Lewin v. Commissioner Social Security Administration
Filing
30
Opinion and Order: The Commissioner's final decision is affirmed and this case is dismissed. Signed on 6/6/16 by Magistrate Judge Thomas M. Coffin. (ljb)
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IN THE UNITED STATES DISTRICT COCRT
FOR THE DISTRICT OF OREGON
RONALD LEE LEWIN,
Plaintiff,
Case No. 6:15-cv-00474-TC
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
COFFIN, Magistrate Judge:
Plaintiff Ronald Lewin seeks judicial review of the Commissioner's decision denying his
application for disability insurance benefits (DIB) and supplemental security income (SSI) under
Titles II and XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§
405(g) and 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final
orders and judgments in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c).
Because the Commissioner's decision is based on proper legal standards and supported by
substantial evidence, the Commissioner's decision is AFFIRMED.
1 - OPINION AND ORDER
BACKGROUND
Plaintiff protectively filed an application for DIB and SSI on April 2, 2012, alleging
disability beginning February 1, 2011. Tr. 36. Plaintiff was insured under Title II through
December 31, 2013. Tr. 11. Following a denial of benefits, plaintiff requested a hearing before
an administrative law judge (ALJ). On January 3, 2014, an ALJ determined plaintiff was not
disabled. Tr. 11-24. Plaintiff appealed that decision to the Appeals Council and submitted as
new evidence, a psychological evaluation by Judith Eckstein, Ph.D.. Tr. 5-6. After considering
the new evidence and making it part of the record, the Appeals Council affirmed the ALJ' s
decision on January 20, 2015. Tr. 1-7. This appeal followed.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm 'r Soc. Sec. Admin., 359 F .3d 1190, 1193 (9th Cir. 2004).
Substantial evidence is "more than a mere scintilla.
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) (citation and internal quotations omitted).
In reviewing the
Commissioner's alleged errors, this court must weigh "both the evidence that supports and
detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th
Cir. 1986). Variable interpretations of the evidence are insignificant if. the Commissioner's
interpretation is rational. Burch v. Barnhart, 400 F .3d 676, 679 (9th Cir. 2005).
When the evidence before the ALJ is subject to more than one rational interpretation, we
must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shala/a, 53
F.3d 1035, 1041 (9th Cir. 1995)).
2 - OPINION AND ORDER
A reviewing court, however, "cannot affirm the
Commissioner's decision on a ground that the Administration did not invoke in making its
decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation
omitted). Finally, a court may not reverse an ALJ's decision on account of an error that is
harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon
the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
Plaintiffs appeal focuses only on his mental impairments because, he argues, "those are
the impairments that are most disabling and ... were not properly developed at the hearing
level." Pl.'s Br. 4. Specifically, plaintiff argues that the ALJ erred by failing to develop the
record by not seeking a psychological examination after one was recommended by consultative
examiner, Anthony Glassman, M.D., in July 2012, and by relying on a residual functional
capacity (RFC) that was not supported by substantial evidence. Pl.'s Br. 12-13. Plaintiff asserts
that because the ALJ failed to develop the record, he did so by obtaining a psychological
examination from Dr. Eckstein and submitting it to the Appeals Council as new evidence after
the ALJ issued her unfavorable decision. PL 's Reply Br. 5. Plaintiff argues this court should
remand the case for further proceedings and direct the ALJ to assess Dr. Eckstein' s opinion and
reassess his credibility, as well as the RFC, in light of the new opinion evidence. Id.
I.
ALJ' s Development of the Record and Assessment of Plaintiff's Credibility
Plaintiff argues that because Dr. Glassman recommended a psychological evaluation to
"fully ascertain his employability" due to his "somewhat tangentiar' conversation and thought
process, the ALJ' s failure to order an evaluation was a breach of her duty to develop the record.
Id. at 6 (quoting Tr. 368).
Ill
3 - OPINION AND ORDER
1
The ALJ found that plaintiff has only "moderate" difficulties with concentration,
persistence, and pace and in so finding, noted that plaintiff "frequently presents with tangential
thoughts and pressured speech; however, these symptoms improved when he took medication for
them." Tr. 15. The ALJ also found plaintiffs subjective symptom testimony "not entirely
credible," in part, because he "sometimes endorsed problems with concentration, but denied such
problems at other times." Tr. 21. The ALJ specifically noted that in October 2012, plaintiff met
with his mental health treatment provider Nathaniel Holt, PMHNP, and "denied any problems
with . . . attention, concentration, [or] memory" and also "declined any psychotropic
intervention." Tr. 18. The ALJ also noted that in October 2013, plaintiff admittedly stopped
taking an antidepressant that he "tolerated well and found helpful" due to side effects that Nurse
Holt "did not identify ... as accepted or normal issues with that medication" and then "declined
to take another antidepressant, even though he felt they had been helpful in the past." Tr. 19.
