Johnson v. Colvin

Filing 12

ORDER affirming the Commissioner's final decision and dismissing the case with prejudice, signed by U.S. District Judge John C Coughenour. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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HARMONY L. JOHNSON,
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Case No. C16-790-JCC

Plaintiff,
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ORDER AFFIRMING THE
COMMISSIONER’S FINAL
DECISION AND DISMISSING THE
CASE WITH PREJUDICE

v.
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NANCY A. BERRYHILL, Acting
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Defendant.
Harmony L. Johnson seeks review of the denial of her application for Supplemental

14 Security Income. Ms. Johnson contends the ALJ erred in evaluating the medical opinions of
15 treating doctor Richard Winslow, M.D., and examining doctor David Widlan, Ph.D. Dkt. 9 at 1.
16 As relief, Ms. Johnson requests that this case be reversed and remanded for payment of benefits.
17 Dkt. 9 at 11. As discussed below, the Court AFFIRMS the Commissioner’s final decision and
18 DISMISSES the case with prejudice.
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BACKGROUND
In March 2013, Ms. Johnson applied for benefits, alleging disability as of January 1,

21 2010. Tr. 10, 172-175. Ms. Johnson’s applications were denied initially and on reconsideration.
22 Tr. 10, 103-106. After the ALJ conducted a hearing on December 18, 2013, the ALJ issued a
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ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 decision finding Ms. Johnson not disabled. Tr. 10-28.
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THE ALJ’S DECISION

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Utilizing the five-step disability evaluation process, 1 the ALJ found:

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Step one: Ms. Johnson has not engaged in substantial gainful activity since March 22,
2013, the application date.

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Step two: Ms. Johnson has the following severe impairments: obesity status post
bariatric surgery, panic disorder with agoraphobia, depressive disorder not otherwise
specified, episodic alcohol abuse, obstructive sleep apnea.

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Step three: These impairments do not meet or equal the requirements of a listed
impairment. 2

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Residual Functional Capacity: Ms. Johnson can perform less than the full range of
medium work subject to the following limitations: she can lift and/or carry twenty-five
pounds frequently and fifty pounds occasionally. She is able to stand and/or walk for six
hours in an eight-hour workday with normal breaks. She is able to sit for about six hours
in an eight-hour workday with normal breaks. She is able to perform work that never
requires the climbing of ladders, ropes, or scaffolds. She is able to perform work that is
limited to occasional climbing of ramps and stairs. She is able to perform work that is
limited to frequently balancing, stooping, kneeling, crouching, and crawling. She is able
to perform work that is limited to occasional exposure to temperature extremes and to
pulmonary irritants such as dusts, fumes, odors, gases, and poor ventilation. She is able
to perform work that avoids exposure to hazardous conditions such as proximity to
unprotected heights and moving machinery. She is able to perform work that is limited to
tasks that can be learned in thirty to ninety days. She is able to perform work that is
limited to rare, as defined as less than ten percent of the workday, interaction with the
public. She is able to perform work that is limited to superficial or casual interaction
with co-workers, but would not do well as a member of highly interactive or
interdependent work group.

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Step four: Ms. Johnson can perform past relevant work as a file clerk.

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Step five: Alternatively, as there are jobs that exist in significant numbers in the national
economy that Ms. Johnson can perform, she is not disabled.

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Tr. 10-28. The Appeals Council denied Ms. Johnson’s request for review making the ALJ’s
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20 C.F.R. §§ 404.1520, 416.920.
20 C.F.R. Part 404, Subpart P. Appendix 1.
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 decision the Commissioner’s final decision. Tr. 1-5. 3
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DISCUSSION

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The Court may reverse an ALJ’s decision only if it is not supported by substantial

4 evidence or if the ALJ applied the wrong legal standard. See Molina v. Astrue, 674 F.3d 1104,
5 1110 (9th Cir. 2012). Even then, the Court will reverse the ALJ’s decision only if the claimant
6 demonstrates that the ALJ’s error was harmful. Id.
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Medical Evidence
Ms. Johnson contends the ALJ erroneously assessed the opinions of treating doctor

9 Richard Winslow M.D., and examining doctor, David Widlan Ph.D. The ALJ must provide
10 “clear and convincing reasons” to reject the uncontradicted opinion of a treating or examining
11 doctor. Lester v. Chater, 81 F.3d 821, 830, 831 (9th Cir. 1996). When contradicted, a treating or
12 examining doctor’s opinion may not be rejected without “specific and legitimate reasons” that
13 are supported by substantial evidence in the record. Id.
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Ms. Johnson contends the ALJ erred in evaluating the opinion of Dr. Widlan. Dkt. 9 at 9-

David Widlan, Ph.D.

