Hope v. Commissioner Social Security Administration
Filing
29
OPINION AND ORDER. For these reasons, the ALJ's decision that Hope is not disabled is based on correct legal standards and supported by substantial evidence. The decision of the Commissioner is affirmed and this case is dismissed. IT IS SO ORDERED. Signed on 2/22/2012 by Judge James A. Redden. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CV.IO-1576RE
RONALD HOPE,
Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
REDDEN, Judge:
Plaintiff Ronald Hope ("Hope"), brings this action to obtain judicial review of a final
decision of the Commissioner of the Social Security Administration ("Commissioner") denying
her claim for Disability Insurance Benetits ("DIB"). For the reasons set forth below, the decision
of the Commissioner is affirmed and this matter is dismissed.
1//
1 - OPINION AND ORDER
BACKGROUND
Born in 1970, Hope has an eighth grade education and a General Equivalency Diploma.
He has worked as a home attendant, fast food restaurant manager, retail store manager, cashier,
dining room attendant, fast food worker, and video store sales clerk. In August 2007, Hope filed
applications for Disability Insurance Benefits and Supplemental Security Income alleging
disability since June 28, 2002, due to depression and anxiety .. His applications were denied
initially and upon reconsideration. On October 8, 2009, a hearing was held before an
Administrative Law Judge ("ALJ"). In a decision dated November 5, 2009, the ALJ found Hope
not disabled. Hope's request for review was denied, making the ALJ's decision the final decision
of the Commissioner. Hope now seeks judicial review of the Commissioner's decision.
ALJ's DECISION
The ALJ found Hope had the medically determinable severe impainnents of obesity,
major depressive disorder, and social an.xiety .
The ALJ detennined that Hope retained the residual functional capacity to perform a
limited range oflight work, with simple, 1-2 step tasks, only occasional changes in the work
setting, the occasional need for decision making, and occasional interaction with the public and
co-workers. Tr. 16.
The ALJ determined that Hope was not able to perform his past relevant work. The ALJ
found that there were significant numbers of jobs that plaintiff could perfOlID, citing those
identified by the vocational expert, including small products assembler and electrical assembler.
Tr. 19-20.
2 - OPINION AND ORDER
The medical records accurately set out Hope's medical history as it relates to his claim for
benefits. The court has carefully reviewed the extensive medical record, and the pm1ies are
familiar with it. Accordingly, the details of those medical records will be set out below only as
they are relevant to the issues before the court.
DISCUSSION
Hope contends that the ALJ wed by:'{l) finding him not fully credible; (2) failing to
follow SSR 82-59; (3) improperly rejecting lay testimony; and (4) failing to develop the record.
I. Credibility
The ALJ must consider all symptoms and pain which "can be reasonably accepted as
consistent with the objective medical evidence and other evidence." 20 C.F.R. §§ 404.1529(a);
416.929(a). Once a claimant shows an underlying impailment which may "reasonably be
expected to produce pain or other symptoms alleged," absent a finding of malingering, the ALJ
must provide "clear and convincing" reasons for finding a claimant not credible. Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9 th Cir. 2007)(citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996)). The ALJ's credibility findings must be "sufficiently specific to permit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony."
Orteza v. Shalala, 50 F.3d 748, 750 (9 th Cir. I 995)(citing Bunnell v. Sullivan, 947. F.2d 341, 34546 (9th Cir. 1991)(en bane)).
The ALJ may consider objective medical evidence and the claimant's treatment history,
as well as the claimant's daily activities, work record, and observations of physicians and third
pm1ies with personal knowledge of the claimant's functional limitations. Smolen, 80 FJd at
1284. The ALJ may additionally employ ordinmy techniques of credibility evaluation, such as
3 - OPINION AND ORDER
weighing inconsistent statements regarding symptoms by the claimant. Id. The ALJ may not,
however, make a negative credibility finding "solely because" the claimant's symptom testimony
"is not substantiated affirmatively by objective medical evidence." Robbins v. Soc. Sec. Admin.,
466 FJd 880, 883 (9'h Cir. 2005).
The ALJ concluded that Hope was not fully credible as to the intensity, persistence and
limiting effects of his symptoms:
Treatment records reflect that the claimant has put very little effort
into improving his social skills or personal hygiene. For example,
he reported avoiding people out offear of being judged by them.
