Page v. Commissioner of Social Security, No. 2:2017cv00067 - Document 19 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION 17 AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION 12 - Signed by Judge Salvador Mendoza, Jr. (VR, Courtroom Deputy)
Download PDF
<![CDATA[
Page v. Commissioner of Social Security Doc. 19 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 28, 2018 2 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 PATRICK JOHN PAGE, No. 2:17-CV-00067-SMJ 5 Plaintiff, 6 v. 7 8 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION Defendant. 9 10 Plaintiff Patrick John Page appeals the Administrative Law Judge’s (ALJ) 11 denial of his application for Supplemental Security Income (SSI) benefits. He 12 alleges that the ALJ improperly (1) failed to consider his eligibility for Listing 13 12.05C, (2) found his symptom testimony not credible, and (3) discounted the 14 opinions of several medical providers. The ALJ did not find that Mr. Page’s 15 borderline IQ was a severe impairment at step two and therefore was not required 16 to consider Listing 12.05C at step three. The ALJ gave specific reasons, supported 17 by substantial evidence, for rejecting Page’s symptom testimony and for his 18 consideration of the medical opinions. Defendant’s motion for summary judgment 19 is therefore granted. 20 ORDER - 1 Dockets.Justia.com I. 1 BACKGROUND 1 2 Patrick Page filed an application for Supplemental Security Income (SSI) on 3 February 27, 2013, alleging disability beginning August 15, 2011. AR 205–30. His 4 claim was denied initially and upon reconsideration. AR 149–52. Page requested a 5 hearing on September 11, 2015, and a hearing was held on July 22, 2015. AR 170– 6 71, 48–89. Page amended the onset date of his claim to August 15, 2012, at the 7 hearing. AR 13, 54. The ALJ issued an unfavorable decision on August 6, 2015. 8 AR 10–37. The Appeals Council denied Page’s request for review, AR 1–7, and he 9 timely appealed to this Court. ECF No. 1. 10 II. DISABILITY DETERMINATION 11 A “disability” is defined as the “inability to engage in any substantial gainful 12 activity by reason of any medically determinable physical or mental impairment 13 which can be expected to result in death or which has lasted or can be expected to 14 last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 15 423(d)(1)(A), 1382c(a)(3)(A). The decision-maker uses a five-step sequential 16 evaluation process to determine whether a claimant is disabled. 20 C.F.R. §§ 17 404.1520, 416.920. 18 19 20 1 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. ORDER - 2 1 Step one assesses whether the claimant is engaged in substantial gainful 2 activities. If he is, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he 3 is not, the decision-maker proceeds to step two. 4 Step two assesses whether the claimant has a medically severe impairment 5 or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 6 claimant does not, the disability claim is denied. If the claimant does, the evaluation 7 proceeds to the third step. 8 Step three compares the claimant’s impairment with a number of listed 9 impairments acknowledged by the Commissioner to be so severe as to preclude 10 substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1, 11 416.920(d). If the impairment meets or equals one of the listed impairments, the 12 claimant is conclusively presumed to be disabled. If the impairment does not, the 13 evaluation proceeds to the fourth step. 14 Step four assesses whether the impairment prevents the claimant from 15 performing work he has performed in the past by examining the claimant’s residual 16 functional capacity. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is able 17 to perform his previous work, he is not disabled. If the claimant cannot perform 18 this work, the evaluation proceeds to the fifth step. 19 Step five, the final step, assesses whether the claimant t watch television for longer than 12 15 minutes without having to get up and walk around to alleviate the pain. AR 78. 13 He indicated that his conditions limit his daily living activities and testified that he 14 does not do much around the house except light chores, driving to the store, and 15 shopping. AR 79–80. 