Lindstrom v. Commissioner Social Security Administration
Filing
34
OPINION AND ORDER: The Commissioner's decision is affirmed. Signed on 7/20/2015 by Magistrate Judge Thomas M. Coffin. (plb) Corrected typographical error on 7/21/2015 (plb).
-
'
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DIANA L. LINDSTROM,
Case No. 3:14-cv-00602-TC
Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. _COLVIN,
Acting Commissioner of Social
Security,
Defendant.
COFFIN, Magistrate Judge:
Plaintiff
Security
Act
brings
(Act)
this
to
decision of
the
denying
application
and
her
disability
action
obtain
Commissioner of
insurance
for
pursuant
judicial
Social
supplemental
benefits
(DIB)
to
review
Security
the
of
the
final
(Commissioner)
security income
under
Social
the
Act.
(SSI)
The
Commissioner's decision is affirmed and this case is dismissed.
1 - OPINION AND ORDER
BACKGROUND
On February 14, 2008, plaintiff protectively filed Title II
and Title XVI applications for DIB and SSI.
applications,
2002.
Id.;
July 31,
19.
plaintiff
Pl.'s Br.
2008,
A hearing
claims were
Judge
(ALJ)
alleged
1.
disability
Tr.
19.
beginning
held
May
1,
The claims were denied initially on
and upon reconsideration on March 13,
was
In both
on
February
5,
2010
2009.
Tr.
and plaintiff's
again denied by decision of an Administrative Law
issued on March 5,
2010.
Id.
Thereafter, plaintiff
requested review by the Appeals Council, which vacated the prior
decision,
remanded the claims,
hearing be held.
and directed that a supplemental
Id.
The Appeals Council also directed that the ALJ take further
action
to
complete
the
administrative
record
and
issue
a
new
decision with an emphasis on the following:
1) exhibit and consider the February 10, 2010 statement from
plaintiff's psychiatric-mental health nurse practitioner
(PMHNP) Daniel Schroeder;
2) obtain additional evidence concerning the claimant's
mental impairments in order to update the administrative
record;
3) give
further
consideration
to
plaintiff's
maximum
residual functional capacity (RFC) during the entire
period
at
issue,
provide
rationale
with
specific
. references to evidence of record in support of assessed
limitations, and evaluate the treating and examining
source opinions and explain the weight given to such
opinion evidence; and
4) if warranted by the expanded record, obtain supplemental
evidence from a vocational expert (VE) to clarify the
2 - OPINION AND ORDER
effect
of
assessed
limitations
on
plaintiff's
occupational base and when asking hypothetical questions
to the VE, ensuring that the questions reflect the
specific capacity I limitations established by the record
as a whole.
Tr. 155-56.
In
compliance
with
the
above,
plaintiff
was
offered
a
hearing on May 9, 2012, which she did not attend because she was
receiving medical treatment.
Tr.
19.
Plaintiff did,
however,
attend a subsequent supplemental hearing on October 18, 2012 and
on November 20, 2012 the ALJ again denied her claims.
In
denying
Appeals
plaintiff's
Councils'
Specifically,
noted
the
ALJ:
statements
from
additional
evidence
(Tr.
2 3,
RFC,
provided
PMHNP
2 9-32) ;
claims,
3)
1)
considered
the
February
(Tr.
plaintiff's
further
addressed
in
the
Schroeder
concerning
specific
ALJ
deficiencies
Daniel
gave
the
Tr. 34.
30);
mental
the
record.
10,
2)
2010
obtained
impairments
consideration to plaintiff's
references
to
evidence
in
support
of
assessed limitations, and explained the weight given to treating
and
examining
evidence
from
source
opinions
a
to
VE
(Tr.
clarify
24-33);
the
effect
and
of
4)
obtained
plaintiff's
limitations on her occupational base (Tr. 19, 26, 33)
DISCUSSION
Plaintiff
provide
clear
argues
and
3 - OPINION AND ORDER
that
the
convincing
ALJ
erred
reasons
by
for
failing
to:
rejecting
1)
her
credibility;
2)
adequately explain why he found that her bipolar
disorder,
migraines,
step two;
3)
and
MRSA
were
non-severe
impairments
properly analyze the medical evidence;
she met or equaled listing 12. 04;
and 5)
4)
at
find that
accurately reflect her
Pl.' s Br. 5, 14, 25, 26, 29.
impairments in the RFC.
The court must affirm the Commissioner's decision if it is
based on proper
by
substantial
F.2d
498,
than
a
501
mere
legal
evidence
in
(9th Cir.
might
(citation
internal
v.
quotations
alleged errors,
evidence
supports
conclusions."
198 6) .
Martinez v.
Variable
insignificant
if the
Burch v. Barnhart,
I.
and
400 F.3d 676,
679
In
from
the
of
the
is
weigh
879
"more
as
401
a
a
support
(1971)
reviewing
"both
the
the
[Commissioner's]
807 F.2d 771,
interpretations
Commissioner's
389,
court must
detracts
Bowen,
evidence
to
U.S.
omitted),
this
Heckler,
relevant
402
supported
evidence
adequate
as
Perales,
Commissioner's
that
such
are
Hammock v.
Substantial
accept
Richardson
findings
record.
It means
conclusion."
and
the
and the
1989).
scintilla.
mind
reasonable
standards
772
(9th Cir.
evidence
interpretation is
are
rational.
(9th Cir. 2005)
Plaintiff's Credibility
Plaintiff argues
that
the ALJ failed to provide clear· and
convincing reasons for rejecting her credibility.
4 - OPINION AND ORDER
Pl.'s Br. 29.
The ALJ found plaintiff not
First,
the
ALJ
noted
with her mental
that
heal th
credible
during
the
counselor Ms.
for
several
course
of
Prowse,
her
LPC;
reasons.
treatment
" [plaintiff]
admitted to lying about her symptoms for secondary gain;
stating
that
Tr.
she
'manipulates
health
issues
to
get
things.'"
29
(quoting Tr. 856).
Second,
in
the ALJ noted that plaintiff had repeatedly engaged
drug-seeking
behavior.
Specifically,
the
ALJ
noted
that
plaintiff had been sentenced to "18 months of probation due to
tampering
Tr.
