Mangum v. Berryhill

Filing 22

ORDER re 5 Complaint by Judge J Richard Creatura. The Court ORDERS that this matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SANDRA MANGUM,

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Plaintiff,

CASE NO. 3:17-cv-05539-JRC
ORDER ON PLAINTIFF’S
COMPLAINT

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

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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
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Local Magistrate Judge Rule MJR 13 (see also Consent to Proceed Before a United
States Magistrate Judge, Dkt. 2). This matter has been fully briefed. See Dkt. 15, 20, 21.
After considering and reviewing the record, the Court concludes that the ALJ did

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not commit harmful legal error during the evaluation of plaintiff’s Social Security

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applications. Although plaintiff contends that the ALJ erred when evaluating plaintiff’s

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ORDER ON PLAINTIFF’S COMPLAINT - 1

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allegations and testimony, there are many inconsistencies and conflicts between

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plaintiff’s testimony at her hearing about her limitations, and the statements and reports

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throughout the medical record regarding her activities and abilities.

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Similarly, although plaintiff argues that the ALJ erred when evaluating the
medical evidence, when providing their medical opinions, Drs. Lindner and Chalstrom

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both clearly relied heavily on plaintiff’s subjective reports - subjective reports which the
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ALJ properly rejected.
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Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
BACKGROUND

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Plaintiff, SANDRA MANGUM, was born in 1974 and was 39 years old on the

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alleged date of disability onset of June 15, 2013. See AR. 213-19, 220-27. Plaintiff

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completed the ninth grade in school. AR. 40. Plaintiff has work experience as a cashier,

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deli worker, customer service worker and office worker. AR. 46-49, 268-79.

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According to the ALJ, plaintiff has at least the severe impairments of “obesity,
affective disorder, and anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).” AR. 20.
At the time of the hearing, plaintiff was living in a house with her husband and
four children. AR. 41.

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PROCEDURAL HISTORY
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Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42
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U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
following reconsideration. See AR. 83, 84, 111, 112. Plaintiff’s requested hearing was

ORDER ON PLAINTIFF’S COMPLAINT - 2

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held before Administrative Law Judge Ilene Sloan (“the ALJ”) on November 16, 2015.

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See AR. 34-82. On January 6, 2016, the ALJ issued a written decision in which she

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concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 14-

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33.
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) The ALJ

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erred in her consideration of plaintiff’s allegations; (2) The ALJ erred in her weighing of
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the medical opinions; and (3) The ALJ erred in her consideration of the lay witness
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testimony. See Dkt. 15, p. 1.
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

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1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

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1999)).

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DISCUSSION
(1)

Did the ALJ err in her consideration of plaintiff’s allegations?

Plaintiff contends that the ALJ erred when failing to credit fully her allegations

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and testimony. Dkt. 15, pp. 2-11. Defendant contends there is no error. Dkt. 20, pp. 3-7.
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If the medical evidence in the record is not conclusive, sole responsibility for
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resolving conflicting testimony and analyzing a claimant’s testimony regarding
limitations lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999)
(citing Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971) (Calhoun v. Bailar, 626

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F.2d 145, 150 (9th Cir. 1980)). An ALJ is not “required to believe every allegation of

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disabling pain” or other non-exertional impairment. Fair v. Bowen, 885 F.2d 597, 603

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(9th Cir. 1989) (citing 42 U.S.C. § 423(d)(5)(A) (other citations and footnote omitted)).

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Even if a claimant “has an ailment reasonably expected to produce some pain; many
medical conditions produce pain not severe enough to preclude gainful employment.”

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Fair, supra, 885 F.2d at 603. The ALJ may “draw inferences logically flowing from the
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evidence.” Sample, supra, 694 F.2d at 642 (citing Beane v. Richardson, 457 F.2d 758
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(9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)). However, an ALJ
may not speculate. See SSR 86-8, 1986 SSR LEXIS 15 at *22.
Nevertheless, the ALJ’s determinations regarding a claimant’s statements about

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limitations “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d

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715, 722 (9th Cir. 1998) (citing Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir.

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1991) (en banc)). In evaluating a claimant's allegations of limitations, the ALJ cannot

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rely on general findings, but “‘must specifically identify what testimony is credible and

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what evidence undermines the claimant's complaints.’” Greger v. Barnhart, 464 F.3d

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968, 972 (9th Cir. 2006) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,
599 (9th Cir. 1999)); Reddick, supra, 157 F.3d at 722 (citations omitted); Smolen v.