16 The ALJ found that Page’s medically determinable impairments could 17 reasonably be expected to cause the alleged symptoms. AR 19. Nonetheless, the 18 ALJ still provided specific, clear, and convincing reasons to discount Page’s 19 testimony. See Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). 20 ORDER - 11 1 First, the ALJ found that the record showed Page had a history of 2 exaggerating the severity of his symptoms. For example, Dr. Shanks observed that 3 Page had a “significant overreaction to even the lightest palpation” and exhibited a 4 larger-than-reported range of motion when his attention was diverted elsewhere. 5 AR 540. Likewise, Dr. Bender reported that Mr. Page displayed “exaggerated” and 6 “hypersensitive” reactions on exams and presented with “shaking spells that 7 seem[ed] somewhat volitional.” AR 665. Neurosurgeon Cynthia Hahn, M.D. also 8 observed that Page was “quite demonstrative” and jumped visibly in an evaluation. 9 AR 622. The ALJ therefore reasonably discounted Page’s symptom reporting based 10 on the evidence in the record indicating his disproportionate pain reporting. 11 The ALJ also discounted Page’s testimony because he failed to follow 12 treatment recommendations. AR 22, 24. “The ALJ may consider many factors in 13 weighing a claimant’s credibility,” including “unexplained or inadequately 14 explained failure to seek treatment or to follow a prescribed course of treatment.” 15 Tommasetti, 533 F.3d at 1039. The ALJ noted that Page declined to allow nerve 16 conduction testing, he was noncompliant with his recommended home physical 17 therapy exercises, and he refused a recommended psychiatric consult. AR 24. 18 Finally, the ALJ observed that Page made inconsistent statements about his 19 activity level. AR 24–25. A claimant’s reported daily activities can form the basis 20 for an adverse credibility determination if they consist of activities that contradict ORDER - 12 1 the claimant’s other testimony or if those activities are transferable to a work setting. 2 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Page reported to his medical 3 providers that he was able to exercise 60 minutes per day and walked for an hour 4 per day. AR 613. He reported his functional activity level as 10, 8, and 7 out of 10, 5 with 10 being the highest level of activity. AR 690, 693, 699. He also reported that 6 he could mow the lawn and perform some household chores. AR 778. However, at 7 the hearing, Page testified that he could only walk two blocks and that he could 8 stand for about 5 to 10 minutes. AR 75. He also reported that it was hard for him to 9 walk. AR 76. The ALJ’s decision to discount Page’s reports based on these 10 inconsistencies was therefore reasonable. 11 .For these reasons, the ALJ’s credibility finding is based on specific, clear, 12 and convincing reasons, which are supported by substantial evidence. The ALJ 13 therefore did not err in discounting Page’s symptom testimony. 14 C. The ALJ did not err in assigning weight to the medical opinion evidence. 15 Page argues that the ALJ failed to adequately consider the opinions of several 16 treating or examining medical providers Dr. Berdine Bender, MD, and Debra 17 Brown, PhD. ECF No. 12 at 14–17. There are three types of physicians: “(1) those 18 who treat the claimant (treating physicians); (2) those who examine but do not treat 19 the claimant (examining physicians); and (3) those who neither examine nor treat 20 the claimant [but who review the claimant’s file] (nonexamining physicians).” ORDER - 13 1 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001). Generally, a 2 treating physician’s opinion carries more weight than an examining physician’s, 3 and an examining physician’s opinion carries more weight than a nonexamining 4 physician’s. Id. at 1202. “In addition, the regulations give more weight to opinions 5 that are explained than to those that are not, and to the opinions of specialists 6 concerning matters relating to their specialty over that of nonspecialists.” Id. 7 If a treating or examining physician’s opinion is uncontradicted, the ALJ may 8 reject it only by offering “clear and convincing reasons that are supported by 9 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 10 However, the ALJ need not accept the opinion of any physician, including a treating 11 physician, if that opinion is brief, conclusory and inadequately supported by clinical 12 findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). 