Christy v. Colvin

Filing 18

ORDER re 1 Complaint - ORDERED that this matter is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g) - by Judge J Richard Creatura. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ANGELA MARIE CHRISTY,

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Plaintiff,

CASE NO. 14-cv-05362 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, ECF No. 3; Consent to Proceed Before a United
States Magistrate Judge, ECF No. 4). This matter has been fully briefed (see ECF Nos.

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12, 16, 17).
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After considering and reviewing the record, the Court concludes that the ALJ
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provided clear and convincing reasons for failing to credit fully plaintiff’s allegations and
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 testimony, including her non-compliance with medical treatment, but her improvement
2 when compliant; lack of motivation to work; and inconsistent statements. The ALJ also
3 provided specific and legitimate rationale for his failure to credit fully all of the medical
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opinions, noting for example, that plaintiff’s objective test results indicated that plaintiff
was over-reporting unlikely symptoms, that one doctor strongly suspected malingering

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and another doctor opined that plaintiff’s profile was “definitely exaggerated.” Because
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the doctors relied on plaintiff’s unreliable self-reporting when providing their opinions,
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the ALJ properly declined to credit fully all of their opinions.
Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
BACKGROUND

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Plaintiff, ANGELA MARIE CHRISTY, was born in 1979 and was 28 years old on

13 the alleged date of disability onset of January 1, 2008 (see Tr. 123-25). However, because
14 plaintiff has applied only for supplemental security income, which is not payable prior to
15 the month following the month in which the application was filed and plaintiff filed her
16 application on January 29, 2009, the ALJ’s written decision includes findings and
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conclusions regarding plaintiff’s condition since January 29, 2009, although the ALJ
indicates that he considered the complete medical history (see Tr. 623, 625).
Plaintiff left school after the 8th grade (Tr. 27). Plaintiff has worked as a

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dishwasher, as a hostess in a restaurant, as a customer service/video, and on an assembly
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line (Tr. 213-17). At her first administrative hearing in December, 2010, plaintiff could
not remember the last time that she had held a job (see Tr. 50).

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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According to the ALJ, at the time of latest hearing on December 6, 2013, plaintiff

2 had at least the severe impairments of “degenerative joint disease in the knees;
3 gastroesophageal reflux disease; diabetes; fibromyalgia; obesity; carpal tunnel syndrome;
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depression; bipolar disorder; panic disorder without agoraphobia; cognitive disorder;
personality disorder; and drug abuse (20 CFR 416.920(c))” (Tr. 625).

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At the time of the hearing, plaintiff was separated from her husband and living in
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an apartment with two of her minor children (Tr. 628).
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PROCEDURAL HISTORY
Plaintiff provides the following procedural history:
Ms. Christy protectively filed an application for supplemental
security income on January 29, 2009, wherein she alleged disability on
January 1, 2008 (Tr. 123-125). Her applications were denied at the initial
determination and reconsideration stages (Tr. 84-87, 91-93). Ms. Christy
thereafter filed a Request for Hearing (Tr. 94-96). A hearing was held
before an administrative law judge on December 17, 2010 in Portland,
Oregon (Tr. 46-64). The ALJ issued a decision on December 29, 2010,
denying plaintiff’s claim (Tr. 14-37). Plaintiff appealed the decision to the
Appeals Council on February 23, 2011, and an Order denying review of
the decision of the ALJ was issued on January 19, 2012 (Tr. 1-9).
Ms. Christy filed an action in the United States District Court for
the Western District of Washington on March 21, 2012 (Tr. 760-762). On
December 4, 2012, an Order was issued by United States Magistrate
Judge J. Richard Creatura, remanding the case to the Commissioner,
pursuant to sentence four of 42 U.S.C. § 405(g) (Tr. 704-727). The
Appeals Council issued a further Order dated May 24, 2013, vacating the
hearing decision dated December 29, 2010 and remanding the case back
to the ALJ (Tr. 728-731).
A hearing was held on December 6, 2013 before an ALJ (Tr. 672703). The ALJ issued a decision on January 6, 2014, denying plaintiff's
claim (Tr. 620-649). Following this decision, plaintiff did not file written
exceptions with the Appeals Council, and the Appeals Council did not
assume jurisdiction. Ms. Christy thereafter made timely appeal to the
instant court seeking review of the denial of benefits.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

1 (See Plaintiff’s Opening Brief, ECF No. 12, pp. 1-2).
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Plaintiff raises the following issues: (1) Whether or not the ALJ properly evaluated

3 the medical issues; and (2) Did the ALJ provide clear and convincing reasons to discredit
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plaintiff’s testimony (see Defendant’s Brief, ECF No. 16, p. 2).

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's
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denial of social security benefits if the ALJ's findings are based on legal error or not
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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

11 1999)).

DISCUSSION

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(1)

Whether or not the ALJ properly evaluated the medical issues.

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Plaintiff contends that the ALJ failed to evaluate appropriately multiple medical

15 opinions. Defendant contends that the ALJ provided specific and legitimate rationale for
16 failing to credit the opinions, and also provided a sufficiently detailed and thorough
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discussion of the evidence in the record.
When an opinion from an examining or treating doctor is contradicted by other

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medical opinions, the treating or examining doctor’s opinion can be rejected “for specific
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and legitimate reasons that are supported by substantial evidence in the record.” Lester v.
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Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035,
1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ

24 can accomplish this by “setting out a detailed and thorough summary of the facts and

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 conflicting clinical evidence, stating his interpretation thereof, and making findings.”
2 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881
3 F.2d 747, 751 (9th Cir. 1989)).
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A. Dr. Wendy Biss, Ph.D., examining doctor
Dr. Biss examined plaintiff in May 2008 (see Tr. 324-33). Dr. Biss noted

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plaintiff’s report of recurring feelings of depression on most days, as well as returning
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anxiety when outside her home and recurring feelings of hopelessness (see Tr. 327). Dr.
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Biss noted plaintiff’s report that she was having difficulty leaving the home and being
around people (see Tr. 328). Regarding plaintiff’s mini mental status examination, Dr.

11 Biss noted that plaintiff “consecutively completed forward digit span up to six digits”
12 (see id.). Although Dr. Biss noted that plaintiff appeared to have more difficulty with
13 tasks related to abstract reasoning, Dr. Biss opined that this result “may have reflected her
14 minimal effort on these tasks” (see id.). Although plaintiff “did not attempt abstract
15 reasoning related to proverbs, [plaintiff] was able to provide correct answers to all
16 similarities” (see id.). Dr. Biss noted that when plaintiff was asked questions related to
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comprehension and ways to manage basic safety behaviors, plaintiff “also appeared to
give limited effort and appeared somewhat uncooperative” (see id.). Dr. Biss noted that

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plaintiff’s “answers were often quick and brief, with limited effort or thought” (see id.).
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Dr. Biss provided an example: when plaintiff was answering the question regarding why
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individuals are expected to pay taxes, “she reported, ‘never had to pay taxes, so it doesn’t
catch up to you later’” (see id.).

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ORDER ON PLAINTIFF’S COMPLAINT - 5

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Plaintiff reported that she consumed alcohol infrequently at social events (see id.).