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Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citation omitted).
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The determination of whether or not to accept a claimant's testimony regarding
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subjective symptoms requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929;
Smolen, supra, 80 F.3d at 1281-82 (citing Cotton v. Bowen, 799 F.2d 1407-08 (9th Cir.
1986)). First, the ALJ must determine whether or not there is a medically determinable

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impairment that reasonably could be expected to cause the claimant's symptoms. 20

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C.F.R. §§ 404.1529(b), 416.929(b); Smolen, supra, 80 F.3d at 1281-82. If an ALJ rejects

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the testimony of a claimant once an underlying impairment has been established, the ALJ

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must support the rejection “by offering specific, clear and convincing reasons for doing
so.” Smolen, supra, 80 F.3d at 1284 (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th

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Cir.1993)); see also Reddick, supra, 157 F.3d at 722 (citing Bunnell v. Sullivan, supra,
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947 F.2d at 343, 346-47). For the reasons stated herein, the Court concludes that is what
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the ALJ did here.
One of the findings relied on by the ALJ when failing to credit fully plaintiff’s

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allegations and testimony is a finding that plaintiff “has given inconsistent reports of her

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activities, in a manner that further detracts from her credibility regarding her

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functioning.” AR. 25.

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At her administrative hearing, plaintiff testified that she has not “driven in a very

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long time,” and that she takes a “medication that makes it impossible for [her] to drive.”

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AR. 42. She also testified that she spends the majority of time in her room, and that her

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[husband] will make dinner [and her] children will bring [her] dinner.” AR. 44. She
clarified in her testimony that she stays in her room all day even though no other people

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are home. AR. 53.
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Regarding housekeeping and household chores, plaintiff testified that her husband
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and her daughter “do the cooking,” and that her daughter dusts and vacuums, while her
husband does the grocery shopping. AR. 44-45. She testified that occasionally at night
she will go do the grocery shopping with her husband, but then she gets overwhelmed,

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and scared, and they “just leave,” without finishing their shopping. AR. 54-55. She

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testified that her 20-year-old daughter takes her other daughter and son shopping for

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other things such as clothes. AR. 63.

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Plaintiff testified that she does not read for leisure because she cannot focus. AR.
55-56. Plaintiff testified that she has anxiety attacks at least twice a day, sometimes for

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two hours, sometimes for an entire day. AR. 56. They allegedly are triggered by fear,
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negativity, disappointment and “lots of different things.” AR. 57.
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In contrast to plaintiff’s testimony, the ALJ pointed out that the record reveals
various inconsistencies. See AR. 25. For example, the ALJ noted that during a medical

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appointment “in October 2013, the claimant said that she was currently a homemaker.”

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AR. 25 (citing AR. 376; see also AR. 305 (“I will cook dinner”))). This clearly is a large

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inconsistency. Plaintiff’s testimony suggests that she was not capable of doing very many

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of the tasks that logically would be completed by someone who considers themselves to

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be “a homemaker.” For example, despite testifying that her husband and daughter do the

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cooking, plaintiff wrote in her function report that although she did not want to cook, she

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had “kids that have to be fed,” and therefore prepared food daily. AR. 306.
Similarly, the ALJ pointed out that plaintiff “reported going shopping multiple

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times per week.” AR. 25 (citing AR. 573-84). Although plaintiff did report taking
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Klonopin while she was there and reported having to leave the store, this report in the
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record of regular shopping nevertheless is inconsistent with plaintiff’s testimony that she
only occasionally went shopping at night with her husband (and then left in a panic). The
ALJ also noted how plaintiff reported in a April 2014 function report that she was

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reading “all the time [and] good.” AR. 25 (quoting AR. 288). This is inconsistent with

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plaintiff’s testimony that she cannot focus well enough to read. AR. 55-56.

