Paffhausen v. Colvin, No. 2:2014cv00314 - Document 18 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT, INTER ALIA; denying 14 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Case closed. Signed by Senior Judge Lonny R. Suko. (CV, Case Administrator)
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Paffhausen v. Colvin Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 7 8 9 10 11 12 13 14 15 16 EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) DANNETTE F. PAFFHAUSEN, (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 15). JURISDICTION 18 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment 17 19 No. 2:14-CV-0314-LRS Dannette F. Paffhausen, Plaintiff, applied for Title XVI Supplemental Security Income benefits (SSI) on April 18, 2011. The application was denied initially and on reconsideration. Plaintiff timely requested a hearing and one was held on January 8, 2013, before Administrative Law Judge (ALJ) James W. Sherry. Plaintiff, represented by counsel, testified at this hearing. Daniel Wiseman, M.D., and Margaret R. Moore, Ph.D., testified as medical experts. Diane Kramer testified as a Vocational Expert (VE). On February 7, 2013, the ALJ issued a decision finding the Plaintiff not disabled and denying her benefits. The Appeals Council denied a request for review and the ALJ's decision became the final decision of the /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 Commissioner. This decision is appealable to district court pursuant to 42 U.S.C. 2 §1383(c)(3). 3 STATEMENT OF FACTS 4 5 The facts have been presented in the administrative transcript, the ALJ's 6 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. 7 Plaintiff has a GED (General Education Development) and past relevant work 8 experience as a teacher’s aide, housekeeper and hotel clerk. Plaintiff was 48 years old 9 at the time of the administrative hearing. 10 STANDARD OF REVIEW 11 12 "The [Commissioner's] determination that a claimant is not disabled will be 13 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 14 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 15 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 16 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 17 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 18 1988). "It means such relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 20 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 21 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 22 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 23 On review, the court considers the record as a whole, not just the evidence supporting 24 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 25 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). It is the role of the trier of fact, not this court to resolve conflicts in evidence. 26 27 Richardson, 402 U.S. at 400. If evidence supports more than one rational 28 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2 1 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 2 F.2d 577, 579 (9th Cir. 1984). 3 A decision supported by substantial evidence will still be set aside if the proper 4 legal standards were not applied in weighing the evidence and making the decision. 5 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 6 1987). ISSUES 7 8 Plaintiff argues the ALJ erred in not finding Plaintiff disabled by: 1) 9 improperly discounting the opinions of her treating and examining physicians, and 10 2) improperly discounting Plaintiff’s credibility regarding her physical and mental 11 limitations. 12 DISCUSSION 13 14 SEQUENTIAL EVALUATION PROCESS 15 The Social Security Act defines "disability" as the "inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or can 18 be expected to last for a continuous period of not less than twelve months." 42 19 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 20 to be under a disability only if her impairments are of such severity that the claimant 21 is not only unable to do her previous work but cannot, considering her age, education 22 and work experiences, engage in any other substantial gainful work which exists in 23 the national economy. Id. 24 The Commissioner has established a five-step sequential evaluation process for 25 determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 26 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if she is engaged 27 in substantial gainful activities. 28 416.920(a)(4)(i). If she is not, the decision-maker proceeds to step two, which If she is, benefits are denied. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3 20 C.F.R. § 1 determines whether the claimant has a medically severe impairment or combination 2 of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe 3 impairment or combination of impairments, the disability claim is denied. If the 4 impairment is severe, the evaluation proceeds to the third step, which compares the 5 claimant's impairment with a number of listed impairments acknowledged by the 6 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 7 § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 8 equals one of the listed impairments, the claimant is conclusively presumed to be 9 disabled. If the impairment is not one conclusively presumed to be disabling, the 10 evaluation proceeds to the fourth step which determines whether the impairment 11 prevents the claimant from performing work she has performed in the past. If the 12 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. § 13 416.920(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step 14 in the process determines whether she is able to perform other work in the national 15 economy in view of her age, education and work experience. 16 416.920(a)(4)(v). 20 C.F.R. § 17 The initial burden of proof rests upon the claimant to establish a prima facie 18 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 19 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 20 mental impairment prevents her from engaging in her previous occupation. The 21 burden then shifts to the Commissioner to show (1) that the claimant can perform 22 other substantial gainful activity and (2) that a "significant number of jobs exist in the 23 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 24 1498 (9th Cir. 1984). 25 26 ALJ'S FINDINGS 27 The ALJ found that: 1) Plaintiff has severe impairments, including 28 “degenerative disc disease- cervical, thoracic, and lumbar spine;” “degenerative joint ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4 1 disease- right knee;” obesity; depressive disorder NOS (not otherwise specified); and 2 anxiety disorder NOS; 2) Plaintiff does not have an impairment or combination of 3 impairments that meet or equal any of the impairments listed in 20 C.F.R. § 404 4 Subpart P, App. 1; 3) Plaintiff has the residual functional capacity (RFC) to perform 5 work that does not involve lifting or carrying more than a maximum of ten pounds at 6 a time; standing and/or walking for more than a total of two hours in an eight-hour 7 workday; sitting for more than six hours in an eight-hour workday; she can 8 occasionally lift and carry articles such as docket files, ledgers, and small tools; she 9 can occasionally to frequently push and/or pull within the sedentary lifting 10 restrictions; she can occasionally balance, stoop, kneel, crouch, crawl, and climb 11 ramps or stairs, but can never climb ladders, ropes, or scaffolds; she should avoid 12 concentrated exposure to unprotected heights, moving machinery, and excessive 13 vibration; she can perform simple one to three-step, routine, and repetitive tasks as 14 well as some well-learned, detailed tasks; and she should avoid all interaction with 15 the general public, but can have brief, superficial interaction with co-workers and 16 supervisors; and 4) while this RFC precludes Plaintiff from performing her past 17 relevant work, it does not preclude her from performing other jobs existing in 18 significant numbers in the national economy as identified by the VE, including 19 printed circuit board assembly, charge account clerk, and surveillance system 20 monitor. Accordingly, the ALJ found the Plaintiff is not disabled. 21 22 MEDICAL SOURCE OPINIONS 23 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 24 of a licensed treating or examining physician or psychologist is given special weight 25 because of his/her familiarity with the claimant and his/her condition. Benecke v. 26 Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Holohan v. Massanari, 246 F.3d 1195, 27 1202 (9th Cir. 2001) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); 28 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Smolen v. Chater, 80 F.3d 1273, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5 1 1285-88 (9th Cir. 1996); Flaten v. Secretary of Health and Human Serv., 44 F.3d 2 1453, 1463 (9th Cir. 1995); Fair v. Bowen, 885 F.2d 597, 604-05 (9th Cir. 1989). If 3 the treating or examining physician's or psychologist’s opinion is not contradicted, 4 it can be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. If 5 contradicted, the ALJ may reject the opinion if specific, legitimate reasons that are 6 supported by substantial evidence are given. See Flaten, 44 F.3d at 1463; Fair, 885 7 F.2d at 605. “[W]hen evaluating conflicting medical opinions, an ALJ need not 8 accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately 9 supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 10 2005). The opinion of a non-examining medical advisor/expert need not be 11 discounted and may serve as substantial evidence when it is supported by other 12 evidence in the record and consistent with the other evidence. Andrews v. Shalala, 13 53 F.3d 1035, 1041 (9th Cir. 1995). 