Steen v. Commissioner Social Security Administration
Filing
21
OPINION AND ORDER. Signed on 11/21/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DOUGLAS ANDREW STEEN,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
SARA L. GABIN
14523 Westlake Drive
Lake Oswego, OR 97035-8651
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
RON SILVER
Assistant United States Attorneys
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
NANCY A. MISHALANIE
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 901
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:13-cv-01421-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Douglas Andrew Steen seeks judicial review of the
final decision of the Commissioner of Social Security denying his
application for Supplemental Security Income (SSI) disability
benefits under Title XVI of the Social Security Act,
42 U.S.C.
1381-1383f.
This Court has jurisdiction pursuant to 42 U.S.C.
1383(c) (3).
§§
For the reasons that follow, I affirm the final
§
decision of the Commissioner.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed an application for SSI on April
27,
2009,
memory
alleging disability beginning April 27,
problems,
depression,
anxiety,
2009,
due to
post-traumatic
stress
disorder, degenerative disc disease of the neck and back, hearing
loss, numbness in both legs, and sleep apnea.
Plaintiff's
reconsideration.
claims
were
denied
initially
and
upon
Plaintiff filed a request for a hearing before an
administrative law judge (ALJ).
An ALJ held a hearing on April 19,
2012, at which plaintiff appeared with his attorney and testified.
A vocational expert, Richard M. Hincks also appeared at the April
19, 2012 hearing and testified.
unfavorable
decision.
The
On May 21, 2012, the ALJ issued an
Appeals
Council
denied
plaintiff's
request for review, and therefore, the ALJ's decision became the
final decision of the Commissioner for purposes of review.
2 - OPINION AND ORDER
Born in 1968,
plaintiff was
application was filed.
eleventh grade,
4 4 years old on the date his
Plaintiff completed school through the
and has failed several attempts to earn a GED.
Plaintiff was in special education classes in school, and does not
read and write proficiently.
eight months in the Army.
After high school, plaintiff served
Plaintiff has past relevant work as a
satellite installer.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Each
step is potentially disposi ti ve.
burden of proof at
steps one
through
§§
Bowen v.
404.1520; 416.920.
The claimant bears
four.
See Valentine
the
v.
Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009);
Tackett v.
Apfel,
180 F. 3d 1094, 1098
five,
burden
shifts
the
to
the
(9th Cir.
Commissioner to
1999) .
At step
show that
the
claimant can do other work. which exists in the national economy.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his alleged onset of disability.
At step two, the ALJ found that plaintiff had the following severe
impairments: personality disorder,
disease
of
the
lumbar
and
cervical
substance abuse; and depression.
3 - OPINION AND ORDER
antisocial; degenerative disc
spine/scoliosis;
obesity;
At step three, the ALJ found that
plaintiff's impairments,
or combination of impairments,
did not
meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC)
to perform less than a .full
range of light work in that
plaintiff can lift 20 pounds with his dominant arm and 10 pounds
with his non-dominant arm; can sit, stand or walk six hours in an
eight hour day; can occasionally rotate his neck; cannot crouch or
crawl; cannot drive; cannot work around the public, but can have
occasional
contact
with
coworkers;
and
is
limited
to
simple,
repetitive tasks.
At step four, the ALJ found plaintiff is unable to perform any
past
relevant
considering
work.
At
plaintiff's
step
age,
five,
the
education,
ALJ
work
concluded
experience,
that
and
residual functional capacity, jobs exist in significant numbers in
the
national
economy
that
plaintiff
can
perform,
electronics worker, food assembler, and hand packer.
such
as
Accordingly,
the ALJ concluded that plaintiff has not been under a disability
under the Social Security Act from April 27, 2009 through the date
of the decision.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the ALJ committed
the
following
errors:
(1)
failed
to
find
the
diagnoses
of
delusional disorder, paranoid disorder, and hearing loss severe at
Step Two;
(2)
erroneously discounted plaintiff's testimony;
4 - OPINION AND ORDER
( 3)
failed
to
give
controlling
weight
to
the
opinions
of
Nurse
Practitioners Valerie Cecil and Marguerite Gareau; (3) erroneously
rejected
the
Addington;
and
lay
(4)
testimony
of
Dominique
Eckhart
and
Robin
the RFC fails to include all of plaintiff's
limitations.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
405(g);
Berry v.
Astrue,
622
F.3d 1228,
1231
42 U.S.C.
(9th Cir.
§
2010).
"Substantial evidence is more than a mere scintilla but less than
a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Hill, 698 F.3d
at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690.
The court must weigh all the evidence,
whether it supports or
detracts from the Commissioner's decision.
807 F.2d 771,
772
(9th Cir.
1986).
Martinez v. Heckler,
The Commissioner's decision
must be upheld, even if the evidence is susceptible to more than
one rational interpretation.
Admin.,
359 F.3d 1190,
1193
Batson v.
(9th Cir.
Commissioner Soc.
2004).
Sec.
If the evidence
supports the Commissioner's conclusion, the Commissioner must be
affirmed; "the court may not substitute its judgment for that of
the Commissioner."
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001).
5 - OPINION AND ORDER
DISCUSSION
I.
