Dugan v. Commissioner Social Security Administration
Filing
20
Opinion and Order. Ms. Dugan has not shown that the ALJ committed any prejudicial error in denying her applications for benefits. The final decision of the Commissioner is AFFIRMED. Signed on 6/26/14 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
RUBY DUGAN,
No. 6:13-cv-00826-MO
Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. COLVIN, acting
Commissioner of the Social
Security Administration,
Defendant.
MOSMAN, J.,
Plaintiff Ruby Dugan filed a complaint [1] seeking review of the Commissioner’s
decision to deny her application for disability insurance benefits and supplemental security
income. She assigns numerous errors to the ALJ, most resting on failure to account for her
difficulties in interacting with other people. Because I find that the ALJ committed no
prejudicial error in weighing medical opinion, determining Ms. Dugan’s credibility, or in
formulating Ms. Dugan’s residual functional capacity, I affirm the ALJ’s decision.
BACKGROUND
Ms. Dugan protectively filed applications for disability insurance benefits and
supplemental security income on September 2, 2009, alleging an onset date of November 1,
1 – OPINION AND ORDER
2008. (AR [12-6] at 141, 143.) Her application was denied initially and on reconsideration.
(AR [12-5] at 98, 103, 109, 113.) A hearing was held before Administrative Law Judge (“ALJ”)
Anthony J. Johnson, Jr., on March 7, 2012. (AR [12-3] at 19.)
At the hearing, Ms. Dugan testified that her medications for schizoaffective disorder have
improved her ability to tolerate interpersonal interaction. (AR [12-3] at 65.) For example, when
she shopped in the past, she would avoid everyone in the store until she arrived at the cash
register. Id. at 74. She testified that her medication reduced the paranoid feelings that caused
this behavior. Id. at 75. Even with medication, however, she said that she sometimes feels as
though she can read other people’s minds. Id. at 65–66. The people she associates with become
uncomfortable when she announces this. Id. at 66.
Ms. Dugan summarized her tumultuous work history at the hearing, recounting positions
she held at various fast food restaurants, a gas station, a video rental store, and a nonprofit
poverty relief organization. Id. at 43–48, 71–76. She testified that she left each of her past jobs
because of disagreements or indiscretions with coworkers and supervisors. Id. She also
recounted her difficulties in getting along with her relatives. Id. at 68–71. She resided with her
sister from March of 2009 until she left after an unspecified dispute. Id. at 68–69. From then
until the present she lived with her mother, excluding a few months spent at a homeless shelter
after another argument. Id. at 69–71.
The ALJ decided that Ms. Dugan is not disabled. Id. at 30. The ALJ found that Ms.
Dugan suffers severe impairments including “schizoaffective disorder, patella-femoral
syndrome, depression, degenerative disc disease . . . , obesity, asthma, obsessive compulsive
disorder (OCD), insomnia, and anxiety.” Id. at 22. Accordingly, the ALJ incorporated a number
of physical and mental limitations into Ms. Dugan’s residual functional capacity (“RFC”),
2 – OPINION AND ORDER
including admonitions that she “should interact with the public no more than occasionally” and
“have no more than occasional interaction with coworkers and supervisors.” Id. at 24. In
reaching this conclusion, the ALJ afforded “great weight” to the opinions of evaluating physician
Gale Smolen, M.D., and state agency psychological consultant Robert Henry, Ph.D. 1 Id. at 27–
28. Based on the testimony of a vocational expert, the ALJ concluded that Ms. Dugan’s RFC
permitted her to work as a small products assembler, a wire worker, and a jewelry preparer, all
positions that exist in significant numbers in the national economy. Id. at 29. When the Appeals
Council denied Ms. Dugan’s request for review, the ALJ’s decision became the final decision of
the Commissioner. Id. at 1.
Ms. Dugan filed a complaint [1] seeking review of the Commissioner’s decision on May
15, 2012. She filed an opening brief [13] on January 23, 2014. The Commissioner responded
[15]. Ms. Dugan did not file a reply.
