” opinion. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 5 1993). 6 The ALJ gave little weight to Mr. Haley’s opinion, finding it not well-supported 7 by clinical or laboratory findings and inconsistent with his narrative reports and the 8 overall medical record. (T at 28). 9 3. State Agency Review Consultants 10 In March of 2011, Dr. Edward Beaty, a non-examining State Agency Review 11 consultant, opined that Plaintiff was moderately limited with respect to her ability to 12 maintain attention and concentration for extended periods; perform activities within a 13 schedule, maintain regular attendance, and be punctual within customary tolerances; 14 work in coordination with or in proximity to others without being distracted by them; 15 and complete a normal workday and workweek without interruptions from 16 psychologically based symptoms and perform at a consistent pace without an 17 unreasonable number and length of rest periods. (T at 111). Dr. Beaty assessed a 18 marked limitation as to Plaintiff’s ability to interact appropriately with the general 19 20 14 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 public. (T at 112). In May of 2011, Dr. Patricia Kraft, another non-examining State 2 Agency review consultant, made the same findings. (T at 126-27). 3 The ALJ did not discuss either of these assessments. 4 5 4. 6 Dr. Margaret Moore testified at the administrative hearing as a medical expert. 7 Dr. Moore questioned the treatment provided to Plaintiff by Mr. Haley, opining that 8 the record indicated “really not good medication management.” (T at 49). Dr. Moore 9 noted evidence that side effects from psychotropic medications were exacerbating 10 Plaintiff’s mental health issues, including, in particular, anxiety. (T at 49). Dr. Moore 11 also found several of Mr. Haley’s diagnoses “not well supported,” including ADHD, 12 PTSD, obsessive-compulsive disorder, and major depressive disorder. (T at 49-52). Dr. Moore 13 With regard to anxiety, Dr. Moore noted that Plaintiff complained of anxiety 14 symptoms periodically for many years, including while she was working. (T at 50- 15 51). This led Dr. Moore to conclude that Plaintiff’s anxiety was “basically treatable,” 16 although it had, in her view, not been effectively treated by Mr. Haley’s medication 17 management. (T at 50-51). 18 Overall, Dr. Moore opined that, from a mental health perspective, the record 19 supported “some significant issues that would pose functional limitations in a 20 15 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 workplace,” but she did not believe that Plaintiff’s mental health impairments met or 2 equaled one of the Listings. (T at 53). With respect to activities of daily living, Dr. 3 Moore assessed mild limitations, with a moderate limitation as to driving. (T at 54). 4 She found moderate limitation as to social functioning and mild limitation with respect 5 to concentration, persistence, and pace. (T at 54). 6 The ALJ afforded significant weight to Dr. Moore’s opinion, noting her 7 opportunity to review the longitudinal record and her expertise, both with regard to 8 the Social Security program and in the mental health field. (T at 28). 9 5. Analysis 10 Fundamentally, Plaintiff’s challenge is to the fact that the ALJ accepted the 11 assessment of Dr. Moore, who did not examine or treat Plaintiff, rather than the 12 opinions offered by Dr. Zimberoff (who examined Plaintiff once) and Mr. Haley (who 13 treated Plaintiff extensively). For the following reasons, this Court finds that the 14 ALJ’s decision is supported by substantial evidence and consistent with applicable 15 law. 16 Dr. Zimberoff acknowledged that the only record she reviewed was an undated 17 disability report completed by Plaintiff. (T at 339). Her assessment of Plaintiff’s 18 work-related limitations appears based primarily on Plaintiff’s self-reports. In fact, 19 Dr. Zimberoff’s actual clinical examination of Plaintiff noted some difficulties, but 20 16 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 overall showed a claimant who was “very pleasant and cooperative,” with “normal” 2 speech, “good” memory and concentration, and “good” abstract thinking abilities and 3 judgment. (T at 341-43). Thus, it was reasonable for the ALJ to conclude that the 4 extreme limitations assessed by Dr. Zimberoff were based primarily on Plaintiff’s 5 self-reports. As discussed below, the ALJ reasonably discounted the credibility of 6 Plaintiff’s complaints. An ALJ may discount a physician’s opinion predicated on 7 subjective complaints found to be less than credible. Bray v. Comm’r of Soc. Sec., 554 8 F.3d 1219, 1228 (9th Cir. 2009). Moreover, as outlined below, the ALJ acted within 9 his discretion in giving more weight to the opinion of Dr. Moore, who testified at the 10 hearing and was subject to cross-examination, and who (unlike Dr. Zimberoff) 11 reviewed the entire medical record before rendering her assessments. 