31
The ALJ also noted an episode on June
3385) .
with
11,
plaintiff
problems
a
morphine
requested
prescription."
narcotics
and arm pain,
but
to
address
because
(citing
2011,
complaints
she was
unable
to
Tr.
where
of
skin
keep
her
eyes open and had slurred speech, her request was denied and she
was
instead offered Tylenol.
Id.
noted that plaintiff refused the
on the floor
(citing Tr.
and writing profanities
2011,
ALJ noted. another
where
plaintiff
drug
The ALJ
Tylenol by throwing the pills
before being promptly discharged.
The
2411).
on the
registration paper
Id.
seeking
requested morphine
episode
to
on
October
alleviate
pain
her legs that was allegedly so severe she could not walk.
31
(citing Tr.
being
told
that
1289-91).
she
5 - OPINION AND ORDER
would
The ALJ noted,
not
be
however,
receiving
any
that
6,
in
Tr.
"after
narcotic
pain
medications,
[plaintiff]
got
angry
and
jumped
up
and
walked out of the examination room without problem" and before
treatment was finished.
days later,
Similarly,
Id.
on October 16,
the ALJ noted that ten
2011, plaintiff was brought into the
emergency room in a wheelchair and claimed to be unable to walk
due to right
However,
lower leg tenderness.
Id.
(citing Tr.· 2151-53).
after being told she would not receive any narcotics,
plaintiff
again
walked
out
treatment was completed.
of
the
examination
room
before
Id.
The ALJ noted another drug seeking episode where plaintiff
was hospitalized from November 9, 2011 through November 16, 2011
for complaints of depression with suicidal ideation and during
the
course
of
medication.
plaintiff
without
her
Tr.
was
stay,
31
(citing Tr.
observed
in
any obvious pain,
denied.
Id.
repeatedly
the
her
requested
1581-1605).
unit
to
request
Consequently,
be
for
narcotic
However,
pain
because
mobilizing
freely
pain medication was
plaintiff,
"extremely
then
frustrated," was "observed on security videotape to take a
of feces
from her bathroom and place it
common room. "
Id.
Critically,
under a
piec~
table in the
plaintiff's treatment provider
assessed her behavior to be not "psychotic in nature, but rather
volitional
medication
not
out
having
6 - OPINION AND ORDER
of frustration
been
met."
for
Id.
her demands
The
ALJ
for pain
noted
that
plaintiff
was
again
"discharged
retaliatory behaviors."
Finally,
treatment
the
Specifically,
the
episode on June 11,
noted
2011,
plaintiff
her
about
ALJ
her
drug
seeking
and
Id.
ALJ noted that
providers
for
drug
that
during
repeatedly lied to
and
the
alcohol
use.
aforementioned
where plaintiff was denied narcotics
because she had. slurred speech and was unable to keep her eyes
open,
"[plaintiff]
denied drinking alcohol even though she was
seen in the ER two days prior for alcohol intoxication."
Tr. 31
(citing Tr. 2411).
The ALJ noted other
her
drug
Specifically,
use.
"reported to Dr.
16 to 38,
instances
where
the
ALJ
plaintiff
noted
lied about
that
plaintiff
Gibby-Smith that she used marijuana from ages
however,
a urine drug screen shows that
[she]
tested
positive for marijuana as recently as September 2007," when she
was 43.
Tr.
29
(citing Tr.
685,
700).
Moreover,
the ALJ noted
that plaintiff testified that she has been clean and sober since
April 24,
2012,
2012,
but upon discharge from the hospital on May 8,
after a 13 day admission for complaints of depression and
suicidal ideation, plaintiff's toxicology screen tested positive
for cannabis.
[plaintiff]
7
Tr.
32.
Consequently,
the ALJ found that "while
testified she has been clean and sober since April
OPINION AND ORDER
24,
2012,
given her admission regarding lying and manipulation,
it is difficult to accord her assertions much weight."
When a
could
claimant has medically documented impairments that
reasonably
be
expected
symptoms complained of,
evidence
of
to . produce
malingering,
specific, clear and
80
"the
convincin~
F.3d 1273,
some
degree
of
the
and the record contains no affirmative
ALJ
can
1281
reject
the
claimant's
symptoms only by offering
testimony about the severity of
Chater,
Tr. 32.
reasons for doing so."
(9th Cir.
1996)
Smolen v.
(internal
citation
A general assertion that the claimant is not credible
omitted)
is insufficient;
testimony is
the ALJ must "state which
not credible and what evidence suggests the complaints are not
credible."
v.
Shalala,
12
F.3d
915,
918
(9th
Cir.
The reasons proffered must be "sufficiently specific to
1993) .
permit
Dodrill
the
reviewing
court
arbitrarily
discredit
the
Shalala,
F.3d
to
750
50
748,
conclude
claimant's
(9th
Cir.
that
the
testimony."
1995)
ALJ
did
Orteza
(internal
not
v.
citation
omitted) .
The
ALJ may
consider
objective
medical
evidence
and
the
claimant's treatment history, as well as any unexplained failure
to
seek treatment
Smolen,
or
follow
80 F. 3d at 1284.
a prescribed course
Moreover,
of treatment.
exaggerating complaints of
pain in order to receive prescription pain medication provides a
8 - OPINION AND ORDER
clear and convincing reason to conclude that plaintiff was
credible.
Edlund v.
2001) .
The
ALJ may
evaluation,
prior
such
80
employ
as
inconsistent
Smolen,
Massanari,
the
253
F.3d 1152,
ordinary techniques
claimant's
statements
F. 3d at 1284.
947,
engage
959
in
concerning
the
Here,
the
admitting that
ALJ
(9th
Cir.
credibility
for
lying
alleged
and
symptoms.
If the "ALJ's credibility finding is
second-guessing."
(9th Cir. 2002)
of
reputation
supported by substantial evidence in the record,
not
1157
not
Thomas
v.
[the court]
Barnhart,
278
may
F. 3d
(internal citation omitted).
made
specific
she manipulates
reference
heal th
to
plaintiff
issues to get
things
that she lies about her symptoms for secondary gain.
and
Moreover,
the ALJ cited several specific examples of plaintiff engaging in
such
behavior.