Finally, the ALJ discussed plaintiffs medical records from March and April 2013 and
noted that plaintiff reported difficulties with depression and concentration, but stated that the
symptoms he was experiencing had been present for only two weeks at that time. Id. The ALJ
added that objectively, Nurse Holt found that plaintiffs "full affective range was inconsistent
with his reported depression," his "previously reported areas of abnormality were now within
normal limits, such as . . . speech rate/rhythm," and after performing a mental health status
examination, opined that plaintiff "continued to fail to show significant areas of concern." Id.
An ALJ in social security cases has a duty to fully and fairly develop the record to assure
that the claimant's interests are considered. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.
2001).
However, the claimant bears the burden of proving the existence or extent of an
impairment, such that the ALJ's limited "duty to further develop the record is triggered only
4 - OPINION AND ORDER
when there is ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001). See also
Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (in interpreting the evidence and
developing the record, the ALJ does not need to discuss every piece of evidence). "No authority
suggests that the regulations require the ALJ to continue developing the record until disability is
established; the regulations require only that the ALJ assist the claimant in developing a
complete record." Hampton v. Astrue, 2009 WL 2351703 at *11 (D. Or. July 27, 2009) (citing
Bowen v. Yuckert, 482 U.S., 137, 146 (1987)). Impairments that can be controlled effectively
with medication or treatment are not disabling for purposes of determining eligibility for
benefits. Warre v. Comm 'r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).
When a claimant has medically documented impairments that could reasonably be
expected to produce some degree of the symptoms complained of, and the record contains no
affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the
severity of ... symptoms only by offering specific, clear and convincing reasons for doing so."
Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). The reasons
proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ
did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th
Cir. 1995) (internal citation omitted).
An "unexplained, or inadequately explained, failure to seek treatment may be the basis
for an adverse credibility finding unless one of a number of good reasons for not doing so
applies." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (internal citation omitted). The ALJ
may also employ ordinary techniques of credibility evaluation, such as the claimant's reputation
for lying and prior inconsistent statements concerning the alleged symptoms. Smolen, 80 F .3d at
5 - OPINION AND ORDER
1284. If the "ALJ's credibility finding is supported by substantial evidence in the record, [the
court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
2002) (internal citation omitted).
Here, the ALJ squarely addressed plaintiffs tangential thought process and speech and
found that he has only moderate limitations because his symptoms are controlled effectively with
medication. Warre, 439 F.3d at 1006. The ALJ noted, however, that plaintiff rejected the use of
psychotropic medications twice despite acknowledging they had been useful at ameliorating his
symptoms and that he also stopped taking prescribed medication for reasons his mental health
treatment provider did not acknowledge as normal or accepted issues associated with that
medication. Orn, 495 F.3d at 638. The ALJ also noted inconsistencies in plaintiffs symptom
testimony relating to his depression and concentration issues and noted reports from Nurse Holt
stating that plaintiffs speech rate/rhythm were within normal limits and that his reported
depression did not match his affective range. Smolen, 80 F.3d at 1284. Finally, the ALJ noted
that in April 2013 Nurse Holt performed a mental health examination and found that plaintiff
continued to fail to show significant areas of concern.
In sum, by discussing inconsistencies in plaintiffs symptom statements, the ALJ
provided clear and convincing reasons, supported by substantial evidence, for rejecting
plaintiffs subjective symptom statements. As a result, this court need not discuss all of the
reasons provided by the ALJ for rejecting plaintiffs symptom statements because at least one
legally sufficient reason exists. Carmickle v. Comm 'r Soc. Sec. Admin., 533 F .3d 1155, 1162-63
(9th Cir. 2008). The ALJ's credibility finding is, therefore, affirmed. Moreover, this court finds
that the record was not ambiguous or inadequate and that the ALJ reasonably concluded that
plaintiffs tangential thought process caused only moderate difficulties with concentration,
6 - OPINION AND ORDER
persistence, and pace because his symptoms were controllable with medication, which plaintiff
refused to take on two separate occasions and eventually discontinued the use of for reasons his
mental health treatment provider did not recognize as normal or acceptable. As such, this court
finds that the ALJ did not error by not further developing the record. "fl.Jayes, 276 F.3d at 460.
II.
