Jorgensen v. Colvin, No. 2:2015cv00042 - Document 15 (E.D. Wash. 2016)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Re: 13 Motion for Summary Judgment; granting 14 Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (AY, Case Administrator)
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Jorgensen v. Colvin Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 RONALD G. JORGENSEN, NO: 15-CV-0042-FVS 8 Plaintiff, 9 10 11 12 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CAROLYN W. COLVIN, Defendant. 13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 13 and 14. This matter was submitted for consideration 16 without oral argument. Plaintiff was represented by Joseph M. Linehan. Defendant 17 was represented by David J. Burdett. The Court has reviewed the administrative 18 record and the parties’ completed briefing and is fully informed. For the reasons 19 discussed below, the court GRANTS Defendant’s Motion for Summary Judgment, 20 ECF No. 14, and DENIES Plaintiff’s Motion for Summary Judgment, ECF No. 13. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 JURISDICTION Plaintiff Ronald G. Jorgensen protectively filed for supplemental security 3 income (“SSI”) on January 19, 2011. Tr. 164-70. Plaintiff alleged an onset date of 4 January 1, 1990 (Tr. 164), which was amended at the hearing to January 19, 2011 5 (Tr. 39). Benefits were denied initially and upon reconsideration. Tr. 112-15, 120- 6 21. Plaintiff requested a hearing before an administrative law judge (“ALJ”), which 7 was held before ALJ Moira Ausems on July 25, 2013. Tr. 36-94. The ALJ denied 8 benefits (Tr. 13-32) and the Appeals Council denied review (Tr. 1). The matter is 9 now before this court pursuant to 42 U.S.C. § 405(g). 10 STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing and 12 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 13 and will therefore only be summarized here. 14 Plaintiff was 51 years old at the time of the hearing. See Tr. 164. The highest 15 level of school he completed was eighth grade, but he later obtained his GED. Tr. 16 187. Plaintiff previously worked as a cook, industrial cleaner, and assistant carpet 17 layer. Tr. 59-63, 82. Plaintiff claims he is disabled due to anxiety, depression, and 18 ADD. See Tr. 112. He testified that he would rather sleep, feels depressed, gets a 19 lot of “anxious feelings,” and takes medication “mainly for the anxiety.” Tr. 64, 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 70, 75. He testified that he has “a hard time grasping” with his right hand, and gets 2 headaches four or five times a week lasting for four to five hours. Tr. 71-72, 77. 3 4 STANDARD OF REVIEW A district court's review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited: the Commissioner's decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158–59 (9th Cir.2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 9 relevant evidence that “a reasonable mind might accept as adequate to support a 10 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 11 substantial evidence equates to “more than a mere scintilla[,] but less than a 12 preponderance.” Id. (quotation and citation omitted). In determining whether this 13 standard has been satisfied, a reviewing court must consider the entire record as a 14 whole rather than searching for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. If the evidence in the record “is susceptible 17 to more than one rational interpretation, [the court] must uphold the ALJ's findings 18 if they are supported by inferences reasonably drawn from the record.” Molina v. 19 Astrue, 674 F.3d 1104, 1111 (9th Cir.2012). Further, a district court “may not 20 reverse an ALJ's decision on account of an error that is harmless.” Id. An error is ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 harmless “where it is inconsequential to the [ALJ's] ultimate nondisability 2 determination.” Id. at 1115 (quotation and citation omitted). The party appealing 3 the ALJ's decision generally bears the burden of establishing that it was harmed. 4 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 5 6 FIVE–STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 7 the meaning of the Social Security Act. First, the claimant must be “unable to 8 engage in any substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of not less than twelve 11 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant's impairment must be 12 “of such severity that he is not only unable to do his previous work[,] but cannot, 13 considering his age, education, and work experience, engage in any other kind of 14 substantial gainful work which exists in the national economy.” 42 U.S.C. § 15 1382c(a)(3)(B). 