The
plaintiff
engaging
treatment
providers
completing
variable
ALJ
in
treatment
about
nonetheless
upheld.
See
Batson
v.
behavior,
alcohol
denied
examples
lying
use,
of
such
Soc.
that
Sec.
of
to
her
and
not
narcotics.
evidence may exist,
reasonable,
Comm' r
specific
and
being
of this
was
While
the ALJ' s
it
Admin.,
must
35 9
be
F. 3d
(9th Cir. 2004).
sum,
supported
drug
after
analysis
In
cited
drug-seeking
interpretations
1190, 1198
also
by
the
ALJ
provided
substantial
9 - OPINION AND ORDER
clear
evidence,
and
for
convincing
rejecting
reasons,
plaintiff's
subjective symptom statements.
Accordingly, this court need not
discuss all of the reasons provided by the ALJ because at least
one
Soc.
legally
Sec.
sufficient
Admin,
533
reason
exists.
F.3d 1155,
Carmickle
1162-63
v.
(9th Cir.
Comm' r
2008).
of
As
such, the ALJ's credibility finding is affirmed.
II.
Consideration of Plaintiff's Impairments at Step Two
Plaintiff argues that the ALJ erred at step two by failing
to adequately explain his rejection of her diagnoses for bipolar
disorder, migraine headaches, and MRSA.
argues
that
although
limitations
due
these
she
did
not
Pl.' s Br.
initially
impairments,
"she
Plaintiff
6.
allege
testified
disabling
at
hearing
that MRSA and headaches caused impairment, giving the ALJ notice
that
said
Moreover,
her
conditions
plaintiff
reporting
treated
support
for
of
to
hospital
argument
ALJ
impairments·:
disorder,
Tr.
that
obesity,
ADHD,
in remission,
abuse."
found
that
being
diagnosed
ALJ
had
plaintiff
"has
the
arthritis of the spine,
right foot
in the
impairments,
the
Reply
Br.
3-4.
record of
with
and
presumably
in
notice
that
said
Pl.'s Br. 7-14.
fracture,
marijuana abuse,
22.
Pl.'s
instances
and
aforementioned
impairments were disabling.
The
disabling."
sites multiple
the
the
her
were
following
severe
depression,
panic
methamphetamine dependence
prescription drug dependence and
The ALJ also found that plaintiff had alleged
10 - OPINION AND ORDER
and
been
treated
the
records,
for
other
however,
complaints
those
alleged
periodically
impairments,
throughout
"considered
singly or together, have caused only transient and mild symptoms
and
limitations,
are
well
controlled with
treatment,
have
not
been present or are not expected to persist for a period greater
than 12 months, or are otherwise not adequately supported by the
medical evidence in the record."
Tr. 22,
Moreover,
24.
the ALJ
noted that plaintiff testified "that her main obstacles to work
are problems with focus, anxiety, and back pain."
The
step-two
dispose
of
153-54,
107
sequential
claimant
groundless
S. Ct.
a
a
de minimis
Bowen v.
claims.
at
At
22 97-98.
the
inquiry,
has
impairments.
inquiry is
Commissioner
medically
Yuckert,
step
severe
Tr. 24.
screening device
Yuckert,
two
of
482
the
determines
impairment
or
U.S.
to
at
five-step
whether
the
combination
of
482 U.S. at 140-41, 107 S.Ct. at 2290-91.
"An impairment is not severe if it does not significantly limit
[the claimant's]
20
C.F.R.
activities
jobs,
physical ability to do basic work activities."
404 .1520 (c),
§§
are
"abilities
including,
for
and
404 .1521 (a) (1991).
Basic
work
aptitudes
to
most
example,
pushing,
C.F.R.
140.1521(b); Social Security Ruling (SSR) 85-28.
11 - OPINION AND ORDER
reaching,
standing,
lifting,
§
pulling,
walking,
necessary
do
sitting,
carrying or handling."
20
At
step
combined
two
effect
ability to
of
of
the
all
inquiry,
of
the
function,
without
sufficiently severe.
required
to
consider
such as pain or fatigue,
C.F.R.
impairments
can
establishes
a
be
consider
was
F.3d at 1289-90.
claimant's
An
"not
impairment
severe"
abnormality
that
Yuckert
v.
Bowen,
841
F.2d
303,
The ALJ is
subjective
or
only
has
306
symptoms,
SSR 95-5p; 20
combination
if
the
"no
(9th
of
evidence
more
minimal effect on an individual's ability to work."
28;
the
regard to whether each alone
80
impairments
in determining severity.
found
slight
claimant's
must
her
the
404.1529(d)(2).
§
ALJ
on
Smolen,
also
the
than
a
See SSR 85Cir.
1988)
(adopting SSR 85-28)
Here,
the
obstacles
to
ALJ
work
noted
are
plaintiff's
problems
with
testimony
focus,
that
her
main
anxiety,
and
back
pain and found that she suffered from severe impairments related
to
complaints,
said
depression,
including
panic disorder,
arthritis
and ADHD.
of
the
spine,
The ALJ also found that
plaintiff suffered from additional severe impairments including
obesity,
right
remission~
abuse.
been
foot
fracture,
methamphetamine
dependence
in
marijuana abuse, and prescription drug dependence and
Moreover,
treated
for
the ALJ noted that plaintiff had alleged and
other
complaints
throughout
the
record,
but
found that those complaints did not create severe impairments,
12 - OPINION AND ORDER
in
part,
because
they
were
not
adequately
supported
by
the
medical evidence.
Additionally,
of
being
al though
diagnosed
migraine headaches,
the
record
support
are
her
example,
with
plaintiff
and
and MRSA,
inaccurate
argument
plaintiff
that
claims
cites
treated
multiple
instances
bipolar
disorder,
for
many of plaintiff's citations to
and,
therefore,
said
impairments
that
her
fail
to
are
treating
adequately
severe.
For
psychologist
Dan
Carpenter,
Ph.D.,
diagnosed her with bipolar disorder on August
17,
2004.
Pl.'s Br.
Dr.