13 “If a treating or examining doctor’s opinion is contradicted by another doctor’s 14 opinion, an ALJ may only reject it by providing specific and legitimate reasons that 15 are supported by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 16 F.3d 821, 830–31). 17 1. The ALJ properly rejected the opinion of Dr. Bender. 18 Page appears to assert that the ALJ improperly failed to consider the opinion 19 of his treating physician, Dr. Bender. ECF No. 12 at 14. The ALJ conducted the 20 hearing on August 6, 2015, and rendered a decision that same day. AR 10. Dr. ORDER - 14 1 Bender’s letter to the Social Security Administration is dated August 18, 2015. 2 Thus, this correspondence was not available to the ALJ for evaluation at the time 3 the ALJ issued the opinion. The ALJ could not have erred in failing to address this 4 testimony because it did not exist at the time the ALJ’s decision. 5 Dr. Bender’s opinion was considered by the Appeals Council. AR 2. The 6 Appeals Council found that the evidence—in conjunction with the other evidence 7 submitted—did not provide a basis to change the ALJ’s decision. Id. “[W]hen a 8 claimant submits evidence for the first time to the Appeals Council . . . the new 9 evidence is part of the administrative record, which the district court must consider 10 in determining whether the Commissioner’s decision is supported by substantial 11 evidence.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159–60 (9th 12 Cir. 2012). Denial of remand is appropriate “notwithstanding the existence of new 13 evidence only when there would be substantial evidence supporting the ALJ’s 14 denial of disability benefits even if the new evidence were credited and interpreted 15 as argued by the claimant.” Gardner v. Berryhill, 856 F.3d 652, 658 (9th Cir. 2017). 16 Even when Dr. Bender’s opinion is considered, the ALJ’s opinion is still 17 supported by substantial evidence. Dr. Bender’s letter to the Social Security 18 Administration states in its entirety: “Mr. Patrick Paige [sic] is a patient in my 19 internal medicine office. At this time he is completely disabled and would not be 20 able to function at even sedentary work levels. Unfortunately he has a poor ORDER - 15 1 prognosis for recovery.” AR 824. As the appeals council noted, the letter appears 2 to pertain to Page’s condition on August 18, 2015, which is not relevant to the 3 Appeals Council’s review of the ALJ’s decision. Further, even if the 4 correspondence were relevant, it is not entitled to any weight because it pertains to 5 only matters reserved for the Commissioner’s determination. See 20 C.F.R. 6 § 404.1527(e)(1), (3); id. § 416.1527(e)(1), (3) (the issue of whether a claimant is 7 able to work is reserved to the Commissioner); SSR 96-5p, 1996 WL 374183, at *2 8 (Jul. 2, 1996) (“[T]reating source opinions on issues that are reserved to the 9 Commissioner are never entitled to controlling weight or special significance.”). 10 2. The ALJ properly rejected the opinion of Debra Brown, PhD. 11 Page next argues that the ALJ erred in assigning the medical opinion 12 evidence of Dr. Brown little weight. ECF No. 12 at 15. Dr. Brown evaluated Page 13 in January 2013 and found that Page had marked to severe limitations in several 14 occupational function areas. Dr. Brown’s opinion is contradicted by the opinions of 15 Anita Anderson, PhD, and Michael Brown, PhD, who found that Page was capable 16 of limited work with certain cognitive limitations. Accordingly, the ALJ needed to 17 identify specific and legitimate reasons supported by substantial evidence to 18 discredit Dr. Brown’s opinions. Bayliss, 427 F.3d at 1216. 19 First, the ALJ noted that Dr. Brown’s opinion was not supported by objective 20 evidence. AR 27. On examination, Dr. Brown observed no indications of a formal ORDER - 16 1 thought disorder of psychotic process. AR 529. She observed that Page’s speech 2 was logical and that he was cooperative and displayed an appropriate affect. AR 3 532. She noted that Page had no impairments in perception, memory, insight or 4 judgment. AR 532. Dr. Brown indicated some impairment in Page’s concentration, 5 reasoning and fund of knowledge. AR 533. The ALJ reasonably concluded that 6 these findings were inconsistent with the degree of severity indicated in the check- 7 box portion of the opinion. 