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Seibel v. Berryhill

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

February 15, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.


          Thomas S. Zilly United States District Judge.

         THIS MATTER comes before the Court on appeal from final decisions of the Acting Commissioner of the Social Security Administration (“Commissioner”) denying plaintiffs Anthony M. Seibel's and Missy M. Phelps's applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 401-434 and 1381-1383f.[2] Having reviewed all papers filed in connection with the appeal, the Court enters this order.


         A. Anthony M. Seibel

         Plaintiff Anthony (aka Anton) Michael Seibel was born in 1986. AR 25. He has a high school education, and was previously employed as a forest worker, prep cook, plumber's helper, and tearista (tea expert). Id. In his DIB and SSI applications, Seibel alleged that the onset date of his disability was August 7, 2009. AR 11; see also AR 209, 216, & 224. In denying Seibel's DIB and SSI applications, Administrative Law Judge (“ALJ”) Ilene Sloan found that Seibel has the following severe impairments: marijuana dependence and bipolar disorder.[3] AR 13. ALJ Sloan further concluded that Seibel has the residual functional capacity[4] to perform past relevant work as a forest worker and prep cook and also to make an adjustment to other occupations (for example, a grain picker, drier takeoff tender, park groundskeeper, or routine clerk) as to which a significant number of jobs exist in the national and regional economy. AR 25-26. As a result, ALJ Sloan ruled that Seibel “has not been under a disability . . . from August 7, 2009, through the date of this decision, ” which was issued on May 22, 2013. AR 26-27. The Appeals Council denied Seibel's request for review, AR 1-4, and he seeks judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         B. Missy M. Phelps

         Plaintiff Missy M. Phelps was born in 1980. AR 22. She has a high school education, and was previously employed as a baker's helper, janitor, plant care worker, bagger checker, reservations agent, and cashier/checker. Id. In her DIB and SSI applications, Phelps alleged that the onset date of her disability was March 22, 2010, but she later amended the date to June 1, 2012. AR 13; see AR 35, 220, 227.[5] In denying Phelps's DIB and SSI applications, ALJ Sloan found that Phelps has the following severe impairments: degenerative disc disease, carpal tunnel syndrome, obesity, depression, and anxiety. AR 15. ALJ Sloan further concluded that Phelps is unable to perform past relevant work, but has the residual functional capacity[6] to make an adjustment to other occupations (for example, housekeeper, small products assembler, electronics worker, laminating machine off bearer, and bakery worker conveyor line inspector) as to which a significant number of jobs exist in the national and regional economy. AR 22-23. As a result, ALJ Sloan ruled that Phelps “has not been under a disability . . . from June 1, 2012, through the date of this decision, ” which was issued on July 15, 2013. AR 24. The Appeals Council denied Phelps's request for review, AR 1-4, and she seeks judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).


         This Court's review is limited to assessing whether the ultimate denial of benefits is free of legal error and based on factual findings that are supported by substantial evidence. See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998); see also 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla, but less than a preponderance” of evidence; it is “such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). In determining whether the factual findings are supported by substantial evidence, the Court must “review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Court “may not affirm simply by isolating a specific quantum of supporting evidence.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If, however, the evidence reasonably supports both affirming and reversing the denial of benefits, the Court may not substitute its judgment for that of the ALJ. See Reddick, 157 F.3d at 720-21; see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (if “the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld”).

         To determine whether a claimant is “disabled” within the meaning of the Social Security Act, the Commissioner must use a five-step sequential process. Step one of the process inquires whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i) & 416.920(a)(4)(i); see also id. at §§ 404.1572 & 416.972 (defining “substantial gainful activity”). If so, the claimant is not entitled to disability benefits, and no further evaluative steps are required. Id. at §§ 404.1520(b) & 416.920(b). Step two asks whether the claimant has a severe impairment, or a combination of impairments, that significantly limits the claimant's physical or mental ability to do basic work activities. See id. at §§ 404.1520(a)(4)(ii)&(c) and 416.920(a)(4)(ii)&(c). If not, the claimant is not entitled to disability benefits, and again, additional analysis is not required. Id. Step three involves a determination of whether any of the claimant's severe impairments is equivalent to one that is listed in the regulations. Id. at §§ 404.1520(a)(4)(iii) & 416.920(a)(4)(iii). A claimant with an impairment that “meets or equals” a listed impairment for the requisite twelve-month duration is “per se” disabled and qualifies for benefits. See id. at §§ 404.1520(d) & 416.920(d).

