Kirkpatrick v. Commissioner, Social Security Administration
Filing
16
Opinion and Order. The Court AFFIRMS the Commissioner's final decision and DISMISSES this matter. Signed on 10/21/2013 by Judge Anna J. Brown. See attached 22 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LYNETTE S. KIRKPATRICK,
Plaintiff,
6:12-cv-01485-BR
OPINION AND ORDER
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
KATHRYN TASSINARI
BRENT WELLS
Harder, Wells, Baron & Manning, P.C.
474 Willamette
Suite 200
Eugene, OR 97401
(541) 686-1969
Attorneys for Plaintiff
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
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OPINION AND ORDER
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
DAVID J. BURDETT
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2522
Attorneys for Defendant
BROWN, Judge.
Plaintiff Lynette S. Kirkpatrick seeks judicial review of a
final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for
Supplemental Security Income (SSI) payments under Title XVI.
This Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g).
Following a thorough
review of the record, the Court AFFIRMS the Commissioner's final
decision and DISMISSES this matter.
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OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff filed her application for SSI on May 8, 2008.
Tr. 11, 281.
Tr. 238.
Plaintiff’s last date insured was March 31, 2003.
Her application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on June 15, 2011.2
represented by an attorney.
Tr. 11.
At the hearing Plaintiff was
Plaintiff and a vocational expert
(VE) testified at the hearing.
Tr. 11.
The ALJ issued a decision on June 29, 2011, in which he
found Plaintiff is not entitled to benefits.
Tr. 21.
That
decision became the final decision of the Commissioner on
June 29, 2012, when the Appeals Council denied Plaintiff's
request for review.
Tr. 1.
BACKGROUND
Plaintiff was born on October 3, 1966, and was 44 years old
at the time of the hearing.
Tr. 19, 35, 238.
completed a general equivalency degree.
Plaintiff
Tr. 35.
Plaintiff has
prior relevant work experience as a gas-station clerk and a
2
The record reflects a series of hearings preceding the
June 15, 2011, hearing. A hearing was originally held on
March 16, 2010, at which Plaintiff requested and the ALJ granted
a postponement. A hearing was then held on July 13, 2010, at
which the ALJ ordered a neuropsychological evaluation of
Plaintiff. A subsequent hearing was held on February 2, 2011, at
which Plaintiff’s attorney appeared, but Plaintiff did not.
Tr. 11, 70-92.
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OPINION AND ORDER
grocery or convenience-store clerk.
Tr. 62, 249.
Plaintiff alleges disability since December 1, 2007, due to
emotional and eating disorders, blackouts, cramping and excessive
bleeding, low blood pressure, nausea, anxiety, panic attacks,
weight loss, herniated discs, back and hip pain, post-traumatic
stress disorder, and cachexia.
Tr. 11, 223, 238.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence except where noted.
See Tr. 13-21.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
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OPINION AND ORDER
The district 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 as a whole.
42 U.S.C. § 405(g).
See also Brewes v. Comm’r of Soc. Sec.
Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial
evidence is “relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.”
Molina, 674 F.3d.
at 1110-11 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009)).
It is more than a “mere
scintilla” of evidence but less than a preponderance.
Id.
(citing Valentine, 574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
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OPINION AND ORDER
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
Keyser v. Comm’r of Soc. Sec. Admin., 648
F.3d 721, 724 (9th Cir. 2011).
See also Parra v. Astrue, 481
F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. § 416.920.
Each step is
potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 416.920(a)(4)(I).
See also Keyser, 648
F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
§ 416.920(a)(4)(ii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
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OPINION AND ORDER
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 416.920(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
The assessment of a claimant's
RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.
An improper evaluation
of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.'"
SSR 96-8p, at *4.
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
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OPINION AND ORDER
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 416.920(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since May 8, 2008, her
application date.
Tr. 13.
At Step Two the ALJ found Plaintiff has the severe
impairments of “lumbar spine degenerative disc disease; cervical
spines train [sic], status post motor vehicle accident;
depression; anxiety disorder; cognitive disorder; pain disorder;
alcohol and marijuana abuse; and features of histrionic
personality disorder.”
Tr. 13.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
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OPINION AND ORDER
Impairments.
Tr. 13.
The ALJ found Plaintiff can perform light
work as defined in 20 C.F.R. § 416.967(c) with the following
limitations:
“She can lift up to 20 pounds occasionally and up
to 10 pounds frequently.