Step Two
Plaintiff argues
the ALJ erred by
failing
to
include
his
paranoid disorder, delusional disorder, and hearing loss as severe
impairments at Step Two.
inquiry,
"At step two of the five-step sequential
the Commissioner determines whether the claimant has a
medically severe impairment or combination of impairments."
v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996).
"severe" for Step Two purposes if it,
impairments,
mental
"significantly limits
ability
404 .1520 (c).
to
do
basic
See also Smolen,
An impairment is
in combination with other
[the claimant's)
work
Smolen
activities."
80 F.3d at 1290.
physical or
20
C.F.R.
§
A claimant can
only establish a medically determinable impairment at Step Two "if
the record includes signs - the results of 'medically acceptable
clinical
symptoms,
diagnostic
i.e.,
impairment."
[the
techniques,'
claimant's)
Ukolov v.
Barnhart,
such
as
tests
representations
420 F.3d 1002,
as
well
regarding
as
his
1005
(9th Cir.
de minimis
screening
2005) .
Ultimately,
device
however,
to dispose
Step
of groundless
Two
"is
a
claims,"
and an
impairment
or
combination of impairments will only be found "not severe" if "the
evidence establishes a slight abnormality that has 'no more than a
minimal effect on an individual's ability to work.'"
Smolen,
80
F.3d at 1290 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.
6 - OPINION AND ORDER
1988)). An error in failing to list a condition at Step Two is
harmless
if
the
ALJ
considers
the
limitations
allegedly omitted condition in formulating
posed
the RFC.
by
the
Lewis v.
Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
Here,
the ALJ did not include the diagnoses of paranoid or
delusional disorder as
severe impairments at Step Two,
but did
include the diagnosis of antisocial personality disorder and the
ALJ
analyzed
required,
plaintiff's
at Step Three,
mental
limitations
extensively,
as
and again when formulating plaintiff's
RFC.
To be sure,
plaintiff does
not
now identify any specific
functional
limitations connected with his alleged paranoid and
delusional
disorders
that
the
ALJ
failed
to
consider
when
evaluating plaintiff's antisocial personality disorder and mental
heal th
limitations
in
the
RFC.
Instead,
plaintiff
primarily
complai.ns that the ALJ erred by failing to specifically consider
and discuss paranoid and delusional disorder diagnoses because they
"show prima
fascia
(sic)
disability" and were proffered by Ms.
Gareau, a nurse practitioner.
See Plaintiff's Reply (#20), p. 8.
Plaintiff's arguments concerning Ms. Gareau's diagnoses are more
properly directed at the ALJ's evaluation of her opinion in the RFC
as9essment at Step Four, which. I address at length below.
Thus,
even assuming arguendo that the ALJ erred by failing to explicitly
include plaintiff's paranoid and delusional disorders at Step Two,
7 - OPINION AND ORDER
the error was harmless because Step Two was resolved in plaintiff's
favor and the functional limitations caused by these impairments
were considered by the ALJ in the remaining steps of the sequential
evaluation.
Id.
Plaintiff has therefore failed to show reversible
error in the consideration of his paranoid or delusional disorder
at Step Two.
I
likewise
conclude
that
the
ALJ's
determination
that
plaintiff's alleged hearing loss was nonsevere at Step Two is not
reversible error.
As the ALJ found, there is no objective testing
in the record to verify that plaintiff has 50 percent hearing loss
in both hears.
See
20 C.F.R.
§ 416.908
(an impairment must be
established by medical evidence consisting of signs, symptoms, and
laboratory findings); Id. at§ 416.920 (at Step Two, claimant must
demonstrate a medically determinable impairment).
And, as the ALJ
indicated, plaintiff testified at the hearing that when he wears
his hearing aids,
he can "hear a pin drop."
Thus, plaintiff has
failed to demonstrate that his hearing loss significantly limits
his ability to perform basic work activities.
416.920(c).
plaintiff's
See
20 C.F.R.
§
Accordingly, I conclude the ALJ permissibly found that
hearing
loss
impairment at Step Two.
Ill/
Ill/
Ill/
8 - OPINION AND ORDER
was
not
a
medically
determinable
II.
Plaintiff's Credibility
A.
Standards
Plaintiff
testimony.
contends
that
the
ALJ
improperly
rejected
his
To determine whether a claimant's testimony regarding
subjective pain or symptoms is credible, an ALJ must perform two
20 C.F.R.
stages of analysis.
§
416.929,
The first stage is a
threshold test in which the claimant must produce objective medical
evidence of an underlying
impairment
that
expected to produce the symptoms alleged.
F.3d 1104, 1112
(9th Cir.
2012);
1035, 1039 (9th Cir. 2008).
could reasonably be
Molina v. Astrue,
Tommasetti v.
Astrue,
674
533 F.3d
At the second stage of the credibility
analysis, absent affirmative evidence of malingering, the ALJ must
provide
clear
claimant's
and
convincing
testimony
Carmickle v.
reasons
regarding
the
Commissioner Soc.
Sec.
for
severity
Admin.,
discrediting
of
the
the
symptoms.
533 F.3d 1155,
1166
(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
. Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
arbitrarily discredit the claimant's testimony.
the
ALJ
did
not
Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039.