16 The Commissioner has established a five-step sequential analysis to 17 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 18 404.1520(a)(4)(i)-(v); 416.920(a)(4) (i)-(v). At step one, the Commissioner 19 considers the claimant's work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 20 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 2 404.1520(b); 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant's impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work 8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 9 416.920(c). If the claimant's impairment does not satisfy this severity threshold, 10 11 however, the Commissioner must find that the claimant is not disabled. Id. At step three, the Commissioner compares the claimant's impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 14 404.1520(a)(4)(iii); 416.920(a) (4)(iii). If the impairment is as severe or more 15 severe than one of the enumerated impairments, the Commissioner must find the 16 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416 .920(d). 17 If the severity of the claimant's impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant's “residual functional capacity.” Residual functional capacity (“RFC”), 20 defined generally as the claimant's ability to perform physical and mental work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 2 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 3 analysis. 4 At step four, the Commissioner considers whether, in view of the claimant's 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 7 If the claimant is capable of performing past relevant work, the Commissioner 8 must find that the claimant is not disabled. 20 C.F.R. § § 404.1520(f); 416.920(f). 9 If the claimant is incapable of performing such work, the analysis proceeds to step 10 11 five. At step five, the Commissioner considers whether, in view of the claimant's 12 RFC, the claimant is capable of performing other work in the national economy. 20 13 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a) (4)(v). In making this determination, the 14 Commissioner must also consider vocational factors such as the claimant's age, 15 education and work experience. Id. If the claimant is capable of adjusting to other 16 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 17 404.1520(g)(1); 416.920(g) (1). If the claimant is not capable of adjusting to other 18 work, the analysis concludes with a finding that the claimant is disabled and is 19 therefore entitled to benefits. Id. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 The claimant bears the burden of proof at steps one through four above. 2 Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir.2010). If 3 the analysis proceeds to step five, the burden shifts to the Commissioner to 4 establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. § § 6 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir.2012). 7 ALJ’S FINDINGS 8 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 9 activity since January 19, 2011, the application date. Tr. 18. At step two, the ALJ 10 found Plaintiff has the following severe impairments: status post right fifth finger 11 fracture; occipital headaches; adjustment disorder with mixed anxiety and 12 depressed mood; and, mixed personality disorder. Tr. 18. At step three, the ALJ 13 found that Plaintiff does not have an impairment or combination of impairments 14 that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, 15 Subpt. P, App’x 1. Tr. 19. The ALJ then found that Plaintiff had the RFC 16 17 18 to perform a full range of work at all exertional levels but with the following nonexertional limitations: he would be unable to perform work that involves more than frequent fingering and feeling with the right, dominant hand; more than simple routine tasks; more than brief, superficial contact with the general public; or, the performance of cooperative teamwork endeavors with coworkers. 19 Tr. 21. At step four, the ALJ found Plaintiff is capable of performing past relevant 20 work as an industrial cleaner. Tr. 26. In the alternative, at step five, the ALJ found ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 that considering the Plaintiff’s age, education, work experience, and RFC, there are 2 jobs that exist in significant numbers in the national economy that Plaintiff also can 3 perform. Tr. 27. The ALJ concluded that Plaintiff has not been under a disability, 4 as defined in the Social Security Act, since January 19, 2011, the date the 5 application was filed. Tr. 28. 6 ISSUES 7 The question is whether the ALJ’s decision is supported by substantial 8 evidence and free of legal error. Specifically, Plaintiff argues the ALJ improperly 9 rejected the opinions of treating and examining sources who determined that 10 Plaintiff’s mental impairments were more severe than what was determined by the 11 ALJ. ECF No. 13 at 10-14. Defendant argues the ALJ’s reasoning for rejecting the 12 medical opinion evidence was supported by substantial evidence. ECF No. 14 at 3- 13 7. 