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Setzer v. Colvin

United States District Court, W.D. Washington, Tacoma

August 25, 2014

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


KAREN L. STROMBOM, Magistrate Judge.

Plaintiff has brought this matter for judicial review of defendant's denial of his applications for disability insurance and supplemental security income ("SSI") benefits. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. After reviewing the parties' briefs and the remaining record, the Court hereby finds that for the reasons set forth below, defendant's decision to deny benefits should be affirmed.


On January 20, 2004, plaintiff filed an application for disability insurance benefits and another one for SSI benefits, alleging disability as of July 27, 2000, due to injuries to his right side (including his back, shoulder and neck), continuous severe pain and depression. See ECF #19, Administrative Record ("AR") 19, 123. Both applications were denied upon initial administrative review on December 9, 2004, and on reconsideration on March 28, 2005. See AR 19. A hearing was held before administrative law judge ("ALJ") Ralph Jones, on September 19, 2007, at which plaintiff, represented by counsel, appeared but did not testify, and at which a vocational expert also appeared but did not testify. See AR 623-30.

A second hearing was held before ALJ Dan R. Hyatt on March 13, 2008, at which plaintiff, represented by counsel, appeared and testified, as did a different vocational expert. See AR 631-52. In a decision dated March 21, 2008, ALJ Hyatt determined plaintiff to be not disabled. See AR 19-29. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on April 22, 2009, making that decision the final decision of the Commissioner of Social Security ("Commissioner"). See AR 9; 20 C.F.R. § 404.981, § 416.1481. Plaintiff appealed that decision to this Court, which - based on the stipulation of the parties - remanded the matter for further administrative proceedings. See AR 685-89.

A third hearing was held before ALJ Hyatt on June 11, 2010, at which plaintiff, represented by counsel, appeared but did not testify, and at which a vocational expert appeared and testified. See AR 803-22. In a decision dated June 21, 2010, ALJ Hyatt again determined plaintiff to be not disabled. See AR 656-668. Plaintiff once more appealed the matter to this Court, which on November 10, 2011, reversed ALJ Hyatt's decision and remanded the case for further administrative proceedings. See AR 863-83.

On remand, another hearing was held before ALJ Steve Lynch on April 29, 2013, at which plaintiff appeared and testified, as did a vocational expert. See AR 1217-46. In a decision dated May 31, 2013, ALJ Lynch determined plaintiff to be not disabled. It does not appear from the record that the Appeals Council assumed jurisdiction of the case. See 20 C.F.R. § 404.984, § 416.1484. On August 29, 2013, plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. See ECF #1. The administrative record was filed with the Court on February 13, 2014. See ECF #19. The parties have completed their briefing, and thus this matter is now ripe for the Court's review.

Plaintiff argues defendant's decision to deny benefits should be reversed and remanded for an award of benefits, because the ALJ erred: (1) in failing to properly factor plaintiff's personality disorder into his assessment of his residual functional capacity ("RFC"); (2) in finding plaintiff lacked credibility instead of attributing his behavior to a personality disorder; and (3) in rejecting the opinions of treatment providers Susan J. Davis, M.D., Charles P. Miller, M.D., Louise McHarris, D.O., and Peter Schmidt, P.T. Plaintiff also argues this matter should be remanded to further develop the record in light of the fact that the last seven minutes of the most recent hearing's transcript are missing from the record. For the reasons set forth below, however, the Court disagrees that the ALJ erred as alleged, and thus in determining plaintiff to be not disabled, and therefore finds defendant's decision to deny benefits should be affirmed.


The determination of the Commissioner that a claimant is not disabled must be upheld by the Court, if the "proper legal standards" have been applied by the Commissioner, and the "substantial evidence in the record as a whole supports" that determination. Hoffman v. Heckler , 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Commissioner of Social Security Admin. , 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan , 772 F.Supp. 522, 525 (E.D. Wash. 1991) ("A decision supported by substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.") (citing Brawner v. Secretary of Health and Human Services , 839 F.2d 432, 433 (9th Cir. 1987)).

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) (citation omitted); see also Batson , 359 F.3d at 1193 ("[T]he Commissioner's findings are upheld if supported by inferences reasonably drawn from the record."). "The substantial evidence test requires that the reviewing court determine" whether the Commissioner's decision is "supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required." Sorenson v. Weinberger , 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). "If the evidence admits of more than one rational interpretation, " the Commissioner's decision must be upheld. Allen v. Heckler , 749 F.2d 577, 579 (9th Cir. 1984) ("Where there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made.") (quoting Rhinehart v. Finch , 438 F.2d 920, 921 (9th Cir. 1971)).[1]

I. Plaintiff's Personality Disorder

Defendant employs a five-step "sequential evaluation process" to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520, § 416.920. If the claimant is found disabled or not disabled at any particular step thereof, the disability determination is made at that step, and the sequential evaluation process ends. See id. If a disability determination "cannot be made on the basis of medical factors alone at step three of that process, " the ALJ must identify the claimant's "functional limitations and restrictions" and assess his or her "remaining capacities for work-related activities." Social Security Ruling 96-8p, 1996 WL 374184 *2. A claimant's RFC assessment is used at step four to determine whether he or she can do his or her past relevant work, and at step five to determine whether he or she can do other work. See id.

Residual functional capacity thus is what the claimant "can still do despite his or her limitations." Id . It is the maximum amount of work the claimant is able to perform based on all of the relevant evidence in the record. See id. However, an inability to work must result from the claimant's "physical or mental impairment(s)." Id . Thus, the ALJ must consider only those limitations and restrictions "attributable to medically determinable impairments." Id . In assessing a claimant's RFC, the ALJ also is required to discuss why the claimant's "symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical or other evidence." Id. at *7.

In terms of plaintiff's mental residual functional capacity, the ALJ found he should have no interaction with the public, but occasional interaction with co-workers. See AR 831. Plaintiff asserts this RFC assessment fails to take into account that when his personality disorder "kicks in" he behaves against his own best interest, threatens those trying to help him and causes him to be discontinued from services by his treatment providers and others. ECF #26, p. 6. Plaintiff cites to excerpts of his testimony to support his contention here. See id. at pp. 4-6. But while plaintiff's interpretation of why he testified in the manner he did may be plausible, so too is that of the ALJ, if not more so (see AR 831-41 (attributing plaintiff's behavior mostly to lack of compliance with recommended treatment, symptom exaggeration and potential secondary gain issues)), in which case the latter's must be upheld. See Allen , 749 F.2d at 579.

In apparent further support of the above assertion, plaintiff cites opinion evidence from examining physician Beal Essink, M.D., and non-examining psychologist John Robinson, Ph.D., noting the functional limitations they assessed, but fails to provide any specific argument as to why the ALJ erred in rejecting those limitations.[2] See AR 835, 840; Carmickle v. Commissioner of Social Sec. Admin. , 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (issue not argued with specificity will not be addressed); Kim v. Kang , 154 F.3d 996, 1000 (9th Cir.1998) (matters not specifically and distinctly argued in opening brief ordinarily will not be considered). ...

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