Thielen v. Colvin

Filing 21

Decision and Order. Plaintiff's motion for summary judgment is Granted; Commissioner's motion for summary judgment is Denied. Signed by Magistrate Judge Victor E. Bianchini. (MO, Courtroom Deputy) Modified on 9/3/2014 to correct filing date (MO, Courtroom Deputy).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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Case No. 2:13-CV-00121-VEB
JAY THIELEN,

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Plaintiff,

DECISION AND ORDER

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vs.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.
I. INTRODUCTION

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In September of 2010, Plaintiff Jay Thielen applied for Supplemental Security

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Income (“SSI”) benefits and Disability Insurance Benefits (“DIB”) under the Social

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Security Act. The Commissioner of Social Security denied the applications.

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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Plaintiff, represented by Cory J. Brandt, Esq., commenced this action seeking

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judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§

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405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States

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Magistrate Judge. (Docket No. 7).

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On July 24, 2014, the Honorable Rosanna Malouf Peterson, Chief United

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States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. §

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636(b)(1)(A) and (B). (Docket No. 20).
II. BACKGROUND

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The procedural history may be summarized as follows:

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On September 1, 2010, Plaintiff applied for SSI benefits and DIB, alleging

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disability beginning November 11, 2009. (T at 176-83, 184-91). 1 The applications

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were denied initially and Plaintiff requested a hearing before an Administrative Law

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Judge (“ALJ”). On February 2, 2012, a hearing was held before ALJ Caroline

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Siderius. (T at 41). Plaintiff appeared with an attorney and testified. (T at 57-70).

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The ALJ also received testimony from Dr. Thomas McKnight (T at 45-57) and

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Daniel McKinney, a vocational expert. (T at 70-76).

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On March 1, 2012, the ALJ issued a written decision denying the applications

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for benefits and finding that Plaintiff was not entitled to benefits under the Social

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Citations to (“T”) refer to the administrative record at Docket No. 11.
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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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Security Act. (T at 8-31).

The ALJ’s decision became the Commissioner’s final

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decision on February 16, 2013, when the Social Security Appeals Council denied

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Plaintiff’s request for review. (T at 1-6).

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On March 26, 2013, Plaintiff, acting by and through his counsel, timely

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commenced this action by filing a Complaint in the United States District Court for

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the Eastern District of Washington. (Docket No. 5). The Commissioner interposed

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an Answer on June 13, 2013. (Docket No. 10).

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Plaintiff filed a motion for summary judgment on September 30, 2013.

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(Docket No. 15). The Commissioner moved for summary judgment on November

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12, 2013. (Docket No. 16). Plaintiff filed a reply memorandum of law on November

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25, 2013. (Docket No. 17). As noted above, the parties consented to the jurisdiction

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of a Magistrate Judge. (Docket No. 7).

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For the reasons set forth below, the Commissioner’s motion is denied,
Plaintiff’s motion is granted, and this case is remanded for further proceedings.

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III. DISCUSSION
A.

Sequential Evaluation Process

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The Social Security Act (“the Act”) defines disability as the “inability to

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engage in any substantial gainful activity by reason of any medically determinable

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

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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lasted or can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a

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plaintiff shall be determined to be under a disability only if any impairments are of

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such severity that a plaintiff is not only unable to do previous work but cannot,

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considering plaintiff’s age, education and work experiences, engage in any other

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substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

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1382c(a)(3)(B). Thus, the definition of disability consists of both medical and

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vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step

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one determines if the person is engaged in substantial gainful activities. If so,

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benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the

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decision maker proceeds to step two, which determines whether plaintiff has a

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medially severe impairment or combination of impairments. 20 C.F.R. §§

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404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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If plaintiff does not have a severe impairment or combination of impairments,

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the disability claim is denied. If the impairment is severe, the evaluation proceeds to

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the third step, which compares plaintiff’s impairment with a number of listed

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impairments acknowledged by the Commissioner to be so severe as to preclude

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substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20

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C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed

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impairments, plaintiff is conclusively presumed to be disabled. If the impairment is

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not one conclusively presumed to be disabling, the evaluation proceeds to the fourth

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step, which determines whether the impairment prevents plaintiff from performing

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work which was performed in the past. If a plaintiff is able to perform previous work

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that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv),

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416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is

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considered. If plaintiff cannot perform past relevant work, the fifth and final step in

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the process determines whether plaintiff is able to perform other work in the national

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economy in view of plaintiff’s residual functional capacity, age, education and past

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work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v.

