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Corey P. v. Berryhill

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
Oct 23, 2018
CASE NO. 3:18-cv-5007 MJP-JRC (W.D. Wash. Oct. 23, 2018)

Opinion

CASE NO. 3:18-cv-5007 MJP-JRC

10-23-2018

COREY P., Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.


REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT NOTING DATE: November 9, 2018

This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed. See Dkts. 12, 13, 14.

After considering and reviewing the record, the Court finds that the ALJ's decision is based on substantial evidence. The ALJ made a clerical error in failing to include plaintiff's severe impairment of intermittent explosive disorder in the heading of his step two discussion. However the ALJ did include this disorder in his substantive discussion of step two, as well as included limitations from the disorder in his RFC. Therefore, any error in omitting intermittent explosive disorder from the heading at step two is harmless.

The ALJ erred in his statement that Dr. Morgan's psychological opinion was based entirely on plaintiff's self-reports, however, this error is harmless because the ALJ based his ultimate decision on the five other psychological opinions in the record. Therefore, the decision as a whole is based on substantial evidence.

The ALJ also committed harmless error in failing to give a germane reason for rejecting the testimony of plaintiff's case manager. However, the case manager's opinion did not include any functional limitations that had not already been contemplated in the RFC. Therefore, crediting the case manager's opinion as true would not result in any additional limitations in the RFC.

Accordingly, this Court recommends that this matter be affirmed pursuant to 42 U.S.C. § 405(g).

BACKGROUND

Plaintiff, COREY P., was born in 1975 and was 36 years old on the alleged disability onset date of January 8, 2011. AR. 28, 43. Plaintiff has completed two years of college, and has past work history as a welder. AR 437, 465. Plaintiff stopped working because of his medical conditions. AR. 436.

According to the ALJ, plaintiff has at least the severe impairments of "degenerative disc disease, cognitive disorder, major depressive disorder, post-traumatic stress disorder, and alcohol abuse. (20 CFR 404.1520(c) and 416.920(c))." AR. 31.

At the time of the hearing, plaintiff was homeless. AR. 65.

PROCEDURAL HISTORY

Plaintiff's applications for disability insurance ("DIB") benefits pursuant to 42 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. YY). Plaintiff's requested hearing was held before Administrative Law Judge Steve Lynch ("the ALJ") on November 12, 2015. AR. 28. On December 9, 2015, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 28-45.

On November 6, 2017, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review. AR. 1; see 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in January 2018. See Dkt. 1. Defendant filed the sealed administrative record ("AR.") regarding this matter on March 9, 2018. See Dkt. 10.

Plaintiff had a previous hearing wherein the ALJ issued an unfavorable decision, and the Appeals Council accepted review and remanded this case to the ALJ for a new hearing. The ALJ again issued an unfavorable decision, which is the subject of review in this report and recommendation.

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether the ALJ failed to include intermittent explosive disorder as a severe impairment; (2) Whether the ALJ improperly rejected the opinion of examining provider David Morgan, PhD.; and (3) Whether the ALJ improperly rejected the opinion of treating provider Youri Archer, MSW.

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STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not 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. 1999)).

DISCUSSION

I. Whether the ALJ failed to include intermittent explosive disorder as a severe impairment.

Plaintiff alleges that the ALJ erred by failing to include plaintiff's diagnosis of intermittent explosive disorder as a severe impairment at step two. Step-two of the administration's evaluation process requires the ALJ to determine if the claimant "has a medically severe impairment or combination of impairments." Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citation omitted); 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (1996). The Administrative Law Judge "must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether [or not] each alone was sufficiently severe." Smolen, supra, 80 F.3d at 1290 (citations omitted).

Here, the ALJ found that plaintiff has the severe impairments of degenerative disc disease, cognitive disorder, major depressive disorder, posttraumatic stress disorder, and alcohol abuse. AR. 31. In his substantive discussion of plaintiff's severe impairments, the ALJ also stated that the medical expert who testified at the hearing noted that plaintiff had the following diagnoses: major depressive disorder; intermittent explosive disorder; traumatic brain injury; posttraumatic stress disorder; and alcohol abuse. AR. 31. The ALJ then stated that "[t]he above impairments caused significant limitations in the claimant's ability to perform basic work activities during this period." AR. 31. The ALJ discussed intermittent explosive disorder in his credibility analysis. AR 36. The ALJ also affirmatively raised the issue of intermittent explosive disorder with the medical expert who appeared at the hearing stating "when I see a diagnosis of intermittent explosive disorder, it always makes me concerned about, you know, how often that might have been, or, you know, whether - how that would impact work ability." AR. 61. In his written decision, the ALJ noted that "objective medical evidence in the record supports limiting the claimant... to less than occasional public interaction; and occasional interaction with supervisors and coworkers." AR. 37. The ALJ included these limitations in plaintiff's RFC. AR. 33. Therefore, it appears that the ALJ simply made a clerical error in omitting intermittent explosive disorder from the heading at step two. See AR. 31. This is not harmful error.

