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Myers v. Colvin

United States District Court, D. Oregon

December 5, 2014

STEVEN MYERS, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Plaintiff: George J. Wall, Law Offices of George J. Wall, Portland, OR.

For Defendant: S. Amanda Marshall, United States Attorney, Ronald K. Silver, Assistant United States Attorney, Portland, OR; Jeffrey R. McClain, Special Assistant United States Attorney, Social Security Administration, Seattle, WA.


THOMAS M. COFFIN, United States Magistrate Judge.

Plaintiff brings this action pursuant to the Social Security Act (Act) to obtain judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying his application for Social Security disability insurance benefits (DIB) under the Act. The Commissioner's decision should be affirmed and this case should be dismissed.


Plaintiff argues that the Administrative Law Judge (ALJ) erred by: 1) failing to find him severely impaired from a depressive disorder and a cognitive disorder before his date last insured; 2) finding that he could perform past relevant work or any work that requires him to stand or walk frequently; 3) failing to give sufficient weight to a statement from his spouse; and 4) failing to call a medical expert to determine his disability onset date. Pl.'s Br. 5.

The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is " more than a mere scintilla. 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and internal quotations omitted). In reviewing plaintiff's alleged errors, this court must weigh " both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

I. Plaintiff's Disability Prior to His Date Last Insured

Plaintiff argues that the ALJ failed to find him severely impaired from depressive and cognitive disorders before December 31, 2004, his date last insured. Pl.'s Br. 5-6. Specifically, plaintiff asserts that the ALJ erred by A) disregarding treatment records from 1999, which he argues establish existence of a mental health disorder prior to the date last insured; B) failing to give Dr. Bates-Smith's psychodiagnostic assessment controlling weight; and C) rejecting the opinion of Ruth McGovern, NP, as to whether he suffered from depression and a cognitive disorder prior to his date last insured. Pl.'s Br. 6-8.

A. Treatment Records from 1999

Plaintiff argues that treatment records from 1999 provide " evidence of a mental health disorder prior to the date last insured" and the ALJ failed to address why that evidence did not support a finding that his cognitive disorder and depressive disorder were severe. Pl.'s Br. 7. Further, plaintiff argues that " his lack of medical treatment after 2000 was because he could not afford health insurance." Pl.'s Reply Br. 2.

The record reveals that plaintiff sought help for his mental health issues from Dr. Swanson, MD, and George Hannibal, MSW, LCSW, from May through August 1999 and that plaintiff " had no health insurance after approximately 2000." Pl.'s Br. 3; Tr. 58.

On May 6, 1999, Dr. Swanson opined that plaintiff was " occasionally depressed" and " mildly agitated at times, " but was " re-directable and overall appropriate and pleasant." Tr. 694. Dr. Swanson prescribed plaintiff with medication for dysthymia and troubled sleep and referred him to mental health treatment with Mr. Hannibal. Id. On June 26, 1999, Dr. Swanson opined that plaintiff's psychological stress was " better" and his issues were being dealt with by Mr. Hannibal. Dr. Swanson also noted that Mr. Hannibal stated that he " was very agreeable to helping [plaintiff] find ongoing mental health [care] should his insurance coverage lapse for whatever reason." Tr. 687.

On August 19, 1999, Mr. Hannibal opined that plaintiff experienced a " moderate" major depressive disorder, his speech process was " clear and cogent, " he had " somewhat flat effect but [was] very talkative, " his thought content and perception were all in the " normal range, " he " appear[ed] above average in intelligence, " and " was motivated with some insight into what [was] going on for him emotionally." [1] Tr. 668. Mr. Hannibal also noted that plaintiff had one past suicidal attempt at age 25 or 26 but plaintiff, then 44, " denies a desire or a plan for suicide today." Tr. 667. Mr. Hannibal recommended that plaintiff attend " 5 to 10 additional sessions over the next 6 months" and offered to " provide this service." Tr. 668. The record reveals that plaintiff did not return to see Mr. Hannibal for the recommended treatment or seek further mental health treatment from any other mental health care provider prior to his date last insured.

The ALJ found that in view of the mental health treatment records from 1999, plaintiff's " endorsements of mental health symptoms, and the opinions of Dr. Bates-Smith and Ms. McGovern, " plaintiff had " severe medically determinable mental health impairments beginning in July 2010." Tr. 20. " If a claimant complains about disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (internal citations omitted). However, the claimant cannot be denied ...

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