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Lareina N. v. Commissioner of Social Security

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

June 26, 2019

LAREINA N., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S DECISION AND DISMISSING WITH PREJUDICE

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals the denial of her applications for Supplemental Security Income and Disability Insurance Benefits. She contends the ALJ erred by (1) discounting the opinions of three examining psychologists and a non-examining psychologist and (2) discounting plaintiff's symptom testimony. Dkt. 10. The Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.

         BACKGROUND

         Plaintiff is currently 44 years old, attended some college, and has worked as a home attendant, clerk, gambling dealer, and bakery assistant. In 2015, she applied for benefits, alleging disability as of November 15, 2014. After her applications were denied initially and on reconsideration, the ALJ conducted a hearing in April 2017. Tr. 33-67. In an October 2017 decision, the ALJ utilized the sequential evaluation process[1] and found at step one that plaintiff had not engaged in substantial gainful activity since the alleged onset date of November 14, 2014; at step two that plaintiff had the severe impairments of personality disorder, mood disorder, anxiety disorder, and polysubstance abuse in early remission; and at step three that none of those impairments met or equaled the requirements of a listed impairment.[2] Tr. 19- 21. The ALJ determined that plaintiff has the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with certain non-exertional limitations: she can perform simple, routine tasks and can have occasional, superficial contact with the public. Tr. 21-26. The ALJ found at step four that plaintiff could not perform any past, relevant work; and at step five that jobs exist in significant numbers in the national economy that plaintiff can perform. Tr. 26-27. The ALJ therefore found that plaintiff is not disabled. Tr. 27. Because the Appeals Council denied plaintiff's request for review, the ALJ's decision is the Commissioner's final decision.

         DISCUSSION

         The Court will reverse the ALJ's decision only if it was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ's decision may not be reversed on account of an error that is harmless. Id. at 1111. Where the evidence is susceptible to more than one rational interpretation, the Court must uphold the Commissioner's interpretation. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Although she advances a plausible interpretation of the medical evidence and testimony, plaintiff has not demonstrated that the ALJ's decision was unsupported by substantial evidence, was the result of harmful legal error, or was based on an unreasonable interpretation of the medical evidence.

         1. Evaluation of the Medical Evidence

         Plaintiff contends that the ALJ should have given more weight to the medical opinions of examining psychologists Kenneth Hapke, Ph.D., David Widlan, Ph.D., and James Czysz, Ph.D., and of non-examining psychologist Holly Petaja, Ph.D. The Court finds that the ALJ cited specific and legitimate reasons for discounting the opinions of Drs. Hapke, Widlan, Czysz, and Petaja that were supported by the contradictory opinions of non-examining psychologists John F. Robinson, Ph.D., and Jan Lewis, Ph.D., the medical treatment notes, and the record.

         Generally, for cases filed before March 27, 2017, more weight should be given to the opinions of treating and examining doctors than to the opinions of doctors who do not treat the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see 20 C.F.R. § 404.1527(c)(2); SSR 96-2p. Here the ALJ favored the opinions of non-examining psychologists Drs. Robinson and Lewis over those by examining psychologists Drs. Hapke, Widlan, and Czysz and by non-examining psychologist Dr. Petaja. The Court therefore examines whether the examining opinions of Drs. Hapke, Widlan, and Czysz were rejected for specific and legitimate reasons that are supported by substantial evidence, Lester, 81 F.3d at 830; and whether the non-examining opinion of Dr. Petaja was discounted with reference to specific evidence in the medical record, Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). “The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . an examining physician . . . .” Lester, 81 F.3d at 830 (emphasis added).

         (a) Examining Psychologist Dr. Hapke

         The ALJ gave little weight to the July 2015 opinion of examining psychologist Dr. Hapke because (1) while Dr. Hapke opined that plaintiff's impairments would interfere with her ability to perform basic work activities and that it is doubtful she could maintain appropriate behavior in a work setting, his opinion was based in-part on plaintiff's complaints of physical problems and situational stressors such as homelessness; and (2) while plaintiff performed poorly on the psychological examination administered by Dr. Hapke, she was not engaged in mental health counseling at the time and subsequent records show improvement in her condition with regular treatment. Tr. 25. The Court finds that these were specific and legitimate reasons supported by substantial evidence.