The Ninth Circuit recently addressed this issue stating that "[s]tep two is merely a threshold determination meant to screen out weak claims... [and] [t]he RFC therefore should be exactly the same regardless of whether certain impairments are considered 'severe' or not." Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (citing Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987))(emphasis in original); see also Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1164 (9th Cir. 2008)(finding that the ALJ erred in not including limitations from Carmickle's non-severe tendonitis impairment in his RFC assessment). Therefore, even if the ALJ did err in failing to name intermittent explosive disorder as a severe impairment, this error was harmless because the ALJ included limitations from the disorder in the RFC. AR. 33.

Courts must review cases "'without regard to errors' that do not affect the 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)). Here, there is substantial evidence to show that the ALJ does appear to have considered plaintiff's diagnosis of intermittent explosive disorder as a severe impairment. The ALJ included limitations from that diagnosis in the RFC, and included the diagnosis in the substantive discussion of whether plaintiff's impairments prohibited him from working. The Ninth Circuit has reaffirmed the explanation in Stout that "ALJ errors in social security are harmless if they are 'inconsequential to the ultimate nondisability determination.'" Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout, 454 F.3d at 1055-56). Here, the ultimate disability decision would be unlikely to change if plaintiff's diagnosis of intermittent explosive disorder were included in the heading of the discussion at step two.

II. Whether the ALJ improperly rejected the opinion of examining provider David Morgan, PhD.

Plaintiff asserts that the ALJ improperly rejected the opinion of examining provider David Morgan, PhD. The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician or psychologist. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). But when a treating or examining physician's opinion is contradicted, that opinion can be rejected "for specific and legitimate reasons that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 (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 can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ stated that Dr. Morgan's evaluation was contradicted by other psychological evaluations in the record and, therefore, he must give specific, legitimate reasons for assigning little weight to Dr. Morgan's opinion. Lester, 81 F.3d at 830-31.

Here, the ALJ assigned little weight to the psychological evaluation by David Morgan, PhD. AR. 38. The ALJ stated that Dr. Morgan noted marked impairments in eight areas of functioning, but provided little explanation to support those limitations. AR. 38. Dr. Morgan's evaluation includes a mental status exam, a brief synopsis of plaintiff's medical and mental health history, and list of functional limitations with check-boxes with mild to severe ratings. AR.773-77. The ALJ rejected Dr. Morgan's findings because he did not did not give a functional explanation of his finding. AR. 38. An ALJ need not accept the opinion of a treating physician if that opinion is brief, conclusory, and inadequately supported by clinical findings or by the record as a whole. Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Therefore, this is a specific and legitimate reason for assigning little weight to Dr. Morgan's testimony.

The ALJ also assigned little weight to Dr. Morgan because Dr. Morgan's report "appears to be based wholly on the subjective representations of the claimant" who the ALJ found was not entirely credible. AR. 39. The Ninth Circuit has held that "[a] physician's opinion of disability 'premised to a large extent upon the claimant's own accounts of his symptoms and limitations' may be disregarded where those complaints have been" discounted properly. Morgan, supra, 169 F.3d at 602 (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (citing Brawner v. Sec. HHS, 839 F.2d 432, 433-34 (9th Cir. 1988))). Plaintiff did not challenge the ALJ's credibility determination. However, plaintiff points out that Dr. Morgan did review plaintiff's medical records, indicating that Dr. Morgan's opinion is not based entirely on plaintiff's self-reports. AR. 773. Like all findings by the ALJ, a finding that a doctor's opinion is based largely on a claimant's own accounts of his symptoms and limitations must be based on substantial evidence in the record as a whole. See Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Because Dr. Morgan based his opinion in part on plaintiff's medical records, his reason for rejecting Dr. Morgan's opinion as being based solely on plaintiff's self-reports is not based on substantial evidence.

However, the ALJ gave detailed explanation of the five other psychological opinions found in the record. See AR. 38-43. The ALJ noted psychological and neuropsychological opinions from Todd Bowerly, PhD., Lawrence Moore, PhD., Jamie Carter, PhD., Linda Fishermen, PhD., and John Nance, PhD. AR. 38-43. The ALJ assigned three of these examiners great or significant weight, and assigned some weight to the other two. AR. 38-43. The ALJ found that the other psychological examiners gave opinions that were consistent with each other.

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)). Determining whether or not inconsistencies in the medical evidence "are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount" the opinions of medical experts "falls within this responsibility." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999)). If the medical evidence in the record is not conclusive, sole responsibility for resolving conflicting testimony and evaluating a claimant's testimony lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971) (citing Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980))).

It is not the job of the court to reweigh the evidence: If the evidence "is susceptible to more than one rational interpretation," including one that supports the decision of the Commissioner, the Commissioner's conclusion "must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan, 169 F.3d at 599, 601). Therefore, although the ALJ erred in his statement that Dr. Morgan's opinion was based largely on plaintiff's self-reports, the ALJ's decision as a whole is based on substantial evidence.