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Yuckert, 482 U.S. 137 (1987).

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The initial burden of proof rests upon plaintiff to establish a prima facie case

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

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1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is

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met once plaintiff establishes that a mental or physical impairment prevents the

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performance of previous work. The burden then shifts, at step five, to the

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Commissioner to show that (1) plaintiff can perform other substantial gainful

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activity and (2) a “significant number of jobs exist in the national economy” that

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plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

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B.

Standard of Review

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Congress has provided a limited scope of judicial review of a Commissioner’s

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decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision,

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made through an ALJ, when the determination is not based on legal error and is

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supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.

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1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s]

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determination that a plaintiff is not disabled will be upheld if the findings of fact are

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supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.

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1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla,

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

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preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989).

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Substantial evidence “means such evidence as a reasonable mind might accept as

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

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(1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner]

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may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze,

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348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a

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whole, not just the evidence supporting the decision of the Commissioner. Weetman

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v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525,

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526 (9th Cir. 1980)).

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It is the role of the Commissioner, not this Court, to resolve conflicts in

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

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interpretation, the Court may not substitute its judgment for that of the

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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be

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set aside if the proper legal standards were not applied in weighing the evidence and

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making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d

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432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the

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administrative findings, or if there is conflicting evidence that will support a finding

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of either disability or nondisability, the finding of the Commissioner is conclusive.

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Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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C.

Commissioner’s Decision

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The ALJ found that Plaintiff had not engaged in substantial gainful activity

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since November 11, 2009, the alleged onset date, and met the insurance status

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requirements of the Social Security Act through December 31, 2014. (T at 13-14).

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The ALJ determined that Plaintiff’s degenerative joint disease, degenerative disc

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disease, obesity, mild asthma, drug and alcohol addiction/abuse, depression, anxiety,

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and personality disorder traits were “severe” impairments under the Act. (Tr. 14-20).

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The ALJ concluded that, taking into account Plaintiff’s substance abuse, his

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impairments met several of the impairments set forth in the Listings – specifically

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§§12.04, 12.06, 12.06, and 12.09C. (T at 20-21).

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Plaintiff’s limitations would have more than a minimal impact on his ability to

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perform basic work activities even if he stopped the substance abuse. (T at 21-22).

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The ALJ found that, if Plaintiff stopped the substance abuse, he would have the

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residual functional capacity (“RFC”) to perform light work as defined in 20 CFR §

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416.967 (b), except that he should avoid climbing ladders, ropes or scaffolds; avoid

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repetitive overhead reaching with his dominant right arm; avoid concentrated

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exposure to extreme cold, loud noises, vibration, odors, gases, dust, and fumes;

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avoid concentration exposure to heavy machinery and unprotected heights; and be

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limited to occasional contact with the public and co-workers. (T at 22-25).

The ALJ determined that

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The ALJ found that Plaintiff could not perform any past relevant work, even if

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he stopped the substance abuse. (T at 25). However, considering Plaintiff’s age (39

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years old on the alleged onset date), education (high school), work experience, and

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RFC, the ALJ determined that there were jobs that exist in significant numbers in the

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national economy that Plaintiff can perform if he stopped the substance abuse. (T at

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25-26).

As such, the ALJ concluded that Plaintiff’s substance abuse was a

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contributing factor material to the disability determination, and Plaintiff was

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therefore not entitled to benefits for the period between November 11, 2009 (the

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alleged onset date), through March 1, 2012 (the date of the ALJ’s decision). (Tr. 26-

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27). As noted above, the ALJ’s decision became the Commissioner’s final decision

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on February 16, 2013, when the Appeals Council denied Plaintiff’s request for

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review. (Tr. 1-6).

