Clouse v. Colvin, No. 2:2014cv00156 - Document 19 (E.D. Wash. 2015)
Court Description: DECISION AND ORDER. Denying 14 Motion for Summary Judgment; Granting 16 Motion for Summary Judgment. Signed by Magistrate Judge Victor E. Bianchini. (MF, Courtroom Deputy)
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Clouse v. Colvin Doc. 19 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 Case No. 2:14-CV-0156-VEB 8 KIMYATTA R. CLOUSE, 9 Plaintiff, DECISION AND ORDER 10 vs. 11 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 14 I. INTRODUCTION 15 In April of 2011, Plaintiff Kimyatta R. Clouse applied for Supplemental 16 Security Income (“SSI”) benefits under the Social Security Act. The Commissioner 17 of Social Security denied the application. 18 19 20 1 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB Dockets.Justia.com 1 Plaintiff, represented by Joseph Linehan, Esq., Dana Madsen Law Office, 2 commenced this action seeking judicial review of the Commissioner’s denial of 3 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). The parties consented to 4 the jurisdiction of a United States Magistrate Judge. (Docket No. 6). 5 On March 2, 2015, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 17). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 Plaintiff applied for SSI benefits on April 22, 2011. (T at 176-82).1 The 12 application was denied initially and on reconsideration and Plaintiff requested a 13 hearing before an Administrative Law Judge (“ALJ”). On December 17, 2012, a 14 hearing was held before ALJ Gene Duncan. (T at 40). Plaintiff appeared with her 15 attorney and testified. (T at 44-49, 66-75). The ALJ also received testimony from 16 Polly Peterson, a vocational expert (T at 77-87), and Dr. Stephen Rubin, a 17 psychological expert (T at 50-65). 18 19 20 1 Citations to (“T”) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 On January 16, 2013, the ALJ issued a written decision denying the 2 application and finding that Plaintiff was not entitled to SSI benefits. (T at 19-38). 3 The ALJ’s decision became the Commissioner’s final decision on April 2, 2014, 4 when the Social Security Appeals Council denied Plaintiff’s request for review. (T 5 at 1-6). 6 On May 27, 2014, Plaintiff, acting by and through her counsel, timely 7 commenced this action by filing a Complaint in the United States District Court for 8 the Eastern District of Washington. (Docket No. 4). The Commissioner interposed 9 an Answer on August 4, 2014. (Docket No. 10). 10 Plaintiff filed a motion for summary judgment on January 12, 2015. (Docket 11 No. 14). The Commissioner moved for summary judgment on February 23, 2015. 12 (Docket No. 16). Plaintiff filed a reply brief on March 16, 2015. (Docket No. 18). 13 14 For the reasons set forth below, the Commissioner’s motion is granted, Plaintiff’s motion is denied, and this case is closed. 15 16 17 18 19 20 3 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 2 III. DISCUSSION A. Sequential Evaluation Process 3 The Social Security Act (“the Act”) defines disability as the “inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff’s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff’s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff’s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 20 The initial burden of proof rests upon plaintiff to establish a prima facie case 5 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 2 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 3 met once plaintiff establishes that a mental or physical impairment prevents the 4 performance of previous work. The burden then shifts, at step five, to the 5 Commissioner to show that (1) plaintiff can perform other substantial gainful 6 activity and (2) a “significant number of jobs exist in the national economy” that 7 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 8 B. Standard of Review 9 Congress has provided a limited scope of judicial review of a Commissioner’s 10 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 11 made through an ALJ, when the determination is not based on legal error and is 12 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 13 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 14 determination that a plaintiff is not disabled will be upheld if the findings of fact are 15 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 16 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 17 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 18 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 19 Substantial evidence “means such evidence as a reasonable mind might accept as 20 6 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 2 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] 3 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 4 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 5 whole, not just the evidence supporting the decision of the Commissioner. Weetman 6 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 7 526 (9th Cir. 1980)). 