Harlow v. Commissioner Social Security Administration
Filing
16
OPINION AND ORDER. For the above reasons, the Commissioner's decision is affirmed and this matter is dismissed. IT IS SO ORDERED. Signed on 10/11/12 by Judge James A. Redden. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEBBIE HARLOW,
Plain tift~
3:11-CV-01262 RE
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
REDDEN, Judge:
Plaintiff Debbie Harlow ("Harlow") 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 Benefits and Supplemental Security Income benefits. For the
reasons set forth below, the decision of the Commissioner is affi1med and this matter is
dismissed.
1 - OPINION AND ORDER
BACKGROUND
Born in 1957; Harlow completed a general equivalency degree, and has past relevant
work as a cashier assistant, a customer service representative, and a courier. In October 2004,
Harlow filed an application for social security income and disability insurance benefits, alleging
disability since February 26, 2004. Tr. Her application was denied initially and upon
reconsideration. After a November 2006 hearing, an Administrative Law Judge ("ALJ") found
her not disabled. Harlow's request for review was granted, and the Appeals Council remanded
the case for a new hearing. A second hearing was held in July 2008. Her application was again
denied, as was her request for review, making the ALI's decision the final decision of the
Commissioner.
ALJ's DECISION
The ALJ found Harlow last met the insured status requirements of the Social Security Act
on September 30, 2005, and that she had not engaged in substantial gainful activity from her
alleged onset date ofFebrumy 26,2004 through her date last insured. Tr. 18-19.
The ALJ determined that Harlow had no medically determinable severe impairments.
The medical records accurately set out Harlow's medical hist01y as it relates to her claim
for benefits. The court has carefully reviewed the extensive medical record, and the pmiies 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
Harlow contends that the ALJ ened by: ( 1) failing to find severe impairments at step
two; (2) improperly weighing medical evidence; and (3) failing to credit lay testimony.
2 - OPINION AND ORDER
I. Step Two
At step two, the ALJ determines whether the claimant has a medically severe impairment
or combination of impairments. Bowen v. Yuckert, 482 US 137, 140-41 (1987). The Social
Security Regulations and Rulings, as well as case law applying them, discuss the step two
severity detetmination in terms of what is "not severe." According to the regulations, "an
impailment is not severe if it does not significantly limit [the claimant's] physical ability to do
basic work activities." 20 CFR § 404.1521(a). Basic work activities are "abilities and aptitudes
necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying or handling." 20 CFR §§ 404.1521(b); 416.920(c).
The step two inquiry is a de minimis screening device to dispose of groundless claims.
Yuckert, 482 US at 153-54. An impaitment or combination of impairments can be found "not
severe" only if the evidence establishes a slight abnormality that has "no more than a minimal
effect on an individual's ability to work." See SSR 85-28; Yuckert v. Bowen, 841 F2d 303, 306
(9'h Cir 1988) (adopting SSR 85-28). A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, and cannot be
established on the basis of a claimant's symptoms alone. 20 CFR § 404.1508.
Harlow contends that the ALJ erred by failing to find that her adjustment disorder, panic
disorder, and conversion disorder are "severe" impaitments.
A. The Medical Evidence
Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527( e)(1 );
416.927(e )(1 ). If no conflict arises between medical source opinions, the ALJ generally must
accord greater weight to the opinion of a treating physician than that of an examining physician.
3 - OPINION AND ORDER
Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). In such circumstances the ALJ should also
give greater weight to the opinion of an examining physician over that of a reviewing physician.
!d. But, if two medical source opinions conflict, an ALJ need only give "specific and legitimate
reasons" for discrediting one opinion in favor of another. Jd. at 830. The ALJ may reject
physician opinions that are "brief; conclusory, and inadequately supported by clinical findings."
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
The ALJ found that Harlow had the medically determinable impairments of panic
disorder and adjustment disorder, among others. Tr. 19.
(1) Duane D. Kolilis, Ph.D.
Dr. Kolilis reviewed a limited number of records and examined Harlow in July 2005. Tr.
514-19. He stated her "demeanor was angry, belligerent, and passive-aggressive. She was
guarded, evasive, and vague in her responses." Tr. 516. Dr. Kolilis saw no evidence of
psychomotor agitation. Harlow sat tln·ough the interview without observable discomfort. Her
posture was normal, her gait was slow and she touched the wall as she left. Jd.