Factors
the
determinations
claimant's
ALJ
may
consider
include
treatment
9 - OPINION AND ORDER
the
history,
when
objective
the
making
such
medical
credibility
evidence,
the
claimant's daily activities,
inconsistencies in testimony, effectiveness or adverse side effects
of any pain medication, and relevant character evidence.
Ghanim,
763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
B.
Plaintiff's Testimony
At the hearing, plaintiff testified that he was last employed
full time by Dish Net in 2004. Plaintiff appeared at the hearing
wearing a soft cervical collar, which he decided to wear on his own
because it helps with his neck pain.
that
he
has
neck problems,
Tr.
47.
back problems,
lost
scoloiosis, and is about 110 pounds overweight.
CPAP machine all day to help him breathe.
described
that
he
takes
Celexa
anxiety.
Plaintiff testified
for
that
Plaintiff stated
a
48.
depression
and
has
has
Plaintiff uses a
Tr.
he
kidney,
hearing
Plaintiff
Latuda
loss
of
for
50
percent in both ears, but forgets to wear his hearing aids because
he has trouble with ear wax.
Tr. 51.
Plaintiff stated that he stopped working installing satellite
dishes
because he could no
longer perform the
job physically.
Plaintiff described having difficulty bending, kneeling, and that
moving around bothers his
back and neck.
Tr.
53.
Plaintiff
testified that he could sit for 20 minutes before needing to change
position due to pain, and that lying down is the only thing that
gives him pain relief.
15 minutes,
Plaintiff testified that he can stand for
can lift and carry 10 pounds in his left arm and 15
pounds with his right, and can walk 100 yards three to four times
10 - OPINION AND ORDER
a day.
Tr. 55, 57.
Plaintiff described that he can do household
chores for 20 minutes before needing to rest.
Plaintiff testified that two or three year ago, he had trouble
getting along with others and experiencing paranoia, but is now on
medications, with a good treatment plan, and described that "things
have been going really good,
"foresee any future problems."
doing great" and that he did not
Tr. 56.
In a May 4, 2008 Function Report, plaintiff stated that after
taking his dog for a walk, he needs to rest for two to three hours.
Tr.
17 8.
Plaintiff stated that he cannot
stand long enough to
prepare meals and does not handle stress or changes in routine
well.
In a May 2008
plainti~f
Pain and Fatigue Questionnaire,
stated that he has pain in his back and neck all day, every day,
and that the pain makes it difficult to bend, stoop or kneel.
Tr.
183.
In an August 10, 2009 Function Report, plaintiff stated that
he was living in his car, and that his back and neck hurt so much
that it wakes him three to four times a night.
Plaintiff stated
Tr.
190.
along
with
that it is difficult to dress and bathe due to pain.
Plaintiff
described
that
he
has
difficulty getting
family, friends, and neighbors, and prefers to be alone.
Tr. 194.
Plaintiff stated he can concentrate for 10 minutes, then loses his
patience.
In an August 10, 2009 Pain and Fatigue Questionnaire,
plaintiff stated that he has burning, aching, and stabbing pain in
11 - OPINION AND ORDER
his neck and back that lasts all day and is worse with moving.
that report,
plaintiff estimated he can be active for 20 to 40
minutes before needing to rest.
C.
In
Tr. 197.
The ALJ Provided Clear and Convincing Reasons to Discount
Plaintiff's Testimony
In the decision, the ALJ concluded that plaintiff's testimony
concerning the intensity, persistence and limiting effects of his
limitations
reasons,
is
when
not
The ALJ cited numerous
entirely credible.
taken
together,
constitute
clear
and
convincing
reasons to reject plaintiff's testimony.
First, as the ALJ discussed, there were multiple indications
in the record of malingering and symptom magnification concerning
plaintiff's physical and mental impairments.
findings
The ALJ discussed
from a comprehensive examination on April 12,
Robert E.
Schneider,
Ph.D.
Tr.
305.
Dr.
2006,
by
Schneider opined that
plaintiff's presentation and the objective test results provided
"definitive evidence of misrepresentation and malingering."
308.
As the ALJ noted,
assess work functions."
1228,
1235
(9th.
Cir.
Tr.
Dr. Schneider noted it was "impossible to
Tr. 308.
See Berry v. Astrue,
2010) (upholding
negative
622 F.3d
credibility
assessment where affirmative evidence of malingering present).
Additionally,
the
ALJ
discussed
an
April
24 f
2008
psychodiagnostic evaluation by Ronald D. Duvall, Ph.D., which also
found
noted,
numerous
Dr.
inconsistencies
and
exaggerations.
As
the
ALJ
Duvall indicated that despite complaining "loudly" of
12 - OPINION AND ORDER
back pain, plaintiff sat comfortably during the entire 90 minute
examination.
As the ALJ accurately discussed,
Dr.
Duvall found
plaintiff's perception of being persecuted and mistreated as a
"strongly paranoid" element to his personality, along with "selfpity, somatization, and projections of his problems onto others."
Tr. 30, 338.
Dr. Duvall also found that plaintiff's complaints of
memory loss were unsupported by clinical observations,
and that
plaintiff made "blatant" inconsistencies when he realized he was
"claiming his long-term memory to be defective."