         If the claimant is not “per se” disabled, then the question under step four is whether the claimant's “residual functional capacity” enables the claimant to perform past relevant work. Id. at §§ 404.1520(a)(4)(iv) & 416.920(a)(4)(iv). If the claimant can still perform past relevant work, then the claimant is not entitled to disability benefits and the inquiry ends there. Id. at §§ 404.1520(e)-(f) & 416.920(e)-(f). On the other hand, if the opposite conclusion is reached, the burden shifts to the Commissioner at step five to prove that the claimant can make an adjustment to other work, taking into account the claimant's age, education, and work experience. Id. at §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v); see id. at §§ 404.1560(c)(2) & 416.960(c)(2). If the claimant cannot make such adjustment to other work, disability benefits may be awarded. Id. at §§ 404.1520(g) & 416.920(g).

         Plaintiffs present five issues for the Court's consideration: (i) whether each of the administrative records[7] is complete; (ii) whether each plaintiff's receipt of benefits from Washington's Department of Social and Health Services (“DSHS”) should have been considered by ALJ Sloan; (iii) whether ALJ Sloan adequately supported and/or explained her evaluation of each plaintiff's credibility; (iv) whether the opinions of certain practitioners were properly discounted, resulting in an appropriate assessment of each plaintiff's residual functional capacity; and (v) whether due weight was given to each plaintiff's various Global Assessment of Functioning (“GAF”) scores. These arguments are addressed seriatim below.

         A. Administrative Record

         Plaintiffs assert that certain materials should be incorporated into their respective administrative records. The Court has rejected similar arguments made by plaintiffs' attorney in other cases. See Smith v. Colvin, 2016 U.S. Dist. LEXIS 144401 at *8-*14 (W.D. Wash. Oct. 14, 2016); Mostafavinassab v. Colvin, 2016 WL 4547129 at *1 n.1 (W.D. Wash. Sep. 1, 2016); Yost v. Colvin, 2016 WL 2989957 at *2-*5 (W.D. Wash. May 24, 2016); see also Cope v. Colvin, 2016 WL 6439940 at *7-*11 (W.D. Wash. Nov. 1, 2016). Although these other appeals involved different ALJs, the reasoning in the earlier decisions applies equally to this matter -- a non-random[8] assortment of an ALJ's prior decisions does not establish bias on the part of the ALJ. As in the other cases, in this matter, plaintiffs' attempt to infer prejudice from statistical comparisons fails.[9] To the extent that the items plaintiffs contend should be included in the administrative records concern claimants other than plaintiffs, [10] such documents are not “evidence, ” and plaintiffs' request to add such materials to the administrative records is DENIED.

         B. DSHS Benefits

         Plaintiffs contend that ALJ Sloan erred in not explaining why she ignored each plaintiff's receipt of DSHS benefits, citing to Social Security Ruling 06-03p, [11] which reads in relevant part:

[F]inal responsibility for deciding certain issues, such as whether you are disabled, is reserved to the Commissioner. However, we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies. Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered. . . . Because the ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner, we are not bound by disability decisions by other governmental and nongovernmental agencies. In addition, because other agencies may apply different rules and standards than we do for determining whether an individual is disabled, this may limit the relevance of a determination of disability made by another agency. However, the adjudicator should explain the consideration given to these decisions in the notice of decision for hearing cases and in the case record for initial and reconsideration cases.

         SSR 06-03p (citations omitted). The administrative records, however, contain no reliable evidence of either an award of benefits or a determination of disability by DSHS. Rather, the materials plaintiffs have cited consist of (i) Interim Assistance Reimbursement Authorizations executed by each plaintiff, AR (Seibel) 208; AR (Phelps) 246, which would permit the Social Security Administration to send to the State of Washington either the first retroactive payment of SSI benefits, if awarded, or an amount equal to the reimbursable public assistance received from the State of Washington, if any; (ii) an Intake Summary from Community Psychiatric Clinic dated September 13, 2010, indicating that Seibel was receiving $339 in General Assistance - Unemployable (“GAU”) benefits, AR (Seibel) 637; and (iii) Community Health Center of Snohomish County clinician notes dated February 27, 2013, reflecting that Phelps telephonically reported “she is still waiting to see if DSHS approves re-establishing her benefits, ” AR (Phelps) 825. None of these documents establish that Seibel or Phelps had been declared “disabled” by DSHS.[12] Thus, ALJ Sloan's silence regarding plaintiffs' alleged receipt of DSHS benefits did not amount to error.

