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Bondarenko v. Colvin

United States District Court, E.D. Washington

August 22, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-motions for summary judgment. ECF No. 17, 19. Attorney Dana C. Madsen represents Plaintiff; Special Assistant United States Attorney Franco L. Becia represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 7. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff's Motion for Summary Judgment and DENIES Defendant's Motion for Summary Judgment.


On June 28, 2007, Plaintiff filed Title II and Title XVI applications for a period of disability and disability insurance benefits, alleging disability beginning on August 10, 2006. Tr. 107, 303. Plaintiff reported she could not work due to psychosis NOS and bipolar disorder. Tr. 276. Plaintiff's claim was denied initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ). Tr. 155-231. The first hearing was held on August 25, 2009, at which time medical expert Margaret Moore, Ph.D., and Plaintiff, who was represented by counsel, testified. Tr. 40-64. ALJ R.J. Payne presided. Tr. 40. The ALJ denied benefits on September 4, 2009. Tr. 107-124.

The Appeals Council granted review and remanded the case with instructions to the ALJ to: (1) further evaluate Plaintiff's mental impairments and reconcile inconsistent findings within the ALJ's opinion; (2) give further consideration to Plaintiff's RFC "and provide rationale with specific references to evidence of record in support of all assessed limitations... [i]n so doing, evaluate the nonexamining source opinion of Dr. Underwood... and explain the weight given to such opinion evidence;" and (3) if warranted, obtain vocational expert testimony. Tr. 131.

ALJ Payne convened a second hearing on January 7, 2011. Tr. 65-76. At that hearing, medical expert Thomas McKnight, Ph.D., questioned "whether or not [Plaintiff] actually has a mental health-related disorder or this is a rather histrionic parent/child related disorder, or there's malingering." Tr. 74. Dr. McKnight recommended Plaintiff undergo a "thorough examination by a dispassionate individual" to provide insight into Plaintiff's psychological functioning. Tr. 74. The ALJ ordered the exam. Tr. 74-75. On March 1, 2011, Plaintiff was examined by James E. Bailey, Ph.D. Tr. 570-576. The ALJ convened a third hearing on May 26, 2011. Tr. 77-99. At that hearing, medical expert Thomas McKnight, Ph.D., and Plaintiff, who was represented by counsel, testified. Tr. 81-99. On June 10, 2011, the ALJ issued a decision finding that Plaintiff was not disabled. Tr. 23-34. The Appeals Council declined review. Tr. 1-3. The instant matter is before the Court pursuant to 42 U.S.C. § 405(g).


The facts have been presented in the administrative hearing transcript, the ALJ's decision, and the briefs of the parties and thus, they are only briefly summarized here. At the time of the first hearing, [1] Plaintiff was 28 years old, divorced, and living at home with her parents and siblings. Tr. 415. Her family emigrated from Kyrgyzstan when she was 11 years old, she graduated from high school, and she took some classes at a local community college. Tr. 53, 571, 584.

Plaintiff reported her past work included delivering flowers, filing medical records, cleaning offices, telephonic customer service, providing childcare at a daycare, fast food worker and housekeeper at a convent. Tr. 53-54, 56, 58, 415. Plaintiff testified she stopped working due to "total confusion of the mind." Tr. 59. She also testified that after August 2009, she worked briefly for Kirby Vacuums but quit because it was commission-based, and she did not make enough money. Tr. 95.

Plaintiff testified she spends her day watching television, "reading, eating, going out, riding [a] bike... babysitting my nephew, helping my mom clean the house. I just do normal stuff." Tr. 62. When asked how she thought she would perform if she obtained a job, Plaintiff responded:

A. "I think I would do really good. I would try my best. I've been okay for months now, for like maybe six months, and since I haven't been sick, I've been recovering, getting stronger, and psychologically getting stronger and every other way."

Tr. 63.


The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, with deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to support the administrative findings, or if conflicting evidence exists that will support a finding of either disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).


The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes that a physical or mental impairment prevents him from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in the national economy which claimant can perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an adjustment to other work in the national economy, a finding of "disabled" is made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v).