Duvall
opined
persistence
that
were
plaintiff's
unaffected
by
his
339.
Dr.
concentration,
attention,
and
limitations,
Tr.
and
that
his
ability to engage in appropriate social interactions is limited,
but would not exclude the type of employment plaintiff has had
previously.
Tr.
340.
The ALJ' s unchallenged assessment of Dr.
Duvall's opinion is wholly supported by substantial evidence.
The
supported
ALJ's
by
finding
the
ALJ's
of
symptom
discussion
magnification
of
an
is
October
further
8,
psychodiagnostic examination from Daniel L. Scharf, Ph.D.
2009
As the
ALJ noted, Dr. Scharf found numerous inconsistencies in plaintiff's
examination. For example, Dr. Scharf noted that plaintiff reported
having typical back pain of 12 on a 10-point scale,
reported his pain level at a six.
Tr. 390.
but later
As the ALJ noted, Dr.
Scharf found plaintiff's statements about drug and alcohol use
vague and evasive, stating that plaintiff indicated drinking would
13 - OPINION AND ORDER
violate his probation, but later reported drinking beer and going
to a party.
Tr. 31, 390-91.
Dr. Scharf indicted that plaintiff
inconsistently reported his symptoms of paranoia, and as the ALJ
noted,
Dr.
Scharf found that plaintiff was not psychotic,
blamed others and deflected responsibility,
antisocial personality disorder.
Plaintiff acknowledges
consider
consistent with an
Tr. 393.
that multiple
exaggeration and malingering exist,
should not
them because
instances of symptom
but contends that the court
plaintiff's
exaggeration
instances
Schneider,
Duvall,
of
malingering
and
and
I disagree.
gradiosity are part of his anti-social disorder.
multiple
but
The
exaggeration
from
Drs.
and Scharf readily support the ALJ's finding
that plaintiff's self-reports are unreliable.
Notably, plaintiff
does not challenge the ALJ's evaluation of Ors. Schneider, Duvall,
and
Scharf.
Even
if
I
were
to
agree
with
plaintiff's
characterization of the evidence, the ALJ's interpretation of the
evidence
is
evidence,
and therefore must be sustained.
1111
(ALJ' s
reasonable,
findings
is
must be
wholly
upheld
supported
if
by
substantial
Molina,
674 F.3d at
they are
supported by
reasonable inferences drawn from the record) . I conclude the ALJ
has cited a clear and convincing reason to discount plaintiff's
testimony.
Second, the ALJ discounted plaintiff's subjective complaints
because they are inconsistent with the objective medical evidence.
14 - OPINION AND ORDER
As the ALJ correctly noted, contrary to plaintiff's allegations,
physical
examinations
have
revealed
mild
tenderness,
negative
straight leg testing, and normal gait, without deformity.
And, the
ALJ accurately noted that plaintiff was advised to lose weight and
exercise, but that plaintiff was resistant to changing his diet,
finding plaintiff non-compliant with treatment.
Tr. 658, 811, 869.
An "'unexplained, or inadequately explained, failure ... to follow
a prescribed course of treatment'n is a proper reason to reject a
claimant's
testimony.
Molina,
674
F.3d
at
1113
(quoting
Tommasetti, 533 F.3d at 1039); accord Chaudhry v. Astrue, 688 F.3d
661, 672 (9th Cir. 2012).
his
medications
for
pain
Also, plaintiff was encouraged to take
management,
but
plaintiff
finds
the
medications ineffective, and prefers to use medical marijuana for
pain control.
Tr. 309, 861, 864, 869.
Plaintiff contends that his complaints of chronic back and
neck pain, and his moderate to severe degenerative disc disease are
supported by MRI findings and other records.
712-13.
While
I
Tr. 309-11, 381, 709,
agree with plaintiff that
there
is objective
evidence in the record demonstrating degenerative disc disease, in
light of the ALJ's other negative credibility findings,
the ALJ
reasonably determined plaintiff's back and neck pain is not as
disabling as alleged.
complaints
of
For example, as discussed above, plaintiff's
intractable
observations of Drs.
back
pain
Duvall and Scharf.
15 - OPINION AND ORDER
were
And,
inconsistent
with
as the ALJ noted,
there
marijuana
for
pain
control, but was using it "pretty much the whole day."
Tr.
425,
549,
is
evidence
609,
755.
acknowledging
admitted
to
plaintiff
Furthermore,
that
drinking
consuming
medical
as
the
violates
alcohol
treatment in August of 2010.
whole,
uses
Tr.
and
ALJ
his
discussed,
probation,
declined
425.
drug
despite
plaintiff
or
alcohol
Viewing the record as a
I conclude that the ALJ reasonably discounted plaintiff's
testimony on this basis.
Additionally, as discussed above, the ALJ properly determined
that
plaintiff's
complaints
of
memory
loss
were
undermined by clinical findings and objective testing.
completely
In addition
to the contrary findings by Ors. Schneider, Duvall and Scharf, the
ALJ discussed normal mental status findings with intact memory and
concentration during other medical visits.
Tr. 283, 310.
As the
ALJ correctly indicated, plaintiff testified that his mental heal th
has significantly improved on medication.
