Parker v. Colvin

Filing 33

ORDER, Plaintiff's case is DISMISSED and the Clerk of Court shall enter judgment. Signed by Magistrate Judge D Thomas Ferraro on 5/27/15. (KAH).

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Elizabeth Parker,

No. CV-14-2135-TUC-DTF
Plaintiff,

10
11

v.

12

ORDER

Carolyn W. Colvin,

13

Defendant.

14
15

Plaintiff Elizabeth Parker filed this action pursuant to 42 U.S.C. § 405(g) seeking

16

judicial review of a final decision by the Commissioner of Social Security

17

(Commissioner). (Doc. 1.) Before the Court are Parker’s Opening Brief and Defendant’s

18

Responsive Brief. (Docs. 31, 32.) The parties have consented to Magistrate Judge

19

jurisdiction. (Doc. 13.) Based on the pleadings and the administrative record submitted to

20

the Court, the Commissioner’s decision is affirmed.

21

PROCEDURAL HISTORY

22

Parker filed an application for Disability Insurance Benefits (DIB) and

23

Supplemental Security Income (SSI) on September 9, 2011. (Administrative Record (AR)

24

203, 210.) She alleged disability from August 12, 2011. (AR 203, 210.) Parker’s

25

application was denied upon initial review (AR 93-94) and on reconsideration (AR 121-

26

22). A hearing was held on January 25, 2013 (AR 28-58), after which ALJ Laura Speck

27

Havens found, at Step Five, that Parker was not disabled (AR 13-23). The Appeals

28

Council denied Parker’s request to review the ALJ’s decision. (AR 1.)

FACTUAL HISTORY

1
2

Parker was born on December 11, 1960, making her 50 years of age at the onset

3

date of her alleged disability. (AR 203.) Parker last worked in 2008. She had been

4

employed as a respiratory therapist for approximately twenty years, as a CPS case aide

5

and at call centers. (AR 235, 246.) On August 12, 2011, Parker intentionally overdosed

6

on medication and was admitted to the hospital. (AR 298.)

7

The ALJ found Parker had severe impairments, depression, bipolar disorder, and

8

schizophrenia. (AR 16.) She found that Parker did not meet a listed impairment. (AR 17.)

9

The ALJ concluded that Parker had the Residual Functional Capacity (RFC) to do work

10

at all exertional levels, but limited her to simple job instructions and occasional

11

interaction with co-workers, the public, and supervisors. (AR 19.) Parker could not

12

perform her past relevant work. (AR 21.) However, the ALJ determined (based on

13

testimony from a vocational expert) that Parker could perform other work available in the

14

national economy. (AR 22-23.)

15

STANDARD OF REVIEW

16

The Commissioner employs a five-step sequential process to evaluate SSI and

17

DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S.

18

458, 460-462 (1983). To establish disability the claimant bears the burden of showing she

19

(1) is not working; (2) has a severe physical or mental impairment; (3) the impairment

20

meets or equals the requirements of a listed impairment; and (4) claimant’s RFC

21

precludes her from performing her past work. 20 C.F.R. §§ 404.1520(a)(4),

22

416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the

23

claimant has the RFC to perform other work that exists in substantial numbers in the

24

national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the

25

Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point

26

in the five-step process, she does not proceed to the next step. 20 C.F.R.

27

§§ 404.1520(a)(4), 416.920(a)(4).

28

-2-

1

“The ALJ is responsible for determining credibility, resolving conflicts in medical

2

testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

3

Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings

4

of the Commissioner are meant to be conclusive if supported by substantial evidence. 42

5

U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a

6

preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.

7

Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to

8

deny benefits only “when the ALJ’s findings are based on legal error or are not supported

9

by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033,

10

1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must

11

resolve conflicts in the evidence, and if the evidence can support either outcome, the

12

court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019

13

(quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc.

14

Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s decision,

15

however, “cannot be affirmed simply by isolating a specific quantum of supporting

16

evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v.

17

Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence

18

that supports as well as detracts from the Commissioner’s conclusion. Day v.

19

Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).