Carpenter's report reveals that he ruled out a diagnoses of
However, inspection of
6 (citing Tr. 508)
bipolar disorder and assessed plaintiff's appearance,
mood,
affect,
content,
speech,
motor activity,
impulse control,
and attention/
judgment,
attitude,
thought process,
insight,
concentration to all be
thought
memory impairment,
in the
"normal"
range.
Tr . 5 0 7 - .5 0 8 •
Similarly,
plaintiff
alleges
that
she
bipolar disorder by Dr. Karin Nylund, M.D.,
and
Celeste
However,
Doneen,
MSW,
on November
the record reveals that Dr.
1,
was
diagnosed
with
on November 11,
2009
2009.
Nylund and Ms.
not diagnose plaintiff with bipolar disorder,
out
a
diagnosis
Moreover,
Dr.
of
bipolar
Nylund made
13 - OPINION AND ORDER
note
disorder.
6.
Doneen did
but rather ruled
Tr.
of plaintiff's
Br.
Pl.' s
927,
1954-55.
substance
abuse
problem
by
noting
hospitalization
that
[plaintiff]
oxycodone in her room."
Other
diagnosed
medical
with
"at
point
near
the
end
of
her
was found to have a couple pills of
Tr. 928.
records
bipolar
affirmative diagnosis.
one
plaintiff
disorder
cites
as
fail
to
also
proof
of
being
demonstrate
an
For example, the only mention of bipolar
disorder in the emergency room reports that plaintiff cites from
August
29,
present
2011,
and November
sections
illness
8,
the
of
2011,
are
in the
reports,
which
history of
state
that
plaintiff "questionably [had] bipolar disorder" and that she has
a
history of "possible bipolar disorder."
Consequently,
these
disorder currently,
reports
rather,
not
only
fail
Tr.
to
1685;
2629-30.
diagnose
bipolar
they question whether plaintiff ever
had bipolar disorder in the past.
Finally,
Holloway,
the
PMHNP,
report
that
plaintiff
wrote on January 11,
2012,
relies
on
that
Beth
similarly failed to
diagnose plaintiff with bipolar disorder and instead, noted only
that plaintiff reported "she was told that she was monopolar and
that her ADHD mimics symptoms of bipolar disorder."
Tr.
3504.
Consequently, this report that plaintiff cites as support of her
argument that she was diagnosed with bipolar disorder,
actually
reveals that she admitted to not actually being diagnosed with
14 - OPINION AND ORDER
bipolar disorder,
but rather with ADHD,
which as stated above,
the ALJ found to be a severe impairment.
With
regard
to
plaintiff's
migraine
headaches,
plaintiff
argues that the ALJ failed to "accurately determine the severity
of
Pl.' s Br.
[her] migraine headaches."
However,
7.
plaintiff
later conceded that "it was not clear whether headaches had only
a
minimal
effect
activities."
on
ability
[her]
several
argument
instances
that
MRSA
cited
self-diagnosed
behavior,
and
drug
For example,
also
seeking
due
to
(emphasis
in
plaintiff
was
"declined
that
work
was
not
offered
Pl.'s
her
that
drug
seeking
without
"only
hot/cold
to
argues
Br.
11
the
her
Tr.
"while
that
1581.
for
(citing
record
room
wanted
packs
of plaintiff's
isolated in her hospital
However,
isolated
15 - OPINION AND ORDER
reveal
in
an example
she was
MRSA."
plaintiff
of
tr~atment
medical
plaintiff
behavior,
original).
support
symptoms,
engaged
cited by the ALJ as
active
in
in one instance cited by plaintiff,
"encouraged to attend groups."
reveals
plaintiff
refused
psychiatrically hospitalized,
room
basic
the medical record reveals
disabling
MRSA,
ultimately
explanation.
by
caused
plaintiff
which was
perform
Id. at 13.
With regard to plaintiff's MRSA,
that
to
and
Tr.
reveals
was
Moreover,
oxycodone
1605)
that
instead
the record
for
comfort,"
pain,"
"refused
antibiosis," and her "focus continue[d] to center on reliance on
pain medication."
It
wasn't
until after
plaintiff became
has
contaminate
the
several days
off
unit,
her
[and]
band
reveals
contact
[her]
her
that
above,
room due
to
"[plaintiff]
precautions
Tr.
room."
hospital,
for
1610
and
early doses
the
[the]
night
Tr.
Rather,
1599,
continued
MRSA
to
and
state
isolated
(emphasis supplied)
plaintiff was
the
she
record
required
[herself]
Further,
medication.
about
being
in
as stated
eventually discharged
dining room after becoming annoyed at
before"
to
of bedtime
[were] established."
active MRSA.
active
the ALJ noted that
in
she
thteaten[ed]
after she "intentionally left feces in paper towels under
table
when
However, even then, plaintiff was not
(emphasis supplied).
isolated to
aids
demand[ed]
meds," that "contact precautions
1604
in the
"upset with pain med taper," · "report [ ed]
"t[ore]
MRSA,"
1592, 1604.
Tr.
tapered
off
of
[the]
[the]
her
RN
pain
Tr. 610.
Consequently,
because many of plaintiff's citations to the
medical record that were meant to put the ALJ on notice of her
impairments,
were
inaccurate,
dependent
on
plaintiff's
subjective symptom statements, which as discussed above, the ALJ
properly rejected,
by
the ALJ,
or displayed drug seeking behavior as noted
plaintiff's
16 - OPINION AND ORDER
argument,
which
is
contingent
upon
a
finding
of error on this
Barnhart,
427
F.3d
Danielson v. Astrue,
issue,
is
1217-18
1211,
539 F.3d 1169,
Bayliss
without merit.
(9th
Cir.
1175-76
2005);
(9th Cir.
v.
Stubbs-
2008).
As
such, the ALJ's step two findings are upheld.
III. Analysis of the Medical Evidence
Plaintiff argues
that
the ALJ failed
her prescription drug abuse,
as well as
to properly evaluate
the opinions of Daniel
Schroeder, PMHNP, and Dr. Stephen Thomas, M.D.
Pl.'s Br. 16-28.