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The Court concludes that the ALJ’s finding that plaintiff’s activities of daily living
as demonstrated by her contemporaneous reports in the medical record are inconsistent
with plaintiff’s testimony regarding her limitations is a finding based on substantial

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evidence in the record as a whole. The Court also concludes that this finding alone is
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clear and convincing rationale for failing to credit fully plaintiff’s allegations about her
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limitations. The fact that plaintiff repeatedly overstated how limited she was when she
was testifying at her administrative hearing is a clear and convincing reason for failing to
credit fully her testimony about those very limitations.
However, the Court also notes that the ALJ offered other reasons for failing to

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credit fully plaintiff’s allegations and testimony. See AR. 24-25; see also AR. 399

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(“denies anxiety”) (11/26/14)), AR. 461 (“denies anxiety”) (10/09/14), AR. 485 (“normal

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mood and affect: normal attention span and concentration” (10/09/14)). Plaintiff’s

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argument that the ALJ should have credited her testimony that she suffers from disabling

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anxiety attacks when she explicitly “denie[d] anxiety” at least twice to a medical provider
during the relevant period of time is not persuasive.

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For the reasons stated and based on the record as a whole, Court concludes that the
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ALJ provided clear and convincing reasons based on substantial evidence in the record as
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a whole for the failure to credit fully plaintiff’s allegations and testimony.
//
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(2)

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Plaintiff contends that the ALJ erred when weighing the medical opinions. Dkt.

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Did the ALJ err in her weighing of the medical opinions?

15. Defendant contends that there is no error. Dkt. 20.
When an opinion from an examining or treating doctor is contradicted by other
medical opinions, the treating or examining doctor’s opinion can be rejected only “for

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specific and legitimate reasons that are supported by substantial evidence in the record.”
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Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d
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1035, 1043 (9th Cir. 1995).
a. Dr. Karen C. Lindner, Ph.D., P.S., treating therapist
Plaintiff acknowledges that one of the reasons provided for the failure to credit

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fully the opinion from this treating psychologist was that the psychologist had not

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referred to any “objective evidence to support her multifaceted assessment of

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psychological disability. Rather, her only expressed basis was a recitation of the

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claimant’s subjective reporting.” See Dkt. 15, p. 14 (quoting AR. 27). However, plaintiff

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does not acknowledge that this finding by the ALJ is based on substantial evidence in the

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record as a whole. Instead, plaintiff argues that Dr. Lindner had seen plaintiff for weekly
counseling sessions and “had the opportunity to make her own observations and measure

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plaintiff’s behaviors against [plaintiff’s] reporting.” Id.
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While it is true that Dr. Lindner had the opportunity to make her own
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observations, there is no evidence in the record that she did so. Of course, that does not
mean that Dr. Lindner did not perform a mental status examination. However, it does
mean that the ALJ’s finding that Dr. Lindner did not refer to any objective evidence to

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support her opinion, but rather appeared to rely simply on plaintiff’s subjective reporting,

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is based on substantial evidence in the record as a whole. For example, when providing

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her opinion on November 20, 2015, Dr. Lindner specifically indicated that plaintiff

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“reported symptoms of increased heart rate and blood pressure with profuse sweating
plus intense fear if she thinks about leaving her home, or on good days, her house.” AR.

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622. In the next paragraph, Dr. Lindner reported that plaintiff’s “symptoms grew from
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there,” and recited some of plaintiff’s reported symptoms. Id. Similarly, in the subsequent
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paragraph, Dr. Lindner reported what plaintiff “wanted," and what plaintiff “thought.” Id.
Finally, in the only other paragraph other than the concluding opinion, Dr. Lindner again

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reported plaintiff’s return for treatment “in July 2014 with many of the same symptoms,"

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and again reported plaintiff’s subjective recitation of her symptoms. AR. 63. Plaintiff has

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not directed the Court to any evidence in the record that Dr. Lindner made any objective

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observations or performed any mental status examination, or did anything other than

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listen to plaintiff’s subjective reports, than make an assessment and provide a plan. See

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id.; see also AR. 343-49.

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For the reasons stated, the Court concludes that the ALJ’s finding that Dr. Lindner
did not refer to any objective medical evidence, but instead appear to have relied largely

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on plaintiff’s subjective reporting when rendering her medical opinion is a finding based
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on substantial evidence in the record as a whole. As the Court already has concluded that
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the ALJ did not err when failing to credit fully plaintiff’s allegations and testimony, see
supra, section 1, the Court also concludes that this finding regarding reliance on
plaintiff’s subjective statements is a specific and legitimate reason for the failure to credit

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fully Dr. Lindner’s opinion, and for giving it only minimal weight. There is no harmful

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error.

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b. Dr. William J. Chalstrom, Ph.D., examining doctor
Plaintiff next contends that the ALJ erred when failing to credit fully the medical
opinion from Dr. Chalstrom, noting that the “ALJ gave minimal weight to Dr.