At step one of the sequential evaluation process, the ALJ found Plaintiff has not engaged in substantial gainful activity since August 10, 2006, the alleged onset date. Tr. 25. At step two, the ALJ found Plaintiff has the following medically determinable impairments: "malingering, possible psychotic disorder and/or possible paranoid personality disorder." Tr. 25. The ALJ also concluded at step two that Plaintiff "does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore the claimant does not have a severe impairment or combination of impairments (20 C.F.R. 404.1521 et seq. and 416.921 et seq. )." Tr. 25-26. As a result, the ALJ concluded that Plaintiff was not disabled as defined by the Social Security Act. Tr. 34.


Plaintiff contends the ALJ erred by (1) finding Plaintiff was not credible; (2) improperly weighing the medical evidence; and (3) failing to find Plaintiff's mental impairments were severe at step two of the sequential evaluation process. ECF No. 17 at 8-17.


A. Credibility

Plaintiff argues the ALJ erred by finding Plaintiff had little credibility. ECF No. 17 at 16-17. In finding Plaintiff had little credibility, the ALJ relied upon Plaintiff's infrequent mental health treatment, her failure to keep appointments, her failure to take medication as prescribed, and that her reported daily activities were inconsistent with her allegations of disabling impairments. Tr. 27-28.

As stated by the Ninth Circuit:

An ALJ cannot be required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423 (d)(5)(A).... This holds true even where the claimant introduces medical evidence showing that he has an ailment reasonably expected to produce some pain; many medical conditions produce pain not severe enough to preclude gainful employment.

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In deciding whether to admit a claimant's subjective symptom testimony, the ALJ must engage in a two-step analysis. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Under the first step, the claimant must produce objective medical evidence of underlying "impairment, " and must show that the impairment, or a combination of impairments, that could reasonably be expected to produce pain or other symptoms." Smolen, 80 F.3d at 1281-82; see Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir. 1986). If this test is satisfied, and if no evidence exists of malingering, then the ALJ, under the second step, may reject the claimant's testimony about severity of symptoms with "specific findings stating clear and convincing reasons for doing so." Smolen, 80 F.3d at 1284. "[Q]uestions of credibility and resolutions of conflicts in the testimony are functions solely of the Secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) ( quoting Waters v. Gardner, 452 F.2d 855 n.7 (9th Cir. 1971). However, if malingering is established, the adjudicator is not bound by the "clear and convincing standard." See, e.g., Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

In determining a claimant's credibility, an ALJ may consider, among other factors, inconsistencies between the claimant's testimony and the claimant's daily activities, conduct and/or work record. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). "If the ALJ's credibility finding is supported by substantial evidence in the record, [the Court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

Plaintiff contends the ALJ erred by rejecting Plaintiff's credibility based upon her infrequent mental health treatment. In assessing a claimant's credibility, an ALJ properly relies upon "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment.'" Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ( quoting Smolen, 80 F.3d at 1284); Fair, 885 F.2d at 603. A claimant's statements may be less credible "if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure." SSR 96-7p. Moreover, an "unexplained, or inadequately explained, failure to seek treatment may be the basis for an adverse credibility finding unless one of a number of good reasons for not doing so' applies." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).

In arguing that the ALJ erred by relying on Plaintiff's failure to seek psychological treatment, Plaintiff cites Van Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). ECF No. 17 at 16-17. In that case, the Ninth Circuit found that the ALJ erred by favoring a non-examining psychologist's opinion over the opinion of an examining psychologist. Van Nguyen, 100 F.3d at 1464. The ALJ in Van Nguyen rejected an examining doctor's opinion, in part, because no evidence existed of a mental disorder prior to the exam conducted to support claimant's request for benefits. Id. The Van Nguyen court noted that people afflicted with depression often fail to recognize they need help, and thus the fact that the claimant did not seek treatment "until late in the day is not a substantial basis on which to conclude that [an examining physician's] assessment of claimant's condition is inaccurate." Id.

This case is distinguishable. In this case, Plaintiff has a long history of presenting with vague symptoms related to mental impairments. Tr. 348, 350, 352, 359, 361, 363. The evidence in this case also reveals Plaintiff failed to follow medical advice, comply with her prescription medication regime, and to seek treatment on a regular basis. Tr. 368, 408, 411. Plaintiff offered no reason for her refusal to seek regular treatment. Plaintiff's suggestion that the burden lies with the ALJ to elicit an explanation for Plaintiff's lack of treatment is not supported by authority. ...

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