14 15 1. Physical RFC 16 Plaintiff’s physician in Chewelah, Washington, Thomas J. Boone, M.D., 17 completed a State of Washington Department of Social and Health Services (DSHS) 18 “Functional Assessment” in April 2011, in connection with Plaintiff’s application for 19 state disability benefits. Dr. Boone checked boxes indicating Plaintiff’s work 20 function was impaired, that her condition was expected to impair her work function 21 for 12 months, that her condition was deteriorating, that she could stand for two hours 22 in an eight hour work day, that she could sit for four hours in an eight hour work day, 23 that she could lift ten pounds occasionally, that she could lift ten pounds frequently, 24 and that she had postural restrictions necessitating frequent changes in position. (Tr. 25 at pp. 232-33). 26 /// 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6 Dr. Boone performed a physical examination of the Plaintiff in conjunction 1 2 with the DSHS “Functional Assessment.” Dr. Boone wrote that: She does have chronic pain in her neck and back. This is moderate, constant, aching. She has had an MRI of the cervical spine which reveals a broad-based disk protrusion at L5-6, spinal stenosis and disk at C6-7 [sic]. Her middle back and low back does have a lot of arthritic changes and bulging disks. Her right knee is very sore at this time. It gives out and is tender. She did have an ACL repair several years ago. It has swelling. 3 4 5 6 7 8 9 10 11 12 (Tr. at p. 240). Dr. Boone’s assessment was “[s]evere arthritis of the neck and back; arthritis of the knee, question instability ligamentous damage.” (Id.). A physical examination note from Dr. Boone, presumably from December 2011, indicated Plaintiff was “very functional on meds.” (Tr. at p. 291). In February 2012, Dr. Boone wrote: 15 The patient is still having her symptoms. The neck and back are very severe. She does have a protrusion of the disk at L5-6, stenosis at L6-7. Her knee MRI recently did reveal total rupture of her [ACL] graft.1 The knee is popping, catching, giving out. She has decreased motion in her back and tenderness with spasm. 16 (Tr. at p. 298). He once again assessed “[a]rthritis of the neck and back, lumbar and 17 T-spine, arthritis of the knee with instability.” (Id.). And on this occasion, he opined 18 that “[p]atient is really unable to work at this time.” (Id.). In March 2012, however, 19 Dr. Boone once again indicated that Plaintiff was “[v]ery functional on meds.” (Tr. 20 at p. 310). 13 14 21 In a July 2012 “Opioid Progress Report,” Plaintiff indicated her pain in the 22 past week had been a “6" on a 1 to 10 scale. (Tr. at p. 319). Dr. Boone estimated that 23 Plaintiff’s function on opioids rated an “8" on a 1 to 10 scale. (Id.). Plaintiff 24 indicated the activities she could do better with pain medication included sitting, 25 standing, walking, exercise and housework. (Id.). In a November 2012 “Opioid 26 /// 27 28 1 This graft occurred in 1991. (Tr. at pp. 307-08). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7 1 Progress Report,” Dr. Boone estimated that Plaintiff’s function on opioids had 2 increased to a “9.” (Tr. at p. 328). 3 In his decision, the ALJ assigned “some weight” to Dr. Boone’s opinion about 4 Plaintiff’s functional limitations “as portions of it are consistent with other accepted 5 medical source opinions, but no other medical source opined that she would be unable 6 to sit for six hours or would need frequent position changes.” (Tr. at p. 19). The ALJ 7 assigned no weight to Dr. Boone’s conclusion that Plaintiff “was really unable to 8 work this time,” asserting that the March, July and November 2012 reports, discussed 9 above, were contrary to that conclusion. (Tr. at p. 20). 10 The physical RFC found by the ALJ is not severely at odds with the functional 11 limitations opined by Dr. Boone in 2011. To the extent it is inconsistent, however, 12 Dr. Boone’s reports from 2012, and the Plaintiff’s self-reports of her daily living 13 activities (discussed infra), support the physical RFC determined by the ALJ. These 14 reports and Plaintiff’s daily living activities constitute “specific and legitimate” 15 reasons for the ALJ to not give full weight to Dr. Boone’s opinions and for the ALJ 16 to rely on the testimony of medical expert, Dr. Wiseman, and state agency medical 17 consultant, Jeffrey Merrill, M.D.. (Tr. at p. 20). Substantial evidence supports the 18 ALJ’s physical RFC determination.2 19 /// 20 /// 21 2 22 It is unnecessary to discuss whether the ALJ legitimately discounted Dr. 23 Boone’s opinions because there purportedly is no objective evidence of Plaintiff 24 having “severe arthritis” in the spine and because of his mistaken reference to 25 Plaintiff’s disc protrusion and stenosis being in her lumbar spine, as opposed to 26 her cervical spine. (Tr. at pp. 19-20). It is noted, however, that Plaintiff does not 27 dispute the ALJ’s conclusion that there is no objective evidence of arthritis in her 28 spine. