Opinion
No. CV-11-0151-LRS
01-15-2013
LYLE AYOTTE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
ORDER RE SUMMARY
JUDGMENT MOTIONS
BEFORE THE COURT are Plaintiff's Motion For Summary judgment (ECF No. 16) and Defendant's Motion For Summary Judgment (ECF No. 18).
JURISDICTION
On June 22, 2004, Plaintiff filed his claim for Child Disability Benefits and Supplemental Security Income. The applications were denied initially on October 7, 2004 and upon reconsideration on February 7, 2005. After timely requesting a hearing, Plaintiff, represented by counsel, appeared before Administrative Law Judge ("ALJ") R.J. Payne on October 12, 2006. Plaintiff and a Medical Expert, Margaret Moore, Ph.D., testified at that hearing. On November 3, 2006, ALJ Payne issued an unfavorable decision. On May 21, 2007, the Appeals Council denied Plaintiff's request for reconsideration. On December 28, 2007, the case was remanded to the ALJ, pursuant to a stipulated motion for remand. A second hearing was held on October 3, 2008 in Spokane, Washington. On October 23, 2008, the ALJ issued an unfavorable decision denying benefits. The Appeals Council denied a request for review on March 25, 2011. This decision is appealable to district court pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). On April 19, 2012, Plaintiff commenced this action.
STATEMENT OF FACTS
The facts have been presented in the administrative transcripts, the ALJ's decisions, the Plaintiff's and Defendant's briefs and will only be summarized here. At the time of the initial hearing administrative hearing, Plaintiff testified he was 22 years old. At the second administrative hearing, Plaintiff was 24 years old. Plaintiff, however, attained age 22 on September 9, 2006, which satisfies his age requirement to apply for child insurance benefits. Plaintiff alleges he became disabled on September 10, 2002, due to severe lordosis. (Tr. 57, 366, 461).
STANDARD OF REVIEW
"The [Commissioner's] determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence, 42 U.S.C. § 405(g)...." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989), quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982).
It is the role of the trier of fact, not this court to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).
A decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987).
ISSUES
Plaintiff argues the ALJ erred in evaluating the medical opinions of Drs. Pollack and Capes, regarding Plaintiff's mental limitations. Plaintiff argues that the ALJ erred in deciding this case without requesting vocational expert testimony. Additionally, Plaintiff argues the ALJ erred by rejecting the opinion of a lay witness/vocational consultant, Ellen Nagourney.
DISCUSSION
SEQUENTIAL EVALUATION PROCESS
An individual under the age of 18 is considered disabled if he "has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i).
The Commissioner has established a three-step sequential evaluation process for determining whether a child is disabled. 20 C.F.R. §416.924. Step one determines if the child is engaged in substantial gainful activities. If he is, benefits are denied. 20 C.F.R. §416.924(b). If he is not, the decision-maker proceeds to step two, which determines whether the child has a medically severe impairment or combination of impairments. 20 C.F.R. §416.924(c). If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which requires the child's impairment to meet, medically equal, or functionally equal an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1. 20 C.F.R. §416.924(d). If the impairment meets or equals one of the listed impairments, the child is conclusively presumed to be disabled.
Part B provides the medical criteria for the evaluation of impairments of children under the age of 18.
ALJ'S FINDINGS
At the second hearing on October 23, 2008, the Plaintiff, represented by counsel, and Margaret Moore, Ph.D., a medical expert, testified in Spokane, Washington. The ALJ found Plaintiff had attained age 22 on September 9, 2006, the day before his 22nd birthday. The ALJ further found Plaintiff had not engaged in substantial gainful activity since September 10, 2002, the alleged onset date. Since September 10, 2002, the ALJ found Plaintiff had severe impairments, those being learning disorder, personality disorder, obesity and back pain. The ALJ found, however, that these impairments, including mental impairments, did not meet or medically equal any of the listed impairments. Furthermore, the ALJ found Plaintiff has the residual functional capacity to perform medium work except he is moderately limited in his ability to set realistic goals or make plans independently of others and accept instructions and respond appropriately to criticism from supervisors and he should have limited contact with the general public. Accordingly, the ALJ concluded on October 23, 2008 that based on the application protectively filed on June 22, 2004, the Plaintiff is not disabled prior to September 9, 2006, the date he attained age 22. Additionally, based on the application for supplemental security income filed on June 22, 2004, the Plaintiff is not disabled.