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D.

Plaintiff’s Arguments

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Plaintiff contends that the Commissioner’s decision should be reversed. He

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offers three (3) main arguments in support of this position. First, Plaintiff contends

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that the ALJ erred in rejecting the opinions of Dr. Rosekrans, an examining

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physician. Second, Plaintiff challenges the ALJ’s substance abuse analysis. Third,

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Plaintiff asserts that ALJ’s step five analysis was flawed. This Court will address

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each argument in turn.

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1.

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In disability proceedings, a treating physician’s opinion carries more weight

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than an examining physician’s opinion, and an examining physician’s opinion is

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given more weight than that of a non-examining physician. Benecke v. Barnhart,

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379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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Dr. Rosekrans

DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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1995). If the treating or examining physician’s opinions are not contradicted, they

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can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If

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contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons

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that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d

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1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting

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medical evidence, the absence of regular medical treatment during the alleged period

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of disability, and the lack of medical support for doctors’ reports based substantially

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on a claimant’s subjective complaints of pain as specific, legitimate reasons for

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disregarding a treating or examining physician’s opinion. Flaten v. Secretary of

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Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995).

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In

August

of

2010,

Dr.

Frank

Rosekrans

performed

a

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psychological/psychiatric evaluation. He noted symptoms of depression, anxiety,

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and anger, with all being moderate in severity. (T at 282). Dr. Rosekrans diagnosed

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bipolar I disorder (most recent episode mixed), and moderate adjustment disorder

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with mixed anxiety and depressed mood. (T at 283).

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Assessment of Functioning (“GAF”) score2 of 40 (T at 283), which “indicates some

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impairment in reality testing or communication (e.g., speech is at times illogical,

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“A GAF score is a rough estimate of an individual's psychological, social, and occupational
functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161,
1164 n.2 (9th Cir. 1998).

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He assigned a Global

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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obscure, or irrelevant) or major impairment in several areas such as work or school,

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family relations, judgment, thinking or mood.” Tagin v. Astrue, No. 11-cv-05120,

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2011 U.S. Dist. LEXIS 136237 at *8 n.1 (W.D.Wa. Nov. 28, 2011)(citations

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omitted).

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Dr. Rosekrans opined that Plaintiff had marked limitations with regard to his

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ability to relate appropriately to co-workers and supervisors and with respect to

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responding appropriately to and tolerating the pressures and expectations of a

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normal work setting and maintaining appropriate behavior in that setting. (T at 284).

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He described Plaintiff as “[c]hronically mental[ly] ill.” (T at 285).

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Dr. Rosekrans conducted another evaluation in July of 2011.

He again

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diagnosed bipolar I disorder (most recent episode mixed), and moderate adjustment

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disorder with mixed anxiety and depressed mood. (T at 319). He assigned a GAF

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score of 45, which is indicative of serious impairment in social, occupational or

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school functioning. Onorato v. Astrue, No. CV-11-0197, 2012 U.S. Dist. LEXIS

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174777, at *11 n.3 (E.D.Wa. Dec. 7, 2012). Dr. Rosekrans assessed moderate

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impairment with regard to Plaintiff’s ability to perform routine tasks without undue

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supervision, be aware of normal hazards and take appropriate precautions,

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communicate and perform effectively in a work setting with public contact, and

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maintain appropriate behavior in a work setting. (T at 320).

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The ALJ gave no weight to Dr. Rosekrans’s opinions, finding the examining

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doctor’s assessments internally “convoluted” and inadequately supported by the

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objective evidence. (T at 21). This Court finds that the ALJ’s decision to discount

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Dr. Rosekrans’s opinions was consistent with applicable law and supported by

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substantial evidence.

