McCart v. Colvin

Filing 16

ORDER GRANTING 14 Defendant's Motion for Summary Judgment, INTER ALIA; denying 13 Plaintiff's Motion for Summary Judgment. Commissioner's decision is AFFIRMED. Case closed. Signed by Senior Judge Lonny R. Suko. (SK, Case Administrator) Modified on 8/18/2017 - Correct document name and add case closed text (SK, Case Administrator).

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
)
)
)
Plaintiff,
)
)
vs.
)
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant.
)
______________________________ )
TERRELL LEE McCART,

No. 1:16-CV-3146-LRS
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT,
INTER ALIA

BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment
(ECF No. 13) and the Defendant's Motion For Summary Judgment (ECF No. 14).
JURISDICTION
Terrell Lee McCart, Plaintiff, applied for Title II Disability Insurance benefits
(SSDI) and Title XVI Supplemental Security Income benefits (SSI) on June 12, 2009.
The applications were denied initially and on reconsideration. Plaintiff timely
requested a hearing. Two hearings were held before Administrative Law Judge (ALJ)
Caroline Siderius, one on September 9, 2011, and a supplemental hearing on February
29, 2012. On March 28, 2012, ALJ Siderius issued a decision finding the Plaintiff
not disabled, however, the Appeals Council subsequently granted a request for review
and remanded the case for further development of the record.
On June 12, 2014, a hearing was held before ALJ Larry Kennedy. Plaintiff
testified at the hearing, as did Vocational Expert (VE) Kimberly Mullinax. On
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 1

1

October 31, 2014, the ALJ issued a decision finding the Plaintiff not disabled. The

2

Appeals Council denied a request for review of the ALJ’s decision, making that

3

decision the Commissioner’s final decision subject to judicial review.

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Commissioner’s final decision is appealable to district court pursuant to 42 U.S.C.

5

§405(g) and §1383(c)(3).

The

6
7

STATEMENT OF FACTS

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The facts have been presented in the administrative transcript, the ALJ's

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decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At

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the time of the June 12, 2014 administrative hearing, Plaintiff was 55 years old. He

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has past relevant work experience as a laborer, security guard, dump truck driver,

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flagger, construction worker, industrial truck operator, and deliverer. Plaintiff alleges

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disability since April 7, 2009, on which date he was 50 years old. His date last

14

insured for Title II benefits was December 31, 2009.

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16

STANDARD OF REVIEW

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"The [Commissioner's] determination that a claimant is not disabled will be

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upheld if the findings of fact are supported by substantial evidence...." Delgado v.

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Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere

20

scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less

21

than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989);

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Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.

23

1988). "It means such relevant evidence as a reasonable mind might accept as

24

adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91

25

S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may

26

reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457

27

F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965).

28

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 2

1

On review, the court considers the record as a whole, not just the evidence supporting

2

the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.

3

1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982).

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It is the role of the trier of fact, not this court to resolve conflicts in evidence.

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Richardson, 402 U.S. at 400. If evidence supports more than one rational

6

interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749

7

F.2d 577, 579 (9th Cir. 1984).

8

A decision supported by substantial evidence will still be set aside if the proper

9

legal standards were not applied in weighing the evidence and making the decision.

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Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir.

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1987).

12

ISSUES

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Plaintiff argues the ALJ erred in: 1) evaluating the medical opinions of record;
and 2) posing an incomplete hypothetical to the VE.

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DISCUSSION

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SEQUENTIAL EVALUATION PROCESS

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The Social Security Act defines "disability" as the "inability to engage in any

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substantial gainful activity by reason of any medically determinable physical or

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mental impairment which can be expected to result in death or which has lasted or can

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be expected to last for a continuous period of not less than twelve months." 42

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U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined

24

to be under a disability only if his impairments are of such severity that the claimant

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is not only unable to do his previous work but cannot, considering his age, education

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and work experiences, engage in any other substantial gainful work which exists in

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the national economy. Id.

