Benthagen v. Commissioner of Social Security, No. 2:2015cv00269 - Document 19 (E.D. Wash. 2017)
Court Description: ORDER AFFIRMING DECISION, denying 14 Motion for Summary Judgment; and granting 16 Motion for Summary Judgment. Case is CLOSED. Signed by Senior Judge Fred Van Sickle. (LR, Case Administrator)
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Benthagen v. Commissioner of Social Security 1 Doc. 19 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 3 4 ROXANN L. BENTHAGEN, Plaintiff, 5 v. 6 7 2:15-CV-269-FVS ORDER AFFIRMING DECISION NANCY A. BERRYHILL, Acting Commissioner of Social Security, 8 Defendant. 9 10 11 THIS MATTER comes before the Court based upon cross motions for 12 summary judgment. At issue is the validity of a decision denying Roxann L. 13 Benthagen’s claim for supplemental security income. Ms. Benthagen is 14 15 16 represented by Dana C. Madsen; the Acting Commissioner by L. Jamala Edwards. PROCEDURAL HISTORY 17 18 19 20 Roxann Lee Benthagen was born on January 25, 1969. (TR 78.) On February 8, 2010, she applied for Title XVI supplemental security income. 42 U.S.C. §§ 1381-1383f. The Social Security Administration denied her initial 21 22 23 24 application and her request for reconsideration, whereupon she exercised her right to a hearing before an administrative law judge. On March 24, 2011, the ALJ found Ms. Benthagen suffers from a number of severe impairments (TR 19) 25 26 and she is unable to perform her past relevant work. (TR 27.) However, he also 27 Order ~ 1 Dockets.Justia.com 1 2 3 found she is able to perform jobs that exist in significant numbers in the national economy. Id. Thus, he ruled she is not disabled. (TR 28.) Ms. Benthagen asked the Appeals Council to review the ALJ’s unfavorable 4 5 6 7 decision, and when the Appeals Council declined to do so, she challenged the decision in United States District Court. Benthagen v. Colvin, CV-12-420-JPH. The attorney for the Social Security Administration declined to defend the ALJ’s 8 9 unfavorable ruling. Instead, the SSA’s attorney joined Ms. Benthagen in asking 10 Magistrate Judge James P. Hutton to reverse the ALJ’s unfavorable decision and 11 12 13 14 remand the matter for further proceedings. The parties’ stipulated request for remand resulted in a second administrative hearing. The second hearing began on November 19, 2014. Both a consulting 15 16 17 18 psychologist and Ms. Benthagen testified. (TR 422-30, 430-46.) At the conclusion of their testimony, the ALJ continued the hearing in order to obtain testimony from a vocational expert. (TR 446-47.) The hearing resumed on 19 20 February 10, 2015. Ms. Benthagen supplemented her prior testimony, and a 21 vocational expert testified. (TR 452-56, 456-62.) On March 20, 2015, the ALJ 22 issued a written analysis of her allegations. At Step Two in the SSA’s sequential 23 24 evaluation process, 20 C.F.R. § 416.920(a)(4), the ALJ found she suffers from a 25 number of severe impairments, viz., major depressive disorder, post-traumatic 26 27 stress disorder, generalized anxiety disorder, personality disorder with Order ~ 2 1 2 3 dependent features, and a history of alcohol abuse. (TR 398.) As before, he found she is unable to perform any past relevant work. (TR 409.) The issue, then, is whether she is able to perform jobs that exist in significant numbers in 4 5 6 7 the national economy. (TR 410.) As before, the ALJ decided such jobs exist and she “is capable of making a successful adjustment to other work.” (TR 411.) Ms. Benthagen disagrees with the ALJ’s determinations. Consequently, she 8 9 asked the Appeals Council to review the ALJ’s new ruling. On August 18, 2015, 10 the Council declined to do so. With that, the ALJ’s 2015 ruling became the final 11 12 13 14 decision of the Social Security Administration. 20 C.F.R. § 416.1484(b)(2). Ms. Benthagen commenced this action on October 1, 2015. STANDARD OF REVIEW 15 16 17 18 A district court may enter “judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). However, review is limited. “The 19 20 findings of the Commissioner of Social Security as to any fact, if supported by 21 substantial evidence, shall be conclusive[.]” Id. As a result, the Commissioner’s 22 decision “will be disturbed only if it is not supported by substantial evidence or 23 24 it is based on legal error.” Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986). 