Suwanchatree v. Berryhill

Filing 14

OORDER RE: SOCIAL SECURITY DISABILITY APPEAL by Hon. Mary Alice Theiler. (KMP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SUCHAYA SUWANCHATREE,
Plaintiff,

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v.

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CASE NO. C17-1762-MAT

NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for
Operations,

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

Defendant.

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Plaintiff Suchaya Suwanchatree proceeds through counsel in her appeal of a final decision

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of the Commissioner of the Social Security Administration (Commissioner). The Commissioner

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denied plaintiff’s application for Supplemental Security Income (SSI) after a hearing before an

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Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative

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record (AR), and all memoranda of record, this matter is AFFIRMED.

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FACTS AND PROCEDURAL HISTORY

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Plaintiff was born on XXXX, 1975.1 She graduated high school and attended college for

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two years, both while living in Thailand. (AR 37.) She has past relevant work as a cook. (AR

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23-24.)

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Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

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Plaintiff filed an SSI application in April 2014, alleging disability beginning March 24,
2014. (AR 141.) The application was denied at the initial level and on reconsideration.

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On April 19, 2016, ALJ Mary Gallagher Dilley held a hearing, taking testimony from

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plaintiff and a vocational expert (VE). (AR 30-59.) On August 1, 2016, the ALJ issued a decision

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finding plaintiff not disabled. (AR 13-25.)

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Plaintiff timely appealed. The Appeals Council denied plaintiff’s request for review on

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September 18, 2017 (AR 1), making the ALJ’s decision the final decision of the Commissioner.

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Plaintiff appealed this final decision of the Commissioner to this Court.
JURISDICTION

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The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION

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The Commissioner follows a five-step sequential evaluation process for determining

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whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

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be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not

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engaged in substantial gainful activity since April 1, 2014, the SSI application date. At step two,

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it must be determined whether a claimant suffers from a severe impairment. The ALJ found

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plaintiff’s lumbar degenerative disc disease, depression, and posttraumatic stress disorder (PTSD)

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severe. Step three asks whether a claimant’s impairments meet or equal a listed impairment. The

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ALJ found plaintiff’s impairments did not meet or equal the criteria of a listed impairment.

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If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess

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residual functional capacity (RFC) and determine at step four whether the claimant has

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demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform

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light work as defined in 20 C.F.R. § 416.967(b), with the following limitations: she can lift and/or

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carry twenty pounds occasionally and ten pounds frequently; she can stand and/or walk and can

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sit for about six hours in an eight-hour day, but must be able to alternate between sitting and

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standing briefly every hour; she cannot climb ladders, ropes, or scaffolds, and can occasionally

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stoop and crouch; she must avoid concentrated exposure to vibration; and she can perform simple,

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routine tasks and can have occasional and superficial contact with coworkers.

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assessment, the ALJ found plaintiff unable to perform her past relevant work.

With that

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If a claimant demonstrates an inability to perform past relevant work, or has no past

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relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant

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retains the capacity to make an adjustment to work that exists in significant levels in the national

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economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs,

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such as work as an assembler, basket filler, and egg sorter/handler.

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This Court’s review of the ALJ’s decision is limited to whether the decision is in

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accordance with the law and the findings supported by substantial evidence in the record as a

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whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d

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1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported

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by substantial evidence in the administrative record or is based on legal error.”) Substantial

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evidence means more than a scintilla, but less than a preponderance; it means such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v.

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Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of

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which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278

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F.3d 947, 954 (9th Cir. 2002).

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Plaintiff argues the ALJ erred in assessing medical opinions. She also asserts error in the

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RFC assessment and conclusion at step five. Plaintiff requests remand for an award of benefits or,

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in the alternative, for further administrative proceedings. The Commissioner argues the ALJ’s

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decision has the support of substantial evidence and should be affirmed.
Medical Opinion Evidence

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Plaintiff avers error in the ALJ’s consideration of medical opinions from examining

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psychologist Dr. Don Schimmel, treating psychiatrist Dr. John Sindorf, and mental health

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counselor Dawn Finney. In general, more weight should be given to the opinion of a treating

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physician than to a non-treating physician, and more weight to the opinion of an examining

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physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).