The longitudinal medical
evidence also indicates that when plaintiff consistently takes his
medications,
he
is
psychiatrically stable.
The
ALJ discounted
plaintiff's allegations of significant mental health symptoms and
limitations
because
plaintiff's
depression
and
anxiety
were
controlled with medications and his alleged memory loss is contrary
to the objective medical evidence.
These are compelling reasons,
supported by substantial evidence, to reject plaintiff's testimony.
16 - OPINION AND ORDER
Third, the ALJ appropriately discounted plaintiff's testimony
on the basis that he may have been exaggerating symptoms in order
to gain access to benefits.
The ALJ detailed that plaintiff was
periodically homeless, . received support from his mother,
history of bankruptcy,
ALJ's
findings
reasonable,
1040
are
had a
and was being hounded by creditors.
supported
by
substantial
and will not be disturbed.
evidence,
Tomassetti,
The
are
533 F. 3d at
(ALJ properly inferred that claimant was seeking benefits
because financial reserve had run out) .
Fourth, the ALJ appropriately discounted plaintiff's testimony
based on his
reasons he
was
terminated from his last employment as a satellite installer.
As
the
ALJ
inconsistent
correctly
statements about
indicated,
plaintiff
the
provided
inconsistent reports about how he lost his job:
multiple
(1) that he lost
his job because business slowed down, but his stepfather forgot to
tell him that he had been laid off,
continued to report for work;
back pain; and
(3)
plaintiff
(2) he lost his job due to neck and
he was fired from his job at the time he was
using methamphetamine.
that
and he was fired when he
Tr. 45, 305, 884.
offered
inconsistent
The ALJ's determination
statements
concerning
his
termination is supported by substantial evidence, and is another
convincing reason to discredit his
278
F.3d
947,
959
(9th
Cir.
testimony.
2002) (poor
Thomas v. Barnhart,
work
history
is
an
appropriate credibility factor to consider); Tommasetti, 533 F.3d
17 - OPINION AND ORDER
at 1039-40
(inconsistent statements about
why claimant stopped
working a valid adverse credibility consideration) .
I conclude
the above reasons, taken together, constitute specific, clear, and
convincing reasons to discredit plaintiff's testimony.
Plaintiff argues that the ALJ selectively relies upon the
evidence supporting nondisability, indicating that plaintiff does
not
realize
overlooked
he
is
paranoid
evidence
community support
that
and
delusional,
plaintiff
and
relies
to meet his basic needs.
that
upon
the
ALJ
significant
Plaintiff correctly
indicates that he appears to have support from various community
providers who assist with housing and medications, and ensure that
plaintiff reports to his probation officer.
However, plaintiff's
efforts to explain away his lack of credibility is
Numerous
examining
providers
found
blatant
una~ailing.
inconsistencies
in
plaintiff's reporting of his physical and mental symptoms that are
supported by substantial evidence.
ALJ's
interpretation
of
this
I
cannot conclude that the
evidence
is
unreasonable
irrational, even if I would conclude differently.
Molina,
court must uphold the ALJ's findings.
This
court
may
Commissioner.
not
substitute
its
judgment
or
Therefore, the
674 F.3d at 1111.
for
that
of
the
Edlund, 253 F.3d at 1156.
Finally, in the decision, the ALJ also discounted plaintiff's
credibility
because
his
activities
of
inconsistent with his subjective limitations.
18 - OPINION AND ORDER
daily
living
were
I conclude .that this
reason is not supported by substantial evidence.
ALJ
discredited
furniture.
plaintiff
noting
that
he
For example, the
was
able
This finding is not supported by the record.
to
move
While the
record does disclose that plaintiff frequently walks his dog,
is
able to do laundry, shop, prepare simple meals, and drive himself
to appointments, these activities are not so extensive that they
are inconsistent with his alleged capabilities.
ALJ erred
in
discounting
seeking _behavior.
plaintiff's
Additionally, the
testimony based on
drug-
While plaintiff has sought emergency room care,
no emergency room provider has indicated that plaintiff was,
fact, drug seeking.
Tr. 312, 315, 368, 379-88.
is not supported by substantial evidence.
in
Thus, this finding
Accordingly, I conclude
the ALJ erred in discounting plaintiff's testimony on these bases.
In sum, although the ALJ's credibility reasoning does contain
two
errors,
the
errors
credibility finding.
amount
to
clear
do
not
invalidate
the
overall
adverse
Because the ALJ's remaining reasons still
and
convincing
support
and
are
backed
by
substantial evidence, the errors in the ALJ's credibility rationale
are harmless.
II.
See Carmickle, 533 F.3d at 1162-63.
Medical Evidence
A.
To
Standards
reject
the
examining physician,
reasons.
uncontroverted
opinion
of
a
treating
or
the ALJ must present clear and convincing
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
19 - OPINION AND ORDER
If a treating or examining doctor's opinion is contradicted by
another doctor's
opinion,
legitimate reasons.
it
may
be
rejected
by
specific
and
Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d
1228, 1232 (9th Cir. 2011).
When evaluating conflicting opinions,
an ALJ is not required to accept an opinion that is not supported
by clinical findings, or is brief or conclusory.