Harlow reported depression and suicidal ideation without plan or intent, and insomnia.
She stated that she gets anxiety with panic attacks as a response to vertigo, triggered by going out
and "people move too fast." Tr. 517. Dr. Kolilis stated:
She denies any perceptual problems such as auditory or visual
hallucinations. She was oriented in all spheres. Other than
tangential rambling, behavior this examiner deems her attempts
. to obfuscate, there were no obvious disruptions of attention or
concentration, and her thought processes were otherwise sequential and logical. She was a guarded, vague, and poor historian.
Her overall comprehension of language was good.
4 - OPINION AND ORDER
She denies any significant problems with concentration or shorttetm memory .... Her judgment was fairly good .... Her ability to abstract was good.
Id. Dr. Kolilis opined that Harlow was not a reliable historian. He noted a prior diagnosis of
somatization, and stated that Harlow "does present herself in a histrionic, avoidant, and passivedependent manner, consistent with somatization. Tr. 518. He stated:
Due to Ms. Harlow's uncooperative behavior, this examiner
found it difficult to obtain the necessary information to assess
the presence of any mental problems. However, in regards to
the specific points to be covered in this examination of aiL'Ciety
and panic attacks, it is the opinion that she has the criteria to
support an Adjustment Disorder With Mixed Anxiety and
Depressed Mood related to the loss of her job and her father's
death. There is also a good possibility ... that if the cause of her
vetiigo is vestibular then anxiety may be caused by a physical
disorder. In any case, she does not claim to have significant
anxiety and panic except during in situations when she becomes
dizzy.
Id. Dr. Kililis noted that he was "unable to obtain enough reliable information" from Harlow to
assess her capabilities with accuracy. Id. He opined that
"in the absence of marijuana use ... she is capable of: understanding,
remembering, and following at least simple one- to two-step instructions;
sustaining concentration and attention, persisting in work-related activities,
adapting to changes in routine, and engaging in appropriate social interactions.
!d.
Dr. Kolilis estimated that Harlow was of average intelligence. His Diagnostic
Impressions were Adjustment Disorder with Mixed AIL'Ciety and Depressed Mood and Cannabis
Abuse. Tr. 519. He assessed her cmTent G1-\F and highest GAF in the last year as 65. Id.
The ALJ noted Dr. Kolilis's opinion and stated:
5 - OPINION AND ORDER
Dr. Kolilis concluded that the claimant was able to work, as long as
she did not use marijuana [citation omitted]. She could understand,
remember and follow at least one-to-two step instructions; she could
sustain attention and concentration; she could persist in work-related
activities; she could adapt to changes in routine; and she could engage
in appropriate social interactions.
Tr. 24.
Harlow argues that Dr. Kolilis found her limited to understanding, remembering, and
following simple, 1-to2 step instructions, in the absence of marijuana use, and that this functional
limitation renders her diagnosed Adjustment Disorder a severe impairment.
The Commissioner notes, as did the ALJ, that Dr. Kolilis found Harlow capable of
remembering and following "at least" one-to-two step instructions. The ALJ properly noted that
Dr. Kolilis assessed a GAF score of 65, both currently and for the past year. Tr. 24, 519. A GAF
of61-70 indicates "some mild symptoms (e.g., depressed mood or mild insomnia) ... OR some
difficulty in social, occupational, or school functioning ... but generally functioning pretty well,
has some meaningful interpersonal relationships." American Psychiatric Ass'n, Diagnostic and
Statistical Aianual ofMental Disorders 34 (4'h ed. Text Rev. 2000) (DSJ',;l-IV-TR).
The ALJ's detetmination that Dr. Kolilis did not find a severe mental impairment is
supported by substantial evidence.
(2) Peter LeBray, Ph.D.
Doctor LeBray reviewed the medical records and completed an August 2005 Psychiatric
Review Technique ("PRT") form in which he opined that the claimant's mental impaitment
caused moderate functional limitations. Tr. 521-34. Dr. LeBray found Harlow had moderate
difficulties in maintaining social functioning, and moderate difficulties in maintaining
concentration, persistence, and pace. Tr. 531.
6 - OPINION AND ORDER
The ALI noted Dr. LeBray's opinion, and gave it "very little weight." Tr. 24.