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Because the record in this case contained contradictory physician opinions, the ALJ was required

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to give “‘specific and legitimate reasons’ supported by substantial evidence in the record” for

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rejecting the opinions of Drs. Schimmel and Sindorf. Id. at 830-31 (quoting Murray v. Heckler,

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722 F.2d 499, 502 (9th Cir. 1983)). The opinions of Finney were entitled to less weight, Gomez

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v. Chater, 74 F.3d 967, 970 (9th Cir. 1996), and could be rejected with germane reasons, Molina

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v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

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A.

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Dr. Don Schimmel
Dr. Schimmel conducted a psychological evaluation of plaintiff on March 18, 2014. (AR

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275-82.)

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instructions, performing activities in a schedule, maintaining attendance and punctuality, learning

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new tasks, making simple work-related decisions, asking simple questions or requesting

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assistance, communicating, performing effectively, and maintaining appropriate behavior in a

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work setting, and setting realistic goals and planning independently. (AR 277.) He assessed severe

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impairments in relation to detailed instructions, performing routine tasks without supervision,

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adapting to changes in a work setting, and completing a normal work day and week without

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He assessed plaintiff as markedly impaired in relation to very short and simple

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interruptions. Dr. Schimmel indicated the duration of impairment would last nine to twelve

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months, and recommended therapy and medication evaluation. (AR 278.) He further opined:

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“While this individual is apparently able to participate in part time volunteer work, my impression

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is that she is clearly unable to manage a full time job at this time. However, with assistance and

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mental health treatment, she should be eventually able to return to work.” (Id.)

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The ALJ gave Dr. Schimmel’s opinions little weight. (AR 22.) His suggestion plaintiff

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was not capable of managing a full time job is an issue reserved to the Commissioner. He did not

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provide any basis or support for his opinions of marked and severe impairments in almost all job-

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related functions.

The opinion was also inconsistent with plaintiff’s minimal psychiatric

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symptoms, her presentation and performance on mental status examinations (MSE) conducted by

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Dr. Sindorf, and her activities. Contrary to plaintiff’s contentions, this reasoning has the support

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of substantial evidence.

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The question whether a claimant is disabled or unable to work is an issue reserved to the

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Commissioner, and an opinion on such an issue is not entitled to any specific significance. 20

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C.F.R. § 416.927(d). The ALJ here accurately described Dr. Schimmel’s statement regarding an

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inability to manage a full time job as infringing on an issue reserved to the Commissioner.

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The more explanation provided in support of a medical opinion, the more weight that

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opinion will be given. § 416.927(c)(3); accord Holohan v. Massanari, 246 F.3d 1195, 1202 (9th

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Cir. 2001). See also Molina, 674 F.3d at 1111 (“[T]he ALJ may ‘permissibly reject[ ] . . . check-

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off reports that [do] not contain any explanation of the bases of their conclusions.’”) (quoting

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Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)). The ALJ here reasonably considered that Dr.

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Schimmel provided no explanation for the numerous marked and severe impairments assessed.

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While Dr. Schimmel conducted a clinical interview and MSE, he did not point to either as the basis

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for the conclusions reached. Nor did he otherwise provide a supportive narrative discussion

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beyond conveying his impression of plaintiff’s inability, at that time, to manage a full time job.

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Plaintiff objects to the ALJ faulting Dr. Schimmel’s opinions on this basis, but not the contrary

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opinions of non-examining State agency consultants Dr. Beth Fitterer and Dr. John Gilbert. Yet,

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Drs. Fitterer and Gilbert did provide narrative explanations. (AR 68-69, 80-81 (finding no

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understanding and memory limitations based on intact cognition, some higher education learning,

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and fact previously owed a business; finding no social limitations because: “Pleasant &

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cooperative although with a depressed mood/affect. Regardless, able to volunteer PT at a doctor’s

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office at the front desk.”)) They also explained why they found plaintiff more limited than assessed

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by Dr. Schimmel. (AR 70, 82.) The ALJ, in any event, only gave the opinions of the non-

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examining physicians some weight and found plaintiff more significantly limited than they

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assessed. (AR 22.)