Adequacy of the RFC
Plaintiff argues the ALJ erred by leaving his "inability to stay on task or focus due to his
tangential thought process" out of the RFC, "despite the fact that the ALJ noted that three
different providers found [him] to be tangential." Pl.'s Br. 12-13.
The ALJ found that plaintiff had the RFC to perform "light work" with the additional
mental limitations that he can "understand, remember, and carry out simple and detailed
instructions, but not complex instructions, that are learnable in 30 days or less. He is able to
engage in occasional contact with coworkers. He can tolerate no more than occasional, brief,
casual interactions with the public." Tr. 16. In so finding, the ALJ gave "great weight" to the
opinions of reviewing doctors Leslie Arnold, M.D., and Sharon Eder, M.D., who also concluded
that plaintiff had only moderate difficulties in social functioning, concentration, persistence, or
pace because, the ALJ noted, their opinions were "consistent with the substantial evidence of
record." Tr. 18, 21-22. Moreover, the ALJ discussed much of the same evidence that Drs.
Arnold and Eder discussed when reaching their conclusions, such as plaintiffs 30/30 score on a
mini-mental status examination (MMSE) performed Dr. Glassman, who consequently concluded
that objectively, plaintiff displayed no cognitive deficits. 'k. 17, 81.
The RFC is the maximum a claimant can do despite his limitations. See 20 C.F.R. §§
404.1545, 416.945. In determining the RFC, the ALJ must consider limitations imposed by all
of a claimant's impairments, even those that are not severe, and evaluate "all of the relevant
7 - OPINION AND ORDER
medical and other evidence," including the claimant's testimony. SSR 96-8p, available at 1996
WL 374184.
The ALJ is responsible for resolving conflicts in the medical testimony and
translating the claimant's impairments into concrete functional limitations in the RFC. StubbsDanielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).
Only limitations supported by
substantial evidence must be incorporated into the RFC and, by extension, the dispositive
hypothetical question posed to the vocational expert (VE). Osenbrock v. Apfel, 240 F.3d 1157,
1163-65 (9th Cir. 2001).
Here, as discussed above, the ALJ reasonably concluded that plaintiffs tangential
thought process caused only moderate difficulties with concentration, persistence, and pace and
she also reasonably found plaintiffs symptom testimony not credible. Moreover, the ALJ's RFC
findings are consistent with the findings of reviewing Doctors Arnold and Eder, whose opinions
the ALJ gave great weight to. Accordingly, plaintiffs argument, which is contingent upon a
finding of harmful error in regard to the aforementioned issues, is without merit. Bayliss, 427
F.3d at 1217-18; Stubbs-Danielson, 539 F.3d at 1175-76. The ALJ's RFC is upheld.
III.
Post-decision Evidence
At the request of plaintiffs attorney, Dr. Eckstein completed an examination of plaintiff
on March 25, 2014, and noted that plaintiff "feels his concentration is fairly good" and
objectively found that when "given a series of cognitive tasks to perform[,] his information fund
was strong in response to factual types of questions." Tr. 521. Dr. Eckstein also found that
plaintiff has "good abstract reasoning ability," he "appears to be functioning adequately from a
cognitive standpoint although he may be expected to have brief lapses in concentration," "his
speech was within normal parameters, [h]is thought process was logical and coherent[,] and he
was oriented in all spheres." Tr. 520-21.
8 - OPINION AND ORDER
Dr. Eckstein also completed a check-the-box mental RFC (MRFC) report at the request
of plaintiffs attorney on April 18, 2014. The MRFC report contained twenty questions relating
to plaintiffs ability to perform certain work related tasks and asked whether any of plaintiffs
specific impairments would preclude him from performing any aspect of a job for 0%, 5%, 10%,
or 15% or more of a 7.5 hour work day. Tr. 515-27. Of the twenty categories of limitations Dr.
Eckstein assessed, she checked seven boxes indicating that plaintiffs impairments would
preclude performance of work tasks 0% of the time, seven boxes indicating impairments that
would preclude performance 5% of the time, six boxes indicating impairments that would
preclude performance 10% of the time, and no boxes indicating that plaintiffs impairments
would preclude performance 15% or more of the time. Tr. 524-26. Dr. Eckstein concluded that
the overall effect of plaintiffs impairments would be an inability to work 60% of a regular work
week. Tr. 527.
On May 28, 2014, plaintiffs attorney wrote Dr. Eckstein to request that she reconsider
her findings on four of the twenty questions on the MRFC relating to plaintiffs ability to: (1)
"maintain attention and concentration for extended periods"; (2) "perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances"; (3)
"complete a normal workday and workweek without any interruptions from psychologically
based symptoms and perform at a consistent pace without an unreasonable number and length of
rest periods"; and (4) "accept instructions and respond appropriately to criticism from
supervisors."