14 15 16 DISCUSSION Medical Opinions There are three types of physicians: “(1) those who treat the claimant 17 (treating physicians); (2) those who examine but do not treat the claimant 18 (examining physicians); and (3) those who neither examine nor treat the claimant 19 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 20 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 Generally, a treating physician's opinion carries more weight than an examining 2 physician's, and an examining physician's opinion carries more weight than a 3 reviewing physician's. Id. If a treating or examining physician's opinion is 4 uncontradicted, the ALJ may reject it only by offering “clear and convincing 5 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 6 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 7 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 8 providing specific and legitimate reasons that are supported by substantial 9 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)). 10 Plaintiff argues the ALJ improperly rejected the opinions of Plaintiff’s treating and 11 examining providers, including: Frank Rosekrans, Ph.D., John Arnold, Ph.D., and 12 Kris Korsgaard, MS, FNP. 1 ECF No. 13 at 9-14. 13 14 1 15 Joseph Cools, despite the fact that Dr. Cools “had never treated or examined” the 16 Plaintiff. ECF No. 13 at 10. “The opinion of a nonexamining physician cannot by 17 itself constitute substantial evidence that justifies the rejection of the opinion of 18 either an examining or treating physician.” Lester, 81 F.3d at 831 (emphasis 19 added). The ALJ accorded certain portions of Dr. Cools’ opinion significant weight 20 Tr. 25. However, Plaintiff does not argue with specificity that the ALJ improperly Plaintiff briefly notes that the ALJ relied on the testimony of medical expert Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 A. Dr. Frank Rosekrans 2 In November 2010, Dr. Rosekrans conducted a psychological evaluation of 3 Plaintiff. Tr. 437-45. He diagnosed Plaintiff with adjustment disorder with mixed 4 anxiety and depressed mood; personality disorder NOS; and polysubstance 5 dependence, sustained full remission. Tr. 444. In the section entitled “functional 6 losses – barriers to employment,” Dr. Rosekrans indicated that “[a]t the present 7 time [Plaintiff] presents with a considerable amount of depression and anxiety. He 8 is a sad, anxious, and tense individual who finds it difficult to relax. [Plaintiff’s] 9 self-description on the PAI indicates significant suspiciousness and hostility in his 10 relations with others.” Tr. 444. Dr. Rosekrans found “it will be difficult for 11 [Plaintiff] to take orders from others;” but also noted that Plaintiff’s intention to 12 become a licensed carpet installer was “an appropriate vocational goal.” Tr. 444- 13 45. The ALJ “accord[ed] weight to [Dr.] Rosekrans’ conclusions to the extent that 14 they support the RFC findings in this decision.” Tr. 23. 15 16 Plaintiff argues that the ALJ “fails to address the portion of his evaluation that supports more psychological impairments than was found by the ALJ’s RFC.” 17 18 relied solely on Dr. Cools’ opinion to justify rejecting certain medical opinions. 19 Thus, the court declines to address this issue. See Carmickle v. Comm’r of Soc. 20 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 ECF No. 13 at 14. In support of this argument, Plaintiff contends that the ALJ was 2 impermissibly “silent” as to Dr. Rosekrans’ conclusion that Plaintiff would have 3 difficulty taking orders from others. Id. (citing Tr. 444). However, Plaintiff appears 4 to misread the ALJ’s decision, which directly addresses Dr. Rosekrans’ conclusion 5 that it would be difficult for Plaintiff to take orders from others; and expressly 6 finds the limitation inconsistent with evidence that Plaintiff was working at that 7 time as a part time cook, “and there was no expressed complaint of workplace 8 conflict or an inability to adapt to the demands of regular employment.” Tr. 23, 9 439. As noted by the ALJ, Plaintiff continued to work in that position for a year 10 thereafter. Tr. 23, 62. Thus, the ALJ properly rejected Dr. Rosekrans’ opinion 11 because it was inconsistent with Plaintiff’s level of activity. See Rollins v. 12 Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Furthermore, while not addressed 13 by Plaintiff, the ALJ found that “Dr. Rosekrans addressed the claimant’s 14 impairments characterizing a variety of symptomatology in support of his 15 diagnoses, however, he did not provide a clear assessment of the limitations posed 16 by the claimant’s contended symptoms.” Tr. 23. Thus, the ALJ did not err in 17 failing to specifically discuss