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An ALJ may also reject a physician’s opinions due to inconsistencies between the opinions

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and the medical record. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The ALJ here

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reasonably found inconsistency between the opinions of Dr. Schimmel and the medical evidence.

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The ALJ provided a detailed discussion of such evidence, describing regular notations in treatment

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notes of normal psychiatric observations; presentation as pleasant and cooperative even when

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depressed; descriptions of good grooming, contrary to alleged difficulty of personal care; and Dr.

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Sindorf’s regular description of plaintiff as neatly dressed and groomed, with normal speech,

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pleasant and appropriate, cooperative, and with good eye contact, in spite of occasionally

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depressed affect and tearfulness. (AR 21 (citing AR 314, 384, 387, 390, 392, 394, 397, 402).) She

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described inconsistencies between plaintiff’s allegations and MSE performance, including Dr.

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Schimmel’s MSE, other MSEs in which plaintiff demonstrated no difficulties with memory and

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sometimes demonstrated no abnormalities whatsoever, and Dr. Sindorf’s routine indication

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plaintiff’s “memory appeared to be intact and that attention and concentration were ‘not subjects

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of complaint or treatment.’” (Id. (citing AR 278-79, 320, 324, 333, 337, 365-71, 375, 377, 384,

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387, 390, 392, 394, 397).) She described the record as indicating plaintiff’s most significant

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symptoms occurred in the context of a difficult divorce and improved after the divorce, when she

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was able to begin a new relationship and spend more time with her children. (AR 19 (citing AR

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361-77, 384-406).) She reasonably construed the evidence to show plaintiff’s heightened or

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exacerbated symptoms as resulting from these situational stressors, inconsistent with her

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allegations of severe anxiety symptoms throughout the relevant period, and not indicative of

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baseline functioning.

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Plaintiff takes issue with the ALJ’s failure to identify specific inconsistencies in the portion

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of the decision addressing Dr. Schimmel’s opinions. However, the Court considers the ALJ’s

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decision as a whole, not solely the portion of the decision addressing a physician’s opinion, the

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weight assigned the opinion, and the reasons for the weight assignment. See Rice v. Barnhart, 384

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F.3d 363, 370 n.5 (7th Cir. 2004) (court properly reads the ALJ’s decision as a whole and the

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repeating of “substantially similar factual analyses” at multiple steps in the decision would be a

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“needless formality”). Moreover, in conducting its review, the Court is able to draw “specific and

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legitimate inferences from the ALJ’s opinion.” Magallanes, 881 F.2d at 755. Indeed, even when

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explained with “less than ideal clarity,” the decision must be upheld if the path of reasoning “may

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reasonably be discerned.” Molina, 674 F.3d at 1121 (internal quotation marks and quoted sources

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omitted). In this case, the ALJ’s identification of inconsistencies is clearly based on the prior

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detailed and thorough discussion of the record.

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Plaintiff otherwise offers an alternative interpretation of the evidence, but fails to

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demonstrate the ALJ’s interpretation was not at least equally rational. “Where the evidence is

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susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.”

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Morgan v. Commissioner of the SSA, 169 F.3d 595, 599 (9th Cir. 1999).

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Finally, an ALJ may reject the opinions of a physician based on inconsistency with a

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claimant’s level of activity. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Plaintiff

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shared custody of her three children with her ex-husband and provided the children care, including

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preparing mails and driving to pick them up and drop them off, only sometimes with the assistance

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of her boyfriend. (AR 19-20.) The ALJ found the ability to provide this care suggested the ability

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to handle at least routine stressors and responsibilities, and to make simple judgments and

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decisions. Plaintiff attended temple twice a month, spent time interacting with others, and told

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providers she attended her children’s sporting events on a regular basis and that the time spent

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with her children played a significant role in decreasing her anxiety and depression, as her role as

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a mother was important. (Id. (citing AR 201, 361, 365-66).) She also traveled to Thailand during

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the relevant period and denied experiencing any mental health symptoms while there. (Id. (citing

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AR 362).) “Such travel requires navigating airports and security lines, and a significant amount

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of exposure to the public.” (Id.) The ALJ found the ability to drive and engage in other activities

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required a level of attention, decision making, and ability to react quickly to unexpected obstacles

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and hazards inconsistent with severe deficits in focus and concentration.

