Ladely v. Commissioner Social Security Administration
Filing
31
OPINION AND ORDER: The Court AFFIRMS the Commissioners decision. (See 11 page opinion for more information.) Signed on 5/23/18 by Magistrate Judge Patricia Sullivan. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
NANCY K. LADELY,
Case No. 3:17-cv-00739-SU
Plaintiff,
OPINION
AND ORDER
v.
COMMISSIONER, Social Security
Administration,
Defendant.
_________________________________________
SULLIVAN, United States Magistrate Judge:
Plaintiff Nancy K. Ladely brings this action pursuant to the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of
Social Security (the “Commissioner”). The Commissioner denied plaintiff Disability Insurance
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Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons,
the Court AFFIRMS the Commissioner’s decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB on May 7, 2013, claiming disability beginning August 22, 2011,
later amended to April 1, 2013. Tr. 142-48, 158.1 Her claim was denied initially on September
12, 2013, and upon reconsideration on February 24, 2014. Tr. 61-62, 91-95. A hearing was held
July 2, 2015, in Portland, Oregon, before Administrative Law Judge (“ALJ”) Vadim Mozyrsky.
Tr. 37-60. Plaintiff testified, represented by counsel; a vocational expert (“VE”), Gary Kesky,
also testified. Id. On October 9, 2015, the ALJ issued a decision finding plaintiff not disabled
under the Act and denying benefits. Tr. 17-30. Plaintiff requested Appeals Council review,
which was denied March 15, 2017. Tr. 1-13. Plaintiff then sought review before this Court.2
FACTUAL BACKGROUND
Born in 1976, plaintiff has a master’s degree in biopsychology. Tr. 44, 142. Plaintiff
suffers from migraine headaches and experiences dizziness, as well as gastritis. Tr. 44-45, 391,
626. Plaintiff suffers from bipolar and somatoform disorders, and anxiety and depression, and
exhibits histrionic and borderline personality traits. Tr. 319, 331, 386, 553, 695, 794.
LEGAL STANDARDS
A.
Burden of Proof and Evidentiary Requirements
The court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla.
1
Citations “Tr.” refer to indicated pages in the official transcript of the Administrative Record
filed with the Commissioner’s Answer. (Docket Nos. 14, 15).
2
The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C.
§ 636. (Docket No. 8).
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It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court
must weigh “both the evidence that supports and detracts from the [Commissioner’s]
conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a
whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the
ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also
Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the
ALJ’s decision where the evidence is susceptible to more than one rational interpretation”). “[A]
reviewing court must consider the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2007) (quotation omitted). The initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the
claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected . . . to last for
a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
B.
Five-Step Sequential Process
The Commissioner has established a five-step process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First,
the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if
so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe
impairment or combination of impairments.”
§§ 404.1520(c), 416.920(c).
Yuckert, 482 U.S. at 140-41; 20 C.F.R.
A severe impairment is one “which significantly limits [the
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claimant’s] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) &
416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the
Commissioner determines whether the impairment meets or equals “one of a number of listed
impairments that the [Commissioner] acknowledges are so severe as to preclude substantial
gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively
presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the ALJ must evaluate medical and other evidence to determine the
claimant’s “residual functional capacity” (“RFC”).
This is an assessment of work-related
activities that the claimant can perform on a regular and continuing basis, despite any limitations
imposed by her impairments.
20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). At the fourth step, the ALJ determines whether the claimant can perform “past
relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can perform past relevant work, he is not disabled; if he cannot, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that
the claimant can perform other work that exists in significant numbers in the national economy.
Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this
burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
The ALJ found that plaintiff meets the insured status requirements of the Act through
December 31, 2016. Tr. 19. At step one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the amended alleged disability onset date. Id. At step two, the
ALJ found that plaintiff had the severe impairments of migraine headaches, gastritis, vertigo,
bipolar disorder, anxiety, depression, and somatization. Id. At step three, the ALJ found that
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plaintiff did not have an impairment or combination thereof that met or medically equaled a
listed impairment. Id. The ALJ found that plaintiff had the RFC to perform light work, with
certain physical limitations, limited to simple routine and repetitive tasks with simple workrelated decisions, and only incidental contact with the general public and occasional contact with
coworkers. Tr. 21. In so finding, the ALJ gave “limited weight” to the opinions of treating
psychiatrist Charles Kuttner, M.D. Tr. 26. At step four, the ALJ found plaintiff unable to
perform past relevant work. Tr. 28. At step five, the ALJ found that there existed jobs that exist
in significant numbers in the national economy that plaintiff could perform, such as in assembly,
packaging and sorting, and laundry sorting. Tr. 29-30. The ALJ thus found plaintiff not disabled
under the Act and not entitled to benefits. Tr. 37.
ANALYSIS
Plaintiff argues that the ALJ in two regards: (1) failing to provide specific and legitimate
reasons based on substantial evidence for discounting Dr. Kuttner’s opinions regarding plaintiff’s
“marked” limitations in social functioning and activities of daily living; and (2) failing to
consider plaintiff’s amended alleged onset date. The Court finds that the ALJ did not err.