and provide reasons for rejecting Dr. Rosekrans’ 18 “opinions” because he did not assess any functional limitations. See, e.g., Turner v. 19 Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010) (where 20 physician’s report did not assign any specific limitations or opinions in relation to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 an ability to work, “the ALJ did not need to provide ‘clear and convincing reasons’ 2 for rejecting [the] report because the ALJ did not reject any of [the report’s] 3 conclusions”); see also Kay v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (the 4 “mere diagnosis of an impairment … is not sufficient to sustain a finding of 5 disability.”). These were specific and legitimate reasons to reject Dr. Rosekrans’ 6 opinion. 7 In addition, while not specifically addressed by Plaintiff, the ALJ rejected 8 Dr. Rosekrans’ opinion because it “was largely based on Plaintiff’s self-reported 9 symptoms and complaints, and the [ALJ] does not find the claimant entirely 10 credible.” Tr. 23. “An ALJ may reject a [] physician’s opinion if it is based ‘to a 11 large extent’ on a claimant’s self-reports that have been properly discounted as 12 incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, as 13 noted by the Defendant, the Plaintiff fails to assign error to the ALJ’s adverse 14 credibility finding. ECF No. 14 at 6; see Carmickle, 533 F.3d at 1161 n.2 (the court 15 need not address issue not argued with specificity in Plaintiff’s brief). The ALJ’s 16 credibility findings in this case are specific, clear and convincing, and 17 unchallenged. See Tr. 21-22. Moreover, a review of Dr. Rosekrans’ opinion 18 supports the ALJ’s conclusion that it was based primarily on Plaintiff’s self-reports 19 and self-descriptions. See Tr. 437-445. The court notes that Dr. Rosekrans did 20 subject Plaintiff to objective psychological tests, however, he largely failed to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 discuss how the test results resulted in any functional limitations or indicated 2 Plaintiff was unable to work. Tr. 439-41. Instead, Dr. Rosekrans appeared to 3 support Plaintiff’s search for work as a licensed carpet installer as an “appropriate 4 vocational goal,” so long as a medical examination confirmed that he could 5 physically perform the requisite job duties. Overall, “where evidence is susceptible 6 to more than one rational interpretation, it is the [Commissioner’s] conclusion that 7 must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This was a 8 specific and legitimate reason for the ALJ to reject Dr. Rosekrans’ opinion. 9 10 B. Dr. John Arnold In May 2013, Dr. Arnold completed a psychological/psychiatric evaluation 11 of Plaintiff after conducting an interview and mental status exam, and reviewing 12 records of objective tests previously performed by other practitioners. Tr. 562-67. 13 Dr. Arnold diagnosed Plaintiff with major depression, recurrent, moderate to 14 severe; GAD; and rule out somatoform disorder. Tr. 564. Dr. Arnold also opined 15 that Plaintiff had numerous moderate and marked limitations, including marked 16 limitations in his ability to: perform activities within a schedule, maintain regular 17 attendance, and be punctual within customary tolerances without special 18 supervision; perform routine tasks without supervision; communicate and perform 19 effectively in a work setting; maintain appropriate behavior in a work setting; and 20 complete a normal work day and work week without interruptions from ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 psychologically based symptoms. Tr. 565. The ALJ assigned “little weight” to Dr. 2 Arnold’s findings for several reasons. Tr. 25. 3 First, the ALJ found that “his assessment of symptom severity is not 4 consistent with the assessments of other acceptable medical sources of record or 5 the claimant’s limited, conservative treatment history.” 2 Tr. 25. The consistency of 6 a medical opinion with the record as a whole is a relevant factor in evaluating that 7 medical opinion. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Plaintiff argues 8 this reasoning is “boilerplate” and neglects to consider mental health evidence in 9 the record, including: treatment records from Community Health Association of 10 Spokane (“CHAS”), treatment with Mr. Korsgaard, and Dr. Rosekrans’ opinion. 11 12 2 13 Arnold’s opinion based on lack of mental health treatment. ECF No. 13 at 12 14 (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1989) (“it is a questionable 15 practice to chastise one with a mental impairment for the exercise of poor 16 judgment in seeking rehabilitation”)). However, based solely on this statement, it is 17 difficult to discern whether the ALJ relied on Plaintiff’s lack of mental health 18 treatment as a reason to discount the severe limitations opined by Dr. Arnold. 