Moody v. Commissioner Social Security Administration
Filing
19
OPINION AND ORDER. Signed on 11/10/2015 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMES DAVID MOODY
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
JEFFERY HUGH BAIRD
Dellert Baird Law Office, PLLC
P.O. Box 3757
Silverdale, WA 98383
Attorney for Plaintiff
JANICE E.
Assistant
1000 S.W.
Portland,
HEBERT
United States Attorney
Third Ave., Suite 600
OR 97204
THOMAS M. ELSBERRY
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:14-cv-01756-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff James
Donald Moody 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.
1383(c) (3).
§§
This Court has jurisdiction pursuant to 42 U.S.C.
For
the
reasons
that
follow,
I
affirm
§
the
final
Plaintiff filed an application for SSI on November 9,
2010,
decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND
initially alleging disability as of April 1,
impairment,
post-traumatic
stress
2004 due to a back
disorder
(PTSD),
diabetes
mellitus, degenerative disc disease, seizures, and depression.
Plaintiff's
claims
were
denied
initially
and
upon
reconsideration. Plaintiff filed a request for a hearing before an
administrative law judge (ALJ). The ALJ held a hearing on April 30,
2013, at which plaintiff appeared with his attorney and testified.
A vocational.expert, Daniel R. McKinney, Sr., also appeared at the
hearing
and
testified.
At
the
hearing,
plaintiff
alleged onset date of disability to November 9,
amended
2010. Tr.
his
48. On
July 25, 2013, the ALJ issued an unfavorable decision. The 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 1964, plaintiff was 49 years old on the date of the
ALJ's unfavorable decision.
Plaintiff completed the eighth grade
and later obtained a General Education Degree
(GED).
Plaintiff's
infrequent work history and minimal earnings do not qualify as past
relevant work.
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his application date of November
9,
2010.
At
step
two,
the
ALJ
found
that
plaintiff
had
the
following severe impairments: degenerative joint disease-cervical
spine; degenerative disc disease-lumbar spine; bilateral shoulder
impingement syndrome; obesity; coronary artery disease-post stent
procedure; diabetes mellitus; asthma; chronic obstructive pulmonary
disease; seizure disorder with recent evidence of encephalomalacia
and a history of lacunar infarcts; headaches; depressive disorder
not otherwise specified (NOS); generalized anxiety disorder; and
alcohol dependence disorder.
At step three,
the ALJ found that
plaintiff's impairment or combination of impairments, did not meet
or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to light work with the following additional limitations:
[Plaintiff] could frequently balance, kneel, and crawl;
he could occasionally stoop, crouch, and climb ramps or
stairs;
he could never climb ladders,
ropes,
or
scaffolds; he could occasionally reach overhead; he
should
avoid
concentrated
exposure
to
extreme
temperatures and vibrations;
he should avoid even
moderate exposure to fumes, odors, dusts, gases, poor
ventilation, and hazards; he would be limited to simple,
3 - OPINION AND ORDER
routine tasks and well-learned, complex tasks; and he
would be limited to no more than superficial contact with
the general public.
Tr. 29.
At
step
four,
the
ALJ
relevant work. At step five,
plaintiff's
functional
age,
found
plaintiff
has
no
past
the ALJ concluded that considering
education,
capacity,
that
work
jobs exist
in
experience,
significant
and
residual
numbers
in
the
national economy that plaintiff can perform, such as small products
assembler II, table worker, and inspector/packer. Accordingly, the
ALJ concluded that plaintiff has not been under a disability under
the Social Security Act from November 9, 2010 through the date of
the decision.
ISSUES ON REVIEW
On appeal to this court,
errors were committed:
medical
opinion
plaintiff contends the following
(1) the ALJ failed to properly evaluate the
evidence;
and
(2)
the ALJ failed
to
obtain a
medical expert.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the
Commissioner
applied
the
proper · legal
standards
and
findings are supported by substantial evidence in the record.
U.S.C.
§
405(g);
Berry v.
Astrue,
622 F.3d 1228, 1231
the
42
(9th Cir.
2010) . "Substantial evidence is more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
4 - OPINION AND ORDER
mind might accept as adequate to support a conclusion." Hill v.
Astrue,
698
F.3d
1153,
1159
Commissioner of Social Sec.
(9th
Admin.,
Cir.
2012);
574 F. 3d 685,
Valentine
690
v.
(9th Cir.
2009). The court must weigh all the evidence, whether it supports
or detracts from the Commissioner's decision. Martinez v. Heckler,
807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must
be upheld,
even if the evidence is susceptible to more than one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,
359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the
court
may
not
substitute
its
Commissioner." Edlund v. Massanari,
judgment
for
that
of
the
253 F.3d 1152, 1156 (9th Cir.
2001).
I.
The ALJ Did Not Err in Assessing Medical Opinion Evidence
In general, the opinion of a treating physician is given more
weight than the opinion of an examining physician, and the opinion
of an examining physician is afforded more weight than the opinion
of a nonexamining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160
(9th Cir. 2014); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
"If a treating physician's opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in
record,
[the]
case
[it will be given] controlling weight." Orn, 495 F.3d at.