[Citation omitted]. However, the claimant would frequently appear
in public with bad hygiene that would inevitably cause a negative
reaction. [Citations omitted]. In addition, counseling records indicate that the claimant did little to help himself, despite knowing what
steps he needed to take. Counselor's [sic] have stressed to the claimant
that although they would like to see him make healthy changes, they
were not able to make the changes for him, and it did not appear he
wanted to make them on his own. [Citation omitted]. The claimant
testified that he had had difficulty with counseling because every time
he got close to a counselor they would leave. However, the record
reflects that when the claimant was given the option to continue
treatment with a counselor that he liked and worked with for over a
year, he declined to go to her new office because it would be inconvenient for him. [Citation omitted]. Additionally, claimant was not
consistent in his counseling treatment. He stopped attending counseling
in October, 2006, and failed to respond to multiple attempts by his
counselor to continue therapy. [Citation omitted]. While attending
counseling sessions, claimant was given many suggestions to help him
overcome his amiety and social phobia. The record is consistent that
the claimant failed to follow the recommendations of his counselors,
and did little to help himself.
Tr. 17.
Noncompliance with a prescribed course of treatment is a clear and convincing reason to
find a claimant's subjective complaints less than fully credible. Bunnell v. Sullivan, 947 F.2d
4 - OPINION AND ORDER
341,346 (9 th Cir. 1991). In addition, the AU cited the reports in which, with a single exception,
mental health professionals assigned the claimant a Global Assessment of Functioning ("GAF")
of between 55 and 60, indicating only moderate symptoms or moderate difficulty in social and
occupational functioning. Tr. 314 (August 2005) , 318 (October 2005). Diagnostic & Statistical
lvianual oj}viental Disorders (DSM-IV-TR) 34 (4th ed. 2000).
The ALl's credibility determination is suppOlied by clear and convincing reasons and
based on substantial evidence.
II. Social Security Regulation ("SSR") 82-59
Plaintiff contends that the AU e11'ed by failing to follow the treatment compliance
analysis set out in SSR 82-59. The Rule provides that individuals "with a disabling impairment
which is amendable to treatment that could be expected to restore their ability to work must
follow the prescribed treatment to be found under a disability .... " (Emphasis in original).
The Rule only applies when an AU finds a claimant disabled but for his failure to follow
prescribed treatment. It does not apply here. In this case, the AU did not find the claimant
disabled, and found that the claimant's failure to follow prescribed treatment was evidence of his
credibility.
III. Lay Witness Testimony
The AU has a duty to consider lay witness testimony. 20 C.F.R. §§ 416.913(d),
416.945(a)(3); Bruce v. Astrue, 557 F.3d 1113, 1115 (9 th Cir. 2008). Friends and family
members who observe the claimant's symptoms and daily activities are competent to testify
about the claimant's condition. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9 th Cir. 1993). The AU
5 - OPINION AND ORDER
may not reject such testimony without comment and must give reasons gelmane to the witness
for rejecting her testimony. Nguyen v. Chater, 100 F.3d 1462, 1467 (99 th Cir. 1996).
The AU considered the statement of Kelly Hope, the claimant's sister:
Ms. Hope reported that the claimant performed limited activities
of daily living, had limited social activities, had difficulty sleeping,
and had bad personal hygiene. [Citation omitted]. While Ms. Hope's
observations are generally credible and consistent with the claimant's
own reports, her statements regarding the claimant's alleged symptoms
and limitations are given limited weight. Ms. Hope lives with the
claimant and their mother, and she too is unemployed. It appears that
Mr. Hope gets little positive reinforcement from his family members;
on the contrmy, they seem to encourage his lack of motivation and are
complacent with the status quo in the household, with no one being
gainfully employed or motivated to change their situation.
