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Smith v. Colvin

United States District Court, W.D. Washington

December 8, 2014

STEVEN M. SMITH, Plaintiff,
v.
CAROLYN W COLVIN, Defendant

For Steven M. Smith, Plaintiff: Eitan Kassel Yanich, LEAD ATTORNEY, LAW OFFICES OF EITAN KASSEL PLLC, OLYMPIA, WA.

For Carolyn W Colvin, Acting Commissioner of Social Security Administration, Defendant: Kerry Jane Keefe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE (SEA), SEATTLE, WA; David J Burdett, SOCIAL SECURITY ADMINISTRATION, OFFICE OF GENERAL COUNSEL, SEATTLE, WA.

ORDER ON PLAINTIFF'S COMPLAINT

J. Richard Creatura, United States 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, Dkt. No. 6; Consent to Proceed Before a United States Magistrate Judge, Dkt. No. 7). This matter has been fully briefed ( see Dkt. Nos. 18, 21, 22).

After considering and reviewing the record, the Court finds that the ALJ did not err by failing to credit fully plaintiff's allegations and testimony, as the ALJ noted, for example, that plaintiff provided inconsistent statements regarding his drug and alcohol use. Similarly, the ALJ did not commit harmful error during his evaluation of the medical evidence, noting, in part, that doctors relied on plaintiff's self-reports and his reported minimal or lack of alcohol and drug consumption, which the ALJ properly found less than credible.

Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).

BACKGROUND

Plaintiff, STEVEN M. SMITH, was born in 1965 and was 42 years old on the amended alleged date of disability onset of October 24, 2008 ( see AR. 12, 289-95, 296-302). Plaintiff did not complete high school, but did obtain his GED (AR. 59). Plaintiff has work experience as a timber mill worker and worked for one month as a file clerk (AR. 329-38). Plaintiff claims both jobs ended because of his medical conditions ( id.).

According to the ALJ, plaintiff has at least the severe impairments of " polysubstance dependence, major depressive disorder/bipolar disorder, status post surgeries; bilateral hearing impairment, anxiety disorder (not otherwise specified), mild degenerative disc disease of the cervical spine, lumbar spine strain, mild degenerative joint disease of the right knee, and osteoarthritis of the right shoulder status post surgeries (20 CFR 404.1520(c) and 416.920(c))" (AR. 15).

At the time of the hearing, plaintiff and his wife of three months were living at a friend's residence and sleeping on the couch (AR. 53, 64).

PROCEDURAL HISTORY

Plaintiff presents the procedural history as follows:

Plaintiff, Steven M. Smith (" Smith") protectively filed applications for Social Security and Supplemental Security Income (SSI) disability benefits on March 20, 2009, alleging that he has been disabled since October 15, 2005.[1] His applications were denied initially and on reconsideration and then by an Administrative Law Judge; the Appeals Council then remanded his case for a new hearing, and a hearing was held before Administrative Law Judge Michael Gilbert (" the ALJ") on March 6, 2012. (AR. 35-88). On July 23, 2012, the ALJ issued a decision in which he found that Smith was not disabled. (AR. 9-34). Smith requested review by the Appeals Council which, on October 24, 2013, denied his request for review, leaving the decision of the ALJ as the final decision of the Commissioner. (AR. 1-5). A timely Complaint was filed in Federal District Court.

(Plaintiff's Opening Brief, Dkt. No. 18, p. 2). Defendant has stipulated to the accuracy of the procedural history ( see Dkt. No. 21, p. 2).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ properly evaluated plaintiff's testimony; (2) Whether or not the ALJ properly evaluated the medical evidence; (3) Whether or not the ALJ properly determined that plaintiff's impairments did not meet Listing 12.04 in the absence of drug abuse and alcoholism (" DA& A"); (4) Whether or not the ALJ properly assessed plaintiff's residual functional capacity (" RFC") in the absence of DA& A; and (5) Whether or not the ALJ erred by basing his step five finding on a RFC assessment that did not include all of plaintiff's limitations ( see Dkt. No. 18, p. 1).

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)).

DISCUSSION

Whether or not the ALJ properly evaluated plaintiff's testimony .

If the medical evidence in the record is not conclusive, sole responsibility for resolving conflicting testimony and questions of credibility lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) ( citing Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971) ( Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). The ALJ may consider " ordinary techniques of credibility evaluation, " including the claimant's reputation for truthfulness and inconsistencies in testimony regarding symptoms, and may also consider a claimant's daily activities, and " unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citations omitted).