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8 1 2. Mental RFC 2 Plaintiff was referred by her attorney to John Arnold, Ph.D., for a psychological 3 assessment in January 2013.3 Dr. Arnold diagnosed the Plaintiff with “Major 4 Depression, Recurrent, Moderate to Severe,” and “Antisocial Personality with 5 Aggressive & Schizoid Features.” (Tr. at p. 332). He assigned the Plaintiff a current 6 Global Assessment Functioning (GAF) Score of 52 and indicated in the past year it 7 had been as high as 54. (Id.). A GAF score between 51and 60 indicates “moderate 8 symptoms” or “moderate” difficulty in social, occupational, or school functioning. 9 American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 10 (4th ed. Text Revision 2000)(DSM-IV-TR at p. 34). 11 In an accompanying “Mental Medical Source Statement,” Dr. Arnold checked 12 boxes indicating Plaintiff was moderately limited (“occasional interference”) in 13 abilities to remember locations and work-like procedures; understand and remember 14 detailed instructions; perform activities within a schedule, maintain regular 15 attendance, and be punctual within customary tolerances; and in getting along with 16 co-workers or peers without distracting them or exhibiting behavioral extremes. (Tr. 17 at p. 333-34). Dr. Arnold indicated Plaintiff was markedly limited (“frequent 18 interference”) in her abilities to complete a normal workday and workweek without 19 interruptions from psychologically based symptoms and perform at a consistent pace 20 without an unreasonable number and length of rest periods; accept instructions and 21 respond appropriately to criticism from supervisors; and maintain socially appropriate 22 behavior and adhere to basic standards of neatness and cleanliness. (Tr. at p. 334). 23 Previously, in October 2011, Plaintiff had been referred by Washington’s 24 Division of Disability Determination Services for a psychological examination by 25 Renee Thompson, Psy. D.. Dr. Thompson diagnosed Plaintiff with depressive 26 27 28 3 Dr. Arnold’s report indicates the date of the assessment was “01/02/2012,” but “01/04/13" was the date he used on his “Mental Medical Source Statement.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9 1 disorder NOS (not otherwise specified) and anxiety disorder NOS. (Tr. at p. 276). 2 Dr. Thompson assigned the Plaintiff a GAF of 43 because of “[s]erious symptoms; 3 suicidal ideation; serious impairment in social and occupational functioning.”4 (Tr. 4 at p. 277). Dr. Thompson’s prognosis for the Plaintiff was “mixed.” According to 5 the doctor, Plaintiff’s depressive and anxiety symptoms “likely interfere with her 6 ability to sustain gainful employment” and “may also be related [to] physical 7 problems that significantly limit her ability to work and function on a day-to-day 8 basis.” (Id.). Dr. Thompson noted that Plaintiff had a “minimal history of mental 9 health treatment.” (Id.). Furthermore, according to the doctor: [Plaintiff] does not exhibit consistent memory deficits. She is capable of understanding and remembering, but may have difficulty carrying out simple work related instructions due to pain. She would have difficulty interacting in a work setting with coworkers and supervisors given her dysphoric presentation. 10 11 12 13 (Id.). 14 At the administrative hearing, Dr. Moore noted that Plaintiff had not received 15 any mental health treatment, including any antidepressant medication. (Tr. at p. 44). 16 Dr. Moore opined that Dr. Arnold’s evaluation was “a very heavy-handed evaluation” 17 because Plaintiff did not present specific mental health concerns to him. (Tr. at p. 18 45). Indeed, according to Dr. Arnold’s report, Plaintiff “did not cite specific mental 19 health problems as directly impacting her ability to be employed in major 20 ways . . . .” (Tr. at p. 329). Dr. Moore also opined that Dr. Arnold’s diagnosis of 21 major depression, moderate to severe, was not warranted: “I honestly did not see that 22 level of intensity in terms of a depression diagnosis reflected either in his evaluation 23 or in the record as a whole, especially with no treatment, no medication, no nothing.” 24 25 4 A GAF score of 41-50 means “serious” symptoms or “serious” impairment 26 in either social, occupational, or school functioning. American Psychiatric Ass’n, 27 Diagnostic & Statistical Manual of Mental Disorders, (4th ed. Text Revision 28 2000)(DSM-IV-TR). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10 1 (Id.). Dr. Moore also took issue with Dr. Arnold’s diagnosis of a “full-blown” 2 antisocial personality disorder with aggressive and schizoid features. Dr. Moore did 3 not “see that emerging from the interview nor the rest of the record.” (Tr. at pp. 45- 4 46.). Dr. Moore opined that “what we have is lower-grade anxiety, depression, some 5 of it situationally based, some of it tied to her physical limitations, her living 6 circumstances.” (Tr. at p. 46). Dr. Moore indicated that in terms of functional 7 limitations, she concurred with the state assessment that Plaintiff should be “able to 8 understand, remember, and carry out simple, routine, repetitive tasks up to three steps 9 and some well-learned detailed tasks, no public interaction, and only brief superficial 10 interaction with coworker and supervisors.” (Tr. at pp. 48-49; 92-94). 11 The ALJ assigned “great weight” to Dr. Moore’s testimony because of “her 12 review of all the medical evidence and its consistency with that evidence.” (Tr. at pp. 13 21-22). According to the ALJ: “The claimant’s self-reports indicate that she is 14 socially competent and can follow written and spoken instructions well, and her 15 failure to obtain treatment for her alleged symptoms suggests that they were not 16 especially troubling.” (Tr. at p. 22). As discussed infra, the court concludes the ALJ 17 offered clear and convincing reasons supported by substantial evidence to discount 18 Plaintiff’s credibility regarding the severity of both her physical and mental 19 limitations. Because of that, the court concludes the ALJ provided specific and 20 legitimate reasons for relying on Dr. Moore’s opinions, as opposed to Dr. Arnold’s 21 opinions. Interestingly enough, although Dr. Thompson opined a much more severe 22 GAF score (43) than Dr. Arnold (52), the limitations opined by Dr. Thompson appear 23 to be largely consistent with the mental RFC determined by the ALJ and which is 24 based on the testimony from Dr. Moore. Also interesting is that although Dr. 25 Thompson assessed a much more severe GAF score , she diagnosed the Plaintiff with 26 depressive disorder NOS and anxiety disorder NOS, whereas Dr. Arnold offered the 27 more severe diagnoses of “Major Depression, Recurrent, Moderate to Severe” and 28 “Antisocial Personality with Aggressive & Schizoid Features.” Therefore, it is ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11 1 understandable that the ALJ sought testimony from Dr. Moore to assist him in 2 interpreting the opinions of Drs. Thompson and Arnold. 3 Dr. Moore’s opinion is supported by other evidence in the record and 4 consistent with the other evidence (i.e, Dr. Thompson’s assessment). Therefore, the 5 ALJ was entitled to rely on it as substantial evidence in support of his mental RFC 6 determination. 7 8 CREDIBILITY 9 An ALJ can only reject a plaintiff’s statement about limitations based upon a 10 finding of “affirmative evidence” of malingering or “expressing clear and convincing 11 reasons” for doing so. Smolen, 80 F.3d at 1283-84. "In assessing the claimant's 12 credibility, the ALJ may use ordinary techniques of credibility evaluation, such as 13 considering the claimant's reputation for truthfulness and any inconsistent statements 14 in her testimony." Tonapeytan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). See 15 also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002)(following factors may be 16 considered: 1) claimant's reputation for truthfulness; 2) inconsistencies in the 17 claimant's testimony or between her testimony and her conduct; 3) claimant’s daily 18 living activities; 4) claimant's work record; and 5) testimony from physicians or third 19 parties concerning the nature, severity, and effect of claimant's condition). 20 Contrary to Plaintiff’s assertion, the ALJ did not discount Plaintiff’s credibility 21 regarding her physical imitations solely on the grounds of lack of objective medical 22 evidence. The ALJ referred to Plaintiff’s self-report of her daily living activities (Tr. 23 at p. 20) which he found consistent with the opinions offered by Dr. Wiseman who 24 testified as a medical expert. According to the ALJ: 25 26 27 28 In activities of daily living, the claimant has no restriction. The claimant stated in her Function Report that she lives alone, vacuums twice a week, washes dishes, prepares meals daily, does laundry once a week, cleans the house every day, and has no problems with personal care [citation omitted]. She also reported that she shops in stores twice a month, watches television, reads, and can handle her funds ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12 [citation omitted]. The claimant informed Renee Thompson, Psy. D., that she is able to cook any meal, completes 2 basic activities of daily living in a timely manner, and uses a computer for Facebook and games. She also informed 3 John Arnold, Ph.D., that she can care for her personal hygiene independently . . . . [citation omitted]. 