631; 20 C.F.R. § 404.1527(c). To reject the uncontroverted opinion
5 - OPINION AND ORDER
of a treating or examining physician, the ALJ must present clear
and convincing reasons. Bayliss v. Barnhart,
427 F.3d 1211, 1216
(9th Cir. 2005).
If a treating or examining physician's opinion is contradicted
by another physician's opinion, it may be rejected by specific and
legitimate reasons. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th
Cir.
2001). 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. at 1149.
Plaintiff argues that the ALJ erred in evaluating the medical
opinion evidence.
Specifically,
plaintiff challenges the weight
accorded to the opinions of the following treating or examining
sources:
John Arnold,
assistant
Ph.D.;
William Bomberger;
William Shanks,
nurse
Susan
M.D.;
Small;
physician's
and Catherine
MacLennan, Ph.D. Moreover, plaintiff argues that the ALJ erred in
giving
"significant
weight"
to
the
opinions
of
nonexamining
physicians. I address each opinion in turn.
A.
John Arnold, Ph.D.
In an October 26, 2011 consultative examination, Dr. Arnold
opined
that
plaintiff
would
be
capable
of
following
simple
directions and would be most successful in a job with little social
interaction with others.
Tr.
plaintiff
direct
would
require
556.
Dr.
Arnold also opined that
supervision
for
minimal
task
completion. Id. Dr. Arnold noted that plaintiff scored a 28 out of
6 - OPINION AND ORDER
30 on the mini-mental status examination (MMSE) and scored within
normal limits on the Trails A & B and the Rey 15 tests.
Id.
Dr.
Arnold noted that plaintiff's Minnesota Multiphasic Personality
Inventory-2
(MMPI-2)
result was invalid due to a possible over-
reporting of symptoms.
Id.
Based on the examination,
Dr. Arnold
diagnosed plaintiff with depressive disorder NOS, undifferentiated
somatoform disorder, alcohol abuse in early partial remission, rule
out
PTSD,
features,
borderline
personality
disorder
with
anti-social
and rule out borderline intellectual functioning.
Tr.
554.
Because Dr. Arnold's opinion was contradicted, 1 the ALJ was
required to provide specific and legitimate reasons,
backed by
substantial evidence, to reject his opinion. Bayliss, 427 F.3d at
1216.
The ALJ gave Dr.
Arnold's opinion less than "significant
weight" for three reasons: the opinion's reliance on plaintiff's
self-reports, the invalid MMPI-2 score, and ongoing alcohol abuse.
Tr. 35.
I begin by noting that plaintiff does not challenge the ALJ's
negative
credibility
assessment.
It
is
well-settled
that
a
physician's opinion premised upon a claimant's properly discounted
subjective symptoms and limitations may be disregarded.
1
Bray v.
In a February 7, 2012 Physical RFC Assessment, nonexaminiµg
physician, Alnoor Virji, M.D., opined that plaintiff could
perform light level work with a limitation to occasional overhead
reaching with both arms. Tr. 120-121.
7 - OPINION AND ORDER
Commissioner of Soc.
Sec.
Admin.,
554 F.3d 1219, 1228
(9th Cir.
2009); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); Morgan v.
Commissioner of Soc.
1999).
The
that
169 F. 3d 595,
Adm in.,
reveals
record
Sec.
compliant with his medications.
plaintiff
Tr.
34,
is
453,
602
(9th Cir.
frequently
456,
April 2011, consultative examiner Debra D. Brown,
510,
non-
529.
In
Ph.D. observed
symptom exaggeration and diagnosed plaintiff with malingering. Tr.
443.
Although not contested,
credibility
determination
I
is
conclude that the ALJ' s
readily
supported
adverse
by
substantial
relies
heavily on
evidence as a whole.
It
is
clear that
Dr.
Arnold's
opinion
plaintiff's subjective allegations. For example, Dr. Arnold opined
that plaintiff's reports of anger issues impact his ability to
interact socially in a work setting. Tr.
556. Noting a possible
diagnosis of borderline intellectual functioning, Dr. Arnold relied
on plaintiff's self-reported history of special education classes.
Tr. 554, 556. Plaintiff also denied obtaining a GED to Dr. Arnold.
Tr.
556.
However,
plaintiff
testified at
the
hearing
that
he
obtained a GED while incarcerated at age 21 and denied attending
special education classes in his disability application. Tr.
53,
213. Given the unchallenged adverse credibility determination,
I
conclude that the ALJ appropriately discounted Dr. Arnold's opinion
because it is primarily based on plaintiff's subjective report of
8 - OPINION AND ORDER
symptoms.
Accordingly,
I
find
that
this
is
a
specific
and
legitimate reason to partially discredit Dr. Arnold's opinion.
Next, contrary to plaintiff's argument, the ALJ appropriately
considered the invalidity of the MMPI-2
score to discount
Dr.
Arnold's opinion. Dr. Arnold noted that the invalid MMPI-2 score
may
indicate
over-reporting
of
psychological
symptoms,
but
ultimately attributed it to plaintiff's need for mental health
treatment. Tr. 556. In rejecting Dr. Arnold's conclusion, the ALJ
cited
to
plaintiff's
[symptoms]"
and
found
"previous
that
pattern
plaintiff
of
over-reporting
purposely
over-reported
symptoms during the MMPI-2 test. Tr. 34.