There is no evidence that Ms. Hope has the expertise to objectively
evaluate the claimant's medical condition. In addition, the limitations
noted by Ms. Hope do no [sic1support a conclusion that the claimant
is disabled or has limitations greater than those determined in this
decision.
Tr. 18.
The ALl's inference is that Ms. Hope's testimony is not fully reliable because it is based
upon reports of a claimant properly found not credible. Valentine v. Astrue, 574 F.3d 685, 694
(9th Cir. 2009). The AU properly gave little weight to the lay testimony.
IV. Adequacy of the Record
Plaintiff contends that the AU failed to develop the record as to whether his
psychological impairments caused him not to follow treatment advice. An AU has a "duty to
fully and fairly develop the record and to assure that a claimant's interests are considered."
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9 th Cir. 2001)(quoting Brown v. Heckler, 713 F.2d
441,443 (9 th Cir. 1983»(citation and internal quotation marks omitted).
6 - OPINION AND ORDER
The record shows that mental health professionals consistently advised plaintiff to take
specific actions to control his symptoms. In October 2005, Howard Rosenbaum, M.D. evaluated
plaintiff and advised him to continue counseling and go to vocational rehabilitation. Tr. 318. In
August 2006, Dr. Rosenbaum advised him to establish a routine in life, and to consider volunteer
work and vocational rehabilitation. Tr. 331. In October 2006, Jan DeRoest, Psy. D., advised
plaintiff to dress appropriately to increase self esteem, and to walk to increase his metabolism.
Tr. 344, 338. Dr. Rosenbaum "[d]iscussed the treatment for his depression may involve both
meds and an effort on his pati to increase his level of structure and activity. Recommended he
set up schedule for grooming, doing household chores, and perhaps volunteer work." Tr. 339.
In January 2007 Dr. DeRoest advised plaintiffto go outside for a walk when angly. Tr.
630. He was advised to get out of the house more often. Tr. 352. In March 2007, Dr.
Rosenbaum advised him to consider Overeaters Anonymous, a dietician, or Weight Watchers.
Tr. 345. In April 2007 Dr. DeRoest advised him to get out of the house and walk. Tr. 370. In
May 2007 plaintiff agreed to exercise for five minutes three times a week. Tr. 362. He agreed to
walk with his mother and to go out to eat. Tr.373. In June 2007 Dr. Rosenbaum repolied that
plaintiff mowed the lawn, and "[ e]ncouraged patient to gradually increase time outside the home,
statting by at least going for a short walk each day, gradually lengthening time of walk and then
perhaps going to a store. Patient agreed to work on putting more structure into his life." Tr. 360.
In July 2007, Dr. DeRoest advised plaintiff that the scholarship covering his counseling
would stop unless he showed more progress. Plaintiff agreed to walk three days a week and go
on a family outing to the library. Tr. 379. In August 2007 plaintiffrepOlied that he was not
leaving the house because it was too hot or too wet. Tr. 385. In October 2007, Dr. DeRoest
7 - OPINION AND ORDER
asked whether plaintiff had done anything to help himself in the last few weeks, and "he reported
that he hadn't, despite knowing what needed to be done. Discussed the states of change model,
and he was able to place himself in the pre contemplation stage, where he has been for the past
year." Tr. 483. Dr. DeRoest advised plaintiffthat he was not able to make the changes for him,
and "he did not appear to want to make them on his own." Id
There is no evidence that any treatment provider thought plaintiff incapable of following
their advice. It was not necessary for the AU to order a consultative examination because the
record contained enough evidence to suppOli a detelmination. There is no ambiguity requiring
resolution.
CONCLUSION
For these reasons, the ALJ's decision that Hope is not disabled is based on C011'ect legal
standards and suppOlied by substantial evidence. The decision of the Commissioner is affirmed
and this case is dismissed.
IT IS SO ORDERED.
Dated this 22. day of February, 2012.
J\,\' S A. . DDEN
Un' ted States District Judge
8 - OPINION AND ORDER
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