Wernecke v. Commissioner Social Security Administration

Filing 21

Opinion and Order. The Commissioner's final decision is AFFIRMED. Signed on 7/2/2014 by Judge Robert E. Jones. (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

STEVEN WERNECKE,
Plaintiff,

v.
CAROLYNW. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 3:13-cv-00739-JO

OPINION AND ORDER

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JONES, J.,

Plaintiff Steven Wernecke appeals the Commissioner's decision denying his applications
for disability insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the
Commissioner's decision.
PRIOR PROCEEDINGS
Wernecke filed his applications in August 2009, initially alleging disability beginning on
April 1, 2005. Adm in. R. 13. He alleged he could not work due to a learning disorder and
mental health problems. Admin. R. 251. At the administrative hearing, Wernecke amended his
alleged onset date to January 1, 2009. Admin. R. 13.
The Administrative Law Judge (ALJ) applied the sequential disability dete1mination
process described in 20 C.F.R. §§ 404.1520 and 416.920. See Bowen v. Yuckert, 482 U.S. 137,
140 (1987). At step one, the ALJ found that Wernecke had not engaged in substantial gainful
1 Opinion and Order

activity since his amended alleged disability onset date. At step two, he found that Wernecke
had severe impairments, specifically substance abuse (methamphetamine and cannabis),
borderline intellectual functioning, a learning disability, an anxiety disorder and attention deficit
hyperactivity disorder. Ad min. R. 15. At step three, the ALJ found Wernecke did not have an
impaitment or combination of impairments that met or equaled the requirements of a listed
impaitment. Admin. R. 16. The ALJ found that Wernecke's complaints concerning the
intensity, persistence and limiting effects of his symptoms were not credible. Admin R. 18, 2325. He also determined that Wernecke had the residual functional capacity (RFC) to perfotm
medium work, except that Wernecke would be limited to simple repetitive work. Wernecke
could not be required to do extensive writing or more than simple math and could not have more
than occasional interaction with coworkers, the public and his supervisor, from whom he should
receive verbal work instructions. Admin. R. 17
The VE testified that a person having Wernecke's age, education, work experience and
RFC could perform jobs that exist in significant numbers in the national economy such as night
cleaner, dishwasher/kitchen helper and addresser. Admin. R. 82-85. The ALJ concluded that
Wernecke was not disabled as defined by the Social Security Act. Admin. R. 26.
STANDARD OF REVIEW
The district court must affitm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supp01ied by substantial evidence in the record as a whole.
42 U.S.C. § 405(g); Batson v. Comm 'r ofSoc. Sec. Admin. 359 F.3d 1190, 1193 (9th Cir. 2004).
Under this standard, the Commissioner's factual findings must be upheld if supported by
inferences reasonably drawn from the record, even if evidence exists to supp01i another rational
interpretation. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1039-40 (9th Cir. 1995).

2 Opinion and Order

DISCUSSION
Wernecke contends the ALJ did not properly evaluate the opinions of the medical
experts. Specifically, he argues the ALJ etTed in the relative "weight" given the opinions of the
treating psychiatrist and various examining psychologists. Wernecke also claims the ALJ
committed reversible etTor by failing to consider Wernecke' s inability to sustain employment for
longer than brief periods.

A. Medical Opinions
1.

Treating physician's opinions

Wernecke argues that the ALJ elTed by giving "little weight" to the treating psychiatrist
Dr. Suckow' s opinion because the ALJ enoneously concluded that Dr. Suckow was a nontreating physician. Wernecke misinterprets the ALJ' s decision. In his decision, the ALJ
acknowledged several times that Dr. Suckow was Wernecke's treating psychiatrist. The ALJ
noted that "[o]n February 15, 2011, the claimant's treating psychiatrist, Joel Suckow, MD ... "
Admin. R. 20. He refetTed to "(GAF) scores indicated by his treatment provider" citing Dr.
Suckow's treatment notes. Admin. R. 20. Wernecke points to the sentence in the ALJ's opinion
in which the ALJ explained his reason for giving "great weight" to Dr. Suckow's diagnostic
assessment, but "little weight" to Dr. Suckow's assessment of overall functioning: "[Dr.
Suckow's overall functioning assessment] is inconsistent with the assessment of other nontreating providers, the claimant's scores on objective cognitive testing as well as the claimant's
modest activities of daily living." In this sentence, the ALJ is not saying Dr. Suckow is a nontreating physician, he is only explaining that he discounted a portion of Dr. Suckow's assessment
because it was inconsistent with the assessment of other medical personal who were non-treating