In
the
context
of
the
record
as
a
whole,
the
ALJ's
interpretation of the MMPI-2 score is reasonable. For example, in
a March 1, 2011 examination, neurologist William L. Bender, M.D.
noted
giveaway
weakness
in
testing
of
muscle
strength
and
exhibition of pain behavior. Tr. 518. In an April 2011 follow-up
examination,
regarding
Dr.
his
Bender
care
when
questioned
plaintiff
plaintiff's
requested
motivations
narcotic
pain
medications for headaches despite a normal EEG test. Tr. 519. Dr.
Bender's
unchallenged
magnification supports
observation
the ALJ' s
of
plaintiff's
symptom
interpretation of plaintiff's
invalid MMPI-2 test.
Similarly,
Dr.
Brown reported that plaintiff's Personality
Assessment Inventory (PAI) test, a test similar to the MMPI-2, was
9 - OPINION AND ORDER
invalid
due
to
of
over-reporting
unlikely
symptoms
and
inconsistencies with his history and clinical interview. Tr. 446.
Dr.
Brown
noted
that
plaintiff
reported
visual
and
auditory
hallucinations but "failed to describe anything that sounded like
psychosis." Tr.
findings
do
441.
not
Additionally,
corroborate
Dr.
Brown's objective mental
plaintiff's
extensive
report
of
symptoms. For example, Dr. Brown noted that plaintiff scored a 25
out of 30 on the MMSE test and achieved a score within normal
limits on the Trails A & B test.
Tr.
446.
Dr. Brown declined to
provide a medical assessment of plaintiff's limitations because
plaintiff was "not completely forthcoming in the evaluation." Tr.
444. In fact, plaintiff does not challenge Dr. Brown's diagnosis of
malingering or her observations of symptom magnification.
that
the
evidence,
ALJ' s
and
rationale
provides
a
is
readily
specific
supported
and
by
I find
substantial
legitimate
reason
for
discounting Dr. Arnold's opinion.
Finally, the ALJ appropriately discounted Dr. Arnold's opinion
on
the
basis
of
plaintiff's
ongoing
alcohol
abuse.
Based
on
plaintiff's self-reported sobriety, Dr. Arnold diagnosed plaintiff
with alcohol abuse in early partial remission. Tr. 554. However, at
the hearing, plaintiff testified to a sober date of April 22, 2012,
six months after Dr. Arnold's examination. Tr. 60. In a March 2013
examination, plaintiff reported sobriety as of October 2012. Tr.
609. As the record reflects, plaintiff was widely inconsistent in
10 - OPINION AND ORDER
reporting
his
sobriety,
and
credibility determination,
given
the
unchallenged
negative
the ALJ appropriately discredited Dr.
Arnold's opinion on this basis. Because the ALJ's interpretation is
rational and is supported by substantial evidence in the record as
a whole, it will not be disturbed. See e.g., Molina v. Astrue, 674
F.3d 1104, 1111 (9th Cir. 2012)
they
are
supported
by
(ALJ's findings must be upheld if
reasonable
inferences
drawn
from
the
record.).
In summary, I conclude that the ALJ did not err in evaluating
Dr. Arnold's opinion and provided three specific and legitimate
reasons backed by substantial evidence in the record as a whole.
B.
William Shanks, M.D.
Plaintiff argues that the ALJ failed to provide specific and
legitimate reasons to discredit the opinion of William Shanks, M.D.
Plaintiff's argument fails.
On
February
11,
2011,
Dr.
Shanks
examined
plaintiff
and
observed giveaway weakness with testing of his upper and lower
extremity
muscles.
Tr.
356.
Dr.
Shanks
noted
that
plaintiff
complained of pain in his neck and back with all motion of his
extremities. Tr. 357. Dr. Shanks also observed a slow, non-antalgic
gait and an absence of muscle spasms in plaintiff's back. Id. Dr.
Shanks further noted intact sensation in both upper extremities.
Tr. 358. Dr. Shanks ordered and reviewed plaintiff's cervical and
lumbar spine Magnetic Resonance Imagings
11 - OPINION AND ORDER
(MRis)
and x-rays.
Id.
Based on plaintiff's MRis, Dr. Shanks diagnosed early degenerative
disc disease at C3-4 and C4-5 and minimal findings in the lumbar
spine. Tr. 358.
Dr. Shanks opined that plaintiff overreacted on his physical
examination. Tr. 359. In a functional assessment form, Dr. Shanks
opined that plaintiff can stand for two hours and sit for three
hours in an eight-hour workday,
lift 20 pounds occasionally and
five pounds frequently, but further opined that these limitations
would last for two months. Tr. 367. The ALJ provided two specific
and legitimate reasons for according Dr.
Shanks'
opinion "some
weight." Having carefully reviewed the record, I conclude that the
ALJ's reasoning is supported by substantial evidence.
Plaintiff contends that the ALJ failed to consider that Dr.
Shanks'
opinion
and
assessed
limitations
already
account
for
plaintiff's symptom exaggeration. I disagree.
