Crews v. Colvin

Filing 17

ORDER that the Commissioner's decision is affirmed and the Clerk is directed to enter judgment and terminate this action. Signed by Judge David G Campbell on 7/14/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Amy Lou Finnegan Crews,
Plaintiff,

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ORDER

v.

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No. CV-13-02458-PHX-DGC

Carolyn W. Colvin,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Amy Lou Finnegan Crews seeks judicial

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review of the Commissioner’s decision finding her not disabled within the meaning of the

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Social Security Act. Doc. 14. For the reasons that follow, the Court will affirm the

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Commissioner’s decision.

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I.

Background.

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Plaintiff applied for disability and supplemental security insurance benefits on

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December 22, 2010, alleging disability beginning January 1, 2009. Doc. 15 at 2. After a

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hearing on August 2, 2012 (A.R. 26-50), an administrative law judge (“ALJ”) issued an

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opinion on August 24, 2012, finding Plaintiff not disabled (A.R. 11-20). Plaintiff’s

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request for review was denied by the Appeals Council and the ALJ’s opinion became the

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Commissioner’s final decision. Doc. 15 at 2.

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II.

Legal Standard.

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The district court reviews only those issues raised by the party challenging the

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ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

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may set aside the Commissioner’s disability determination only if the determination is

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not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

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625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

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preponderance, and relevant evidence that a reasonable person might accept as adequate

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to support a conclusion considering the record as a whole. Id. In determining whether

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substantial evidence supports a decision, the court must consider the record as a whole

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and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

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As a general rule, “[w]here the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

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upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

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A.

Five-Step Sequential Evaluation.

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To determine whether a claimant is disabled for purposes of the Social Security

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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

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the burden of proof on the first four steps, but at step five the burden shifts to the

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Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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At the first step, the ALJ determines whether the claimant is engaging in

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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

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has a “severe” medically determinable physical or mental impairment. § 404.1520(a)

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(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the

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ALJ considers whether the claimant’s impairment or combination of impairments meets

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or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.

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404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id.

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If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s

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residual functional capacity and determines whether the claimant is still capable of

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performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled

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and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he

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determines whether the claimant can perform any other work based on the claimant’s

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residual functional capacity, age, education, and work experience. § 404.1520(a)(4)(v).

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If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.

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At step one, the ALJ determined that Plaintiff meets the insured status

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requirements of the Social Security Act and that she has not engaged in substantial

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gainful activity since December 22, 2010. At step two, the ALJ found that Plaintiff has

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the severe impairments of depressive disorder and methamphetamine abuse, in remission

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since June 2011. At step three, the ALJ found that the Plaintiff does not have an

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impairment or combination of impairments that meets or medically equals an impairment

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listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that

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Plaintiff has the residual functional capacity to perform the full range of work at all

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exertional levels with non-exertional limitations including: her work should be limited to

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simple, routine, and repetitive tasks due to limitations in her concentration, persistence,

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and pace; she should only have occasional interaction with the public; and her work

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should require only occasional changes in the work setting. At step five, the ALJ

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concluded that there are jobs that exist in significant numbers in the national economy

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that Plaintiff can perform.

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III.

Analysis.

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Plaintiff identifies three issues for review. First, she argues that the ALJ failed to

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give adequate weight to the opinion of her treating psychiatrist, Dr. Amato. Doc. 14 at 5.

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Next, she argues that the ALJ “misinterprets facts” to her detriment. Id. at 6. Finally, she

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argues that the ALJ erred by rejecting Plaintiff’s credibility without clear and convincing

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evidence. Id. at 7. The Court will consider each argument in turn.

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A.

Weighing of Medical Source Evidence.
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Legal Standard.

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The Ninth Circuit distinguishes between the opinions of treating physicians,

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examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995).

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physician’s opinion and more weight to the opinion of an examining physician than to

Generally, an ALJ should give greatest weight to a treating

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one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th

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Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when

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evaluating opinion evidence, including length of examining or treating relationship,

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frequency of examination, consistency with the record, and support from objective

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evidence). If it is not contradicted by another doctor’s opinion, the opinion of a treating

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or examining physician can be rejected only for “clear and convincing” reasons. Lester,

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81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

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contradicted opinion of a treating or examining physician “can only be rejected for

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specific and legitimate reasons that are supported by substantial evidence in the record.”

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Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).

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An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

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Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set

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forth [her] own interpretations and explain why they, rather than the doctors’, are

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correct.” Embrey, 849 F.2d at 421-22.

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The Commissioner is responsible for determining whether a claimant meets the

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statutory definition of disability and does not give significance to a statement by a

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medical source that the claimant is “disabled” or “unable to work.”

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§ 416.927(d).

20 C.F.R.

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2.

Dr. Amato.

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The ALJ assigned “very little weight” to Dr. Amato’s opinion. She noted that

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although Dr. Amato had a treatment relationship with Plaintiff, “the inconsistency

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between her opined limitations and the records in evidence, including her own, . . . serve

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to undermine a large portion of the reliability therein.” A.R. 18. She further noted that

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Dr. Amato’s opinion was “extreme” and appeared to be “a reflection of the sympathy

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[Dr. Amato] feels for the [Plaintiff] rather than any objective or documented evidence.”

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Id. The ALJ also stated that Dr. Amato’s opinion “fails to provide a function-by-function

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analysis” of the Plaintiff’s work-related functioning, and instead “makes conclusory

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statements regarding generalized work-related categories.” Id. Finally, the ALJ noted

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that Dr. Amato’s opinion was completed in January 2011, which was prior to Plaintiff’s

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sobriety date, making it difficult to know “what, if any, influence [Plaintiff]’s drug use

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may have had on [Dr. Amato’s] opined limitations[.]” Id.