2 Dr. Biss also noted plaintiff’s report that “her Valium doesn’t help and she often over
3 uses the medication” (see id.). Dr. Biss noted that plaintiff “reported that she left school
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in eighth grade due to behavioral difficulties” (see Tr. 329). Dr. Biss noted that plaintiff
“reported that when she placed effort into her behaviors she was capable of receiving

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A’s” (see id.). Dr. Biss noted plaintiff’s report of very few jobs since her teenage years
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(see id.).
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Dr. Biss noted that plaintiff reported that she had driven herself to the interview,
but also reported that her driver’s license was invalid, but that she continues to drive

11 anyway (see Tr. 329–30). Dr. Biss also noted that plaintiff did not show up for her
12 previously scheduled appointment “and could not provide an explanation of what
13 precipitated her absence from the first scheduled appointment” (see Tr. 330).
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Dr. Biss opined that plaintiff’s mood throughout the interview and testing “was

15 somewhat incongruent to her reported affect of anxious and depressed” (see id.). Dr. Biss
16 noted that plaintiff appeared lethargic, detached, bored, and disinterested, but that her
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reported “anxiety was not visibly noticeable” (see id.). Dr. Biss observed that plaintiff’s
speech often was “overly vague and contradictory” and that plaintiff appeared somewhat

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uncooperative (see id.). Dr. Biss opined that although plaintiff’s speech was slow, it was
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logical (see id.).
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Regarding plaintiff’s mini-mental status exam (MMSE) results, Dr. Biss noted that
plaintiff fell within the normal range for her performance (see id.). Dr. Biss also noted

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ORDER ON PLAINTIFF’S COMPLAINT - 6

1 she appeared to have the most difficulty with delayed recall (see id.). Dr. Biss opined that
2 based on plaintiff’s presentation during testing, plaintiff “appeared able to: easily read
3 and write small sentences, perform immediate recall, name common objects, perform
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basic attention tasks, such as spelling backwards, perform basic repetition, perform tasks
of visual motor integration, and follow three-step commands” (see id.).

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Dr. Biss also conducted objective testing regarding the validity of plaintiff’s self
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reports. As noted in the 2008 opinion by Dr. Biss, the “Structured Inventory of
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Malingered Symptomatology (SIMS) is a 75 – item self-report measure that is used to
detect malingering across a wide variety of clinical and forensic settings, [and a] SIMS

11 Total Score of 14 or greater is used to detect malingered responding and provides a high
12 level of sensitivity and specificity [while] a cutoff score of 16 is often used to enhance
13 diagnostic accuracy and correctly identify 90% of malingerers and 98% of honest
14 responders” (Tr. 330). As noted by Dr. Biss, plaintiff’s “Total Score for the SIMS was a
15 38, therefore far outweighing the conservative cutoff score of 16” (see id.). Dr. Biss noted
16 that plaintiff “over reported symptoms in every category except psychosis” (see id.).
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Dr. Biss opined that plaintiff’s “performance on the SIMS along with her erratic
and apathetic performance throughout testing indicate that she likely overreported her

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level of distress and level of cognitive impairment” (see Tr. 331). Dr. Biss opined that it
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was “very likely that her scores on the MMSE and measures of ADL’s may not be wholly
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accurate depictions of her current functioning” (see id.). Dr. Biss also indicated her
opinion as follows: “[Plaintiff’s] scores on the SIMS indicate a very high likelihood that

24 she overreported symptoms of impairment and failed to perform a full effort on all

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 measures. Due [to] the potential for monetary gain and her reported inability to sustain
2 full – time employment in the past malingering is strongly suspected” (see id.). For one
3 of her recommendations, Dr. Biss indicated that “[when] interpreting the results be
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cautious as it is very likely [plaintiff] overreported her level of dysfunction and did not
perform fully on all tasks” (see id.).

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Among her major findings, Dr. Biss indicated that plaintiff’s “overreporting of
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symptoms, use of lying for personal gain, likelihood of malingering, consistent
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irresponsibility, and lack of remorse appear consistent with Antisocial traits” (see Tr.
332). Dr. Biss noted plaintiff’s report that plaintiff indicated she was capable of receiving

11 A’s in school when she placed effort into her behaviors, and noted that during the
12 interview, plaintiff “spoke in a very self pitying and contradictory manner” (see id.). Dr.
13 Biss indicated that it “was very difficult to ascertain the accuracy of her reporting due to
14 her inconsistency” (see id.).
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Dr. Biss indicated that plaintiff likely would have difficulty accepting instruction

16 from others because of plaintiff’s apathy, disinterest, and difficulties with authority (see
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Tr. 333). She indicated that plaintiff’s difficulty in this area was moderate (see Tr. 325).
Dr. Biss also opined that based on plaintiff’s MMSE performance, “and her answers to

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questions throughout the diagnostic interview she appears to [be] able to support herself
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based on her cognitive abilities” (see Tr. 333). Dr. Biss opined that plaintiff’s lack of full
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completion of her household chores “appears largely related to her apathy, lack of
motivation, and anhedonia” (see id.).

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ORDER ON PLAINTIFF’S COMPLAINT - 8

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The ALJ discussed the 2008 opinion of Dr. Biss (see Tr. 637). The ALJ included

2 the following discussion in his written decision:
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Wendy Biss, Ph.D., completed a medical source statement of ability to
do work–related mental activities in May 2008. She also provided an
adult diagnostic assessment (internal citation to Ex. 11F). Dr. Biss
opined the claimant’s ability to understand, remember and carry out
instructions is not affected by her impairments. She has no limitation in
her ability to respond appropriately to usual work situations and to
changes in a routine work setting. She has moderate limitation in the
ability to interact appropriately with the public, supervisors, and co—
workers because of antisocial/borderline personality traits (internal
citation to Ex. 11F/2). This opinion is given little weight because of the
claimant’s lack of credibility and because of Dr. Biss’ findings regarding
potential malingering. Objective testing in the form of the structured
inventory of malingered symptomatology (SIMS) reflected over
reporting of unlikely symptoms in every category except psychosis
(internal citation to Ex. 11F/7). The claimant’s performance on the
Minnesota Multiphasic Personality Inventory (MMPI-2) administered by
another examiner also revealed that the claimant was endorsing
infrequent, unlikely and unrealistic psychiatric symptoms (internal
citation to Ex. 19F/5). Dr. Biss concluded that based on the claimant’s
erratic and apathetic performance throughout testing, malingering was
strongly suspected (internal citation to Ex. 11F/8). Such evidence of lack
of effort mirrors problems with the claimant’s performance noted by the
consultative examiner who evaluated the claimant’s physical
impairments (internal citation to Ex. 23F/6-7). Giving the claimant’s
complaints of social anxiety (internal citation to Ex. 19F/2) and alleged
difficulties with concentration (internal citation to Ex. 19F/3) a modicum
of weight against the backdrop of her estimated average IQ (internal
citation to Ex. 19F/4), the undersigned added limitations restricting the
claimant to unskilled work with limited public interactivity.

