Bright v. Colvin

Filing 20

ORDER that Plaintiff's 13 Motion is denied. The Clerk shall terminate this action. Signed by Judge David G Campbell on 12/19/2013. (LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Bright, No. CV-13-08087-PCT-DGC Plaintiff, 10 11 v. 12 ORDER Carolyn W Colvin, 13 Defendant. 14 15 Pursuant to 42 U.S.C. § 405(g), Plaintiff James Bright seeks judicial review of the 16 Commissioner’s decision finding him not disabled. Doc. 13. For the reasons that follow, 17 the Court will deny Plaintiff’s motion. 18 I. Background. 19 Plaintiff applied for disability insurance benefits and supplemental security 20 income on December 2, 2009, alleging disability beginning October 1, 2008. Doc. 11 at 21 130-143. A hearing was held on March 29, 2012,1 and the Administrative Law Judge 22 (“ALJ”) denied Plaintiff’s application on April 26, 2012. Doc. 11 at 71-78. Requests for 23 review were denied by the Social Security Administration and the Office of Disability 24 Adjudication and Review, at which time the ALJ’s opinion became the Commissioner’s 25 final decision. Doc. 13 at 3. 26 27 28 1 The hearing transcript is dated March 29, 2013. Doc. 11 at 36. It is the Commissioner’s assertion and this Court’s understanding that this was a scrivener’s error and that the hearing was held in 2012, prior to issuance of the Commissioner’s April 2012 decision. Doc. 19 at 7 n. 2. 1 II. Legal Standard. 2 Defendant’s decision to deny benefits will be vacated “only if it is not supported 3 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 4 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but 5 less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept 6 as adequate to support a conclusion.” 7 supported by substantial evidence, the Court must consider the record as a whole, 8 weighing both the evidence that supports the decision and the evidence that detracts from 9 it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). It is the ALJ and “not the 10 reviewing court [that] must resolve conflicts in the evidence, and if the evidence can 11 support either outcome, the court may not substitute its judgment for that of the ALJ.” 12 Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see also 13 Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990) (holding that if there is sufficient 14 evidence to support the Commissioner's determination, the Court cannot substitute its 15 own determination). Id. In determining whether the decision is 16 Determining whether a claimant is disabled involves a sequential five-step 17 evaluation. The claimant must show (1) he is not currently engaged in substantial gainful 18 employment, (2) he has a severe physical or mental impairment, and (3) the impairment 19 meets or equals a listed impairment or (4) his residual functional capacity (“RFC”) 20 precludes him from performing his past work. 21 determines that a claimant is or is not disabled, the analysis ends; otherwise it proceeds to 22 step five. If the claimant establishes his burden through step four, the Commissioner 23 bears the burden at step five of showing that the claimant has the RFC to perform other 24 work that exists in substantial numbers in the national economy. See 20 C.F.R. § 404 25 .1520(a)(4)(i)-(v). 26 III. If at any step the Commissioner Analysis. 27 The ALJ found that Plaintiff had not engaged in substantial gainful employment 28 since October 1, 2008, and that he has severe impairments of obesity and low back pain -2- 1 and non-severe mental impairments of paranoid schizophrenia and a history of alcohol 2 abuse. Doc. 11 at 73. The ALJ found, however, that these impairments do not equal the 3 severity of a listed impairment in 20 C.F.R. Part 404 and that his residual functional 4 capacity (“RFC”) does not preclude him from performing his past work as a waiter. Id. at 5 74-75. In so concluding, the ALJ found that Plaintiff was not disabled. 6 Plaintiff contends that the ALJ’s decision is incorrect on two grounds, both related 7 to Plaintiff’s schizophrenia. First, Plaintiff argues that the ALJ misinterpreted evidence 8 to his detriment. Doc. 13 at 2. Specifically, he argues the ALJ’s decision to accord 9 substantial weight to the opinions of Dr. Javine and the state medical consultant, Dr. 10 Pereyra, was error. Id. at 4-6. Second, he argues that the ALJ rejected treating source 11 opinion contrary to law and regulation. Id. at 2. Specifically, he asserts that the ALJ 12 should not have discounted the opinion of nurse practitioner Williams. 13 throughout both claims of error, Plaintiff argues that his Global Assessment of 14 Functioning (“GAF”) scores and assessments do not support the ALJ’s findings. Scattered 15 A. Opinions of Drs. Javine and Pereyra. 16 In evaluating medical opinions, an ALJ is directed to give greater weight to 17 treating sources. 20 C.F.R. § 404.1527(c)(2). In this case, none of the physicians who 18 offered medical opinions were treating physicians. Doc. 11 at 10. The ALJ nonetheless 19 was tasked with weighing all medical opinions offered. In determining what weight to 20 give to such opinions, the ALJ should give more weight to opinions from examining or 21 treating doctors, and to medical opinions that are supportable, consistent with the record 22 as a whole, or from a specialist in her area of specialty. 