12 With regard to Mr. Haley, the ALJ was required only to provide “germane” 13 reasons for discounting the opinions of a nurse practitioner. Dodrill v. Shalala, 12 14 F.3d 915, 919 (9th Cir. 1993). The ALJ provided such reasons. For example, the ALJ 15 cited treatment notes contradicting Mr. Haley’s assessment. In general, Mr. Haley’s 16 treatment notes describe side effects of medications he prescribed, but generally 17 indicated improved functioning and relatively stable symptoms when properly 18 managed. (T at 28, 374-75, 411-12, 520, 524, 526). In November of 2010, Mr. Haley 19 noted that Plaintiff would have variable frequency and duration of symptomatic 20 17 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 episodes, but should be able to work unless her mood/panic disorder became 2 uncontrollable. (T at 316-17). The ALJ reasonably cited this inconsistency as a basis 3 for discounting Mr. Haley’s opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 4 (9th Cir. 2005)(finding that “discrepancy” between treatment notes and opinion was 5 appropriate basis for discounting opinion regarding the claimant’s limitations). 6 In addition, Dr. Moore disagreed with several of the diagnoses offered by Mr. 7 Haley and was critical of the nurse practitioner’s medication management. (T at 25, 8 49-52). In particular, Dr. Moore opined that many of Plaintiff’s symptoms were likely 9 side effects of medications that Mr. Haley did not effectively manage. The ALJ 10 reasonably afforded greater weight to the opinion Dr. Moore, a medical expert who 11 reviewed the entire record, testified at the hearing, and was subject to cross- 12 examination by Plaintiff’s counsel. See Andrews v. Shalala, 53 F.3d 1035, 1042 (9th 13 Cir. 1995)(“[A]n ALJ may give greater weight to the opinion of a non-examining 14 expert who testifies at a hearing subject to cross-examination.”)(citing Torres v. 15 Secretary of H.H.S., 870 F.2d 742, 744 (1st Cir. 1989)); see also Moody v. Astrue, No 16 CV-10-161, 2011 U.S. Dist. LEXIS 125165, at *22-23 (E.D. Wash. Oct. 28, 17 2011)(finding that ALJ did not err in giving greater weight to medical expert’s opinion 18 over treating psychiatrist’s opinion concerning substance abuse). 19 20 18 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 Plaintiff correctly notes that the ALJ erred by failing to discuss the assessments 2 of the non-examining State Agency review consultants. However, under the particular 3 circumstances present here, that error was harmless. In the narrative portion of their 4 assessments, Drs. Beaty and Kraft concluded that Plaintiff (1) was capable of non- 5 complex, repetitive tasks at a moderate pace, (2) could sustain work-related social 6 interaction with co-workers and supervisors, with limited to no interaction with the 7 public, and (3) could tolerate simple variations in work-related routines and carry-out 8 work-related goals and plans. (T at 111-12, 126-27). These narrative findings, which 9 are the critical components of the State Agency consultants’ opinions,3 are consistent 10 with the ALJ’s RFC determination, which found Plaintiff mild to moderately 11 limitation with regard to maintaining attention and concentration for extended periods, 12 moderately limited as to working in coordination with or proximity to others and 13 interacting with the general public and responding appropriately to changes in the 14 work setting. (T at 19). 15 An ALJ’s error may be deemed harmless if, in light of the other reasons 16 supporting the overall finding, it can be concluded that the error did not “affect[ ] the 17 The Program Operations Manual System (POMS), an internal Social Security Administration document, provides, in pertinent part, that “[i]t is the narrative written by the psychiatrist or psychologist in section III . . . that adjudicators are to use as the assessment of RFC.” “The POMS does not have the force of law, but it is persuasive authority.” Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006)). 3 18 19 20 19 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 ALJ's conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th 2 Cir. 2004); see also Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054-55 (9th 3 Cir. 2006) (describing the harmless error test as whether “the ALJ's error did not 4 materially impact his decision”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 5 Cir.2006) (holding that an error is harmless if it was “inconsequential to the ultimate 6 nondisability determination”). For the reasons outlined above, the ALJ’s error in 7 failing to discuss the State Agency opinions was harmless. 8 determination and State Agency opinions are generally consistent with each other. Indeed, the RFC 9 In sum, Plaintiff argues that the ALJ should have weighed the evidence 10 differently and resolved the conflict in favor of the opinions provided by Dr. 11 Zimberoff and Mr. Haley. However, it is the role of the Commissioner, not this Court, 12 to resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 13 1989); Richardson, 402 U.S. at 400. If the evidence supports more than one rational 14 interpretation, this Court may not substitute its judgment for that of the Commissioner. 15 Allen v. Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial evidence to 16 support the administrative findings, or if there is conflicting evidence that will support 17 a finding of either disability or nondisability, the Commissioner’s finding is 18 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, for the 19 reasons outlined above, the ALJ’s decision was supported by substantial evidence and 20 20 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 must therefore be sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 2 1999)(holding that if evidence reasonably supports the Commissioner’s decision, the 3 reviewing court must uphold the decision and may not substitute its own judgment). 