The
ALJ
gave
less
weight
to
Dr.
Shanks'
opinion
because
plaintiff overreacted during the examination. Tr. 31. Specifically,
the
ALJ
found
that
plaintiff's
"presentation
at
Dr.
Shanks'
evaluation suggests secondary gain motivation." Id. Although Dr.
Shanks acknowledged symptom exaggeration,
his opinion is largely
based on plaintiff's self-report of pain with range of motion in
the neck and back. Tr. 357-58; see, Morgan,
properly discounted medical opinions
169 F.3d at 602
based in large
part
(ALJ
upon
claimant's own account of mental health symptoms and limitations);
12 - OPINION AND ORDER
see also Hayles v. Colvin, No. 6:13-cv-01714-HA, 2014 WL 6809795,
*4 (D. Or. Dec. 2, 2014)
(upholding the ALJ's finding discrediting
an examining physician's limitations because the physician noted
that
plaintiff
Shanks
noted
(documenting
exaggerated during
relatively
a
benign
negative
the
examinat°ion).
objective
straight-leg
findings.
raise
test
Here,
Dr.
Tr.
357-58
and
intact
sensation and that the lumbar spine MRI showed "minimal findings") .
Based on the information presented to Dr. Shanks and the minimal
objective findings, the ALJ could reasonably discount Dr. Shanks'
opinion because it primarily relied on plaintiff's self-reports of
pain during the examination.
As the ALJ noted, other medical evidence in the record also
suggests secondary.gain motivations. Tr. 31. As discussed above,
Drs.
Brown,
Arnold,
and
Bender
observed
plaintiff's
symptom
magnification during otherwise normal examinations. Tr. 446, 518,
556. Dr. Brown's diagnosis of malingering also supports the ALJ's
finding of secondary gain. Tr. 33. A review of the medical record
reflects few abnormal objective findings and further supports the
ALJ's reasoning. See generally Tr. 451, 457, 499, 529, 610-11, 623.
Although plaintiff attempts to provide a different interpretation
of the medical evidence,
the ALJ' s
interpretation is rational,
supported by
evidence,
and
Molina,
substantial
67 4 F. 3d at 1111.
thus,
must
be
upheld.
Based on substantial evidence in the
record, plaintiff's motivation for secondary gain is a specific and
13 - OPINION AND ORDER
legitimate
reason,
sufficient
in
and
of
itself to
reject
Dr.
Shanks' opinion.
The ALJ also discounted Dr. Shanks' opinion based on the two
month duration of the assessed limitations.
Tr.
31. Opinions of
temporary limitations have little bearing on a plaintiff's longterm functioning.
Carmickle v. Commissioner of Soc.
Sec. Admin.,
533 F.3d 1155, 1165 (9th Cir. 2008); see also Batson, 359 F.3d at
1193-94 (plaintiff has the burden of proving an inability to engage
in substantial gainful activity due to impairments for a continuous
period of twelve months).
Furthermore, plaintiff fails to cite specific evidence in the
record demonstrating that Dr. Shanks'
beyond two months.
ALJ' s
limitations have persisted
A careful review of the record supports the
interpretation.
For
example,
revealed intact muscle strength,
a
an
April
2011
examination
negative straight-leg raise
test, normal gait, intact sensation, and no pain with neck and back
movement.
Tr.
428-29.
A May 2011 examination revealed a normal
monofilament test. Tr. 454. A February 2013 examination revealed
normal neurological testing, full motor and strength testing, and
intact
sensation.
Tr.
611.
Accordingly,
the
ALJ
provided
two
specific and legitimate reasons, backed by substantial evidence, to
partially discount Dr. Shanks' opinion.
14 - OPINION AND ORDER
C.
Lay Testimony
Lay witness testimony as to how a claimant's symptoms affect
his ability to work is competent evidence, which the ALJ must take
into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009);
Stout v. Commissioner of Soc. 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,
provide
germane
reasons
for
doing
so.
Valentine, 574 F.3d at 694.
1. William Bomberger
Physician's
plaintiff
in
assistant
December
William
2010.
Tr.
Bomberger
498.
treating
Bomberger
Mr.
began
examined
plaintiff in December 2010, February 2011, and March 2011. Tr. 390,
448,
498.
In
a
February
22,
2011
functional
assessment,
Mr.
Bomberger opined that plaintiff is able to stand for four hours in
an
eight-hour
workday,
sit
for
eight
hours
in
an
eight-hour
workday, and lift 50 pounds occasionally and 25 pounds frequently.
Tr. 381. Mr. Bomberger opined that these limitations would persist
for three months,
and his assessment was signed by a
licensed
physician. Tr. 382.
In a February 22,
that
plaintiff's
performing
2011 treatment note, Mr.
back
sedentary
to
impairments
light
work,
do
not
but
plaintiff's epilepsy is disabling. Tr. 392.
15 - OPINION AND ORDER
Bomberger noted
preclude
also
him
from
indicated
that
In
giving
"some
weight"
to
Mr.
Bamberger's
functional
assessment, the ALJ adopted a majority of the limitations in Mr.