A. Prescription Drug Abuse
Plaintiff
[her]
use
or
contributed'
her
19
that
misuse
to
remaining
Pl.'s Br.
argues
[her]
the
of
ALJ
erred
prescription
"in
determining
that
'significantly
drugs
dysfunction and that if she stopped abuse,
functional
limitations
(citing Tr.
would not
preclude
work."
Plaintiff also argues that "even
27).
if the ALJ is correct that substance abuse contributed to
the ALJ should use
mental dysfunction
inferences
about
other medical
conclusion."
The
found
ALJ
functionality,
expert
provided
Pl.'s Br. 20
performed
the
significantly
contribute[s]
result [ed]
a
in
[RFC]
17 - OPINION AND ORDER
an
opinion
where
to
no
support
in making
doctor
the
or
ALJ' s
(quotations omitted).
plaintiff's
that
especially
caution
[her]
that
sequential
"substance
to
[her]
precludes
five
use
step
and
disorder
overall
all
analysis
dysfunction
employment"
and
and
that
"if
[she]
stopped
significant
number
could perform."
because
the
"the
substance
of
Tr.
jobs
27,
substance
in
there
the
national
Consequently,
33.
use
disorder
is
a
In
that
contributing
[plaintiff]
this
finding,
the
ALJ
noted
claimed to be clean and sober since April 24,
that
ALJ
noted
through May
positive
8,
for
chemical
that
after
issues
stating
feel
that
The Contract
Id.
4i U.S.C.
§
has not
plaintiff
2012.
admission
Tr.
32.
from April
toxicology
have
the
a
primary
extent
26
screen was
.
a
much better chance
18 - OPINION AND ORDER
for
remains
as well as
of
longer
3627).
of
19 9 6 amended
"an individual
if
disabled
alcoholism or
shall
drug
contributing factor material to the
determination
423 (d) (2) (C).
she
and benzodiazepines,
and provides that
be a
concern
that
with America Advancement Act
considered to be
Commissioner's
'to
(citing Tr.
the Social Security Act
addiction would
remain
opiate,
she will
term stability.'"
be
hospital
[plaintiff's]
abstinent from alcohol,
not
factor
cannabis" and "a treatment provider observed that
[plaintiff],
I
"a
2012
dependency
cannabis,
[she]
2015 and reported
she needed drug rehab for marijuana on April 25,
The
a
Tr. 34.
ff
reaching
be
the ALJ found that
material to the determination of disability,
been disabled .
would
economy
use
that
the
individual
is
disabled."
The ALJ must conduct a drug abuse and
alcoholism
analysis
by
determining
which
of
the
claimant's
disabling limitations would remain if the claimant stopped using
drugs or alcohol.
must
20 C.F.R.
404.1535(b).
§
identify disability under
conducting the
the
drug and alcohol
substance
abuse
is
material
Massanari,
262 F.3d 949,
955
five
to
determine
disability.
(9th Cir.
the ALJ
step procedure before
analysis
to
However,
whether
Bustamante
2001).
v.
If the ALJ finds
that the claimant is disabled and there is medical evidence of
her drug addiction or alcoholism, then the ALJ must determine if
the claimant would still be found disabled if she stopped using
alcohol or drugs.
be disabling,
is
not
U.S.C.
a
§§
Id.
If the remaining limitations would still
then the claimant's drug addiction or alcoholism
contributing
factor material
to
her
disability.
42
423(d)(2)(c), 1382c(a)(3)(J).
When evidence exists of a claimant's drug or alcohol abuse,
the
claimant
bears
the
burden
of
proving
that
her
substance
abuse is not a material contributing factor to her disability.
Parra v. Astrue,
carry
this
481 F.3d 742,
burden,
the
744-45,
claimant
must
748
(9th Cir.
offer
evidence
2007).
To
that
the
disabling effects of her impairments would have remained had she
stopped abusing drugs or alcohol.
Id. at 748-49.
is inconclusive does not satisfy this burden.
19 - OPINION AND ORDER
Evidence that
Id. at 749.
Here,
the ALJ performed the sequential five
and found plaintiff . disabled based on all
including her substance use disorders.
that
plaintiff's
determination
significant
substance
of
use
disability
number
of
jobs
in
of her
However,
disorder
and
is
that
the
step analysis
impairments,
the ALJ found
material
there
national
to
would
economy
the
be
that
a
she
could perform if she stopped the substance use.
The ALJ reached this conclusion after reviewing the medical
evidence and specifically noting the opinion of Dr. Bryan Dixon,
M.D.,
who
primary
better
opined
concern
chance
drugs.
that
for
of
dependency
plaintiff and that
longer
Moreover,
references
chemical
as
throughout
term
his
she
stability
noted
above,
opinion
the
of
record
contains
evidence
of
remain
would have
a
a
much
she
abstained
from
ALJ
if
made
plaintiff's
alcohol abuse and drug seeking behavior.
the
issues
multiple
drug
Consequently,
plaintiff's
plaintiff bore the burden of proving that
because
substance
abuse,
substance
abuse
was not a material contributing factor to her disability.
This
court
finds
Accordingly,
significantly
stopped the
that
the
plaintiff
ALJ' s
finding
contributed
use,
her
failed
to
that
her
remaining
to
her
and
satisfy
plaintiff's
dysfunction
limitations
and
this
burden.
substance
that
would not
if
she
preclude
work, is supported by substantial evidence and is affirmed.
20 - OPINION AND ORDER
use
B. Daniel Schroeder's Opinion
The
ALJ
found
that
Mr.
Schroeder's
opinion
was
only
entitled to "some weight" and was viewed with "great taution as
clinical
significant
veracity
inconsistencies
mental
in
Mr.
in daily
concentration,
Tr.
Schroeder
resulting
living,
persistence
maintaining
social
in
simple instructions.
decision
this
The
30.
opinion,
such
marked
and pace,
as
yet
noted
assessed
in
in maintaining
and moderate
functioning,
ALJ
note
restrictions
marked difficulties
plaintiff's ability to understand,
The ALJ also
in
elsewhere
concerns."
impairments
activities
in
noted
findings
difficulties
limitations
no
in
remember, or carry out short,
Tr. 30.
noted that
"it appears
that Mr.
was unaware of [plaintiff's] pulysubstance abuse,
Schroeder
as he answered
'not applicable' to the question regarding whether [plaintiff's]
substance
abuse
contributes
any
to
limitations"
"repeatedly explained that his opinions regarding
limitations were solely based on
based on his own observations."