4 B. Credibility 5 A claimant’s subjective complaints concerning his or her limitations are an 6 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 8 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 9 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 10 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 11 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings 12 are insufficient: rather the ALJ must identify what testimony is not credible and what 13 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 14 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 15 However, subjective symptomatology by itself cannot be the basis for a finding 16 of disability. A claimant must present medical evidence or findings that the existence 17 of an underlying condition could reasonably be expected to produce the 18 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 19 § 404.1529(b), 416.929; SSR 96-7p. 20 21 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 Here, Plaintiff testified as follows: Her problems with OCD started in college. 2 She has had PTSD issues since the age of 19, when she was raped. Anxiety and panic 3 attacks were problematic even while she was working. (T at 69). Her employer 4 attempted to provide workplace accommodations, but it eventually became untenable. 5 (T at 72-73). During a panic attack, she curls up, feels like she is having a heart attack, 6 and is unable to talk. (T at 75). She has lived with her domestic partner for 20 years. 7 (T at 75). She does her shopping late at night to avoid crowds. (T at 75). She avoids 8 driving. (T at 76). Other than doctor’s appointments and late night shopping, Plaintiff 9 generally does not leave her home. (T at 78). She needs assistance and encouragement 10 to perform basic activities such as showering. (T at 80). She cannot cook. (T at 80). 11 She has difficulty relating to other people, particularly when the other person is 12 critical. (T at 81-82). Plaintiff listed dealing with the public as the “No. 1 reason” she 13 is not able to work. (T at 86). She has difficulty sleeping. (T at 87). She does not 14 watch TV or use the computer, but reads science fiction books at night. (T at 88). 15 The ALJ concluded that Plaintiff’s medically determinable impairments could 16 reasonably be expected to cause the alleged symptoms, but that her statements 17 regarding the intensity, persistence, and limited effects of those symptoms were not 18 entirely credible. (T at 26). 19 20 22 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 The ALJ’s decision was supported by substantial evidence. Although lack of 2 supporting medical evidence cannot form the sole basis for discounting pain 3 testimony, it is a factor the ALJ may consider when analyzing credibility. Burch v. 4 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Subjective complaints contradicted by 5 medical records and by daily activities are properly considered. Carmickle v. Comm’r 6 of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Thomas v. Barnhart, 278 7 F.3d 947, 958-59 (9th Cir. 2002). Here, the ALJ afforded significant weight to the 8 expert opinion of Dr. Moore, who reviewed the record and concluded that Plaintiff’s 9 mental health impairments were less severe than alleged. (T at 26, 28). The ALJ also 10 cited and extensively discussed the treatment history, finding it inconsistent with the 11 claims of disabling impairments. (T at 20-27). 12 The ALJ also noted inconsistencies in Plaintiff’s reported daily activities. 13 Although she testified as to an inability to cook at the hearing (T at 80), in a function 14 report she indicated that she prepared meals from scratch on a regular basis. (T at 253). 15 While she testified as to difficulties with showering (T at 80), her function report 16 indicated no difficulty with personal care. (T at 252). When assessing a claimant’s 17 credibility, the ALJ may employ “ordinary techniques of credibility evaluation.” 18 Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)(quoting 19 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). Activities of daily living are a 20 23 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 relevant consideration in assessing a claimant’s credibility. See Rollins v. Massanari, 2 261 F.3d 853, 857 (9th Cir. 2001). Although the claimant does not need to “vegetate 3 in a dark room” to be considered disabled, Cooper v. Brown, 815 F.2d 557, 561 (9th 4 Cir. 1987), the ALJ may discount a claimant’s testimony to the extent his or her 5 activities of daily living “contradict claims of a totally debilitating impairment.” 6 Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2011). 7 Plaintiff offers alternative arguments and interpretations of the evidence. 8 However, where, as here, substantial evidence supports the ALJ’s credibility 9 determination, this Court may not overrule the Commissioner's interpretation even if 10 “the evidence is susceptible to more than one rational interpretation.” Magallanes, 881 11 F.2d 747, 750 (9th Cir. 1989); see also Morgan v. Commissioner, 169 F.3d 595, 599 12 (9th Cir. 1999)(“[Q]uestions of credibility and resolutions of conflicts in the testimony 13 are functions solely of the [Commissioner].”). 