Moore v. Colvin
Filing
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ORDER AFFIRMING DECISION - denying 13 Plaintiff's Motion for Summary Judgment; granting 18 Defendant's Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (VR, Courtroom Deputy)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
LAURIE ANN MOORE,
v.
Plaintiff,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
2:16-CV-107-FVS
ORDER AFFIRMING DECISION
Defendant.
THIS MATTER comes before the Court based upon cross motions for
summary judgment. At issue is the validity of a decision denying Laurie Ann
Moore’s claim for supplemental security income. The plaintiff is represented by
Jeffrey Schwab. The defendant is represented by Richard M. Rodriguez.
PROCEDURAL HISTORY
Laurie Ann Moore was born on November 1, 1968. (TR 52.) On April 8,
2013, Ms. Moore applied for Title XVI supplemental security income (“SSI”). 42
U.S.C. §§ 1381-1383f. The Social Security Administration (“SSA”) denied her
initial application and her request for reconsideration, whereupon she exercised
her right to a hearing before an administrative law judge. The hearing took
place on April 8, 2015. (TR 43.) On May 6, 2015, the ALJ issued an order setting
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forth the determinations she made at each step in the SSA’s five-step sequential
evaluation process. 20 C.F.R. § 416.920(a)(4).
Ms. Moore accepts the findings the ALJ made at steps one through three.
That is to say, she has not engaged in substantial gainful activity since she
allegedly became disabled. (Step one.) She suffers from the severe impairments
identified by the ALJ, viz., “migraine headaches; degenerative changes in the
cervical spine; status post right hand injury in 1993; obesity; depression; and
anxiety.” (Step two.) But her impairments are not severe enough to create a
conclusive presumption of disability. (Step three.)
It is at step four that Ms. Moore’s objections begin. She alleges the ALJ
improperly formulated her Residual Functional Capacity (“RFC”). The latter is
the most she can do despite her impairments. 20 C.F.R. § 416.945(a)(1). An RFC
is expressed in terms of an exertional level, i.e., whether the claimant is capable
of performing a job that is “sedentary, light, medium, heavy, [or] very heavy.” 20
C.F.R. § 416.967.
In order to determine Ms. Moore’s RFC, the ALJ had to weigh the evidence.
While the ALJ was not unsympathetic to Ms. Moore, the ALJ did not fully credit
her description of the limitations she experiences as a result of her impairments.
(TR 32.) Nor did the ALJ fully credit the opinions of John Arnold, Ph.D., a
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psychologist. Indeed, she accorded Dr. Arnold’s opinions “little weight.” (TR 3334.)
Ms. Moore objects to the ALJ’s decision to discount both Dr. Arnold’s
opinions and her description of the limitations she experiences. Had the ALJ
given proper weight to this evidence, says Ms. Moore, the ALJ would have found
she typically suffers 15-20 migraine headaches per month, and when she is
experiencing a migraine headache, which can last for hours at a time, she is
incapable of performing even sedentary work. According to Ms. Moore, no
employer would retain an employee who missed as much work as she would.
The ALJ did not see it that way. The ALJ found Ms. Moore presently is
capable of performing light work (step four) and “there are jobs that exist in
significant numbers in the national economy that the claimant can perform.”
(Step five.) As a result, the ALJ ruled Ms. Moore is not disabled. (TR 35-36.)
Ms. Moore asked the Appeals Council to review the ALJ’s unfavorable
ruling. On February 9, 2016, the Council declined to do so. With that, the ALJ’s
ruling became the final decision of the Social Security Administration. 20 C.F.R. §
416.1484(b)(2). Ms. Moore commenced this action on April 5, 2016.
STANDARD OF REVIEW
A district court has the “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the
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Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). However, review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive[.]” Id. As a result, the Commissioner’s decision
“will be disturbed only if it is not supported by substantial evidence or it is based
on legal error.” Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986). “Substantial
evidence” means more than a mere scintilla, . . . but less than a preponderance.”
Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988)
(internal punctuation and citations omitted).
ANALYSIS
Ms. Moore
The ALJ gave several reasons for discounting Ms. Moore’s credibility. First,
the ALJ questioned whether Ms. Moore is committed to finding a job. Second, the
ALJ questioned whether she has followed through with treatment
recommendations that have been made by her health care providers. Third, the
ALJ questioned whether Ms. Moore is a reliable reporter of information.