She can stand/walk at least two out of
eight hours and sit for about six out of eight hours.
She can
only occasionally climb ramps, stairs, ladders, ropes, or
scaffolds, stoop, or crouch.
balance, kneel, or crawl.
She can no more than frequently
She must avoid concentrated exposure
to hazards, including machinery and heights.
simple and repetitive tasks.
incidental public contact.”
She is limited to
She can have only sporadic or
Tr. 15.
At Step Four the ALJ concluded Plaintiff was unable to
perform any past relevant work.
Tr. 19.
At Step Five the ALJ concluded Plaintiff was able to perform
the jobs of small-products assembler, electronics worker, or food
assembler, which exist in the national economy.
Accordingly, the
ALJ found Plaintiff has not been disabled since May 8, 2008.
Tr. 20.
DISCUSSION
Plaintiff contends the ALJ erred when he improperly
(1) rejected Plaintiff’s testimony; (2) rejected the opinion of
Brian G. Jones, M.D., a treating physician; (3) rejected the
opinion of David Northway, Ph.D., an examining physician; (4)
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OPINION AND ORDER
rejected the opinion of Heidi Tafjord, N.P., a treating nurse;
and (5) provided the VE with an incomplete hypothetical.
I.
Plaintiff’s testimony.
Plaintiff alleges the ALJ erred when he failed to give clear
and convincing reasons for rejecting Plaintiff's testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.
Parra, 481 F.3d at 750 (citing
Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
General
assertions that the claimant's testimony is not credible are
insufficient.
Id.
The ALJ must identify "what testimony is not
credible and what evidence undermines the claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
The consistency of claimant’s daily activities with the
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OPINION AND ORDER
medical record is relevant when determining the claimant’s
credibility and may constitute a clear and convincing reason to
reject a claimant’s testimony.
Smolen, 80 F.3d at 1284.
The ALJ concluded Plaintiff’s medically determinable
impairments could reasonably be expected to cause Plaintiff's
alleged symptoms, but he concluded Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of
her symptoms were not credible "to the extent they are
inconsistent with the [RFC]."
Tr. 24.
Plaintiff testified she has low-back problems that cause
pain to shoot from her low back through her hip and down to her
ankle.
Tr. 51-52.
She stated she can walk around the grocery
store, but she has problems with her equilibrium and has to lean
on the shopping cart or use a “driving basket.”
Tr. 52.
Plaintiff testified she has a difficult time standing, can only
stand for five minutes at a time, and has to take a nap before
she showers to remain “stable enough.”
Tr. 53.
Plaintiff also
stated she has numbness and tingling in her left thumb and her
index and little fingers “any time I move my arm in a wrong
position.”
Tr. 49-50.
She also stated she frequently drops
things from her left hand such as a gallon of milk or a basket of
laundry.
Tr. 50.
Plaintiff testified she is unable to perform
her “normal activities” when she has headaches, and her headaches
seem to be related to the neck pain she experiences.
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OPINION AND ORDER
Tr. 48-49.
Plaintiff also testified she has trouble keeping track of
appointments, does not like leaving her home, and is afraid she
will pass out in public.
Tr. 55-58.
Plaintiff stated she is
constantly depressed and feels sad and alone.
Tr. 59.
These
feelings are worse when Plaintiff is out in public, and they
prevent her from engaging in social activities.
Tr. 59.
The ALJ found Plaintiff’s credibility was undermined by the
fact that she is a “poor historian.”
For example, Plaintiff
testified she was involved in an accident, but she stated it was
not a car accident.
Tr. 39-40.
The medical records, however,
show that it was a car accident, Plaintiff had been driving, and
she was intoxicated.
Tr. 722-23.
The ALJ also found the effects
from another car accident on April 22, 2010 “are not as
significant as she alleges” as reflected in the fact that
Plaintiff did not seek medical attention following that accident
until June 14, 2010.
Tr. 17, 777.
Plaintiff, however, points
out that the record reflects Plaintiff was admitted to the
emergency room on April 22, 2010, for injuries sustained from the
accident.
Tr. 716.
The ALJ also found Plaintiff’s attendance in June 2010 at “a
three-and-a-half hour graduation ceremony, standing most of that
time [and clapping], five hours at go-cart races, and half-hour
long car rides each way” were inconsistent with Plaintiff’s
reports that she had limited use of her left hand and her
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OPINION AND ORDER
testimony that she has “significant difficulties with standing
due to pain and leaving her home due to anxiety.”
