United States District Court, D. Oregon
DIANA L. LINDSTROM, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION & ORDER
THOMAS M. COFFIN, 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 her application for supplemental security income (SSI) and disability insurance benefits (DIB) under the Act. The Commissioner's decision is affirmed and this case is dismissed.
On February 14, 2008, plaintiff protectively filed Title II and Title XVI applications for DIB and SSI. Tr. 19. In both applications, plaintiff alleged disability beginning May 1, 2002. Id .; Pl.'s Br. 1. The claims were denied initially on July 31, 2008, and upon reconsideration on March 13, 2009. Tr. 19. A hearing was held on February 5, 2010 and plaintiff's claims were again denied by decision of an Administrative Law Judge (ALJ) issued on March 5, 2010. Id . Thereafter, plaintiff requested review by the Appeals Council, which vacated the prior decision, remanded the claims, and directed that a supplemental hearing be held. Id.
The Appeals Council also directed that the ALJ take further action to complete the administrative record and issue a new decision with an emphasis on the following:
1) exhibit and consider the February 10, 2010 statement from plaintiff's psychiatric-mental health nurse practitioner (PMHNP) Daniel Schroeder;
2) obtain additional evidence concerning the claimant's mental impairments in order to update the administrative record;
3) give further consideration to plaintiff's maximum residual functional capacity (RFC) during the entire period at issue, provide rationale with specific references to evidence of record in support of assessed limitations, and evaluate the treating and examining source opinions and explain the weight given to such opinion evidence; and
4) if warranted by the expanded record, obtain supplemental evidence from a vocational expert (VE) to clarify the effect of assessed limitations on plaintiff's occupational base and when asking hypothetical questions to the VE, ensuring that the questions reflect the specific capacity/limitations established by the record as a whole.
In compliance with the above, plaintiff was offered a hearing on May 9, 2012, which she did not attend because she was receiving medical treatment. Tr. 19. Plaintiff did, however, attend a subsequent supplemental hearing on October 18, 2012 and on November 20, 2012 the ALJ again denied her claims. Tr. 34.
In denying plaintiff's claims, the ALJ addressed the Appeals Councils' noted deficiencies in the record. Specifically, the ALJ: 1) considered the February 10, 2010 statements from PMHNP Daniel Schroeder (Tr. 30); 2) obtained additional evidence concerning plaintiff's mental impairments (Tr. 23, 29-32); 3) gave further consideration to plaintiff's RFC, provided specific references to evidence in support of assessed limitations, and explained the weight given to treating and examining source opinions (Tr. 24-33); and 4) obtained evidence from a VE to clarify the effect of plaintiff's limitations on her occupational base (Tr. 19, 26, 33).
Plaintiff argues that the ALJ erred by failing to: 1) provide clear and convincing reasons for rejecting her credibility; 2) adequately explain why he found that her bipolar disorder, migraines, and MRSA were non-severe impairments at step two; 3) properly analyze the medical evidence; 4) find that she met or equaled listing 12.04; and 5) accurately reflect her impairments in the RFC. Pl.'s Br. 5, 14, 25, 26, 29.
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 (1971) (citation and internal quotations omitted)., In reviewing the Commissioner'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 Credibility
Plaintiff argues that the ALJ failed to provide clear and convincing reasons for rejecting her credibility. Pl.'s Br. 29.
The ALJ found plaintiff not credible for several reasons. First, the ALJ noted that during the course of her treatment with her mental health counselor Ms. Prowse, LPC, "[plaintiff] admitted to lying about her symptoms for secondary gain, stating that she manipulates health issues to get things.'" Tr. 29 (quoting Tr. 856).
Second, the ALJ noted that plaintiff had repeatedly engaged in drug-seeking behavior. Specifically, the ALJ noted that plaintiff had been sentenced to "18 months of probation due to tampering with a morphine prescription." Tr. 31 (citing Tr. 3385). The ALJ also noted an episode on June 11, 2011, where plaintiff requested narcotics to address complaints of skin problems and arm pain, but because she was unable to keep her eyes open and had slurred speech, her request was denied and she was instead offered Tylenol. Id . (citing Tr. 2411). The ALJ noted that plaintiff refused the Tylenol by throwing the pills on the floor and writing profanities on the registration paper before being promptly discharged. Id.
