Michlig v. Astrue

Filing 21

ORDER ADOPTS IN PART AND DECLINES TO ADOPT IN PART REPORT AND RECOMMENDATIONS; Case is REVERSED and REMANDED for further proceedings by Judge Thomas S. Zilly. (TF)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

DAVID D. MICHLIG, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. Having reviewed the Report and Recommendation ("R&R") of the Honorable Brian A. Tsuchida, United States Magistrate Judge, docket no. 18, defendant's objections, docket no. 19, plaintiff's response to defendant's objections, docket no. 20, and the balance of the record, the Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the R&R, as set forth below: (1) The Court DECLINES TO ADOPT the R&R's conclusion that the No. C09-1496Z ORDER

Administrative Law Judge's ("ALJ") decision should be reversed and the matter remanded for further proceedings to reevaluate Dr. Spencer Havens' opinions about the plaintiff's back pain in connection with the plaintiff's application for Title XVI benefits. R&R at 3-5, 10. The R&R recommends that the matter be reversed and remanded because the ALJ did not properly consider Dr. Havens' opinion that plaintiff suffers from debilitating pain and back weakness and is limited to sedentary work. R&R at 5. However, there is no evidence in the

ORDER -1-

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record that Dr. Havens stated any opinions about plaintiff's work limitations or the severity of his pain. Moreover, although the plaintiff testified about the severity of his pain, the ALJ found his testimony not credible. If a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce some degree of pain, an ALJ can still reject the claimant's testimony about the severity of his pain as not credible if the ALJ offers specific, clear and convincing reasons for doing so. See Tommasetti v. Astrue, 553 F.3d 1035, 1039 (9th Cir. 2008). The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation; or (2) inadequately explained failure to seek treatment or to follow a proscribed course of treatment. See id. The ALJ conceded that plaintiff's medical impairments could reasonably be expected to produce the pain he described to Dr. Havens. Tr. at 21. However, the ALJ found that the plaintiff was not credible, and offered specific, clear and convincing reasons for rejecting his complaints about the severity of his pain. Plaintiff was repeatedly dishonest about his alcohol use, made prior inconsistent statements about his symptoms, failed to explain his failure to seek treatment and attend scheduled appointments, and did not follow proscribed treatments. Id. at 23. Dr. Havens' objective findings also did not support plaintiff's subjective complaints about pain. See Tr. 441. Because the ALJ properly considered plaintiff's complaints about pain, and Dr. Havens' report in reaching a conclusion about plaintiff's Residual Function Capacity, the ALJ's findings regarding plaintiff's pain are AFFIRMED. (2) The Court ADOPTS the remainder of the R&R's recommendations. The case

is REVERSED and REMANDED for further proceedings as to plaintiff's application for Title XVI benefits only. The Court concludes that on remand, the ALJ should (1) reevaluate Dr. Schimmel's opinions regarding plaintiff's mental impairments; (2) evaluate all of Dr. Kim's opinions including his 2008 DSHS evaluation; (3) further develop the medical evidence in the record as deemed necessary; and (4) reassess steps four and five of the
ORDER -2-

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sequential evaluation process as necessary and with the assistance of a vocational expert if deemed appropriate. (3) The Clerk is directed to send copies of this order to all counsel of record, and to

the Honorable Brian A. Tsuchida. IT IS SO ORDERED. DATED this 30th day of June, 2010.

A
Thomas S. Zilly United States District Judge

ORDER -3-