Green v. Colvin
ORDER denying 10 Social Security Opening Brief and that the Commissioners decision is affirmed. Signed by Magistrate Judge Jeremiah C. Lynch on 3/6/2017. (APP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ERIC J. GREEN,
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Plaintiff Eric Green brings this action under 42 U.S.C. § 405(g) seeking
judicial review of the decision of the Commissioner of Social Security denying his
application for disability insurance benefits and supplemental security income
benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433,
§§ 1382-1385. Green alleges disability since May 5, 2011, due to depression,
bipolar disorder, drug abuse (meth), back problems, and a head injury. Green’s
application was denied initially and on reconsideration, and he requested an
administrative hearing. Green appeared with a non-attorney representative at the
administrative hearing in October 2012. In February 2013, an ALJ issued a
decision finding Green not disabled within the meaning of the Act. The Appeals
Council denied Green’s request for review, and Green sought judicial review. In
April 2015, this Court remanded Green’s case for further proceedings. Green
appeared with counsel at the hearing on remand in October 2015, and in December
2015 the same ALJ issued a decision finding Green not disabled within the
meaning of the Act. The Appeals Council denied Green’s request for review,
making the ALJ’s decision the agency’s final decision for purposes of judicial
review.1 (Tr. 4-8). Jurisdiction vests with this Court pursuant to 42 U.S.C. §
Green was 40 years old at the time of his alleged onset date, and 47 at the
time of the ALJ’s decision on remand.
Standard of Review
This Court’s review is limited. The Court may set aside the Commissioner’s
decision only where the decision is not supported by substantial evidence or where
the decision is based on legal error. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
Green argues the Court should remand his case for an award of benefits
because the Commissioner’s brief adopts the summary of facts set out in the ALJ’s
decision, and does not contain a statement of the case as required by Local Rule
78.2(c)(2). The Court finds the Commissioner’s brief is adequate, and declines to
remand for an award of benefits on this basis.
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).
“The ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold the Commissioner’s findings
“if supported by inferences reasonably drawn from the record.” Batson v.
Commissioner of Social Security Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). “[I]f evidence exists to support more than one rational interpretation,” the
Court “must defer to the Commissioner’s decision.” Batson, 359 F.3d at 1193
(citing Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999). This Court
“may not substitute its judgment for that of the Commissioner.” Widmark, 454
F.3d at 1070 (quoting Edlund, 253 F.3d at 1156).
Burden of Proof
To establish disability, a claimant bears “the burden of proving an ‘inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which...has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Batson, 359 F.3d at
1193-94 (quoting 42 U.S.C. § 423(d)(1)(A)).
In determining whether a claimant is disabled, the Commissioner follows a
five-step sequential evaluation process. 20 C.F.R. § 404.1520. The claimant bears
the burden of establishing disability at steps one through four of this process.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). At the first step, the ALJ
will consider whether the claimant is engaged in “substantial gainful activity.” 20
C.F.R. § 404.1520(a)(4)(I). If not, the ALJ must determine at step two whether the
claimant has any impairments that qualify as “severe” under the regulations. 20
C.F.R. § 404.1520(a)(4)(ii). If the ALJ finds that the claimant does have one or
more severe impairments, the ALJ will compare those impairments to the
impairments listed in the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the ALJ
finds at step three that the claimant has an impairment that meets or equals a listed
impairment, then the claimant is considered disabled. 20 C.F.R. §
If, however, the claimant’s impairments do not meet or equal the severity of
any impairment described in the Listing of Impairments, then the ALJ must
proceed to step four and consider whether the claimant retains the residual
functional capacity (RFC) to perform his or her past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant establishes an inability to engage in past work,
the burden shifts to the Commissioner at step five to establish that the claimant
can perform other work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v).
The ALJ found at step one that Green meets the insured status requirements
of the Act through March 31, 2017, and had not engaged in substantial gainful
activity since his alleged onset date. (AR 512). At step two, the ALJ found that
Green had the following severe impairments: back disorder, organic mental
disorder, borderline personality disorder, attention deficit hyperactivity disorder
(ADHD) and affective disorder. (AR 511). The ALJ concluded at step three that
Green did not have an impairment or combination of impairments that meets or
medically equals any impairment described in the Listing of Impairments. (AR
513). The ALJ also found that Green’s subjective testimony was only partially
credible, and concluded he had the residual functional capacity to perform a
reduced range of light work. (AR 515). The ALJ found at step four that Green
could not perform any past relevant work, but concluded at step five that he was
not disabled because he was capable of semi-skilled light work as a bench
assembler or assembly worker, and unskilled light work as an assembler of plastic
hospital products. (AR 522-23).
Green argues the ALJ erred by not including major depressive disorder,
bipolar disorder, and degenerative disc disease as severe impairments at step two.