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(Tr. 637-38).
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Based on a review of the record, the Court concludes that the ALJ’s
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characterizations and findings are based on substantial evidence in the record as a whole.
As noted by the ALJ, in addition to the SIMS, another objective psychological test, which

24 was conducted by Dr. Robert E. Schneider, Ph.D., in October, 2008, the MMPI-2

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 (Minnesota Multiphasic Personality Inventory), also “indicates over-reporting of
2 symptoms” (see Tr. 375). As noted by Dr. Schneider, plaintiff “was endorsing infrequent,
3 unlikely and unrealistic psychiatric symptoms” (see id.). The Court also notes that Dr.
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Biss included in her opinion the recommendation that one “be cautious” when
interpreting the results indicated in the opinion because “it is very likely [plaintiff] over

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reported her level of dysfunction and did not perform fully on all tasks” (Tr. 331).
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For the reasons stated and based on a review of the record as a whole, including
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the ALJ’s thorough discussion “of the facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings,” the Court concludes that the ALJ provided

11 specific and legitimate rationale for failing to credit fully all the opinions included in Dr.
12 Biss’ report. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes
13 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see also Lester v. Chater, 81 F.3d 821,
14 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995);
15 Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
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B. Dr. Robert Schneider, Ph.D., examining doctor
Dr. Schneider examined plaintiff on two occasions, most relevantly, in October
2008, after plaintiff’s head injury (see Tr. 371-76). Dr. Schneider noted plaintiff’s report

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that her “thinking has been confused since the accident” (see Tr. 372). He noted her
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report that she felt as if her biggest problem was her memory (see id.). He noted her
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report that when she watches television she cannot remember what she was watching
after commercial breaks (see id.). He also noted that she reported being anxious and

24 attempted to avoid being with more than one person (see id.). Dr. Schneider noted

ORDER ON PLAINTIFF’S COMPLAINT - 10

1 plaintiff’s report of depression and high anxiety, along with frequent panic attacks and
2 social anxiety (see id.).
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Dr. Schneider also indicated plaintiff’s report that a doctor at Family Health
Center diagnosed her with attention deficit disorder (see Tr. 373). Dr. Schneider noted
that plaintiff ranked her depression “as 10 out of 10, with 10 being the worst depression

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she could imagine and anxiety is 10 out of 10” (see id.). He noted plaintiff’s report that
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there was nothing enjoyable in her life anymore (see id.). Dr. Schneider also noted
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plaintiff’s report that plaintiff “was able to work until she suffered her head injury” (see
id.). He also noted her opinion that she “would have to work alone because she has

11 difficulty being around others” (see Tr. 374). Regarding her vocational interests, Dr.
12 Schneider noted plaintiff’s report that “there is nothing that she can think of that she is
13 able to do” (see id.).
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Dr. Schneider also conducted a mental status evaluation and noted plaintiff’s

15 extremely flat affect and that she was very slow to respond, demonstrating extremely low
16 energy (see id.). He indicated that plaintiff barely had sufficient energy to perform the
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tests and noted various tests that she was not able to perform, such as her struggle to
conduct serial three subtractions and serial seven additions (see id.). However, he noted

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that she responded appropriately to a question testing her judgment, was able to interpret
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proverbs accurately and was able to identify similarities between objects (see id.).
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Dr. Schneider administered a number of tasks, such as the Weschler Adult
Intelligence Scales test, which indicated that plaintiff’s IQ was equivalent to 97, which

24 placed her precisely at the average level (see id.). He also administered Trails A and B, in

ORDER ON PLAINTIFF’S COMPLAINT - 11

1 which plaintiff was asked to connect sequentially various numbered dots, and opined that
2 her score on Trails B was impaired relative to her intelligence (see id.). Dr. Schneider
3 administered the Verbal Memory Subtest, in which plaintiff scored at the lower end of
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the low average range, which was below expected level but did not indicate severe
impairment (see Tr. 375). Dr. Schneider administered the Fluency Subtests from the

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Woodcock Johnson –III and noted that she “scored at the 11th grade level on the Reading
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Fluency Test and the 7.1 grade level on the math fluency” (see id.).
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The Court noted previously the MMPI –2 test administered by Dr. Schneider, see
supra, section 1.A (see id.). He noted that her “F – K index was 17, which invalidates the

11 profile and indicates over reporting of symptoms” (see id.). Dr. Schneider noted that
12 similarly, plaintiff generated a “T – score of 92 on the exaggeration of impairment scale”
13 and that plaintiff also “generated an extremely high score on the scale that indicates she
14 was endorsing infrequent, unlikely and unrealistic psychiatric symptoms” (see id.). Dr.
15 Schneider noted that plaintiff’s profile was “definitely exaggerated,” but Dr. Schneider
16 opined that plaintiff was “an individual who views herself as the sum of her symptoms
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and, in fact, one of the characteristics of post concussive syndrome is a wide range of
unexplainable symptoms and physical difficulties” (see id.). The Court notes that, as

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argued by defendant, this aspect of Dr. Schneiders’ opinion suggests that he found
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plaintiff’s exaggeration to demonstrate only a symptom of plaintiff’s brain injury, as
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opposed to reflecting any attempt on the part of plaintiff to exaggerate her symptoms or
to present herself as more disabled than she actually was (see ECF No. 16, p. 8).

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ORDER ON PLAINTIFF’S COMPLAINT - 12

1 Subsequently, Dr. Schneider indicated his opinion that plaintiff described “residual
2 symptomatology that is very consistent with the head injury” (see Tr. 376).
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As noted by the ALJ, Dr. Schneider indicated that with the number of cognitive
and physical problems with which plaintiff presented, Dr. Schneider opined that it was
very unlikely that plaintiff could sustain the typical demands of gainful employment (see

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Tr. 375). He opined that it was unlikely that plaintiff could tolerate the typical stresses,
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demands or expectations of competitive employment at that time (see Tr. 376). Dr.
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Schneider opined that there was a lack of evidence demonstrating ADHD, and that the
“PTSD like symptoms are more of a concern than actual PTSD symptoms,” opining that

11 “this does not fit the criteria for traumatic events” (see id.). Dr. Schneider indicated that
12 he did not have “sufficient time to develop a clear chronology of the development of all
13 these symptoms, many of which may be related to the head injury” (see id.). He also
14 found that her social anxiety required further exploration and also probably was related to
15 the head injury.
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The ALJ gave “little weight” to Dr. Schneider’s opinion (see Tr. 638). The ALJ
reasoned as follows:
It is inconsistent with the objective testing (SIMS and MMPI – 2)
showing that the claimant exaggerated her symptoms and was likely
malingering as well as with evidence of inconsistent statements about the
claimant’s abilities. It also does not square with recent evidence showing
improved function with medication when taken as prescribed. It is also
inconsistent with the claimant[’s] marginal work history even prior to
her experiencing her head injury, as already explained.
(Tr. 638).

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ORDER ON PLAINTIFF’S COMPLAINT - 13

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Based on the record as a whole, the Court concludes that the ALJ’s findings are

2 supported by substantial evidence in the record as a whole. First, as noted by the Court’s
3 description of the opinion of Dr. Schneider, he opined that plaintiff’s symptomatology
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was related to her head injury, however, as noted by the ALJ, even in “the six years prior
to [plaintiff’s] accident, however, she earned only $5931” (see Tr. 635). The ALJ also

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noted that plaintiff’s total “lifetime earnings amount to $21,451” (Tr. 634). The ALJ
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inferred from this evidence that “factors other than her alleged impairments affect her
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ability to maintain full-time employment,” additionally noting that plaintiff’s overuse of
Valium, as reported to Dr. Biss, may have been “contributing to her lack of motivation to

11 work” (see Tr. 635 (citing Tr. 328)).
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The ALJ may “draw inferences logically flowing from the evidence.” Sample v.