Moreover,
the
ALJ
statement of February 20,
was
based
·mother,
on
and
his
that
he
21 - OPINION AND ORDER
Mr.
2010,
was
he
[plaintiff's]
reports and not
Id.
noted
observations
[plaintiff's]
and
Schroeder's
clarification
stating that his prior opinion
and
aware
the
of
reports
of
plaintiff's
plaintiff's
possible
prescription abuse.
[plaintiff's]
health
Notwithstanding,
report tha't she does have a habit of lying to her
providers,"
symptoms,"
the ALJ found that "given
and
and
is
"given
not
"100
percent
[plaintiff's]
honest
mother's
about
report
to
her
[her]
medical provider that she believed [plaintiff] had been misusing
or
abusing
her
psychiatric
accord much weight to Mr.
medications,
it
is
challenging
to
Schroeder's assessment as his patient
'manipulates health issues to get things.'"
Tr. 30.
An ALJ must explain the weight given to medical opinions.
SSR
96-Sp;
Although
20
C. F.R.
only
404 .1527 (e) (2) (ii),
§§
"acceptable
medical
416. 927 (e) (2) (ii).
sources"
can
diagnose
and
establish that a medical impairment exists, evidence from "other
sources"
can
be
used
to
determine
the
severity
of
that
impairment and how it limits. the claimant's function in a work
activity.
20 C.F.R.
404.1513.
§
include nurse practitioners.
An
including
sources,
v.
ALJ
may
nurse
reject
20 C.F.R.
the
practitioners,
for germane reasons.
Comm'r of Soc.
Sec.,
Non-acceptable medical sources
§
opinion
who
are
404.1513; SSR 06-03p.
of
not
See 20 C.F.R.
613 F.3d 1217,
an
"other
source,"
acceptable
§
1223-24
medical
404.1513; Turner
(9th Cir.
2011).
Although the contrary opinion of a non-examining medical expert
does
not
rejecting
alone
a
constitute
treating
22 - OPINION AND ORDER
or
a
specific,
legitimate
examining physician's
reason
opinion,
it
for
may
constitute substantial evidence when it is consistent with other
independent evidence in the record.
F.3d 1144,
1149
(9th Cir.
2001);
Tonapetyan v.
Magallanes v.
Halter.
Bowen,
242
881 F.2d
747, 752 (9th Cir. 1989).
Further,
a
large
a "physician's opinion of disability
extent
symptoms
and
upon
limitations'
complaints have been
of Soc. Sec. Admin.,
Fair v.
the
Bowen,
claimant's
may
be
own
accounts
885 F.2d 597,
605
of
[her]
where
those
Morgan v.
Comm' r
disregarded
'properly discounted.'"
169 F.3d 595,
602
'premised to
(9th Cir.
1999)
( 9th Cir . 19 8 9 ) ) .
(quoting
An AL J may
~~~~~~~~
reject
a
physician's
physician's
other
opinion
findings.
if
it
with
Tommasetti
v.
Astrue,
the
533
conflicts
F.3d
1035, 1041 (9th Cir. 2008).
Here,
the ALJ observed Mr.
Schroeder's original statements
that his opinion was based on plaintiff's
as stated above,
self-reports,
he properly found to be not credible,
which,
and that
he was unaware of plaintiff's alcohol and substance abuse.
ALJ also noted the statements from Mr.
that
his
ALJ
directly
previous
report.
provided
opinion.
contradicted
germane
Although
interpretation
of
the
23 - OPINION AND ORDER
the
Schroeder's 2011 letter
aforementioned
Consequently,
this
reasons
rejecting
plq_intiff
medical
for
statements
court
disagrees
record,
The
finds
Mr.
with
"[w]hen
from
that
the
Schroeder's
the
the
ALJ's
evidence
before
the
is
ALJ
subject
to
more
than
one
rational
interpretation, we must defer to the ALJ's conclusion."
359 F.3d at 1198.
Batson,
As such, the ALJ did not err in granting Mr.
Schroeder's opinion only some weight.
C. Dr. Thomas' Opinion
Plaintiff
Thomas']
22.
argues
opinions on
Specifically,
that
[her]
"the
ALJ
erred
in
rejecting
physical functionality."
plaintiff
argues
that
[Dr.
Pl.'s Br.
substantial
evidence
does not support a finding that Dr. Thomas' assessment came from
her own symptom reports and because "Dr. Thomas' opinions do not
differ much from
[her]
[his]
opinions
orthopedic
conflicted with
[her]
testimony
the ALJ' s
on
report,
the
is illogical,
convincing reason to discount his opinions."
basis
rejection of
said
opinions
and not a clear and
Pl.'s Br. 24.
The ALJ accorded the opinion of consultative examiner,
Dr.
Thomas, M.D., who opined that plaintiff was "very limited," only
"some weight" because "much of the information Dr.
in making his assessment came from
[plaintiff's]
Thomas used
own reports of
symptoms and limitations," which he found not credible.
The ALJ also noted that the limitations endorsed by Dr.
"were even more severe than the limitations
alleged at
the
weight"
the
to
hearings."
Id.
contradicting
24 - OPINION AND ORDER
Finally,
opinions
of
[plaintiff]
Tr. 28.
Thomas
herself
the ALJ gave "great
Ors.
Rullman,
M. D.,
Kehrli,
M.D.,
had
RFC
an
and Berner,
for
M.D.,
sedentary
"consistent with a
work,
security.
are
three
cases:
The
treating
ALJ
convincing
reasons
reject
F.3d 1035, 1043
medical
treating,
the
their
opinions
evidence,"
as
opinions
were
well as
81 F.3d 821,
by
by
in
830
non-
(9th Cir.
opinion
of
clear
providing
substantial
social
and
examining,
uncontradicted
physician
supported
See Lester,
record.
from
examining
or
of
Lester v. Chater,
may
opined that plaintiff
Tr. 28, 29.
types
those
examining doctors.