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Dr. Rosekrans made a series of odd observations in his assessments, which

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reasonably cast doubt on the credibility of his conclusions. For example, in his

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summary of Plaintiff’s psychiatric history, Dr. Rosekrans noted a prior

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hospitalization for hallucinations and delusional thinking, which he found were

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“probably drug related,” but then opined that Plaintiff had no mental health

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symptoms affected by substance abuse or dependence. (T at 282, 283). He did not

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require Plaintiff to complete all of the customary psychological testing, yielding to

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Plaintiff’s protests that he did not want to answer questions. (T at 286).

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In a subsequent assessment, Dr. Rosekrans stated that he was continuing a

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diagnosis of bipolar disorder because it is “the fashion to diagnose most mood

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disorders as bipolar” and because he did not “want to disagree with [Plaintiff’s]

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physician.” (T at 321). In fact, the diagnosis had been made by a nurse practitioner

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(Paul Means), who noted that the bipolar symptoms were in the context of “alcohol

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use . . . and substance abuse.” (T at 295). Moreover, notwithstanding his diagnosis,

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Dr. Rosekrans explained that he was hesitant to diagnose bipolar disorder because of

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Plaintiff’s history of abusing methamphetamine, which is “known to cause mood

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swings.” (T at 321). Then, in the very same report, Dr. Rosekrans found that

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Plaintiff had no mental health symptoms affected by substance abuse or dependence

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(T at 320). He also indicated that Plaintiff did “not really qualify as bipolar . . .” (T

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at 321) and opined that Plaintiff had “over-reported symptoms” in an effort to help

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his application for SSI benefits. (T at 321-22).

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Dr. Thomas McKnight, a non-examining medical expert, reviewed the record

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and testified at the administrative hearing. Dr. McKnight faulted Dr. Rosekrans for

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allowing Plaintiff to “skip” certain psychological testing during his assessment,

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believing that Dr. Rosekrans “essentially lost control of the session.” (T at 50). Dr.

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McKnight characterized Dr. Rosekrans’s decision to diagnose bipolar disorder

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because it was the “fashion” to make such a diagnosis as “absurd.” (T at 51). Dr.

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McKnight noted that the record contained evidence of drug-seeking behavior and

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substance abuse. (T at 53). He referenced evidence that Plaintiff smoked 6+ bowls

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of cannabis on a daily basis (T at 516), which Dr. McKnight believed likely led to a

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lack of motivation. (T at 54). The record also contained evidence of amphetamine

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dependence.

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acknowledged using meth daily, although he claimed to have stopped. (T at 500).

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(T at 561).

Plaintiff described himself as a “pothead” and

DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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Dr. McKnight concluded that the record lacked any sustained period of time when

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Plaintiff was “reasonably drug-free” and opined that many of Plaintiff’s symptoms

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(depression, anxiety, and lack of motivation) were consistent with substance abuse.

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(T at 54). He was unable to find “any substantiated problem secondary to a mental

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health issue[ ]” independent of substance abuse. (T at 55). Dr. McKnight found that

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Plaintiff was “using a substance and [had] used another substance known to cause

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every difficulty he [was] reporting.” (T at 55).

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evidentiary record, which supports it, contradict and undermine Dr. Rosekrans’s

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conclusion that Plaintiff had no mental health symptoms affected by substance abuse

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or dependence.

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This expert review and the

Rosekrans’s methodology and findings.

The ALJ reasonably adopted Dr. McKnight’s criticism of Dr.

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In addition, Dr. Rosekrans’s assessment appears to be based almost entirely

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on Plaintiff’s subjective reports and is inconsistent with many of his clinical

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findings.

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Plaintiff’s over-reporting of symptoms. (T at 321-22). During the examinations,

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Plaintiff read and wrote appropriate answers on an intake form, demonstrating an

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ability to understand, remember, and follow short and simple instructions. (T at 284,

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320). Plaintiff related appropriately to Dr. Rosekrans, maintained concentration, and

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carried out simple tasks. (T at 284, 320). Dr. Rosekrans declined to diagnose a

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For example, the doctor questioned the results of his testing due to

DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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personality disorder and observed “no physical disability.” (T at 321). Thus, it

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appears the primary ground for Dr. Rosekrans’s assessments was Plaintiff’s self-

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reports. However, Dr. Rosekrans himself found that Plaintiff was over-reporting his

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symptoms in an effort to obtain SSI benefits. (T at 321-22). The ALJ discounted

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Plaintiff’s credibility, noting several material inconsistencies in his testimony (T at

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24) and history of drug-seeking behavior and substance abuse. (T at 24). It is

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reasonable for an ALJ to discount a physician’s opinion predicated on subjective

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complaints found to be less than credible. Bray v. Comm’r of Soc. Sec., 554 F.3d

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1219, 1228 (9th Cir. 2009).

