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Smith v. Berryhill

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

June 14, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Theresa L. Fricke United States Magistrate Judge

         William T. Smith has brought this matter for judicial review of defendant's denial of his applications for disability insurance and supplemental security income (SSI) benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set forth below, the Court finds that defendant's decision to deny benefits should be affirmed.


         In November 2005, Mr. Smith filed an application for disability insurance benefits and another one for SSI benefits, alleging in both applications that he became disabled beginning March 10, 2005. Dkt. 9, Administrative Record (AR) 565. Both applications were denied on initial administrative review and on reconsideration. Id. A hearing was held in August 2008 before an administrative law judge (ALJ). AR 565. Mr. Smith appeared and testified as did a medical expert and a vocational expert. AR 22-64. The ALJ found in a written decision that Mr. Smith was not disabled. AR 11-21. On review, this court reversed and remanded that ALJ's decision. See AR 718. Another hearing was held in September 2013 before a different ALJ; Mr. Smith testified by telephone. AR 565, 605.[1]

         In a written decision on December 13, 2013, the ALJ found that Mr. Smith could perform his past relevant work and therefore was not disabled. AR 565-592. The Appeals Council denied Mr. Smith's request for review on April 11, 2016, making the ALJ's decision the final decision of the Commissioner, which Mr. Smith then appealed in a complaint filed with this Court on June 15, 2016. AR 555-60; Dkt. 3; 20 C.F.R. §§ 404.981, 416.1481.

         Mr. Smith seeks reversal of the ALJ's decision and remand for an award of benefits, arguing the ALJ erred:

(1) in evaluating the medical evidence;
(2) in discounting Mr. Smith's credibility;
(3) in rejecting the lay witness evidence; and
(4) in assessing Mr. Smith's residual functional capacity.

         For the reasons set forth below, however, the Court disagrees that the ALJ erred as alleged, and therefore recommends that the Court affirm the decision to deny benefits.


         The Commissioner employs a five-step “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. If the ALJ finds the claimant disabled or not disabled at any particular step, the ALJ makes the disability determination at that step and the sequential evaluation process ends. See 20 C.F.R. §§ 404.1520, 416.920. At issue here is the ALJ's evaluation of the medical evidence and testimony from Mr. Smith and his lay witnesses, the ALJ's use of that evidence in assessing Mr. Smith's RFC, and the ALJ's resulting conclusion at step five that Mr. Smith could perform jobs existing in significant numbers in the national economy.

         This Court must uphold the Commissioner's determination that a claimant is not disabled if the Commissioner applied the “proper legal standards” and the “substantial evidence in the record as a whole supports” that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991). “A decision supported by substantial evidence nevertheless will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.” Carr, 772 F.Supp. at 525 (citing Brawner v. Sec'y of Health and Human Sers., 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at 1193.

         This Court will uphold the Commissioner's findings “if supported by inferences reasonably drawn from the record.” Batson, 359 F.3d at 1193. Substantial evidence requires the Court to determine whether the Commissioner's determination is “supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required.” Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence admits of more than one rational interpretation, ” the Court must uphold that decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That is, “[w]here there is conflicting evidence sufficient to support either outcome, ” the Court “must affirm the decision actually made.” Allen, 749 F.2d at 579 (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).

         I. The ALJ's Evaluation of the Medical and Other Opinion Evidence

         The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the evidence is inconclusive, “‘questions of credibility and resolution of conflicts are functions solely of the [ALJ]'” and this Court will uphold those conclusions. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. Gardner, 452 F.2d 855, 858 n. 7 (9th Cir.1971)); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). As part of this discretion, the ALJ determines whether inconsistencies in the evidence “are material (or are in fact inconsistencies at all) and whether certain factors are relevant” in deciding how to weigh medical opinions. Id. at 603.

         The ALJ must support his or her findings with “specific, cogent reasons.” Reddick, 157 F.3d at 725. To do so, the ALJ sets out “a detailed and thorough summary of the facts and conflicting clinical evidence, ” interprets that evidence, and makes findings. Id. The ALJ does not need to discuss all the evidence the parties present but must explain the rejection of “significant probative evidence.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted). The ALJ may draw inferences “logically flowing from the evidence.” Sample, 694 F.2d at 642. And the Court itself may draw “specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

         In general, the ALJ gives more weight to a treating physician's opinion than to the opinions of physicians who do not treat the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Nonetheless, an ALJ need not accept a treating physician's opinions that “is brief, conclusory, and inadequately supported by clinical findings” or “by the record as a whole.” Batson, 359 F.3d at 1195; see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

         To reject the uncontradicted opinion of either a treating or examining physician, an ALJ must provide “clear and convincing” reasons. Lester, 81 F.3d at 830. When other evidence contradicts the treating or examining physician's opinion, the ALJ must still provide “specific and legitimate reasons” to reject that opinion. Id. at 830-31. In either case, the ALJ's reasons must be supported by substantial evidence in the record. Id. Next, an ALJ gives greater weight to an examining physician's opinion than that of a nonexamining physician. Id. at 830. Finally, a non-examining physician's opinion may constitute substantial evidence for an ALJ's findings if that opinion “is consistent with other independent evidence in the record.” Tonapetyan, 242 F.3d at 1149.