1995) .
because
preponderance of the
"with the record as a whole."
There
who all
evidence
81 F.3d at 830-31; Andrews v.
a
and
in
the
Shalala,
53
"The ALJ can meet this burden
(9th Cir. 1995).
by setting out a detailed and thorough summary of the facts and
clinical
conflicting
thereof,
and
making
(citation omitted).
is
contradicted by
stating
evidence,
findings."
interpretation
his
Magallanes,
881
F.2d
at
751
If a treating or examining doctor's opinion
another
doctor's
opinion,
an ALJ may
only
reject it by providing specific and legitimate reasons that are
Barnhart,
supported by substantial evidence.
427
F.3d at 1216
(citing Lester, 81 F.3d at 830-31).
Here,
largely
on
the ALJ found that Dr.
plaintiff's
complaints,
properly found not credible.
25 - OPINION AND ORDER
Thomas'
Morgan,
which
opinion was premised
as
stated
169 F.3d at 602.
above,
he
The ALJ
also listed inconsistencies between Dr.
Thomas'
Finally,
record of plaintiff's testimony.
the contradicting opinions of Ors.
opinion and the
the ALJ found
Kehrli,
Berner,
that
and Rullman
were more persuasive because they were more consistent with the
evidence
and
provided
specific
convincing
the
for
record
and
as
a
legitimate
discounting
Dr.
Consequently,
whole.
reasons
Thomas'
that
ALJ
C'.,lear
were
the
and
Accordingly,
opinion.
the ALJ did not err in finding Dr. Thomas only partly credible.
IV.
Listing 12.04 Analysis
Plaintiff argues that the ALJ erred by failing to indicate
Pl.' s Br. 25-26.
whether parts A or C of listing 12.4 were met.
Moreover,
plaintiff
argues
ALJ improperly weighed
the ALJ also
listing,
[Mr.]
of
court
finds
the
then
to meet
Schroeder indicated 'marked limitations'
[ADLs] ,
daily
living
or
pace."
she
had
argues
that
decompensation,
each
of
hospitalized
in
'halfway
or
that
Schroeder's opinion evidence,
persistence,
concentration,
plaintiff
[Mr.]
"if this
improperly determined plaintiff failed
since
activities
that
a
extended
at
25.
repeated
duration,
house'
four
in
maintaining
and
Id.
a
Finally,
of
episodes
when
times
she
during
"was
a
12
month period for 7, 12, 2, and 78 day periods."
The
including
ALJ
the
found
that
substance
26 - OPINION AND ORDER
use
plaintiff's
disorders,
"mental
do
not
impairments,
meet
listings
12.02, 12.04,
held
that
12.06, or 12.09."
the
paragraph
B and
Tr.
Specifically,
23.
C criteria
are
not
the ALJ
satisfied
because "[plaintiff's] mental impairments do not cause at least
'marked'
two
decompensation,
ALJ
found
functioning
limitations
or
'repeated'
one
each of extended duration."
that
plaintiff
outside
of
a
is
there is nothing to suggest that
marginal adjustments."
the
capable
of
and
supportive
[she]
Further,
Id.
"independent
highly
episode
arrangement,
and
is incapable of handling
Id.
In determining that plaintiff did not meet listing 12. 04,
the ALJ referenced testimony from Sally Clayton, Ph.D.,
May 2,
more
2012 hearing,
than
moderate
mild
who testified that the record supported no
impairments
impairment
from the
in ADLs
in concentration,
and
social
functioning,
persistence or pace,
no episodes of decompensation of an extended duration.
Id.
a
and
The
ALJ noted that mental health records received between the May 9,
2012,
and
and the October 18,
of
exacerbation
[plaintiff]
has
a
2012,
symptoms
mild
of
concentration,
sufficient
impairment
impairment in social functioning,
area
hearings showed "some increase
in
conclude
to
[ADLs] ,
moderate
a moderate impairment in the
persistence
or
pace,
and
episodes of decompensation of extended duration."
27 - OPINION AND ORDER
a
that
one
Id.
to
two
In
order
evaluation,
to
qualify
as
must
claimant
a
disabled
meet
impairments in Appendix 1 to Part
C.F.R.
§
for
mental
a
404.1520(d)
disorder,
the
presence
of
a
mental
paragraph
B
or
with
a
404
claimant
listings,
C,
three
exceed
of
the
the
listed
of the regulations.
and
describe
disorder
20 C.F.R.
must
satisfy
which medically
disorder,
which
the
ability to work.
or
step
20
In order to meet a listing in Appendix 1
paragraph A of
associated
at
substantiate
criteria
of
the
404,
functional
are
that
Pt.
the
criteria
incompatible
Subpt.
P, App.
in
the
either
limitations
1
with
the
12.00A;
§
Holohan v. Massanari, 246 F.3d 1195, 1203 (9th Cir. 2001).
To
satisfy
the
paragraph
B criteria,
plaintiff's
mental
impairments must result in at least two of the following: marked
restriction of activities
in
maintaining
maintaining
episodes
of
functioning;
concentration,
of
C.F.R. Pt.
social
of daily living;
each
404, Subpt. P, App. 1,
decompensation,
each
of
episodes within one year,
an
of
satisfy
the
28 - OPINION AND ORDER
difficulties
pace;
extended
extended
or
in
repeated
duration.
20
Repeated episodes
duration,
means
three
each lasting for at least two weeks.
part
impairments must result in:
or
12.04(8).
§
20 C.F.R. Pt. 404, Subpt. P, App. 1
To
marked
persistence,
decompensation,
marked difficulties
c
§
12.0l(A) (4).
criteria,
plaintiff's
mental
(1)
repeated episodes of decompensation,
each of extended
duration; or ( 2) a residual disease
that even a minimal
increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
(3)
current history of one or more years' inability to function
outside a highly supportive living arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1,
Here,
§
12.04(C).
the ALJ found that plaintiff did not meet criteria B
or C of listing 12.04 because she did not have repeated episodes
of decompensation,
notes,
she
during
a
was
each of an extended duration.
hospitalized or
twelve
month
in
period
seventy-eight day periods.
a
for
As plaintiff
halfway house
seven,
Accordingly,
four
times
twelve,
two,
and
this court
finds
that
the ALJ did not err by concluding that plaintiff did not have at
least three episodes of decomposition, each lasting for at least
two
weeks
during
a
twelve
month
period
as
listing
12.04
requires.