20

DISCUSSION

21

Parker argues the ALJ committed five errors: (1) the ALJ erred at Step Three in

22

finding that Parker did not meet a listed impairment; (2) the ALJ rejected Parker’s

23

credibility without substantial supporting evidence; (3) the ALJ improperly rejected the

24

opinion of Parker’s physician’s assistant; (4) the ALJ did not consider all of the medical

25

evidence and Parker’s symptoms in making her RFC determination; and (5) the ALJ

26

erred at Step Five by not considering the transferability of job skills and not asking the

27

vocational expert a comprehensive hypothetical.

28

-3-

1

Step Three

2

Parker argues the ALJ erred in finding that she did not meet listing 12.03,

3

paragraph C(3). “Conditions contained in the ‘Listing of Impairments’ are considered so

4

severe that they are irrebuttably presumed disabling, without any specific finding as to

5

the claimant’s ability to perform his past relevant work or any other jobs.” Lester v.

6

Chater, 81 F.3d 821, 828 (9th Cir. 1995), as amended (Apr. 9, 1996) (citing 20 C.F.R.

7

§ 404.1520(d)).

8

The claimant bears the burden to establish that she meets a listing. Burch v.

9

Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). At Step Three, the ALJ is required to

10

evaluate the relevant evidence and make sufficient findings for review. See Lewis v.

11

Apfel, 236 F.3d 503, 512 (9th Cir. 2001); Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.

12

1990); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).

13
14
15
16
17
18
19
20
21
22
23

The impairment listed at 12.03 is captioned as “Schizophrenic, Paranoid and Other
Psychotic Disorders” and provides:
Characterized by the onset of psychotic features with deterioration from a
previous level of functioning.
The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements in C
are satisfied.
....
C. Medically documented history of a chronic schizophrenic, paranoid, or
other psychotic disorder of at least 2 years’ duration that has caused more
than a minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial
support, and one of the following
....

24

3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.

25

As to paragraph C(3), the ALJ found “there is no evidence to suggest that the claimant

26

needs to live in a highly structured living arrangement. The claimant has demonstrated

27

the ability to care for personal needs, interact socially and obtain and sustain

28

employment.” (AR 18-19.)

-4-

1

First, Parker argues the ALJ failed to cite any record evidence to support her

2

evaluation of Parker’s functional abilities. Although the ALJ did not cite record evidence

3

in her discussion of paragraph C, immediately preceding that analysis she cited to the

4

record in evaluating the paragraph B criteria. (AR 18-19.) Specifically, the ALJ discussed

5

Parker’s limitations in activities of daily living and social functioning with citations to the

6

record. (AR 18.) Thus, there was no error in the ALJ’s citations. Parker also argues that

7

the level of functioning found by the ALJ is counter to the testimony from her sister and

8

her medical records that establish her schizophrenia and her need for social and

9

therapeutic support. Parker provided no record citations for this argument and failed to

10

establish that the ALJ’s finding was not supported by substantial evidence.

11

Second, Parker argues that her father’s home qualifies as a “highly supportive

12

living environment,” and that the ALJ erred by not considering that. To qualify, the

13

environment must be “highly structured and supportive.” 20 C.F.R. pt. 404, subpt. P, app.

14

1, § 12.00F. Examples of such a placement are a “hospital, halfway house, [or] board and

15

care facility.” Id. The substance of Parker’s argument is that her stability depended upon

16

her family support. Although a home may qualify, Parker provided no record citations to

17

support her assertion that her father’s home was equivalent to the regulatory examples

18

described above. She has not presented substantive evidence of structure and support tied

19

to her living environment. Accordingly, Parker failed to establish an error at Step Three.

20

Credibility

21

Parker challenges the ALJ’s finding on her credibility. The ALJ discounted the

22

following testimony that Parker gave at the hearing:

23

On a good night, I’ll sleep eight hours. . . . [On a bad night,] None.

24

....

25
26
27
28

I had this thought that someone told me that I was dead and not to
talk to anybody. So I didn’t talk to my daughter – . . . And, every time she
called, I didn’t answer the phone. . . . I mean, I don’t know how you can
work like that if that’s happening. Plus, my sleep issues – . . . I mean, if I
don’t get a good night’s sleep, I can’t function during the day.
....