16 11. The Court disagrees.
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Dr. Widlan evaluated Ms. Johnson in July 2013. In his medical source statement Dr.

18 Widlan indicated that:
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[Ms. Johnson] suffers from symptoms of depression and Panic Disorder.
The Mental Status Examination indicated adequate memory and
concentration with moderate deficits in social reasoning. She was able to
complete MSE tasks. As such she is cognitively able to accept
instruction from a supervisor. With regard to social reasoning she
responded poorly to a basic social scenario. She likely would have
difficulty responding to moderately novel social stressors. While she

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The rest of the procedural history is not relevant to the outcome of the case and is thus omitted.
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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does not suffer from severe social distortions such as paranoia, she has
adaptive deficits associated with depression and exacerbated by anxiety,
and these would likely cause issues with reliability as well as consistency
in performance.
Tr. 543. The ALJ rejected Dr. Widlan’s opinion that Ms. Johnson “has adaptive deficits due to

her psychological symptoms that would likely cause issues with reliability and consistency.” Tr.
539-543. Specifically, the ALJ rejected this opinion as inconsistent with the evidence of record,
including Dr. Widlan’s own examination findings, and as heavily reliant on Ms. Johnson’s
subjective complaints which the ALJ rejected as not fully credible. Tr. 24.
An ALJ may discount a doctor’s opinions where the doctor’s opinions are not supported
by his own medical records or his own clinical findings. See e.g., Tommasetti v. Astrue, 533
F.3d 1035, 1041 (9th Cir. 2008); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir.1996). An
ALJ also need not accept a medical opinion that is brief, conclusory and inadequately supported
by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Moreover, if a
provider’s opinions are based “to a large extent” on an applicant’s self-reports and not on clinical
evidence, and the ALJ finds the applicant not credible, the ALJ may discount the provider’s
opinion. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). This situation is
distinguishable from one in which the doctor provides his own observations in support of his
assessments and opinions. See Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200
(9th Cir. 2008) (“an ALJ does not provide clear and convincing reasons for rejecting an
examining physician’s opinion by questioning the credibility of the patient’s complaints where
the doctor does not discredit those complaints and supports his ultimate opinion with his own
observations”).
Here, Dr. Widlan offers no explanation of the basis for his conclusory opinion that Ms.

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ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 Johnson has adaptive deficits that would likely cause issues with reliability and consistency.
2 Although Dr. Widlan did note that Ms. Johnson presented as lethargic and apathetic with a
3 somewhat flattened affect, this observation, without more, does not equate to a finding that these
4 symptoms cause adaptive deficits that would likely cause issues with reliability and consistency.
5 Tr. 540. Nor do Dr. Widlan’s clinical findings on the mental status examination (MSE) appear
6 to support this opinion. As the ALJ notes, Dr. Widlan did not find any problems with Ms.
7 Johnson “persisting throughout her examination and found that she had no difficulty following
8 the clinical interview with normal comments and speech quality[.]” Tr. 24, 540-541. Nor did
9 Dr. Widlan note any significant difficulties on the sections of the MSE addressing concentration,
10 persistence or pace or adaptive behavior. Tr. 540. Rather, Dr. Widlan noted that Ms. Johnson
11 exhibited adequate concentration during the MSE and, although she likely takes somewhat
12 longer than average to complete ADLs due to a lack of motivation, she was able to complete a
13 simple three-step task and indicated she could concentrate to watch a movie. Tr. 542.
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With respect to adaptive behaviors specifically, Dr. Widlan also did not note any

