Sickler v. Colvin

Filing 24

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - denying 14 Motion for Summary Judgment. IT IS FURTHER ORDERED that Commissioner's decision is AFFIRMED pursuant to 42 U.S.C. § 405(g). Signed by Judge Donald W. Molloy on 7/30/2014. (APP, )

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOl1LA DIVISION

KIRST! SICKLER,

JUl 3 0 201~
Clerk. u.s District Court
District Of Montana
Missoula

CV 13-122-M-DWM-JCL

Plaintiff,
ORDER

vs.
CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

I.

Status
This matter began with the filing of a Complaint by Plaintiff Kirsti Sickler

seeking judicial review of a decision of the Commissioner of Social Security.
(Doc. 3.) This Court has jurisdiction to hear the Complaint pursuant to 42 U.S.C.

§ 405(g). Because of the nature of this action, it was referred upon filing to
United States Magistrate Judge Jeremiah C. Lynch. See L.R. 72.2(a)(l). A
briefing schedule was set. (Doc. 9.) Consent to Judge Lynch's jurisdiction having
been either withheld or met with objection, the matter was referred to Judge Lynch
for the entry of proposed findings of fact and recommendations for the disposition
of all motions excepted from the jurisdiction of a United States Magistrate Judge

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by 28 U.S.C. § 636(b)(1)(A). (Doc. 10.) Plaintiff Sickler filed a Motion for
Summary Judgment. (Doc. 14.) After briefing was completed, Judge Lynch
entered the proposed Findings and Recommendations now before the Court.
(Doc. 21.)

II.

Standard of Review
The portions of Judge Lynch's proposed Findings and Recommendations to

which any party objects are reviewed de novo, otherwise the report is reviewed for
clear error. When proposed findings and recommendations are met with objection,
the Court reviews the relevant portions of the United States Magistrate Judge's
report de novo. 28 U.S.C. § 636(b). When no party objects, the Court reviews the
report for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is present only if the Court is left
with a "definite and firm conviction that a mistake has been committed." United

States v. Syrax, 235 F 3d 422, 427 (9th Cir. 2000).

III.

Analysis
After reviewing the parties' submissions on the pending Motion for

Summary Judgment, Judge Lynch concluded that the Motion should be denied.
The Plaintiff objects to portions of Judge Lynch's findings and the
recommendation that her Motion for Summary Judgment be denied. Sickler
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claims that Judge Lynch erred because the Administrative Law Judge (ALJ) in the
administrative proceedings before the Social Security Administration now under
review improperly considered the statements of examining physicians and
Sickler's own testimony in reaching the conclusion that the Plaintiff is not
disabled under the Social Security Act, 42 U.S.C. § 301 et seq.

A.

Medical Opinions

After de novo review of Judge Lynch's report, the parties' submissions, and
the transcript of record, the Court adopts Judge Lynch's findings regarding the
ALJ's treatment of medical opinions in the administrative proceedings below.
Sickler contests Judge Lynch's findings as to the opinions of three examining
physicians: Drs. Mahoney, Bukacek, and Vanichkachorn. To reject the
controverted opinion of an examining physician, the ALJ must provide "specific
and legitimate reasons that are supported by substantial evidence in the record."

Widmark v. Barnhart, 454 F 3d 1063, 1066 (9th Cir. 2006). The ALJ met this
standard when considering the opinions of each examining physician.
As to Dr. Mahoney, Sickler argues that the ALJ "fudged" her score on the
Global Assessment Functioning ("GAF") test to reach the conclusion that Dr.
Mahoney'S opinions were entitled to little weight. Contrary to Sickler's argument,
the ALJ did not round or "fudge" the GAF score to reach the conclusions stated in
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his decision. The ALJ stated that Dr. Mahoney assessed Sickler with a score of 60
on the GAF, which he noted, indicates moderate impairment of functioning. (Tr.
at 30.) The ALJ went on to state that a score of 60 is one point away from the
classification of mild impairment of functioning. (Id.) The ALJ did not round the
score or state that Sickler should have been placed in the mild impairment
category. (Id.) Rather, the ALJ noted that the GAF is not intended as a marker for
assessing disability or competency and went on to conclude that reliance on the
score reported is inconsistent with Dr. Mahoney's claim that Sickler is "not likely
capable of employment." (Id.) Such an assessment is a specific and legitimate
reason to discredit the examining physician's opinion. Sickler's claims as to Dr.
Mahoney's second report are also without merit. The ALJ properly considered the
second report and provided specific and legitimate reasons to discredit it. (Id.)
The ALJ also appropriately weighed the opinions of Drs. Bukacek and
Vanichkachom. The ALJ assessed the opinion of Dr. Vanichkachom properly,
with reference to specific legitimate reasons to afford the opinion moderate
weight. (See Tr. at 29.) Contrary to Sickler's assertion, the ALJ did not substitute
his own layman's opinion for that of the physician. The ALJ properly took
conclusions drawn from the radiographic evidence and compared those
conclusions to those reached by Dr. Vanichkachom. (See id.) The ALJ's
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comparison of Dr. Vanichkachom's opinion to radiographic evidence in the record
was not in error because comparison of such findings is precisely the task the ALJ
is charged with. See Richardson v. Perales, 402 U.S. 389, 399-401 (1971).
Additionally, Sickler's claim that her lack of previous medical treatment is not
relevant to these medical opinions is without merit. The ALJ may properly
consider the level or frequency of treatment for disabling conditions over the
course of a Plaintiff's history of medical care in assessing medical opinions. See

Flaten v. Sec. a/Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995).

B.

Sickler's Testimony

After de novo review of Judge Lynch's report, the parties' submissions, and
the transcript of record, the Court adopts the portion of Judge Lynch's report
relating to Sickler's testimony. This portion of Judge Lynch's findings is well­
reasoned and legally justified. The ALJ determined Sickler was only partly
credible based in-part on her conservative treatment history. This determination is
warranted and legally justified. See id. The ALJ did not improperly consider the
Plaintiff's daily activities in assessing her credibility. Rather, the ALJ compared
the Plaintiff's statements regarding her daily activities with her disability claim
and found an inconsistency. (Tr. at 31-32.) The inferences reasonably drawn from
the record, including the residual functional capacity assessment, are supported by
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substantial evidence and free from error. Judge Lynch's findings and
recommendation that the Plaintiff s Motion for Summary Judgement be denied
will be adopted in full.

C.

Remaining Issues

No objection was lodged to any remaining portion of Judge Lynch's
proposed Findings and Recommendations. The portions of Judge Lynch's report
to which no party objects are free of clear error and will be adopted.

IV.

Conclusion
Judge Lynch properly decided the pending Motion for Summary Judgment.

The ALJ decision below is supported by substantial evidence and is free of legal
error.
IT IS ORDERED that the proposed Findings and Recommendations for
disposition of this matter entered by United States Magistrate Judge Jeremiah C.
Lynch, (Doc. 21), are ADOPTED IN-FULL.
IT IS FURTHER ORDERED that PlaintiffKirsti Sickler's Motion for
Summary Judgment, (Doc. 14), is DENIED.
IT IS FURTHER ORDERED that Commissioner's decision is AFFIRMED
pursuant to 42 U.S.C. § 405(g). The Clerk of Court shall enter judgment in favor
ofthe Commissioner and close this case.
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DATED this

~y of July, 2014.

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