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 3

1

The Commissioner has established a five-step sequential evaluation process for

2

determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920;

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Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines

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if he is engaged in substantial gainful activities. If he is, benefits are denied. 20

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C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If he is not, the decision-maker

6

proceeds to step two, which determines whether the claimant has a medically severe

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impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and

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416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination

9

of impairments, the disability claim is denied. If the impairment is severe, the

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evaluation proceeds to the third step, which compares the claimant's impairment with

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a number of listed impairments acknowledged by the Commissioner to be so severe

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as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and

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416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or

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equals one of the listed impairments, the claimant is conclusively presumed to be

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disabled. If the impairment is not one conclusively presumed to be disabling, the

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evaluation proceeds to the fourth step which determines whether the impairment

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prevents the claimant from performing work he has performed in the past. If the

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claimant is able to perform his previous work, he is not disabled. 20 C.F.R. §§

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404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work,

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the fifth and final step in the process determines whether he is able to perform other

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work in the national economy in view of his age, education and work experience. 20

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C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v).

23

The initial burden of proof rests upon the claimant to establish a prima facie

24

case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th

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Cir. 1971). The initial burden is met once a claimant establishes that a physical or

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mental impairment prevents him from engaging in his previous occupation. The

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burden then shifts to the Commissioner to show (1) that the claimant can perform

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 4

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other substantial gainful activity and (2) that a "significant number of jobs exist in the

2

national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496,

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1498 (9th Cir. 1984).

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ALJ'S FINDINGS

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The ALJ found the following:

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1) Plaintiff has “severe” medical impairments, those being: lumbar

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degenerative disc disease; cervical strain; degenerative joint disease of the bilateral

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knees; chronic obstructive pulmonary disease (COPD); affective disorder

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(depression); anxiety disorder; and drug and alcohol use disorder;
2) Plaintiff’s impairments do not meet or equal any of the impairments listed

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in 20 C.F.R. § 404 Subpart P, App. 1;

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3) Plaintiff has the physical residual functional capacity (RFC) to perform

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medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) with the caveat

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that: he can frequently handle and finger with the right upper extremity; he can

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occasionally balance, stoop, kneel and crouch; he should avoid crawling, climbing

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ladders, ropes, scaffolds and stairs; he should avoid concentrated exposure to

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vibrations, fumes, odors, gases, poor ventilation and hazards;

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4) With regard to mental RFC, the Plaintiff can understand, remember, and

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carry out simple and some detailed instructions; he can make judgments on simple

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and some detailed work-related decisions; he could perform sustained work activities

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in an ordinary work setting on a regular and continuing basis within customary

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tolerances of employers’ rules regarding sick leave and absence; he requires a work

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environment with minimal supervisor contact; he can work in proximity to coworkers,

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but not in a cooperative or team effort; he requires a work environment where there

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is no more than superficial interaction with a few coworkers; he can have simple and

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///

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 5

1

superficial exchanges with the general public, but he cannot engage in complex or

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demanding social exchanges;

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5) Plaintiff’s RFC allows him to perform his past relevant work as a dump
truck driver, tow truck driver, and outside deliverer;

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6) Alternatively, it allows him to perform other jobs existing in significant

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numbers in the national economy as identified by the VE, including laundry worker

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and merchandise deliverer.

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Accordingly, the ALJ concluded the Plaintiff is not disabled.

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OPINIONS OF MEDICAL SOURCES

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It is settled law in the Ninth Circuit that in a disability proceeding, the opinion

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of a licensed treating or examining physician or psychologist is given special weight

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because of his/her familiarity with the claimant and his/her condition. If the treating

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or examining physician's or psychologist’s opinion is not contradicted, it can be

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rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725

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(9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the

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ALJ may reject the opinion if specific, legitimate reasons that are supported by

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substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions,

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an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory,

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and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211,

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1216 (9th Cir. 2005).

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Nurse practitioners, physicians’ assistants, and therapists (physical and mental

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health) are not “acceptable medical sources” for the purpose of establishing if a

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claimant has a medically determinable impairment. 20 C.F.R. §§ 404.1513(a) and

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416.913(a). Their opinions are, however, relevant to show the severity of an

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impairment and how it affects a claimant’s ability to work. 20 C.F.R. §§ 404.1513(d)

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and 416.913(d). An ALJ can reject opinions from these “other source[s]” by

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 6

1

providing “germane” reasons for doing so. Turner v. Comm’r of Soc. Sec., 613 F.3d

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1217, 1224 (9th Cir. 2010).

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A. Charles Forster, M.D.