15 significant difficulties but simply indicated that Ms. Johnson reported she was able to: bathe and
16 brush her teeth on a daily basis, perform household chores such as vacuuming, washing dishes,
17 and laundry, cook meals such as Tuna Helper, spaghetti, and tacos, grocery shop with her
18 mother, and drive. Id. Based on this record, the Court cannot say it was unreasonable for the
19 ALJ to discount Dr. Widlan’s conclusory opinion regarding Ms. Johnson’s adaptive deficits as
20 inconsistent or unsupported by his own clinical findings. See Tommasetti, 533 F.3d at 1038
21 (When the evidence is susceptible to more than one rational interpretation, the court must affirm
22 the ALJ’s findings if they are supported by inferences reasonably drawn from the record.).
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Moreover, in the Discussion/Prognosis section of his report, Dr. Widlan largely recites
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 Ms. Johnson’s self-reports. Tr. 542. Specifically, the ALJ notes that Ms. Johnson “reported a
2 long history of depression with a serious suicide attempt in January 2012” and “reported she has
3 suffered from panic attacks for the last year ... [which] occur approximately once every three
4 days and last a few hours.” Tr. 542. The ALJ also notes that, although Ms. Johnson described
5 some memory issues, she performed reasonably well on MSE tasks. He also notes that Ms.
6 Johnson reported a minimal history of employment. Tr. 540, 542. In light of the lack of clinical
7 findings supporting Dr. Widlan’s opinion, and the ALJ’s recitation of Ms. Johnson’s subjective
8 complaints in the discussion section, the ALJ also reasonably concluded that Dr. Widlan relied
9 primarily on Ms. Johnson’s self-reports as the basis for his opinion regarding her adaptive
10 deficits. This was also a valid reason to reject Dr. Widlan’s opinion.
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Ms. Johnson appears to argue that the ALJ also improperly rejected the limitation that she

12 would likely have difficulty responding to moderately novel social stressors. Dkt. 9 at 9. The
13 ALJ accepted Dr. Widlan’s remaining opinions, including those pertaining to her social
14 functioning, and reasonably accounted for them into the RFC. Specifically, the ALJ limited Ms.
15 Johnson to “rare, as defined as less than ten percent of the workday, interaction with the public”,
16 “superficial or casual interaction with co-workers” and indicated that she should not be “a
17 member of a highly interactive or interdependent work group.” Tr. 16. Ms. Johnson makes no
18 specific argument as to why these limitations do not adequately account for her difficulty
19 responding to moderately novel social stressors, and the Court cannot say the ALJ’s
20 interpretation of the opinion was unreasonable. See Tommasetti, 533 F.3d at 1038; see Avila v.
21 Astrue, No. C07-1331, 2008 WL 4104300 (E.D. Cal. Sept. 2, 2008) at * 2 (unpublished opinion)
22 (citing Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923-24 (9th Cir.
23 1996) (party who presents no explanation in support of claim of error waives issue); see also
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 Shinseki v. Sanders, 556 U.S. 396, 409 (2009)( “[T]he burden of showing that an error is harmful
2 normally falls upon the party attacking the agency’s determination.”).
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Accordingly, the ALJ did not err in discounting Dr. Widlan’s opinion.

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Ms. Johnson contends the ALJ erred in evaluating the opinions of Dr. Winslow. Dkt. 9 at

Richard Winslow, M.D.

6 2-9. The Court disagrees.
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The record shows that Ms. Johnson established care with Dr. Winslow in January 2014.

8 Tr. 21, 653. At that time Dr. Winslow conducted a MSE in which he noted that although Ms.
9 Johnson reported mild to moderate anxiety and long-term depression, her affect was “quite jolly
10 without evidence in session of either anxiety or depression.” Id. Dr. Winslow also noted that,
11 with respect to her suicide attempt two years earlier, Ms. Johnson reported that she probably
12 would not have overdosed if she were not drunk at the time. Tr. 654. Dr. Winslow noted that,
13 despite Ms. Johnson’s report of substantially worsened anxiety disorder with panic beginning in
14 2012, “by her own account [she] continues [to be] quite functional as a homemaker now” and
15 that she was looking forward to someday reactivating her commercial driver’s license. Id. In
16 March 2014, on examination Dr. Winslow observed Ms. Johnson’s appearance to be adequate,
17 her speech generally straightforward, her mood and affect only mildly anxious and she was
18 warm and pleasant despite reporting significant panic attacks. Tr. 646. At that session, Ms.
19 Johnson requested a letter indicating “she cannot work because of panic” but Dr. Winslow
20 declined to provide such a statement. Tr. 646-647. Dr. Winslow emphasized that Ms. Johnson
21 had only been treating at the clinic for a relatively short period of time and encouraged her to
22 focus on becoming functional with treatment instead of seeing treatment as support for a long23 term mental disability. Tr. 21, 647.
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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In April 2014, on examination, Dr. Winslow observed Ms. Johnson’s mood and affect to