-5-

1
2
3
4
5

I thought that my brain was being used by the – by the government
satellites for some – something going on in Syria. . . . My biggest delusion
was that the government had a weapon made out of the – like, a sun
weapon. . . . And it was going to kill me.
[In telling reality from non-reality,] [s]ome days are better than others, you
know.
(AR 38, 40-41, 42-43, 44.)

6

The ALJ found that Parker’s testimony was not fully credible. Specifically, she

7

found that Parker experienced improvement with medication management and

8

compliance; she was bored from not working and believed she was capable of working,

9

but chose to discontinue employment services; her delusional thinking does not

10

significantly affect her ability to perform activities of daily living or interact socially; and

11

her limitations were not fully consistent with the objective medical evidence. (AR 20.)

12

In general, “questions of credibility and resolution of conflicts in the testimony are

13

functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)

14

(quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). When an ALJ finds

15

that a claimant’s subjective symptom testimony is not credible, she must set forth

16

specific, clear and convincing reasons for discounting it to ensure a reviewing court that

17

the determination is not arbitrary. Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir.

18

1995); Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); SSR 96-7p. “If the ALJ’s

19

credibility finding is supported by substantial evidence in the record, we may not engage

20

in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

21

First, the ALJ found Parker not credible because she experienced improvement

22

with medication management and compliance. There is substantial evidence in the record

23

to support this finding. In August 2011 (the alleged onset date), Parker intentionally

24

overdosed on medication and was admitted to the hospital. (AR 298.) She reported

25

paranoia and delusions, and was rated with a GAF of 30. 1 (Id.) She was given a GAF of

26
1

27
28

The GAF is a 100-point scale that provides a “rough estimate of an
individual's psychological, social, and occupational functioning used to reflect the
individual's need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th
Cir.1998); see American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders (“DSM IV”), at 32, 34 (4th ed. 2000). According to the DSM–IV, a GAF score
-6-

1

50 at the time of her release. (AR 299.) Soon thereafter she began treatment at COPE.

2

Parker’s treating nurse practitioner, NP Danker rated her GAF at 55 initially, then at 60

3

until January 2012. (AR 325, 349, 351, 352.) In February, NP Danker recorded that

4

Parker continued to hear a slight static sound but reported no other hallucinations or

5

delusions, and her GAF was a 65. (AR 347.) Examining psychologist Glenn Marks rated

6

Parker’s GAF at 55-60 in March 2012, and concluded she could do work that was not

7

complex or interactive. (AR 392-96.) In April 2012, COPE completed an assessment

8

finding that Parker had made significant improvement, and Parker stated that she was

9

doing much better than at the time of her last assessment and was serious about returning

10

to work. (AR 383.) NP Danker continued to rate Parker’s GAF at 65 until September

11

2012, and Parker did not report any psychotic symptoms during this period. (AR 534,

12

536, 538, 541, 542, 544, 580, 582.) In October and November, NP Danker recorded a

13

GAF of 60 and, in November 2012, Parker began to report psychotic symptoms. (AR

14

584, 586.) In 2013, Parker switched from COPE to CODAC. She was still experiencing

15

delusions and treating physician’s assistant rated her GAF at a 51. (AR 647.) As noted by

16

the ALJ, Parker continued during this time to attend Camp Wellness and Art

17

Awakenings. (AR 649.)

18

Parker relies upon the Garrison case, in which the court concluded the ALJ

19

“improperly singled out a few periods of temporary well-being from a sustained period of

20

impairment and relied on those instances to discredit Garrison.” Garrison v. Colvin, 759

21

F.3d 995, 1018 (9th Cir. 2014). Parker fails to provide any record citations to support this

22

contention (Doc. 31 at 11-12), which greatly undermines her argument and is in violation

23

of the Local Rules. See LRCiv 16.1(a)(4). Parker’s factual record is distinct from the

24

evidence in Garrison. Here, Parker improved and stabilized with treatment from the

25

alleged onset date of August 2011, through October 2012. After that time, she did have a

26

recurrence of psychotic symptoms that are evident in the November 2012 and February

27
28

between 41 and 50 describes “serious symptoms” or “any serious impairment in social,
occupational, or school functioning.” A GAF score between 51 to 60 describes “moderate
symptoms” or any moderate difficulty in social, occupational, or school functioning.”
-7-

1

2013 records (Parker switched mental health service providers and there is a record gap

2

between these two dates, during which Parker’s symptoms and treatment are unknown).