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Plaintiff resumed seeing Dr. Forster at the Yakima Farm Workers Clinic in

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September 2008, after a six year absence. Plaintiff complained of chronic back pain.

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He rated his pain as 6 on a scale of 1 to 10. Palpation of the mid-thoracic spine,

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where Plaintiff said he had the most discomfort, revealed some muscular tenderness,

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but no gross bony tenderness. Plaintiff was able to perform straight leg raising to

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about 80 degrees bilaterally with minimal discomfort. Deep tendon reflexes were

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trace and symmetric at the knee. Dr. Forster specifically informed Plaintiff that

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“narcotic pain medication [was] not an option for this chronic pain syndrome.” (AR

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at p. 214).

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Plaintiff returned to see Dr. Forster in November 2008, requesting the doctor

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complete a physical evaluation form from the Washington Department of Social

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Health Services (DSHS). Plaintiff told the doctor he could not “do any significant

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physical labor due to some chronic back pain and chronic spinal abnormalities,” and

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that any lifting, bending, stooping or prolonged standing caused him to develop

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worsening pain. On exam, the Plaintiff was in no distress. He was capable of straight

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leg raising to 80-90 degrees bilaterally “without significant low back pain.” As to

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Plaintiff’s gait, Dr. Forster reported that Plaintiff walked with a slight limp, “but gets

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up and off the table easily and walks easily in the hallway otherwise.” (AR at p. 216).

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On the DSHS evaluation form, Dr. Forster rated Plaintiff’s chronic low back pain as

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a “moderate” impairment which caused “[s]ignificant interference with his ability to

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perform one or more basic work-related activities.” He opined that Plaintiff was

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limited to “sedentary” work, defined as the ability to lift 10 pounds maximum and

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///

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 7

1

frequently lift or carry such articles as files and small tools, and perhaps requiring

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sitting, walking and standing for brief periods. (AR at p. 220).

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Plaintiff saw Dr. Forster again in March 2009 for “ongoing chronic low back

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pain secondary to lumbosacral degenerative disease that has been documented before

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with a previous MRI.”

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prescribed 30 tablets of Vicodin for the Plaintiff to take when his back pain was bad,

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but emphasized this was the only prescription he was going to give for Vicodin and

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that Plaintiff’s medication would in the future be managed by a specialist at the pain

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clinic. (AR at p. 224).

On exam, the Plaintiff was in no distress. Dr. Forster

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In April 2009, Plaintiff saw Dr. Forster, one of the purposes of which was to

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have him fill out another disability form. The doctor informed Plaintiff that “ideally

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the pain clinic doctors would be filling that out since they will be doing the imaging

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studies and reviewing those . . . .” (AR at p. 228). Nevertheless, one month later,

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Plaintiff returned to ask Dr. Forster to complete the DSHS disability evaluation form,

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and Dr. Forster did so, although he emphasized that any future forms would have to

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be completed by a pain specialist at the pain clinic “as his disability that apparently

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prevents him from work is his chronic back pain.” Dr. Forster noted he had reviewed

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the assessment of Dr. Kim at the pain clinic which pointed out that Plaintiff had tested

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positive for methamphetamine and marijuana, and if this was confirmed with

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additional testing, all narcotic pain medication would be discontinued. Dr. Forster

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indicated that Plaintiff was attempting to get pain medication from him, even though

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the note from the pain clinic clearly indicated the clinic was responsible for

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prescribing any medication. (AR at p. 232). On the May 2009 form, Dr. Forster once

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again labeled Plaintiff’s chronic back pain as a “moderate” impairment and opined

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that he was limited to “sedentary” work. (AR at p. 236).

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The ALJ accorded little weight to Dr. Forster’s November 2008 and May 2009

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opinions. One of the reasons was that the doctor’s unremarkable examination

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 8

1

findings did not support a limitation to “sedentary” work. (AR at pp. 21-22). This

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is a specific and legitimate reason for rejecting Dr. Forster’s opinions and it is

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supported by substantial evidence. There is no doubt, as Plaintiff asserts, that MRIs

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show the Plaintiff has multi-level degenerative disc disease, multi-level central disc

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protrusion in the lumbar spine, and degenerate facet arthrosis at several levels. (AR

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at p. 216 and p. 243). Nevertheless, Dr. Forster’s examination findings were

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“unremarkable” in that they did not reveal any significant physical limitations arising

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from that condition. Moreover, Dr. Forster suggested it was really the specialists at

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the pain clinic who were in the best position to evaluate the severity of plaintiff’s pain

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and resulting limitations.

