Dallman v. Colvin
Filing
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ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION denying 12 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Judge Salvador Mendoza, Jr. (AY, Case Administrator)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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BILLY DALLMAN,
No. 2:15-CV-0318-SMJ
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Plaintiff,
ORDER GRANTING
DEFENDANT’S SUMMARY
JUDGMENT MOTION AND
DENYING PLAINTIFF’S
SUMMARY JUDGMENT MOTION
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v.
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COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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I.
INTRODUCTION
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Plaintiff Billy Dallman appeals the Administrative Law Judge’s (ALJ)
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denial of his application for supplemental security income. ECF No. 3. Plaintiff
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contends the Court should reverse the ALJ’s decision because the ALJ improperly
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(1) found that Dallman’s back pain did not constitute a severe impairment, (2)
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rejected Dallman’s testimony concerning the severity of his symptoms, and (3)
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discounted the opinion of two treatment providers. The Commissioner of Social
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Security asks the Court to affirm the ALJ’s decision. After reviewing the record
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and relevant authority, as set forth below, the Court finds that the ALJ applied the
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proper legal standards and the ALJ’s decision is supported by substantial
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ORDER - 1
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evidence. Accordingly, the Court affirms the ALJ’s decision and therefore denies
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Plaintiff’s motion and grants the Commissioner’s motion
II.
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A.
BACKGROUND
Statement of Facts1
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Plaintiff Billy Dallman was born on December 26, 1974, and was 37 years
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old at the time he filed his claim. AR 63. At the time he filed his claim, Dallman
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was a resident of Ellensburg, Washington, where he lived with his wife and three
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children. AR 42. Dallman has not worked consistently since 2001. AR 189, 223.
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He alleges that he has been unable to work since that time because of bipolar
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disorder, post-traumatic stress disorder, back injuries, knee injuries, and thyroid
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disorder. AR 19, 63, 188.
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Dallman has a long history of physical and mental conditions. Dallman
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reported significant childhood abuse and trauma, and also drug and alcohol use
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beginning at a very young age. AR 326–27. Dallman did not complete high school
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and does not have a GED. AR 47. Dallman reports having knee pain since surgery
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in the early 1990s that has worsened over time, and back pain since an injury in
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2002. AR 204, 214, 414–15, 428. Dallman was diagnosed with hyperthyroidism in
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January 2006. AR 413. Dallman has been hospitalized for psychiatric illness on
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The facts are only briefly summarized. Detailed facts are contained in the
administrative hearing transcript, the ALJ’s decision, and the parties’ briefs.
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two occasions: In July 2009, after being found naked on his neighbor’s deck and
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punching and choking his girlfriend in response to command auditory
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hallucinations; and in May 2012, after making claims to a mental health
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professional that, among other things, he was god, he was 2012 years, and he
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would take care of all of the evil in the world. AR 247. At discharge in May 2012,
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he was diagnosed with severe bipolar disorder with psychotic features. AR 245.
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At the time of this application Dallman was taking a number of medications
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including: Cogentin, for side effects from anti-psychotic medications; Depakote,
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for depression and bi-polar disorder; Hydrocodone, for pain; Levoxyl, because his
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thyroid was removed; Meloxicam, for arthritis and joint pain; Methocaramol, for
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muscle spasms; and Risperdal, for bi-polar disorder. AR 218–19.
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Dallman reports that on a day-to-day basis, he drinks coffee, takes care of
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his children, and eats meals. AR 205. He reports requiring reminders to do routine
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personal care and take his medications. AR 206. He does light housework and
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occasionally makes simple meals. AR 206. Dallman attends counseling once per
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week. AR 209. Dallman asserts that the pain in his back and knees make sitting,
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standing and lifting difficult, and that his mental disorders cause him to be anxious
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and avoid social interactions. AR 204, 209.
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B.
Procedural History
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On June 11, 2012, Dallman filed an application for supplemental security
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income, alleging an inability to work since January 2002 as a result of bipolar
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disorder, post-traumatic stress disorder, back injury, knee injury, and thyroid
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disorder. AR 19, 171. This application was denied on July 17, 2012, and denied
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on reconsideration on October 31, 2012. AR 19, 74, 88. Dallman filed a request
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for a hearing on December 6, 2012. AR 19. A hearing occurred before an ALJ on
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April 23, 2014. AR 19. On June 20, 2014, the ALJ issued a decision finding
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Dallman not disabled and denying his claim for supplemental security income. AR
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19–31. On August 20, 2014, Dallman requested review by the Social Security
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Administration Appeals Council, asserting that the ALJ’s decision was not
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supported by substantial evidence, the decision contained legal errors, and the
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ALJ’s credibility determination was legally insufficient. AR 14. The Council
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denied Dallman’s request on September 17, 2014. AR 1–5. Dallman filed this
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action on November 17, 2015. ECF No. 1.