25 “Substantial evidence means more than a mere scintilla, . . . but less than a 26 27 Order ~ 3 1 2 3 preponderance.” Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (internal punctuation and citations omitted). BACKGROUND 4 5 6 7 Over the years, Ms. Benthagen has been examined by mental health professionals on a number of occasions. All of them agree her ability to perform normal, day-to-day work is impaired by her psychological problems: Amy 8 9 10 Robinson, M.S. (October 23, 2007) (“[Ms. Benthagen] will have a difficult time interacting with other people”; “[s]he may have . . . difficulties with complex 11 12 instructions” (TR 276-79; 280-85)). Abigail Osborne-Elmer, M.S. (September 17, 13 2008) (“Ms. Benthagen’s severe anxiety and depression will interfere with her 14 ability to initiate and maintain regular employment” (TR 292-95)). W. Scott 15 16 17 18 Mabee, Ph.D. (hereinafter Dr. Mabee) (November 5, 2009) (“[Ms. Benthagen] is able to perform simple, repetitive tasks”; “she can sustain concentration for short periods of time” (TR 194-99)). John Arnold, Ph.D. (hereinafter Dr. Arnold) 19 20 (October 5, 2010) (Ms. Benthagen “becomes highly anxious when required to 21 leave her home. This will interfere with her ability to arrive for work and 22 perform on a consistent basis.” (TR 307-10)). Dr. Arnold (September 2, 2011) 23 24 (Ms. Benthagen’s “symptoms have shown little change over the course of her 25 evaluation at this office” (TR 570-74)). Dr. Mabee (July 31, 2012) (Ms. 26 27 Benthagen experiences marked limitations with respect to her ability to Order ~ 4 1 2 3 “[c]ommunicate and perform effectively in a work setting,” to “[c]omplete a normal work day,” and to “[m]aintain appropriate behavior in a work setting” (TR 578-84)). Kayleen Islam-Zwart, Ph.D. (hereinafter Dr. Islam-Zwart) 4 5 6 7 (October 13, 2014) (“[Ms. Benthagen] is unable to work at this time and her prognosis for the future is guarded” (TR 640-47)). The ALJ considered the psychological assessments that are listed above, 8 9 10 but he decided they are unduly pessimistic. The ALJ provided a number of reasons for discounting the above-listed assessments. Broadly speaking, his 11 12 criticisms can be grouped into five categories. In his opinion, (1) the 13 assessments are not supported by objective data, but instead, rely heavily upon 14 Ms. Benthagen’s subjective complaints, (2) by and large, the results of her 15 16 17 18 mental status exams were unremarkable, (3) some of the assessments were based upon a single examination, (4) Ms. Benthagen advised health care providers her medications effectively controlled her symptoms, and (5) two 19 20 consulting experts think she is much more capable than the disputed 21 psychological assessments indicate. 22 Ms. Benthagen is sharply critical of the ALJ’s analysis of the psychological 23 24 assessments. Take, for example, the ALJ’s assertion that the assessments are not 25 supported by adequate, objective data. Ms. Benthagen insists the record is 26 27 otherwise. She notes Drs. Mabee and Arnold examined her on two occasions Order ~ 5 1 2 3 each. And while, yes, they asked questions in order to assess her condition, they did not rely exclusively upon her answers. They also administered psychological tests. So, too, Dr. Islam-Zwart. Admittedly, the latter performed only one 4 5 6 7 examination of Ms. Benthagen. Nevertheless, her conclusion is consistent with those of Dr. Mabee and Arnold. As a result, this is a case in which three psychologists, who performed examinations over a period of five years, agree 8 9 10 Ms. Benthagen’s ability to work is substantially impaired. Ms. Benthagen acknowledges the severity of her symptoms can be reduced 11 12 by medication. However, as she correctly notes, this is a circumstance the 13 psychologists considered in completing their respective assessments. Dr. Mabee 14 (“Appropriate medication management can alleviate the severity of her anxiety 15 16 17 18 and depression.” (TR 198)); Dr. Islam-Zwart (“She describes some benefit from the use of medication, but should continue to work with her medical provider to determine an appropriate medication regimen.” (TR 647)). Despite the fact Ms. 19 20 Benthagen receives relief from the medications she takes, the examining 21 psychologists agree her ability to work is substantially impaired. 