United States District Court, W.D. Washington, Seattle
TIMOTHY J. NEWMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
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.
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 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.
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.
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.
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).
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.)
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).
The ALJ's Findings
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.
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.
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.
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.)
contends that the ALJ and Judge Fricke failed to understand
how his disorder affects him, which consequently tainted the