One of the ALJ’s concerns was motivation. This concern stemmed from the
fact Ms. Moore did not hold a full-time job at any time during the ten-year period
before she applied for Title XVI benefits. (TR 67-69, 195-96.) Ms. Moore
attributes her lack of employment to chronic migraine headaches. (TR 63.)
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While headaches are part of the story, there appears to be more. On January 6,
2012, Ms. Moore advised Anna Charbonneau, a licensed mental health counselor,
she had used drugs and alcohol “most of her adult life.” She made a similar
statement to a treating physician. (TR 432.) Thus, the ALJ reasonably wondered
whether substance abuse was a significant factor in her inability to hold a fulltime job. (TR 32.)
Another of the ALJ’s concerns was Ms. Moore’s willingness to follow
treatment recommendations. This was a two-part concern. The first part
involved treatment for mental health problems. The record reflects Ms. Moore
had an opportunity to participate in counseling, but as of her appointment with
Ms. Charbonneau, she had not done so. Consequently, during the meeting, Ms.
Charbonneau “[]gently discussed [Ms. Moore’s history] of no-showing and not
following up.” (TR 407.)
The second part of the ALJ’s concern involved treatment for migraine
headaches. (TR 32.) Beginning in 2013, Ms. Moore had a number of
appointments with William T. Allred, M.D., a neurologist. He prescribed
medication for her headaches, but also he also made a number of
recommendations he thought would help her manage her headaches. (TR 434.)
One of them was to sharply curtail her use of over-the-counter analgesics. Id.
Although Ms. Moore continued to experience headaches (TR 425-26), Dr.
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Allred’s suggestions seemed to help, at least for a while. (TR 421 ([Ms. Moore “is
currently satisfied with the headache control.”)) However, by May of 2014, her
condition had deteriorated. (TR 415.) Dr. Allred attributed the changes to a
combination of mental health problems, “hormonal changes,” and “analgesic
overuse.” (TR 417.)
The ALJ’s final concern was Ms. Moore’s reliability. The ALJ decided she
has a tendency to exaggerate her symptoms when she thinks it serves her
interest to do so. For example, Ms. Moore told Dr. Arnold she had been in six
vehicle collisions. (TR 308.) By contrast, she told Steve Hufman, M.D., she had
been in three collisions. (TR 303.) Were that the only instance of exaggeration,
the ALJ might not have been concerned. But as the ALJ pointed out, there was a
second instance. During Ms. Moore’s appointment with Dr. Allred on May 5,
2014, she reported she was seeing a counselor. (TR 415.) The ALJ looked in the
record for evidence indicating Ms. Moore was participating in counseling at that
time, but the ALJ was unable to confirm the accuracy of her statement. (TR 32.)
These, then, are the ALJ’s reasons for discounting Ms. Moore’s testimony.
The issue is whether they are adequate. The test is well established. Absent
evidence of malingering, an “ALJ may reject the claimant's testimony regarding
the severity of her symptoms only if he makes specific findings stating clear and
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convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1283 (9th
Cir.1996).
It is instructive to consider Ms. Moore’s employment history. This is not a
case in which the applicant had been working steadily until the alleged onset of
disability. Instead, this is a case in which the applicant had been unemployed for
years before disability allegedly began. At least two circumstances appear to
have played a role in Ms. Moore’s inability to hold a job. One was substance
abuse. Another was chronic migraine headaches.
Let there be no misunderstanding. Ms. Moore’s migraine headaches are a
serious matter. However, there is reason to think she can manage her
headaches if she carefully follows treatment recommendations. Two
recommendations are especially important. Ms. Carbonneau gently, but firmly,
urged Ms. Moore to participate in counseling. Ms. Moore says she has done so,
but there are no records from mental health professionals confirming her claim.
The other critical recommendation involves the use of analgesics. Dr. Allred
repeatedly admonished her to limit her consumption of them. When she
followed his recommendation, she experienced fewer headaches. When she did
not follow his recommendation, she had more headaches and more severe
headaches.
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Finally, there is the matter of Ms. Moore’s reliability as a reliable reporter.
The ALJ reasonably was concerned. Her concern arose, in part, as a result of
comments Ms. Moore made about counseling. As will be recalled, she told Dr.