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II.
DISABILITY DETERMINATION
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A “disability” is defined as the “inability to engage in any substantial
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gainful activity by reason of any medically determinable physical or mental
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impairment which can be expected to result in death or which has lasted or can be
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expected to last for a continuous period of not less than twelve months.” 42
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U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The decision-maker uses a five-step
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sequential evaluation process to determine whether a claimant is disabled. 20
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C.F.R. §§ 404.1520, 416.920.
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Step one assesses whether the claimant is engaged in substantial gainful
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activities. If he is, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If
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he is not, the decision-maker proceeds to step two.
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Step two assesses whether the claimant has a medically severe impairment
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or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the
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claimant does not, the disability claim is denied. If the claimant does, the
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evaluation proceeds to the third step.
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Step three compares the claimant’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(d), 404 Subpt. P App. 1,
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416.920(d). If the impairment meets or equals one of the listed impairments, the
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claimant is conclusively presumed to be disabled. If the impairment does not, the
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evaluation proceeds to the fourth step.
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Step four assesses whether the impairment prevents the claimant from
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performing work he has performed in the past by examining the claimant’s
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residual functional capacity. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the
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ORDER - 5
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claimant is able to perform his previous work, he is not disabled. If the claimant
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cannot perform this work, the evaluation proceeds to the fifth step.
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Step five, the final step, assesses whether the claimant can perform other
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work in the national economy in view of his age, education, and work experience.
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20 C.F.R. §§ 404.1520(f), 416.920(f); see Bowen v. Yuckert, 482 U.S. 137
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(1987). If the claimant can, the disability claim is denied. If the claimant cannot,
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the disability claim is granted.
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The burden of proof shifts during this sequential disability analysis. The
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claimant has the initial burden of establishing a prima facie case of entitlement to
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disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The
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burden then shifts to the Commissioner to show 1) the claimant can perform other
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substantial gainful activity, and 2) that a “significant number of jobs exist in the
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national economy,” which the claimant can perform. Kail v. Heckler, 722 F.2d
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1496, 1498 (9th Cir. 1984). A claimant is disabled only if his impairments are of
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such severity that he is not only unable to do his previous work but cannot,
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considering his age, education, and work experiences, engage in any other
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substantial gainful work which exists in the national economy. 42 U.S.C. §§
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423(d)(2)(A), 1382c(a)(3)(B).
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III.
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Standard of Review
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The Court must uphold an ALJ’s determination that a claimant is not
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disabled if the ALJ applied the proper legal standards and there is substantial
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evidence in the record as a whole to support the decision. Molina v. Astrue, 674
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F.3d 1104, 1110 (9th Cir. 2012) (citing Stone v. Heckler, 761 F.2d 530, 531 (9th
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Cir.1985). “Substantial evidence ‘means such relevant evidence as a reasonable
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mind might accept as adequate to support a conclusion.’” Id. at 1111 (quoting
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Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). This
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must be more than a mere scintilla, but may be less than a preponderance. Id.
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(citation omitted).
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Even where the evidence supports more than one rational interpretation, the Court
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must uphold an ALJ’s decision if it is supported by inferences reasonably drawn
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from the record. Id.; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).
IV.
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Discussion
Dallman challenges the ALJ’s decision on three grounds. First, he argues
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that at step two the ALJ erred by finding that Dallman’s chronic back pain was not
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a severe impairment. Second, he argues that the ALJ erred by rejecting Dallman’s
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testimony concerning the severity of his symptoms. Third, he argues that the ALJ
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improperly weighed certain medical opinions. As discussed below, the ALJ did
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not commit legal error and each of the challenged findings is supported by
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substantial evidence. Accordingly, the ALJ’s decision must be upheld.
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A.
The ALJ did not err at step two by finding Dallman’s chronic back
pain was not a severe impairment.