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Furthermore, to the extent Dr. Forster relied on Plaintiff’s statements in

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formulating his opinions, the ALJ’s conclusion that those statements were unreliable

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because of Plaintiff’s “drug seeking behavior, misuse of pain medication, pain

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contract violations and secondary gain motivation” (AR at p. 22), is supported by

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substantial evidence and was another specific and legitimate reason for according

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little weight to Dr. Forster’s opinions. As is apparent, Dr. Forster commented about

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Plaintiff’s drug seeking behavior and misuse of pain medication and there is

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significant additional evidence of this, as discussed infra.

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B. Jeremy Ginoza, D.O.

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In July of 2010, Plaintiff saw Dr. Ginoza at Central Washington Family

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Medicine for arm pain. Plaintiff reported that in April 2010, he was moving a

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refrigerator on a dolly when it fell and landed on his right arm. Plaintiff refused to

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enter a pain contract in order to continue taking tramadol, stating he would prefer

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nonaddictive pain medications. He indicated he was using marijuana occasionally.

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(AR at p. 331).

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///

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 9

1

In August 2010, Plaintiff reported he was experiencing back pain after

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“throwing out his back three weeks ago lifting a heavy gate.” Dr. Ginoza indicated

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that Plaintiff had “a pressure type low back pain, worse on the left” that was “actually

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gradually getting better.” (AR at p. 329).

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In September 2010, Plaintiff saw Dr. Ginoza for follow up on his chronic back

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pain. Plaintiff indicated he wanted to start on a pain contract in order to allow him

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to take narcotic pain medication stronger than tramadol. Plaintiff admitted to past

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marijuana and methamphetamine use, but stated he was committed to staying clean

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and taking only prescribed medication. (AR at p. 327). The pain contract was

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established at a later appointment in September 2010, at which time Plaintiff stated

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he stopped using marijuana 6 to 8 weeks ago. (AR at p. 326).

12

In October 2010, Plaintiff saw Dr. Ginoza for follow up on chronic pain. On

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his own initiative, Plaintiff was getting into outpatient treatment for

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methamphetamine use, his last use of the same having occurred the day before,

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according to him. Plaintiff indicated he was still using marijuana occasionally.

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In November 2010, Plaintiff reported having good pain relief with lidocaine

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patches, his mood was pretty good and he recently put up Christmas decorations for

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the first time in four years. (AR at p. 321).

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Dr. Ginoza saw the Plaintiff on January 27, 2011. Plaintiff was complaining

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of headaches since falling recently and hitting his head on a concrete sidewalk. He

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reported that he was carrying a loveseat into the house and tripped over a yard

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decoration. (AR at p. 319).

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Plaintiff had been scheduled for followup on February 4, 2011 regarding his

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head injury, but CT results of his head were negative, he was having no more

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headaches, and his concentration and memory were normal. Instead, his concern was

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now directed at the pain he was experiencing in both knees. Examination of the knee

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 10

1

and x-rays of the knee led Dr. Ginoza to diagnose bilateral patellofemoral syndrome1

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with possible patellar subluxation.2 The doctor prescribed knee braces and physical

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therapy. (AR at pp. 317-18).

4

Five days later, on February 9, 2011, Plaintiff saw Dr. Ginoza “for pain in his

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upper abdomen worse since moving boxes and playing with his 40 pound dog last

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Friday, five days ago.” (AR at p. 316). As it turned out, Plaintiff was suffering from

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cholecystitis (gallbladder inflammation) and would have his gallbladder removed on

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March 1, 2011. (AR at pp. 313-15).

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On May 5, 2011, Plaintiff saw Dr. Ginoza to follow up on his cholecystectomy

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(gallbladder removal). Plaintiff reported that his “right abdomen has been sore and

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he thinks he pulled a muscle by overdoing it when he made a canopy and his dogs

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jumped on his stomach.” (AR at p. 310).