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Lastly, and critically, it must be noted that the dispostive issue is not whether

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Plaintiff has disabling limitations. The ALJ found that he does. (T at 20-21). As

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discussed further below, the question is whether Plaintiff would still be disabled

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absent substance abuse.

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Plaintiff’s suggestion that his mental health limitations would persist absent

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substance abuse. Dr. Rosekrans found that there was no indication of current or

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recent substance abuse (T at 283, 320), a conclusion flatly contradicted by the

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record, which contains ample documentation of such abuse. (T at 500, 516, 561). A

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physician’s opinion may be discounted when he or she evidences a lack of

Dr. Rosekrans’s opinions do not provide support for

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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awareness with regard to demonstrated substance abuse. See Duda v. Astrue, No.

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C08-5582BHS, 2009 LEXIS 70163, at *41 (W.D. Wash. July 6, 2009).

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Moreover, to the extent that Dr. Rosekrans did discuss the link between

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substance abuse and mental health symptoms, his findings are not supportive of

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Plaintiff’s position. As noted above, Dr. Rosekrans was hesitant to diagnose bipolar

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disorder because of Plaintiff’s history of abusing methamphetamine, which is

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“known to cause mood swings.” (T at 321). In sum, this Court finds no reversible

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error in the ALJ’s assessment of Dr. Rosekrans’s opinions. The decision to discount

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those opinions was supported by substantial evidence and rendered consistent with

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applicable law.

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2.

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When a Social Security disability claim involves substance abuse, the ALJ

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must first conduct the general five-step sequential evaluation without determining

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the impact of substance abuse on the claimant. If the ALJ finds that the claimant is

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not disabled, then the ALJ proceeds no further. If, however, the ALJ finds that the

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claimant is disabled, then the ALJ conducts the sequential evaluation and second

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time and considers whether the claimant would still be disabled absent the substance

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abuse. See Bustamente v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001), 20 CFR §

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404.1535.

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Substance Abuse

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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The claimant bears the burden at steps 1-4 of the second sequential analysis of

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showing substance abuse is not a “contributing factor material to his disability.”

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Hardwick v. Astrue, 782 F. Supp. 2d 1170, 1177 (E.D.Wa. 2011)(citing Parra v.

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Astrue, 481 F.3d 742, 748 (9th Cir. 2007)). To meet this burden, the claimant “must

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provide competent evidence of a period of abstinence and medical source opinions

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relating to that period sufficient to establish his [substance abuse] is not a

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contributing factor material to his alleged mental impairments and disability.”

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Hardwick, 782 F. Supp. 2d at 1177 (citing Parra, 481 F.3d at 748-49).

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In this case, the ALJ concluded that, taking into account Plaintiff’s substance

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abuse, his impairments met several of the impairments set forth in the Listings –

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specifically §§12.04, 12.06, 12.06, and 12.09C. (T at 20-21). The ALJ determined

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that Plaintiff’s limitations would have more than a minimal impact on his ability to

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perform basic work activities even if he stopped the substance abuse. (T at 21-22).

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After conducting the second sequential analysis, the ALJ concluded that Plaintiff’s

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substance abuse was a contributing factor material to the determination of disability,

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and Plaintiff was therefore not entitled to benefits. (T at 26-27).

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Plaintiff contends that this conclusion was in error and argues that his mental

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health limitations persist independent of his substance abuse. Plaintiff offers no

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evidentiary citations to support this argument.