I.
Treating Medical Provider Opinion
Plaintiff argues that the ALJ erred in giving the opinions of treating psychiatrist Charles
Kuttner, M.D., limited weight. In a June 22, 2015, letter, Dr. Kuttner opined that plaintiff’s
impairments resulted in marked restrictions in activities of daily living and in maintaining social
function. Tr. 835-36.
The weight given to the opinion of a physician depends on whether the physician is a
treating, examining, or nonexamining physician. Holohan v. Massanari, 246 F.3d 1195, 1202
(9th Cir. 2001) (citing 20 C.F.R. § 404.1527). If a treating or examining physician’s opinion is
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not contradicted by another physician, the ALJ may only reject it for clear and convincing
reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006)
(examining physician). Even if it is contradicted by another physician, the ALJ may not reject
the opinion without providing specific and legitimate reasons supported by substantial evidence
in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. “An ALJ can satisfy the
‘substantial evidence’ requirement by setting out a detailed and thorough summary of the facts
and conflicting clinical evidence, stating his interpretation thereof, and making findings.”
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation omitted).
The ALJ provided multiple specific and legitimate reasons, supported by substantial
evidence, for giving Dr. Kuttner’s treating physician medical opinions limited weight.3
First, the ALJ reasoned that Dr. Kuttner’s opinion “is inconsistent with stable and
improved mental symptoms he consistently documented in 2014 and 2015,” citing to Exhibits
14F and 17F. AR 26. Inconsistency with a physician’s own clinical findings is a specific and
legitimate basis to discount that physician’s opinions. Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005).
Dr. Kuttner’s treatment notes contain multiple references to plaintiff’s
improvement and stability.4 Plaintiff contends, by citing to other medical records, that she has
shown a lack of improvement and stability. The citation to other record evidence to argue an
alternative interpretation of medical evidence is not sufficient to show the ALJ erred or to show
that an ALJ’s interpretation is invalid where that interpretation is supported by the evidence. The
3
The ALJ assigned “greatest weight” and significant weight to the state’s medical consultant and
psychological consultant, respectively. The parties agree that the standard for a contradicted
treating physician’s opinion, specific and legitimate reasons supported by substantial evidence,
applies here. See Pl. Opening Br., at 7 (Docket No. 26); Def. Br., at 9 (Docket No. 28).
4
Jan. 26, 2015 (“mood has gradually come back to OK”), AR 825; Dec. 29, 2014 (“Mood
continues good”), AR 828; Nov. 12, 2014 (“Latuda is still helping a lot with mood.”), AR 831;
Mar. 11, 2014 (“Now that has” changed medication dosage, “is better.”), AR 856.
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ALJ’s interpretation is entitled to deference. See Batson v. Comm’r, 359 F.3d 1190, 1198 (9th
Cir. 2004).
Second, the ALJ reasoned that Dr. Kuttner’s “overly restrictive mental limitations . . . are
inconsistent with the longitudinal record.” AR 26. The ALJ gave this as another valid reason to
discount Dr. Kuttner’s opinion, and the Court agrees. Orn, 495 F.3d at 631. The ALJ surveyed
the longitudinal record in the Decision, including plaintiff’s mental health symptoms. See AR
20-21, 24-25. Plaintiff objects to the method of citation to the record that the ALJ cites, arguing
that the ALJ did not cite specifically enough to the record. However, the standard on review is
not specificity to record citations but specific and legitimate reasons to discount a physician’s
opinion, which is satisfied here by a finding of inconsistency. Orn, 495 F.3d at 631. Even if the
ALJ’s Decision could have been presented with greater clarity or organization, the Court must
“uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned,”
Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, (1983), as it
can be here.
These two grounds for discounting Dr. Kuttner’s opinions—inconsistency with his own
treatment records and inconsistency with the longitudinal record—constitute valid and sufficient,
specific and legitimate reasons, supported by substantial evidence, such that the ALJ did not err
in assigning those opinions little weight.
Plaintiff also argues the ALJ offered additional,
reasons for discounting Dr. Kuttner’s opinions. These grounds are separate and independent.
Any error raised is harmless and does not undermine the valid grounds the ALJ gave for
discounting Dr. Kuttner’s opinion. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.
2006). The Court briefly notes those here:
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Plaintiff disagrees with the ALJ’s characterization of the nature of somatoform disorder.
The ALJ stated that because plaintiff’s physical manifestations of that disorder “are attributable
to recognizable medical impairments,” and that because plaintiff has taken medication for those
physical impairments, “the diagnosis of somatoform disorder is questionable.” Tr. 26. However,
with somatoform disorder (now termed “somatic symptom disorder”), “[t]he symptoms may or
may not be associated with another medical condition. The diagnoses of somatic symptom
disorder and a concurrent medical illness are not mutually exclusive, and these frequently occur
together.” Diagnostic and Statistical Manual of Mental Disorders, Fifth Ed., at 311 (“DSM-V”).