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Again, while plaintiff takes a contrary view of the significance of the activities identified,

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the ALJ rationally interpreted the evidence as inconsistent with the marked and severe limitations

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assessed by Dr. Schimmel. The ALJ, as such, properly provided several specific and legitimate

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reasons for assigning little weight to the opinions of Dr. Schimmel.

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B.

Dr. John Sindorf

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In a letter dated February 15, 2016, treating psychiatrist Dr. Sindorf stated plaintiff’s major

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depressive disorder, PTSD, and insomnia were disabling and prevented her from working at that

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time. (AR 360.) He added: “Obviously, this might change in the future, but the future is not here

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yet, and in any case we do not know what the future will bring.” (Id.) In an April 2016

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questionnaire, Dr. Sindorf found mild limitations in daily activities and social relationships, and

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marked limitations in concentration, persistence, or pace and in extended episodes of

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decompensation. (AR 408.) Plaintiff had a mental disorder of at least two years duration causing

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more than minimal limitation in relation to basic work activities; repeated extended episodes of

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decompensation; a residual disease process resulting in such marginal adjustment that even a

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minimal increase in mental demands or change in environment would cause decompensation; and

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one or more years’ inability to function outside a highly supportive living arrangement and the

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need to continue such an arrangement. (AR 408-09.) In a September 2016 form, Dr. Sindorf

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assessed, inter alia, marked-to-severe limitations in relation to detailed instructions and marked

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limitations in relation to short and simple instructions or tasks, working in coordination with or

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proximity to others, accepting instructions and responding appropriately to supervisor criticism

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and unexpected changes in setting and routine, and traveling in unfamiliar settings and using public

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transportation. (AR 410-11.) He indicated there would be effects from various workplace

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stressors, including in a routine, repetitive, simple, entry-level job. (AR 411.)

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The ALJ gave little weight to Dr. Sindorf’s opinions. (AR 22.) The suggestions of

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plaintiff’s inability to work addressed an issue reserved to the Commissioner. His opinions were

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inconsistent with the medical record. For example, while he opined plaintiff experiences three

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episodes of decompensation a year, lasting two weeks at a time, the medical record did not

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demonstrate any such episodes. Dr. Sindorf’s opinions were also inconsistent with his own

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treatment records. For example, while opining marked difficulty with concentration, persistence,

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or pace, Dr. Sindorf routinely documented that attention and concentration were not subjects of

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complaint. In addition, Dr. Sindorf’s April 2016 opinion was inconsistent with treatment notes

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from the previous month observing plaintiff had experienced a “‘remarkable turnaround’ and was

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feeling much better.” (Id. (citing AR 384).) The ALJ found the opinions of Dr. Sindorf further

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inconsistent with plaintiff’s minimal psychiatric symptoms, MSEs, and activities.

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The ALJ’s conclusions regarding opinions on an issue reserved to the Commissioner,

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inconsistency with the medical evidence, and inconsistency with plaintiff’s activities were

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appropriate and reasonable for the same reasons discussed in relation to the opinions of Dr.

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Schimmel. See supra at 5-9. Plaintiff posits Dr. Sindorf was best positioned to opine as to

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decompensations and that he need not have personally witnessed or documented such episodes.

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However, she does not point to any evidence in the record supportive of the opinion the episodes

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had occurred, either at the frequency opined by Dr. Sindorf or ever.

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The ALJ also reasonably interpreted the record as showing inconsistency between Dr.

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Sindorf’s opinions and his own treatment notes. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th

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Cir. 2005) (rejecting physician’s opinion due to discrepancy or contradiction between opinion and

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the physician’s own notes or observations is “a permissible determination within the ALJ’s

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province.”) Plaintiff construes the records from Dr. Sindorf as simply reflecting issues of

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concentration, persistence, or pace were not Dr. Sindorf’s or plaintiff’s focus. However, the ALJ’s

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interpretation of inconsistency between the identification of marked limitations in this area and the

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content of Dr. Sindorf’s treatment records was at least equally rational and is appropriately upheld.