MEDICAL EVIDENCE
"[W]hen evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Plaintiff asserts generally that he is more limited, mentally, than the ALJ concluded in the October 23, 2008 Decision. (Tr. 366-75). Plaintiff contends that the ALJ did not properly consider nor reject the opinions of examining sources, namely Dennis R. Pollack, Ph.D. and Robert Capes, Psy.D., regarding his psychological impairments.
The Commissioner argues that the ALJ properly relied upon other findings in the record, supported by objective testing, that contradicted the opinions of Drs. Pollack and Capes. (Tr. 372-73).
A. Robert Capes, Psy.D.
On September 23, 2004, Robert Capes, PsyD, administered a Mental Status Examination and the Wechsler Adult Intelligence Scale-III. Dr. Capes was of the opinion that Plaintiff had a learning disorder, not otherwise specified ("NOS"), as well as depression, NOS. Dr. Capes determined that Plaintiff had a full scale IQ score of 90, verbal IQ score of 82, and a performance IQ score of 102. Dr. Capes stated that due to Plaintiff's self-reported difficulties in being with others and possible difficulties with authority, it would be problematic for him to work in a situation that required interaction with others. Dr. Capes stated that if Plaintiff could learn computer technology and work in a situation with only a few people, he might be successful. Dr. Capes stated that Plaintiff's level of awareness of the world around him appeared of no real interest, so his fund of information about "worldly things" appeared quite low. (Tr. 157-161).
B. Dennis Pollack, Ph.D.
On September 21, 2006, Dr. Pollack, a consultative examiner, administered the Minnesota Multiphasic Personality Inventory-2; Millon Clinical Multiaxial Inventory-III; Mental Status Examination; Wisconsin Card Sorting Test-CV-111; Stroop Color Word Test; and Aphasia Screening Test (Tr. 281). Dr. Pollack diagnosed Plaintiff with a pain disorder associated with both psychological factors and a general medical condition, as well as a learning disorder, NOS. Dr. Pollack also gave Plaintiff a rule out diagnosis of schizotypal personality disorder (Tr. 286). It was Dr. Pollack's opinion that Plaintiff would have moderate work-related limitations in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, as well as complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 281-290). Dr. Pollack stated that "[Plaintiff] was a poor historian and did not adequately describe his personality history, limitations or activities which prevents the examiner from making a clear diagnosis." (Tr. 286).
C. Joyce Everhart, Ph.D., Margaret Moore, Ph.D., Allen D. Bostwick, Ph.D.
As the ALJ noted in his decision, the medical expert Margaret Moore, Ph.D., reviewed the medical record and testified that the Plaintiff's impairments did not meet or equal a mental listing. Dr. Moore found that in activities of daily living, Plaintiff had none to mild restriction; in social functioning, Plaintiff had mild to moderate difficulties. With regard to concentration, persistence or pace Plaintiff had none to mild difficulties. With respect to episodes of decompensation, Dr. Moore found Plaintiff experienced no episodes of decompensation. Dr. Moore noted that there was evidence that Plaintiff was malingering his mental impairments, and noted that it was consistent with his dependent lifestyles and sense of entitlement and desire for gain. The ALJ agreed with and adopted the assessment of Dr. Moore, which he noted was consistent with, and supported by, the medical evidence of record. (Tr. 370).