STANDARD OF REVIEW
An ALJ’s denial of benefits must stand unless it “was not supported by substantial
evidence in the record as a whole” or “the ALJ applied the wrong legal standard.” Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Hill v. Astrue, 698 F.3d
1153, 1159 (9th Cir. 2012) (internal quotation omitted).
DISCUSSION
In all, Ms. Dugan identifies four errors in the ALJ’s decision. She contends that the ALJ
(1) failed to fully account for Dr. Smolen’s opinion regarding her social difficulties; (2) gave
improper reasons for discounting her credibility; (3) incorporated limitations into the RFC
1
The ALJ does not include Dr. Henry’s name in his decision, but cites two reports prepared by Dr. Henry. (AR [123] at 28 (citing AR [12-8] 306–09, 313–26).)
3 – OPINION AND ORDER
without grounding them in medical evidence; and (4) failed to account for all of her severe
impairments in the RFC.
I.
Dr. Smolen’s Opinion
An ALJ may reject a treating physician’s uncontradicted opinion only for “clear and
convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r, 528 F.3d
1994, 1198 (9th Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)).
Where a treating physician’s opinion contradicts that of another doctor, the ALJ may reject it
based upon “specific and legitimate reasons,” which also must rest on substantial evidence. Id.
(quoting Bayliss, 427 F.3d at 1216). The ALJ must explain his decision to discount a treating
physician’s opinion with “a thorough summary of the facts and conflicting clinical evidence.”
Brawner v. Sec’y of Health & Human Servs., 839 F.2d 432, 433–34 (9th Cir. 1988).
Dr. Smolen performed a psychiatric evaluation for Oregon’s Disability Determination
Services. (AR [12-8] at 298–302.) During their time together, Ms. Dugan told Dr. Smolen that
she has experienced visual and auditory hallucinations since childhood. Id. at 299. Ms. Dugan
also reported feeling depressed “about a quarter of the month” and suffering infrequent panic
attacks. Id. at 300. Based on her observations and Ms. Dugan’s subjective reports, Dr. Smolen
diagnosed Ms. Dugan with schizoaffective disorder and attendant depression. Id. at 301. She
also concluded that Ms. Dugan likely cannot “get along well with other people on a mental
basis.” Id.
Dr. Henry reviewed Ms. Dugan’s mental symptoms against the Commissioner’s mental
impairment categories. Id. at 313. He noted that Ms. Dugan did not report her auditory and
visual hallucinations to a medical provider until January of 2010, despite having told Dr. Smolen
that she experienced them since childhood. Id. at 325. He observed also that Ms. Dugan’s
4 – OPINION AND ORDER
primary care provider at the time, Nathan Mason, M.D., remarked that her mental health
symptoms improved with medication. Id. Dr. Henry also relied on Dr. Smolen’s observations
and conclusions. Id. He determined that Ms. Dugan’s social limitations are “moderate” rather
than “marked.” Id. Accordingly, he suggested that the RFC should limit Ms. Dugan to only
occasional contact with the general public. Id.
Ms. Dugan argues that the ALJ failed to account fully for Dr. Smolen’s opinion despite
giving it great weight in her analysis. (Pl.’s Br. [13] at 9.) According to Ms. Dugan, Dr.
Smolen opined that she is “not capable of getting along with others entirely.” Id. She asserts
that the ALJ ignored this diagnosis of total social dysfunction, instead choosing to allow her
occasional contact with the public and coworkers. Id.
This argument exaggerates Dr. Smolen’s assessment of Ms. Dugan’s difficulties. Dr.
Smolen determined only that Ms. Dugan would struggle to “get along well” with others, not that
she is completely dysfunctional in her social interactions. (AR [12-8] at 301.) The ALJ
reasonably concluded from Dr. Smolen’s opinion that Ms. Dugan is capable of occasional
interaction with the public.