The ALJ noted another drug seeking episode on October 6, 2011, where plaintiff requested morphine to alleviate pain in her legs that was allegedly so severe she could not walk. Tr. 31 (citing Tr. 1289-91). The ALJ noted, however, that "after being told that she would not be receiving any narcotic pain medications, [plaintiff] got angry and... jumped up and walked out of the examination room without problem" and before treatment was finished. Id . Similarly, the ALJ noted that ten days later, on October 16, 2011, plaintiff was brought into the emergency room in a wheelchair and claimed to be unable to walk due to right lower leg tenderness. Id . (citing Tr. 2151-53). However, after being told she would not receive any narcotics, plaintiff again walked out of the examination room before treatment was completed. Id.
The ALJ noted another drug seeking episode where plaintiff was hospitalized from November 9, 2011 through November 16, 2011 for complaints of depression with suicidal ideation and during the course of her stay, repeatedly requested narcotic pain medication. Tr. 31 (citing Tr. 1581-1605). However, because plaintiff was observed in the unit to be mobilizing freely without any obvious pain, her request for pain medication was denied. Id . Consequently, plaintiff, then "extremely frustrated, " was "observed on security videotape to take a piece of feces from her bathroom and place it under a table in the common room." Id . Critically, plaintiff's treatment provider assessed her behavior to be not "psychotic in nature, but rather... volitional out of frustration for her demands for pain medication not having been met." Id . The ALJ noted that plaintiff was again "discharged for her drug seeking and retaliatory behaviors." Id.
Finally, the ALJ noted that plaintiff repeatedly lied to treatment providers about her drug and alcohol use. Specifically, the ALJ noted that during the aforementioned episode on June 11, 2011, where plaintiff was denied narcotics because she had slurred speech and was unable to keep her eyes open, "[plaintiff] denied drinking alcohol even though she was seen in the ER two days prior for alcohol intoxication." Tr. 31 (citing Tr. 2411).
The ALJ noted other instances where plaintiff lied about her drug use. Specifically, the ALJ noted that plaintiff "reported to Dr. Gibby-Smith that she used marijuana from ages 16 to 38, however, a urine drug screen shows that [she] tested positive for marijuana as recently as September 2007, " when she was 43. Tr. 29 (citing Tr. 685, 700). Moreover, the ALJ noted that plaintiff testified that she has been clean and sober since April 24, 2012, but upon discharge from the hospital on May 8, 2012, after a 13 day admission for complaints of depression and suicidal ideation, plaintiff's toxicology screen tested positive for cannabis. Tr. 32. Consequently, the ALJ found that "while [plaintiff] testified she has been clean and sober since April 24, 2012, given her admission regarding lying and manipulation, it is difficult to accord her assertions much weight." Tr. 32.
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of... symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
The ALJ may consider objective medical evidence and the claimant's treatment history, as well as any unexplained failure to seek treatment or follow a prescribed course of treatment. Smolen, 80 F.3d at 1284. Moreover, exaggerating complaints of pain in order to receive prescription pain medication provides a clear and convincing reason to conclude that plaintiff was not credible. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). The ALJ may employ ordinary techniques of credibility evaluation, such as the claimant's reputation for lying and prior inconsistent statements concerning the alleged symptoms. Smolen, 80 F.3d at 1284. If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).
Here, the ALJ made specific reference to plaintiff admitting that she manipulates health issues to get things and that she lies about her symptoms for secondary gain. Moreover, the ALJ cited several specific examples of plaintiff engaging in such behavior. The ALJ also cited specific examples of plaintiff engaging in drug-seeking behavior, lying to her treatment providers about drug and alcohol use, and not completing treatment after being denied narcotics. While variable interpretations of this evidence may exist, the ALJ's ...