The ALJ gave significant weight to the assessments done by Dr. Everhart who, the ALJ noted in his decision, did thorough testing of the Plaintiff in July 2008. (Tr. 373). The ALJ noted in his decision that Dr. Everhart's tests showed that the Plaintiff was malingering and exaggerating his mental-limitations. (Tr. 369). Dr. Everhart found that the Plaintiff only had mild mental limitations. (Tr. 422-430). Dr. Everhart reported Plaintiff's M-FAST indicated malingering with regard to mental health symptoms. Dr. Everhart gave the Plaintiff a Global Assessment of Functioning ("GAF") of 70, which indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningful interpersonal relationships. (Tr. 369). Dr. Everhart found that although Plaintiff had alleged back pain and a learning disorder, he could do his activities of daily living and played complex computer games most of the day, with up to 25 online players. (Tr. 369, 425).
The ALJ noted that Dr. Bostwick was able to review Plaintiff's entire current medical record and found Plaintiff had mild to moderate limitations in social functioning, and possibly moderately limited in his ability to interact with the general public, and accept instructions and respond appropriately to criticism from supervisors. (Tr. 372). Dr. Bostwick also noted that Plaintiff was a slow learner but was in the lower average range of intellectual functioning. Id.
D. ALJ Properly Considered All Medical Evidence
The Court finds the ALJ properly considered all medical evidence, including alleged mental limitations, and adequately explained the weight he accorded to all medical opinions in his decision. As the ALJ noted in his decision, he gave little weight to the psychological assessment done by Dr. Capes in September 2004. The ALJ explained that Dr. Capes did very little testing and relied heavily on the Plaintiff's subjective complaints. Further, Dr. Capes did not do testing to see that Plaintiff was malingering, so he believed the Plaintiff had all the mental limitations he alleged. (Tr. 372).
The ALJ explained the inconsistencies he found between the Plaintiff's statements and the objective medical evidence, which he concluded undermined Plaintiff's credibility. (Tr. 371). The ALJ also considered Plaintiff's noncompliance with treatment. (Tr. 372). For example, the ALJ noted in his decision that Plaintiff's primary physicians have repeatedly documented that Plaintiff was noncompliant with his diet and medications. Plaintiff also refused to wear glasses to improve poor vision because he would rather wear sunglasses. Id.
The ALJ also considered the frequency of the mental health treatment Plaintiff received for his mental health problems which Plaintiff alleges are disabling. Id. The ALJ explained in his decision that if the Plaintiff's mental health problems were not severe enough to motivate him to seek treatment, it is difficult to accept his assertion that they are disabling. Id.
Finally, the ALJ noted that he did not give weight to the psychological evaluation and mental RFC done by Dr. Pollack for more than one reason. First, the ALJ noted that Dr. Pollack's evaluation was arranged by Plaintiff's representative, who uses Dr. Pollack extensively. Second, the ALJ noted in his decision that although Dr. Pollack always finds moderate to marked limitations in the Plaintiff's ability to perform activities within a schedule, maintain regular attendance and punctuality, complete a normal workday/week without interruptions due to mental symptoms, and maintain a consistent pace without unreasonable rest periods, these findings are inconsistent with his finding that Plaintiff was a poor historian and did not adequately describe his personal history, preventing Dr. Pollack from making a clear diagnosis. (Tr. 285-86). Third, these alleged moderate to marked mental limitations are inconsistent with Dr. Everhart's finding that Plaintiff was malingering and had a GAF of 70, indicating only mild mental limitations.
Plaintiff argues that the ALJ erred in stating that Dr. Pollack's evaluation was arranged by Plaintiff's representative who used Dr. Pollack extensively. Under Ninth Circuit law, Plaintiff argues that this stated observation was not a legitimate basis for rejecting Dr. Pollack's report. ECF No. 17 at 9. The Commissioner responds that this was harmless error at most and cited Ninth Circuit case law that held the opinion of a physician who is acting as an advocate is entitled to less weight. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (holding that a physician's opinion "entitled to less weight because he had agreed to become an advocate and assist in presenting a meaningful petition for Social Security benefits.").
The Court finds that the ALJ accorded appropriate weight to the various medical opinions in this case and explained his reasoning adequately in the decision. Further, the fact that Plaintiff's attorney sent him to Dr. Pollack for a psychological evaluation does not in itself provide a legitimate basis for rejecting Dr. Pollack's report. Nonetheless, any purported error with respect to this issue was harmless because the ALJ provided other reasons to reject Dr. Pollack's opinion as discussed above.