4 (Tr. at p. 16).5 1 5 The ALJ also considered those daily living activities as a basis for discounting 6 Plaintiff’s credibility regarding mental limitations: “The claimant stated in her 7 Function Report that she is able to leave her house by herself, shop in stores, and visit 8 with others on the telephone or in person [citation omitted].” (Tr. at p. 16). As noted 9 above, the ALJ added that: “The claimant’s self-reports indicate that she is socially 10 competent and can follow written and spoken instructions well, and her failure to 11 obtain treatment for her alleged symptoms suggest that they were not especially 12 troubling.” (Tr. at p. 22). The ALJ relied on Plaintiff’s self-reports as a basis for 13 assigning great weight to the opinions of medical expert, Dr. Moore, and in turn, for 14 the mental RFC determination which he (the ALJ) made.6 15 The daily living activities reported by Plaintiff are consistent with the physical 16 and mental limitations found by the ALJ as part of his RFC determination.7 This, by 17 18 5 In her report, Dr. Thompson wrote: “[Plaintiff] performs chores in a timely 19 manner with breaks as needed for pain,” and “[s]he is able to provide for her own 20 personal needs and completes basic ADL[s] [Activities of Daily Living] in a 21 timely manner.” (Tr. at p. 276). 22 6 Dr. Moore testified that as concerns Plaintiff’s mental health, she (Dr. 23 Moore) did not ascertain there being any impact on Plaintiff’s daily living 24 activities. (Tr. at p. 48). 25 7 Contrary to Plaintiff’s assertion, the ALJ did not discuss daily living 26 activities solely in the context of his Step Three analysis. Those activities and 27 Plaintiff’s credibility were discussed in the ALJ’s RFC analysis (Tr. at pp. 19-20 28 re physical RFC and Tr. at pp. 20-22 re mental RFC). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 13 1 itself, is a clear and convincing reason to discount any more serious limitations 2 asserted by Plaintiff. See Reddick, 157 F.3d at 722. 3 Plaintiff apparently did not seek any type of mental health treatment after her 4 evaluation by Dr. Thompson in October 2011, and before seeing Dr. Arnold in 5 January 2013. Because there is no indication that Dr. Thompson or any other medical 6 provider specifically indicated to Plaintiff that she should seek mental health 7 treatment, or specifically referred her to someone for that purpose, that is not a “clear 8 and convincing reason” for discounting Plaintiff’s credibility. The mere fact Dr. 9 Thompson diagnosed Plaintiff with mental conditions is an inadequate reason to 10 discount her credibility for failure to subsequently seek mental health treatment. 11 Plaintiff did not fail to follow a recommended course of mental health treatment. 12 Compare Bondarenko v. Colvin, 2014 WL 4198853 (E.D. Wash. 2014) at *4 13 (“Plaintiff failed to follow medical advice, comply with her prescription medication 14 regime, and to seek treatment on a regular basis”); Hunt v. Colvin, 954 F.Supp.2d 15 1181, 1191 (W.D. Wash. 2013)(“Plaintiff . . . sought treatment but refused 16 recommended medications and canceled a number of counseling appointments, which 17 reasonably suggests that her symptoms were not as severe as alleged”); King v. 18 Astrue, 2010 WL 5300856 (E.D. Cal. 2010) at *10 (Plaintiff ignored repeated advice 19 of primary care physician to seek specific mental health treatment); Parks v. Astrue, 20 2010 WL 424609 (E.D. Wash. 2010) at *8 (distinguishing Nguyen v. Chater, 100 21 F.3d 1462 (9th Cir. 1996), because “[p]laintiff’s repeated failure to keep mental health 22 appointments after referral by her treating physician is probative of the lack of 23 severity of the condition, as is plaintiff’s medication history”); and Beasley v. Astrue, 24 2010 WL 4717108 (E.D. Wash. 2010) at *5 (“Unlike the claimant in Nguyen, 25 Plaintiff was aware of the diagnosed mental illness as early as 2007, but did not 26 follow Dr. Mabee’s recommendations for treatment in 2007 or 2008"). Here, it is not 27 clear that Plaintiff was even made aware that Dr. Thompson diagnosed her with 28 depressive and anxiety disorders. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 14 CONCLUSION 1 2 3 4 Substantial evidence- more than a scintilla, less than a preponderance- supports the ALJ’s RFC determinations and his conclusion that Plaintiff is not disabled. Defendant’s Motion For Summary Judgment (ECF No. 15) is GRANTED 5 and Plaintiff’s Motion For Summary Judgment (ECF No. 14) is DENIED. The 6 Commissioner's decision denying benefits is AFFIRMED. 7 8 9 IT IS SO ORDERED. The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. DATED this 16th of July, 2015. 10 11 12 13 s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 15
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