He points out that the ALJ considered those impairments severe in his first
decision, and maintains he should have included them in the most recent decision
Although the ALJ did not use exactly the same terms, he identified
essentially the same severe impairments. The ALJ identified Green’s degenerative
disc disease as a back disorder, his major depressive disorder as an affective
disorder, and referred to what he previously called a bipolar disorder as an organic
mental disorder and borderline personality disorder. The ALJ adequately
accounted for Green’s mental and physical impairments at step two.
Green argues the ALJ failed to comply with the Court’s remand order
because he did not adopt the opinion of examining psychologist Dr. James
Wahlberg in its entirety, and erred by instead crediting the testimony of the
medical expert, psychologist Dr. Michael Enright.
In December 2011, examining psychologist Dr. James Wahlberg performed
a psychological and learning disorder evaluation. (AR 372-82). He diagnosed
Green with attention deficit hyperactivity disorder, a cognitive disorder, alcohol
and methamphetamine abuse in remission, major depression, and a borderline
personality disorder characterized by excessive anger, interpersonal difficulties,
and poor judgmental processes. (AR 380). Dr. Wahlberg found that Green had a
full scale IQ of 89, placing him within the low average classification of
intelligence. (AR 375). He explained that Green had “attention issues,” was easily
frustrated, excessively impatient, and had difficulty with working memory. (AR
378). Dr. Wahlberg recommended that Green “focus on occupational areas that
primarily involve the use of his hands, as opposed to thoughts and ideas,” and
participate in a vocational evaluation to help him make “an informed choice on
possible occupations that would be available to him.” (AR 381).
In his February 2013 decision, the ALJ gave great weight to Dr. Wahlberg’s
opinion but did not include any restrictions regarding memory, concentration,
persistence, or pace in the residual functional capacity assessment, and did not
limit Green to work primarily involving the use of his hands as opposed to
thoughts and ideas. Because the ALJ did not provide any reasons for rejecting Dr.
Wahlberg’s opinion, this Court found the ALJ erred by not incorporating those
functional limitations into the residual functional capacity assessment and
remanded the matter for further administrative proceedings.
Green apparently reads the Court’s order as directing the ALJ to adopt Dr.
Wahlberg’s opinion in its entirety on remand. Contrary to Green’s argument,
however, the ALJ adequately complied with the Court’s remand order by
reevaluating Dr. Wahlberg’s opinion, taking new evidence, formulating a new
residual functional capacity, and obtaining additional testimony from the medical
and vocational experts.
To the extent Green argues the ALJ again failed to provide sufficiently
specific and legitimate reasons for discounting Dr. Wahlberg’s opinion, the Court
disagrees.2 In his December 2015 decision on remand, the ALJ expressly gave
Dr. Wahlberg’s opinion partial weight. He agreed that Dr. Wahlberg’s
“psychological test interpretations” were credible. For example, the ALJ noted
that Dr. Wahlberg’s psychological test results showed that Green functioned in the
average to low average intellectual range, and that his strengths were in perceptual
processes and the use of his hands. (AR 518). Dr. Wahlberg further indicated
that Green had some difficulties with working memory, processing speed, and the
pace of fine visual-motor speed and coordination which were all consistent with
ADHD. The ALJ identified ADHD as one of Green’s severe impairments, but
explained that he found Dr. Wahlberg’s opinion provided “limited assistance in
determining [Green’s] residual functional capacity because, while it identifies
Because Dr. Wahlberg’s opinion was contradicted by that of the state agency
physician and medical expert, the ALJ was only required to give specific, legitimate
reasons supported by substantial evidence. See Bray v. Commissioner, 554 F.3d
1219, 1228 n. 8 (9th Cir. 2009).
some jobs in which [Green] is likely to succeed, it does not clearly define many of
[Green’s] specific abilities to function in a workplace on a daily basis.” (AR 519).
Dr. Wahlberg recommended that Green “focus on occupational areas that
primarily involve the use of his hands, as opposed to thoughts and ideas,” and
participate in a vocational evaluation to help him make “an informed choice on
possible occupations that would be available to him.” (Tr. 381).
The ALJ limited Green to light work not requiring him to deal with large
numbers of people at any one time and requiring only occasional new learning.
(AR 515). He also limited Green to occupations with a specific vocational
preparation (SVP) of 4 or lower,3 and at step five identified unskilled assembly
jobs he would be capable of performing. (AR 515, 523). The ALJ’s decision is
substantively consistent with Dr. Wahlberg’s opinion, and the ALJ reasonably
found that Dr. Wahler did not impose any additional specific limitations beyond
those accounted for in the residual functional capacity assessment.
Other Source Evidence
Green argues the ALJ erred by not giving more weight to the opinions of
SVP levels measure the skill level necessary to perform a particular job.