8 It is the role of the Commissioner, not this Court, to resolve conflicts in 9 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 10 interpretation, the Court may not substitute its judgment for that of the 11 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 12 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 13 set aside if the proper legal standards were not applied in weighing the evidence and 14 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 15 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 16 administrative findings, or if there is conflicting evidence that will support a finding 17 of either disability or nondisability, the finding of the Commissioner is conclusive. 18 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 19 20 7 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 C. Commissioner’s Decision 2 The ALJ determined that Plaintiff had not engaged in substantial gainful 3 activity since April 22, 2011 (the application date) and had never engaged in 4 substantial gainful activity. The ALJ found that Plaintiff’s dysthymia disorder, 5 personality disorder, and morbid obesity were “severe” impairments under the Act. 6 (Tr. 24). 7 However, the ALJ concluded that Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled one of the impairments 9 set forth in the Listings. (T at 24-26). 10 The ALJ determined that Plaintiff retained the residual functional capacity 11 (“RFC”) to perform light work, as defined in 20 CFR § 416.967 (b), with the 12 following limitations: occasional postural movements; no balancing, crawling, or 13 climbing ladders; must avoid heights, workplace hazards, and extreme heat; limited 14 to superficial contact with the public and must work independently; needs a flexible 15 and tolerant supervisor who sets goals (but not quotas) and provides hands-on 16 training for work-setting changes; only occasional supervision of work product; no 17 direct access to drugs or alcohol; no responsibility for the safety of others; no high 18 stress work and no intense interaction with others or executive decisions; must be 19 20 8 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 allowed to be off task 5% of the workday in small increments and be allowed to 2 move at low average pace. (T at 26-27). 3 The ALJ noted that Plaintiff had no past relevant work. (T at 33). Considering 4 Plaintiff’s age (23 on the application date), education (limited), work experience (no 5 substantial gainful activity), and residual functional capacity (light work, with 6 limitations outlined above), the ALJ determined that there were jobs that exist in 7 significant numbers that Plaintiff can perform. (T at 33-34). As such, the ALJ 8 concluded that Plaintiff was not disabled, as defined under the Social Security Act, 9 between April 22, 2011 (the application date) and January 16, 2013 (the date of the 10 decision) and was therefore not entitled to benefits. (Tr. 34). As noted above, the 11 ALJ’s decision became the Commissioner’s final decision when the Appeals 12 Council denied Plaintiff’s request for review. (Tr. 1-6). 13 D. Plaintiff’s Argument 14 Plaintiff contends that the Commissioner’s decision should be reversed. In 15 particular, Plaintiff argues that the ALJ did not appropriately assess the medical 16 opinions of record. 17 18 19 20 9 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 IV. ANALYSIS 2 In disability proceedings, a treating physician’s opinion carries more weight 3 than an examining physician’s opinion, and an examining physician’s opinion is 4 given more weight than that of a non-examining physician. Benecke v. Barnhart, 5 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 6 1995). If the treating or examining physician’s opinions are not contradicted, they 7 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 8 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 9 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 10 1035, 1043 (9th Cir. 1995). 