Tr. 17.
The ALJ noted imaging studies showed Plaintiff had
degenerative disc disease with “no obvious narrowing,”
degenerative joint disease with “no significant spinal stenosis
or lateral recess narrowing or foraminal stenosis,” and only
degenerative changes in Plaintiff’s hip.
Tr. 17.
The ALJ found
these results were inconsistent with Plaintiff’s testimony
regarding her ability to walk and to stand.
Tr. 17.
The ALJ
also found an imaging study of Plaintiff’s brain was normal even
though Plaintiff complains of headaches.
Tr. 17, 884.
In addition, the ALJ concluded Plaintiff’s “poor record with
physical therapy” in 2010 further undermined her credibility.
Tr. 17.
In September 2010 Sharon Huchko, D.P.T., stated
Plaintiff’s overall rehabilitation potential was poor.
Dr. Huchko stated:
Tr. 975.
“[Plaintiff] exhibits no capacity for
advancement of therapeutic activity during treatment,” and her
“[p]otential for continued improvement with skilled intervention,
and for continued progress toward established goals is poor.”
Tr. 975.
Dr. Huchko also noted Plaintiff was not complying with
the “outlined clinical treatment program.”
Accordingly, Dr. Huchko concluded:
Tr. 975.
“At this time skilled
rehabilitative services . . . are no longer required due to
[Plaintiff’s] plateau in progress.”
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OPINION AND ORDER
Tr. 975.
On this record the Court concludes the ALJ provided clear
and convincing reasons supported by substantial evidence in the
record for finding Plaintiff's testimony not entirely credible as
to the intensity, persistence, and limiting effects of her
conditions.
As noted, Plaintiff identified an error in the ALJ’s
recitation of the record as to Plaintiff’s treatment following
the April 22, 2010 accident.
The Court, however, finds such
error was harmless because the ALJ otherwise provided clear and
convincing reasons for rejecting Plaintiff’s testimony.
See
Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008)(a single
erroneous basis for an ALJ’s determination is harmless error if
other valid reasons supporting that determination remain).
The
Court, therefore, concludes the ALJ properly discredited
Plaintiff's testimony in part.
II.
Medical opinion testimony.
An ALJ may reject an examining or treating physician's
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes "findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record."
Thomas v. Barnart,
278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989)).
Specific, legitimate reasons
for rejecting a physician’s opinion may include reliance on a
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OPINION AND ORDER
claimant’s discredited subjective complaints, inconsistency with
medical records, inconsistency with a claimant’s testimony, and
inconsistency with a claimant’s daily activities.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
Tommasetti v.
See also Andrews v.
Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995).
When the medical opinion of an examining or treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
278 F.3d 947, 957 (9th Cir. 2002).
Thomas v. Barnhart,
See also Lester v. Chater, 81
F.3d 821, 830-32 (9th Cir. 1995).
Generally, the more consistent an opinion is with the record
as a whole, the more weight an opinion should be given.
20
C.F.R. § 416.927(c)(4).
Medical sources are divided into two categories:
"acceptable" and "not acceptable."
20 C.F.R. § 416.902.
Acceptable medical sources include licensed physicians and
psychologists.
20 C.F.R. § 416.902.
Medical sources classified
as "not acceptable" include, but are not limited to, nurse
practitioners, therapists, licensed clinical social workers, and
chiropractors.
SSR 06-03p, at *2.
The Social Security
Administration notes:
With the growth of managed health care in
recent years and the emphasis on containing
medical costs, medical sources who are not
acceptable medical sources, such as nurse
practitioners, physician assistants, and
licensed clinical social workers, have
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OPINION AND ORDER
increasingly assumed a greater percentage of
the treatment and evaluation functions
previously handled primarily by physicians
and psychologists. Opinions from these
medical sources, who are not technically
deemed acceptable medical sources under our
rules, are important and should be evaluated
on key issues such as impairment severity and
functional effects, along with the other
relevant evidence in the file.
SSR 06-03p, at *3.
Factors the ALJ should consider when
determining the weight to give an opinion from those “important”
sources include the length of time the source has known the
claimant and the number of times and frequency that the source
has seen the claimant, the consistency of the source's opinion
with other evidence in the record, the relevance of the source's
opinion, the quality of the source's explanation of his opinion,
and the source's training and expertise.