14 C. Lay Witness Evidence 15 In February of 2011, Jean Lehman, Plaintiff’s domestic partner, completed a 16 third party function report. She reported that Plaintiff’s panic attacks were “very 17 disabling” and caused here to “shake, stutter, [and] rock back and forth.” (T at 259). 18 She described the attacks as unpredictable and lasting several hours. (T at 260). Ms. 19 20 24 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 Lehman indicated that Plaintiff was unable to go out alone, had difficulty with stress, 2 and was often unable to complete tasks. (T at 261, 262, 265). 3 “Testimony by a lay witness provides an important source of information about 4 a claimant’s impairments, and an ALJ can reject it only by giving specific reasons 5 germane to each witness.” Regennitter v. Comm’r, 166 F.3d 1294, 1298 (9th Cir. 6 1999). 7 Here, the ALJ discussed Ms. Lehman’s report in detail, but discounted it. The 8 ALJ noted that the report essentially reflected the same allegations made by Plaintiff. 9 (T at 29). The ALJ found Ms. Lehman’s report not fully credible for the same reasons 10 he found Plaintiff’s allegations not fully credible. For the reasons outlined above (i.e. 11 Dr. Moore’s assessment, treating history, and the inconsistency regarding Plaintiff’s 12 activities of daily living), this Court finds that the ALJ provided “germane” reasons 13 for discounting Ms. Lehman’s lay evidence. 14 D. Step Five Analysis 15 At step five of the sequential evaluation, the burden is on the Commissioner to 16 show that (1) the claimant can perform other substantial gainful activity and (2) a 17 “significant number of jobs exist in the national economy” which the claimant can 18 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 19 return to his previous job, the Commissioner must identify specific jobs existing in 20 25 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 substantial numbers in the national economy that the claimant can perform. See 2 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). The Commissioner may carry 3 this burden by “eliciting the testimony of a vocational expert in response to a 4 hypothetical that sets out all the limitations and restrictions of the claimant.” Andrews 5 v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). The ALJ's depiction of the claimant's 6 disability must be accurate, detailed, and supported by the medical record. Gamer v. 7 Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th Cir.1987). “If the 8 assumptions in the hypothetical are not supported by the record, the opinion of the 9 vocational expert that claimant has a residual working capacity has no evidentiary 10 value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 11 Here, the ALJ concluded that there were jobs that exist in significant numbers 12 in the national economy that Plaintiff can perform. (T at 30-31). In particular, relying 13 on the testimony of a vocational expert, the ALJ concluded that Plaintiff retained the 14 RFC to work as a parking lot attendant, pricer/marker, dispatcher, document preparer, 15 and escort vehicle driver. (T at 30). Plaintiff argues that the ALJ’s step five analysis 16 was flawed. 17 contends that the ALJ’s errors likewise undermines the step five findings. This Court 18 finds those arguments unpersuasive for the reasons outlined above and likewise rejects 19 Plaintiff’s challenge to the step five analysis. See Hall v. Colvin, No. CV-13-0043, 20 26 However, Plaintiff essentially re-states her earlier arguments and DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 2014 U.S. Dist. LEXIS 45006, at *24-25 (E.D. Wash. Mar. 31, 2014)(“A claimant 2 fails to establish that a Step 5 determination is flawed by simply restating arguments 3 that the ALJ improperly discounted certain evidence, when the record demonstrates 4 the evidence was properly rejected.”)(citing Stubbs-Danielson v. Astrue, 539 F.3d 5 1169, 1175-76 (9th Cir. 2008). 6 IV. CONCLUSION 7 After carefully reviewing the administrative record, this Court finds substantial 8 evidence supports the Commissioner’s decision, including the objective medical 9 evidence and supported medical opinions. It is clear that the ALJ thoroughly examined 10 the record, afforded appropriate weight to the medical evidence, including the 11 assessments of the treating and examining medical providers and medical experts, and 12 afforded the subjective claims of symptoms and limitations an appropriate weight 13 when rendering a decision that Plaintiff is not disabled. This Court finds no reversible 14 error and because substantial evidence supports the Commissioner’s decision, the 15 Commissioner is GRANTED summary judgment and that Plaintiff’s motion for 16 judgment summary judgment is DENIED. 17 18 19 20 27 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB 1 2 V. ORDERS IT IS THEREFORE ORDERED that: 3 Plaintiff’s motion for summary judgment, Docket No. 14, 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 21st day of December, 2015. 9 10 11 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 28 DECISION AND ORDER – DULMAINE v COLVIN 14-CV-00218-VEB
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
