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Braesch v. Colvin

United States District Court, E.D. Washington

January 8, 2015

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


JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-Motions for Summary Judgment. ECF Nos. 14, 15. Attorney Dana C. Madsen represents Plaintiff, and Special Assistant United States Attorney Jeffrey E. Staples 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 Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.


On January 10, 2011, Plaintiff filed both a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income. Tr. 15; 250. In both applications, Plaintiff alleged disability beginning April 30, 2009. Tr. 15; 209. Plaintiff reported that she was unable to work due to chronic pain, chronic migraines, depression, and a brain aneurysm. Tr. 220. The claims were denied initially and on reconsideration, and Plaintiff requested an administrative hearing. Tr. 15; 99-160.

On November 14, 2012, Administrative Law Judge Marie Palachuk presided over a hearing and heard testimony from medical experts Alan J. Coleman, M.D. and Kent Layton, Ph.D., vocational expert Scott Whitmer, and Plaintiff, who was represented by counsel. Tr. 36-76. On November 29, 2012, the ALJ issued a decision finding Plaintiff not disabled. Tr. 15-31. The Appeals Council declined review. Tr. 1-5. The instant matter is before this 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 hearing, Plaintiff was 35 years old, 5'4" tall, weighed 190 pounds, and she was living in a shelter, with two of her three children, ages 8 and 2. Tr. 59. Plaintiff graduated from high school and completed two years of college. Tr. 60.

Plaintiff's worked as a caregiver, but she said she stopped working in 2009 because of chronic migraines. Tr. 61. Plaintiff also worked at fast food restaurants, and as a telephone solicitor. Tr. 68; 71.

Plaintiff said she has migraines every day that last "[a]ll day long." Tr. 61. Plaintiff estimated that 20 days per month, her migraines are 10 out of 10 on the pain scale. Tr. 62. She said hydrocodone helped alleviate the migraines. Tr. 62. Plaintiff also testified that she has pain in her lower back, neck and hip, and once a month she develops a rash all over her hands, hips, and feet. Tr. 63-64.

In her adult disability report, Plaintiff indicated that she gets up in the morning, cares for the children and drives them to school. Upon her return, she lies down for much of the day, and sometimes performs household chores. Tr. 221. She grocery shops once a month for about an hour at a time. Tr. 223.


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 relevant evidence that 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 supports the administrative findings, or if conflicting evidence supports 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, 140-42 (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 1098-99. 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 that claimant can perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-94 (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 April 30, 2009, the alleged onset date. Tr. 17. At step two, the ALJ found Plaintiff suffered from the severe impairments of

[F]ibromyalgia versus chronic pain; headaches; obesity; mood disorder versus major depressive disorder; generalized anxiety disorder; personality disorder with passive aggressive features; and polysubstance abuse of alcohol, marijuana and prescription drugs.

Tr. 17.

At step three, the ALJ found Plaintiff's impairments, alone or in combination, do not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). Tr. 18. The ALJ found Plaintiff has the residual functional capacity to perform sedentary work. Tr. 20. She is also limited to occasional public interaction, minimal coworker interaction, working independently with infrequent supervision, and she needs additional time to adapt to changes in the work setting/routine. Tr. 20. At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. Tr. 29. At step five, the ALJ found that considering Plaintiff's age, education, work experience and residual functional capacity, jobs exist in significant numbers that Plaintiff can perform, such as stuffer, surveillance system monitor and cashier II. Tr. 30. As a result, the ALJ concluded that Plaintiff has not been disabled within the meaning of the Social Security Act at any time from the date the application was filed through the date of the decision. Tr. 31.


Plaintiff contends that the ALJ erred by (1) failing to find lupus was a severe impairment at step two; (2) finding Plaintiff was not credible; and (3) improperly weighing the medical evidence.

A. Step Two

Plaintiff contends that the ALJ erred by failing to find that lupus was a severe impairment. ECF No. 14 at 11.

The ALJ noted that the record contained the mention of "lupus" but as Dr. Coleman, observed that only one test was positive, and all other tests were negative. Tr. 18. As a result, the ALJ concluded that insufficient evidence existed to diagnose lupus, and even if the diagnosis was made, the symptoms were extremely mild and thus did not qualify as a severe impairment. Tr. 18.

The step two inquiry is a de minimis screening device to dispose of groundless or frivolous claims. Bowe, 482 U.S. at 153-154. To establish a severe impairment at step two, Plaintiff must provide evidence of a medically determinable impairment which can be shown to be the cause of his or her alleged symptoms. 20 C.F.R. §§ 404.1529, 416.929. In claims that lack medical signs or laboratory findings that substantiate the existence of a medically determinable physical or mental impairment, the claimant "must be found not disabled at step 2 of the sequential evaluation process." SSR 96-4p.