Unskilled work corresponds to an SVP level of 1-2, semi-skilled work corresponds
to an SVE level of 3-4, and skilled work corresponds to an SVP level of 5-9. SSR 004p, 2000 WL 1898704, *3 (Dec. 4, 2000).
several other sources.
Green first argues the ALJ should have given more weight to the opinion of
Carleen Grussling, a licensed clinical social worker who met with him in group
and individual therapy sessions between December 2011 and May 2014. (AR
404-43, 480-89, 801-48). On September 20, 2012, Grussling completed a medical
questionnaire form indicating that Green’s mental impairments caused multiple
symptoms, including depressed mood decreased energy, and anger. She stated that
Green has “stressful days” and would miss three days of work each month. But
Grussling also indicated that Green could work on a regular and continuing basis
eight hours a day in “a supportive low stress environment with lots of direction
and room for teaching/error.” (AR 446).
As a social worker, Grussling does not qualify as an acceptable medical
source. 20 C.F.R. §§ 404.1513(a),(d), 416.913(a),(d); SSR 06-3p. Other sources
are not qualified to provide medical opinions, but can provide evidence about the
severity of a claimant’s impairments and how they affect the claimant’s ability to
work. See 20 C.F.R. § 404.1513. While an ALJ must provide specific and
legitimate reasons based on substantial evidence to discount evidence from an
“acceptable medical source,” evidence from an “other source” like Grussling is not
entitled to the same deference and may be discounted if the ALJ provides germane
reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012).
The ALJ discussed Grussling’s records, noting that they detailed Green’s
ongoing family relationship problems but also demonstrated he was capable of
functioning independently outside his home, attending daily Alcoholics
Anonymous meetings and weekly therapy sessions, and was doing well on
medications in 2013. (AR 516). The ALJ also considered the medical
questionnaire, but found her responses ambiguous to the extent she indicated that
Green would miss three days of work each month, but also wrote that he could
work on a regular and continuing basis eight hours a day in a supportive low stress
environment. The ALJ also found that Grussling’s September 2012 opinion was
provided not long after Green’s alleged onset date and early in their treatment, and
so was of less persuasive value. These were sufficiently germane reasons for not
adopting Grussling’s statement that Green would be absent three days a month,
particularly where it is evident that the ALJ otherwise considered and gave
substantial weight to Grussling’s more recent treatment records.
Green argues that the ALJ did not provide germane reasons for rejecting
the opinion of nurse practitioner Irene Walters, as set forth on two Medical Source
Statement forms. (AR 451-58, 1042-44).
Walters saw Green roughly a dozen times between August 2011 and
November 2012, and seven times between April 2014 and August 2015. (364-71,
392-43, 474-79, 1015-41). The ALJ considered the records from these visits,
noting that Walters generally recorded that Green was depressed, anxious, and
irritable, and adjusted his medications accordingly. (AR 517). In October 2012,
Walters completed a Medical Source Statement form and wrote a letter indicating
that Green had marked and extreme limitations in several areas, and could become
overwhelmed and paralyzed under pressure. (AR 451-58). In August 2015,
Walters completed a second Medical Source Statement form again identifying
several marked and extreme limitations, and stating that Green has difficulty
responding in stressful situations. (AR 1042-44).
As a nurse practitioner, Walters is an “other source” whose opinion the ALJ
could reject for germane reasons. See 20 C.F.R. §§ 404.1513(d) & 416.913(d);
Molina, 674 F.3d at 1111. The ALJ met that standard here. First, the ALJ found
that foundation for Walters’ opinions was weakened because she did not address
the effect Green’s daily marijuana use had on his diagnoses, medication
interactions, and medical functioning, as the medical expert suggested a prescriber
should. (AR 519). The ALJ recognized that Walters’ failure to take Green’s
marijuana use into account was understandable, since he had apparently not
disclosed it to her, but he reasonably found that Walters’ opinions were entitled to
less weight because of that deficiency.
The ALJ next discounted Walters’ opinions regarding Green’s ability to
function because they were based almost exclusively on his subjective reports,
some of which were inconsistent with his testimony at the hearing and the
psychological test results in the record. (AR 530). As the ALJ noted, Walters’
records reflect that she generally noted no or minimal problems in abstraction,
affect, appearance, attitude, cognitive function, perception disturbance, eye
contact, insight, judgment, memory, reliability, speech thought contact, and
thought process. (AR 517). By the end of 2012, Walters’ notes reflect that Green
was improving on medication, and in 2012 she consistently described Green as
doing well on medication, except for the fact that he experienced increased anxiety
when he enrolled in college classes. (AR 366-371, 393-403, 474-79).