13 Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Beane v. Richardson, 457 F.2d 758
14 (9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)). However, an ALJ
15 may not speculate. See SSR 86-8, 1986 SSR LEXIS 15 at *22. The Court concludes that
16 the ALJ’s inference that plaintiff’s work history suggests a lack of motivation to work, as
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does her overuse of her Valium prescription even though she indicated that it did not
work, are “inferences logically flowing from the evidence.” See Sample, supra, 694 F.2d

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at 642 (citations omitted). The Court also concludes that this finding, supported by
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substantial evidence in the record, provides a specific and legitimate reason for failing to
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credit fully the opinions of Dr. Schneider, who opined that plaintiff’s symptomatology
was related to her head injury, as opposed to her lack of motivation to work.

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ORDER ON PLAINTIFF’S COMPLAINT - 14

1

Similarly, as alluded to previously, Dr. Schneider appeared not to credit fully the

2 MMPI–2 results which indicated that plaintiff was overreporting symptoms,
3 exaggerating, and endorsing infrequent, unlikely and unrealistic psychiatric symptoms
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(see Tr. 375). Instead, Dr. Schneider appeared to opine that these results merely reflected
further symptoms of plaintiff’s head injury (see id.). The ALJ, however, unlike Dr.

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Schneider, also had evidence of plaintiff’s results from the Structured Inventory of
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Malingered Symptomatology (SIMS), the results of which “far outweigh[ed] the
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conservative cutoff score” (see Tr. 330). As discussed in detail previously, this objective
test used to detect malingering was evaluated thoroughly by Dr. Biss (see id.). Dr. Biss

11 reviewed plaintiff’s subscale scores, and found that they “revealed that her inflated SIMS
12 Total Score was due to overreporting of unlikely symptoms for: (1) neurological
13 impairment, (2) Affective Disorder, (3) Low IQ, and (4) Amnesia” (see id.). Therefore,
14 Dr. Biss, in contrast to Dr. Schneider, opined that plaintiff “likely overreported her level
15 of distress and level of cognitive impairment,” and “strongly suspected” malingering (see
16 Tr. 331).
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The ALJ is responsible for resolving ambiguities and conflicts in the medical
evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Andrews v.

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Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In this matter, unlike Drs. Biss and
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Schneider, the ALJ had access to both plaintiff’s SIMS test results as well as her MMPI-2
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test results. Both of these objective tests indicated that plaintiff was overreporting her
symptoms and was exaggerating, endorsing infrequent, unlikely and unrealistic

24 psychiatric symptoms (see Tr. 330, 375).

ORDER ON PLAINTIFF’S COMPLAINT - 15

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For the stated reasons, the Court concludes that the ALJ’s finding that the opinions

2 of Dr. Schneider were “inconsistent with the objective testing (SIMS and MMPI-2)
3 showing that the claimant exaggerated her symptoms and was likely malingering” is a
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finding based on substantial evidence in the record as a whole. The Court also concludes
that this finding entails specific and legitimate rationale for failing to credit fully the

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opinion of Dr. Schneider.
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The ALJ also found that Dr. Schneider’s opinion was inconsistent with evidence
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of inconsistent statements about plaintiff’s abilities. Despite plaintiff’s report to Dr.
Schneider that she attempted not be around more than one person and that she suffered

11 from social anxiety (see Tr. 372), as noted by the ALJ, plaintiff reportedly maintained the
12 ability to shop in stores 2 to 3 times a month and she reported that she attends social
13 events (see Tr. 631 (citing Ex. 3E, 11F/5)). These findings are based on substantial
14 evidence in the record (see Tr. 147, 328). For example, plaintiff reported to Dr. Biss that
15 she consumed “alcohol infrequently at social events” (see Tr. 328).
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Similarly, the ALJ found that Dr. Schneider’s opinion was not consistent “with
recent evidence showing improved function with medication when taken as prescribed”
(see Tr. 638). This finding, too, is based on substantial evidence in the record as a whole,

19

as will be discussed in further detail in the Court’s discussion of the ALJ’s rejection of
20

the opinion of Dr. Kay Stradinger, Psy.D, see infra, section 1.C.
21
22
23

For the reasons stated herein and based on the record as a whole, the Court
concludes that the ALJ provided specific and legitimate rationale for his failure to credit

24 fully all the opinions from Dr. Schneider. See Reddick v. Chater, 157 F.3d 715, 725 (9th

ORDER ON PLAINTIFF’S COMPLAINT - 16

1 Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see also
2 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d
3 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
4
5
6

C. Dr. Kay L. Stradinger, Psy.D., examining doctor
Dr. Stradinger examined plaintiff in August 2013, approximately five months

7 before the ALJ’s written decision (see Tr. 821-32, 641). Dr. Stradinger noted plaintiff’s
8 report that she first had depressive symptoms when she was 16 (see Tr. 821). She also
9 noted plaintiff’s report that her depression was better managed “now because she was
10 started on mood stabilizers six months ago and she thinks it helps her mood a little” (see
11
12
13

id.). She also noted plaintiff’s report that “her OCD is not so bad now” (see Tr. 822). Dr.
Stradinger noted plaintiff’s report that “she has social disorder” (see id.). Further
indicating potential reliance on plaintiff’s self-report, Dr. Stradinger also noted plaintiff’s

14

report that “memory loss is her ‘biggest concern now’” (see id.).
15

Dr. Stradinger noted plaintiff’s report that plaintiff “does not work well with
16
17
18

others” and that “she has issues with authority and always has” had such issues (see Tr.
824). Dr. Stradinger noted plaintiff’s opinion that “she believes she has no problems with

19 abuse of or dependence on prescription medications,” (see id.), in contrast to plaintiff’s
20 report to Dr. Biss that “she often over uses the medication,” Valium (see Tr. 328), and to
21 other reports of improper use of medications (see, e.g., Tr. 508) and in contrast to Dr.
22 Biss’ opinion that plaintiff had a likelihood of “abuse [of] prescribed medications” (see
23 Tr. 332).
24

ORDER ON PLAINTIFF’S COMPLAINT - 17

1

Dr. Stradinger performed a mental status examination (see Tr. 825-27). She noted

2 that plaintiff “came in stating she had a migraine and that the lights in the waiting room
3 and this room were terrible for her[, y]et when the examiner asked her if we could turn
4
5

the overhead lights off, she said, ‘no, thank you,’ because it wouldn’t help” (see Tr. 825).
Dr. Stradinger opined that plaintiff’s thought processes were goal directed, her voice was

6

clear for understanding, and she spoke with an average rate, rhythm, volume, and of an
7

above average amount (see id.).
8
9
10

Regarding plaintiff’s memory performance, Dr. Stradinger indicated that plaintiff
“could complete a five – digit span forward and a five – digit span backward on the first

11 trials for low average and high average performances respectively” (see Tr. 826). Plaintiff
12 was able to “complete a six – digit span forward on the second trial and a seven – digit
13 span forward on the first trial,” although she was unable to complete a six – digit span
14 backward on one trial (see id.). Regarding recent memory, plaintiff was able to repeat
15 three out of three simple words on the first trial, and after about seven minutes, plaintiff
16 successfully recalled two out of three words and with a clue could recall the third word,
17
18

which Dr. Stradinger opined was a “slight impairment” (see id.). Regarding plaintiff’s
memory for the past, plaintiff was able to report her birthday, phone number, and address

19

without difficulty (see id.).
20

Dr. Stradinger opined that plaintiff demonstrated below average fund of
21
22
23

knowledge and information as she “could name the current US president and name two of
the three previous to him, but not in the correct order, [and] could name 2/2 states

24 bordering Washington” (see id.). Plaintiff refused to attempt serial sevens, however,

ORDER ON PLAINTIFF’S COMPLAINT - 18

1 plaintiff “attempted serial 3s starting with 20 and correctly calculated backward to 11
2 before she stopped, saying, ‘This irritates me because it should be so simple’” (see id.).
3 Plaintiff was able to complete three simple arithmetic problems correctly (see id.).
4
5

Regarding her concentration, plaintiff demonstrated the ability to spell WORLD
correctly both forward and backward (see id.). Regarding plaintiff’s abstract thinking, Dr.

