United States District Court, W.D. Washington, at Tacoma
ORDER ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 3; Consent to Proceed Before a United States Magistrate Judge, ECF No. 4). This matter has been fully briefed ( see ECF Nos. 12, 16, 17).
After considering and reviewing the record, the Court concludes that the ALJ provided clear and convincing reasons for failing to credit fully plaintiff's allegations and testimony, including her non-compliance with medical treatment, but her improvement when compliant; lack of motivation to work; and inconsistent statements. The ALJ also provided specific and legitimate rationale for his failure to credit fully all of the medical opinions, noting for example, that plaintiff's objective test results indicated that plaintiff was over-reporting unlikely symptoms, that one doctor strongly suspected malingering and another doctor opined that plaintiff's profile was "definitely exaggerated." Because the doctors relied on plaintiff's unreliable self-reporting when providing their opinions, the ALJ properly declined to credit fully all of their opinions.
Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
Plaintiff, ANGELA MARIE CHRISTY, was born in 1979 and was 28 years old on the alleged date of disability onset of January 1, 2008 ( see Tr. 123-25). However, because plaintiff has applied only for supplemental security income, which is not payable prior to the month following the month in which the application was filed and plaintiff filed her application on January 29, 2009, the ALJ's written decision includes findings and conclusions regarding plaintiff's condition since January 29, 2009, although the ALJ indicates that he considered the complete medical history ( see Tr. 623, 625).
Plaintiff left school after the 8th grade (Tr. 27). Plaintiff has worked as a dishwasher, as a hostess in a restaurant, as a customer service/video, and on an assembly line (Tr. 213-17). At her first administrative hearing in December, 2010, plaintiff could not remember the last time that she had held a job ( see Tr. 50).
According to the ALJ, at the time of latest hearing on December 6, 2013, plaintiff had at least the severe impairments of "degenerative joint disease in the knees; gastroesophageal reflux disease; diabetes; fibromyalgia; obesity; carpal tunnel syndrome; depression; bipolar disorder; panic disorder without agoraphobia; cognitive disorder; personality disorder; and drug abuse (20 CFR 416.920(c))" (Tr. 625).
At the time of the hearing, plaintiff was separated from her husband and living in an apartment with two of her minor children (Tr. 628).
Plaintiff provides the following procedural history:
Ms. Christy protectively filed an application for supplemental security income on January 29, 2009, wherein she alleged disability on January 1, 2008 (Tr. 123-125). Her applications were denied at the initial determination and reconsideration stages (Tr. 84-87, 91-93). Ms. Christy thereafter filed a Request for Hearing (Tr. 94-96). A hearing was held before an administrative law judge on December 17, 2010 in Portland, Oregon (Tr. 46-64). The ALJ issued a decision on December 29, 2010, denying plaintiff's claim (Tr. 14-37). Plaintiff appealed the decision to the Appeals Council on February 23, 2011, and an Order denying review of the decision of the ALJ was issued on January 19, 2012 (Tr. 1-9).
Ms. Christy filed an action in the United States District Court for the Western District of Washington on March 21, 2012 (Tr. 760-762). On December 4, 2012, an Order was issued by United States Magistrate Judge J. Richard Creatura, remanding the case to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g) (Tr. 704-727). The Appeals Council issued a further Order dated May 24, 2013, vacating the hearing decision dated December 29, 2010 and remanding the case back to the ALJ (Tr. 728-731).
A hearing was held on December 6, 2013 before an ALJ (Tr. 672-703). The ALJ issued a decision on January 6, 2014, denying plaintiff's claim (Tr. 620-649). Following this decision, plaintiff did not file written exceptions with the Appeals Council, and the Appeals Council did not assume jurisdiction. Ms. Christy thereafter made timely appeal to the instant court seeking review of the denial of benefits.
( See Plaintiff's Opening Brief, ECF No. 12, pp. 1-2).
Plaintiff raises the following issues: (1) Whether or not the ALJ properly evaluated the medical issues; and (2) Did the ALJ provide clear and convincing reasons to discredit plaintiff's testimony ( see Defendant's Brief, ECF No. 16, p. 2).
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)).
(1) Whether or not the ALJ properly evaluated the medical issues.
Plaintiff contends that the ALJ failed to evaluate appropriately multiple medical opinions. Defendant contends that the ALJ provided specific and legitimate rationale for failing to credit the opinions, and also provided a sufficiently detailed and thorough discussion of the evidence in the record.
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 "for specific and legitimate reasons that are supported by substantial evidence in the record." Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) ( 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)).
A. Dr. Wendy Biss, Ph.D., examining doctor
Dr. Biss examined plaintiff in May 2008 ( see Tr. 324-33). Dr. Biss noted plaintiff's report of recurring feelings of depression on most days, as well as returning anxiety when outside her home and recurring feelings of hopelessness ( see Tr. 327). Dr. Biss noted plaintiff's report that she was having difficulty leaving the home and being around people ( see Tr. 328). Regarding plaintiff's mini mental status examination, Dr. Biss noted that plaintiff "consecutively completed forward digit span up to six digits" ( see id. ). Although Dr. Biss noted that plaintiff appeared to have more difficulty with tasks related to abstract reasoning, Dr. Biss opined that this result "may have reflected her minimal effort on these tasks" ( see id. ). Although plaintiff "did not attempt abstract reasoning related to proverbs, [plaintiff] was able to provide correct answers to all similarities" ( see id. ). Dr. Biss noted that when plaintiff was asked questions related to comprehension and ways to manage basic safety behaviors, plaintiff "also appeared to give limited effort and appeared somewhat uncooperative" ( see id. ). Dr. Biss noted that plaintiff's "answers were often quick and brief, with limited effort or thought" ( see id. ). Dr. Biss provided an example: when plaintiff was answering the question regarding why individuals are expected to pay taxes, "she reported, never had to pay taxes, so it doesn't catch up to you later'" ( see id. ).