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Chalstrum’s opinions for the same reasons that she had found that plaintiff was not fully
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credible.” See Dkt. 15, p. 16 (citing AR. 26-27). Defendant contends that there is no
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error. Dkt. 20, p. 12-13.
Dr. Chalstrom performed at least a mini mental status examination (“MMSE”), but

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also appears to have relied heavily on plaintiff’s subjective statements. See AR. 568-72.

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Dr. Chalstrom provided the following medical source statement:

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The claimant is a 40-year old female, who is experiencing significant
problems with anxiety. MSE indicates that she has problems with
memory and concentration due to anxiety. She is normally capable of
understanding, remembering, and carrying out short and simple
instructions, but has trouble when experiencing a panic attack or undue
worry. She would even have difficulty getting to work, since she does
not want to leave her house alone and would have to be accompanied by
her husband or one of her children. She was feeling overwhelmed when
she quit her two part-time jobs over a year ago. She is able to socialize
with a few friends and family, but experiences dizziness and pounding
heart when she even thinks about how she felt in her old jobs. She won’t
go to other people’s homes, so they have to come to hers.
AR. 572.

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Dr. Chalstrom opined that plaintiff normally is capable of understanding,

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remembering, and carrying out short and simple instructions, which likely would lead to

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a finding that she could perform competitive work, but he also opined that plaintiff has

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trouble when experiencing a panic attack or undue worry. However, since the record does

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not appear to reflect that she was having a panic attack during this examination, Dr.

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Chalstrom’s opinion that plaintiff has panic attacks, and what symptoms she experiences

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when she is having them, logically, is largely, if not entirely, based on plaintiff’s
subjective reports. Similarly, Dr. Chalstrom indicated that plaintiff would have difficulty

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getting to work, but indicated that this opinion was based on fact that plaintiff does not
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want to leave the house alone, again, the limitation clearly being based on plaintiff’s
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subjective report.
For the reasons stated, the Court concludes that the ALJ’s finding that Dr.

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Chalstrom based his opinions regarding plaintiff’s limitations on plaintiff subjective

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reports of panic attacks and agoraphobia is based on substantial evidence in the record as

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a whole.

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The ALJ also gave Dr. Chalstrom’s opinion minimal weight on the basis that

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plaintiff’s “long-standing reports of panic attacks predated employment 2012 in 2013.”

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AR. 27. That plaintiff was able to work while allegedly suffering from panic attacks

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buttresses the ALJ’s failure to credit fully the medical opinion that they would render
plaintiff incapable of carrying out simple instructions. The ALJ also found that plaintiff’s

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“activities and examination findings since her alleged onset date reflect generally intact
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psychological functioning, [and that] based on her work history, activities, examination
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findings, and treatment records, [the ALJ] [gave] much greater weight to other
assessments.” Id.

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The Court concludes that the ALJ’s rationale entails specific and legitimate

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rationale based on substantial evidence in the record as a whole for the failure to credit

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fully Dr. Chalstrom’s opinion. Again, the Court finds no error.

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c. Dr. Cynthia Collingwood, Ph.D., non-examining psychologist
Finally, plaintiff contends that the ALJ erred by giving the greatest weight to the

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opinion of Dr. Collingwood, a non-examining doctor who reviewed the record. See Dkt.
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15, pp. 16-17. Plaintiff contends that Dr. Collingwood's opinion was given too much
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weight, as Dr. Collingwood did not have the ability to review the assessments provided
by Dr. Chalstrom and Dr. Lindner. However, as discussed above, the ALJ appropriately

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rejected the opinions provided by Drs. Chalstrom and Lindner, see supra, section 2.a and

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b. Furthermore, the ALJ gave greater weight to Dr. Collingwood’s opinion because of a

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finding that it is “consistent with the claimant’s work history, treatment records,

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examination findings and reported activities." AR. 27.

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A non-examining psychologist’s opinion may not constitute substantial evidence
by itself sufficient to justify the rejection of an opinion by an examining physician or
psychologist. Lester, supra, 81 F.3d at 831 (citations omitted). However, “it may
constitute substantial evidence when it is consistent with other independent evidence in

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the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing
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Magallanes, supra, 881 F.2d at 752).
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Here, the Court concludes that the ALJ’s finding that Dr. Collingwood’s opinion is
consistent with other independent evidence in the record is a finding based on substantial
evidence in the record as a whole. See id. The Court also concludes that the ALJ’s

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resolution of the conflicts in the medical evidence is reasonable and based on substantial

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evidence in the record as a whole. Again, the Court finds no error.