The ALJ
stated that Dr. LeBray "failed to provide clarity as to why" the claimant had moderate limitations.
Tr. 24. The ALJ noted that LeBray cited Dr. Kolilis's examination, but conflicted with Dr.
Kolilis who found that Harlow was able to concentrate, attend and interact appropriately. Id.
The ALJ found that Dr. LeBray's opinion was entitled to little weight, in pmi, because
Dr. LeBray did not assess Harlow's limitations with and without the influence of marijuana.
This assettion is an error, but it is harmless as the ALJ was entitled to give more weight to
examining Dr. Kolilis than reviewing Dr. LeBray.
The ALJ offered specific and legitimate reasons to give Dr. LeBray's opinion little
weight.
(3) Karen Bates-Smith, Ph.D.
Dr. Bates-Smith examined Harlow in April 2008 and diagnosed a conversion disorder.
Tr. I 02-12. Dr. Bates-Smith stated:
First, there is one or more symptoms or deficits affecting voluntary
motor or sensory function that suggest a neurological condition.
Psychological factors likely are associated with the condition. I do
not believe the symptoms are intentionally produced. Per two recent
physical exams, the symptoms do not seem to be fully explained by
a general medical condition. The symptoms cause clinically signific
cant distress or impairment in social and occupational functioning.
Tr. 108.
Dr. Bates-Smith thought that Harlow was moderately limited in her ability to understand,
remember, and cany out complex instructions, make judgments on complex work-related
decision, interact appropriately with the public, and respond appropriately to usual work
situations and to changes in a routine work situation. Tr. 110-11. She opined that Harlow would
7 - OPINION AND ORDER
be unable to complete a normal work day or week without significant interference from the
conversion disorder and would be likely to call in sick. Tr. 111.
The ALJ cited Dr. Bates-Smith's opinion, and stated:
Her conclusion, however, is based on a faulty foundation. While
Dr. Bates-Smith did not believe the symptoms were intentionally
produced, Dr. Shults and Dr. Egan clearly established the voluntmy
nature of the claimant's symptoms. Additionally, Dr. Bates-Smith
saw the claimant 2 Y:. years after her date last insured. If a conversion
disorder existed in April 2008, there is no evidence that it existed on
or before the date last insured .
... Dr. McDevitt, the medical expert, initially testified that a conversion
disorder existed .... Dr. McDevitt leaned toward a global disorder but he
believed the claimant's behavior was involuntmy.
However, the medical expeti's testimony, in full, weighed on the side
of no severe impainnent. He testified that although the claimant had
been dysfunctional, no etiology had been established for this result. Dr.
McDevitt stated that he would be hard pressed to find an absolute
medical disorder that was fixed. Instead, he was unable to find any
evidence of an organic disorder to cause the claimant's loss of function
and that the evidence of an emotional disorder was inferential with no
clear cut medical findings.
Further questioning led the medical expert to admit that there was insufficient evidence from treating sources to reach the conclusion that
a conversion disorder existed. Although Dr. McDevitt said that he
thought the symptoms were involuntary, he would not put his professional reputation on that conclusion.
Tr. 26.
Harlow argues that Dr. Shults and Dr. Egan are eye doctors and not psychiatrists.
Although this is true, it is not a valid reason to discount their perception that Harlow's symptoms
were voluntmy. Dr. Egan stated, in October 2002, that Harlow was "poorly cooperative" and had
8 - OPINION AND ORDER
"convergence spasm and voluntary nystagmus manifested by fluttering eyelid and eye
movements. These are completely volitional." Tr. 310.
William Shults, M.D., examined Harlow in August 2008. He stated:
Ms. Harlow exhibited chorieform movements tln·oughout the course
of today's examination. As her examination progressed so did the
intensity and frequency of these movements. I will defer to others
to comment on the origin of such movements, but, given her ocular
findings, there is a strong likelihood that the movements are not
organically based. Ms. Harlow did not have frequent eyelid blinking
when she first entered my exam room wearing sunglasses; however,
as soon as the eye examination began, her blinking started with a
vengeance and persisted throughout the course of the examination.
The blinking appeared volitional ie was not that seen with benign
essential bleharospasm or hemifacial spasm .... She'doth protest too
much' in trying to impress the examinaer [sic] with her visual
incapacity.... Ms. Harlow's examination is devoid of any organic
explanation for her visual complaints and I believe that her visual
symptoms are entirely functional in nature.
