Shorter v. Colvin

Filing 20

ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS. IT IS ORDERED: 1) Magistrate Judge Johnston's 16 Findings and Recommendations are ADOPTED IN FULL; 2) Defendant's 14 Motion for Summary Judgment is GRANTED; 3) The case is DISMISSED with prejudice; and, 4) The Clerk is directed to enter judgment in favor of the Defendant. Signed by Judge Brian Morris on 7/25/2017. (SLR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

RAY ANTHONY SHORTER,

CV-16-15-GF-BMM-JTJ

Plaintiff,
vs.
NANCY BERRYHILL, Commissioner
of Social Security Administration,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

Defendant.

Plaintiff Ray Shorter (“Shorter”) initiated this action under 42 U.S.C. §
405(g), seeking judicial review of the final decision of the Acting Commissioner of
Social Security (“Commissioner”), who denied Shorter’s application for disability
benefits and supplemental security income under Titles III and XVI of the Social
Security Act. 42 U.S.C. §§ 401-433, 1381-1383(f).
JURISDICTION
The Court has jurisdiction under 42 U.S.C. § 405(g). Venue is proper
because Shorter resided in Blaine County, Montana when he commenced this
action. 28 U.S.C. § 1391(e)(1); L.R. 1.2(c)(3).

1

BACKGROUND
Shorter alleges disability since between March 29, 2008, and June 25, 2009,
due to diabetes and depression. (Doc. 8-5 at 13.) The administrative law judge
(“ALJ”) determined that Shorter did not qualify for benefits under the Social
Security Act in October, 2015. (Tr. 18-44.) The ALJ had determined that Shorter
did not qualify for benefits three previous times, but each time the Appeals Council
remanded the case back to the ALJ to reconsider certain aspects of the
administrative record. (Doc. 16 at 5-6.) The Appeals Council denied Shorter’s
appeal of the ALJ’s fourth unfavorable decision, rendering the ALJ’s fourth
decision the final decision of the Commissioner for purposes of judicial review.
(Tr. 1-7.)
The ALJ found, in her final decision, that Shorter did not meet the insured
status requirements of the Social Security Act. Id. at 23. The ALJ also found that
Shorter possesses the severe impairments of major depressive order and dysthymic
disorder and that these impairments significantly affect his ability to perform basic
work activities. Id. at 24. The ALJ ultimately concluded that Shorter’s residual
capacity did not preclude him from performing past work as a warehouse worker.
Id. at 42.
The Court referred the case to United States Magistrate Judge John Johnston
for findings and recommendations. Judge Johnston entered his Findings and
2

Recommendations on March 15, 2017. (Doc. 16.) Judge Johnston concluded that
the Commissioner’s decision should be affirmed because it was supported by
substantial evidence and was free of legal error. Id. at 30. Shorter filed an objection
to the Findings and Recommendations on March 28, 2017. (Doc. 17.)
STANDARD OF REVIEW
The Court reviews de novo findings and recommendations to which parties
make objections. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
Shorter argued that the Commissioner’s decision should be reversed because
the ALJ erred: (1) by failing to reasonably assess Shorter’s severe impairments by
neglecting to consider the impact of his obesity on his depressive disorder, (2) by
failing to properly determine his residual functional capacity by discounting
Shorter’s subjective complaints and failing to give proper weight to the opinions of
treating mental health providers and other sources, (3) by failing to support the
finding that Shorter’s residual capacity did not preclude him from performing past
work as a warehouse worker, (4) by denying Shorter’s request for a prehearing
conference, and (5) by violating the local rules in neglecting to include a statement
of facts in the Commissioner’s reply brief. (Doc. 9 at 1.)

3

A. Severe Impairments
The ALJ determined that Shorter possesses the severe impairments of major
depressive disorder and dysthymic disorder. (Tr. 24.) Shorter argues that the ALJ
improperly omitted obesity as a severe impairment. (Doc. 9 at 1.) The ALJ
acknowledged that the record indicated that Shorter proved obese. (Tr. 25.) The
ALJ also found, however, that Shorter’s medical records reflect a body mass index
score in the low 30s, which represents a limited level of obesity. Id. The ALJ
reasonably found no evidence that Shorter’s obesity restricted his ability to
perform basic work activities. Id. The Ninth Circuit held in Burch v. Barnhart, 400
F.3d 676, 684 (9th Cir. 2005), that an error in neglecting to find obesity as a severe
impairment proves harmless if “there is no evidence in the record of any functional
limitations” caused by a claimant’s obesity. There likewise exists no such evidence
in Shorter’s record.
Judge Johnston agreed with the Commissioner on this issue in light of the
ALJ’s noted lack of evidence regarding the effects of Shorter’s obesity. (Doc. 16 at
12-13.) The Court agrees. Substantial evidence supports the ALJ’s conclusion that
Shorter’s obesity did not represent a severe impairment.
B. Residual Functional Capacity
Shorter argues that the ALJ failed to properly determine his residual
functional capacity by discounting his subjective complaints and failing to give
4