SSR 06-03p, at *4.
On
the basis of the particular facts and the above factors, the ALJ
may assign a not-acceptable medical source either greater or
lesser weight than that of an acceptable medical source.
03p, at *5-6.
SSR 06-
The ALJ, however, must provide reasons for the
weight assigned to such opinions to the extent that a claimant or
subsequent reviewer may follow the ALJ's reasoning.
SSR 06-03p,
at *6.
A.
Dr. Jones.
Plaintiff contends the ALJ erred when he improperly rejected
the opinion of Dr. Jones, a treating physician.
The ALJ noted Dr. Jones provided a number of written
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OPINION AND ORDER
opinions regarding Plaintiff’s limitations.
March 2, 2010, Dr. Jones wrote:
Tr. 17-18.
On
“I believe she could work but
only [sic] a very limited sedentary state.”
Tr. 697.
On
March 15, 2010, Dr. Jones deviated from his March 2, 2010,
opinion, stating Plaintiff was “not capable of working even in a
sedentary position” because she was “not coping well with her
depression, anxiety, headaches, and back pain.”
On June 29,
2010, Dr. Jones concluded Plaintiff was too disabled to work, but
he recommended Plaintiff receive a psychological evaluation
because “[Plaintiff’s] level of pain seems to be beyond the
objective findings, but I do think she has significant anxiety
and depressive disorders that contribute to her chronic pain to
the point where I believe it does disable her.
I suggest that
she see a psychologist or psychiatrist to evaluate that issue
further, but in my estimation, she would not be able to hold down
a 40-hour work week.”
Tr. 893.
The ALJ did not give any weight to Dr. Jones’s opinion
regarding Plaintiff’s pain symptoms on the ground that “Dr. Jones
does not have a psychological or psychiatric specialty and, as
such, the undersigned cannot give any weight to Dr. Jones’s
opinion that the claimant’s mental impairments are contributing
to her pain symptoms.”
Tr. 18.
The ALJ, however, acknowledged
Dr. Jones’s conclusion that Plaintiff’s reported pain was in
excess of the objective findings.
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OPINION AND ORDER
Tr.
18.
The Court notes Dr. Jones’s opinion that Plaintiff would be
unable to maintain a full-time job does not appear to be
conclusive in light of Dr. Jones’s recommendation that Plaintiff
undergo a psychological evaluation to determine whether her
depression and anxiety were contributing to her pain symptoms.
Accordingly, the Court concludes on this record that the ALJ
did not err when he rejected Dr. Jones’s opinion because the ALJ
provided legally sufficient reasons supported by the record for
doing so.
B.
Dr. Northway.
Plaintiff also contends the ALJ erred when he improperly
rejected the opinion of Dr. Northway, an examining physician.
The ALJ noted Dr. Northway performed a neuropsychological
screening assessment of Plaintiff.
Tr. 18, 820-27.
Dr. Northway
noted Plaintiff’s scores on the Wechsler Adult Intelligence
Scale, Fourth Edition (WAIS-IV), suggest Plaintiff “will complete
tasks considerably more slowly than her peers.
She may also
struggle when information is provided to her in a nonverbal
manner.”
Tr. 824.
Dr. Northway also found “[Plaintiff] does not
look like she would be a good candidate to work cooperatively or
collaboratively with others over a long-term basis.”
Tr. 825.
Dr. Northway noted Plaintiff has “some problems with attention
and does particularly poorly on processing visual spatial
materials.”
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Tr. 825.
OPINION AND ORDER
Dr. Northway diagnosed Plaintiff with
anxiety disorder, major depressive disorder, cognitive disorder,
and pain disorder.
Tr. 826.
Although ALJ noted Dr. Northway’s diagnoses of Plaintiff,
the ALJ, as Plaintiff points out, incorrectly stated Dr. Northway
“did not provide any specific functional limitations associated
with these impairments.”
Tr. 18.
As noted, Dr. Northway opined
Plaintiff would complete tasks more slowly than her peers, may
struggle with nonverbal instructions, would not work
cooperatively or collaboratively with others over a long-term
basis, and has problems with attention and processing.
25.
Tr. 824-
Plaintiff contends the ALJ failed to include the limitations
identified by Dr. Northway in Plaintiff’s RFC.