11 Historically, the courts have recognized conflicting medical evidence, and/or 12 the absence of regular medical treatment during the alleged period of disability, 13 and/or the lack of medical support for doctors’ reports based substantially on a 14 claimant’s subjective complaints of pain, as specific, legitimate reasons for 15 disregarding a treating or examining physician’s opinion. Flaten v. Secretary of 16 Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 17 An ALJ satisfies the “substantial evidence” requirement by “setting out a 18 detailed and thorough summary of the facts and conflicting clinical evidence, stating 19 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 20 10 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 2 “The ALJ must do more than state conclusions. He must set forth his own 3 interpretations and explain why they, rather than the doctors’, are correct.” Id. 4 In this case, Plaintiff contends that she is more limited from a psychological 5 standpoint than the ALJ’s RFC assessment indicates and that the ALJ did not 6 properly weigh the medical opinion evidence. In support of this argument, Plaintiff 7 cites the following evidence: 8 9 Dr. Kayleen Islam-Zwart, an examining psychologist, completed a psychological evaluation in September of 2009. She diagnosed bereavement 10 (rule/out alcohol abuse), borderline intellectual functioning, and personality disorder 11 NOS. (T at 378). Dr. Islam-Zwart assessed marked limitations with regard to 12 Plaintiff’s ability to understand, remember, and follow complex instructions; relate 13 appropriately to co-workers and supervisors; respond appropriately to and tolerate 14 the pressures and expectations of a normal work setting; and maintain appropriate 15 behavior in a work setting. (T at 379). She described Plaintiff as “[s]eriously 16 disturbed.” (T at 380). 17 Functioning (“GAF”) 2 score of 51 (T at 386), which is indicative of moderate 18 2 19 20 Dr. Islam-Zwart assigned a Global Assessment of “A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 11 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 symptoms or difficulty in social, occupational or educational functioning. See Amy v. 2 Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, at *19 n.2 (E.D.Wa Jan. 7, 3 2013). 4 Dr. Jay Toews, an examining psychiatrist, completed an evaluation in 5 December of 2010. 6 learning disorder by history, low average to high borderline intellectual level, and 7 immature personality. (T at 399). Dr. Toews assigned a GAF score of 60-64, which 8 is indicative of moderate to mild difficulties. See Sandburg v. Astrue, No. CV-10- 9 219, 2012 U.S. Dist. LEXIS 2018, at *22 (E.D.Wa. Jan. 6, 2012). 10 Dr. Samantha He diagnosed adjustment disorder with depressed mood, Chandler, an examining psychologist, completed a 11 psychological diagnostic evaluation in June of 2011. She diagnosed alcohol and 12 cannabis abuse, early full remission (by self-report); borderline intellectual 13 functioning (by history); and borderline and dependent features. (T at 464). Dr. 14 Chandler assigned a GAF score of 59, which is indicative of moderate symptoms. (T 15 at 464). She described Plaintiff’s judgment and insight as “poor to fair” and her 16 prognosis as “guarded.” (T at 465). 17 Dr. W. Scott Mabee, an examining psychologist, completed a psychological 18 evaluation in March of 2012. 19 learning disorder (by history); and personality disorder NOS with Cluster B features. 20 12 He diagnosed dysthymic disorder (early onset); DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 (T at 480). Dr. Mabee assigned a GAF score of 53, which is indicative of moderate 2 symptoms or difficulty in social, occupational or educational functioning. (T at 480). 3 He reported that Plaintiff was “impulsive and has mood swings, is easily defensive, 4 and takes things too personally.” (T at 481). 5 limitations with regard to Plaintiff’s ability to understand and remember detailed 6 instructions, maintain attention and concentration for extended periods, sustain an 7 ordinary routine without special supervision, complete a normal workday or 8 workweek, and perform at a consistent pace. (T at 482). He also opined that 9 Plaintiff would have moderate limitations with respect to interacting appropriately 10 with the public, accepting instructions and responding appropriately to criticism 11 from supervisors, getting along with co-workers and peers, maintaining socially 12 appropriate behavior, and setting realistic goals or making plans independently of 13 others. (T at 483). Dr. Mabee assessed moderate 14 As noted above, the ALJ determined that Plaintiff retained the RFC to 15 perform the mental demands of light work, with significant non-exertional 16 limitations. (T at 26-27). 17 For the following reasons, this Court finds the ALJ’s assessment supported by 18 substantial evidence. Dr. Toews concluded that Plaintiff was cognitively intact, with 19 unimpaired attention, concentration, and memory. (T at 399). He opined that she 20 13 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 had no mood, affective or cognitive barriers to employment and found that she could 2 remember at least simple multi-step instructions and interact with coworkers and 3 supervisors. (T at 399). Dr. Toews concluded that Plaintiff could perform at a 4 normal pace and complete work tasks. (T at 399). The ALJ afforded great weight to 5 the opinion of this examining psychiatrist. (T at 31). 