proper weight to the opinions of treating mental health providers and other sources.
(Doc. 16 at 14.)
1. Subjective Complaints
Shorter testified that he has auditory hallucinations, suicidal thoughts,
trouble concentrating, focusing, understanding, following instructions, completing
tasks, socializing, getting along with others, and self-isolation. (Tr. 29.) He claimed
that these issues prevent him from lifting, squatting, bending, standing, reaching,
walking, sitting, kneeling, talking, hearing, and climbing stairs. Id. The ALJ found
that Shorter’s daily activities and medical records conflicted with Shorter’s
complaints. Id.
An ALJ may reasonably discount a claimant’s subjective complaints when
her or his daily activities do not corroborate the complaints. Garrison v. Colvin,
759 F.3d 995, 1016 (9th Cir. 2014). The ALJ found that Shorter routinely attends
to his personal care, drives, shops, attends church, reads the Bible and the
newspaper, completes crossword puzzles, and watches television for hours at a
time. (Tr. 29.) The ALJ’s finding that these activities contradict Shorter’s
subjective complaints proves reasonable. The ALJ further had no duty to question
or allow Shorter to correct these inconsistencies at the hearing. Tonapetyan v.
Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

5

The ALJ also found that the medical record contradicts Shorter’s subjective
complaints. (Tr. 29.) Shorter’s complaints conflicted with the findings of Drs.
Monty Kuka, Michael Enright, and Anthony Golas. Id. at 35-36, 983-90. Mental
status and memory tests further demonstrated that Shorter suffers from mild
dysfunction at the worst. (Doc. 16 at 17.) Substantial evidence supports the ALJ’s
findings on these issues, and the findings do not result from legal error.
2. Opinions of Medical Sources
Shorter argues that the ALJ improperly discounted the opinions of treating
physicians Drs. Anthony Golas, Michael Malayil, Erin Ulano, and Evan LaRocque
and Nurse Practitioner Susan Lockwood and instead gave greater weight to nontreating physicians Drs. Monty Kuka, Jim Capage, Thomas Lauderman, Joseph
Shaver, Michael Enright, and A. Rafael Gomez. (Doc. 9 at 21.)
The Social Security Act typically counsels the ALJ and the Court to give the
greatest weight to the opinions of treating physicians. Tonapetyan v. Halter, 242
F.3d 1144, 1149 (9th Cir. 2001). The ALJ may give less weight to a treating
physician’s opinion, however, when it conflicts with a non-treating physician’s
opinion. Id. The ALJ properly credited the testimony of non-treating physicians
Kuka and Enright on the basis that they testified at the hearing and participated in
cross-examination. Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995). The
ALJ also properly credited the opinions of Drs. Capage and Shaver on the grounds
6

that their testimony had basis in the record. Tonapetyan, 242 F.3d at 1149. The
ALJ adequately and specifically explained her reasoning for assigning weight to
the opinions of these physicians. (Tr. 33-36.)
Shorter argues that the ALJ needed to provide clear and convincing reasons
for discounting the treating physicians’ opinions, but this assertion is incorrect.
(Doc. 9 at 23.) The regulations require only that the ALJ require specific and
legitimate reasons for discounting these opinions. 20 C.F.R. § 404.1527(c)(2). The
ALJ gave significant weight to the opinion of Dr. Golas, who is one of Shorter’s
treating physicians. The ALJ gave little weight to treating physician Dr. Malayil on
the basis that the record undermined and conflicted with Dr. Malayil’s opinion. Dr.
Malayil opined that Shorter suffered from fairly severe mental dysfunction, but
mental status tests in the record demonstrated that he suffered from only mild
dysfunction. (Tr. 1055-56, 29-32, 929-30, 927, 978, 993, 1003-06, 1048, 1077,
1107-08, 1110-11, 1144, 1147-48, 1151-52, 1198-99, 1207-08.) Dr. Malayil’s
opinion also proved inconsistent with his most recent treatment notes. (Tr. 37.)
The weight that the ALJ assigned to Dr. Malayil’s opinion proves proper in
light of its inconsistencies with the record and the specific and legitimate reasons
that the ALJ provided for affording Dr. Malayil’s opinion little weight.
The ALJ also gave little weight to the opinion of Dr. LaRoque. Dr. LaRoque
had supervised various nurse practitioners in her role as the Medical Director for
7

