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Wernecke v. Colvin

United States District Court, D. Oregon, Portland Division

July 2, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT E. JONES, Senior District Judge.

Plaintiff Steven Wernecke appeals the Commissioner's decision denying his applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.


Wernecke filed his applications in August 2009, initially alleging disability beginning on April 1, 2005. Admin. R. 13. He alleged he could not work due to a learning disorder and mental health problems. Admin. R. 251. At the administrative hearing, Wernecke amended his alleged onset date to January 1, 2009. Admin. R. 13.

The Administrative Law Judge (All) applied the sequential disability determination process described in 20 C.F.R. §§ 404.1520 and 416.920. See Bowen v. Ackert, 482 U.S. 137, 140 (1987). At step one, the ALJ found that Wernecke had not engaged in substantial gainful activity since his amended alleged disability onset date. At step two, he found that Wernecke had severe impairments, specifically substance abuse (methamphetamine and cannabis), borderline intellectual functioning, a learning disability, an anxiety disorder and attention deficit hyperactivity disorder. Admin. R. 15. At step three, the ALJ found Wernecke did not have an impairment or combination of impairments that met or equaled the requirements of a listed impairment. Admin. R. 16. The ALJ found that Wernecke's complaints concerning the intensity, persistence and limiting effects of his symptoms were not credible. Admin R. 18, 23-25. He also determined that Wernecke had the residual functional capacity (RFC) to perform medium work, except that Wernecke would be limited to simple repetitive work. Wernecke could not be required to do extensive writing or more than simple math. and could not have more than occasional interaction with coworkers, the public and his supervisor, from whom he should receive verbal work instructions. Admin. R. 17

The YE testified that a person having Wernecke's age, education, work experience and RFC could perform jobs that exist in significant numbers in the national economy such as night cleaner, dishwasher/kitchen helper and addresser. Admin. R. 82-85. The Ail concluded that Wernecke was not disabled as defined by the Social Security Act, Admin, R. 26.


The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin. 359 F.3d 1190, 1193 (9th Cir. 2004). Under this standard, the Commissioner's factual findings must be upheld if supported by inferences reasonably drawn from the record, even if evidence exists to support another rational interpretation. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1039-40 (9th Cir. 1995).


Wernecke contends the AU did not properly evaluate the opinions of the medical experts. Specifically, he argues the Ail erred in the relative "weight" given the opinions of the treating psychiatrist and various examining psychologists. Wernecke also claims the AU committed reversible error by failing to consider Wernecke's inability to sustain employment for longer than brief periods.

A. Medical Opinions

1. Treating physician's opinions

Wernecke argues that the AU erred by giving "little weight" to the treating psychiatrist Dr. Suckow's opinion because the All erroneously concluded that Dr. Suckow was a nontreating physician. Wernecke misinterprets the ALJ's decision. In his decision, the All acknowledged several times that Dr. Suckow was Wernecke's treating psychiatrist. The All noted that "[o]n February 15, 2011, the claimant's treating psychiatrist, Joel Suckow, MD..." Admin. R. 20. He referred to "(GAF) scores indicated by his treatment provider" citing Dr. Suckow's treatment notes. Admin. R. 20. Wernecke points to the sentence in the ALJ's opinion in which the ALJ explained his reason for giving "great weight" to Dr. Suckow's diagnostic assessment, but "little weight" to Dr. Suckow's assessment of overall functioning: "[Dr. Suckow's overall functioning assessment] is inconsistent with the assessment of other nontreating providers, the claimant's scores on objective cognitive testing as well as the claimant's modest activities of daily living." In this sentence, the AU is not saying Dr. Suckow is a nontreating physician, he is only explaining that he discounted a portion of Dr. Suckow's assessment because it was inconsistent with the assessment of other medical personal who were non-treating physicians and who had provided reports about Wernecke, The AU did not conclude Dr. Suckow was a non-treating physician.

Wemecke next argues that because Dr. Suckow was his treating physician, the AU cannot reject Dr. Suckow's Global Assessment of Function (GAF), without providing specific and legitimate reasons for doing so that are supported by substantial evidence in the record. The AU must consider all medical opinion evidence. 20 C.F.R. § 404.1527(4 Although not bound by an expert medical opinion on the ultimate question of disability, the AU must provide "specific and legitimate" reasons for rejecting the opinion of a treating physician. Lester v. Cater, 81 F.3d 821, 830-31 (9th Cir.1995). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989) (citation omitted). Here, the ALJ's reasons for giving "little weight" to Dr. Suckow's GAF were threefold: (1) the GAF was inconsistent with the GAF ...

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