         Mr. Smith contends that the ALJ committed numerous errors in considering, or failing to consider, medical opinion evidence dating back to 2005. However, many of Mr. Smith's arguments consist of one-sentence, conclusory assertions. See, e.g., Dkt. 22, pp. 5 (“These are not legitimate reasons to reject Dr. Brown's opinion”), 11 “(The ALJ's analysis is not supported by substantial evidence, and none of the ALJ's reasons are legitimate reasons to reject Dr. Sanchez's opinion”), 12 (“The ALJ's assertion is not supported by substantial evidence”). This court will not address issues that a party does not argue with specificity in its briefing. Carmickle v. Commissioner of Social Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); see Paladin Associates., Inc. v. Montana Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (by failing to make argument in opening brief, objection to grant of summary judgment was waived); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (matters not specifically and distinctly argued in opening brief ordinarily will not be considered).

         This Court has considered Mr. Smith's arguments to the extent it can discern them. Nonetheless, in making only passing, conclusory assertions Mr. Smith waived his arguments that the ALJ erred in considering the opinions of Dr. Brown, Dr. Sanchez, Dr. Neims, Dr. Smith, Dr. Redick, Dr. Johnson, Dr. Lee, and Dr. Hilby. See Dkt. 22, pp. 4-5, 10-12, 14-17. Mr. Smith likewise failed to present a specific argument that the ALJ erred in considering his various global assessment of functioning (GAF) scores. Dkt. 22, p. 17. The Court therefore addresses only the arguments that Mr. Smith supported with some specificity.

         A. Dr. Stagner

         Ted Stagner, Psy.D., opined that Mr. Smith was acutely mentally ill in October 2005. AR 318-20. He opined that Mr. Smith was markedly limited in his ability to learn new tasks, exercise judgment and make decisions, relate appropriately to coworkers and supervisors, interact appropriately in public contacts, and respond appropriately to and tolerate the pressures and expectations of a normal work setting. AR 319.

         The ALJ gave “little weight” to Dr. Stagner's opinion. He explained that Dr. Stagner gave his opinion “shortly after [Mr. Smith] experienced an episode of decompensation.” AR 583. Whereas Mr. Smith's condition tended to worsen when he was off medications or drinking alcohol, the ALJ noted that such episodes were “only temporary” and became better with medication. AR 577. The ALJ observed that later clinical observations were inconsistent with the degree of limitations that Dr. Stagner assessed. AR 583; see AR 576. And the ALJ explained that Dr. Stagner's opinion regarding Mr. Smith's limitations was inconsistent with Mr. Smith's activities (part-time work, meetings, driving, chess, “going bowling, ” and “going to fairs”). AR 583; see AR 425, 619. These were specific and legitimate reasons to discount Dr. Stagner's opinion, and the record supports them. See Morgan, 169 F.3d at 600-02 (inconsistencies with other medical opinions and with activities of daily living are specific and legitimate reasons to discount medical opinion).

         Mr. Smith contends that “his symptoms continued to wax and wane between 2005 and 2013, ” and that “the fact that Mr. Smith's symptoms waned at times is not a legitimate reason to reject Dr. Stagner's opinion.” Dkt. 22, p. 4. “Cycles of improvement and debilitating symptoms are a common occurrence, ” and the Ninth Circuit has held that “in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). But here the record does not indicate that Mr. Smith experienced only “isolated instances of improvement.” See Id. Rather, Mr. Smith's medical records dating to 2005 support the ALJ's finding that he received mostly unremarkable mental health evaluations. See AR 408-18, 427, 431, 439, 512-13, 525, 530, 536, 541; see generally AR 423-443 (Good Samaritan Behavioral Healthcare records, March 2005-August 2006, marking “[n]one” for “[r]elevant changes in medical condition and/or medications” at each visit), 475-543 (similar records for August 2006-July 2008). The record also supports the ALJ's finding that low points in Mr. Smith's mental-health history coincided with his being off medications and drinking alcohol again. ...

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