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On May 19, 2011, Plaintiff reported that he was free of abdominal pain and

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now wanted to do something for his chronic back pain which did not bother him as

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much when he had the abdominal pain, but was again an issue because the lidocaine

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patches were no longer relieving that pain. (AR at p. 308).

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On May 23, 2011, Plaintiff was seen at Central Washington Family Medicine

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by Jillian Vetsch-Calhoun, PA-C. Plaintiff presented with low back pain, “stating

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1

Pain in the front of the knee sometimes caused by wearing down,

roughening, or softening of the cartilage under the kneecap.
http://www.webmd.com/pain-management/knee-pain/tc/patellofemoral-painsyndrome-topic-overview
2

Temporary, partial dislocation of the kneecap from its normal position in

the groove in the end of the thigh bone
(femur).http://www.summitmedicalgroup.com/library/adult_health/sma_subluxing
_kneecap/
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 11

1

that he went to pick something up over the weekend and pulled something in his back

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and [his] pain is worse.” Plaintiff indicated it was the same type of pain he usually

3

had and requested medication for it. Plaintiff “jumped off the table and stormed out

4

of the room” when the PA-C told him she would not be giving him pain medication.

5

The PA-C indicated that Plaintiff’s gait was “normal and fast.” (AR at pp. 307-

6

307A). According to the PA-C, she advised the Plaintiff he had violated his pain

7

contract by using methamphetamine and needed to discuss pain medication refills

8

with his primary care physician (presumably Dr. Ginoza). (AR at p. 307A).

9

Plaintiff saw Dr. Ginoza again in July 2011. Plaintiff reported constant pain

10

in his mid to left low back and in his left hip. The pain was “worse with activity” and

11

“has been giving him more problems when doing yardwork (sic) lately.” He showed

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Dr. Ginoza some paperwork indicating he had “Category 2" lumbar disease per the

13

Washington Department of Labor and Industries (L & I). (AR at p. 499). Dr. Ginoza

14

recorded the following results from his musculoskeletal examination of Plaintiff:
[S]pinal range of motion - - flexes to almost 90 degrees with
slow return to neutral, (sic) extension, sidebending and rotation
are within normal limits (sic) patellar and ankle reflexes are
1/4 bilaterally (sic) Strength intact in the lower extremity by
toe and heel raise and squat testing

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18

(AR at p. 499).

19

On August 5, 2011, Dr. Ginoza indicated that Plaintiff’s spinal range of motion

20

was within normal limits. (AR at p. 498). On August 22, 2011, the doctor completed

21

a “Medical Questionnaire” prepared by Plaintiff’s attorney at the time in which the

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doctor opined that Plaintiff was limited to “sedentary” work. (AR at p. 496).

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On September 27, 2011, Plaintiff returned to Dr. Ginoza “with a few things on

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his mind[,] but no particular complaint today.” Plaintiff reported that two weeks ago

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he had twisted his back at a family reunion, but was doing better and the pain was

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about gone. He told the doctor he had quit using methamphetamine two weeks ago

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///

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 12

1

and had not used marijuana for two months, but that he would like to look into pain

2

pills for his chronic back pain. (AR at p. 497).

3

Like Dr. Forster’s examination findings, Dr. Ginoza’s examination findings

4

were “unremarkable” in that they did not reveal any significant physical limitations

5

arising from any of Plaintiff’s physical conditions. This was a specific and legitimate

6

reason supported by substantial evidence for according little weight to Dr. Ginoza’s

7

opinion that Plaintiff is limited to sedentary work. Furthermore, as the ALJ pointed

8

out, a L & I Category 2 impairment under Washington Administrative Code (WAC)

9

296-20-280 is a “mild low back impairment, with mild intermittent objective

10

findings.” (AR at p. 22). This too was a specific and legitimate reason for

11

discounting Dr. Ginoza’s opinion.

12

More significantly, Plaintiff reported a variety of activities to Dr. Ginoza-

13

lifting a refrigerator, lifting a heavy gate, carrying a loveseat, moving boxes and

14

playing with his 40-pound dog, and making a canopy- that are inconsistent with an

15

RFC limited to sedentary work. Finally, to the extent Dr. Ginoza relied on Plaintiff’s

16

subjective statements, his RFC opinion is appropriately discounted because of

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Plaintiff’s drug seeking behavior, misuse of narcotic pain medication and inconsistent

18

statements about illicit drug use. Dr. Ginoza was familiar with all of these issues

19

from his interactions with Plaintiff, as well as Plaintiff’s interactions with other staff

20

members at Central Washington Family Medicine.

