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Newman v. Berryhill

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

July 25, 2017

TIMOTHY J. NEWMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Timothy Newman's objections (Dkt. No. 25) to the report and recommendation (Dkt. No. 24) issued by the Honorable Theresa L. Fricke, United States Magistrate Judge. Having reviewed Judge Fricke's report and recommendation, Newman's objections, the Commissioner's response, and the relevant record, the Court OVERRULES the objections (Dkt. No. 25) and ADOPTS the report and recommendation (Dkt. No. 24) for the reasons set forth herein.

         I. BACKGROUND

         Newman suffers from bipolar disorder. See AR 20-23. On September 22, 2009, Newman filed for disability insurance benefits and supplemental security income benefits, alleging disability beginning in 2006. AR 16. In 2012, Administrative Law Judge (ALJ) Joanne Dantonio found Newman not disabled. AR 57. Newman appealed and the Appeals Council remanded the case to a new ALJ. AR 63-65. On remand, ALJ M. J. Adams[1] considered: (1) Newman's medical records; (2) reports by examining physicians Dr. Anselm Parlatore, Dr. Sylvia Thorpe, and Dr. W. Douglas Uhl; (3) reports by treating physician Dr. Lori Rubens; (4) Newman's function report; (5) Newman's ex-wife's function report; (6) Newman's testimony and demeanor at his hearing; and (7) the testimony of a vocational expert. AR 22-31. ALJ Adams denied Newman's application, finding Newman's disability was not severe enough to prevent him from working. AR 20-22.

         The Appeals Council denied Newman's second appeal, making the ALJ's decision the Commissioner's final decision. AR 7-9. Newman then appealed to this Court. (Dkt. No. 3.) Judge Fricke concluded that the ALJ had not erred and recommended that the undersigned affirm the ALJ's decision. (Dkt. No. 24.) Newman objected to Judge Fricke's report and recommendation, arguing that the ALJ: (1) erred in finding Newman not credible; (2) improperly weighed Dr. Parlatore's medical findings; and (3) improperly weighed Dr. Rubens's medical findings.

         II. DISCUSSION

         A. Legal Standards

         A district judge reviews objections to a magistrate judge's report and recommendation de novo. Fed.R.Civ.P. 72(b)(3). The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Id.

         A district court may disturb the Commissioner's decision to deny Social Security benefits “only if it is not supported by substantial evidence or based on legal error.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.” Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Substantial evidence means “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.” Id. When the evidence before an ALJ is subject to multiple rational interpretations, this Court must defer to the ALJ's decision. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).

         B. Newman's Credibility

         The ALJ found that Newman was not credible and gave limited consideration to his testimony. AR 23-25. The ALJ based his credibility assessment on: (1) Newman's drug-seeking behavior; (2) evidence of malingering and poor effort during testing; and (3) inconsistencies in testimony about social functioning, domestic chores, and Newman's attention span. AR 24-25. Newman objects to Judge Fricke's finding that this credibility determination was appropriate. (Dkt. No. 25 at 6-10.)

         The ALJ is responsible for determining the credibility of claimants and witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). When an ALJ makes a credibility determination, general findings are insufficient; instead, “the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). “The ALJ may consider at least the following factors when weighing the claimant's credibility: ‘claimant's reputation for truthfulness, inconsistencies either in claimant's testimony or between [his] testimony and [his] conduct, claimant's daily activities, [his] work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which claimant complains.'” Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)). When a record of malingering exists, the ALJ need not provide “clear and convincing” reasons for rejecting a claimant's testimony. Lester, 81 F.2d at 834. Additionally, the Court need not uphold all of the ALJ's bases for his or her credibility decision, as long as there is “substantial evidence” to support the ALJ's final conclusion on credibility. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

         1. The ALJ's Findings

         Since 2006, the alleged beginning of the disability, Newman has been examined by multiple physicians with somewhat conflicting diagnoses and conclusions. See AR 385-95, 462- 91, 509-83. Newman has experienced a number of manic episodes, causing him to be psychiatrically hospitalized three times. AR 21. During those periods, he was inconsistently taking bipolar medication. AR 22-29. Although Dr. Rubens, his treating physician, reported that Newman was “markedly impaired” in 2012, Dr. Rubens has managed Newman's condition through medication and he has not had a manic episode since late 2011. AR 468-91, 574-83. More recently, examining physician Dr. Thorpe examined Newman and noted that he gave inconsistent effort and showed signs of “possible malingering.” AR 524-25.

         The ALJ found Newman non-credible in part because he has a history of drug use and possible drug-seeking behavior. AR 24. While Newman was experiencing his manic episodes, he was also prescribed Adderall. AR 255-60. There is evidence that he abused the drug and sought it out when his physician denied him an additional prescription. AR 24, 270-76, 309-10, 408- 17. When Newman was hospitalized, he told his doctors that Adderall helped him sleep. AR 255, 262. However, his doctors also noted that an additional episode was spurred when he started taking Adderall again. AR 255, 262. Doctors have recommended that Newman should not be prescribed Adderall. AR 255-60. The last record of Newman seeking Adderall was in early 2011 upon his last hospitalization. AR 426. Newman has admitted to marijuana use and tested positive for the drug even when denying use. AR 255, 427, 385-89. Additionally, in 2012, a pharmacist reported Newman for suspected abuse of Ambien when he filled prescriptions for 90 pills in 60 days. AR 24.

         The ALJ also observed inconsistencies in Newman's representations as to his ability to function. AR 23-29. For example, in Newman's psychiatric sessions, he noted that he is completely dependent on his ex-wife. AR 510, 531. However, Newman also reported that he does his own shopping, yardwork, and helps take care of his ex-wife. AR 211-14.

         On appeal, Judge Fricke found the ALJ's determination of credibility was substantially supported by the evidence. (Dkt. No. 24 at 8.) Judge Fricke recommended that the ALJ's findings be upheld. (Id. at 11.)

         2. Newman's Objections

         Newman contends that the ALJ and Judge Fricke failed to understand how his disorder affects him, which consequently tainted the ...


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