3 Opinion and Order

physicians and who had provided reports about Wernecke. The ALJ did not conclude Dr.
Suckow was a non-treating physician.
Wernecke next argues that because Dr. Suckow was his treating physician, the ALJ cannot
reject Dr. Suckow's Global Assessment of Function (GAF), without providing specific and
legitimate reasons for doing so that are supported by substantial evidence in the record. The ALJ
must consider all medical opinion evidence. 20 C.F.R. § 404.1527(b). Although not bound by
an expert medical opinion on the ultimate question of disability, the ALJ must provide "specific
and legitimate" reasons for rejecting the opinion of a treating physician. Lester v. Chafer, 81
F .3d 821, 830-31 (9th Cir.1995). "The ALJ can meet this burden by setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation
thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)(citation
omitted). Here, the ALJ's reasons for giving "little weight" to Dr. Suckow's GAF were threefold: (1) the GAF was inconsistent with the GAF scores of other medical providers; (2) the GAF
was inconsistent with claimant's scores on objective cognitive testing; and, (3) the GAF was
inconsistent with claimant's modest activities of daily life. Wernecke takes issue with each of
the reasons.
In support of his decision, the ALJ set out a detailed and thorough summary of the facts
and clinical evidence. Admin. R. 18-23. He reviewed Wernecke's education, work experience,
family life and medical history. He described claimant's psychological and physical medical
history, including anxiety, depression, anger issues, and abdominal pain. The medical record
contained six GAF 1 scores: two provided by Dr. Suckow, who assigned Wernecke GAF scores
of 36-44 and 45 (Admin. R. 395, 652), two from non-treating physicians, Drs. Dietlein and
1
GAF describes an individual's psychological, social and occupational functioning, using a single measure. The
assessment is made based either on the individual's functional impairments or his symptoms. American Psychiatric
Ass 'n, Diagnostic & Statistical Manual oflvfental Disorders 32-34 (41h ed. Text Revision 2000) (DSM IV-TR).

4 Opinion and Order

Spendal, who assigned GAF scores of SS (Admin. R. 3S6, 417), and two from the Polk County
Mental Health records indicating a GAF score of SS (Admin. R. S73, S76). The ALJ concluded
that Dr. Suckow's GAF scores were inconsistent with the GAF scores of other medical providers
and discounted the opinion on that basis.
In addition, the ALJ discounted Dr. Suckow' s GAF scores because they were inconsistent
with the results of the objective tests Wernecke took. The ALJ listed the objective tests
Wernecke took including the Wechsler Adult Intelligence Scale -

3rd

Edition (WAIS-III),

Wechsler Memory Scales, Third Edition (WMS-III), Wechsler Individual Achievement Test
(WIAT), Wender Utah Rating Scales, Self Version (WURS), Adult Attention deficit Disorder
Evaluation Scales, SelfVersion (A-ADDES). The ALJ noted that Wernecke's scores on these
cognitive tests ranged from low average to the borderline area, but no worse than borderline
intellectual functioning. Admin. R. 19. The ALJ acknowledged that claimant's scores on the
WURS and A-ADDES combined with Werncke's assertion that he could not sit still to view a
thirty-minute television show, suggested an ADHD diagnosis. However, the ALJ remarked that
Wernecke completed detailed cognitive testing twice, and "although he required oral directions
and instructions repeated at times, the claimant was able to sit tlu·ough the complete battery of
cognitive tests." Admin. R. 19.
Finally, the ALJ discounted Dr. Suckow's GAF scores because they were inconsistent
with Wernecke's ability to engage in modest activities of daily living. The low GAF scores
provided by Dr. Suckow signify a patient with impairment in reality testing or communication or
serious symptoms in several areas, such as work, school, family relations, judgment or mood.

American Psychiatric Ass 'n, Diagnostic & Statistical },;fanual ofMental Disorders 32-34 (4th ed.
Text Revision 2000) (DSM IV-TR). Wernecke's activities do not suggest such impairment or

S Opinion and Order

symptoms and the ALJ found that Wernecke had only mild restrictions in daily living. The ALJ
noted that Wernecke managed his personal care needs independently and helped care for his wife
and children. Wernecke enjoyed working on cars and cooking; he cleaned the kitchen, did
laundry, mowed the lawn, took out the trash, went to appointments and exercised on a daily
basis. In social functioning, the ALJ acknowledged Wernecke's difficulties getting along with
coworkers, his anger issues resulting in his wife getting a restraining order against him, and his
problems with memory, task completion, concentration, understanding and following
instructions. The ALJ concluded that Dr. Suckow's low GAF scores were inconsistent with
Wernekce's ability to engage in the activities of daily living.
The ALJ set out a detailed and thorough sununary of the facts and conflicting evidence.
He provided specific and legitimate reasons to reject Dr. Suckow's low GAF scores on the bases
of inconsistencies with other medical providers' GAF scores, with objective test results and with
Wernecke's ability to engage in the activities of daily living. Tommasetti v. Astrue, 533 F.3d
1035, 1038 (91h Cir. 2008). The ALJ reasonably evaluated and weighed the treating doctor's
medical evidence and opinion. He provided specific and legitimate reasons for discounting Dr.
Suckow' s GAF that were supported by substantial evidence.
2.