Id.
Under the social security regulations governing the weight to
be
accorded
to
medical
opinions,
"acceptable medical
include licensed physicians and licensed psychologists,
nurse practitioners.
See 20 C.F.R.
§§
sources"
but not
416.913(a), (d) (1).
practitioners are deemed to be "other sources."
Nurse
"Other"
Id.
medical sources may not establish the existence of a medically
determinabJe impairment, but, the information from other sources
may provide insight into the severity of a claimant's impairments
and ability to work, especially where the evidence is complete and
20 C.F.R.
detailed.
§
416.913(d);
995, 1014 (9th Cir. 2014).
Garrison v.
Astrue,
557
F.3d 1113,
759 F.3d
An ALJ must provide a germane reason
for rejecting the opinion from an "other source."
v.
Colvin,
1115-16
(9th
Cir.
See, e.g., Bruce
2009) (explaining
standard for lay witness testimony); Turner v. Commissioner of Soc.
Sec. Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010).
B.
Ms. Gareau, PMHNP
Plaintiff complains that the ALJ erred in failing to give
controlling
weight
to
20 - OPINION AND ORDER
the
opinion
of
Marguerite
Gareau,
a
psychiatric mental health nurse practitioner (PMHNP).
argues
that
Ms.
Gareau
was
plaintiff's
Plaintiff
primary mental
health
provider, treating him for over two years, and that Ms. Gareau's
opinion could only be discounted for clear and convincing reasons.
Ms. Gareau was plaintiff's primary mental health provider at
Sequoia Mental Health Services, Inc.
(which plaintiff describes as
a "community care" team) and treated plaintiff from approximately
September 8, 2009 to April 12, 2012.
Ms.
Gareau
met
with
medications,
and
appears
Tr. 622, 824.
plaintiff,
to
have
prescribed
assisted
In that role,
mental
with
health
plaintiff's
coordination of care among various social workers and probation
officers.
In
her
treatment
notes,
Ms.
Gareau
consistently
diagnosed delusional disorder, depressive disorder, and a rule out
schizoaffective disorder.
Tr. 625.
As the ALJ accurately detailed in the decision, Ms. Gareau
responded to questions provided by plaintiff's attorney for use in
plaintiff's pursuit of social security benefits.
Tr. 738.
In the
June 15, 2011 questionnaire, Ms. Gareau opined that plaintiff has
schizoaffecti ve disorder,
bipolar type.
Tr.
738.
Ms.
Gareau
stated that plaintiff is aware of being depressed, but generally
presents in a mixed state, with pressured speech, grandiosity, and
anger.
Ms. Gareau stated that plaintiff has no insight into his
illness, believing he has only depression and anxiety.
Ms. Gareau
opined that plaintiff has great difficulty with concentration,
21 - OPINION AND ORDER
persistence and pace,
eight hours,
difficulty with simple,
and would require
mental illness.
Tr. 739.
special
routine tasks for
supervision due
to
his
Ms. Gareau also opined that plaintiff's
marijuana use was not responsible for his psychiatric symptoms.
Tr. 740.
In the decision,
the ALJ thoroughly discussed the medical
evidence from various treatment providers, and assigned some weight
Dr.
Schneider's
opinion,
opinion,
. substantial
significant
weight
to
Dr.
weight
to
Scharf's
Dr.
Duvall's
opinion,
and
significant weight to the opinions of the state agency reviewing
physician's
opinions.
Plaintiff does
assessment of any of these opinions.
not
challenge
the ALJ' s
Even if the ALJ were to treat
Ms. Gareau as an acceptable medical source, because her opinions
are contradicted, the ALJ was required only to provide specific and
legitimate reasons to discount them.
The
weight,"
ALJ gave
providing
discounted Ms.
Ms.
Gareau' s
several
Gareau' s
June
germane
15,
2011
reasons.
June 2011 diagnosis of
opinion
First,
"little
the
ALJ
schizoaffective
disorder because she is not an acceptable medical source, and under
the regulations, her observations and opinion cannot establish an
impairment.
20 C.F.R.
§
416.913 (a),
(d) (only acceptable medical
sources may establish a medically determinable impairment,
but
"other sources" may provide evidence to show the severity of that
impairment) .
The record does not show that Ms. Gareau worked under
22 - OPINION AND ORDER
a physician's close supervision.
Molina,
674 F.3d at 1111.
Thus,
contrary to plaintiff's suggestion, the ALJ accurately noted that
Ms.
Gareau's
opinion
could
not
establish
the
impairment
of
schizoaffective disorder.
Second,
as the ALJ noted,
no acceptable medical source has
diagnosed plaintiff with schizoaffecti ve disorder, and thus the ALJ
found Ms. Gareau's opinion inconsistent with the other objective
evidence in the record, and appropriately discounted her opinion on
that basis. Tr.
305, 335, 389; see also Molina,
674 F.3d at 1111
(ALJ appropriately discounted physician assistant's opinion where
it conflicted with psychiatrist's opinion); Bayliss, 427 F.3d
1218
at
(inconsistency with objective medical evidence is a germane
basis to for discounting a lay opinion) .