         First, plaintiff argues that it was inaccurate for the ALJ to characterize Dr. Hapke's assessment as based in-part on plaintiff's complaints of physical problems and situational stressors such as homelessness. Plaintiff notes that Dr. Hapke logically referred to physical diagnoses after reviewing treatment notes and nonetheless stated: “no physical impediment to the claimant's ability to perform ADLs was observed; consideration of the effect of the claimant's physical illness is deferred to medical professional opinion.” Dkt. 10, at 4; Tr. 475. Likewise, plaintiff notes that although Dr. Hapke referred to the existence of situational stressors such as homelessness, such statements of context cannot be reasonably used to discount Dr. Hapke's professional opinion regarding plaintiff's mental limitations. Although plaintiff's interpretation of Dr. Hapke's opinion is plausible, advancing an alternative account does not itself undermine the reasonableness of the ALJ's interpretation of the medical evidence. As “DIAGNOSTIC IMPRESSION, ” Dr. Hapke referred to the physical illnesses of GERD and irritable bowel, endometriosis, fibromyalgia, asthma, and scoliosis; and to the psychosocial considerations of recent homelessness, unemployment, poverty, extremely limited social support, and inadequate physical and mental health support. Tr. 477-78. In his concluding, “MEDICAL SOURCE STATEMENT, ” Dr. Hapke stated that the prognosis for plaintiff was guarded due to symptoms of anxiety, but also noted that her health is compromised by chronic fatigue, pain and discomfort secondary to fibromyalgia and GERD, and that her inability to function normally should be viewed in the context of recent homelessness, poverty, and social isolation (secondary to a history of unstable or abusive relationships). Tr. 478. It was reasonable for the ALJ to infer that Dr. Hapke's opinion was based, at least in part, on plaintiff's complaints of physical problems and situational stressors, and to discount Dr. Hapke's assessment of functional capacity to the extent it appeared to embrace physical impairments explicitly found to be not severe and situational stressors deemed to be transient.

         Second, plaintiff argues that it was inaccurate for the ALJ to suggest that plaintiff was not engaged in mental-health counseling at the time of Dr. Hapke's report when her primary care physician had been addressing her mental-health needs prior to specialized counseling, and for the ALJ to characterize her mental health as improving when her symptoms continued to wax and wane with regular treatment. Dkt. 10, at 5. While again plaintiff's interpretation of Dr. Hapke's report is plausible, this alternative explanation does not undermine the ALJ's reasonable interpretation of the medical evidence. The ALJ examined plaintiff's treatment records, particularly with respect to mental health, in great detail. Tr. 22-24. The ALJ noted that while in March 2015 plaintiff was resistant to specialized counseling, by September 2015 she began engaging in specialized mental-health counseling and through the rest of the year reported improvement in her mood while receiving counseling with medication management at Harborview Medical Center, thought homelessness continued to be a stressor that worsened her anxiety. Tr. 23; Tr. 512, 544, 713. The ALJ noted that by March 2016 plaintiff was involved in a vocational rehabilitation program and records from May 2016 showed that she continued to report that she was doing better. Tr. 24, 642, 653. This is bolstered by an October 2016 mental-health treatment note that the “goal” with respect to employment and activity was “To assist client in re-enter[ing] the work world she came from, support her return to work, refer to employment team to help her get back on track.” Tr. 610. The ALJ characterized the 2016 treatment records as showing some waxing and waning of symptoms that appeared related primarily to situational stressors such as her living situation and problems with her ex-boyfriend, but also as indicating improvement, stability, and unremarkable mental status evaluations. Tr. 24, 615, 578-615, 637. The ALJ noted that in January 2017, even with plaintiff's limited compliance with treatment (e.g., she stopped taking one of her medications on her own), her mental status findings remained normal and showed her to be neatly dressed, alert, attentive, cooperative, and oriented with a euthymic mood, linear thoughts, fair to good insight and judgment, and no memory deficits. Tr. 24, 573. The ALJ further noted that by April 2017-the final date of available mental-health treatment notes- plaintiff reported not being as depressed and stated that she was unable to work due to being stressed out by others rather than due to an inability to carry out work tasks. Tr. 24, 557-58. The ALJ's characterization of the treatment record was neither inaccurate nor unreasonable and was supported by the non-examining opinions of Drs. Robinson and Lewis, who concluded that the treatment records demonstrated that plaintiff's diminished stress tolerance, manifesting as borderline traits and somatoform symptoms, overlapped her actual work and educational history and did not preclude work so long as her social limitations were considered. See Tr. 75, 90, 105.

         Moreover, plaintiff's arguments can be construed as cutting against a claim of disability. Although plaintiff asserts it was inappropriate for the ALJ to gloss over the mental-health treatment she had been receiving from her primary care provider, it was reasonable for the ALJ to infer that plaintiff's improvement could be attributable to seeking mental-health treatment from a specialist rather than a general practitioner. Similarly, although it would be inappropriate for the ALJ to cherry-pick the mental-health record for the highest functioning amidst the waxing and waning of symptoms, see, e.g., Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014), here the ALJ ...


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