Bamberger's opinion. Tr. 29. In fact, the ALJ found that plaintiff
is more restricted in terms of lifting only 10 pounds frequently
and 25 pounds occasionally. Tr. 29. The ALJ adequately discounted
Mr. Bamberger's opinion.
First,
the ALJ rejected Mr.
standing
limitation
because
findings
in the record,
it
Bomberger' s assessed four-hour
is
inconsistent
with
objective
including his own treatment notes.
Lewis v. Apfel, 236 F. 3d 503,
511 (9th Cir. 2001)
See
(inconsistency
with medical evidence is a germane reason for rejecting lay witness
testimony).
For
example,
in
a
February
2011
examination,
Mr.
Bomberger observed normal range· of motion and tenderness in the
back,
intact
balance,
sensation
and
and coordination.
motor
Tr.
strength,
391-92.
and
intact
gait,
A June 2011 examination
revealed normal respiratory function with clear lungs. Tr. 449. An
April 2011 examination noted intact cranial nerves and no motor or
sensory
deficits.
Tr.
451.
Moreover,
the
ALJ
found
that
the
objective medical record does not support Mr. Bamberger's opinion
that
plaintiff's
epilepsy
is
disabling.
Tr.
32.
Thus,
Mr.
Bomberger' s opinions are inconsistent with his otherwise normal
objective findings.
Second,
the ALJ rejected the four hour standing limitation
because it is a short-term opinion. Carmickle, 533 F.3d at 1165. As
16 - OPINION AND ORDER
the ALJ noted,
the medical record does not support a permanent
limitation to four hours of standing in an eight-hour workday. See
Tr.
generally,
32,
457,
459,
518,
611.
Accordingly,
the
ALJ
provided several germane reasons, backed by substantial evidence to
partially accept Mr. Bamberger's functional assessment and reject
his opinion regarding plaintiff's epilepsy. Bayliss, 427 F.3d at
1218.
2. Susan Small
In an April 2,
treating nurse, Ms.
2013 medical source statement,
plaintiff's
Small opined that plaintiff can stand, walk,
and sit for less than one hour in an eight-hour workday. Tr. 606.
Ms.
Small also opined that plaintiff can occasionally lift and
carry up to ten pounds and never lift and carry 25 pounds or more.
Id. Ms. Small further opined that plaintiff cannot bend, squat, or
climb but can occasionally reach. Ms. Small also opined in an April
2012
treatment
capacity. Tr.
note
that
plaintiff
is
unable
to
work
in
any
596. The ALJ accorded Ms. Small's opinions "little
weight" for several reasons.
Plaintiff argues that the ALJ erred in rejecting nurse Susan
Small's opinions. Specifically, plaintiff contends that the ALJ did
not
comply
with
Social
Security
Regulation
(SSR)
06-03p
in
evaluating Ms. Small's opinions. Plaintiff's argument fails.
"Opinions from [nurses and physician assistants], who are not
technically deemed acceptable medical sources under our rules, are
17 - OPINION AND ORDER
important and should be evaluated on key issues such as impairment
severity and functional effects." Social Security Ruling 06-03p,
2006 WL
2329939,
*3
(Aug.
9,
2006).
"The
fact
that
a medical
opinion is from an acceptable medical source is a factor that may
justify giving that opinion greater weight than an opinion from a
medical source who is not an acceptable medical source because .
acceptable medical sources are the most qualified health care
professionals." Id. at *5.
Here, the ALJ gave several germane reasons in accordance with
SSR
06-03p.
First,
the
ALJ gave
Ms.
Small's
opinions
"little
weight" because she is not an acceptable medical source. 2 Gomez v.
Chater,
grounds)
74
F.3d
967,
(acceptable
970
(9th Cir.
medical
source
1996)
(overruled
opinions
may
on other
generally be
accorded more weight than those from other sources such as a nurse
practitioner). To be sure, the ALJ thoroughly discussed Ms. Small's
opinions with respect to the severity of plaintiff's impairments
and functional limitations but ultimately rejected her assessment
2
The opinion of a nurse practitioner is not considered an
acceptable medical source, unless the nurse worked under a
physician's close supervision. See 20 C.F.R. §§ 404.1513(d),
416.913(d); Taylorv. Commissioner of Soc. Sec. Admin., 659 F.3d
1228, 1234 (9th Cir. 2011) (holding that a nurse practitioner
could be considered a medically acceptable source where she
worked under a physician's close supervision and acted as the
physician's agent). In this case, plaintiff does not allege that
Ms. Small is an acceptable medical source, and the record does
not reflect that Ms. Small worked under a physician's close
supervision.
18 - OPINION AND ORDER
of plaintiff's work-related abilities. Tr. 32-33. Thus, the ALJ's
first reason is germane.
the
Second,
ALJ
found
that
Ms.
Small's
opinions
are
inconsistent with the objective medical record. Bayliss, 427 F.3d
at 1218. For example, in an April 2011 treatment note, Nedal Gara,
M.D.,
noted normal respiratory function,
clubbing,
and
intact
cranial
nerves
no edema,
with
no
cyanosis,
motor
or
or
sensory
deficits. Tr. 451. As discussed above, the objective examinations
of
Ors.