The ALJ failed to credit fully plaintiff's allegations in part based on a finding that they were inconsistent with the medical evidence ( see AR. 21-22). For example, the ALJ noted that although plaintiff " continued to endorse neck pain in December 2008, he had no mid-line tenderness and his neck was described as supple with normal range of motion" ( see AR. 21 ( citing AR. 541)). Similarly, the ALJ noted that despite alleging back pain, on December 4, 2008, his back was normal on inspection and non-tender; and his extremities were non-tender with normal range of motion ( see id. ( citing AR. 493-94)). Regarding plaintiff's mental health allegations, the ALJ noted that on February 17, 2009, Dr. Alan F. Javel, M.D., observed that plaintiff presented " as being in no acute distress and displayed a normal affect with a slightly depressed mood" (AR. 21 ( citing AR. 522)). Similarly, the ALJ noted that on March 12, 2009, plaintiff " was described as a 'pleasant gentleman in no apparent distress' with a 'fairly good' mood" ( see id. ( citing AR. 529)). The ALJ also noted that on April 30, 2009, plaintiff reported that he stopped taking his prescribed medication, because it was not helping him sleep, but other than that he reported " doing okay otherwise" ( see AR. 22 ( citing AR. 586)). The ALJ also noted that chart notes from a May 13, 2010 office visit with Dr. Lorraine Barton-Haas, M.D. indicate that plaintiff " presented with a bright affect, spoke in an articulate, coherent manner, and demonstrated no psychomotor slowing or agitation" ( see id. ( citing AR. 720)). As noted by the ALJ, a progress note from August 17, 2011 indicates that plaintiff " appeared 'happy and stable' with his new girlfriend" ( see id. ( citing AR. 738)). Similarly, as noted by the ALJ, a progress note from August 30, 2011 indicates that plaintiff presented " smiling ear to ear" ( see id. ( citing AR. 739)). The ALJ also noted that on July 25, 2011, plaintiff appeared " stable at this time even though not on treatment" ( see id. ( citing AR. 710)). The Court concludes that the ALJ's finding that plaintiff's allegation of disabling symptoms are inconsistent with the treatment record is a finding based on substantial evidence in the record as a whole.

Although plaintiff argues that an ALJ cannot properly fail to credit fully plaintiff's allegations based solely on objective medical evidence, the ALJ here provided other rationale for failing to credit fully plaintiff's allegations and testimony. See Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991) ( en banc ) ( citing Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)).

If an ALJ rejects the testimony of a claimant once an underlying impairment has been established, the ALJ must support the rejection " by offering specific, clear and convincing reasons for doing so." Smolen, supra, 80 F.3d at 1284 ( citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993)); see also Reddick, supra, 157 F.3d at 722 ( citing Bunnell, supra, 947 F.2d at 343, 346-47). The Court notes that this " clear and convincing" standard recently was reaffirmed by the Ninth Circuit. See Garrison v. Colvin, 759 F.3d 995, 1015 n.18 (9th Cir. July 14, 2014) (" The government's suggestion that we should apply a lesser standard than 'clear and convincing' lacks any support in precedent and must be rejected"). As with all of the findings by the ALJ, the specific, clear and convincing reasons also must be supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); see also 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)).

When failing to credit fully plaintiff's allegations and testimony, the ALJ relied in part on plaintiff's activities that were inconsistent with his alleged disabling limitations regarding his shoulder, neck and back, noting specifically that " despite reports of debilitating pain in his shoulder, the claimant reported playing basketball with some children in June 2009 (Basketball is a game that even a layperson would recognize requiring significant bilateral shoulder dexterity)" (AR. 23 ( citing Exhibit 12F/28, i.e., AR. 608)). This reason is supported by substantial evidence in the record and also is a proper credibility factor. See Smolen, supra, 80 F.3d at 1284 (citations omitted).

Most important, however, is the ALJ's reliance on plaintiff's inconsistent reporting regarding his periods of sobriety. Not only does the ALJ rely on this factor when failing to credit fully plaintiff's credibility, but also when failing to credit fully some of the medical opinions, see infra, section 2. For example, as noted by the ALJ, plaintiff testified at his March 6, 2012 hearing that he has been clean and sober since April 14, 2010 with no relapses ( see AR. 16, 23, 64). At his hearing, plaintiff also testified that he had not used any drugs since 2008, including marijuana ( see AR. 65). Subsequently at his hearing, plaintiff testified that he " had from May 2005 until I believe it was March 2009 before I relapsed, " further specifying that he had over three and a half years sober during the specified time period (AR. 73-74).

In contrast to plaintiff's testimony that he had been clean and sober from May, 2005 until March, 2009, in November, 2005 plaintiff reported drinking alcohol " occasionally" (AR. 552; see also AR. 73-74). In contrast to plaintiff's 2012 testimony that after his relapse he had been clean and sober since April, 2010, with no relapses, plaintiff indicated on July 6, 2011 that he had a ...


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