VOCATIONAL EXPERT TESTIMONY
At step five, the Commissioner bears the burden to identify a significant number of jobs in the national economy that the claimant can do. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). Generally, an ALJ may utilize two methods to make this determination: 1) by reference to the Medical-Vocational Guidelines (Guidelines) at 20 C.F.R. pt. 404, subpt. P, app. 2; or 2) by eliciting a vocational expert's testimony. Id. In this case, the ALJ utilized the Guidelines to find that Plaintiff was not disabled, given his age, education, work experience, and residual functional capacity. (Tr. 374, Finding No. 10; 20 C.F.R. pt. 404, subpt. P, app. 2, § 203.28).
Plaintiff argues the ALJ was required to obtain vocational expert testimony at the fifth step of the sequential evaluation to determine his mental limitations and their effect on his ability to work. (ECF No. 17 at 10-11.) The Commissioner contends that Plaintiff's argument is based on his assertion that the ALJ should have given more credit to the opinions of Drs. Pollack and Capes. Id. Because the Court finds the ALJ properly rejected or accorded little weight to these opinions, as discussed above, Plaintiff's argument regarding the ALJ's step five findings lacks merit. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008) (upholding the step five finding where the claimant's argument, that the vocational evidence was inaccurate, "simply restates her argument that the ALJ's [residual functional capacity] finding did not account for all her limitations"). The ALJ utilized the Guidelines to find that Plaintiff was not disabled, given his age, education, work experience, and residual functional capacity. The fact that a nonexertional limitation is alleged does not automatically preclude application of the Guidelines. Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 577 (9th Cir. 1988).
The Commissioner argues the more precise issue is whether Plaintiff's mental limitations were significant enough to erode the occupational base, which was not addressed by Plaintiff. Therefore, the Court finds that Plaintiff has waived review of that purported issue. Plaintiff has not set forth any further arguments as to why vocational expert testimony was mandatory in this case. This Court concludes that based on the ALJ's findings, which are supported by inferences reasonably drawn from the record, and his conclusion that Plaintiff did not have significant non-exertional limitations, vocational expert testimony was not required.
LAY WITNESS' OPINION
Plaintiff argues the ALJ should not have rejected the April 2007 opinion of Ellen Nagourney, a vocational consultant who reviewed Plaintiff's medical records at the request of Plaintiff's representative and concluded Plaintiff was incapable of any substantial gainful employment. (Tr. 309-12; ECF No. 17 at 11-12). Plaintiff's counsel asked Ms. Nagourney to provide an opinion about his ability to work, based upon the limitations discussed in the opinions of Drs. Pollack and Capes, among others. (Tr. 309).
The Commissioner reasons that the ALJ properly gave no weight to this opinion because it assumed Plaintiff had certain limitations that the ALJ ultimately rejected. (Tr. 373). The Court agrees based on the analysis above regarding the opinions of Drs. Pollack and Capes. An ALJ is "not bound to accept as true the restriction presented in a hypothetical [vocational] question propounded by a claimant's counsel." Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). Rather, an ALJ is "free to accept or reject . . . restrictions [advanced by the claimant] so long as they are supported by substantial evidence." Id. at 756-57 (quoting Martinez v. Heckler, 807 F.2d 771 (9th Cir.1986). This Court found above that the ALJ made specific findings justifying his decision to accord little weight to the opinions of Drs. Pollack and Capes. The ALJ's conclusion that Plaintiff is not disabled represents a rational interpretation of the evidence.
CONCLUSION
Plaintiff's Motion For Summary Judgment (ECF No. 16) is DENIED and Defendant's Motion For Summary Judgment (ECF No. 18) is GRANTED. Pursuant to 42 U.S.C. §405(g), the Commissioner's decision denying benefits is AFFIRMED.
IT IS SO ORDERED. The District Executive shall enter judgment accordingly and shall forward copies of the judgment and this order to counsel.
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LONNY R. SUKO
United States District Judge