Green v. Colvin

Filing 23

ORDER by Judge John C Coughenour; The R&R is ADOPTED. (Dkt. No. 20 )(TF)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STEVEN M. GREEN,

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Plaintiff,
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CASE NO. C13-0749-JCC
ORDER

v.
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CAROLYN COLVIN,
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Defendant.
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The Court, after consideration of Plaintiff‟s Complaint (Dkt. No. 4), the Report and

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16 Recommendation (R&R) of the Honorable Mary Alice Theiler, United States Magistrate Judge
17 (Dkt. No. 20), Plaintiff‟s objections (Dkt. No. 21), and the balance of the record, finds oral
18 argument unnecessary and hereby ADOPTS the R&R for the reasons explained herein.
19 I.

BACKGROUND

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Plaintiff‟s application for disability insurance benefits (DIB) and supplemental security

21 income (SSI) was denied and Plaintiff sought this Court‟s review. Magistrate Judge Theiler
22 recommended affirming the decision of the ALJ. (Dkt. No. 20.) Plaintiff objected to the R&R‟s
23 conclusions (Dkt. No. 21), and the Commissioner responded (Dkt. No. 22.)
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Plaintiff makes three objections to the R&R. First, Plaintiff contends that the vocational

25 expert‟s testimony conflicted with the Dictionary of Occupational Titles (DOT). (Dkt. No. 21 at
26 3.) Second, Plaintiff objects to the Magistrate Judge‟s conclusion that the ALJ‟s residual

ORDER
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1 functional capacity assessment accounted for Dr. Robinson‟s opinions. (Dkt. No. 21 at 7.)
2 Finally, Plaintiff objects to the Magistrate Judge‟s conclusion that the ALJ‟s violation of the two3 stage process for assessing the effect of substance abuse was not harmful error. (Dkt. No. 21 at
4 10.)
5 II.

DISCUSSION

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A.

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The Court reviews de novo the sections of a magistrate judge‟s report or

Standard of Review and Waiver

8 recommendations to which a party objects. 28 U.S.C. § 636(b)(1). The Court will not overturn
9 the Commissioner‟s final decision if it is supported by substantial evidence. See 42 U.S.C.
10 §405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by
11 substantial evidence, shall be conclusive”). “Substantial evidence is such relevant evidence as a
12 reasonable mind might accept as adequate to support a conclusion.” Tommasetti v. Astrue, 533
13 F.3d 1035, 1038 (9th Cir. 2008) (quoting Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). It
14 need not be a preponderance of the evidence but must be more than a mere scintilla. See id.
15 (citing Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)).
Vocational Expert’s testimony

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B.

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Plaintiff contends that the vocational expert‟s testimony conflicted with the DOT. The

18 ALJ determined that Mr. Green “is capable of incidental contact with the public, so long as the
19 public is not part of the work process.” (Dkt. No. 21 at 3.) The ALJ also noted the sorts of jobs
20 that Plaintiff could not do, like telemarketing or cashier positions, in which “the general public is
21 frequently encountered as an essential element of the work process.” (Dkt. No. 21 at 3.) The
22 DOT occupation of hotel/motel housekeeper includes the activity: “Checks wraps and renders
23 personal assistance to patrons.” (Dkt. No. 21 at 4.) As Plaintiff argues: “because a DOT
24 hotel/motel housekeeper „renders personal assistance to patrons,‟ [citation omitted] that
25 occupation requires contact with the public as an essential part of the work process.” (Dkt. No.
26 21 at 4.)

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Plaintiff‟s argument implicates how to define “incidental” contact, what it means for an

2 activity to be part of a work process, and how to interpret the list of activities associated with a
3 job in the DOT. The Commissioner and the Magistrate Judge recognized that the DOT suggests
4 that its job listings are not rigidly defined lists of essential elements. See Dkt. No. 20 at 7 (job
5 description entails performing “any combination” of a number of duties without specifying any
6 as essential elements of the work process); Dkt. No. 22 at 2 (job listings “may not coincide in
7 every respect with the content of jobs as performed in particular establishments or at certain
8 localities” (internal quotation marks and citation omitted)).
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Further, Plaintiff cites no authority for his assertion that a job requiring rendering

10 personal assistance as one of many duties necessarily precludes someone who can have
11 “incidental contact” with the public. (Dkt. No. 21 at 3–4.) Magistrate Judge Theiler cites a
12 number of cases recognizing that “vocational experts routinely identify claimants with lesser
13 restrictions, such as limited, occasional, or superficial public contact, to be capable of performing
14 the work of a housekeeper/cleaner.” (Dkt. No. 20 at 7.) The courts accepting these findings
15 implicitly find that this testimony does not conflict with the DOT description. Plaintiff argues
16 that looking to these cases constitutes improper reliance on extra-record evidence. (Dkt. No. 21
17 at 6.) But Plaintiff is arguing that every listed element in the DOT constitutes an essential, non18 incidental part of the job‟s “work process,” an argument that these cases suggest is incorrect. The
19 Court agrees with the analysis in the R&R concluding that the vocational expert‟s testimony did
20 not conflict with the DOT.
Physician’s Opinions

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C.