3

Although Parker’s improvement was not without set-backs, there is substantial evidence

4

to support the ALJ’s finding that she improved with treatment.

5

Second, the ALJ relied upon Parker’s pursuit, and discontinuation, of employment

6

training finding it was inconsistent with disabling limitations. In mid-2012, Parker

7

expressed boredom without work and entered an employment training program, DKA. In

8

July 2012, COPE documented that Parker was doing well at DKA. (AR 580.) In

9

September, Parker told her case manager that she was feeling better (after suffering

10

lithium toxicity) but did not feel well enough to work and she was not going to complete

11

her DKA training. (AR 593.) Therefore, the ALJ’s finding is supported by substantial

12

evidence in the record. Further, at the hearing, Parker testified that her employment

13

specialist at DKA did not think she would be able to work. (AR 33.) That testimony is

14

inconsistent with the administrative record, which documents her discontinuation of

15

employment services. (AR 593.) The ALJ may rely upon inconsistencies between a

16

claimant’s testimony and the record. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th

17

Cir. 2012).

18

Third, the ALJ found that Parker’s statements were not fully corroborated by

19

objective medical evidence. Drs. Marks and Penner both concluded Parker could work

20

despite her reported delusions and diagnosis of schizophrenia/ schizoaffective disorder.

21

(AR 144-47, 149, 392-96.) A claimant’s subjective testimony can be rejected, in part,

22

based on a doctor’s opinion. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,

23

1161 (9th Cir. 2008).

24

Because the Court finds that the ALJ relied on several valid clear and convincing

25

reasons, supported by substantial evidence, to discount Parker’s credibility, the Court

26

need not evaluate the remaining finding by the ALJ. Id. at 1163.

27
28

-8-

1

Treating Physician’s Assistant

2

Parker argues the ALJ should have given weight to Ahmad Taylor, her treating

3

physician’s assistant. On February 6, 2013, PA Taylor completed a medical source

4

statement. He found that Parker had: no limitations on remembering, understanding, and

5

carrying out simple instructions; marked limitations in making judgments on simple

6

decisions, interacting appropriately with public, supervisors, and co-workers, and

7

responding to work situations; and extreme limitations on understanding, remembering

8

and carrying out complex instructions, and making complex decisions. (AR 639-41.) PA

9

Taylor stated that to his knowledge these limitations were present as of January 23, 2013.

10

(AR 640.)

11

The ALJ gave Taylor’s opinion limited weight because he is not an acceptable

12

medical source. (AR 21.) The ALJ relied upon the fact that Taylor’s assessment drew

13

from Parker’s self-reported symptoms. Also, Taylor only saw Parker once or twice before

14

providing his opinion, and he did not address her prior improvements or GAF scores

15

from her treatment records.

16

Because the opinion of a physician’s assistant is not entitled to the deference given

17

the opinion of an acceptable medical source, 20 C.F.R. §§ 404.1513(a) & (d), to discount

18

his testimony as an “other” medical source an ALJ need provide only germane reasons.

19

Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (contrasting the requirement that a

20

treating physician’s opinion can be rejected only with specific, legitimate reasons). In

21

contrast to the weight given to PA Taylor, the ALJ gave significant weight to consulting

22

examiner Dr. Glenn Marks’s opinion. An ALJ is allowed to give additional weight to Dr.

23

Marks because he was an acceptable medical source. 2 Johnson v. Astrue, 303 F. App’x

24

543, 545 (9th Cir. 2008).

25

The ALJ relied upon the fact that PA Taylor’s assessment drew from Parker’s self-

26

reported symptoms. This is a germane reason to discount his opinion. See Koepke v.