Tr. 525-26.
Plaintiffs attorney explained that by opining that plaintiff was
"limited only 5% or 10% of the time in the articulated categories, the agency may consider that
to be inconsistent with your finding that he would be unable to perform in a work setting 60% of
the time." Tr. 530. Plaintiffs attorney noted that "the 'percentage categories' are identified and
9 - OPINION AND ORDER
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described on page 1 of the [MRFC] report you completed dated April 18, 2014," but he provided
Dr. Eckstein with no further clarification of the limitation percentage categories and with no
additional medical evidence. Tr. 530-31. Finally, plaintiffs attorney requested that Dr. Eckstein
comment on "the malingering issue," in the new MRFC. Tr. 531.
On May 29, 2014, Dr. Eckstein completed a new MRFC whereby she changed her
opinion of plaintiffs impairments in the four categories identified by plaintiffs attorney, but left
the other sixteen categories undisturbed. Tr. 532-35. Dr. Eckstein opined that three of the four
identified categories now resulted in a maximum, 15% or greater impairment, and the fourth
category now resulted in an increased limitation rating from 5% to 10%. Id. Dr. Eckstein further
opined that plaintiffs overall inability to work increased from 60% to 65% and she noted that
she did "not find plaintiff to be malingering and ask[ed] that that diagnosis be ruled out." Id.
"When the Appeals Council considers new evidence in denying a claimant's request for
review, the reviewing court considers both the ALJ's decision and the additional evidence
submitted to the Council." Lingenfelter v. Astrue, 504 F .3d 1028, 1030 n. 2 (9th Cir. 2007). The
court then considers whether the post-decision evidence undermines or further supports the
ALJ's decision. Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
When a doctor "become[s] an advocate and assist[s] in presenting a meaningful petition for
Social Security benefits," this provides a "specific, legitimate reasons for disregarding the
[doctor's] conclusions." Matney v. Sullivan, 981F.2d1016, 1020 (9th Cir. 1992). A physician's
opinion may also be rejected if it conflicts with the physician's other findings. Tommasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
Here, Dr. Eckstein claims that she modified her opinion of plaintiffs limitations because
she received further clarification of the four limitation percentage categories.
10 - OPINION AND ORDER
The record,
however, does not support this assertion. The record reveals that plaintiff's attorney merely
noted the location of the definitions of the limitation categories on the MRFC questionnaire, but
provided no further clarification of the definitions and also provided no further medical evidence
to support Dr. Eckstein's revised findings.
Moreover, Dr. Eckstein changed only the four
limitations that plaintiffs attorney requested and left the other sixteen findings undisturbed.
Accordingly, because Dr. Eckstein's second MRFC was not supported by new evidence and was
made with no further clarification of the limitation categories, and because she modified only the
four limitations that plaintiffs attorney requested so that the agency would not consider her
individual findings inconsistent with her overall conclusion, this court finds that Dr. Eckstein
stepped out of her role as a medical provider and became an advocate for plaintiff in presenting a
meaningful petition for Social Security benefits.
Moreover, this court finds that Dr. Eckstein's evaluation notes, which revealed
objectively normal findings, are inconsistent with the overall level of impairments she endorsed
in the second MRFC.
Specifically, Dr. Eckstein's evaluation notes reveal that plaintiff
performed well on cognitive tests, functioned adequately from a cognitive standpoint but that he
may have brief lapses in concentration, has a logical and coherent thought process, and was
oriented in all spheres. Dr. Eckstein's second MRFC, however, states that plaintiff will be
unable to work 65% of the time due to his mental impairments.
As such, because Dr. Eckstein stepped out of her role as a medical provider and became
an advocate for plaintiff, Matney, 981 F.2d at 1020, and because the findings in her MRFC were
inconsistent with the findings in her evaluation, Tommasetti, 533 F.3d at 1041, this court rejects
Dr. Eckstein's MRFC and finds that it does not undermine the ALJ's decision. Brewes, 682 F.3d
at 1163. Accordingly, the Commissioner's decision is affirmed.
11 - OPINION AND ORDER
CONCLUSION
Because the Commissioner's decision is based on proper legal standards and supported
by substantial evidence, the Commissioner's final decision is AFFIRMED and this case is
DISMISSED.
IT IS SO ORDERED.
DATED this
Je1day of June 2016.
12 - OPINION AND ORDER
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