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The ALJ is responsible for evaluating a claimant's testimony and resolving
ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).

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(3)

Did the ALJ err in her consideration of the lay witness testimony?

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Pursuant to the relevant federal regulations, in addition to “acceptable medical
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sources,” that is, sources “who can provide evidence to establish an impairment,” 20
C.F.R. § 404.1513 (a), there are “other sources,” such as friends and family members,

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who are defined as “other non-medical sources” and “other sources” such as nurse

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practitioners, physician assistants, therapists and chiropractors, who are considered other

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medical sources, see 20 C.F.R. § 404.1513 (d). See also Turner v. Comm’r of Soc. Sec.,

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613 F.3d 1217, 1223-24 (9th Cir. 2010) (citing 20 C.F.R. § 404.1513(a), (d)); Social

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Security Ruling “SSR” 06-3p, 2006 SSR LEXIS 5 at *4-*5, 2006 WL 2329939. An ALJ

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may disregard opinion evidence provided by both types of “other sources,” characterized

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by the Ninth Circuit as lay testimony, “if the ALJ ‘gives reasons germane to each witness
for doing so.’” Turner, supra, 613 F.3d at 1224 (quoting Lewis v. Apfel, 236 F.3d 503,

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511 (9th Cir. 2001)); see also Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.
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1996). This is because in determining whether or not “a claimant is disabled, an ALJ
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must consider lay witness testimony concerning a claimant's ability to work.” Stout v.
Commissioner, Social Security Administration, 454 F.3d 1050, 1053 (9th Cir. 2006)

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(citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4)

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and (e), 416.913(d)(4) and (e)).

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Here, the ALJ considered the lay statement provided by plaintiff’s husband and
offered germane reasons for failing to credit it fully. Specifically, the ALJ included the
following discussion in the written decision:

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I have taken into consideration the statements of Isaac Mangum, the
claimant’s spouse. In a function report from April 2014, Mr. Mangum
wrote that the claimant was unable to work due to chronic pain, constant
migraine headaches, and anxiety. He also reported that the claimant
prepared full meals and that “she’s faster [at meal preparations] than I
am.” He declared that she regularly visited stores for shopping. He
denied that she had problems getting along with other people, including
authority figures. He stated that she could pay attention “for as long as
needed” and that she follow directions “very well” (internal citation to
exhibit 3E). During the hearing, Mr. Mangum testified that he performed
the household cooking, cleaning, and transportation. He stated that she
was unable to tolerate public settings for prolonged periods due to fear.
He said that she spent most for time in her bedroom. He declared that the
claimant’s psychiatric medications did not significantly improve her
psychological state (hearing). I give minimal weight to Mr. Mangum’s
statements. The claimant’s headaches, chronic pain, and anxiety have not
prevented past work. Her treatment records indicate that these issues
have either remained stable since her alleged onset date or improved
with changes in medication. The claimant’s activities (including those
reported by Mr. Mangum) otherwise contradict Mr. Mangum’s report of
the claimant’s severe psychological issues.
AR. 25-26.

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The Court concludes that this discussion by the ALJ entails germane rationale for
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failing to credit fully the lay statement provided by plaintiff’s husband. See id.
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Furthermore, the Court finds persuasive defendant’s argument that “even if the ALJ had
not provided germane reasoning, any error would be harmless.” Dkt. 20, p. 14. As noted

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by defendant, plaintiff “acknowledges that her husband’s statements were consistent with

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what she said about her symptoms.” Id. at 15 (citing Dkt. 15, p. 18).

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If the ALJ has provided proper reasons to discount the lay testimony in another
aspect of the written decision, such as within the discussion of plaintiff’s testimony, the
lay testimony may be considered discounted properly even if the ALJ fails to link

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explicitly the proper reasons to discount the lay testimony to the lay testimony itself. See
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Molina v. Astrue, 674 F. 3d 1104, 1121 (9th Cir. 2012) (quoting Lewis v. Apfel, 236 F.3d
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503, 512 (9th Cir. 2001)). The Court concludes that there is no error.
CONCLUSION

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

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Dated this 16th day of April, 2018.

A

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J. Richard Creatura
United States Magistrate Judge

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