19 Moreover, any error is harmless because the ALJ’s ultimate finding is adequately 20 supported by substantial evidence. See Carmickle, 533 F.3d at 1162-63. Plaintiff also argues that the ALJ “appears” to be improperly discounting Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 ECF No. 13 at 12. However, as discussed above, while Dr. Rosekrans generally 2 opined that it would “be difficult for [Plaintiff] to take orders from others” (Tr. 3 444), his opinion was properly discounted because he did not find any specific 4 functional limitations on Plaintiff’s ability to work. See Tr. 444-45. Similarly, 5 while the records from Plaintiff’s treatment with Mr. Korsgaard confirms ongoing 6 mental health complaints resulting in a bipolar diagnosis; Mr. Korsgaard did not 7 specifically opine as to the severity of Plaintiff’s functioning. See Tr. 474-93, 532- 8 44, 550-61. Plaintiff also reported significant improvement in his mental health 9 symptoms with medication while in treatment with Mr. Korsgaard. Tr. 532-44. 10 Plaintiff was treated for a variety of complaints at CHAS, however, the records 11 specifically addressing his mental health treatment are from four years prior to the 12 relevant adjudicatory period. See Tr. 394-436, 516-24, 544-49. “Medical opinions 13 that predate the alleged onset of disability are of limited relevance.” Carmickle, 14 533 F.3d at 1165. Moreover, while not noted by Plaintiff, Dr. Jay Toews opined 15 that Plaintiff’s depression and anxiety symptoms are “minimal” and “would not 16 preclude [his] ability to function well on the job.” Tr. 449. The inconsistencies 17 between Dr. Arnold’s opinion and other assessments in the record was a specific 18 and legitimate reason, supported by substantial evidence, for the ALJ to reject Dr. 19 Arnold’s opinion. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Second, the ALJ found that Dr. Arnold’s report of examination “was 2 completed by checking boxes, with few objective findings in support of the degree 3 of limitation opined by him.” Tr. 25. As cited by the ALJ, opinions on a check-box 4 form or report which does not contain significant explanation of the basis for the 5 conclusions may be accorded little or no weight. See Crane v. Shalala, 76 F.3d 6 251, 253 (9th Cir. 1996). Further, an ALJ may discredit treating physicians’ 7 opinions that are conclusory, brief, and unsupported by the record as a whole or by 8 objective medical findings. Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 9 1195 (9th Cir. 2004). Plaintiff does not challenge this reasoning. See Carmickle, 10 533 F.3d at 1161 n.2 (court may decline to address an issue not raised with 11 specificity in Plaintiff’s briefing). The court’s review confirms that, aside from 12 minimal notes taken during the clinical interview with Plaintiff, Dr. Arnold’s 13 evaluation consists entirely of check-box assessment without explanation or 14 reference to objective findings. Tr. 563-67. This is a specific, legitimate reason for 15 rejecting Dr. Arnold’s opinion. 16 Finally, while not identified or challenged by Plaintiff, the ALJ noted that 17 Dr. Arnold conducted his evaluation under DSHS “criteria” and therefore his 18 findings are not consistent with “the regulatory requirements of the [SSA].” Tr. 25. 19 The court notes that this general observation by the ALJ that DSHS evaluative 20 “criteria” is not consistent with SSA regulations would not in itself justify rejection ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 of Dr. Arnold’s opinion. Any error is harmless, however, because the ALJ gave 2 additional specific and legitimate reasons, supported by substantial evidence, for 3 rejecting Dr. Arnold’s opinion. See Carmickle, 533 F.3d at 1162-63. 4 C. Kris Korsgaard, MS, FNP 5 Mr. Korsgaard provided mental health treatment to Plaintiff from May 2012 6 to June 2013. Tr. 474-93, 532-44, 550-61. During this time, Plaintiff was 7 alternately diagnosed with mood disorder NOS; general anxiety disorder; and 8 bipolar II disorder. See, e.g., Tr. 483, 493. Plaintiff was prescribed medication to 9 address his mental health complaints. See Tr. 534. In an undated letter to Plaintiff’s 10 legal counsel, Mr. Korsgaard noted that Plaintiff’s symptoms are in “partial 11 remission,” however, “because of the episodic nature of his mental illness and in 12 light of the fact that we have no cure at this time, I would consider [Plaintiff] 13 disabled.” Tr. 544. The ALJ reviewed Mr. Korsgaard’s treatment records and 14 accorded the undated opinion letter “no weight or special significance.” Tr. 24-26. 