The concurrence of both somatoform disorder and a medical illness, and the treatment of both,
does not undermine the somatoform diagnosis.
Plaintiff argues that the ALJ erred when he speculated that because Dr. Kuttner
previously worked with plaintiff, “his opinion is colored by his prior acquaintance as a close
colleague . . . . [I]n his role as treating physician [he] appears to have advocated on his client’s
behalf, rather than rendered an objective assessment of medical evidence.” Tr. 26. While the
ALJ “may introduce evidence of actual improprieties,” he “may not assume that doctors
routinely lie in order to help their patients collect disability benefits.” Lester v. Chater, 81 F.3d
821, 832 (9th Cir. 1995) (quotations omitted). The ALJ here has cited no evidence of “actual
improprieties”; he only speculates that, because Dr. Kuttner has known plaintiff for some time,
he is biased. This is an unsupported and impermissible assumption. To the contrary, the longer
the treatment relationship, the more weight that should generally be given to a medical
provider’s opinion. See 20 C.F.R. § 404.1527(c)(2). While the ALJ was not entitled to speculate
about plaintiff’s former relationship to Dr. Kuttner, this is not the sole reason the ALJ gave for
giving the opinion limited weight and is not reversible error.
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Plaintiff also argues the ALJ erred in claiming Dr. Kuttner’s opinions were internally
inconsistent regarding the assessment of limitations in social functioning. The ALJ wrote that
even though Dr. Kuttner assessed plaintiff as having marked limitation in social functioning, he
also assessed that plaintiff could have limited contact with coworkers and supervisors, which
could entail plaintiff having “occasional superficial contact with coworkers and supervisors.” Tr.
26. This is not inconsistent. “Marked” limitations are not the most severe; those are “extreme”
limitations. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138,
66146-47, 66164 (Sept. 26, 2016).
While an “extreme” limitation might rule out even
“occasional superficial contact” with others, a “marked” limitation, by being less severe than
“extreme,” may allow some interpersonal contact.
Lastly, plaintiff argues that the ALJ erred in discounting Dr. Kuttner’s assessment that
she was markedly impaired in social functioning and in activities of daily living. However,
because the ALJ gave specific and legitimate reasons, supported by substantial evidence, as
discussed above, to discount those opinions, it follows that it was proper for the ALJ also to
discount the specific limitations assessments Dr. Kuttner provided. Further, in making this
argument regarding social functioning and daily living, plaintiff attacks not the grounds that the
ALJ gave for discounting Dr. Kuttner’s opinions, but the reasoning the ALJ provided in
assessing plaintiff’s limitations elsewhere in the disability analysis under his step three
determination. Plaintiff has not asserted any error in the ALJ’s step three reasoning or findings.
Further, assertion of error on step three is governed by a different set of legal standards from
those that apply to discounting a treating physician’s opinion in determining the RFC, see, e.g.,
Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); Garrison, 759 F.3d at 1011. Plaintiff has
not claimed error or presented arguments under the set of standards for a step three listing error.
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Thus, the ALJ provided specific and legitimate reasons, supported by substantial
evidence, for giving Dr. Kuttner’s opinions limited weight, despite separate and independent but
improper additional bases for that finding. The ALJ did not err here.
II.
Amended Alleged Onset Date
Plaintiff argues that the ALJ relied on the originally claimed disability date of August 22,
2011, rather than the amended onset date of April 1, 2013.
“In determining the date of onset of disability, the date alleged by the individual should
be used if it is consistent with all the evidence available.” Social Security Ruling (“SSR”) 83-20,
1983 WL 31249 (Jan. 1, 1983).
As to the amended alleged onset date of disability, plaintiff’s only objection is to the
ALJ’s citation of medical evidence from 2012 regarding plaintiff’s use of narcotic medications,
and whether plaintiff had disabling side effects from those medications. See Pl. Opening Br., at
17 (Docket No 26).5 The ALJ cited this record evidence in analyzing plaintiff’s subjective
symptom testimony and whether her statements regarding the limiting effects of those symptoms
were credible. AR 24. However, plaintiff has not asserted any error with regard to the ALJ’s
finding that plaintiff’s symptom testimony was not fully credible. Even without reference to the
2012 medical evidence regarding discontinuation of the narcotic medication, the ALJ’s finding
regarding plaintiff’s symptom testimony is unquestioned on review. Thus, plaintiff has not
shown that any error in citing medical evidence from before the amended disability onset date
was harmful. The ALJ’s reference to 2012 medical records, if erroneous, was harmless error.
See Robbins, 466 F.3d at 885.
5
In her Reply brief, plaintiff speculates that, given the nature of the ALJ’s citations, the ALJ
“may have relied on” evidence predating the amended alleged onset date of disability. Pl. Reply
Br., at 10 (Docket No. 30). However, conjecture about what evidence the ALJ may have relied
on is not sufficient to show error, much less harmful and reversible error.
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CONCLUSION
For these reasons, the Court AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
DATED this 23rd day of May, 2018.
/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge
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