The other medical opinions

Wernecke contends that the ALJ en-ed in the weight given to the opinions of Dr. Nick
Dietlein, Dr. Bill Hennings, Dr. Dorothy Anderson, Dr. Richard Frederick, Dr. Maribeth
Kallemeyn and Dr. Jill Spendal. Specifically, he argues that the ALJ gave too much weight to
the opinions of the examining psychologist Dietlein and the state agency examiners, Hennings
and Anderson, but not enough weight to the opinions of examining psychologists Frederick,
Kallemeyn, and Spendal. While I review each of Wernecke's contentions, at essence they

6 Opinion and Order

involve Wernecke's displeasure that the ALJ did not adopt Wernecke's opinion of the evidence.
"Where evidence is susceptible to more than one rational interpretation, it is the ALJ's
conclusion that must be upheld." Burch v. Barnhart, 400 F.3d 676, 679 (9 1h Cir. 2005).
a.

Allegations of too much weight given

Wernecke complains that Dr. Dietlein examined him in 2006, more than two-and-onehalf years before the amended alleged onset date, and therefore his opinion is not relevant to
Wernecke's functioning in 2009 and thereafter. Furthermore, he argues Dr. Dietlein's opinion is
discredited because he did not perfo1m foimalized cognitive functioning tests on Wernecke and
the GAF score of 55 contradicted Dr. Suckow's GAF score. The record shows that Dr. Dietlein
conducted a psycho-diagnostic interview and concluded Wernecke had ADHD, a learning
disorder, and gave him a GAF of 55. Admin. R. 358. Dr. Dietlein fuiiher concluded that
Wernecke could understand and remember instructions, was able to sustain concentration and
engage successfully in social interactions. Id. The ALJ noted that Dr. Dietlein's GAF score was
consistent with the majority of the GAFs in the record and consistent with Wernecke's mental
status examination and work history. Admin. R. 20. Finally, the ALJ observed that Wernecke'
subsequent behavior corroborated Dr. Dietlein's opinion. Id.
While it is true that Dr. Dietlein's report was issued more than two-and-one-half years
before the amended alleged onset date, Wemecke's original alleged onset date of2005 was
amended at the hearing only because Wernecke had significant gainful activity through 2008.
The timing of Dr. Dietlein's opinion therefore has more bearing on Wernecke's credibility than
on the validity of the opinion. At the time of Dr. Dietlein's assessment Wernecke indicated he
was unable to work. However, over the next two years, Wernecke continued to work and in
2008, worked at a nearly substantial gainful activity level. Id. Accordingly, the ALJ properly

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concluded that Dr. Dietlein's opinion offered a reasonably accurate picture of Wernecke's
cunent condition. The ALJ provided specific and legitimate reasons for giving "significant
weight" to Dr. Dietlein's opinion, even though it contradicted the treating physician's
assessment.
Wernecke next argues that the ALJ erred in giving "significant weight" to the opinion of
Dr. Hennings, a state agency examiner. Wernecke contends that Dr. Hennings' opinion, like Dr.
Dietlein's opinion, dates from 2006 and is not relevant. Wernecke also argues that Dr.
Hennings, a non-treating and non-examining medical source, based his opinion on incomplete
records because the 2009 evaluations ofDrs. Frederick, Spendal, Kallemeyn and Suckow were
not extant and could not be reviewed. For these reasons, he argues that Dr. Hennings opinion is
not entitled to "significant weight."
After a thorough review of Dr. Hennings repci1t, the ALJ set out the reasons for giving
"significant weight" to Hennings' opinion. He found Hennings' assessment consistent with the
overall medical record, including the results of objective testing and the subsequent findings of
Dr. Anderson. The ALJ also found Hennings' assessment consistent with Wernecke's education
history, drug use, and sho1t-tempered self-description. In addition, Hennings' opinion was
affamed by Dr. Boyd in 2010. Admin. R. 575. The ALJ provided specific and legitimate
reasons supported by evidence for giving "significant weight" to Hennings' opinion.
Similarly, the ALJ set out specific and legitimate reasons supp01ting the weight he gave
to the opinion of Dr. Anderson. Wernecke complains that the opinion was based on a review of
incomplete medical records. The ALJ gave "great weight" to Dr. Anderson's 2009 assessment,
in which she opined that Wernecke had ADHD, borderline intellectual functioning and a mood
disorder. He had mild restrictions of activities of daily living but was capable of performing

8 Opinion and Order

simple and routine tasks when .instructions were given to him verbally. Dr. Anderson's opinion
was also reviewed and affirmed by Dr. Boyd in 2010. Admin. R. 575. As with Dr. Hennings'
opinion, the ALJ found Anderson's opinion consistent with the outcomes of the objective testing,
and the claimant's educational and drug use history.
b.