Shank,
Bender,
Brown,
and
Arnold,
revealed essentially normal findings.
and
Mr.
Bomberger
See generally, Tr. 357-58,
391-92, 443-44, 449, 499, 518, 556. Indeed, Ms. Small is the only
medical provider in the record to prescribe a walker, which is also
unsupported by objective findings in the record. Tr. 357, 499, 518,
605.
Accordingly,
this is another germane reason to reject Ms.
Small's assessment. Valentine, 574 F.3d at 694.
Third,
the ALJ properly found that Ms. Small's opinions are
inconsistent with other medical opinions in the record. As the ALJ
noted, Dr. Shanks and Mr. Bomberger assessed sitting, standing, and
lifting limitations that exceed Ms. Small's functional assessment.
Tr.
31-32,
367,
381.
While plaintiff
reinterprets
the medical
opinion evidence, the ALJ's interpretation must be upheld because
it is rational and supported by substantial evidence. Molina,
F. 3d at 1111.
19 - OPINION AND ORDER
674
Fourth, as plaintiff correctly contends, the ALJ improperly
discredited Ms.
Small's opinions based on plaintiff's repeated
requests for· a note from Ms. Small stating that he is unable to
work. Tr. 33. A careful review of Ms. Small's treatment notes does
not
show plaintiff requesting such an opinion
from Ms.
Small.
Although Ms. Small opined that plaintiff is unable to work in any
capacity, this opinion is unsolicited. Tr. 596. I find the ALJ's
final reason is not supported by substantial evidence, and thus, it
is not germane. However,
this error is harmless because the ALJ
gave three other germane reasons to reject Ms. Small's opinions.
See Burch v.
Barnhart,
400
F.3d 676,
decision of the ALJ will not be
679
reversed
(9th Cir.
for
2005)
("A
errors that are
harmless.") .
Accordingly,
germane reasons,
as
discussed
above,
the
ALJ
provided
three
supported by substantial evidence for rejecting
Ms. Small's assessment. Bayliss, 427 F.3d at 1218.
D.
Catherine MacLennan, Ph.D.
Plaintiff
challenges
the
ALJ's
evaluation
of
examining
physician Catherine MacLennan, Ph.D. In March 2009, Dr. MacLennan
noted mild
overt
psychomotor
agitation,
irritated
affect,
and
normal speech. Plaintiff obtained a low score of 21 out of 30 on
the
MMSE.
Tr.
372.
Dr.
MacLennan
diagnosed
major
depressive
disorder and opined that based on plaintiff's description of his
daily activities, he is unable to tolerate a full workday. Tr. 375.
20 - OPINION AND ORDER
Dr.
MacLennan
noted
that
"hopefully
[the
state
agency]
has
information that can be checked to corroborate the veracity of his
complaints about his inability getting along with people." Tr. 37 5.
The ALJ gave three reasons for giving "less weight" to Dr.
MacLennan's
opinion.
Having
carefully
reviewed
the
record,
I
conclude that two of the ALJ's reasons are supported by substantial
evidence.
The
ALJ
inconsistent
opinion's
rejected
with
Dr.
the
MacLennan's
objective
inconsistency with
the
opinion
medical
because
evidence.
objective medical
A
it
is
medical
record
may
constitute an adequate reason to discredit that opinion. Tommasetti
v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Plaintiff's scant
mental
health
treatment
notes
do
not
support
Dr.
MacLennan' s
opinion. For example, a July 2011 examination revealed appropriate
appearance and affect, unremarkable psychomotor behavior, irritable
and depressed mood, and logical thought processes. Tr. 529. A July
2012
examination
affect,
fair
noted
memory
attentive
and
appearance,
concentration,
and
calm and blunted
logical
thought
associations. Tr. 571-72. As discussed previously, Drs. Brown and
Arnold noted benign mental status findings. Tr. 446, 556. Thus, the
ALJ appropriately discredited Dr. MacLennan's opinion based on its
inconsistency with the overall objective medical record.
21 - OPINION AND ORDER
Plaintiff now argues
that
the ALJ erred in rejecting
Dr.
MacLennan' s opinion on the basis that it is two years prior to
plaintiff's amended alleged onset date of disability. I disagree.
"Medical
opinions
that
predate the alleged onset
date of
disability are of limited relevance." Carmickle, 533 F.3d at 1165.
In this case, the ALJ discussed Dr. MacLennan's opinion and gave it
less weight because it was nearly two years prior to plaintiff's
alleged date of disability.
Tr.
28.
At the hearing,
plaintiff
amended his alleged onset date of disability to November 9, 2010.
Tr. 48. The record is silent regarding plaintiff's amendment of his
alleged onset date of disability;
I decline to speculate on the
rationale behind plaintiff's amendment. See Pl. Reply Br.
18)
at
4.
Therefore,
it
is
reasonable for
(ECF No.
the ALJ to believe
plaintiff's allegation that his disability began on November 9,
2010.
Accordingly,
MacLennan' s
I
find that the ALJ properly discounted Dr.
opinion on
the
basis that
it
predated plaintiff's
alleged date of disability.