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Morgan, 169 F.3d at 599. See also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098

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(9th Cir. 2014) (“[W]e leave it to the ALJ to determine credibility, resolve conflicts in the

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testimony, and resolve ambiguities in the record.”) The ALJ also rationally interpreted the medical

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record, including Dr. Sindorf’s own treatment notes, as inconsistent with the degree of impairment

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he opined, rather than showing no more than an occasional fluctuation of symptoms as suggested

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by plaintiff. Plaintiff, for all of these reasons, fails to undermine the specific and legitimate reasons

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provided by the ALJ in relation to Dr. Sindorf.

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C.

Dawn Finney, LICSW

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Plaintiff’s therapist, Dawn Finney, provided opinions in April 2016. In a letter, Finney

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stated plaintiff’s depressive symptoms impaired her ability to function adequately “or even close

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to her baseline functioning.” (AR 378.) These “disabling symptoms” would likely interfere with

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plaintiff’s ability to maintain regular attendance, even on a part time basis, as well as her capacity

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to sustain concentration and pace for two consecutive hours. (Id.) Her symptoms occurred daily

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and included diminished ability to concentrate and make daily decisions, fatigue, significantly

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diminished interest in almost all activities, sleep difficulty, and lack of motivation and task

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initiation. On forms attached to the letter, and in addition to various moderate impairments, Finney

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assessed marked impairments in relation to detailed tasks and instructions, attention and

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concentration, sustaining ordinary routine without special supervision, completing a normal work

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day and week, performing at a consistent pace, responding appropriately to unexpected changes in

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setting and routine, setting realistic goals and planning independently, and traveling in unfamiliar

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settings and using public transportation. (AR 379, 381 (also identifying impact with a variety of

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work-related stressors).) She also opined plaintiff would have marked difficulties maintaining

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concentration, persistence, or pace. (AR 382.) Finney elsewhere identified symptoms of poor

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memory, sleep disturbance, difficulty thinking or concentrating, social withdrawal or isolation,

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and decreased energy. (AR 380.) These symptoms appeared to be a significant change from

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plaintiff’s previous level of functioning for several years prior.

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The ALJ assigned Finney’s opinions little weight. (AR 23.) The ALJ noted the absence

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of any basis or support for the suggestion plaintiff could not work due to inability to concentrate

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other than a description of plaintiff’s subjective complaints. “As an example, [Finney] specifically

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indicates the claimant’s symptoms appear to have worsened over several years, while also

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indicating she had been treating the claimant for one year.” (Id. (citing AR 380).) The ALJ pointed

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to her earlier finding that plaintiff’s subjective complaints were inconsistent with the medical

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evidence of record. The ALJ also found Finney’s opinions inconsistent with plaintiff’s minimal

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psychiatric symptoms, MSEs, and activities.
Plaintiff does not demonstrate error.

An ALJ may reject a medical opinion upon

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concluding it relied to a large extent on a claimant’s properly discounted subjective reports.

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Tommasetti, 533 F.3d at 1041 (applying to a treating physician’s opinion). The ALJ’s reasoning

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was germane to Finney and finds support in both the absence of narrative explanations in either

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the letter or forms completed, as well as a specific example showing reliance on plaintiff’s

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reporting as to her condition in the years prior to Finney’s treatment. Cf. Ryan v. Comm’r of Soc.

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Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) (an ALJ does not provide clear and convincing

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reasons for rejecting the uncontradicted opinions of a physician “by questioning the credibility of

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the patient’s complaints where the doctor does not discredit those complaints and supports his

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ultimate opinion with his own observations.”) (emphasis added). The ALJ also reasonably found

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the opinions of Finney inconsistent with the medical evidence and evidence of plaintiff’s activities.

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See supra at 6-9. These additional germane reasons have the support of substantial evidence and

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will not be disturbed.

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Steps Four and Five

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Plaintiff contends the ALJ’s RFC is not supported by substantial evidence and that

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erroneously dismissed evidence demonstrates she is incapable of sustaining any work. However,

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these contentions essentially restate plaintiff’s assignments of error in the evaluation of the medical

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opinion evidence and, therefore, also fail to establish error at step four or step five. See Stubbs-

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Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).
CONCLUSION

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For the reasons set forth above, this matter is AFFIRMED.

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DATED this 29th day of August, 2018.

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A

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Mary Alice Theiler
United States Magistrate Judge

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