6

Stradinger indicated as follows:
7
8
9
10
11
12

[Plaintiff] said No ifs, ands, or buts means, “No, it’s not happening.”
When presented with The grass is always greener on the other side she
asked if you have to agree, then she said it meant, “They want something
better than theirs.” She said Rome wasn’t built in a day means, “It takes
time.”
(Tr. 826).
Regarding testing on similarities and differences, plaintiff “said a dog and lion are

13 alike because they are animals and different because they are from the dog and cat
14 family” (see Tr. 827). Dr. Stradinger opined that plaintiff’s judgment and insight were
15 fair to adequate (see id.). She noted that if plaintiff “found a letter on the sidewalk she
16 would put it in the mailbox [and] [if] she was in a movie theater and smoke broke out,
17 suggesting fire, she would get out and pull the fire alarm” (see id.).
18
19

Dr. Stradinger diagnosed plaintiff with bipolar disorder not otherwise specified
and indicated that this diagnosis was “per history” and also diagnosed PTSD, similarly

20

indicating that this diagnosis was “per history” (see id.). Dr. Stradinger also diagnosed
21

plaintiff with panic disorder with agoraphobia (see id.). She opined that plaintiff’s global
22

assessment of functioning (GAF) was 51 (see id.).
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 19

1

With respect to her discussion and prognosis, Dr. Stradinger indicated that

2 plaintiff had “good memory for having applied for SSI and immediately was asking how
3 long this would be and remembering that she had to do a bunch of puzzles and things in
4
5

the last evaluation she was required to go to” (see id.). Dr. Stradinger indicated that
plaintiff “tended not to go into specific details regarding her past unless specifically

6

asked, so given the limited time today the specific criteria for some of her many
7

diagnoses could not be pinpointed such as PTSD, ADHD, and bipolar disorder” (see id.).
8
9
10

Dr. Stradinger indicated that “it appears she has had treatment in the past according to the
records and those providers have previously diagnosed her according to criteria over

11 time” (see id.).
12

Dr. Stradinger noted that plaintiff expressed little concern about OCD or ADHD

13 or social phobia at her appointment and “stated that she was independent for all ADL’s
14 yet also stated that she needs her child with her to drive or to grocery shop, indicating
15 some inconsistency or ambivalence” (see id.). Dr. Stradinger indicated that although
16 plaintiff stated that she mostly was concerned with memory loss, plaintiff “seemed to do
17
18

quite well for memory in the exam today, however” (see id.).
Regarding her functional assessment and medical source statement, Dr. Stradinger

19

indicated that plaintiff was “capable of managing her funds, based on her cognitive level
20

of function” (see Tr. 828). Dr. Stradinger opined that plaintiff had “marked impairment
21
22
23

for accepting instructions from supervisors given her personality and perhaps related also
to anxiety” (see id.). She also opined that plaintiff had “marked impairment in interacting

24 with coworkers and the public given her problems with social skills and relationships”

ORDER ON PLAINTIFF’S COMPLAINT - 20

1 (see id.). She opined that plaintiff had “moderate impairment for performing work
2 activities on a consistent basis without special or additional instruction,” related to
3 plaintiff’s problems with recall and problems with persistence, as well as potentially
4
5

being related to anxiety (see id.). Dr. Stradinger opined that plaintiff had “marked
persistence for maintaining regular attendance in the workplace and completing a normal

6

workday/workweek without interruptions from her anxiety and depression” (see id.).
7

Finally, she opined that plaintiff had “marked impairment for dealing with the usual
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

stress encountered in the workplace,” related to problems with coping skills, which may
be triggered by anxiety or depression (see id.).
The ALJ included the following discussion in his written opinion:
Kay Stradinger, Psy.D., performed a consultative examination with the
claimant in August 2013. She diagnosed the claimant with bipolar
disorder, NOS, per history; posttraumatic stress disorder (PTSD), per
history; panic disorder with Agoraphobia; cluster B traits and rule out
diagnoses of attention deficit hyperactivity disorder (ADHD) and opioid
dependence in a controlled setting (internal citation to Ex. 34F/7). She
opined in one instance that the claimant is capable of managing her
funds and in another that she is not. She opined further that the claimant
is unimpaired for performing simple and repetitive tasks. The claimant
has a marked impairment for accepting instructions from supervisors and
for interacting with coworkers and the general public. The claimant has a
moderate impairment for performing work activities on a consistent basis
without special or additional instruction. The claimant also has a marked
impairment in persistence for maintaining regular attendance in the
workplace, for completing a normal workday and for dealing with the
usual stress encountered in the workplace (internal citations to Ex.
34F/7-8, Ex. 35F/1-3). Dr. Stradinger’s opinion is given little weight
except for her assessment of the claimant’s ability to perform simple
work, which is consistent with her performance on a mental status
examination and squares with objective intelligence testing. Otherwise
the opinion is inconsistent with that of Dr. Moore who reviewed the
entire medical evidence record. Dr. Stradinger reviewed only the CBS
crisis plan and notes from Peace Mental Health providers (internal

ORDER ON PLAINTIFF’S COMPLAINT - 21

1
2
3
4
5

citation to Ex. 34F/1). Dr. Stradinger provided contradictory statements
as to whether the claimant was capable of managing her own benefits. In
addition, Dr. Stradinger’s assessment does not square with Dr. Biss’
findings of potential malingering and Valium abuse. Dr. Stradinger also
does not account for evidence showing improvement with
symptomatology with therapy and medication and evidence of
medication non-compliance.
(Tr. 637).

6

Despite Dr. Stradinger’s August 2013 opinion of plaintiff’s multiple marked
7

limitations, the ALJ discussed how plaintiff’s symptoms actually improved over time
8
9
10
11
12
13
14
15
16
17
18

when she was taking her medications as prescribed, which the ALJ also found that she
did not always do. For example, the ALJ noted as follows:
The claimant’s statements to Brent Francisco, an ARNP, or treating
mental health provider, on February 2008, are seemingly incongruous
with a person who alleges onset of depression during the previous
month. She told Mr. Francisco that Cymbalta is helping, with no bad
side effects. She reported decreased pain allowing her to go to the park
more often with her children. She stated things were going well overall.
Mr. Francisco observed she was well groomed and estimated her global
assessment of functioning (GAF) score to be 55 (internal citation to Ex.
20F/9-10). In mental status examinations in March 2012 and January
2013, the claimant’s mood, affect, judgment, insight, memory, attention,
concentration and thought content were all within normal limits (internal
citation to Ex. 45F/33, 41). In February 2013, the claimant reported she
was ‘doing okay’ with her bipolar depression (internal citation to Ex.
45F/27).