Tr. 295-96.
Dr. Shults stated that the claimant "claims inability to see 20/400 with either eye. There
are no objective examination findings which support visual function at this level. There is a
distinct probability that patient is malingering with respect to claimed visual impairments." Tr.
303. Finally, Dr. Shults noted that Dr. Egan found convergence spasm and voluntary nystagmus,
"two classical signs offunctional (non-organic) ocular motility 'abnonnalities.' That such
findings were not seen at the time of my examination reinforces their voluntary nature." Tr. 308.
Harlow cites the testimony of Robert McDevitt, M.D., a psychiatrist who testified as a
medical expeti. Tr. 636-654. Dr. McDevitt testified that he had observed Harlow and that "her
movements are unphysiological, are not associated with any known neurological disorder that I
know of. I suspect what she has is what is a histrionic conversion reaction, very reminiscent of
9 - OPINION AND ORDER
•
the days of Charcot [phonetic] and the original description of grand hysteria." Tr. 639. When
asked whether he agreed that Harlow has a conversion disorder, Dr. McDevitt stated "Yeah, it's
-I'm sony, that's a bit nanow. She has more of a global disorder that involves more than one
body system .. .I guess for shorthand one could call it conversion disorder." Tr. 642. Dr.
McDevitt noted that Dr. Bates-Smith repmied factitious behavior, and stated:
I think we still have some unanswered questions here, to be
honest with you. And I think part of the unanswered question
is the definitive evaluation of whatever this is and I think plus
the possibility of -I don't see- in general I think many medical
physicians feel that people do this fo secondary gain, factually
this is not necessarily an issue it is a physical expression of an
emotional conflict sometimes, with resolve to that conflict and
that's really what a conversion disorder's about but conversion
disorders can be of psychotic, neurotic, or characterological
origin so it's not necessarily-! would be hard pressed with the
evidence I have here-with all respect to Dr. Bates-Smith and
Dr. Colleles, to just make the diagnosis on that evidence without,
again, an ENG-the definitive ENG which would then-and then
a definitive in-depth study of what's going on conflictually with
this individual.
Tr. 646.
The ALJ cited specific and legitimate reasons for discrediting one examining physician in
favor of two others.
II. Lay Testimony
The ALJ has a duty to consider lay witness testimony. 20 C.P.R.§ 404.1513(d);
404.1545(a)(3); 416.945(a)(3); 416.913(d); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
Friends and family members in a position to observe the claimant's symptoms and daily activities
are competent to testify regarding the claimant's condition. Dodrill v. Shala/a, 12 F.3d 915, 91819 (9th Cir. 1993). The ALJ may not reject such testimony without comment and must give
10 -OPINION AND ORDER
reasons germane to the witness for rejecting her testimony. Nguyen v. Chafer, 100 F.3d 1462,
1467 (9th Cir. 1996). However, inconsistency with the medical evidence may constitute a
germane reason. Lewis, 236 F.3d at 512. The ALJ may also reject lay testimony predicated upon
the testimony of a claimant properly found not credible. Valentine v. Astrue, 574 F.3d 685, 694
(9th Cir. 2009).
A. Robert Reiker
Harlow's landlord and roommate, Robert Reiker, provided a December 2004 statement in
which he stated that the claimant spent most of her time sleeping, watching television, and
talking. Tr. 366. Most of the restrictions he describe relate to Harlow's physical activity. He
stated that Harlow socialized regularly with friends on the telephone and in person, and that she
had no trouble getting along with others. Tr. 370-71. He did not describe any significant mental
limitations.
The ALJ noted Mr. Reiker's statement, and properly concluded that it did not establish
the existence of a severe impairment. Tr. 30.
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
11 - OPINION AND ORDER
•
B. Bridget Wright
Ms. Wright filled out a Function Rep01i in December 2004. She stated that she helped
Harlow fill out forms at social service agencies. Tr. 375. She describes vertigo, nausea, and
vision issues, all of which are based on Harlow's subjective reports, which the ALJ properly
found not credible. Tr. 30.
CONCLUSION
For the above reasons, the Commissioner's decision is affirmed and this matter is
dismissed.
IT IS SO ORDERED.
Dated this _l_( day of October, 2012.
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12 -OPINION AND ORDER
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