United States District Court, W.D. Washington, Tacoma
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 16), Defendant's objections to the R&R (Dkt. 16), and Plaintiff's response to Defendant's objections (Dkt. 20).
On October 29, 2013, Judge Strombom issued an R&R recommending that the Court reverse the Administrative Law Judge's ("ALJ") conclusion that Plaintiff Christine Martino ("Martino") was not disabled and remand for further proceedings. Dkt. 16. On October 29, 2013, Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), filed objections to the R&R arguing that Judge Strombom erred in her evaluation and conclusion of the ALJ's decision and maintaining it should be upheld. Dkt. 19. On November 27, 2013, Martino responded arguing that Judge Strombom's recommendation to reverse and remand the ALJ's decision is correct and should therefore be adopted. Dkt. 20.
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).
In Judge Strombom's decision, she summarizes Martino's arguments and indicates that she agrees in part with them and recommends reversal and remand. Specifically, she states:
Plaintiff argues the Commissioner's final decision should be reversed and remanded for further administrative proceedings because the ALJ erred in failing: (1) to give sufficient reasons for rejecting the limitations in understanding, remembering and carrying out instructions and in social functioning found by examining psychologist, Scott T. Alvord, Psy.D.; (2) to adequately explain his assessment of plaintiff's residual functional capacity; (3) to make sufficient findings supporting his determination that she could perform her past relevant work.... [T]he undersigned agrees the ALJ failed to give sufficient reasons for rejecting the limitations in social functioning Dr. Alvord found, and thus erred in determining plaintiff to be not disabled. Also... the undersigned recommends that defendant's decision to deny benefits should be reversed, and that this matter should be remanded for further administrative proceedings.
Dkt. 16 at 2. In analyzing part of Martino's argument, Judge Strombom explains:
The ALJ in this case assessed plaintiff with a residual functional capacity that included the mental limitations that she "should have no contact with the public" and only "occasional interaction with coworkers." AR 22. Plaintiff argues, and the undersigned agrees, that in light of the ALJ's failure to provide sufficient reasons for rejecting the remaining mental functional limitations Dr. Alvord found, the RFC he assessed cannot be said to accurately describe all of her mental functional limitations and therefore supported by substantial evidence. Also because of the ALJ's errors, the undersigned further agrees with plaintiff that the ALJ's determination at step four of the sequential disability evaluation process that she is capable of returning to her past relevant work (see AR 25) cannot be upheld at this time as being supported by the substantial evidence in the record. Lastly, while plaintiff did not specifically challenge the ALJ's alternative finding at step five that she is capable of performing other jobs existing in significant numbers in the national economy (see AR 25), clearly that finding also cannot stand given the ALJ's errors in evaluating the medical evidence in the record and in assessing plaintiff's RFC.
Dkt. 18 at 8.
The Court disagrees with Judge Strombom's assessment of the ALJ's decision and finds that he provided sufficient reasons for rejecting the mental functional limitations that he did. The ALJ discussed and considered Dr. Alvord's opinion and then explained the reasons for rejecting some of the doctor's assessment of Martino's mental function limitations:
The claimant underwent a psychological evaluation with Scott Alvord, Psy.D., in June 2011. She denied any drug or alcohol use. On mental status examination, she exhibited anxiety throughout the evaluation. Mood was depressed and affect was downtrodden. Rey 15-Item Visual Memory Test and Test of Memory Malingering scores were within normal limits. MMPI-2 suggested slightly over-exaggerated reports of psychological distress. Full Scale IQ score was in the average range. Memory abilities were intact on the WMS-III. She was diagnosed with bipolar affective disorder and posttraumatic stress disorder and assessed a GAF of 45. Dr. Alvord opined her adaptive functioning was moderately to severely impaired. She would have significant difficulty functioning in an occupational setting. He opined she was moderately limited in the ability to understand, remember and carry out simple instructions. She was markedly limited in the ability to make judgments on simple and complex work-related decisions and in the ability to understand, remember and carry out complex instructions. She was markedly limited in the ability to interact with the public, supervisors and coworkers and in the ability to respond appropriately to usual work situations and changes in a routine work setting. (Exhibit 14F). The opinion of Dr. Alvord is given little weight. While the claimant has mental limitations, her presentation on mental status examination and psychological testing does not suggest difficulties with understanding, remembering or carrying out tasks. She has some social limitations but her daily activities support a finding that she is capable of work with no public contact and occasional contact with coworkers. The claimant states she has experienced difficulties with social functioning her whole life (Exhibit 15F-7) but she has worked in the past despite these difficulties. She has repeatedly expressed willingness to return to work, suggesting her anxiety is not incapacitating (Exhibit 1F-3, 5-6, 8, 45).
TR. at 24-25.
Prior to coming to this determination, the ALJ properly analyzed Martino's credibility, finding that her statements "concerning the intensity, persistence and limiting effects of these symptoms are not fully credible" based on the record. TR at 23. Moreover, the ALJ considered the evidence in the record regarding her work history, daily living activities and social interactions over a span of time. See TR. at 23-24. Contrary to Judge Strombom's conclusion, the Court finds that the ALJ's determination of non-disability is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971) (substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"); Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (substantial evidence is more than a scintilla, but less than a preponderance). Thus, as the Commissioner argues, "[t]he Court must uphold the Commissioner's denial of benefits if the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision." Dkt. 19 at 6 ( citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). The ALJ's decision is rational and must be upheld.
Similarly, contrary to Judge Strombom's decision, the ALJ's finding that Ms. Martino was willing to return to fulltime work is a reasonable inference for the ALJ to make based on the record, including, but not limited to, Martino's statements relating to her desire to return to work and her willingness to return to work despite her difficulties (Tr. 25, citing Tr. 271, 273-74, 276, 313). Although Martino's statements could be interpreted as an expression of willingness to work but not on a fulltime basis, the ALJ's interpretation in light of his assessment of the medical evidence, Martino's credibility and work history in context of the record as a whole ...