Although the ALJ erroneously stated Dr. Northway did not
provide an opinion as to Plaintiff’s specific functional
limitations, the ALJ gave great weight to and adopted the opinion
of nonexamining Disability Determination Services3 physician
Kordell Kennemer, Psy.D., who identified the same limitations
noted by Dr. Northway.
Tr. 19, 844.
Dr. Kennermer stated:
“Given [Plaintiff’s] difficulties with processing speed and
divided attention as well as affective [symptoms] and pain she
would be unable to understand complex tasks.
3
She can understand
Disability Determination Services (DDS) is a federally
funded state agency that makes eligibility determinations on
behalf and under the supervision of the Social Security
Administration pursuant to 42 U.S.C. § 421(a).
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OPINION AND ORDER
and complete simple tasks.
limited public contact.
socially.”
Tr. 844.
[S]he would require a workplace with
She can briefly interact and communicate
The ALJ included these limitations when he
evaluated Plaintiff’s RFC; for example, the ALJ found Plaintiff
“is limited to simple and repetitive tasks.
sporadic or incidental public contact.”
She can have only
Tr. 15.
The Court also
notes the ALJ’s hypothetical posed to the VE included the
limitations identified by Drs. Northway and Kennemer:
“[M]ore
recently we have some non-exertional limitations at a limit [sic]
understanding and completing simple tasks and limited public
contact.”
Tr. 62.
Accordingly, the Court finds even though the ALJ erred when
he misstated the record with respect to Plaintiff’s limitations
as noted by Dr. Northway, any such error is harmless because the
ALJ included the limitations identified by Dr. Northway in the
ALJ’s assessment of Plaintiff’s RFC.
C.
Nurse Tafjord.
Plaintiff also contends the ALJ erred when he improperly
rejected the opinion of N.P. Tafjord, a treating nurse
practitioner.
As noted, the ALJ must consider the opinion of “notacceptable” medical sources such as nurse practitioners and must
provide reasons for the weight assigned to such opinions.
Here the ALJ noted N.P. Tafjord “agreed with Dr. Jones’s
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OPINION AND ORDER
recommendation that claimant should be referred to a psychologist
to evaluated [sic] whether she has a pain disorder diagnoses.”
Tr. 18, 797.
The ALJ also noted N.P. Tafjord considered
Dr. Northway’s assessment of Plaintiff and concluded Plaintiff
“would decompensate under the stress of a full-time work schedule
on top of having to take care of herself, to the point that she
would not be able to maintain a regular work schedule.
She would
not show up reliably to work and be able to consistently perform
even simple routine tasks throughout an eight-hour workday.”
Tr. 920.
The ALJ gave “only little weight” to N.P. Tafjord’s
opinion on the ground that her opinion “appears to be overstated
and unsupported.”
Tr. 18.
The ALJ found N.P. Tafjord did not
explain or provide support for her opinion, and the ALJ concluded
that the record does not support her opinion that Plaintiff would
decompensate under the stress of full-time employment.
Tr. 18.
The ALJ also found it did not appear that N.P. Tafjord was aware
of Plaintiff’s activity as reported to Plaintiff’s physical
therapist in June 2010.
Tr. 18.
The ALJ concluded:
“If
[Plaintiff] can attend a three and one half hour graduation, five
hours of racing and traveling to these events, there is no reason
she cannot perform the unskilled occupations identified.”
Tr. 18.
The ALJ, however, credited portions of N.P. Tafjord’s
opinion when he included in Plaintiff’s RFC the limitations of
“no more than incidental and sporadic public contact and no more
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OPINION AND ORDER
than simple, routine tasks.”
Tr. 18.
The Court concludes on this record that the ALJ did not err
when he rejected in part N.P. Tafjord’s opinion because the ALJ
provided legally sufficient reasons supported by the record for
doing so.
III. The ALJ’s hypothetical posed to the VE was complete.
Plaintiff contends the ALJ’s hypothetical to the VE was
inadequate because it did not contain the limitations testified
to by Plaintiff and those identified by Dr. Northway.
The Court has already concluded the ALJ properly considered
Plaintiff’s limitations in his evaluation of Plaintiff’s RFC.
this record the Court also concludes the ALJ included these
limitations in the hypothetical posed to the VE.
CONCLUSION
For these reasons, the Court AFFIRMS the Commissioner’s
decision and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 21st day of October, 2013.
/s/ Anna J. Brown
_____________________________
ANNA J. BROWN
United States District Judge
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OPINION AND ORDER
On
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