Relying on medical expert, psychologist Dr. Enright’s testimony, the ALJ
further found that if Green’s limitations were as severe as Walters suggested, he
would be restricted to no contact with anyone, which was excessive in light of the
fact that he had not been diagnosed with any phobias. (AR 520). Dr. Enright also
testified that if Green was impaired to the extent Walters suggested, he would
likely require residential care, rather than the outpatient care he receives. (AR
520). The ALJ reasonably relied on Dr. Enright’s expert medical opinion over that
of Walters, who was not an acceptable medical source. These were sufficiently
germane reasons for discounting Walters’ opinion.
In October 2012, Green’s case manager at the Western Montana Mental
Health Center, Kelsey Wilkerson, wrote a letter in support of his application for
disability benefits. (AR 447-48). Wilkerson had been working with Green since
February 2012, during which time he was enrolled in the Bitterroot College
Program. She explained that Green was overwhelmed and falling behind on his
course work. Wilkerson said that Green had problems with concentration,
memory, communication, and anger management, and felt that he would not be
“able to sustain employment now or in the foreseeable future.” (AR 44748).
The ALJ considered Wilkerson’s statement, and found her observations
regarding Green’s difficulty recalling information credible, but otherwise gave
little weight to her opinion regarding Green’s functional level because it was
limited to a relatively brief period following the disability onset date. As
discussed above, medical records provided by Walters reflect that by the end of
2012 Green was improved and doing well on medication. (AR 366-371, 393-403,
474-79). Records from 2014 and 2015 similarly reflect that Green was stable on
medication, and had started a part time job delivering pizzas. (AR 1015-35). To
the extent the ALJ discounted Wilkerson’s letter, he permissibly did so because it
was not consistent with more recent medical records.
Green’s vocational rehabilitation counselor, Jerry Zook, wrote in an October
2012 letter that he had “serious reservations” about Green’s ability to find and
maintain full time employment due to his lack of insight, inappropriate verbal
communication, poor follow through, and dependence on others to help him with
routine tasks and activities. (AR 449-50). As with Wilkerson’s letter, the ALJ
discounted Zook’s letter in part because it was written in October 2012 and was
thus limited to a relatively brief period following the alleged onset date. The ALJ
also questioned the foundation for Zook’s letter, noting that he had not considered
much of the medical evidence in the record and premised his opinion in large part
on Dr. Wahlberg’s examination and Wilkerson’s letter. (AR 520). These were
sufficiently germane reasons for giving Zook’s letter little weight.
Green argues the ALJ did not provide sufficiently clear and convincing
reasons for finding him only partially credible.4 If the ALJ finds “the claimant has
presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged,” and “there
is no evidence of malingering, the ALJ can reject the claimant’s testimony about
the severity of her symptoms only by offering specific, clear and convincing
reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(internal quotation marks and citations omitted). Green met his initial burden
because he provided evidence that he has underlying impairments that could
reasonably be expected to produce some degree of pain and other symptoms, and
The Commissioner maintains that Green waived this argument because his
brief includes no substantive law or argument. While it is true that Green’s challenge
is a general one, the Court declines to find that he has waived the issue.
the ALJ did not find that he was malingering.
Green testified that his impairments caused him a number of physical and
mental limitations. The ALJ found that Green’s testimony regarding his back
impairment and resulting physical limitations was generally consistent with the
medical records, and credited that testimony in finding him capable of light work.
(AR 516). To the extent Green testified that his mental symptoms and limitations
were of debilitating severity, however, the ALJ found him not entirely credible in
large based on the fact that he was not consistent in reporting his marijuana use to
his health care providers. (AR 521). In particular, the ALJ noted that Green
reported to Walters that his marijuana dependence was in remission, but that he
testified to having used marijuana daily, under authorization of a medical
marijuana card, since before the first administrative hearing. (AR 519).
The ALJ also cited evidence that Green’s symptoms improved with
medication and treatment as a basis for finding his testimony less than entirely
credible. (AR 519). The ALJ discussed that evidence elsewhere in his decision,
noting for example that in December 2013 Green was looking really good on his
current medications and in January 2014 was hanging out with new and different
people. (AR 517). See, e.g., Morgan v. Commissioner of Soc. Sec. Admin., 169
F.3d 595, 599 (9th Cir. 1999) (ALJ permissibly discounted claimant’s testimony
partly based on medical records showing that, contrary to claimant’s allegations,
the medical records showed that his symptoms improved with the use of
medication). These were sufficiently clear and convincing reasons for finding
Green’s testimony as to the severity of his psychological symptoms only partially
For all of the above reasons, the Court concludes that the ALJ’s decision is
based on substantial evidence and free of legal error. Accordingly,
IT IS ORDERED that the Commissioner’s decision is affirmed.
DATED this 6th day of March, 2017
Jeremiah C. Lynch
United States Magistrate Judge
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