Finally,
rejecting
as
Dr.
plaintiff correctly argues,
MacLennan' s
opinion on
the
the basis
ALJ erred in
that
plaintiff
exaggerated on the MMSE test for secondary gain. Specifically, the
ALJ found that plaintiff's markedly low MMSE score of 21 suggests
secondary
gain
because
"the
general
cutoff
[MMSE]
score
for
exaggeration is 24." Tr. 34. However, there is no evidence in Dr.
MacLennan's report or the record as a whole to support the ALJ's
22 - OPINION AND ORDER
interpretation of plaintiff's MMSE score.
this
particular reason,
I
find that
it
Thus,
is
with respect to
not
a
specific and
legitimate reason to discount Dr. MacLennan's opinion.
However, this error is harmless as the ALJ provided two other
specific and legitimate reasons, supported by substantial evidence,
to discredit Dr. MacLennan's opinion. See Burch, 400 F.3d at 679.
Accordingly,
the ALJ did not err in evaluating Dr.
MacLennan' s
opinion.
E.
Nonexamining Physician Opinions
Plaintiff argues that the ALJ erred in giving "significant
weight"
to
the
opinions
of
nonexamining
physicians.
Plaintiff
contends that Matthew Comrie, Psy.D. and Alnoor Virji, M.D. did not
provide sufficient explanations for their opinions. This argument
is without merit.
In a February 2012 mental assessment, Dr. Comrie opined that
plaintiff is capable of recalling, learning and carrying out simple
routine work with reasonable consistency with limited public and
social contact. Tr. 121-123.
In a February 2012 physical assessment, Dr. Virji opined that
plaintiff is capable of light work but is limited to occasional
reaching overhead,
occasional climbing of ramps and stairs,
should avoid climbing ladders,
ropes,
concentrated exposure to machinery.
"significant weight"
23 - OPINION AND ORDER
and
and scaffolds as well as
Tr.
119-121.
to the opinions of Drs.
The ALJ gave
Virji and Comrie
because their opinions are consistent with the evidence as a whole.
Tr. 35.
Both
Drs.
Comrie
and
Virji
cited
to
objective
findings,
plaintiff's dubious credibility, and various medical opinions in
the record to adequately support their opinions. Tr. 117-118, 121.
For example, Dr. Comrie cited to a treatment note indicating mental
status
findings
depressed mood.
within
Tr.
normal
limits
with
an
irritable
117. As support for his opinion,
Dr.
and
Virji
cited to the examinations and opinions of Drs. Shanks and Bender,
and Mr.
Bomberger. Tr. 118. Moreover, both physicians referenced
plaintiff's pattern of symptom exaggeration during consultative
examinations. Tr. 118.
Contrary
to
responsibility,
plaintiff's
not
the
argument,
nonexamining
ALJ
the
physician,
has
the
to
weigh
and
resolve conflicting medical opinions. See Parra v. Astrue, 481 F.3d
742, 750 (9th Cir. 2007)
of
conflicts
in
the
("questions of credibility and resolution
testimony
are
functions
solely
for
the
agencyn).
As discussed previously, the ALJ gave specific and legitimate
reasons to discount conflicting medical opinions and found the
opinions of Drs.
Comrie and Virji consistent with the medical
record. Tr. 31, 33-35; see 20 C.F.R. 416.927(c)
(In evaluating a
nonexamining physician's opinion, the ALJ may also consider factors
such as
consistency with the
24 - OPINION AND ORDER
record and specialization of the
opining physician.). For example, in January 2013, the counseling
center discharged plaintiff for poor attendance and failing to
return phone calls to reschedule counseling sessions.
Tr.
585.
Plaintiff's mental status findings have been essentially normal.
See generally Tr. 463, 499, 529, 556, 571.
Similarly, as the ALJ noted, Dr. Virji's opinion is consistent
with the medical record. Tr. 35. Plaintiff's examinations indicate
unremarkable objective findings.
See generally, Tr.
357,
391-92,
449, 451, 454, 499. Additionally, Dr. Virji's opinion is consistent
with Mr.
Bomberger' s
functional
assessment,
aside
from a
less
restrictive standing limitation. Tr. 381. Although Dr. Virji gave
great weight to Dr. Shanks' opinion, the ALJ provided specific and
legitimate reasons,
as discussed above to partially reject
Dr.
Shanks' functional assessment. Indeed, plaintiff does not specify
any additional physical or mental limitations in the record that
the ALJ did not properly reject.
Accordingly, I find that the opinions of Drs. Comrie and Virji
are supported by substantial evidence in the record, and the ALJ
did not err in relying on these opinions. Thus, the RFC finding is
supported by
Shalala,
substantial
53 F.3d 1035,
evidence
1041
as
(9th Cir.
a
whole.
1995)
See
Andrews
v.
(the opinion of a
nonexamining physician "may serve as substantial evidence when [it
is] supported by other evidence in the record" and consistent with
it) .
25 - OPINION AND ORDER
II.
The ALJ Failed to Obtain Medical Expert Testimony
The ALJ "has a special duty to fully and fairly develop the
record and to assure that the claimant's interests are considered."