15 As initial matter, while it is unclear whether it was offered as a reason to 16 discount his opinion, the ALJ noted that Mr. Korsgaard is not an acceptable source 17 under Social Security regulations. Tr. 26. Mr. Korsgaard is a nurse practitioner, 18 and thus in accordance with 20 C.F.R. § 416.913(a), the ALJ is correct that he is 19 not an “acceptable medical source.” Instead, Mr. Korsgaard is an “other source” as 20 defined in 20 C.F.R. § 416.913(d). As acknowledged by the ALJ, she is required to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 “consider observations by nonmedical sources as to how an impairment affects a 2 claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 3 1987). However, the ALJ need only provide “germane reasons” for disregarding an 4 “other source” opinion. Molina, 674 F.3d at 1111. Moreover, “[t]he fact that a 5 medical opinion is from an ‘acceptable medical source’ is a factor that may justify 6 giving that opinion greater weight than an opinion from a medical source who is 7 not an ‘acceptable medical source’…. However, depending on the particular facts 8 in a case, and after applying the factors for weighing opinion evidence, an opinion 9 from a medical source who is not an ‘acceptable medical source’ may outweigh the 10 opinion of an ‘acceptable medical source.’” SSR 06-03p (Aug. 9, 2006), available 11 at 2006 WL 2329939 at *5. Thus, while the ALJ may give less weight to Mr. 12 Korsgaard’s opinion because it is not from an “acceptable medical source;” it 13 would be error to reject Mr. Korsgaard’s opinion solely on this basis. In this case, 14 the ALJ gave several germane reasons for granting Mr. Korsgaard’s opinion no 15 weight. 16 First, the ALJ found that “Mr. Korsgaard’s diagnosis and assessment 17 essentially stand alone in the record, as it is not supported by the limited objective 18 medical evidence.” Tr. 26. “An ALJ may discredit treating [providers’] opinions 19 that are conclusory, brief, and unsupported by the record as a whole, or by 20 objective medical findings.” Batson, 359 F.3d at 1195. Plaintiff generally argues ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 that the ALJ’s reasoning is “in contradiction” with the opinions of Dr. Arnold, Dr. 2 Rosekrans, and the medical records from CHAS. ECF No. 13 at 13. The court 3 acknowledges that these records include evidence that supports Plaintiff’s claimed 4 mental health symptoms. However, as discussed in detail above, the ALJ properly 5 discounted the opinions of Dr. Arnold and Dr. Rosekrans; and the mental health 6 treatment records from CHAS were from well outside of the relevant adjudicatory 7 period. Moreover, Mr. Korsgaard diagnosed Plaintiff with bipolar disorder, and 8 opined that Plaintiff was “disabled.” Tr. 543-44. Plaintiff does not cite to, nor does 9 the court discern, any assessment in the record that diagnoses Plaintiff with bipolar 10 disorder, or opines that Plaintiff is completely “disabled.” Nor does Plaintiff refer 11 the court to specific objective findings that would support Mr. Korsgaard’s 12 undated, one-paragraph, opinion that Plaintiff’s mental illness has “no cure” and he 13 is therefore “disabled.” See Tr. 544. For all of these reasons, this was a germane 14 reason to reject Mr. Korsgaard’s opinion. 15 Second, the ALJ noted that “a finding of ‘disabled’ is an issue reserved to 16 the Commissioner of Social Security only, and Mr. Korsgaard’s assessment, 17 therefore, is accorded no weight or special significance.” Tr. 26. Plaintiff does not 18 identify or challenge this finding. See Carmickle, 533 F.3d at 1161 n.2 (court may 19 decline to address an issue not raised with specificity in Plaintiff’s briefing). A 20 statement from a medical provider regarding Plaintiff’s ability to work is not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 considered to be a medical opinion; rather, it is an administrative finding that 2 would be dispositive of a case, and is therefore an issue reserved to the 3 Commissioner. See 20 C.F.R. §§ 404.1527(d)(1) and (3); SSR 96-5p, available at 4 1996 WL 374183 at *2 (July 2, 1996) (“treating source opinions on issues that are 5 reserved to the Commissioner are never entitled to controlling weight or special 6 significance.”). This was a germane reason to reject Mr. Korsgaard’s opinion that 7 Plaintiff was “disabled.” 8 9 CONCLUSION After review the court finds the ALJ’s decision is supported by substantial 10 evidence and free of harmful legal error. 11 ACCORDINGLY, IT IS HEREBY ORDERED: 12 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 13 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 14 15 GRANTED. The District Court Executive is hereby directed to enter this Order and 16 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE 17 the file. 18 19 20 DATED March 15, 2016. s/Fred Van Sickle Fred Van Sickle Senior United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 20
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