2 be moderately anxious and placed her on Clonazapam. Tr. 641. In May 2014, Dr. Winslow
3 noted Ms. Johnson was adequately dressed and groomed, her speech was straightforward, her
4 mood and affect were only mildly anxious and although she continued to report panic attacks
5 they were of reduced intensity. Tr. 633. Finally, in July 2014, Dr. Winslow noted that Ms.
6 Johnson reported a 30% improvement in her anxiety and panic attacks, her mood and affect were
7 mildly anxious and her speech mildly breathless but fully to the point. Tr. 617. However, Dr.
8 Winslow indicated that:
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I advised patient that at this time, until more significant recovery occurs,
she should not return to work or even attempt to do so. At some point in
the future, perhaps one to two years from now, her anxiety may be well
enough controlled that she could be calm enough and concentrate well
enough to tentatively try a part-time job in a competitive setting.

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Tr. 618.
As with Dr. Widlan, the ALJ discounted Dr. Winslow’s opinion as inconsistent with the
medical record, including his own treatment notes, and as based heavily on Ms. Johnson’s
subjective complaints. Tr. 24. These were valid reasons for rejecting Dr. Winslow’s opinions
and substantial evidence supports the ALJ’s findings. The ALJ reasonably found Dr. Winslow’s
July 2014 opinion unsupported by his own clinical findings. See e.g., Tommasetti, 533 F.3d at
1041; Nguyen, 100 F.3d at 1464. Apart from observing mild anxiety, as detailed above, Dr.
Winslow’s treatment notes generally reflect normal clinical observations and findings. As such,
it was not unreasonable for the ALJ to find Dr. Winslow’s March 2014 treatment note, wherein
he declined to write a letter indicating Ms. Johnson was unable to work and encouraged her to
focus on becoming functional with treatment, inconsistent with his opinion only four months
later that Ms. Johnson should not return to work and might only be able to attempt to return to
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 part-time work in one or two years. Tr. 618, 646-647. As described above, apart from mild
2 anxiety, the treatment notes reflect largely normal objective findings and, if anything, tend to
3 indicate that Ms. Johnson’s symptoms were improving with treatment. Tr. 617. Thus, based on
4 this record, the Court cannot say it was unreasonable for the ALJ to discount Dr. Winslow’s
5 opinion as inconsistent or unsupported by his own clinical findings. See Tommasetti, 533 F.3d at
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Ms. Johnson points out that Dr. Winslow noted in his initial evaluation that he found her

8 reports of significant anxiety and descriptions of panic attacks very credible and that they were
9 “very impairing.” Dkt. 9 at 8. However, there is no indication Dr. Winslow ever observed Ms.
10 Johnson experience a panic attack or even significant anxiety. Rather, apart from noting mild
11 anxiety, Dr. Winslow’s examination findings and personal observations of Ms. Johnson are
12 largely normal. It is true that “an ALJ does not provide clear and convincing reasons for
13 rejecting an examining physician’s opinion by questioning the credibility of the patient’s
14 complaints where the doctor does not discredit those complaints and supports his ultimate
15 opinion with his own observations.” See Ryan v.Comm'r of Soc. Sec. Admin., 528 F.3d 1194,
16 1199-1200 (9th Cir. 2008). However, here, although Dr. Winslow indicates that he finds Ms.
17 Johnson’s subjective complaints credible, he fails to support his ultimate opinion with his own
18 observations. Thus, the Court cannot say it was unreasonable for the ALJ to also conclude that
19 Dr. Winslow’s opinion is based primarily on Ms. Johnson’s self-reports regarding her significant
20 panic attack symptoms, which the ALJ discounted as not fully credible. As such, the ALJ
21 reasonably discounted Dr. Winslow’s opinion on this basis as well. See Ghanim v. Colvin, 763
22 F.3d 1154, 1162 (9th Cir. 2014) (If a provider’s opinions are based “to a large extent” on an
23 applicant’s self-reports and not on clinical evidence, and the ALJ finds the applicant not credible,
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 the ALJ may discount the provider’s opinion.).
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In sum, the ALJ also did not err in discounting Dr. Winslow’s opinion.

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CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this

5 case is DISMISSED with prejudice.
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DATED this 6th day of July, 2017.

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A

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JOHN C. COUGHENOUR
United States District Judge

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ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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