19 (Tr. 631 (footnote omitted)).
20

The ALJ’s findings that plaintiff’s mental health symptoms improved with

21 medication and that she demonstrated test results within normal limits following mental
22 status examinations are supported by substantial evidence in the record (see id.). On
23

February 14, 2008, approximately one year before the relevant period of time for the

24

ORDER ON PLAINTIFF’S COMPLAINT - 22

1 ALJ’s decision (January 29, 2009), Mr. Brent Francisco, an ARNP, noted that plaintiff
2 indicated that she was getting about six hours of sleep; that she had not noticed much
3 difference in her depression, anxiety or pain management; and that she was not
4
5

experiencing any bad side effects from her medications (see Tr. 395). On May 5, 2008, at
her next appointment, according to the treatment record of Mr. Francisco, plaintiff “says

6

Cymbalta is helping and [she] has a bit less pain, [and] is getting out to the park with the
7

kids” (see Tr. 394). Plaintiff also reported that “overall things going okay” (see id.). This
8
9
10

treatment record supports the ALJ’s finding that plaintiff’s mental health improved when
she took her prescribed medication and that this improvement occurred even before the

11 relevant period of time for the ALJ’s written decision (see id.).
12

Also as reported by Mr. Francisco, and as noted by the ALJ, plaintiff reported in

13 February, 2009 “that her mood is better with the recent increase of Cymbalta [and
14 plaintiff] [said] she feels happier and is having an easier time dealing with her kids” (see
15 Tr. 490). Mr. Francisco opined that plaintiff was demonstrating a better range of affect
16 than on her prior visit (see id.). Similarly, Mr. Francisco reported the subsequent month
17
18

that plaintiff reported that “things are better” and that she had a bit more energy, and her
sleep was okay (see Tr. 489). Mr. Francisco opined that plaintiff’s mood was a bit better

19

(see id.). On April 20, 2009, plaintiff indicated that “things are going good [and that the]
20

only hangup is with her coverage for Cymbalta” (see Tr. 487). Plaintiff also indicated that
21
22
23

her “anxiety is under good control, mood as improved and sleep is good” (see id.). As
indicated by Mr. Francisco, plaintiff reported that “she has even noticed she is feeling

24 better on rainy days” (see id.). On May 26, 2009, plaintiff similarly reported to Mr.

ORDER ON PLAINTIFF’S COMPLAINT - 23

1 Francisco that “everything is going fairly well” (see Tr. 485). Plaintiff indicated that her
2 “meds are doing fine” (see id.). As noted by the ALJ, during plaintiff’s “course of
3 treatment with Mr. Francisco in the first half of 2009, her estimated GAF score increased
4

from 51 to 56” (see Tr. 632 (internal citation to 485, 487, 489–91)).

5

Similarly, in February, 2010, plaintiff indicated that her medications “have been

6

working better” (see Tr. 553). At the same appointment, she indicated that medication
7

and counseling both had helped her in the past (see id.). On August 2, 2010, plaintiff
8
9
10

described “her recent moods as happy,” although the staff member noted that plaintiff did
not appear happy (see Tr. 618). Less than a month later, on August 24, 2010, plaintiff

11 “reported that she has been feeling really good lately due to her new [boyfriend]” and had
12 gone camping over the previous weekend and reporting having a good time (see Tr. 616).
13 On this occasion, the same staff member indicated that plaintiff “presented as happy,
14 nicely groomed (makeup, jewelry), and was quite talkative” (see id.). The staff member
15 indicated also that the tone of plaintiff’s voice was stronger than it had been before (see
16 id.).
17
18

Also as noted by the ALJ, in August, 2013, at plaintiff’s most recent consultative
examination prior to the ALJ’s decision, plaintiff “state[d] her OCD is not so bad now,”

19

and she noted her intensive outpatient weekly treatment (see Tr. 822). At the same
20

appointment, plaintiff indicated that her depression was “better managed now because
21
22
23

she was started on mood stabilizers six months ago” (see Tr. 821; see also Tr. 631).
In February 2013, as noted by the ALJ, plaintiff reported that she was “doing okay” with

24 her bipolar depression (see Tr. 962).

ORDER ON PLAINTIFF’S COMPLAINT - 24

1

For the reasons stated, the Court concludes that the ALJ’s finding that such

2 “evidence shows improvement in depressive symptoms with medication” is a finding
3 based on substantial evidence in the record as a whole (see Tr. 633). The Court also
4
5

concludes that the ALJ’s finding of improvement of plaintiff’s symptoms when she takes
her prescribed medications supports the ALJ’s failure to credit fully the opinion from Dr.

6

Stradinger in August, 2013 regarding plaintiff’s marked limitations from her mental
7

health impairments. The ALJ’s finding that “Dr. Stradinger also does not account for
8
9
10

evidence showing improvement in symptomatology with therapy and medication and
evidence of medication noncompliance” is a finding based on substantial evidence in the

11 record as a whole. In addition, this is a specific and legitimate reason for failing to credit
12 fully the opinions of Dr. Stradinger.
13

The ALJ also found that the opinion of Dr. Stradinger was inconsistent with the

14 opinion “of Dr. Moore who reviewed the entire medical evidence record,” noting that
15 “Dr. Stradinger reviewed only the CBS crisis plan and notes from Piece Mental Health
16 providers” (see Tr. 637 (internal citation to Ex. 34F/1)). Plaintiff argues against this
17
18

rationale, noting that Dr. Margaret Moore only opined that plaintiff’s mental health
impairments did not meet one of the listed impairments (see ECF No. 12, p. 18 (citing Tr.

19

677-86)). However, as noted by defendant, “Dr. Stradinger’s assessment of multiple
20

marked limitations essentially was that plaintiff’s impairments met or equaled a listing
21
22
23

and [as such] was clearly inconsistent with Dr. Moore’s assessment” (see ECF No. 16, p.
11 (citing Tr. 828)). This finding by the ALJ also supports the ALJ’s failure to credit

24 fully the opinion of Dr. Stradinger.

ORDER ON PLAINTIFF’S COMPLAINT - 25

1

Finally, the ALJ noted an inconsistency within the opinion of Dr. Stradinger, as

2 well as noting that Dr. Stradinger’s opinion did not appear to account for any potential
3 malingering, as found by Dr. Biss (see Tr. 637). These findings are supported by
4
5

substantial evidence in the record as a whole, and they provide some support for the
ALJ’s failure to credit fully the opinion of Dr. Stradinger.

6

For the reasons stated and based on the record as a whole, the Court concludes that
7

the ALJ provided sufficient specific and legitimate rationale for failing to credit fully the
8
9
10

opinions of Dr. Stradinger. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)
(citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see also Lester v.

11 Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035,
12 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
13

D. Drs. Jerry Gardner, Ph.D. and Eugene Fierman, M.D., state agency, nonexamining medical consultants

14

Plaintiff complains that the ALJ failed to credit fully opinions from state agency,
15
16
17

non-examining medical consultants, Drs. Gardner and Fierman (see ECF No. 12, pp. 1416). In his written decision, the ALJ discusses the opinion of Dr. Gardner, whose opinion

18 was affirmed by Dr. Fierman (see Tr. 638).
19

The ALJ credited a portion of Dr. Gardner’s opinion, but gave much of Dr.

