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McGuire v. Colvin

United States District Court, W.D. Washington

November 21, 2014

SHAUN J. MCGUIRE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Shaun J McGuire, Plaintiff: M Tha Win, LEAD ATTORNEY, SEATTLE, WA.

For Carolyn W Colvin, Commissioner of Social Security Administration, Defendant: Kerry Jane Keefe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE (SEA), SEATTLE, WA; Brett Edward Eckelberg, SOCIAL SECURITY ADMINISTRATION, SEATTLE, WA.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, United States Magistrate Judge.

Shaun J. McGuire seeks review of the denial of his Supplemental Security Income and Disability Insurance Benefits applications. He contends the ALJ erred by (1) failing to provide adequate reasons to reject the opinions from examining and treating providers, (2) finding Mr. McGuire could perform sedentary work without the use of a cane, and (3) finding Mr. McGuire not fully credible. Dkt. 16. For the reasons discussed below, the Court recommends the Commissioner's decision be AFFIRMED and the case be DISMISSED with prejudice.

BACKGROUND

Mr. McGuire is currently 42 years old, has a GED, and has worked in data entry, customer service, and clothing sales. Tr. 64-65, 215, 241. In June 2011, he applied for benefits, alleging disability as of July 1, 2010. Tr. 215, 217. After his applications were denied, the ALJ conducted a hearing and, on September 24, 2012, issued a decision finding him not disabled. Tr. 14-27. As the Appeals Council denied Mr. McGuire's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1.

THE ALJ'S DECISION

Utilizing the five-step disability evaluation process, [1] the ALJ found that Mr. McGuire had not engaged in substantial gainful activity since his alleged onset date; he had the following severe impairments: degenerative disc disease of the lumbar spine with sciatica, right knee tendonosis, diabetes mellitus, obesity, affective disorder, and anxiety disorder; and these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 16-17. The ALJ found that Mr. McGuire had the residual functional capacity to perform sedentary work except he can stand and walk for 2 hours and sit for 6 hours in an 8-hour work day with an opportunity to rise and stretch every 2 hours; he can never operate foot controls with the right lower extremity, can never climb ladders, ropes, or scaffolds, can frequently balance, and can occasionally climb ramps and stairs and stoop, kneel, crouch, and crawl; he should have no more than occasional exposure to extreme heat and vibration, and should have no exposure to hazards such as unprotected heights and heavy machinery; in order to maintain attention, concentration, persistence, and pace in an ordinary work setting on a regular and continuing basis, and remain within customary tolerances of employers' rules regarding sick leave and absence, he can perform work of 1, 2, or 3 steps; and in order to respond appropriately to coworkers and supervision, he can have occasional interactions with supervisors, occasional work setting change, and can work in proximity to coworkers, but not in a team or cooperative effort. Tr. 19. The ALJ found that Mr. McGuire was unable to perform any past relevant work, but that he could perform other jobs that exist in significant numbers in the national economy. Tr. 26. The ALJ therefore concluded that Mr. McGuire was not disabled. Tr. 27.

DISCUSSION

A. Medical evidence

Mr. McGuire argues that the ALJ erred in evaluating the evidence from treating nurse practitioner Katherine Hester, ARNP, treating doctor Sonja Olson, M.D., examining psychologist Janice Edwards, Ph.D., and treating mental health therapist Shauntae Willis, LICSE, CDP. Dkt. 16 at 3-12. In general, the ALJ should give more weight to the opinion of a treating doctor than to that of a non-treating doctor, and more weight to the opinion of an examining doctor than to that of a non-examining doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where it is not contradicted by another doctor, the ALJ may reject a treating or examining doctor's opinion only for " clear and convincing reasons." Id. at 830-31. Where contradicted, the ALJ may not reject a treating or examining doctor's opinion without " specific and legitimate reasons." Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). An ALJ does this by setting out a detailed and thorough summary of the facts and conflicting evidence, stating her interpretation of the facts and evidence, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ must do more than offer her conclusions; she must also explain why her interpretation, rather than the treating doctor's interpretation, is correct. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

Nurse practitioners and therapists are not acceptable medical sources who can give medical opinions. See 20 C.F.R. § 404.1513(a). The ALJ may evaluate opinions of other medical sources using the same factors used to evaluate medical opinions of acceptable medical sources. Social Security Ruling 06-03p, see also 20 C.F.R. § 404.1527(d). These factors include the length and frequency of the treating relationship, how consistent the opinion is with other evidence, the evidence the source presents to support the opinion, how well the source explains the opinion, whether the source has a specialty or area of expertise related to the impairment, as well as any other relevant factors. Id.; see also 20 C.F.R. § 404.1527(d). But the ALJ may give less weight to opinions of non-acceptable medical sources than to those of acceptable medical sources. SSR 06-03p. The ALJ must give specific, germane reasons for rejecting opinions from other sources that are not acceptable medical sources. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).

1. Ms. Hester

Ms. Hester provided primary care to Mr. McGuire. On November 16, 2010, she completed a Washington State Department of Social and Health Services (DSHS) physical evaluation in which she opined that Mr. McGuire was severely limited by back pain due to a herniated disc. Tr. 313-16. On June 7, 2011 Ms. Hester completed a DSHS functional assessment in which she opined that Mr. McGuire could stand for a quarter of an hour and sit for a quarter of an hour, and could lift 5 pounds occasionally and 5 pounds frequently; she opined that his condition was stable and that she expected this level of impairment to last for 3 months. Tr. 307-08. The ALJ gave the June 2011 opinion little weight because it did not meet the durational requirement and because as part of her examination for the assessment, Ms. Hester opined: " I feel that patient is not permanently disabled and would benefit greatly from working regularly." Tr. 25, 311. The ALJ gave the November 2010 opinion little weight because Ms. Hester was not a spinal specialist and because her later opinion showed that she did not find him to be severely impaired for any ...


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