Allegations of too little weight given

Wernekce objects to the weight given the opinion of Dr. Frederick. Wernecke was
refen-ed to Dr. Frederick by Wernecke's Oregon State TANF (Temporary Assistance for Needy
Families) caseworker for an evaluation to determine if Wernecke had a learning disability. Dr.
Frederick administered several standardized tests as a part of the psycho-educational assessment
and concluded that claimant "meets eligibility requirements for a learning disability ... " Admin.
R. 390. The ALJ gave "some weight" to Dr. Frederick's opinion as evidenced by the ALJ's step
two findings, which included a "learning disability." Admin. R. 15. Later in his opinion, the
ALJ commented that Dr. Frederick's assessment was done in the context of a state rather than a
federal disability assessment. Wernecke's misinterprets the ALJ's comment as a basis to
discount the weight given to Dr. Frederick's opinion. Rather, the ALJ was merely distinguishing
the state assessment from a DDS evaluation. The ALJ agreed with Dr. Frederick's conclusions,
found them to be consistent with other medical opinion and the claimant's educational history,
and adopted them.
Next, Wernecke claims the ALJ erred in giving only "some weight" to the opinion of Dr.
Kallemeyn. In his brief, Wernecke sets out three of Dr. Kallemeyn's findings: that Wernecke
was not malingering; that he put foith adequate effort during the testing; and, that his test scores
could be mildly elevated due to practice effects. However, Wernecke does not allege that the
ALJ discounted or dismissed these findings. Indeed, Wernecke fails to identify any specific

9 Opinion and Order

finding the ALJ discounted or dismissed. I find no error and Wernecke failed to specify an error
made by the ALJ. See Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 n.2
(9111 Cir. 2008).
Wernecke also argues that the ALJ's reasons for discounting the opinion of Dr. Spendal
do not constitute substantial evidence. Dr. Spendal opined that numerous baniers exist that
block Wernecke's road to employment, including ADHD, depression, anxiety and learning
disabilities. Dr. Spendal concluded: "It is not believed that [Wernecke] will be able to work at
this time." In giving Dr. Spendal's opinions "little weight," the ALJ provided three reasons: (1)
Dr. Spendal appeared to be unaware ofWernecke's significant past drng problem and marijuana
usage, (2) her assessment was inconsistent with the GAF score (55) she assigned; and (3) her
assessment was inconsistent with the treating physician's, Dr. Suckow's, opinion regarding
Wernecke's ability to work. The ALJ provided specific and legitimate reasons to give little
weight to Dr. Spendal's opinion.
B. RFC determination
. Wernecke contends the ALJ failed to consider his inability to sustain employment on a
regular and continuing basis. The ALJ' s decision reflects that he considered the evidence of
Wernecke's work history. Wernecke was tenninated from work requiring reading and writing
and the ALJ removed such occupations from Wernecke's RFC. Indeed, the ALJ considered all
the evidence of functional limitations and reached an RFC assessment based on the limitations
supported by the record as a whole. The ALJ was not required to incorporate additional
limitations he found unsuppmied by the record. Batson, 359 F3d at 1197-98; Osenbrock v.
Apfel, 240 F3d 1157, 1163-65 (9th Cir 2001); lvfagallanes v. Bowen, 881 F2d 747, 756-57 (9th

Cir 1989). Wernecke's argument regarding his alleged inability to sustain employment fails

10 Opinion and Order

because he did not meet his burden of proving such an impailment. See Mayes v. 1Vfassanari,
262 F.3d 963, 968 (9th Cir. 2001) (Claimant has the burden of proving all medically
dete1minable impailments and their effect on the ability to work on a sustained basis). The ALJ
reasonably determined Wemecke's RFC and supp011ed his determination with substantial
evidence from the record.
CONCLUSION
The ALJ evaluation of the medical opinions in this case was based on substantial
evidence and he gave specific and legitimate reasons for adopting or rejecting the opinions. The
ALJ also properly evaluated claimant's RFC and supported his decision with substantial
evidence from the record. For these reason, the Commissioner's final decision is AFFIRMED.

DATED this ;\u9 day of July, 2014.

Robeyt'E. Jo)les, Senior Judge
Unit6d.-Srai~s District Comt

11 Opinion and Order