To be sure, plaintiff
does not challenge the ALJ's evaluation of the opinions of Drs.
Schneider,
Scharf,
schizoaffective
and
disorder,
Duvall,
but
none
instead
of
whom
found
diagnosed
plaintiff
was
exaggerating mental health symptoms.
Third, as the ALJ discussed, in Ms. Gareau's treatment notes,
she lists schizoaffective disorder solely as a rule out diagnosis,
indicating the diagnosis was not definitive.
The ALJ determined
Ms. Gareau's June 15, 2011 opinion listing schizoaffective disorder
as plaintiff's primary diagnosis is therefore inconsistent with her
own treatment notes, and discounted it on that basis.
674 F.3d at 1111-12
See Molina,
(recognizing that a conflict with treatment
23 - OPINION AND ORDER
notes
is
a
germane
reason
to
reject
a
treating
physician's
assistant's opinion).
The ALJ also gave little weight to an October 22, 2009 mental
In that report, Ms. Gareau
status report authored. by Ms. Gareau.
noted that plaintiff reported a history of depression,
plaintiff
presented
with
significant
paranoid
and
and that
grandiose
delusions with significant homicidal and suicidal ideation.
396.
Tr.
Ms. Gareau opined that plaintiff has difficulties with social
functioning, and has significant deficits in recall and memory and
difficulty concentrating.
Tr. 398.
2009
reasons:
report
for numerous
The ALJ discounted the October
it was based on solely
( 1)
plaintiff's unreliable self-reports;
was
(2)
other objective evidence in the record;
inconsistent with
(3) Ms.
Gareau failed to
consider substance abuse; and (4) Ms. Gareau is not an acceptable
The ALJ' s
medical source.
reasoning readily supplies multiple
germane reasons, backed by substantial evidence,
Ms. Gareau's October 2009 report.
In
short,
I
conclude
that
Turner,
the
ALJ
for discounting
613 F.3d at 1224.
has
provided
multiple
germane reasons, supported by substantial evidence, to discount Ms.
Gareau's opinions.
Alternatively, I also conclude that when these
reasons
together,
are
taken
the
ALJ has
provided
specific
legitimate reasons to discounting Ms. Gareau's opinions.
did not err.
Ill/
24 - OPINION AND ORDER
and
The ALJ
C. Valerie Cecil, FNP
Plaintiff
little
also complains
weight
to
the
office
complete
attorney.
with
necessary
Tr.
opinion
of
the ALJ erred
Valerie
Cecil,
in assigning
Family
Nurse
On July 27, 2011, plaintiff appeared at Ms.
Practitioner (FNP)
Cecil's
that
764,
a
support
disability
person
and
paperwork
and
In that opinion,
741.
asked Ms.
return
Ms.
Cecil
it
to
to
his
Cecil diagnosed
plaintiff with cervical spine stenosis, degenerative disk disease,
scoliosis,
depression,
carcinoma.
Tr. 741.
and a history of renal cell
Ms. Cecil indicated that plaintiff's pain, as
reported by plaintiff,
scale daily.
sleep apnea,
is between four and eight on a 10-point
Additionally, with respect to plaintiff's physical
functional limitations, Ms. Cecil noted that plaintiff assessed his
own limitations as follows:
he can occasionally lift 20 pounds,
frequently lift five to 10 pounds; can stand or walk for less than
two hours total in an eight hour day, with customary breaks, and
could stand or walk for 15 minutes at a time before needing a
break; he could sit for less than two total hours, and would need
to change from sitting, standing, and' walking every 20 minutes; he
would need to rest every 45 to 60 minutes;
and cannot maintain
concentration, persistence, and pace at either light or sedentary
exertion
due
to
pain.
Tr.
743-45.
Ms.
Cecil's
contradicted by the state agency reviewing physicians.
25 - OPINION AND ORDER
opinion
is
In the decision,
the ALJ gave little weight to Ms.
Cecil's
opinion because the physical limitations were admittedly based on
plaintiff's self-reports, no objective testing was performed at the
time of the assessment, and Ms. Cecil is not an acceptable medical
source.
Tr. 32.
findings
record.
are
Having carefully reviewed the record, the ALJ's
wholly
supported
by
substantial
evidence
in
the
As discussed above with respect to Ms. Gareau, the reasons
cited by the ALJ are germane reasons, or alternatively, specific
and legitimate reasons, sufficient to discount her opinion.
The
ALJ did not err.
III. Lay Testimony
Lay witness testimony as to a claimant's symptoms or how an
impairment affects his ability to work is competent evidence, which
the ALJ must take into account.
v.
Commissioner, Soc.
See Bruce, 557 F.3d at 1115; Stout
Sec. Admin., 454 F.3d 1050, 1053 (9th Cir.
2006); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
The
ALJ is required to account for competent lay witness testimony, and
if
it
is
rejected,
germane
reasons
for
doing
so.
574 F.3d at 694.
Valentine,
A.
provide
Dominique Eckard
Plaintiff
complains
that
the
ALJ
erred
incorporate limitations described by his mother.
plaintiff's
mother,
Function report.
Dominique
Tr.
26 - OPINION AND ORDER
184.