6 Dr. Stephen Rubin, a clinical psychologist, reviewed the medical record and 7 testified at the administrative hearing. He testified that there “clearly are some 8 limitations cognitively,” but he did not believe that Plaintiff was “so disabled that 9 she is unable to work . . . .” (T at 52-53). He opined that Plaintiff has “very 10 significant problems,” including “personality disorder issues,” but found them to be 11 “not untreatable and not completely incapacitating.” (T at 53). Dr. Rubin believed 12 Plaintiff was “capable of a very simple job and performing many jobs in our 13 society,” although he recognized that Plaintiff had difficulty with motivation. (T at 14 53). He opined that Plaintiff could learn and obtain a job situation that was “not too 15 stressful” and required only “limited interaction with the public.” (T at 54, 65). Dr. 16 Rubin was subjected to extensive cross-examination by Plaintiff’s counsel during the 17 hearing. 18 The ALJ afforded great weight to Dr. Rubin’s opinion. (T at 30). “[A]n ALJ 19 may give greater weight to the opinion of a non-examining expert who testifies at a 20 14 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 hearing subject to cross-examination.” Andrews v. Shalala, 53 F.3d 1035, 1042 (9th 2 Cir. 1995) (citing Torres v. Secretary of H.H.S., 870 F.2d 742, 744 (1st Cir. 1989)); 3 see also Moody v. Astrue, No CV-10-161, 2011 U.S. Dist. LEXIS 125165, at *22-23 4 (E.D. Wash. Oct. 28, 2011)(finding that ALJ did not err in giving greater weight to 5 medical expert’s opinion over treating psychiatrist’s opinion concerning substance 6 abuse). 7 The ALJ also gave significant weight to the opinions of two State Agency 8 psychological review consultants, Dr. Edward Beatty and Dr. Renee Eisenhauer. (T 9 at 32). In July of 2011, Dr. Beatty opined that Plaintiff was “[n]ot significantly 10 limited” with regard to her ability to remember locations and work-like procedures, 11 understand and remember very short and simple instructions, sustain an ordinary 12 routine without special supervision, make simple work-related decisions, and 13 complete a normal workday and workweek without interruptions from 14 psychologically based symptoms. (T at 97-98). 15 limitations with respect to maintaining attention and concentration for extended 16 periods and carrying out detailed tasks. (T at 97-98). In November of 2011, Dr. 17 Eisenhauer opined that Plaintiff had mild restriction in activities of daily living, mild 18 difficulties in social functioning, and moderate difficulties in maintaining 19 concentration, persistence, or pace. (T at 108). “The opinion of a non-examining 20 15 Dr. Beatty assessed moderate DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 physician may be accepted as substantial evidence if it is supported by other 2 evidence in the record and is consistent with it.” Henderson v. Astrue, 634 F. Supp. 3 2d 1182, 1190 (E.D.W.A. 2009)(citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th 4 Cir. 1995)). 5 In sum, the ALJ’s RFC determination was supported by the assessments of 6 Dr. Toews, an examining psychiatrist; Dr. Rubin, a medical expert who reviewed the 7 record, testified at the administrative hearing, and was subjected to cross- 8 examination by Plaintiff’s counsel; and two State Agency review consultants. 9 Plaintiff argues that the ALJ should have afforded greater weight to the more 10 restrictive opinions provided by Dr. Islam-Zwart, Dr. Mabee, and Dr. Chandler. The 11 ALJ discounted the opinions of Dr. Mabee and Dr. Chandler, finding them 12 contradicted by the examination findings and other opinions of record (including 13 those of Dr. Toews and Dr. Rubin). (T at 31-32). In addition, the ALJ noted that Dr. 14 Chandler did not review Dr. Toews’s assessment, even though it was rendered 15 before her examination. (T at 31). 16 It is the role of the Commissioner, not this Court, to resolve conflicts in 17 evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 18 U.S. at 400. If the evidence supports more than one rational interpretation, this 19 Court may not substitute its judgment for that of the Commissioner. Allen v. 20 16 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial evidence to support the 2 administrative findings, or if there is conflicting evidence that will support a finding 3 of either disability or nondisability, the Commissioner’s finding is conclusive. 4 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s finding 5 was supported by substantial evidence and should be sustained for the reasons 6 outlined above. 7 With that said, this Court is troubled by the fact that the ALJ did not expressly 8 discuss Dr. Islam-Zwart’s opinion. 