Moreover,
Mr.
as stated above,
Schroeder's
finds
that
the
opinion
ALJ
did
the ALJ did not err in weighing
evidence.
not
err
Consequently,
by
relying
on
Dr.
this
court
Clayton's
testimony that plaintiff had only mild and moderate impairments,
rather
than Mr.
limitations
in
Schroeder's
AD Ls
persistence, or pace.
29 - OPINION AND ORDER
and
opinion that
in
plaintiff had marked
maintaining
concentration,
Finally,
is
no evidence in the record suggests that plaintiff
incapable
of
arrangement,
nor
Consequently,
functioning
incapable
outside
of
handling
because plaintiff
ALJ' s
finding
that
a
highly
marginal
failed to meet
paragraph B or C of listing 12. 04,
the
of
supportive
adjustments.
the
criteria of
this court will not disturb
plaintiff's
mental
impairments
do
not
meet listing 12.04.
V.
Reflection of Plaintiff's Impairments in the RFC
Plaintiff
argues
accurately reflect
that
[her]
substantial evidence."
argues
that
bipolar
consider
"the
impairments,
Pl.'s
the ALJ erred by:
disorder,
the
MRSA,
combined
ALJ's
Br.
1)
and are
of
findings
not
rejecting the
headaches;
her
to
plaintiff
effects
of her
failing
2)
impairments;
impairment related restrictions from the RFC;
fail
supported by
Specifically,
26.
and migraine
effects
RFC
3)
and 4)
to
omitting
failing to
limit interaction with supervisors to occasional in the RFC and
hypothetical given to the VE.
The
ALJ
impairments,
found
that
including the
Id. at 27-29.
"based
on
substance use
all
of
disorders,
[plaintiff's]
[plaintiff]
has the [RFC] to perform sedentary work," but she also:
needs a stand a stretch break approximately once an
hour
is limited to no more than occasional
climbing
of
ramps,
stairs,
ladders,
ropes,
and
scaffolding, and no more than occasional balancing,
stooping,
kneeling,
crouching,
and crawling
30 - OPINION AND ORDER
[and] is limited to no more than simple, repetitive
one to three step tasks requiring no public contact,
no more than occasional interaction with coworkers,
and no more than occasional changes in the work
setting.
Tr.
27.
Moreover,
the ALJ found that plaintiff's substance use
"significantly
disorder
contribute[s]
to
[her]
overall
dysfunction," it renders her "unable to perform these tasks on a
consistent basis, and [she] would be expected to miss at least a
week of work every two months."
however,
that
if
alleged symptoms
25,
stopped
plaintiff
Tr.
the
"would not be nearly as
remaining functional
and
the
this
extent
accepted as
if
capable
finding,
to
substance
use,
pronounced and
which
Id.
plaintiff
the ALJ "considered all
the[]
symptoms
can
symptoms
reasonably
the
substantial
packing and sorting worker.
limitations.
the RFC,
be
The ALJ also relied on testimony of a VE
"stopped
of performing
RFC
[her]
Tr. 27.
substance
gainful
use,
she
would
be
work that
exists
in
the national economy," such as that of an assembly worker,
The
her
consistent with the objective medical evidence and
other evidence."
that
The ALJ found,
limitations would not preclude basic work
activity performed on a competitive basis."
In making
27.
is
the
Id. at 33.
maximum
See 2 0 C . F . R .
or a
§§
a
claimant
can
do
despite
her
4 0 4 . 15 4 5 , 4 1 6 . 9 4 5 . In determining
the ALJ must consider limitations imposed by all of a
31 - OPINION AND ORDER
claimant's
evaluate
including
impairments,
"all
the
of
the
medical
impairments
into
Stubbs-Da.nielson,
those
relevant
claimant's
1996 WL 374184.
in
the
even
that
medical
testimony.
are
and
SSR
not
severe,
other
96-8p,
and
evidence,"
available
at
The ALJ is responsible for resolving conflicts
testimony
concrete
and
translating
functional
539 F. 3d at 117 4.
the
limitations
claimant's
in
the
RFC.
Only limitations supported
by substantial evidence must be incorporated. into the RFC and,
by extension, the dispositive hypothetical question posed to the
VE.
Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).
Here,
he
the ALJ considered all of plaintiff's symptoms that
found
were
consistent
with
record
and
translated
her
impairments into concrete functional limitations in the RFC.
discussed
MRSA,
above,
the
migraines,
impairments
evidence.
ALJ
and
did
not
bipolar
because
they
Moreover,
as
were
err
finding
plaintiff's
to
be
non-severe
supported
by
substantial
disorder
not
stated
in
As
above,
the
ALJ properly
found
that plaintiff's substance use significantly contributed to her
dysfunction
and
that
if
she
stopped
limitations would not preclude work.
the
use,
her
Consequently,
remaining
because the
RFC and, by extension, dispositive hypothetical question the ALJ
posed to the VE included all the limitations that the ALJ found
credible and supported by substantial evidence, this court finds
32 - OPINION AND ORDER
that ALJ did not
plaintiff
work
would
that
err by relying on testimony of the
be
exists
capable
in
the
of
performing
national
economy
substantial
if
she
VE
that
gainful
stopped
the
substance use.
Accordingly,
a
finding
issues,
of
plaintiff's argument,
harmful
error
is without merit.
in
which is contingent upon
regard
Barnhart,
to
the
aforementioned
427 F.3d at 1217-18
("The
hypothetical that the ALJ posed to the VE contained all of the
·limitations
substantial
that
the
evidence
ALJ
in
found
the
credible
record.
The
and
ALJ's
supported
by
reliance
on
testimony the VE gave in response to the hypothetical therefore
was proper.").
As such, the ALJ's RFC is upheld.
CONCLUSION
For the foregoing reasons, the Commissioner's decision is
AFFIRMED.
IT IS SO ORDERED.
DATED
this~
-r
day of July 2015.
United States
33 - OPINION AND ORDER
Judge
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