the Center of Mental Health, including Nurse Practitioner Susan Lockwood who
treated Shorter. (Doc. 9 at 26.) Shorter argues that Dr. LaRoque reviewed and
adopted the opinion of Nurse Practitioner Lockwood, making Nurse Practitioner
Lockwood’s opinion worthy of significant weight. The Court disagrees.
The ALJ first noted that the record fails to show that Dr. LaRoque actually
reviewed the opinion of Nurse Practitioner Lockwood. (Tr. 38.) The ALJ also
properly discounted LaRoque’s opinion in light of its inconsistencies with Nurse
Practitioner Lockwood’s most recent exam records. Id. at 39. The ALJ provided
sufficient reasoning to support the weight she afforded to Dr. LaRoque’s opinion.
Shorter asserts that that the ALJ wrongfully gave little weight to Dr. Ulano’s
opinion. (Doc. 9 at 32.) The ALJ reasoned that little weight is due to the opinion
because the GAF scores provided by Dr. Ulano were based solely on Shorter’s
statements explaining his symptoms. (Tr. 37.) The ALJ discounted these
statements in light of their inconsistency with the record. The ALJ properly gave
little weight to Dr. Ulano’s opinion for this reason and on the grounds that the
GAF scores prove too vague to provide much explanatory value. Id. at 36-41.
3. Opinions of Other Medical Sources
Shorter claims that the ALJ improperly discounted the opinion of Nurse
Practitioner Lockwood. (Doc. 9 at 29.) The Court disagrees. The ALJ gave little
weight to Nurse Practitioner Lockwood’s May 2013 opinion and no weight to her
8

December 2012, March 2014, and October 2014 opinions on the basis that she did
not represent “an acceptable medical source under the Social Security regulations
and her opinions were inconsistent with her findings.” (Tr. 38-41.)
The Social Security Act requires only that the ALJ give germane reasons for
discounting an “other” medical source like Nurse Practitioner Lockwood. 20
C.F.R. § 404.1513(d)(1). The Social Security Act contemplates that a nurse
practitioner represents an “other” medical source, even when a physician
supervises her or his work. Molina v. Asture, 674 F.3d 1104, 1111 (2012). The
ALJ gave various germane reasons to discount the testimony of Nurse Practitioner
Lockwood. (Tr. 40-41, 38.) Judge Johnston thoroughly outlined and affirmed these
reasons in his Findings and Recommendations. (Doc. 16 at 27-28.)
Shorter further contends that the ALJ improperly discounted the opinion of
Physician’s Assistant Patrick Armstrong. (Doc. 9 at 29.) The ALJ reasoned that
Armstrong did not represent an acceptable medical source. (Tr. 39.) The ALJ
found that Armstrong’s opinion conflicted with the opinions of acceptable medical
sources in the matter, Drs. Kuka, Enright, Capage, and Shaver. Id. Armstrong’s
opinion also neglected to comment on Shorter’s reported depression. These reasons
represent germane explanations for the weight assigned to Armstrong.

9

C. Performing Past Work
Shorter argues that the ALJ asked an inappropriate question of the
vocational expert while trying to determine Shorter’s work capacity in light of his
impairments. (Doc. 9 at 34.) Shorter claims that the question the ALJ asked failed
to reflect Shorter’s limitations. Id. Judge Johnston determined that the ALJ’s
questions incorporated all of Shorter’s limitations that the ALJ found credible.
(Doc. 16 at 30;) compare (Tr. 28-33 with Tr. 228-231.) The Court agrees.
D. Prehearing Conference
Shorter asserts that the ALJ improperly denied his request for a prehearing
conference. (Doc. 9 at 20.) A prehearing conference is permissive, however, under
the Social Security Act. 20 C.F.R. § 404.961. The ALJ accordingly possesses
discretion to grant or deny a request for a prehearing conference. Richardson v.
Perales, 402 U.S. 389, 400 (1971). The ALJ’s denial proves proper.
E. Statement of Facts
Shorter argues that the Commissioner violated Local Rule 78.2(c)(2) by
failing to include a statement of facts in her Response Brief. (Doc. 15 at 2.) Local
Rule 78.2(c)(2) states that “principal briefs must contain a concise statement of the
case setting out the facts relevant to the issues submitted for review.” Judge
Johnston concluded that the Commissioner’s Response Brief set out enough factual
background to aid the Court in resolving the issues presented. The Court agrees.
10

Conclusion and Order
Judge Johnston recommends that the Court grant the Commissioner’s
Motion for Summary Judgment and enter judgment in favor of the Commissioner.
The Court concurs in this conclusion in light of the reasoning contained in this
Order.
Accordingly, IT IS ORDERED:
1. Magistrate Judge Johnston’s Findings and Recommendations
(Doc. 16), is ADOPTED IN FULL.
2. Defendant’s Motion for Summary Judgment (Doc. 14),
is GRANTED.
3. The case is DISMISSED with prejudice.
4. The Clerk is directed to enter judgment in favor of the Defendant.
DATED this 25th day of July, 2017.

11