Allred she was participating in therapy. (TR 415.) If she was, one would expect
to find records of counseling sessions, but there do not appear to be any. The
absence of such records tends to undermine her credibility.
In conclusion, the reasons the ALJ provided for discounting Ms. Moore’s
credibility are sufficient to support her determination. Ms. Moore was not
actively participating in the work force long before the alleged onset of
disability. She has failed to follow important treatment recommendations, and
she has not always been a reliable reporter of information.
Psychologist John Arnold
The Washington State Department of Social and Health Services asked
John Arnold, Ph.D., to perform a psychological evaluation of Ms. Moore. Dr.
Arnold examined her on April 30, 2013. Dr. Arnold administered several simple
tests, including both the Beck Depression Inventory and the Beck Anxiety
Inventory. (TR 308.) Given the results of the tests, and given his observations,
Dr. Arnold decided Ms. Moore was anxious and depressed. (TR 309.) Having
made that determination, he went on to assess her ability to engage in sustained
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activity over a normal workday. (TR 310.) He found one marked impairment
and eight moderate impairments. (TR 311.)
Without question, an examining expert’s findings are entitled to
substantial deference. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998) (an
ALJ’s decision to discount the opinion of an examining expert may be upheld
only if the ALJ provided “specific and legitimate reasons” that are “supported by
substantial evidence in the record”). However, substantial deference does not
mean uncritical acceptance. Before accepting an expert’s findings, an ALJ must
determine whether they are based upon adequate data and whether the expert
arrived at them by means of an appropriate methodology. In this instance, the
ALJ was troubled by two circumstances.
One of the ALJ’s concerns was whether Dr. Arnold’s findings adequately
explain all of the data. Of particular interest to her were the results of the
mental status exam that Dr. Arnold conducted. The results of the exam are set
forth on page four of a form that is entitled “Psychological/Psychiatric
Evaluation.” (TR 308-311.)
Dr. Arnold began by summarizing his observations. He indicated Ms.
Moore appeared depressed and anxious. (TR 311.) That said, he also indicated
her speech was progressive and logical, she was open and cooperative (even
talkative), and her affect was only mildly constricted. Id.
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Dr. Arnold then proceeded to describe Ms. Moore’s cognitive functions. He
reported Ms. Moore did not fall “within normal limits” with respect to
“concentration.” Id. That said, he also reported she fell within normal limits
with respect to “thought processes and content,” “orientation,” “perception,”
“fund of knowledge,” “abstract thought,” and “insight and judgment.” Id.
After reviewing Dr. Arnold’s report, the ALJ appears to have asked a
sensible question, “If Ms. Moore is as impaired as Dr. Arnold indicates, why the
ambiguity in the results of the mental status exam? 1 ” The ALJ looked in Dr.
Arnold’s report for an answer to her question, but she could find none. Nor
could she find a meaningful explanation of the process by which Dr. Arnold
arrived at his findings. In essence, he just checked boxes. Given the absence of a
meaningful explanation, the ALJ had no way to assess either the validity or the
reliability of Dr. Arnold’s findings. Consequently, she properly accorded “little
weight” to his pessimistic assessment.
RULING
A reviewing court should not substitute its assessment of the evidence for
the ALJ’s. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). To the contrary,
a reviewing court must defer to an ALJ’s assessment as long as it is supported by
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That she posed this question, or one like it, reasonably may be implied from
what she wrote in her ruling.
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substantial evidence. 42 U.S.C. § 405(g). Here, the ALJ’s written opinion
indicates she engaged in a careful review of the evidence. She provided clear
and convincing reasons for discounting both Ms. Moore’s description of her
symptoms and the pessimistic assessment of Dr. Arnold. Since the ALJ’s analysis
and conclusions are supported by substantial evidence, the Court will affirm her
ruling.
IT IS HEREBY ORDERED:
1. The defendant’s motion for summary judgment (ECF No. 18) is granted
and the plaintiff’s (ECF No. 13) is denied.
3. The ALJ’s decision of May 6, 2015 (TR 411) is affirmed.
IT IS SO ORDERED. The District Court Executive is directed to file this
Order, enter judgment accordingly, furnish copies to counsel, and close the case.
DATED this 31st day of May, 2017.
s/Fred Van Sickle
FRED VAN SICKLE
Senior United States District Judge
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