22 If the examining psychologists are correct, one might assume Ms. 23 24 Benthagen’s situation is hopeless; that she never will be able to return to work. 25 But that is not necessarily the case. Several mental health professionals think 26 27 Ms. Benthagen would profit from therapy and have advised her to participate. Order ~ 6 1 2 3 Ms. Robinson (“mental health intervention [is] likely to restore or substantially improve [her] ability to work” (TR 279)); Dr. Mabee (“counseling can help her develop better coping and social skills[;] [a]ppropriate medication management 4 5 6 7 can alleviate the severity of her anxiety and depression” (TR 198, 581)); Dr. Arnold (counseling will help “[a]ddress long history of [domestic violence], anxiety, [and] increase [her] ability to function outside her home” (TR 310, 573). 8 9 Ms. Benthagen has not accepted the advice. The record suggests she met with a 10 counselor on two or three occasions, but since the counselor was a male, she did 11 12 not relate well to him. Bill Martin, R.N. (April 1, 2010) (Ms. Benthagen 13 “[b]rought in [an] assignment she was asked to do 2 years ago”) (TR 266); 14 Belinda Escanio, M.D., (hereinafter Dr. Escanio) (November 15, 2010) (Ms. 15 16 17 18 Benthagen “had seen Bill on 4/10, but wanted to be able to counsel with a woman because of her history of being raped and abused by her ex-husband”) (TR 356, 374); Jeff M. Schilt, ARNP (“[Ms. Benthagen] reports counseling has not 19 20 worked in the past”) (TR 673). Obviously, there are many female counselors. 21 Thus, if Ms. Benthagen wanted to participate in counseling, there are options 22 available to her. However, it does not appear she is interested in participating. 23 24 Dr. Escanio (February 23, 2012) (Ms. Benthagen “is not going to counseling[;] 25 does not feel she needs it at this time” (TR 616)); Dr. Escanio (June 12, 2012) 26 27 Order ~ 7 1 2 3 (same) (TR 619); Dr. Escanio (January 17, 2013) (same) (TR 622); Dr. IslamZwart (October 13, 2014) (“She denies any interest in therapy.” (TR 647)). At the administrative hearing on November 19, 2014, Ms. Benthagen 4 5 6 7 testified she has “anxiety and panic attacks.” (TR 439.) An anxiety attack can be triggered by something as seemingly inconsequential as a visitor knocking on the front door or a dog barking in the neighbor’s yard. (TR 440.) The ALJ did 8 9 10 not fully credit Ms. Benthagen’s description of her symptoms. Two circumstances figured prominently in his analysis: One was Ms. Benthagen’s 11 12 repeated assertion she does not need counseling. (Several instances are cited 13 above.) Another was her repeated acknowledgement the medication she is 14 taking controls her symptoms of depression. Dr. Escanio (August 4, 2011) 15 16 17 18 (“Citalpram controls depression.” (TR 383)); Dr. Escanio (February 23, 2012) (“patient has been stable taking Celexa daily” (TR 616)); Dr. Escanio (June 12, 2010) (same) (TR 616); Dr. Escanio (January 17, 2013) (same) (TR 622); ARNP 19 20 Schlit (November 13, 2014) (“[Patient] uses donazepam only when she has a 21 flare of anxiety -- uses more socially. Some depression.”) (TR 673.) 22 ANALYSIS 23 24 Ms. Benthagen 25 Ms. Benthagen alleges the ALJ failed to provide clear and convincing 26 27 reasons for discounting her testimony. Smolen v. Chater, 80 F.3d 1273, 1283 Order ~ 8 1 2 3 (9th Cir.1996) (absent evidence of malingering, an “ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so”). However, it is 4 5 6 7 undisputed Ms. Benthagen repeated told a treating physician, Dr. Escanio, her depression is under control and she does not need counseling. Ms. Benthagen’s statements to Dr. Escanio are consistent with those she made to Dr. Islam-Zwart. 8 9 10 Given Ms. Benthagen’s lack of interest in counseling, and given the relief that is provided by the medications she is taking, the ALJ had a clear and convincing 11 12 basis for declining to credit her description of her symptoms. 13 B. Psychological Assessments 14 As explained above, Ms. Benthagen was examined by psychologists on a 15 16 17 18 number of occasions. The ALJ considered their assessments at Step Four in the sequential evaluation process, 20 C.F.R. § 416.920(a)(4), as he determined her Residual Functional Capacity (“RFC”). The latter is, of course, “the most [she] 19 20 can still do despite [her] limitations.” 