         C. Claimant Credibility

         In the absence of affirmative evidence showing that a claimant is malingering, an ALJ's reasons for rejecting the claimant's testimony must be “clear and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The Ninth Circuit has warned that general findings concerning a claimant's credibility are insufficient; rather, an ALJ “must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Id. With respect to each plaintiff, ALJ Sloan found that the “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” AR (Seibel) 17, or at least “some of the alleged symptoms, ” AR (Phelps) 18, but that each plaintiff's “statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible.” AR (Seibel) 17; AR (Phelps) 18.

         1. Seibel's Credibility

         Seibel asserts that ALJ Sloan's credibility determination was improperly based on her misreading of the portions of the record she cited and/or on negative inferences improperly drawn from his psychotic symptoms. The Court disagrees. Contrary to Seibel's contention, ALJ Sloan did not conflate the implausibility of his statements, for example, about having worms in his body or seeing people move through solid objects, with a lack of candor. Rather, ALJ Sloan identified a persistent pattern, on Seibel's part, of changing the narrative.

         In September 2009, Seibel told a treatment provider that he believed his gastrointestinal symptoms stemmed from a parasite, perhaps a tapeworm, with which he had become infected as a child. AR 538. Tests performed on a stool culture, however, were negative for bacteria, ova, cysts, or parasites. AR 545. In June 2010, Seibel informed a different practitioner that his gastrointestinal problems were related to stress, and although he mentioned hearing voices for the previous year, he denied having any visual hallucinations and did not mention worms. AR 566-67. Less than one month later, in July 2010, Seibel reported to yet another provider, this time a psychiatrist, that he had been hearing voices since elementary school age, that he had a sensation of worms in his body, and that he had been seeing worms in other people for the past year. AR 591. Seibel also informed the psychiatrist that he had improved while on ziprasidone, also known as Geodon, which had been prescribed by his primary care physician, see supra note 3, and that he was able to “enjoy his artistic pursuits as much as ever.” AR 593. In September 2010, Seibel told a clinician, for purposes of an intake summary, that his auditory hallucinations began only six months earlier. AR 635.

         In May 2011, Seibel reported that, since increasing to 80 mg of Geodon twice a day, he had had no auditory hallucinations, AR 787, and in June 2012, he told a DSHS evaluator that he would not be able to function without Geodon, AR 816, but eight months later, in February 2013, Seibel informed a treating nurse practitioner that he had ceased using Geodon, was “psychosis free, ” and did not want to take the medication in the future, AR 866. At the hearing before ALJ Sloan, on May 1, 2013, Seibel testified that he was not taking any “pharmaceutical medications, ” AR 44, but he was continuing to ingest and smoke marijuana on a regular basis, and that Geodon “basically took [his] life away, ” making him unable to socialize or play music, AR 57.

         In addition to making inconsistent statements concerning the onset of symptoms and the efficacy of prescribed drugs, Seibel has been unreliable regarding the reason he left his most recent job. In August 2009, Seibel informed a social worker that he lost his job as a result of “physical limitations.” AR 515. In June 2010, the explanation given was stress due to his symptoms of hearing voices and sleeplessness. AR 566. In September 2010, Seibel stated that he quit his job as a kitchen manager at a jazz club because he “couldn't hold a knife, ” AR 637, and/or because his fear and delusions caused him to shake, AR 639. In November 2010, Seibel disclosed to a consulting psychiatrist, Michael Stanger, M.D., that he had been laid off from his job as a cook at Egan's Ballard Jam House (a jazz venue and restaurant) because of “excessive absences, ” which he attributed to “back pain.” AR 649. Seibel also told Dr. Stanger that, in the previous year, he had sought work, being paid occasionally for walking dogs, but receiving no call backs for dishwashing jobs. AR 648. ALJ Sloan appropriately drew from these last few statements to Dr. Stanger the conclusion that Seibel believed he could work. AR 18.