Garcia v. Commissioner of Soc. Sec., 768 F.3d 925,
2014).
hearing
However,
the ALJ is
testimony
416. 927 (f) (2) (iii)
from
a
930
(9th Cir.
generally not obligated to
solicit
expert. 3
C.F.R.
medical
See
20
(An ALJ "may . . . ask for and consider opinions
from medical experts on the nature and severity of [a claimant's]
impairment ( s) . ") .
A
careful
review
of
the
record
reveals
that
th~
ALJ
appropriately declined to obtain medical expert testimony. The ALJ
assessed plaintiff's mental and physical limitations based on an
unambiguous and adequately developed record.
See Tonapetyan,
242
F.3d at 1150 ("ambiguous evidence, or the ALJ's own finding that
the record is inadequate
. . triggers the ALJ's duty to 'conduct
an appropriate inquiry'").
Plaintiff appears to argue that the record was inadequately
developed with respect to his seizure impairment and that medical
3
The Ninth Circuit has recognized an exception to the ALJ's
otherwise permissive use of medical expert testimony where "the
medical evidence is not definite concerning the onset date [of
disability] and medical inferences need to be made." Armstrong v.
Commissioner of Soc . Sec. Admin., 160 F.3d 587, 590 (9th Cir.
1998). In a case involving an indefinite onset date, "SSR 83-20
requires the [ALJ] to call upon the services of a medical advisor
and to obtain all evidence which is available to make the
determination." Id. The onset date of disability is not at issue
in this case.
26 - OPINION AND ORDER
expert testimony was
assess
functional
necessary to interpret his brain MRI
limitations
resulting
from
his
and
seizures.
Plaintiff is incorrect.
With respect to plaintiff's brain MRI, the ALJ appropriately
relied on the evaluation of neurologist Marie Atkinson, M.D. In a
February 2013 examination, Dr. Atkinson observed relatively normal
neurological findings with the exception of a slightly antalgic
gait. Tr.
610-11.
Dr. Atkinson noted that plaintiff's brain MRI
revealed encephalomalacia in the left temporal region and multiple
white matter ischemic changes. Tr. 33, 658. Dr. Atkinson also noted
that the structural change involving his left temporal lobe is an
underlying
risk
attributed
the
hypertension,
factor
for
multiple
diabetes,
epilepsy.
lacunar
Tr.
infarcts
and smoking.
Tr.
608.
to
611.
his
Dr.
Atkinson
uncontrolled
Dr. Atkinson also
noted that plaintiff's February 2013 EEG test was negative. Tr.
613.
As the ALJ noted, Dr. Atkinson prescribed Dilantin, an antiseizure medication and strongly advised plaintiff to stop smoking.
Tr. 33,
611. Plaintiff reported to Nurse Small that his seizures
markedly improved after starting anti-seizure
Dr.
Atkinson
also
noted
that
plaintiff's
~edication.
Tr. 628.
excessive
coughing
episodes, triggered by smoking, may cause seizures due to a lack of
oxygen.
Tr.
611.
Moreover,
Dr.
Atkinson only assessed
seizure
precautions such as avoiding driving, operating heavy machinery,
27 - OPINION AND ORDER
swimming or
finding.
climbing
heights,
see Tr.
Id.;
29
which are
(limitations
reflected
in RFC
in
finding
the
RFC
such as
avoiding concentrated exposure to vibration and hazards and never
climbing ladders, ropes, or scaffolds).
Moreover, I am unpersuaded by plaintiff's argument that Dr.
Atkinson
did
not
assess
any
work-related
limitations
because
plaintiff was not currently working. "The claimant bears the burden
of proving [he) is disabled." Meanel v. Apfel, 172 F.3d 1111, 1113
(9th Cir.
1999)
([Plaintiff) must present complete and detailed
objective medical reports of [his) condition from licensed medical
professionals.").
Here,
Dr.
Atkinson's
evaluation occurred two
months before plaintiff's hearing. At the hearing, the ALJ informed
plaintiff that he would keep the record open for at least 30 days
for plaintiff to submit records of Dr. Atkinson's evaluation. Tr.
93. Consequently, it is reasonable for the ALJ to conclude that Dr.
Atkinson
did
not
assess
functional
limitations
beyond
seizure
precautions because plaintiff's impairment did not cause further
restrictions.
Indeed, as discussed above, the ALJ's RFC finding is supported
by substantial evidence.
Tr.
499,
518,
610-11.
The RFC finding
adequately reflects plaintiff's mental and physical limitations.
Tr.
29.
To be sure,
plaintiff does not specify any additional
cognitive or physical limitations that the ALJ failed to include in
the RFC. Given Dr. Atkinson's detailed assessment and the medical
28 - OPINION AND ORDER
evidence as a whole,
impairment
and
its
the ALJ's evaluation of plaintiff's brain
resulting
limitations
is
supported
by
substantial evidence.
In
summary,
the
record
is
unambiguous
and
adequately
developed, and the ALJ did not err in declining to obtain medical
expert testimony.
CONCLUSION
For
the
reasons
stated
above,
the
Commissioner's
final
decision is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this
(cJ day of NOVEMBER, 2015.
Malcolm F. Marsh
United States District Judge
29 - OPINION AND ORDER
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