21

Considered separately, each of these constituted a specific and legitimate

22

reason for discounting Dr. Ginoza’s opinion. Considered in combination, however,

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they overwhelmingly constitute a specific and legitimate reason for discounting Dr.

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Ginoza’s opinion.

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26

C. Matthew Johnson, M.D.

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Plaintiff was first seen at Summitview Family Medicine in November 2011.

28

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 13

1

Plaintiff sought to transfer his care from Dr. Ginoza to Summitview Family Medicine.

2

Plaintiff advised that he “never uses street drugs.” Musculoskeletal examination by

3

Lori Smith, M.D., revealed “[n]ormal muscle strength and tone bilaterally

4

throughout.” (AR at p. 504). The same was reported by Dr. Smith on December 1,

5

2011. (AR at p. 502).

6

The record indicates the earliest Plaintiff began seeing Dr. Johnson at

7

Summitview Family Medicine was in December 2012. (AR at pp. 588-91). In the

8

“Medical Report” prepared by Plaintiff’s attorney which Dr. Johnson completed on

9

May 23, 2014, he listed the diagnoses for Plaintiff as chronic low back pain, bilateral

10

knee pain, right wrist pain, neck pain, depression, anxiety and COPD. He offered the

11

CT scan of Plaintiff’s lumbar spine from December 2011 as support for the diagnosis

12

of chronic low back pain. (AR at p. 618). Dr. Johnson indicated that Plaintiff needed

13

to lie down or elevate his legs two to three times during a week, that his medications

14

caused side effects of fatigue and confusion, that regular and continuous work would

15

worsen Plaintiff’s pain, and that Plaintiff would miss four or more days of work per

16

month due to his medical impairments. (AR at pp. 618-19). He opined that Plaintiff

17

was limited to sedentary work. (AR at p. 619).

18

The ALJ offered specific and legitimate reasons supported by substantial

19

evidence to discount Dr. Johnson’s opinion. As the ALJ noted, Dr. Johnson’s

20

restrictions are not supported by his own treatment records from December 2012 to

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March 2014 (AR at pp. 569-90) which indeed “reveal superficial examinations and

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no specific examinations of the [Plaintiff’s] spine or extremities.” (AR at p. 23). As

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the ALJ also noted, when Dr. Johnson’s colleague, Dr. Smith, examined the Plaintiff,

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the Plaintiff “exhibited a normal gait[,] as well as an intact sensation and normal

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muscle tone and strength throughout all extremities.” (AR at p. 23).

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In his decision, the ALJ also detailed how objective examination findings did

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not support the degree of bilateral knee pain, right arm pain, and neck pain asserted

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 14

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by him, nor the severity of the COPD asserted by him. (AR at p. 23). Plaintiff does

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not challenge the ALJ’s reasoning with the same degree of detail, resorting instead

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to essentially a sweeping general contention that the objective examination findings

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were enough to establish a limitation to sedentary exertion (e.g., “[o]ther exam

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findings showed positive straight leg raise, borderline moderate/severe COPD,

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bilateral knee crepitus and patellar crepitus” at ECF No. 13, p. 15).

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The activities performed by Plaintiff, as reported to Dr. Ginoza, serve to

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legitimately call into question Dr. Johnson’s opinion that Plaintiff is limited to

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sedentary exertion, just as they called into question the same opinion by Dr. Ginoza.

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And finally, and perhaps most significantly, Plaintiff does not challenge the

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ALJ’s finding that Plaintiff lacked credibility regarding his complaints of pain due

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to his drug seeking behavior, misuse of narcotic pain medication and inconsistent

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statements about illicit drug use. Plaintiff told Dr. Smith in November 2011 that he

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“never” used street drugs, although this was clearly untrue as revealed by the records

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of Plaintiff’s previous medical provider, Dr. Ginoza. Moreover, the Summitview

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Family Medicine records do not show that Plaintiff ever advised that he violated his

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pain medicine contract with Central Washington Family Medicine. A rational

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inference is that Plaintiff left Central Washington Family Medicine because of his

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inability to obtain narcotic pain medication there and transferred to a new provider

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in order to obtain such medication- and he eventually did so (hydrocodone). (AR at

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p. 570). To the extent Dr. Johnson relied on Plaintiff’s statements of pain, and it

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appears he did so extensively, Plaintiff’s lack of credibility is a specific and legitimate

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reason for according little weight to Dr. Johnson’s opinion that Plaintiff is limited to

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sedentary exertion.