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An impairment is severe if it significantly limits a claimant’s ability to do
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basic work activities. 20 CFR §§404.1521, 416.921. Dallman argues that the ALJ
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arbitrarily chose to reject nurse practitioner Mara Fusfield’s opinion and
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improperly rejected Dallman’s own symptom testimony. ECF No. 12 at 7. In
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concluding that Dallman’s back pain was not a severe impairment, the ALJ relied
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on x-rays from 2012, which showed only mild findings, and the conclusions of
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state medical consultant Dr. Robert Hoskins, who indicated that Dallman had a
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severe impairment related to joint dysfunction, but no severe impairment related
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to a spine disorder. AR 22. The ALJ discounted the conclusion of Dallman’s
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treating physician in 2006 that Dallman had chronic back pain on the basis that the
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conclusion was made well before the relevant period, and was inconsistent with x15
ray evidence. AR 22. The ALJ’s findings are supported by evidence in the record.
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Among other things, x-rays showed only mild spondylithosis in Dallman’s back,
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AR 282, and physical exams revealed no significant abnormalities. See AR 257.
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Further, as discussed below, the ALJ gave sufficient reasons, supported by
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substantial evidence for giving little weight to Dallman’s symptom testimony.
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Accordingly, the ALJ’s finding that Dallman’s chronic back pain did not
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constitute a severe impairment is supported by substantial evidence.
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B.
The ALJ did not err by rejecting Dallman’s testimony concerning the
severity of his symptoms.
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Where a claimant presents objective medical evidence of impairments that
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could reasonably produce the symptoms complained of, an ALJ may reject the
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claimant’s testimony about the severity of his symptoms only for “specific, clear
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and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014).
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An ALJ must make sufficiently specific findings “to permit the court to conclude
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that the ALJ did not arbitrarily discredit claimant’s testimony.” Tommasetti v.
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Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations omitted). General findings
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are insufficient. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). ALJs may
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consider many factors in weighing a claimant’s credibility, including prior
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inconsistent statements, unexplained failures to seek treatment, and claimant’s
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daily activities, among others. Tommasetti, 533 F.3d at 1039. Courts may not
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second-guess an ALJ’s findings that are supported by substantial evidence. Id.
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Dallman first argues that it was legal error for the ALJ to make any
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credibility determination because recent Social Security Administrative policy
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directs ALJ’s not to “assess an individual’s overall character or truthfulness in the
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manner typically used during an adversarial court litigation.” ECF No. 12 at 8
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(quoting Social Security Ruling (SSR) 16-3p). But SSR 16-3p did not take effect
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until after the ALJ’s decision in this case, See 2016 WL 1237954 (Mar. 28, 2016).
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And, in any case, there is no indication here that the ALJ assessed Dallman’s
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overall character. Instead, the ALJ evaluated the consistency of Dallman’s
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testimony with the objective evidence in the record, as required by the relevant
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regulations, See 20 C.F.R. § 416.929(c). AR 21–29.
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Alternatively, Dallman argues that the ALJ erred by rejecting Dallman’s
allegations concerning specific symptoms. ECF No. 12 at 9–16.
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First, Dallman argues that the ALJ erred by finding that Dallman was less
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than forthright about his need for surgery because his treating provider, Ms.
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Fusfield, indicated that neurosurgery was a recommended treatment for his
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physical conditions. ECF No. 12 at 9. Ms. Fusfield did note “poss[ible] referral to
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neurosurgery” as part of a treatment plan to address Dallman’s back pain. AR 452.
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Accordingly, the ALJ’s finding that “Ms. Fusfield’s treatment notes do not
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mention the need for a surgery” is erroneous. However, this error is harmless
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because substantial evidence supports the ALJ’s ultimate conclusion that Dallman
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was “less than fully forthright with his treating providers,” including by
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inconsistently reporting the nature of his conditions and recommended treatment.
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AR 25. Specifically, Dallman’s claim that Ms. Fusfield had recommended back
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and knee surgery and that if he did not get surgery he would be confined to a
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ORDER - 10
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wheelchair, is not consistent with Ms. Fusfield’s recommendation or any other
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medical opinion or treatment evidence.
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Dallman next asserts that the ALJ failed to consider that Dallman’s failure
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to follow treatment recommendations may have been a symptom of his mental
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conditions. ECF No. 12 at 9–10, 12–13. But the ALJ’s finding that Dallman did
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not always follow through with treatment is supported by the record, and the
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ALJ’s conclusion that this weighed against the credibility of Dallman’s allegations
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is consistent with the policy articulated in Social Security Ruling 96-7, which was
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in effect at the time of the ALJ’s decision. Further, the ALJ expressly considered
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Dallman’s explanation that he stopped taking his medications during manic
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phases, noting that evidence in the record was inconsistent with this claim. AR 27.