20 C.F.R. § 404.1527(c). The 23 ALJ may also consider other facts including the source’s understanding of the disability 24 program and the extent to which she is familiar with other factors of the case. Id. 25 The ALJ gave “substantial weight” to the medical opinions of Dr. Javine, who 26 examined the Plaintiff in 2010 and found that her paranoid schizophrenia would not 27 “impose any limitations for 12 months.” Doc. 11 at 281.2 Plaintiff asserts this was error, 28 2 Dr. Javine did not, as Plaintiff asserts, find that “there would be no impairment -3- 1 in part because his GAF scores were relatively high during this period and an assessment 2 during that time, therefore, was misrepresentative. Doc. 13 at 5. 3 Even if it is true that Dr. Javine’s examination occurred during a relatively stable 4 time for Plaintiff, the Court cannot agree with Plaintiff that the ALJ “based his entire 5 decision on the assessment of the one-time examiner.” Id. Rather, the ALJ accorded Dr. 6 Javine’s findings substantial weight in part because “the overall record supports these 7 findings.” Doc. 11 at 77. In addition to Dr. Javine’s findings, the ALJ considered the 8 symptoms noted in Plaintiff’s medical records, including treatment notes from Mojave 9 Mental Health where Plaintiff received treatment, the claimant’s testimony and 10 assertions, statements from Plaintiff’s sister, his GAF scores over time, the opinion of 11 Nurse Practitioner Williams, and the findings of a state agency medical consultant. Id. at 12 76-77. Although the ALJ gave different weight to evidence from different sources, the 13 Court cannot conclude that he based his entire decision on Dr. Javine’s 2010 evaluation. 14 Nevertheless, given that Dr. Javine’s evaluation was the only evaluation offered by a 15 physician who had physically examined Plaintiff, it was appropriate for the ALJ to accord 16 Dr. Javine’s opinion substantial weight. 17 The ALJ also considered the opinion of the state agency medical consultant, Dr. 18 Pereyra. The ALJ found this opinion to be “supported by the great weight of the 19 evidence in the record,” and therefore gave it substantial weight. Doc. 11 at 77. This 20 also was not error. Because the state agency medical consultant was not an examining or 21 treating source, it was appropriate for the ALJ to accord the opinion substantial deference 22 only if it aligned with the weight of the other evidence in the record. The ALJ found that 23 it did. Dr. Pereyra’s opinion comported with that of Dr. Javine, as well as with his 24 medical records that the ALJ found show that “absent alcohol abuse, the claimant is 25 mentally stable and functions well on his medication regime.” Doc. 11 at 77. Dr. 26 Pereyra’s opinion also aligned with the opinion of Dr. Zuess, another state agency 27 28 lasting for the requisite 12 consecutive month.” Doc. 13 at 8. Rather, he opined that the impairment would not impose any limitation lasting that long. -4- 1 physician, who found that the Plaintiff’s functional limitations were mild or non-existent. 2 Doc. 11 at 293. The ALJ afforded appropriate weight to Dr. Pereyra’s opinion. 3 B. Opinion of Nurse Practitioner Williams. 4 Plaintiff alleges that the ALJ erred in giving little weight to the opinion of Nurse 5 Practitioner Sandra Williams because she was a treating source and her opinion should 6 therefore have been given substantial weight under the regulations. Doc. 13 at 6. The 7 court cannot agree. 8 Under the regulations, “[m]edical opinions are statements from physicians and 9 psychologists or other acceptable medical sources that reflect judgments about the nature 10 and severity of your impairment(s), including your symptoms, diagnosis and prognosis, 11 what you can still do despite impairment(s), and your physical or mental restrictions.” 20 12 C.F.R. § 404.1527(a)(2) (emphasis added). Social Security guidelines clarify that “only 13 acceptable medical sources can provide medical opinions,” and “only acceptable medical 14 sources can be considered treating sources.” SSR 06-03p, citing 20 C.F.R. § 1527(a(2) 15 and 416.927(a)(2). Nurse Practitioners “are not acceptable medical sources.” SSR 06- 16 03p. The ALJ did not err in so finding. 17 Williams’ opinion is still opinion evidence, as it is “based on special knowledge of 18 the individual and may provide insight into the severity of the impairment(s) and how it 19 affects the individual’s ability to function.” SSR 06-03p. But it was reasonable for the 20 ALJ to find that it was not entitled to the substantial weight that an acceptable medical 21 source opinion would receive, and to accord it little weight. Doc. 11 at 77. This is 22 particularly true given the other reservations the ALJ expressed about Williams’ opinion, 23 including that it was not supported by the overall record (particularly the progress notes 24 from Ms. Williams’ employer, Mojave Mental Health),3 as well as the fact that it did not 25 26 3 27 28 Plaintiff asserts that Dr. Zuess’ evaluation corroborates Ms. Williams’ opinion. The Court does not agree. Dr. Zuess found that Plaintiff “has a good ability to remember and understand simple and detailed instructions as well as work place procedures” (Doc. 11 at 299), that he has a desire to work (id. at 295), and generally that his functional limitations were mild to non-existent (id. at 293). -5- 1 address the impact of Plaintiff’s alcohol abuse and noncompliance with medications.4 Id. 2 The ALJ gave appropriate weight to Ms. Williams’ opinion. 3 4 5 IT IS ORDERED that Plaintiff’s motion (Doc. 13) is denied. The Clerk shall terminate this action. Dated this 19th day of December, 2013. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Dr. Javine’s opinion, which the court accorded substantial weight, did take into account Plaintiff’s problems with alcohol. Doc. 11 at 275-79. -6-

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