Ms. Dugan goes on to contend that the ALJ could not reasonably have afforded great
weight to both Dr. Smolen’s opinion that Ms. Dugan is “unable to get along with others entirely”
and Dr. Henry’s opinion that Ms. Dugan suffers only moderate social impairment. (Pl.’s Brief
[13] at 9–10.) This argument rests entirely on Ms. Dugan’s misapprehension of Dr. Smolen’s
opinion. Both medical experts opined only that Ms. Dugan is limited in her social interaction,
not totally disabled. The ALJ reasonably relied on both opinions.
Next, Ms. Dugan argues that Dr. Henry did not base his finding of only moderate social
impairment on medical evidence. Id. at 10. Dr. Henry’s own opinion belies this contention. As
5 – OPINION AND ORDER
noted above, Dr. Henry reviewed treatment notes prepared by Ms. Dugan’s primary physician,
Dr. Mason. (AR [12-8] at 325.) He noted that Ms. Dugan’s symptoms improved after Dr.
Mason prescribed medication her anxiety. Id. Dr. Henry also relied on Dr. Smolen’s in-person
observations of Ms. Dugan. Id.
Finally, Ms. Dugan asserts that the ALJ attributed to Dr. Henry a statement that Dr.
Henry did not make. (Pl.’s Br. [13] at 10.) According to the ALJ, “[t]he state agency
psychological consultant noted the claimant demonstrates adequate ability to interact with
treating and examining sources.” (AR [12-3] at 27.) Ms. Dugan argues that Dr. Henry did not
comment on the quality of her interactions with physicians. (Pl.’s Br. [13] at 10.)
The Commissioner concedes that the ALJ’s misattribution was error. (Def.’s Br. [15] at
11–12.) Nonetheless, the error did not prejudice Ms. Dugan.
An error is harmless if “it is clear from the record that the ALJ’s error was
inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008) (internal quotation omitted). Dr. Henry grounded his opinion of Ms.
Dugan’s interpersonal difficulties in two different medical sources. That he never commented
favorably on Ms. Dugan’s interaction with medical providers does not detract from his
conclusion that she is capable of occasional contact with the public.
The ALJ committed no prejudicial error in weighing Dr. Smolen’s and Dr. Henry’s
opinions.
II.
Ms. Dugan’s Credibility
A Social Security claimant who alleges that subjective symptoms have made her disabled
must satisfy two requirements: “(1) she must produce objective medical evidence of an
impairment or impairments; and (2) she must show that the impairment or combination of
6 – OPINION AND ORDER
impairments could reasonably be expected to (not that it did in fact) produce some degree of
symptom.” Smolen v. Chater, 80 F.3d 1273, 1281–82 (9th Cir. 1996) (emphasis in original).
Where the claimant produces objective evidence of a medically determinable impairment that
could reasonably produce her symptoms, absent evidence of malingering, the ALJ must provide
clear and convincing reasons supported by substantial evidence for rejecting her description of
the severity of those symptoms. Carmickle v. Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008).
In measuring the severity of the claimant’s symptoms, the ALJ may consider the
claimant’s daily activities and the responsiveness of her symptoms to medication. 20 C.F.R.
§§ 404.1529(c)(3)(i), (iv), 416.929(c)(3)(i), (iv). The ALJ may also consider the claimant’s
failure to pursue treatment in weighing the credibility of her objective reports. See Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The consistency of the claimant’s reports, “both
internally and with other information in the case record,” is an important factor in the credibility
determination. SSR 96-7p, 1996 WL 374186, at *5 (July 2, 1996).
Ms. Dugan argues that the ALJ failed to give clear and convincing reasons for
discounting the credibility of her subjective reports. (Pl.’s Br. [13] at 11–12.) In particular, she
asserts that “[t]he ALJ provided no specific reasons to reject [her] testimony regarding her
interpersonal deficits.” Id. at 12. She does not elaborate.