20 Gardner’s opinion “little weight” (see Tr. 638). The ALJ relied in part on his reasoning
21 that plaintiff “need not be limited to reading simple sentences as objective test scores
22 reveal a high school graduate level on reading fluency measures, a 9.1 grade level on the
23

letter – word identification subtests and reading comprehension at 11.3 grade level, and

24

ORDER ON PLAINTIFF’S COMPLAINT - 26

1 [plaintiff] herself reported that she dropped out of high school because it was too easy”
2 (see id. (citing Exhibit 19F/3)). This finding by the ALJ is supported by substantial
3 evidence in the record, as Dr. Schneiders’ 2008 report indicates that plaintiff “left school
4
5

during the 10th grade because she was bored” (see Tr. 374), his 2003 report indicates that
she reported that in high school she “was bored because it was ‘too easy’” (see Tr. 378)

6

and plaintiff reported to Dr. Biss in 2008 that “when she placed effort into her behaviors
7

she was capable of receiving A’s” (see Tr. 329).
8
9
10

The ALJ also specified that limitations with respect to “contact with coworkers are
not warranted nor are additional limitations in the skill level of work as the record shows

11 [plaintiff]’s subjective complaints of difficulties in social environments and difficulties
12 with concentration, persistence or pace were found to be minimally credible based on
13 SIMS and MMPI–2 testing” (see Tr. 638).
14

As discussed by the Court previously, see supra, section 1.A, Dr. Biss noted that

15 plaintiff’s “Total Score for the SIMS was a 38, therefore far outweighing the conservative
16 cutoff score of 16” to detect malingering (see Tr. 330). Dr. Biss noted that plaintiff “over
17
18

reported symptoms in every category except psychosis” (see id.). Similarly, also as noted
previously, the MMPI-2 conducted by Dr. Schneider also “indicates over-reporting of

19

symptoms,” and as noted by Dr. Schneider, plaintiff “was endorsing infrequent, unlikely
20

and unrealistic psychiatric symptoms” (see Tr. 375).
21
22
23

The ALJ “may reject the opinion of a non-examining physician by reference to
specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th

24 Cir. 1998) (citing Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996)); Andrews, supra,

ORDER ON PLAINTIFF’S COMPLAINT - 27

1 53 F.3d at 1041). Here, the ALJ specified multiple aspects of the record when failing to
2 credit fully all of the opinion from state agency non-examining doctor, Dr. Gardner,
3 whose opinion was affirmed by Dr. Fierman (see Tr. 638). Based on the record as a
4
5

whole, the Court concludes the ALJ did not err when evaluating the medical evidence
provided by Dr. Gardner, which was affirmed by Dr. Fierman. See Sousa, supra, 143

6

F.3d at 1244 (citing Gomez v. Chater, 74 F.3d at 972).
7
8

(2)

Did the ALJ provide clear and convincing reasons to discredit
plaintiff’s testimony?

9

Plaintiff argues that the ALJ failed to provide clear and convincing rationale for

10 his failure to credit fully plaintiff’s allegations and testimony (see ECF No. 12, pp. 1911
12
13

23). Plaintiff contends that the ALJ “did not give specificity to what testimony he found
not credible and what evidence showed the testimony was not credible” (see id., p. 20).
Although plaintiff acknowledges that the ALJ relied in part on objective testing results

14

and opinion evidence demonstrating plaintiff’s exaggeration, plaintiff argues that “the
15

record shows [plaintiff’s] performance on testing was consistent with a head injury and
16
17
18

her personality disorder” (see id. (citing Tr. 332, 275). Regardless of the cause of
plaintiff’s exaggerated testimony, the fact that plaintiff over-reported symptoms and

19 provided exaggerated testimony is clear and convincing rationale for the failure to credit
20 fully her allegations. Defendant additionally argues that even if the Court concludes that
21 the ALJ committed legal error in the evaluation of plaintiff’s credibility, “the Court
22 should uphold the ALJ’s credibility determination” (ECF No. 16, p. 13 (citing Carmickle
23 v. Comm’r. Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)).
24

ORDER ON PLAINTIFF’S COMPLAINT - 28

1

If the medical evidence in the record is not conclusive, sole responsibility for

2 resolving conflicting testimony and questions of credibility lies with the ALJ. Sample v.
3 Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Waters v. Gardner, 452 F.2d 855,
4
5

858 n.7 (9th Cir. 1971) (Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). An ALJ is
not “required to believe every allegation of disabling pain” or other non-exertional

6

impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citing 42 U.S.C. §
7

423(d)(5)(A) (other citations and footnote omitted)). The ALJ may “draw inferences
8
9
10

logically flowing from the evidence.” Sample, supra, 694 F.2d at 642 (citing Beane v.
Richardson, 457 F.2d 758 (9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D.

11 Cal. 1980)). However, an ALJ may not speculate. See SSR 86-8, 1986 SSR LEXIS 15 at
12 *22.
13

Nevertheless, the ALJ’s credibility determinations “must be supported by specific,

14 cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Bunnell v.
15 Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991) (en banc)). The ALJ may consider
16 “ordinary techniques of credibility evaluation,” including the claimant's reputation for
17
18

truthfulness and inconsistencies in testimony regarding symptoms, and may also consider
a claimant’s daily activities, and “unexplained or inadequately explained failure to seek

19

treatment or to follow a prescribed course of treatment.” Smolen v. Chater, 80 F.3d 1273,
20

1284 (9th Cir. 1996) (citations omitted).
21
22
23

If an ALJ rejects the testimony of a claimant once an underlying impairment has
been established, the ALJ must support the rejection “by offering specific, clear and

24 convincing reasons for doing so.” Smolen, supra, at 1284 (citing Dodrill v. Shalala, 12

ORDER ON PLAINTIFF’S COMPLAINT - 29

1 F.3d 915, 918 (9th Cir.1993)); see also Reddick, supra, 157 F.3d at 722 (citing Bunnell v.
2 Sullivan, supra, 947 F.2d at 343, 346-47).
3
4
5

Here, the ALJ offered multiple reasons for failing to credit fully plaintiff’s
allegations and testimony, such as her non-compliance with medical treatment and
improvement in mental health symptoms when compliant with medication; lack of

6

motivation to work; evidence of limited effort and exaggeration of symptoms; and
7

inconsistent statements. The evidence of limited effort and exaggeration of symptoms,
8
9
10

such as the SIMS report, the MMPI-2 test results, and the opinion by Dr. Biss that
plaintiff was not putting forth full effort, was discussed previously in the context of the

11 medical evidence, see supra, section 1 (see also, e.g., Tr. 328, 330-31, 375). The Court
12 also notes the opinion of Dr. Mary White, M. D. that plaintiff seemed “to make a poor
13 effort during both the interview and the exam” (see Tr. 455-56). Likewise, regarding the
14 ALJ’s finding that plaintiff exhibited a lack of motivation to work even prior to her head
15 injury, the Court already has discussed this finding and has found that it is based on
16 substantial evidence in the record as a whole, see supra, section 1.B. The Court also
17
18

concludes that plaintiff’s lack of effort on testing and evidence of exaggeration, as well as
her demonstrated lack of motivation to work both support the ALJ’s failure to credit fully

19

plaintiff’s allegations and testimony.
20

Similarly, some of the evidence regarding the ALJ’s finding that plaintiff was not
21
22
23

compliant with her prescribed treatment already has been discussed in the context of the
medical evidence, see supra, section 1. The Court also discussed already in detail the