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Rather,

Plaintiff

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

suggests,

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without support, that the “majority” of his mental health issues cannot be associated

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with the known side effects of marijuana. Plaintiff apparently wants this Court to

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take some sort of judicial notice of this purported medical “fact” and override the

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Commissioner’s assessment on this basis.

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McKnight opined that many of Plaintiff’s symptoms (depression, anxiety, and lack

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of motivation) were consistent with substance abuse. (T at 54). He was unable to

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find “any substantiated problem secondary to a mental health issue[ ]” independent

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of substance abuse and noted that Plaintiff was “using a substance” and “[had] used

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another substance known to cause every difficulty he’s reporting.” (T at 55).

However, as discussed above, Dr.

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These findings are sufficiently supported by the overall record and Plaintiff

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has not offered an evidentiary rationale for overriding the ALJ’s decision to give

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significant weight to Dr. McKnight’s expert assessment. See Henderson v. Astrue,

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634 F. Supp. 2d 1182, 1190 (E.D.W.A. 2009)(“The opinion of a non-examining

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physician may be accepted as substantial evidence if it is supported by other

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evidence in the record and is consistent with it.”)(citing Andrews v. Shalala, 53 F.3d

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1035, 1043 (9th Cir. 1995)). Indeed, “an ALJ may give greater weight to the opinion

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of a non-examining expert who testifies at a hearing subject to cross-examination.”

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Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995) (citing Torres v. Secretary

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of H.H.S., 870 F.2d 742, 744 (1st Cir. 1989)); see also Moody v. Astrue, No CV-10-

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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161, 2011 U.S. Dist. LEXIS 125165, at *22-23 (E.D. Wash. Oct. 28, 2011)(finding

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that ALJ did not err in giving greater weight to medical expert’s opinion over

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treating psychiatrist’s opinion concerning substance abuse).

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3.

Step Five Analysis

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At step five of the sequential evaluation, the burden is on the Commissioner to

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show that (1) the claimant can perform other substantial gainful activity and (2) a

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“significant number of jobs exist in the national economy” which the claimant can

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perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot

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return to his previous job, the Commissioner must identify specific jobs existing in

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substantial numbers in the national economy that the claimant can perform. See

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Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995).

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The Commissioner may carry this burden by “eliciting the testimony of a

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vocational expert in response to a hypothetical that sets out all the limitations and

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restrictions of the claimant.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995).

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The ALJ's depiction of the claimant's disability must be accurate, detailed, and

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supported by the medical record. Gamer v. Secretary of Health and Human Servs.,

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815 F.2d 1275, 1279 (9th Cir.1987).

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Plaintiff argues that the ALJ’s step five analysis was flawed because the

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vocational expert was not presented with the limitations noted by Dr. Rosekrans.

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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This restatement of Plaintiff’s earlier argument fails for the same reasons. The ALJ

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reasonably discounted Dr. Rosekrans’s opinions and was not obliged to include his

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limitations in the hypothetical presented to the vocational expert. An ALJ is not

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obliged to accept as true limitations alleged by Plaintiff and may decline to include

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such limitations in the vocational expert’s hypothetical if they are not supported by

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sufficient evidence. See Martinez v. Heckler, 807 F.2d 771 (9th Cir. 1986); see also

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Hall v. Colvin, No. CV-13-0043, 2014 U.S. Dist. LEXIS 45006, at *24-25 (E.D.

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Wash. Mar. 31, 2014)(“A claimant fails to establish that a Step 5 determination is

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flawed by simply restating argument that the ALJ improperly discounted certain

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evidence, when the record demonstrates the evidence was properly rejected.”)(citing

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Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).

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However, this Court finds merit in Plaintiff’s second argument concerning the

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ALJ’s step five analysis.

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for his inability to frequently handle and manipulate objects with his dominant right

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hand. Daniel McKinney, the vocational expert, testified that a hypothetical claimant

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with Plaintiff’s RFC (as determined by the ALJ) would not be able to function in a

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competitive labor marked if he or she was also limited to occasional handling and

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manipulating with his or her dominant hand. (T at 76). The ALJ discounted this

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testimony because she found that Plaintiff’s carpal tunnel syndrome did not meet the

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Plaintiff argues that the ALJ did not adequately account

DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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durational requirements of the Social Security Act. (T at 20, 26). See 20 C.F.R. §

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416.909 (“. . . your impairment . . . must have lasted . . . for a continuous period of at

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least 12 months. We call this the durational requirement”).