20 C.F.R. § 416.945(a). Since her 21 limitations are a product of severe mental impairments, the opinions of 22 psychologists are potentially very important. That is especially true where, as 23 24 here, the opinions are based upon actual examinations. Reddick v. Chater, 157 25 F.3d 715, 725 (9th Cir.1998) (an ALJ’s decision to discount the opinion of an 26 27 Order ~ 9 1 2 3 examining expert may be upheld only if the ALJ provided “specific and legitimate reasons” that are “supported by substantial evidence in the record”). The first mental-health assessment of Ms. Benthagen occurred on October 4 5 6 7 23, 2007. The person who completed the assessment, Amy Robinson, recommended therapy. She indicated “mental health intervention [is] likely to substantially improve [Ms. Benthagen’s] ability to work for pay in a regular and 8 9 10 predictable manner[.]” (TR 279.) Dr. Mabee endorsed Ms. Robinson’s recommendation. (TR 285.) Indeed, each time he and Dr. Arnold examined Ms. 11 12 Benthagen, they recommended therapy. Dr. Mabee (November 5, 2009); Dr. 13 Arnold (October 10, 2010); Dr. Arnold (September 2, 2011); Dr. Mabee (July 31, 14 2012). However, she never made a serious effort to obtain counseling. Over and 15 16 17 18 over, she told Dr. Escanio, her treating physician, she did not need it. (TR 616, 619, 622.) Nor was Dr. Escanio the only person to whom she made such a comment. She expressed much the same sentiment to Dr. Islam-Zwart on 19 20 October 13, 2014. (TR 647.) At that point, over seven years had elapsed since 21 Ms. Robinson first recommended counseling. One has to wonder what would 22 have happened had Ms. Benthagen made a good-faith effort to participate in 23 24 counseling during that seven-year period. While therapy would not have 25 eliminated her psychological problems, it almost certainly would have given her 26 27 skills that would better enable her to cope with them. Indeed, therapy well may Order ~ 10 1 2 3 have vindicated Ms. Robinson’s prediction that “mental health intervention [is] likely to substantially improve [Ms. Benthagen’s] ability to work for pay in a regular and predictable manner[.]” (TR 279.) 4 5 6 7 Ms. Benthagen wants the benefit of the pessimistic assessments that Drs. Mabee, Arnold, and Islam-Zwart have produced. However, she consistently has refused to follow their recommendation to participate in counseling. The ALJ 8 9 10 reasonably could have found her decision to reject their recommendation exacerbated the impact of her mental impairments and, thus, the assessments of 11 12 Drs. Mabee, Arnold, and Islam-Zwart are unduly pessimistic. That this may be 13 the case is supported by the testimony of consulting psychologists Margaret 14 Moore, Ph.D., and Donna Veraldi, Ph.D. Both experts think Ms. Benthagen has 15 16 17 18 much more potential than either she or the examining psychologists have indicated. In view of the testimony of Drs. Moore and Veraldi, and in view of Ms. Benthagen’s stubborn refusal to participate in therapy, the ALJ did not err in 19 20 21 22 discounting the assessments of Drs. Mabee, Arnold, and Islam-Zwart. RULING A reviewing court should not substitute its assessment of the evidence for 23 24 the ALJ’s. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). To the contrary, 25 a reviewing court must defer to an ALJ’s assessment as long as it is supported by 26 27 substantial evidence. 42 U.S.C. § 405(g). Here, the ALJ’s written opinion Order ~ 11 1 2 3 indicates he engaged in a careful review of the evidence. He provided clear and convincing reasons for discounting both Ms. Benthagen’s description of her symptoms and the pessimistic assessments of assessments of Drs. Mabee, 4 5 6 7 Arnold, and Islam-Zwart. Since the ALJ’s analysis and conclusions are supported by substantial evidence, the Court will affirm his ruling. IT IS HEREBY ORDERED: 8 9 10 1. The defendant’s motion for summary judgment (ECF No. 16) is granted and the plaintiff’s (ECF No. 14) is denied. 11 12 13 14 3. The ALJ’s decision of March 20, 2015 (TR 411) is affirmed. IT IS SO ORDERED. The District Court Executive is directed to file this Order, enter judgment accordingly, furnish copies to counsel, and close the case. 15 16 DATED this 2nd day of May, 2017. 17 18 s/Fred Van Sickle FRED VAN SICKLE Senior United States District Judge 19 20 21 22 23 24 25 26 27 Order ~ 12
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