III. Whether the ALJ improperly rejected the opinion of treating provider Youri Archer, MSW.

Plaintiff asserts that the ALJ erred in assigning little weight to the opinion of Youri Archer. AR. 42-43. Pursuant to the relevant federal regulations, in addition to "acceptable medical 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, who are defined as "other non-medical sources" and "other sources" such as nurse practitioners, physician assistants, therapists, and chiropractors, who are considered other medical sources. See 20 C.F.R. § 404.1513 (d). See also Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010) (citing 20 C.F.R. § 404.1513(a), (d)); Social Security Ruling "SSR" 06-3p, 2006 SSR LEXIS 5 at *4-*5, 2006 WL 2329939. An ALJ may disregard opinion evidence provided by both types of "other sources," characterized by the Ninth Circuit as lay testimony, "if the ALJ 'gives reasons germane to each witness for doing so.'" Turner, 613 F.3d at 1224 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); see also Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). This is because in determining whether or not "a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work." Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) and (e), 416.913(d)(4) and (e)).

Here, the ALJ assigned case manager Archer's opinion little weight because he has only known the plaintiff since 2012 and did not know plaintiff before his accidents. The ALJ also discounted this testimony because case manager Archer stated that awarding plaintiff benefits would assist plaintiff in obtaining better housing and medical care—a reason the ALJ cannot consider in awarding benefits. Plaintiff concedes that the latter reason for rejecting case manager Archer's testimony.

The fact that case manager Archer did not know plaintiff prior to his accident is not a germane reason for rejecting the testimony. Case manager Archer is plaintiff's case manager who has seen plaintiff regularly since 2012. AR. 905. Although he did not know plaintiff prior to 2012, case manager Archer is able to give insight into plaintiff's current level of functioning, which is the pertinent issue in a disability case. Moreover, the record does support case manager Archer's assertion that before plaintiff's injury, he had a career. Plaintiff's earning records show an abrupt decline in 2008. AR. 409-10. Before this, the record shows that plaintiff had regular earnings. AR. 409-10. An ALJ may discredit lay testimony if it conflicts with medical evidence, even though it cannot be rejected as unsupported by the medical evidence. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (An ALJ may discount lay testimony that "conflicts with medical evidence") (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984); Baylis v. Barnhart, 427 F.3d 1244. 1218 (9th Cir. 2005) ("Inconsistency with medical evidence" is a germane reason for discrediting lay testimony) (citing Lewis, 236 F.3d at 511). Here, there is no conflict between the medical evidence and case manager Archer's testimony that plaintiff suffers from memory problems, depression, low self-esteem, and is forgetful of appointments. Therefore, this is not a germane reason for rejecting case manager Archer's testimony.

However, this Court must also consider whether the ALJ's error in rejecting case manager Archer's testimony was harmful error. The Ninth Circuit has held that "where the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Stout, 454 F.3d at 1056 (reviewing cases).

The failure to give individualized reasons for rejecting a lay witness's statement is not per se prejudicial if the ALJ gave well supported reasons for rejecting similar testimony. Molina v. Astrue, 674 F. 3d 1104, 1117 (9th Cir. 2012). 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 explicitly the proper reasons to discount the lay testimony to the lay testimony itself. See Molina, 674 F.3d at 1121 (quoting Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001)). Here, the ALJ rejected a portion of plaintiff's mother's testimony because she did not "explain how the claimant's current limitations would prevent the performance of work consistent with the residual functional capacity." AR.42.

Case manager Archer stated in her testimony that plaintiff "experiences memory impairments, migraines, episodes of depression and feelings of low self worth." AR. 905. Case manager Archer also stated that plaintiff is "hopeless with low self worth and episodes of depression that last for days." AR. 905. The remainder of case manager Archer's testimony discusses plaintiff's difficult life circumstances. See AR. 905. Case manager Archer's testimony does not present measurable functional limitations, with the exception of the statement that plaintiff experiences "depression that lasts for days." AR. 905. However, this statement does not describe how frequently plaintiff experiences depression, nor his functioning when experiencing days-long depression. Moreover, the ALJ did include limitations accommodating plaintiff's mental impairments in the RFC. Therefore, even when crediting case manager Archer's testimony in full, it is unlikely to change the ultimate disability determination. Stout, 454 F.3d at 1056 (reviewing cases). As discussed above, the ALJ based his opinion on substantial evidence in the record, having considered the medical opinions of six psychologists. Therefore, any error in assigning little weight to case manager Archer's opinion is harmless error.

CONCLUSION

Based on these reasons, and the relevant record, the undersigned recommends that this matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). JUDGMENT should be for DEFENDANT and the case should be closed.

Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on November 9, 2018, as noted in the caption.

Dated this 23rd day of October, 2018.

/s/_________

J. Richard Creatura

United States Magistrate Judge


Summaries of

Corey P. v. Berryhill

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
Oct 23, 2018
CASE NO. 3:18-cv-5007 MJP-JRC (W.D. Wash. Oct. 23, 2018)
Case details for

Corey P. v. Berryhill

Case Details

Full title:COREY P., Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner of Social…

Court:UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Date published: Oct 23, 2018

Citations

CASE NO. 3:18-cv-5007 MJP-JRC (W.D. Wash. Oct. 23, 2018)