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A May 2011 EMG/nerve conduction study revealed “evidence of moderate

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right carpal tunnel syndrome (median nerve entrapment at wrist) affecting sensory

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and motor components.” (T at 315). The ALJ noted that Plaintiff did not complain

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of wrist pain during follow-up evaluations. (T at 20). The ALJ also pointed to the

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report of Dr. Robert Rose, a consultative examiner who indicated that Plaintiff had

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“adequate” dexterity. (T at 20, 304). Based on this evidence, the ALJ concluded that

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Plaintiff’s carpal tunnel syndrome did not satisfy the durational requirement and was

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therefore not a “severe” impairment. (T at 20).

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However, Dr. Rose’s assessment was made in December of 2010, prior to the

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EMG/nerve conduction study. Moreover, the lack of complaints does not mean that

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the diagnosed carpal tunnel syndrome and noted sensory and motor effects were

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spontaneously resolved prior to the expiration of the 12 month durational

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requirement. It is quite possible Plaintiff did not complain of wrist pain because he

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avoided using his right hand for repetitive fine motor activities.

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significance of this issue (the vocational expert found it made a dispositive

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difference in terms of whether a hypothetical claimant with Plaintiff’s other

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

Given the

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limitations could perform work in a competitive labor market), the ALJ was obliged

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to further develop the record concerning this issue. See 20 C.F.R. § 404.1512(e)(1);

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S.S.R. 96-5p, 1996 SSR LEXIS 2 (1996); Brown v. Heckler, 713 F.2d 441, 443 (9th

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Cir. 1983) (“In Social Security cases the ALJ has a special duty to fully and fairly

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develop the record and to assure that the claimant's interests are considered.”); Sims

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v. Apfel, 530 U.S. 103, 110-11, 147 L. Ed. 2d 80, 120 S. Ct. 2080 (2000) (“Social

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Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s duty to

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investigate the facts and develop the arguments both for and against granting

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benefits . . . .”). Accordingly, the step five analysis must be revisited on remand

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following further development of the record concerning Plaintiff’s carpal tunnel

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syndrome.

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E.

Remand

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In a case where the ALJ's determination is not supported by substantial

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evidence or is tainted by legal error, the court may remand the matter either for

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additional proceedings or an immediate award of benefits. Remand for additional

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proceedings is proper where (1) outstanding issues must be resolved, and (2) it is not

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clear from the record before the court that the claimant is disabled. See Benecke v.

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Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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For the reasons outlined above, this Court finds that a remand is necessary for

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further development of the record concerning Plaintiff’s carpal tunnel syndrome. It

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is not clear from the record that Plaintiff is disabled; the ALJ correctly noted that the

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record was sparse concerning the extent of Plaintiff’s right hand limitations.

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However, further consideration and development of the record is required because of

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the lack of evidence concerning this important issue and because the ALJ’s

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conclusion that the impairment did not meet the durational requirement is not

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supported by substantial evidence.

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IV. ORDERS
IT IS THEREFORE ORDERED that:

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Plaintiff’s motion for summary judgment, Docket No. 15, is GRANTED.

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The Commissioner’s motion for summary judgment, Docket No. 16, is

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DENIED.
This case is REMANDED to the Commissioner for further proceedings
consistent with this Decision and Order.

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The District Court Executive is directed to file this Order, provide copies to

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counsel, enter judgment in favor of the Plaintiff, and keep the case open for a period

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB

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of sixty (60) days to allow Plaintiff’s counsel an opportunity to submit an

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application for attorneys’ fees.

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DATED this 2nd day of September, 2014.

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/s/Victor E. Bianchini
VICTOR E. BIANCHINI
UNITED STATES MAGISTRATE JUDGE

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DECISION AND ORDER – THIELEN v COLVIN 13-CV-00121-VEB