In fact, the ALJ gave many reasons to doubt Ms. Dugan’s account of her social
difficulties. First, the ALJ observed that Ms. Dugan’s daily activities, including socializing
“with her family and with people at the store,” meeting friends, and “attending bible study,” are
inconsistent with crippling social dysfunction. (AR [12-3] at 25, 27.) Second, the ALJ noted
that Ms. Dugan’s mental health symptoms respond positively to medication, without any need
for hospitalization. Id. at 26–27. Finally, the ALJ noted inconsistencies between Ms. Dugan’s
7 – OPINION AND ORDER
testimony and her report to the Commissioner. Id. at 25. As an example, she told the ALJ that
her most recent job lasted until November 4, 2008, when she quit after a dispute over her
sandwich-wrapping technique. Id. In her report, however, she recalled being fired on November
1, 2008. Id. Together, these observations amount to clear and convincing reasons to suppose
that Ms. Dugan’s mental impairments do not frustrate all meaningful social interaction.
III.
RFC’s Basis in the Medical Record
An ALJ must support his RFC determination with a narrative that explains how evidence
in the record, both medical and nonmedical, supports his findings. SSR 96-8p, 1996 WL
374184, at *7 (July 2, 1996). Medical opinions in the record must be addressed, and the ALJ
must always give reasons for declining to adopt them. Id. A medical opinion from an examining
physician concerning “the nature and severity” of a claimant’s impairments that is consistent
with the rest of the record and supported by reliable diagnostic techniques is entitled to
controlling weight. Id. In the end, the RFC must be based on all the evidence in the record,
medical and nonmedical. 20 C.F.R. §§ 404.1545(a)(1), (3), 416.945(a)(1), (3).
Ms. Dugan argues that the ALJ here “impermissibly drew upon his own inferences from
medical reports” rather than relying on medical opinion. (Pl.’s Br. [13] at 7–8.) “[W]ithout
medical opinion or guidance,” she asserts, the ALJ concluded that Ms. Dugan can carry out
written or diagrammatic instructions, solve simple, standardized problems involving only a few
concrete variables, work around coworkers, and work with only “occasional interaction with
coworkers and supervisors.” Id. at 8 (quoting without attribution AR [12-3] at 24). Ms. Dugan
argues that these conclusions rest on “[n]o medical basis.” Id. at 7–8.
This argument is off the mark, as the ALJ in fact relied upon medical evidence and
opinion in formulating Ms. Dugan’s RFC. The ALJ read Dr. Smolen to opine that Ms. Dugan
8 – OPINION AND ORDER
suffers “no more than mild impairment in her ability to remember, understand, and concentrate.”
(AR [12-3] at 27.) The ALJ also relied on the opinion of Dr. Henry, who concluded that Ms.
Dugan can perform “simple and routine types of tasks independently” and should have only
occasional contact with the general public. (AR [12-3] at 27–28; [12-8] at 308.) Ms. Dugan has
not shown that the ALJ erred.
IV.
Severe Impairments Not Accounted for in the RFC
Where a claimant asserts that the RFC failed to account for an impairment, she bears the
burden of showing that the impairment causes physical limitations that the RFC does not
accommodate. See Valentine v. Comm’r, 574 F.3d 685, 692 n.2 (9th Cir. 2009) (rejecting
claimant’s assertion that the RFC did not account for his knee and shoulder injuries where he did
not show what physical limitations the injuries caused). A bare assertion that the RFC does not
account for an impairment “in some unspecified way” does not suffice. Id.
Ms. Dugan argues that the RFC that the ALJ formulated does not account for her asthma,
insomnia, OCD, or anxiety, all found to be severe impairments. (Pl.’s Br. [13] at 8.) She does
not attempt to explain what limitations flowing from these impairments are missing in the RFC.
For this reason, she has not shown any failure to account for them was error.
CONCLUSION
Ms. Dugan has not shown that the ALJ committed any prejudicial error in denying her
applications for benefits. The final decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
DATED this
26th
day of June, 2014.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge
9 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?