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The Court also agrees with the Magistrate Judge that the Residual Functional Capacity

23 (RFC) assessment adequately captures and is consistent with the opinions of Dr. Robinson. (Dkt.
24 No. 20 at 12.) Green argues that the Magistrate Judge erred because the ALJ‟s assessment did
25 not mention coworkers so therefore did not adequately account for Dr. Robinson‟s statement that
26 Green could get along with a “familiar and small group of coworkers.” (Dkt. No. 21 at 7.) Green

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1 argues that it was insufficient that the ALJ referred to a “stable” work environment. (Dkt. No. 21
2 at 8.) Plaintiff also argues that the ALJ did not restrict Plaintiff to performing one task at a time,
3 which is a limitation that Dr. Robinson stated. (Dkt. No. 21 at 9.) This Court disagrees. Green‟s
4 argument amounts to a requirement that ALJs recite a physician‟s conclusions in a talismanic
5 fashion. But affirming the ALJ does not require hunting for magic words. See Chapo v. Astrue,
6 682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations for a direct
7 correspondence between an RFC finding and a specific medical opinion on the functional
8 capacity in question.”); Turner v. Comm’r of Social Sec., 613 F.3d 1217, 1223 (9th Cir. 2010)
9 (accepting limitations that were “entirely consistent” with physician‟s evaluation). The Court
10 agrees with the Magistrate Judge‟s reasoning that the RFC assessment adequately captured Dr.
11 Robinson‟s opinion despite not using the identical phrases. (Dkt. No. 20 at 12.)
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Plaintiff also argues that the Magistrate Judge made an error law by “relying” on Section

13 I rather than Section III of the RFC assessment form. (Dkt. No. 21 at 8.) This is a
14 misrepresentation. The Magistrate Judge included a citation to the checkbox portion of the form
15 merely as a “see also” citation and then specifically observed that “[t]he ALJ appropriately
16 utilize[d] the narrative portion of the form . . ., not the checkbox portion of that form.” (Dkt. No.
17 20 at 13 n.4.)
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D.

Substance Use

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A claimant is not entitled to disability benefits “if alcoholism or drug addiction would . . .

20 be a contributing factor material to the Commissioner‟s determination that the individual is
21 disabled.” 42 U.S.C. § 423(d)(2)(C). There is no dispute that the ALJ erred by violating the two22 stage method for evaluating substance use. This two-stage method entails first identifying
23 disability under the five-step procedure and then determine whether substance abuse was
24 material to disability. See Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001). The ALJ
25 failed to find Plaintiff disabled in the first stage. The only question is whether the error is
26 harmless.

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Plaintiff fails to grapple with the harmful-error analysis. For example, Plaintiff “in

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2 particular” notes the conclusion of Dr. Bargreen and states that the ALJ “rejected those opinions
3 using a second-stage analysis.” (Dkt. No. 21 at 11.) Yet Plaintiff mischaracterizes both the ALJ‟s
4 assessment and the Magistrate Judge‟s reasoning. Plaintiff states that “there was no rational basis
5 for the ALJ to have rejected Dr. Bargreen‟s July 2011 opinions as tainted by substance use.”
6 (Dkt. No. 21 at 11.) But the ALJ rejected that opinion both because it was inconsistent with other
7 treatment notes, and “[i]n addition,” was “at least partially based” on Plaintiff‟s inaccurate
8 reports of his substance use. (Dkt. No. 14-2 at 29.) Plaintiff addresses neither the ALJ‟s
9 recognition of inconsistent treatment notes nor Plaintiff‟s own inconsistent reports about his
10 substance use. (Dkt. No. 21 at 11.)
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As the Magistrate Judge recognized, Plaintiff has also failed to show how the violation of

12 the two-stage analysis was prejudicial with regards to any other medical opinions. (Dkt. No. 20
13 at 16.) The Court agrees with both the Commissioner and the Magistrate Judge that Plaintiff has
14 failed to engage with the harmless-error analysis, and therefore adopts the reasoning in the R&R.
15 III.

CONCLUSION

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For the foregoing reasons, the R&R is ADOPTED. (Dkt. No. 20.)

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DATED this 21st day of February.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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