24 ALJ’s finding of plaintiff’s improvement in symptomatology when compliant with her

ORDER ON PLAINTIFF’S COMPLAINT - 30

1 prescribed treatment, see supra, section 1.C. In addition, the Court also notes here that on
2 April 22, 2008, plaintiff “reported that she has been advised to attend counseling, but has
3 been noncompliant” (see Tr. 328). As noted, plaintiff reported that although her Valium
4
5

prescription does not help, “she often over uses the medication” (see id.). Likewise,
regarding plaintiff’s recommended physical therapy, the ALJ noted that in “September

6

2012, the claimant initiated physical therapy but canceled the subsequent appointment
7

and no – showed at her next appointment and was discharged from her physical therapy
8
9
10

plan” (see Tr. 629 (citing Ex. 42F/1, 4) (also noting that plaintiff’s “doctors
recommended continued exercise rather than restricted activity levels”)). Again, the

11 Court concludes that the ALJ’s finding that plaintiff was non-compliant with prescribed
12 treatment is a finding based on substantial evidence in the record as a whole. As already
13 discussed, the Court also concludes that the ALJ’s finding that plaintiff’s symptoms
14 improved when she was compliant with prescribed treatment is a finding based on
15 substantial evidence in the record as a whole, see supra, section 1.C. These findings also
16 support the ALJ’s failure to credit fully plaintiff’s allegations and testimony.
17
18

Finally, the ALJ also noted a plethora of inconsistent statements by plaintiff. As
noted previously, see supra, section 1.B, plaintiff reported not wanting to leave the house

19

and reported avoiding being around more than one person, but also “reported consuming
20

alcohol infrequently at social events” (see Tr. 328, 372). Although on March 28, 2009
21
22
23

plaintiff reported that “she is unable to do almost anything; she lies around most of the
time,” and at her first hearing on December 17, 2010, plaintiff testified that she does not

24 do household chores because it hurts too much (see Tr. 658), in May, 2012, plaintiff

ORDER ON PLAINTIFF’S COMPLAINT - 31

1 reported being a caregiver for her mother because her mother had broken her leg (see Tr.
2 902).
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On December 17, 2010, plaintiff testified that she cannot use a cane or walker to
get around because it hurts her wrists (see Tr. 656), and at her second administrative
hearing on December 6, 2013, plaintiff testified that although her “wrists are still too

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weak to do most things,” (see Tr. 695), she testified that she now was using a cane and
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had been using the cane for “a few years at least” (see Tr. 692).
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The ALJ noted that in the April 2008 evaluation by Dr. Biss, plaintiff reported
discomfort when sitting and moving, however the doctor observed that plaintiff did not

11 express discomfort or move excessively during the 90 minute interview (see Tr. 633
12 (citing Tr. 327)). This finding by the ALJ is supported by substantial evidence in the
13 record, as Dr. Biss’ report includes the following: “[Plaintiff] reported discomfort when
14 sitting and moving. However, she did not express discomfort or move excessively when
15 interviewed in the 1.5 hour time” (Tr. 327). Similarly, the ALJ noted that plaintiff
16 testified at her first administrative hearing in December, 2010 that she could only sit for
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about “a half hour” (see Tr. 664), however in January, 2009, plaintiff reported to Mr.
Francisco that she “has been doing nothing but sits” (see Tr. 391; see also Tr. 633).

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The ALJ also noted that plaintiff reported to Dr. White in March, 2009 “that her
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11-year-old son does the cooking in the home because she cannot stand” (see Tr. 455),
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however plaintiff reported to Ms. Ellen Walker on April 19, 2010, that her son “refuses to
do chores around the house” (see Tr. 518).

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ORDER ON PLAINTIFF’S COMPLAINT - 32

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The ALJ also discussed plaintiff’s inconsistent statements regarding her drug and

2 alcohol use (see Tr. 634). For example, as noted by the ALJ, plaintiff went to the
3 emergency room on February 17, 2010 complaining of rectal pain and stated that she was
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“overusing her methocarbamol and other medications” and reported that she also was
“drinking alcohol for her pain and state[d] that she drinks every single day” (see Tr. 508).

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The ER physician noted that plaintiff “was quite upset that I would not give her anything
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further for pain” (see Tr. 509). On February 23, 2010, plaintiff admitted using
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methamphetamine in the past at age 16 (see Tr. 544). The ALJ also noted that, in addition
to the report to Dr. Biss that plaintiff overused her Valium (see Tr. 328), plaintiff

11 admitted in June, 2011 “that she did have a problem with prescription narcotic abuse in
12 the past, and was getting medications from family members in addition to doctors” (see
13 Tr. 945). Similarly, on June 20, 2011 plaintiff “admitted to taking more pain meds than
14 she needed to and this kept her in bed” (see Tr. 853).
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In contrast to these admissions by plaintiff, as noted by the ALJ, in September

16 2011, plaintiff “stated that she rarely drinks alcohol and denied any toxic habits” (see Tr.
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634 (citing Tr. 843)); and, in the following month, on October 19, 2011 plaintiff denied
any “history of drinking or drug abuse” (see Tr. 848). Similarly, in May, 2012, plaintiff

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indicated that she drank “alcohol on occasion and denied any current or previous illicit []
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substance use or abuse including marijuana” (see Tr. 900). However, in August, 2013,
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plaintiff stated that she had used marijuana in the past (see Tr. 824).
For the stated reasons, the Court concludes that the ALJ’s finding that plaintiff

24 made inconsistent statements is a finding based on substantial evidence in the record as a

ORDER ON PLAINTIFF’S COMPLAINT - 33

1 whole. The Court also concludes that this finding supports the ALJ’s failure to credit
2 fully plaintiff’s allegations and testimony.
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The Ninth Circuit has “recognized that harmless error principles apply in the
Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th

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Cir. 2006) (collecting cases)). The court noted that “several of our cases have held that an
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ALJ’s error was harmless where the ALJ provided one or more invalid reasons for
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disbelieving a claimant’s testimony, but also provided valid reasons that were supported
by the record.” Id. (citations omitted). The Ninth Circuit noted that “in each case we look

11 at the record as a whole to determine [if] the error alters the outcome of the case.” Id. The
12 court also noted that the Ninth Circuit has “adhered to the general principle that an ALJ’s
13 error is harmless where it is ‘inconsequential to the ultimate nondisability
14 determination.’” Id. (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,
15 1162 (9th Cir. 2008)) (other citations omitted). The court noted the necessity to follow
16 the rule that courts must review cases “‘without regard to errors’ that do not affect the
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parties’ ‘substantial rights.’” Id. at 1118 (quoting Shinsheki v. Sanders, 556 U.S. 396, 407
(2009) (quoting 28 U.S.C. § 2111) (codification of the harmless error rule)).

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The Court concludes that even if the ALJ committed an error in the evaluation of
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plaintiff’s credibility, any such error is harmless error. The ALJ included multiple
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findings based on substantial evidence in the record that support his failure to credit fully
plaintiff’s allegations and testimony. The Court concludes that the ALJ provided clear

24 and convincing reasons for his failure to credit fully plaintiff’s credibility.

ORDER ON PLAINTIFF’S COMPLAINT - 34

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CONCLUSION
Based on the stated reasons and the relevant record, the Court ORDERS that this

3 matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
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JUDGMENT should be for defendant and the case should be closed.
Dated this 6th day of November, 2014.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 35