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D. Michael Gurvey, M.D.

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Dr. Gurvey testified as a medical expert at the hearing conducted by ALJ

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 15

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Siderius on February 29, 2012. Dr. Gurvey is a board certified orthopedic surgeon.

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(AR at p. 681). He acknowledged that Disability Determination Services (DDS)

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opined that Plaintiff was limited to light work3, but Dr. Gurvey’s opinion, based on

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his review of the record at that time, was that Plaintiff would be limited to medium

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work.4 (AR at pp. 682-83). Medium work is what ALJ Kennedy determined

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Plaintiff’s physical RFC to be. Plaintiff is incorrect in asserting that Dr. Gurvey

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opined that Plaintiff was limited to light work.

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E. Christopher Clark, LMHC

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10

In November 2008, Mr. Clark, a Licensed Mental Health Counselor with

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Central Washington Comprehensive Mental Health (CWCMH), completed a DSHS

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Psychological/Psychiatric Evaluation for the Plaintiff. Mr. Clark noted the Plaintiff

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did not report having received any mental health services and denied any chemical

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dependency problems. (AR at p. 202). Indeed, there are no records from CWCMH

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until August 2009, after both of the DSHS evaluations completed by Mr. Clark in

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November 2008 and May 2009. Notwithstanding the lack of a mental health record,

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Mr. Clark diagnosed Plaintiff with depression and anxiety causing a host of moderate

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and marked cognitive and social limitations. (AR at pp. 203-04). Mr. Clark’s May

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ability to lift and carry up to 20 pounds occasionally and up to 10 pounds
frequently. It requires a good deal of walking or standing, or sitting most of the
time with some pushing and pulling of arm or leg controls.

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Light work is defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) as the

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Medium work is defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) as

the ability to lift and carry up to 50 pounds occasionally and up to 25 pounds
frequently. Persons who can do medium work can also do light and sedentary
work.
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 16

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2009 DSHS evaluation also indicated no history of mental health services for the

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Plaintiff. (AR at p. 208). This time, he diagnosed the Plaintiff with pain disorder in

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addition to depression and anxiety. (AR at p. 209). He once again indicated that

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Plaintiff had a number of moderate and marked cognitive and social limitations

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including that his concentration, persistence and pace were poor and “probably worse

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since last assessment.” (AR at p. 210).

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As noted above, mental health therapists, such as Mr. Clark, are not

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“acceptable medical sources” for the purpose of establishing if a claimant has a

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medically determinable impairment. 20 C.F.R. §§ 404.1513(a) and 416.913(a). Jay

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M. Toews, Ed.D., was the first psychologist to evaluate the Plaintiff. His November

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2009 evaluation of the Plaintiff included a clinical interview, a mental status

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assessment, a records review, and a Structured Interview of Malingered Symptoms

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(SIMS). Dr. Toews reported that Plaintiff “evaded discussion” about Doctor Kim’s

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note indicating a positive urinalysis and a history of methamphetamine and marijuana

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use for pain. (AR at p. 261). According to Dr. Toews:

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[Plaintiff’s] SIMS total score exceeds . . . 14, recommended
as the cutoff score for suspecting exaggeration of psychiatric
symptoms and malingering. Scores on four of five subscales
exceeded the cutoff levels, suggesting he was deliberately
exaggerating medical and psychiatric complaints, specifically
neurologic complaints; affective disorders; psychotic symptoms;
and memory problems. Results indicate a high probability the
gentleman is malingering.
In summary, [Plaintiff] presents with complaints of low back
pain and left knee pain and complaints of anxiety attacks. He
evidences no signs or symptoms of anxiety this evaluation.
He has a history of methamphetamine and marijuana use,
which he denied and evaded at this evaluation.
He is cognitively intact and appears to function in the normal
range of intelligence. Attention, concentration and memory
are not impaired. . . .
He is able to comprehend[] mildly complex instructions. He
would be able to interact with coworkers and supervisors.
He is capable of performing a wide range of routine and
repetitive types of work activity. . . .