8 The ALJ next noted that, in the absence of objective evidence, Dr. Brown’s 9 conclusions were based on Page’s self-reporting. AR 27. Although the examination 10 notes do not make this clear, the ALJ inferred as much based on the notable 11 discrepancy between the examination notes and the disabilities indicated on the 12 check-box portion of the opinion. An ALJ may reject even a treating physician’s 13 opinion “if it is based to a large extent on a claimant’s self-reports that have been 14 properly discounted as incredible.” Tommasetti, 533 F.3d at 1041. 15 The ALJ also noted that the check-box portion of the opinion was 16 inconsistent with the Global Assessment of Functioning (GAF) rating of 51 that Dr. 17 Brown had assigned to Page. Dr. Brown attributed Page’s GAF rating of 51 to 18 “moderate impairment in social, educational, and occupational functioning.” AR 19 531. The ALJ correctly concluded that this assessment is inconsistent with Dr. 20 ORDER - 17 1 Brown’s later indication that Page suffered from marked to severe occupational 2 limitations. AR 27. 3 Finally, the ALJ discounted Dr. Brown’s opinion because it was not 4 consistent with Page’s counseling treatment notes, which reflected only moderate 5 depression and anxiety. AR 27. Further, the ALJ noted that Page’s records indicated 6 generally normal psychiatric screenings without indication of debilitating 7 symptoms of significant cognitive complaints. See AR 548, 632. Page argues that 8 Dr. Brown’s opinion should be given more weight than the routine screenings 9 performed by Page’s other physicians because Dr. Brown is a mental health 10 specialist. ECF No. 12 at 17. However, an ALJ is allowed to consider an opinion 11 against the weight of the record as a whole. Cf. Reddick v. Chater, 157 F.3d 715 12 (9th Cir. 1998) (noting that an ALJ may reject medical testimony based on specific 13 reasons supported by the record as a whole). 14 3. The ALJ properly discounted the opinions of other evaluators predating the relevant period. 15 Page argues that the ALJ “declared a wholesale rejection of the 16 opinions . . . that predate the relevant period.” While evidence concerning 17 ailments outside the relevant time period can “support or elucidate the severity of 18 a condition,” Pyland v. Apfel, 149 F.3d 873, 878 (8th Cir. 1998), there is no 19 requirement that the ALJ consider evidence from outside the relevant period, see 20 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). ORDER - 18 1 Further, Page has not shown how an analysis of these opinions would change the 2 outcome. Thus, even if the ALJ erred in failing to consider the opinions, Page has 3 not met his burden to show harmful error. 4 D. Because the ALJ acted properly, the Court does not address Page’s harmful error argument. 5 Page argues that the ALJ’s alleged errs caused “ancillary errors” in the step6 five assessment of his ability to work because the testimony from the vocational 7 expert was based on an improper hypothetical. The ALJ’s hypothetical must be 8 based on medical assumptions supported by substantial evidence in the record that 9 reflects all of the claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 10 (9th Cir. 2001). The hypothetical should be “accurate, detailed, and supported by 11 the medical record.” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). 12 Page’s argument assumes that the ALJ erred in evaluating his impairments, 13 the medical evidence, and his symptom testimony. For reasons discussed 14 throughout this decision, the ALJ’s hypotheticals to the vocational expert were 15 based on evidence and reasonably reflected Page’s limitations. Thus, the ALJ’s 16 findings are supported by substantial evidence and are legally sufficient. 17 VI. CONCLUSION 18 For the reasons discussed, IT IS HEREBY ORDERED: 19 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 20 ORDER - 19 1 2. The Commissioner’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 2 3 3. JUDGMENT is to be entered in the Defendant’s favor. 4 4. The case shall be CLOSED. 5 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 6 7 provide copies to all counsel. DATED this 28th day of March 2018. 8 _________________________ SALVADOR MENDOZA, JR. United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 20
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