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Plaintiff argues that “Dr. Amato’s opinion specifically addresses functional

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limitations,” is not conclusory, and “indicates the severity of individual mental capacities

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required to perform substantial gainful work.” Doc. 14 at 5. She also argues that the ALJ

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was incorrect in stating that Dr. Amato’s opinion was before her sobriety date because

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she “was abstaining from substance use while receiving treatment with Dr. Amato and at

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the time of Dr. Amato’s opinion.” Id. at 5-6.

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Earlier in her opinion, the ALJ stated that she gave great weight to the opinions of

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two state agency medical consultants. A.R. 18. These opinions (A.R. 52-62, 64-76)

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assess limitations that are less severe than those assessed by Dr. Amato (A.R. 517-18).

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Accordingly, the Court concludes that Dr. Amato’s opinion was contradicted by the

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opinions of the state agency medical consultants identified by the ALJ and that the ALJ

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was accordingly required to present specific and legitimate reasons supported by

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substantial evidence to support her decision to reject Dr. Amato’s opinion. See Lester, 81

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F.3d at 830-31. The Court concludes that the ALJ met this standard.

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The ALJ specifically identified that Plaintiff’s most recent medical records show

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that she is “doing well with no depression” and that her medications “have been well

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tolerated.”

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methamphetamine use has also stabilized her mental health to a great degree,” and cited

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examples in the record showing that Plaintiff frequently missed scheduled appointments

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while using methamphetamine (citing A.R. 320, 322, 325, 330, 348, 350, 358, 458, 575,

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599), but that “periods of sobriety have . . . been characterized by normal mental status

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examinations and lessened symptomology,” (A.R. 334-35, 352, 526, 528, 608, 614, 648-

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49). The ALJ’s assertions that Plaintiff’s symptoms have improved and are lessened

A.R. 608.

She further noted that Plaintiff’s “abstinence from

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when she is sober and compliant with medication are specific, legitimate, and supported

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by the record. Further, the ALJ noted inconsistencies between Dr. Amato’s assessed

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limitations and her subsequent treatment notes, which show Plaintiff doing well on

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medication. A.R. 614, 636, 649. This reason is also specific, legitimate, and supported

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by the record. The ALJ did not err in her consideration of Dr. Amato’s opinion.

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B.

Consideration of facts.

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Plaintiff appears to argue that the ALJ’s decision was not supported by substantial

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evidence. Doc. 14 at 6. As discussed above, the ALJ identified treatment records

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showing that Plaintiff’s symptoms improved with sobriety and regular treatment. She

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also identified the opinions of two state agency consulting physicians who concluded that

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Plaintiff was not disabled. A.R. 52-62, 64-76. As the Court will discuss below, the ALJ

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also provided clear and convincing reasons for discounting Plaintiff’s subjective

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testimony. Although Plaintiff’s brief identifies several portions of the record that she

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argues support her claim of disability, there is no indication that the ALJ did not consider

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these portions of the record. The reasons identified by the ALJ for her conclusions are

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those that a reasonable person might accept as adequate to support a conclusion

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considering the record as a whole. See Orn, 495 F.3d at 630. That Plaintiff disagrees

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with the ALJ’s assessment of the evidence, without more, does not constitute legal error.

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C.

Subjective Testimony.

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Plaintiff argues that the ALJ erred in discounting her subjective testimony without

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providing clear and convincing reasons supported by substantial evidence in the record.

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Doc. 14 at 7. The Court does not agree.

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In evaluating the credibility of a claimant’s testimony regarding subjective pain or

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other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine

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whether the claimant presented objective medical evidence of an impairment that could

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reasonably be expected to produce some degree of the pain or other symptoms alleged;

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and, if there is no evidence of malingering, (2) reject the claimant’s testimony about the

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severity of the symptoms only by giving specific, clear, and convincing reasons for the

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rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

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First, the ALJ found that Plaintiff’s medically determinable impairments could

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reasonably be expected to cause the alleged symptoms. A.R. 16. Second, the ALJ found

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Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her

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symptoms not credible to the extent they are inconsistent with the ALJ’s residual

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functional capacity assessment. A.R. 16.

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Plaintiff mainly takes issue with the ALJ’s statement that Plaintiff’s global

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assessment of functioning (“GAF”) score was not consistent with disability. Doc. 14

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at 8. But this was not the only reason offered by the ALJ for discounting Plaintiff’s

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subjective testimony. She identified several other clear and convincing reasons. She

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noted that Plaintiff’s frequent participation in group therapy “where she was observed

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socializing with other members often,” as well as treatment notes referring to “friends in

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Prescott, whom she occasionally visits,” were contrary to Plaintiff’s testimony that she

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had no friends and was uncomfortable interacting with people. A.R. 17. She noted that

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Plaintiff’s testimony about frequent hallucinations and spending most of the day in bed

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was not supported by the record. Id. She further noted that Plaintiff’s testimony that she

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had difficulty using public transportation was belied by records from Magellan showing

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that she frequently requested and received a bus pass (see, e.g., A.R. 660-63). Id. at 18.

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Finally, the ALJ noted that Plaintiff’s reports to treating physicians that she was writing a

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book about her experience, coupled with her independent living and use of public

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transportation, support “a finding that [Plaintiff]’s mental impairments are not work-

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preclusive.” Id. at 17.

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These reasons are clear, convincing, and supported by the record. The ALJ did
not commit legal error by discounting Plaintiff’s credibility.

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IT IS ORDERED:

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The Commissioner’s decision is affirmed.

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The Clerk is directed to enter judgment and terminate this action.

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Dated this 14th day of July, 2014.

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