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Dallman also questions the ALJ’s finding that there were only “minimal
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and mild physical exam findings found throughout the record,” arguing that the
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ALJ reached this conclusion by improperly ignoring and cherry-picking evidence.
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ECF No. 12 at 10–11. There is no indication that the ALJ improperly ignored
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evidence in reaching this conclusion. Dallman’s physical examinations, x-rays,
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and course of treatment are sufficient to support the ALJ’s conclusion that
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Dallman’s allegations of the severity of his pain were inconsistent with the
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objective evidence.
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Dallman asserts that the ALJ ignored treatment notes from the day after
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Dallman was released from the hospital in May 2012, which showed far more than
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“mild abnormalities.” ECF No. 12 at 11–12. Dallman further challenges the ALJ’s
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reliance on Dalman’s improvement noted by healthcare providers without
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recognizing that the providers continued to opine that Dallman was severely
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disabled, with Global Assessment of Functioning (GAF) scores never exceeding
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48. ECF No. 12 at 14. The ALJ does not specifically address treatment notes from
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the day following his discharge in May 2012 that suggest some continued
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paranoid delusions or Dallman’s GAF scores. But neither of these factors
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undermine the ALJ’s conclusion that Dallman’s allegations concerning the
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severity of his psychiatric symptoms are inconsistent with medical opinions,
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treatment notes, and course of treatment that demonstrate normal or only mildly
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abnormal psychiatric observations when Dallman was taking his medications. AR
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26. Extensive evidence supports this finding. See AR 257, 350, 352, 396, 476.
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Finally, Dallman argues that his activities of daily living are consistent with
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his alleged limitations. ECF No. 12 at 15. The record supports the ALJ’s finding
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that Dallman helps to care for his children, prepares simple meals, drives, and
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engages in other activities. AR 205–06. And the ALJ reasonably concluded that
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these activities are inconsistent with severely limiting symptoms.
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C.
The ALJ did not improperly weigh medical evidence.
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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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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”
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reasons that are supported by substantial evidence in the record. Andrews v.
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Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Moreover, an ALJ may afford
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greater weight to the opinion of a non-examining expert who testifies at a hearing
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and is subject to cross-examination. Id. at 1042 (citations omitted).
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Dallman argues that the ALJ erred by giving little weight to nurse
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practitioner Mara Fusfield’s August 2012 opinion, despite her role as treating
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provider. ECF No. 12 at 16–17. Dallman also argues that the ALJ erroneously
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rejected Mr. Wenger’s opinion of disability. ECF No. 12 at 17. Noting that the
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ALJ incorrectly found that Wenger did not consider that Mr. Dallman was more
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functional on medication, when Wenger explicitly noted improvement as a result
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of treatment. ECF NO. 12 at 17; AR 457–58.
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The ALJ gave little weight to Ms. Fusfield’s opinion, despite her status as a
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treating source because she relied on Dallman’s subjective statements (which the
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ALJ had found not credible), her opinion was equivocal regarding Dallman’s
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ability to respond to stressful situations, and that her findings were inconsistent
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with objective physical examination and x-ray evidence. AR 28. Each of these
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bases for discounting Ms. Fusfield’s opinion is supported by substantial evidence.
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The ALJ discounted therapist Brett Wenger’s opinion because Mr. Wenger was
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not a medical source, and because his opinion was inconsistent with treatment
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records and observations demonstrating Dallman’s improvement while on
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medication. AR 29. As discussed above, the ALJ’s conclusions regarding the
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severity of Dallman’s mental condition and his improvement while on medication
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are supported.
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Because the ALJ gave specific, legitimate reasons for giving little weight to
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Ms. Fusfield’s and Mr. Wagner’s opinions, there is no basis for the Court to reject
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the ALJ’s decision.
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D.
Conclusion
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For the reasons discussed, the Court finds that the ALJ applied the correct
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legal standards and that the ALJ’s conclusion that Billy Dallman does not qualify
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for benefits is supported by substantial evidence.
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Accordingly, IT IS HEREBY ORDERED:
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1.
Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED.
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2.
The Commissioner’s Motion for Summary Judgment, ECF No. 15, is
GRANTED.
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JUDGMENT is to be entered in the Commissioner’s favor.
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The case shall be CLOSED.
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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order
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and provide copies to all counsel.
DATED this 3rd day of February 2017.
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SALVADOR MENDOZA, JR.
United States District Judge
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