Plaintiff reported that she consumed alcohol infrequently at social events ( see id. ). Dr. Biss also noted plaintiff's report that "her Valium doesn't help and she often over uses the medication" ( see id. ). Dr. Biss noted that plaintiff "reported that she left school in eighth grade due to behavioral difficulties" ( see Tr. 329). Dr. Biss noted that plaintiff "reported that when she placed effort into her behaviors she was capable of receiving A's" ( see id. ). Dr. Biss noted plaintiff's report of very few jobs since her teenage years ( see id. ).
Dr. Biss noted that plaintiff reported that she had driven herself to the interview, but also reported that her driver's license was invalid, but that she continues to drive anyway ( see Tr. 329-30). Dr. Biss also noted that plaintiff did not show up for her previously scheduled appointment "and could not provide an explanation of what precipitated her absence from the first scheduled appointment" ( see Tr. 330).
Dr. Biss opined that plaintiff's mood throughout the interview and testing "was somewhat incongruent to her reported affect of anxious and depressed" ( see id. ). Dr. Biss noted that plaintiff appeared lethargic, detached, bored, and disinterested, but that her reported "anxiety was not visibly noticeable" ( see id. ). Dr. Biss observed that plaintiff's speech often was "overly vague and contradictory" and that plaintiff appeared somewhat uncooperative ( see id. ). Dr. Biss opined that although plaintiff's speech was slow, it was logical ( see id. ).
Regarding plaintiff's mini-mental status exam (MMSE) results, Dr. Biss noted that plaintiff fell within the normal range for her performance ( see id. ). Dr. Biss also noted that plaintiff did not appear to have any deficits in her remote or recent memory, although she appeared to have the most difficulty with delayed recall ( see id. ). Dr. Biss opined that based on plaintiff's presentation during testing, plaintiff "appeared able to: easily read and write small sentences, perform immediate recall, name common objects, perform basic attention tasks, such as spelling backwards, perform basic repetition, perform tasks of visual motor integration, and follow three-step commands" ( see id. ).
Dr. Biss also conducted objective testing regarding the validity of plaintiff's self reports. As noted in the 2008 opinion by Dr. Biss, the "Structured Inventory of Malingered Symptomatology (SIMS) is a 75 - item self-report measure that is used to detect malingering across a wide variety of clinical and forensic settings, [and a] SIMS Total Score of 14 or greater is used to detect malingered responding and provides a high level of sensitivity and specificity [while] a cutoff score of 16 is often used to enhance diagnostic accuracy and correctly identify 90% of malingerers and 98% of honest responders" (Tr. 330). As noted by Dr. Biss, plaintiff's "Total Score for the SIMS was a 38, therefore far outweighing the conservative cutoff score of 16" ( see id. ). Dr. Biss noted that plaintiff "over reported symptoms in every category except psychosis" ( see id. ).
Dr. Biss opined that plaintiff's "performance on the SIMS along with her erratic and apathetic performance throughout testing indicate that she likely overreported her level of distress and level of cognitive impairment" ( see Tr. 331). Dr. Biss opined that it was "very likely that her scores on the MMSE and measures of ADL's may not be wholly accurate depictions of her current functioning" ( see id. ). Dr. Biss also indicated her opinion as follows: "[Plaintiff's] scores on the SIMS indicate a very high likelihood that she overreported symptoms of impairment and failed to perform a full effort on all measures. Due [to] the potential for monetary gain and her reported inability to sustain full - time employment in the past malingering is strongly suspected" ( see id. ). For one of her recommendations, Dr. Biss indicated that "[when] interpreting the results be cautious as it is very likely [plaintiff] overreported her level of dysfunction and did not perform fully on all tasks" ( see id. ).
Among her major findings, Dr. Biss indicated that plaintiff's "overreporting of symptoms, use of lying for personal gain, likelihood of malingering, consistent irresponsibility, and lack of remorse appear consistent with Antisocial traits" ( see Tr. 332). Dr. Biss noted plaintiff's report that plaintiff indicated she was capable of receiving A's in school when she placed effort into her behaviors, and noted that during the interview, plaintiff "spoke in a very self pitying and contradictory manner" ( see id. ). Dr. Biss indicated that it "was very difficult to ascertain the accuracy of her reporting due to her inconsistency" ( see id. ).
Dr. Biss indicated that plaintiff likely would have difficulty accepting instruction from others because of plaintiff's apathy, disinterest, and difficulties with authority ( see Tr. 333). She indicated that plaintiff's difficulty in this area was moderate ( see Tr. 325). Dr. Biss also opined that based on plaintiff's MMSE performance, "and her answers to questions throughout the diagnostic interview she appears to [be] able to support herself based on her cognitive abilities" ( see Tr. 333). Dr. Biss opined that plaintiff's ...