         Dr. Stanger rated Seibel's ability to perform work-related activities on a regular and consistent basis as “fair.” AR 651. Dr. Stanger believed Seibel was able to manage his own funds, complete basic calculations, make change, perform simple and repetitive tasks, interact reciprocally, and accept instructions from supervisors.[13] AR 652. With regard to complex tasks and interacting with coworkers and the public, Dr. Stanger assessed Seibel as having limitations; he was unable to calculate 6 x 7 or the number of nickels in $1.35, and during interactions, he was “largely passive with a slightly slowed rate of response, ” which might pose difficulties in maintaining the pace of work with others. AR 650, 652.

         In June 2012, based on an examination performed for DSHS, Wayne C. Dees, Psy.D. formed a similar opinion.[14] Like Dr. Stanger, Dr. Dees concluded that Seibel can perform simple and repetitive tasks, but might have difficulty with complex tasks and interacting with others. AR 817. ALJ Sloan incorporated into the description of Seibel's residual functional capacity the restrictions noted by Drs. Stanger and Dees, limiting Seibel to simple tasks and some detailed tasks, and excluding tandem tasks, tasks involving cooperative team effort, and tasks requiring contact with the general public. See AR 16.

         In light of Seibel's inconsistent statements about the onset of his symptoms, the efficacy of medications, and the reason he lost his job, his evasiveness when asked by ALJ Sloan about his marijuana use, see AR 50-54[15], and his performance on mental status examinations, the Court is satisfied that ALJ Sloan has offered “clear and convincing” reasons, supported by substantial evidence, for concluding that Seibel has “exaggerated [his] symptoms and is more capable than he has alleged.” AR 19.

         2. Phelps's Credibility

         Phelps makes an analytically different argument than Seibel. She contends that ALJ Sloan failed to explain which of Phelps's alleged symptoms could reasonably be expected to be caused by her medically determinable impairments and which could not, making review of ALJ Sloan's credibility determination impossible. Phelps's assertion lacks merit. ALJ Sloan provided three reasons for why Phelps's allegations of disabling functional limitations were not entirely credible: (i) her independent daily activities and social interactions were not consistent with her claims; (ii) the medical evidence did not substantiate her complaints; and (iii) her problems appeared, at least in part, situational in nature, rather than stemming from medically determinable impairments. See AR 18-20. With respect to each of these grounds, ALJ Sloan offered details that made clear which symptoms were viewed as being less intense, persistent, or limiting than Phelps contends.

         a. Back Pain

         For example, Phelps has indicated that, as a result of a back injury for which she filed a Labor and Industries (“L&I”) claim in January 2010, [16] she is unable to sit or stand for more than about 20 minutes at a time or to bend over to pick up items. See AR 39-40. ALJ Sloan noted, however, that in May 2011, Phelps told a treatment provider that she had “no problem” with step aerobics classes, which she attended twice a week. AR 17; see AR 695; see also AR 46. Moreover, in July 2011, Phelps sought medical attention for swelling in her hands associated with a visit to a batting cage, and in August 2012, she complained of bilateral arm pain related to playing in a pool and shooting basketballs; on each occasion, she did not report any issues with her back. See AR 705-07, 866-67. At the hearing before ALJ Sloan in May 2013, Phelps indicated that she exercises roughly twice a week, using a work-out video, which involves power walking and leg lifts. AR 45. The record supports ALJ Sloan's conclusion that Phelps's allegation of disabling back pain is not consistent with her level of activity.[17]

         Moreover, as noted by ALJ Sloan, the objective medical evidence does not support a finding that Phelps's back problem changed significantly on or near the alleged disability onset date of June 1, 2012. In July 2012, Phelps told a treatment provider, Douglas McMillen, M.D., that she was having mid-back pain, which was aggravated by extension, but relieved by stretching. AR 868. A physical examination of the spine was negative for posterior tenderness, AR 869, and an X-ray showed only mild spondylotic change in the thoracic spine and mild anterior vertebral body height loss at ¶ 9, which was similar to results seen in March 2012, AR 872. In September 2012, Phelps again complained to Dr. McMillen of back pain, indicating that it had begun within the previous two weeks. AR 864. In both July and September 2012, Dr. McMillen opined that ...

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