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 17

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(AR at p. 262).

2

Abdul Qadir, M.D., a psychiatrist with CWCMH, saw Plaintiff on September

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1, 2009, but there is no indication this was formal psychiatric evaluation. Instead, it

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appears to have been a medication management/treatment plan. Dr. Qadir informed

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Plaintiff it would be difficult to treat his depression and anxiety because of his pain

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medication and substance use. Plaintiff informed Dr. Qadir he was unwilling to quit

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using pain medication and marijuana. (AR at p. 350). Dr. Qadir saw Plaintiff a

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number of times thereafter through June 2012. (AR at pp. 366-68, 369-71, 377-79,

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386-88, 389-91, 396-98, 403-04, 508-09, 511-13, 514-16, 517-19 and 613-16). Dr.

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Qadir diagnosed depression and anxiety which the ALJ found to be “severe”

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medically determinable impairments, however the doctor never diagnosed pain

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disorder. The mental status exams performed by Dr. Qadir were consistently

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unremarkable and Dr. Qadir never offered an opinion about the extent of Plaintiff’s

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cognitive and social limitations and how they might impact his ability to work.

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Mental status exams performed at CWCMH by Kathleen Mack, ARNP, and Shane

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Anderson, Pharm. D., after June 2012, were also unremarkable. (AR at pp. 595, 599,

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603, 607 and 611).

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The ALJ provided “germane” reasons for according no weight to the November

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2008 and May 2009 opinions of Mr. Clark in light of the subsequent assessments by

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Dr. Toews and Dr. Qadir. (AR at pp. 24-25). The assessments by Dr. Qadir at

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CWCMH consistently refer to Plaintiff’s continuing use of illicit substances-

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methamphetamine and marijuana- and how that worsened Plaintiff’s depression and

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anxiety symptoms. In November 2013, Plaintiff acknowledged to Mr. Anderson at

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CWCMH that he was occasionally using marijuana because it was now legal (AR at

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p. 594). Asked at the June 12, 2014 hearing about the last time he used marijuana,

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Plaintiff responded that it was about 2010 or 2011, but the ALJ pointed out to

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Plaintiff that the record showed him admitting in November 2013 to continuing use

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 18

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of marijuana. (AR at p. 642-43). Plaintiff’s drug seeking behavior, misuse of

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narcotic pain medication and inconsistent statements about illicit drug use were a

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“germane” reason for the ALJ to accord no weight to the November 2008 and May

4

2009 opinions of Mr. Clark.

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CONCLUSION

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7

Because the ALJ offered specific and legitimate reasons supported by

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substantial evidence to discount the opinions of Drs. Forster, Ginoza and Johnson5,

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and because he offered germane reasons supported by substantial evidence to reject

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the opinion of Mr. Clark, he posed a proper and complete hypothetical to the VE.

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That hypothetical included physical and mental limitations which were supported by

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substantial evidence in the record and pursuant to which the VE opined that Plaintiff

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could perform his past relevant work and alternatively, other jobs existing in

14

significant numbers in the national economy. ALJ Kennedy rationally interpreted the

15

evidence and “substantial evidence”- more than a scintilla, less than a preponderance-

16

supports his decision that Plaintiff is not disabled.
Defendant’s Motion For Summary Judgment (ECF No. 14) is GRANTED and

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18

Plaintiff’s Motion For Summary Judgment (ECF No. 13) is DENIED. The

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Commissioner's decision is AFFIRMED.

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///

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///

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///

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5

“Specific and legitimate” is the standard since the opinions of these

doctors were contradicted by Dr. Gurvey and by the opinion of DDS physician,
Norman Staley, M.D. (AR at p. 291), affirming the November 2009 physical RFC
assessment by Cheri Glore. (AR at pp. 282-90).
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 19

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IT IS SO ORDERED.

The District Executive shall enter judgment

accordingly and forward copies of the judgment and this order to counsel of record.
DATED this

18th

day of August, 2017.
s/Lonny R. Suko
LONNY R. SUKO
Senior United States District Judge

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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT- 20