United States District Court, W.D. Washington, Tacoma
WILLIAM T. SMITH, Mr. Smith,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
Theresa L. Fricke United States Magistrate Judge
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.
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.
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.
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
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.
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
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.
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)).
The ALJ's Evaluation of the Medical and Other Opinion
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.
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).
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.
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.
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).
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.
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.
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).
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. ...