Eckard,
in
Ms.
to
On March 6, 2008,
completed a
In that report,
failing
Third
Party
Eckard indicated
that she sees plaintiff once a month, and that plaintiff is able to
take
care
of
all
the
things
he
needs
to
get
through
including walking his dog two to three times a day.
reported
that
plaintiff
needs
reminders
to
a
day,
Ms. Eckard
groom
and
take
medication, and that plaintiff eats prepared food that he warms in
the microwave.
laundry,
afterward.
Ms. Eckard indicated that plaintiff does his own
chores,
Tr.
and
186.
goes
Ms.
to
the
store,
but
needs
to
rest
Eckard described that plaintiff was
fired from his job at Dish Net because he missed more time than
allowable, and does not handle stress.
Ms. Eckard reported that
plaintiff sometimes gets so depressed that he wants to die.
187.
Tr.
Ms. Eckard noted that plaintiff uses a walking cane and neck
brace, uses hearing aids and wears glasses.
The ALJ gave
some
weight
to
Ms.
Tr. 187.
Eckard' s
testimony
plaintiff can perform his activities of daily living,
walking his dog,
that
such as
laundry, household chores, and preparing simple
meals because her report is consistent with plaintiff's hearing
testimony.
about
Tr. 29.
plaintiff's
However, the ALJ found Ms. Eckard's testimony
pain
complaints
to
be
based
on
plaintiff's
subjective complaints and not supported by the objective evidence
in the record.
The ALJ's observations are sufficiently germane
reasons for discounting Ms. Eckard's testimony.
See Bayliss,
427
F.3d at 1218 (ALJ provided germane reasons for rejecting portions
27 - OPINION AND ORDER
of lay testimony that was inconsistent with claimant's activities
and objective evidence).
B.
Robin Addington
On September 11, 2009, Robin Addington, a housing counselor at
Open Door Counseling Center, Inc., completed a Third Party Function
Report.
Tr. 218.
Ms. Addington reported that she sees plaintiff
only periodically, when plaintiff comes to the homeless shelter two
or three times per week.
Ms. Addington reported that plaintiff is
homeless
his
and
sleeps
in
car.
Ms.
Addington
stated
plaintiff reports that he walks his dog three times a day,
otherwise rests in his car and finds food.
that
and
Ms. Addington states
that plaintiff uses a CPAP machine to help him breathe at night,
and that sleeping in his car exacerbates his pain.
She explained
that plaintiff does not have any trouble with personal care, can
prepare his own meals and can do his own laundry.
Ms. Addington
says that plaintiff is antisocial and prefers to be left alone, and
described him as paranoid, distrustful and argumentative.
Tr. 223.
The ALJ gave some weight to Ms. Addington's descriptions of
plaintiff's
meals,
activities,
such as
his
ability
to
prepare
simple
take his dog for a walk, drive a car, and shop in stores
because those limits were based on her observations at the homeless
shelter and were consistent with other evidence in the record.
The
ALJ discounted Ms. Addington's statements about plaintiff's pain
because
those
limitations
28 - OPINION AND ORDER
were
likely
based
on
plaintiff's
previously discounted subjective statements.
The ALJ's partial
rejection of Ms. Addington's testimony is supported by substantial
evidence and was not error.
V.
Bayliss, 427 F.3d at 1218.
The ALJ did not Err in Assessing Plaintiff's RFC
The RFC is the most a claimant can do despite his limitations.
20
C. F.R.
416. 945 (a).
§
In assessing
the
RFC,
the ALJ must
consider limitations imposed by all of a claimant's impairments,
even those that are not severe; the ALJ must also evaluate "all of
the relevant medical and other evidence."
An
ALJ' s
supported
RFC
by
need
substantial
the
only
Id.
incorporate
evidence
restrictions
in
consistent
with
testimony.
Stubbs-Danielson v. Astrue,
the
credible
record
identified
in
limitations
and
the
must
be
medical
539 F.3d 1169, 1174
(9th
Cir. 2008); see Bayliss, 427 F.3d at 1217 (the ALJ is only required
to identify specific, credible limitations in the RFC; "[p] reparing
a
function-by-function
analysis
for
medical
conditions
or
impairments that the ALJ found neither credible nor supported by
the record is unnecessary") .
I
have
not
identified any error
by the ALJ in assessing
plaintiff's credibility or evaluating the medical or lay testimony,
and
therefore
limitations.
conclude
that
the
RFC
included
all
credible
Because this determination is reasonable in light of
the entire record and is supported by substantial evidence,
ALJ' s
RFC and Step Five finding are affirmed.
29 - OPINION AND ORDER
the
See Osenbrock v.
Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001); see also Burch v.
Barnhart,
400 F. 3d 676,
680-81
(9th Cir.
2005) (the court "must
uphold the ALJ's decision where the evidence is susceptible to more
than one rational interpretationn) .
CONCLUSION
For the
reasons
set
forth above,
the Commissioner's
decision denying benefits to plaintiff is AFFIRMED.
finil.l
This action is
DISMISSED.
IT IS SO ORDERED.
DATED this·
,:Z {day of NOVEMBER, 2014.
fn~/for~
Malcolm F. Marsh
United States District Judge
30 - OPINION AND ORDER
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