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Kimbra L. v. Commissioner of Social Security

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

October 21, 2019

KIMBRA L., Plaintiff,




         Plaintiff Kimbra L. seeks review of the denial of her applications for supplemental security income and disability insurance benefits. Compl. (Dkt. 1). Plaintiff has severe impairments of status post fracture of the right ankle, osteoarthrosis, degenerative joint disease, obesity, affective disorder, and anxiety disorder. Admin. Record (“AR”) (Dkt. 9) at 23.

         Plaintiff applied for disability benefits in 2015, alleging disability as of July 10, 2013. Id. at 307-14. Plaintiff's application was denied on initial review and on reconsideration. Id. at 133-70. At Plaintiff's request, Administrative Law Judge (“ALJ”) Tom Morris held a hearing on Plaintiff's claims.[1] Id. at 39-132. On January 31, 2018, ALJ Morris issued a decision finding Plaintiff not disabled and denying her claim for benefits. Id. at 20-31. The Appeals Council denied review. Id. at 1-3.

         Plaintiff argues that ALJ Morris erred by (a) rejecting the opinions of mental health counselor Anita LaRae, LMHC, (b) rejecting the opinions of treating doctor Wendy Pierce, M.D., and (c) accepting the opinions of the state agency consultants. Pl. Op. Br. (Dkt. 11) at 1.


         Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the ALJ. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Id.

         A. The ALJ Did Not Harmfully Err in Rejecting Ms. LaRae's Opinions

         Plaintiff argues that ALJ Morris erred in rejecting Ms. LaRae's opinions. Pl. Op. Br. at 2-3. Ms. LaRae is Plaintiff's treating mental health counselor. See AR at 1072-77, 1104-16, 1150-52, 1156-60. Ms. LaRae submitted four medical source statements. Id. at 1072-77, 1151-52, 1157. On February 27, 2017, Ms. LaRae completed a form statement in which she checked boxes opining that Plaintiff had marked limitations in sustained concentration and persistence, social interaction, and adaptation. Id. at 1073-74. On December 6, 2017, Ms. LaRae signed a statement in which she opined that Plaintiff's limitations had significantly worsened since Ms. LaRae's February 2017 statement. Id. at 1157.

         On March 10, 2017, Ms. LaRae completed a letter in which she described her treatment of Plaintiff, her diagnoses, and her recommendations for further treatment. Id. at 1076-77. Ms. LaRae noted that Plaintiff struggles with emotional mood swings, rage, and communication. See Id. at 1076. Ms. LaRae also reported that Plaintiff had a global assessment of functioning (“GAF”) score[2] of 55. Id. at 1077. On December 4, 2017, Ms. LaRae completed a letter that was largely the same as her March 2017 letter. See Id. at 1151-52.

         ALJ Morris rejected Ms. LaRae's check-box opinions from February 2017 and December 6, 2017, because she relied on Plaintiff's subjective complaints in formulating those opinions, and ALJ Morris had rejected Plaintiff's complaints as not well-supported by the overall record. Id. at 28. ALJ Morris stated-incongruously-that “[Ms.] LaRae's opinion is given weight, however, and addressed in the [second] RFC[3] as detailed above.” Id. at 28. ALJ Morris gave no further explanation, other than to state that “[g]reater weight is placed on [Ms.] LaRae's narrative opinion than the GAF score as one example, for the GAF necessarily says very little about the most any claimant can do.” Id.

         The parties dispute whether ALJ Morris rejected all of Ms. LaRae's opinions or accepted some of them. Pl. Op. Br. at 2; Def. Resp. Br. (Dkt. 12) at 9. ALJ Morris's decision is unclear on this issue, but it is ultimately irrelevant to the outcome. Assuming ALJ Morris rejected all of Ms. LaRae's opinions, Plaintiff has failed to show harmful error. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407-09 (2009)) (holding that the party challenging an administrative decision bears the burden of proving harmful error). Although ALJ Morris's analysis is poorly written, he reasonably determined that Ms. LaRae relied too heavily on Plaintiff's subjective complaints, which ALJ Morris had separately rejected. See Wilder v. Comm'r of Soc. Sec. Admin., 545 Fed.Appx. 638, 639 (9th Cir. 2013); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). Plaintiff does not challenge ALJ Morris's rejection of her subjective symptom testimony, so it is presumed that ALJ Morris did not err in doing so.[4]

         Plaintiff argues that ALJ Morris erred in finding that Ms. LaRae relied too heavily on Plaintiff's subjective complaints because Ms. LaRae conducted interviews during therapy sessions. Pl. Op. Br. at 2. An ALJ generally may not reject an opinion from a psychiatrist or psychologist for being too heavily based on the plaintiff's self-reports when the doctor performs a clinical interview or mental status evaluation because those are objective measures that can separately support the doctor's opinion. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). But the interviews that Ms. LaRae conducted are not comparable to the clinical interviews and mental status evaluations psychologists and psychiatrists routinely perform. Instead, the record reveals only conversations from therapy sessions. See AR at 1104-16. ALJ Morris thus did not err in rejecting Ms. LaRae's opinions as too heavily based on Plaintiff's subjective complaints.

         ALJ Morris similarly did not err in rejecting Ms. LaRae's GAF scores. The American Psychiatric Association dropped the GAF score from its Diagnostic and Statistical Manual of Mental Disorders, 5th edition, 2013, because it lacked clarity and had questionable value in routine practice. See Golden, 29 Vet. App. at 224. ALJ Morris ...

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