9 “complete medical history” (T at 22), but provided no specific discussion of Dr. 10 Islam-Zwart’s assessment. The Commissioner notes that Dr. Islam-Zwart’s opinion 11 was rendered in September 2009, which pre-dates the alleged onset date (July 1, 12 2010) and the application date (April 22, 2011). The Commissioner points to Ninth 13 Circuit precedent that “[m]edical opinions that predate the alleged onset date of 14 disability are of limited relevance.” Carmickle v. Comm’r, 533 F.3d 1155, 1165 (9th 15 Cir. 2008). However, that precedent is certainly not a blanket endorsement for 16 disregarding medical evidence. In any event, evidence that pre-dates the alleged 17 onset is more likely to have limited relevance when it is truly remote from the 18 alleged onset date and/or “disability is allegedly caused by a discrete event.” See id. 19 Neither of those factors is present here. Dr. Islam-Zwart’s opinion pre-dates the 20 17 The ALJ said he considered Plaintiff’s DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 alleged onset date by just short of 10 months and Plaintiff’s psychological struggles 2 appear to be long-standings. 3 Under the circumstances, this Court has no hesitancy in concluding that the 4 ALJ should have addressed Dr. Islam-Zwart’s opinion. However, such an error may 5 be considered harmless if it was “inconsequential to the ultimate nondisability 6 determination in the context of the record as a whole.” Molina v. Astrue, 675 F.3d 7 1104, 1122 (9th Cir. 2012). Dr. Islam-Zwart’s assessed marked limitations with 8 regard to Plaintiff’s ability to understand, remember, and follow complex 9 instructions; relate appropriately to co-workers and supervisors; respond 10 appropriately to and tolerate the pressures and expectations of a normal work setting; 11 and maintain appropriate behavior in a work setting, would not be considered 12 inconsequential out of context. (T at 379). However, the ALJ’s RFC determination 13 contains numerous non-exertional limitations that are generally consistent with these 14 limitations. For example, the ALJ found that Plaintiff was limited to superficial 15 contact with the public and must work independently; needs a flexible and tolerant 16 supervisor who sets goals (but not quotas) and provides hands-on training for work- 17 setting changes; only occasional supervision of work product; no direct access to 18 drugs or alcohol; no responsibility for the safety of others; no high stress work and 19 no intense interaction with others or executive decisions; must be allowed to be off 20 18 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 task 5% of the workday in small increments and be allowed to move at low average 2 pace. (T at 26-27). 3 Moreover, as discussed above, the ALJ’s determination was supported by 4 substantial evidence in the record, including the assessments an examining 5 psychiatrist (Dr. Toews), a medical expert (Dr. Rubin), and two State Agency review 6 consultants (Dr. Beatty and Dr. Eisenhauer). See Tackett v. Apfel, 180 F.3d 1094, 7 1098 (9th Cir. 1999)(holding that if evidence reasonably supports the 8 Commissioner’s decision, the reviewing court must uphold the decision and may not 9 substitute its own judgment). Under the circumstances, this Court finds that the 10 ALJ’s failure to specifically address Dr. Islam-Zwart’s opinion was error, but finds it 11 to be harmless. 12 IV. CONCLUSION 13 After carefully reviewing the administrative record, this Court finds 14 substantial evidence supports the Commissioner’s decision, including the objective 15 medical evidence and supported medical opinions. It is clear that the ALJ afforded 16 appropriate weight to the medical evidence, including the assessments of the 17 examining medical providers and the non-examining consultants, and afforded the 18 subjective claims of symptoms and limitations an appropriate weight when rendering 19 a decision that Plaintiff is not disabled. This Court finds no reversible error and 20 19 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB 1 because substantial 2 Commissioner is GRANTED summary judgment and that Plaintiff’s motion for 3 judgment summary judgment is DENIED. 4 5 evidence supports the Commissioner’s decision, the V. ORDERS IT IS THEREFORE ORDERED that: 6 Plaintiff’s motion for summary judgment, Docket No. 14, is DENIED. 7 The Commissioner’s motion for summary judgment, Docket No. 16, is 8 9 10 11 GRANTED. The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of the Commissioner, and close this case. DATED this 21st day of April, 2015. 12 13 14 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 20 DECISION AND ORDER – CLOUSE v COLVIN 14-CV-00156-VEB
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