Under these standards, Plaintiff may only establish an impairment if the record includes signs - the results of "medically acceptable clinical diagnostic techniques, " such as tests - as well as symptoms, i.e., Plaintiff's representations regarding her impairment. See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). Moreover, an impairment is deemed "not severe" when the evidence establishes the impairment imposes, at most, a "slight abnormality" on an individual's ability to work. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). Finally, a diagnosis may be made only by an acceptable medical source. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (medical diagnoses are beyond the competence of other source witnesses); S.S.R. 06-03p ("other sources" cannot establish the existence of a medically determinable impairment); 20 C.F.R. §§ 404.1513(d), 416.913(d).

In this case Plaintiff argued, without citation to the record, that lupus "was confirmed by examination by her treating physicians and objective testing." ECF No. 14 at 11. However, the record lacks a lupus diagnosis by an acceptable medical source. On February 9, 2012, Debra Gore, M.D., included lupus as a diagnosis, but the record contains no evidence of testing that established that diagnosis. Tr. 572.

On April 24, 2012, Tabitha Wynecoop, LPN, examined Plaintiff. Tr. 662-67. Ms. Wynecoop observed that Plaintiff's rash on her hands seemed to be resolved and noted, "she has had positive SSA and SSB antibodies and dry eyes and dry mouth and may have an undifferentiated connective tissue disease." Tr. 662. On August 27, 2012, Ms. Wynecoop again examined Plaintiff and noted Plaintiff's rash had migrated from Plaintiff's hands to her thighs, and Plaintiff had sores in her mouth. Tr. 668. Ms. Wynecoop's notes comment on the lack of definitive diagnosis:

I spoke with Dr. Reed today who thinks the rash is consisted with erythema multiforme. Dr. Reed would like to see her and find out what triggers this.
2. Ð and 䤠 and SSB antibodies - it is possible her rash is due to an underlying [connective tissue] disease. She has had dry eyes and mouth at times in the past and it is possible she could have mild Sjogren's Syndrome. It is not typical to get rashes like this. Lupus can have rashes with blisters and mouth sores.

Tr. 668.

At the administrative hearing, Alan J. Coleman, M.D., testified that "the evidence that she has lupus is extremely weak. She did have one blood test... which is a test for Lupus, but it's not diagnostic." Tr. 46. Dr. Coleman added Plaintiff's results from diagnostic tests for lupus were negative. Tr. 46. Finally, Dr. Coleman stated that if Plaintiff did in fact have lupus, it was "very, very, very mild." Tr. 47.

Plaintiff failed to provide evidence from an acceptable medical source that definitively diagnosed her with lupus. Moreover, even if the evidence supported the existence of lupus, the evidence reveals symptoms were extremely mild and thus did not arise to a medically determinable impairment. Thus, the ALJ did not err in determining that lupus was not a severe medical impairment at step two.

B. Credibility

Plaintiff argues that the ALJ erred by finding her not credible. ECF No. 14 at 12-13.

The ALJ is responsible for determining credibility. Andrews, 53 F.3d at 1039. Absent affirmative evidence that the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The ALJ's findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), quoting Lester, 81 F.3d at 834. If objective medical evidence exists of an underlying impairment, the ALJ may not discredit a claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991).

To determine whether the claimant's testimony regarding the severity of the symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. See, e.g., Fair v. Bowen, 885 F.2d 597, 602-04 (9th Cir. 1989) ; Bunnell, 947 F.2d at 346-47.

The ALJ's findings related to Plaintiff's credibility are scattered within the opinion. Tr. 21-23. Plaintiff challenges several findings and each are addressed separately. First, Plaintiff argues fibromyalgia is characterized by intermittent and diffuse symptoms, and the ALJ improperly used these facts to discount Plaintiff's credibility. ECF No. 14 at 12. The ALJ summarized Plaintiff's doctor visits related to her pain complaints. Tr. 21-22. The ALJ observed that the "primary care record consists significantly of just medication refills or visits either unrelated to her fibromyalgia pains or without mention of any specific pain symptoms." Tr. 22. The ALJ concluded, "Overall, although the claimant alleges an extreme amount and frequency of body pain secondary to fibromyalgia and chronic pain, the treatment record has shown relatively diffuse and intermittent complaints." Tr. 22.

The Social Security Administration issued a ruling, effective July 25, 2012, to assist factfinders in the evaluation of fibromyalgia. Social Security Ruling ("SSR") 12-2p. The Ruling provides that once a person is determined to have fibromyalgia her statements about symptoms and functional limitations are to be evaluated according to the two-step process set forth in SSR 96-7p. These policies provide that "[i]f objective medical evidence does not substantiate the person's statements about the intensity, persistence, and functionally limiting effects of symptoms, we consider all other evidence in the case record." SSR 12-2P.