27
28

2

It is notable, however, that the ALJ’s reason for discounting PA Taylor’s
opinion is equally applicable to Dr. Marks – no treating history and no record review.
-9-

1

Comm’r Soc. Sec. Admin., 490 F. App’x 864, 866 (9th Cir. 2012). For example, PA

2

Taylor stated that Parker has been unable to work for the past five years; however, he

3

gave January 2013, as the effective date for the limitations he found. PA Taylor also

4

noted that Parker reported that her impairments have impacted prior employment

5

relationships. (AR 640.) In light of the fact that PA Taylor began to see Parker only in

6

2013, this information comes solely from information provided by Parker. PA Taylor

7

referred to a psychiatric assessment (AR 639), but the administrative record does not

8

contain such an assessment from CODAC where PA Taylor worked.

9

The ALJ relied upon PA Taylor’s limited relationship with Parker at the time he

10

offered his opinion. In conjunction with that finding, the ALJ noted that PA Taylor did

11

not address any of Parker’s treatment records reflecting prior improvements or GAF

12

scores. These are specific reasons germane to this witness and supported by the record.

13

The ALJ did not err in giving PA Taylor’s opinion limited weight. See Fleming v.

14

Astrue, 303 F. App’x 546, 548-49 (9th Cir. 2008) (finding nurse practitioner’s opinion

15

was properly discounted because it relied upon self-reporting and exceeded limitations

16

found by physicians).

17

Residual Functional Capacity

18

Parker argues that the ALJ’s RFC failed to account for her delusions and

19

disconnect from reality. The ALJ’s RFC finding was supported by the opinion of

20

examining psychologist Glenn Marks and the State agency consultants. Dr. Marks’s

21

opinion constitutes substantial evidence to support the ALJ’s RFC finding because he

22

conducted an independent exam of Parker. See Tonapetyan v. Halter, 242 F.3d 1144,

23

1149 (9th Cir. 2001). Psychologist Eric Penner reviewed the records and offered an

24

opinion consistent with that of Dr. Marks. (AR 147-49, 396.) Thus, there was substantial

25

evidence in the record to support the ALJ’s RFC finding.

26
27
28

- 10 -

1

Step Five

2

Parker argues the ALJ erred at Step Five by not including her delusions in the

3

hypothetical to the vocational expert, and by not making a finding regarding the

4

transferability of job skills.3

5

When an ALJ finds that a claimant has transferable job skills, she is required to

6

make specific findings in support of that finding. Bray v. Comm’r Soc. Sec. Admin., 554

7

F.3d 1219, 1223- 26 (9th Cir. 2009) (requiring the ALJ to comply with SSR 82-41, even

8

if there is testimony of a vocational expert). Here, the ALJ did not make a finding that

9

Parker had transferable job skills and, based on the vocational expert’s testimony, the

10

ALJ identified only unskilled work at Step Five. (AR 22.) As noted in SSR 82-41, even

11

when a claimant has no transferable skills, she may be found not disabled based on an

12

ability to perform unskilled work. Therefore, the ALJ’s omission regarding Parker’s

13

transferable work skills was not error.

14

Next, Parker contends the ALJ failed to include all of her limitations in the

15

hypothetical she posed to the vocational expert. An ALJ may rely on a vocational

16

expert’s testimony only if she poses a hypothetical that includes all of the claimant’s

17

limitations, which must be supported by the record. Magallanes v. Bowen, 881 F.2d 747,

18

756 (9th Cir. 1989). Here, the ALJ asked the vocational expert a hypothetical based upon

19

the RFC limitations found by the ALJ. (AR 19, 54-55.) The Court has found no error in

20

the RFC. Therefore, the hypothetical included all of the claimant’s limitations as found

21

by the ALJ and it was not error. The ALJ was entitled to rely upon the vocational expert’s

22

testimony in making her finding at Step Five.
CONCLUSION

23
24
25
26

The Court concludes the ALJ did not err as to any of the claims raised by Parker.
Therefore, Parker is not entitled to relief and her appeal is denied.
Accordingly,

27
3

28

Parker indicates these issues also implicate Step Four. (Doc. 31 at 19-20.)
However, at Step Four, the ALJ found Parker could not perform her past relevant work.
Parker does not challenge this finding.
- 11 -

1
2
3

IT IS ORDERED that Plaintiff’s case is DISMISSED and the Clerk of Court
shall enter judgment.
Dated this 27th day of May, 2015.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 12 -