In this case, Plaintiff testified that she was in extreme pain. Tr. 62-66. Yet the record reveals Plaintiff only occasionally sought medical treatment for her alleged extreme pain. Notwithstanding the unpredictable nature of fibromyalgia, the ALJ properly found that Plaintiff's allegations of extreme pain are undermined by her failure to seek treatment.

Second, Plaintiff argues that the ALJ's finding that Plaintiff failed to comply with recommended medication and treatment for her migraine headaches was erroneous. ECF No. 14 at 13. Plaintiff's argument is not entirely clear, and the argument lacks citation to authority or the record. It appears Plaintiff's complaint is that the record contradicts the ALJ's finding.

The ALJ found that Plaintiff had not been "entirely compliant with overall treatment modalities." Tr. 22. As the ALJ found, in June, 2009, Plaintiff asked Dr. Gores to certify she was disabled, but Dr. Gore noted that Plaintiff was not making an effort to improve her symptoms and twice stated that Plaintiff was capable of working. Tr. 22; 363. Also, as the ALJ found, when Plaintiff takes hydrocodone, her headaches improve. Tr. 22; 363.

In determining credibility, the ALJ properly relies upon unexplained or inadequately explained failures to seek treatment or to follow prescribed treatment. Fair, 885 F.2d at 602-04 . "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits." Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments that are effectively controlled by medication are not deemed disabling). The record supports the ALJ's findings that Plaintiff failed to regularly seek treatment and comply with treatment recommendations.

Third, Plaintiff argues, without citation to the record or authority, that the ALJ erred by relying upon the differential diagnosis of possible malingering and/or substance abuse to find that she lacked credibility. ECF No. 14 at 13. Plaintiff's argument simply stated, "A rule-out diagnosis is merely an indication that a definitive determination of the differential diagnosis cannot be made with existing data." ECF No. 14 at 13. The ALJ noted that Jay Toews, Ed.D., examined Plaintiff and noted Plaintiff advocated vague psychiatric symptoms, no evidence of significant pain and "marginal cooperation in a possible attempt at malingering." Tr. 26. The ALJ also noted "Dr. Toews diagnosed claimant with symptom magnification; rule out malingering of cognitive, memory, affective, and mood problems; alcohol abuse in self-reported full remission; and rule out prescription medication abuse." Tr. 26.

The record supports the ALJ's recitation of Dr. Toews' diagnoses. Dr. Toews administered the SIMS test, and Plaintiff's score was 34. Dr. Toews explained that a score of 14 or more are "highly suggestive of deliberate attempts to distort, deceive, or feign a wide range of cognitive, affective, memory and/or psychopathological problems." Tr. 464. Moreover, Dr. Toews related that Plaintiff "scored above the cutoff level on all seven categories, suggesting attempts to misrepresent problems is fairly wide spread." Tr. 464. Dr. Toews observed that Plaintiff's "motivation, effort and interest in testing appeared poor." Tr. 465. Dr. Toews concluded that "it does not appear Plaintiff has cognitive, mood or affective barriers to employability." Tr. 465.

Plaintiff's characterization of this issue ignores the fact that Dr. Toews' first diagnosis is "symptom magnification." Tr. 465. Even if an ALJ should not rely upon a differential or a rule-out diagnosis, and Plaintiff has not so established, the ALJ properly relied upon Dr. Toews' diagnosis of symptom magnification in finding Plaintiff had little credibility.

Finally, Plaintiff argues that the ALJ erred by relying upon Plaintiff's daily activities to find that she was not credible. ECF No. 14 at 13. Plaintiff's argument is limited to asserting that Plaintiff "rested between childcare chores." ECF No. 14 at 14. Notwithstanding Plaintiff's rest periods, the ALJ's findings that Plaintiff's daily activities contradict her alleged severe level of impairment are supported by the record. For example, Plaintiff is the sole caregiver for a teenager and two young children. Tr. 27; 59. Plaintiff asserted she can plan and prepare meals, perform light housework including laundry and shop independently. Tr. 27; 223. The ALJ's findings that Plaintiff's daily activities contradict her allegations of disabling pain are supported by the record. The ALJ did not err in finding Plaintiff had little credibility.

C. Medical Opinions

Plaintiff contends that the ALJ erred by giving little weight to the opinions from Kent Layton, Psy.D., and John Arnold, Ph.D. ECF No. 14 at 14-15.

1. Kent B. Layton, Psy.D.

Plaintiff argues that the ALJ erred by giving little weight to Dr. Layton's opinion on the basis that the doctor ignored evidence of Plaintiff's malingering. ECF No. 14 at 14.

Dr. Layton was a reviewing physician who testified at the hearing. Tr. 51-58. The ALJ gave "some weight" to Dr. Layton's opinion that Plaintiff required additional time to adapt to changes in the workplace, and she was limited to minimal interactions with coworkers, infrequent supervision and occasional contact with the general public. Tr. 28. The ALJ added "However, Dr. Layton completely discounted the mention of malingering, ' within the record, made by an examining source, when reaching his opinions." Tr. 28. Presumably, the ALJ factored this omission when determining the weight to give Dr. Layton's opinion.

The opinion of an examining physician is entitled to greater weight than the opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir. 1984). The ALJ properly gave the opinion from examining Dr. Toews more weight than the opinion of reviewing Dr. Layton. Moreover, Dr. Layton's opinions about Plaintiff's limitations were incorporated into Plaintiff's RFC, including occasional public interaction, minimal coworker interaction and independent work with infrequent supervision, and the allowance for additional time to adapt to changes in the work setting or routine. Tr. 20. In light of the fact the ALJ incorporated Dr. Layton's assessments of Plaintiff's non-exertional limitations into her RFC, Plaintiff failed to establish error.

2. John Arnold, Ph.D.

Plaintiff contends that the ALJ erred by giving little weight to the opinion of John Arnold, Ph.D., on the basis that his diagnosis of PTSD was not supported by a recitation of the DSM-IV criteria and his diagnosis of borderline intellectual functioning was not supported by testing. ECF No. 14 at 15. Plaintiff argues that Dr. Arnold was not required to recite to the DSM-IV criteria for PTSD, and she argues that the diagnosis was supported by the clinical interview, "MMPI, MCMI-III, review of records and mental status exam." ECF No. 14 at 15.

On October 31, 2012, Dr. Arnold administered several objective tests. He reported that the MMPI-2RF profile was invalid, due to "extremely elevated F-r/Fs scales, " and her MCMI-III was interpretable, but "somewhat embellished." Tr. 680. Dr. Arnold observed "the validity of her assessment results appear to be influenced by a tendency to over emphasize her medical and psychological conditions." Tr. 681. Dr. Arnold stated that Plaintiff's profile "suggested" depression, PTSD and a somatoform disorder. Tr. 681.

The ALJ discounted Dr. Arnold's diagnosis of PTSD, because this was the only instance in the record of that particular diagnosis. Tr. 18. Also, the ALJ concluded that insufficient evidence existed to support the diagnoses, because Dr. Arnold failed to set forth in his evaluation a description of the necessary criteria and symptoms required for making the diagnosis under the DSM-IV-TR. Tr. 18. The ALJ cited several other reasons for giving little weight to Dr. Arnold's diagnoses.

Notwithstanding the ALJ's inartful wording, it appears that the ALJ rejected the diagnosis of PTSD because the record failed to provide or cite medical evidence - i.e., signs, symptoms and laboratory findings - supporting a diagnosis of PTSD. See DSM-IV-TR 309.81 (PTSD is characterized by persistent symptoms of: "hyper-vigilance, " "exaggerated startle response, " "difficulty concentrating, " "[d]iminished responsiveness, " "persistent symptoms of anxiety, " and "markedly reduced ability to feel emotions"). In order to establish the existence of a medically determinable physical or mental impairment, a claimant must provide medical evidence consisting of signs, symptoms, and laboratory findings. SSR 96-4p. The existence of an impairment may not be established on the basis of symptoms alone. SSR 96-4p; see also 20 C.F.R. §§ 404.1508, 416.908. Symptoms are "an individual's own perception or description of the impact of his or her physical or mental impairment(s)." SSR 96-4p. By contrast, a medical sign' is an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques." SSR 96-4p; see also 20 C.F.R. §§ 404.1528(a)-(b), 416.928(a)-(b).

In this case, Dr. Arnold noted that Plaintiff declared that she had been diagnosed with PTSD. Tr. 680. Dr. Arnold also stated, "her profile also suggests PTSD" Tr. 681. However, Dr. Arnold fails to provide explanation or identify facts that support the diagnosis. An ALJ may discredit physicians' opinions that are conclusory, brief, and unsupported by the record as a whole, or by objective medical findings. Batson, 359 F.3d at 1195.

It is doubtful that the ALJ would find PTSD a viable diagnosis only if Dr. Arnold "recited" the criteria and symptoms as Plaintiff suggests. But in this case, Dr. Arnold failed to note any of the criteria or symptoms as being presented by Plaintiff. In the absence of correlating symptoms, signs and laboratory findings, the ALJ properly gave little weight to the diagnosis of PTSD.


Having reviewed the record and the ALJ's conclusions, this court finds that the ALJ's decision is supported by substantial evidence and free of legal error. Accordingly,


1. Defendant's Motion for Summary Judgment, ECF No. 15, is GRANTED.

2. Plaintiff's Motion for Summary Judgment, ECF No. 14, is DENIED.

IT IS SO ORDERED. The District Court Executive is directed to file this Order, provide copies to the parties, enter judgment in favor of Defendant, and CLOSE this file.

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