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Bryan Leslie Warn v. Carolyn W. Colvin

March 8, 2013


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act").*fn1 In his motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred by: (1) improperly assessing the opinions of plaintiff's examining and non-examining doctors; (2) improperly assessing the credibility of plaintiff's testimony; and (3) improperly evaluating the lay testimony of plaintiff's girlfriend. (Mot. for Summ. J., Dkt. No. 17 at 10-23.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Opp'n, Dkt. No. 20). For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


A. Procedural Background

Plaintiff filed applications for DIB and SSI in October of 2007, alleging in both applications a disability onset date of June 2, 1991. (Administrative Transcript ("AT") 22.) The Social Security Administration denied both claims, initially on August 20, 2008, and upon reconsideration on August 21, 2008. (Id.) Plaintiff filed a request for a hearing on October 7, 2008, and the ALJ conducted a hearing regarding plaintiff's claims on October 27, 2009. (Id.) Plaintiff, who was represented by counsel, testified at the hearing. (AT 38-53.) A vocational expert ("VE") also testified at the hearing. (AT 53-56.)

In a decision dated January 25, 2010, the ALJ determined that plaintiff was not disabled for purposes of the Act, during the period from June 2, 1991, through the date of the ALJ's decision.*fn3 (AT 19-30.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) This action for judicial review ensued.

B. Summary Of The ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since June 2, 1991, the alleged date of onset. (AT 24.) At step two, the ALJ concluded that plaintiff had the "severe" impairment of "anxiety disorder." (Id.) The ALJ also noted that plaintiff had non-severe "medically determinable impairments" of obesity and status-post ankle fracture that did not cause more than minimal limitation in plaintiff's ability to perform basic work activities. (Id.) At step three, the ALJ determined that plaintiff's impairment did not meet or medically equal any impairment listed in the applicable regulations. (Id. at 25-26.)

The ALJ further determined that plaintiff has the residual functional capacity ("RFC") to "perform a full range of work at all exertional levels," but that he also had non- exertional limitations that limits him to performing "work involving simple instructions and having relatively restricted contact with the public." (AT 26.) In coming to this determination, the ALJ found that although plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms," plaintiff's statements regarding the "intensity, persistence, and limiting effects" of the alleged symptoms were "not credible to the extent that they are inconsistent with the . . . [RFC] assessment." (AT 26.)

In connection with his RFC finding, the ALJ considered the opinion of Dr. Patrick Wong, an examining psychiatrist, and gave it "substantial weight." (AT 28.) The ALJ also considered the opinion of another examining psychiatrist, Dr. Patricia White, and gave "reduced weight" to her opinion." (Id.) Additionally, the ALJ considered the opinion of Dr. Robert Paxton, a non-examining physician, and gave it "substantial weight." (AT 27.) Plaintiff provided no opinions from treating physicians.

At step four, the ALJ found that plaintiff has no past relevant work. (Id.) Finally, at step five, the ALJ determined that, given plaintiff's "age, education, work experience, and [RFC]," there were jobs that exist in significant numbers within the national economy that plaintiff could perform. (AT 29.) Based on the VE's testimony, the ALJ determined that plaintiff could perform unskilled occupations such as hand packer, cleaner, and assembler. (Id.)


The court reviews the Commissioner's decision to determine whether it is: (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000).

"Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "To determine whether substantial evidence supports the ALJ's decision, [a court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion." Andrews, 53 F.3d at 1039.


A. The ALJ Did Not Rely Solely On The Opinion Of A Non-Examining Consultant The ALJ gave "substantial weight" to the opinion of consultative examiner Dr. Patrick Wong, "reduced weight" to the opinion of consultative examiner Dr. Patricia White, and "substantial weight" to the opinion of non-examiner Dr. Robert Paxton, finding that Dr. Wong's opinion and Dr. Paxton's opinion were consistent with each other and were consistent with plaintiff's treating records. (AT 27-28.)

Plaintiff argues that the ALJ incorrectly assessed the medical opinions of Drs. Wong and White, and erred in adopting the opinion of Dr. Paxton. (Mot. for Summ. J. 10-17.)

First, plaintiff claims that Dr. Wong's opinion did not actually corroborate Dr. Paxton's opinion with respect to plaintiff's ability to interact with co-workers and ability to maintain persistence and pace, and second, that the ALJ improperly rejected these components of Dr. Wong's opinion and instead relied on a non-examining physician's opinion. (Mot. for Summ. J. 10-14.) As described below, however, these arguments are premised upon plaintiff's erroneous reading of Dr. Wong's opinion, and therefore both arguments lack merit.

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Lester, 81 F.3d at 830; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether the ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether: (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Id. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews, 53 F.3d at 1041 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings.*fn4 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

In making an RFC determination, an ALJ can consider those limitations for which there is support in the record, aside from properly-rejected evidence or subjective complaints, including limitations "consistent with" a medical source's findings. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1197-98 (9th Cir. 2004) (finding that "substantial evidence" supported ALJ's RFC determination that plaintiff "can walk about four blocks at a time, stand for one hour, sit for one hour, occasionally lift 10-20 pounds, and drive for 15 minutes at a time," because these findings were "consistent with" - albeit not identical to - examining therapist's determination that plaintiff "can lift 26 pounds occasionally, lift 13 pounds frequently, and complete an 8 hour work day given an opportunity to change positions") (emphasis added); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (upholding ALJ's RFC determination because "the ALJ took into account those limitations for which there was record support that did not depend on Bayliss's subjective complaints.").

An ALJ does not need to adopt any specific medical source's RFC assessment as his or her own. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) ("It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity."); 20 C.F.R. § 416.946 ("[T]he administrative law judge . . . is responsible for assessing your residual functional capacity."). When an ALJ rationally interprets the available evidence in forming his or her opinion, the court will defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at 1041) ("When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion."); see also Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987) ("The general rule is that conflicts in the evidence are to be resolved by the Secretary . . . and that the Secretary's conclusion must be upheld where there is more than one rational interpretation of the evidence.").

1. Dr. Wong's Opinion

Dr. Wong conducted a consultative evaluation of plaintiff on April 12, 2008. (AT 715.) During this examination, Dr. Wong assessed plaintiff's history, mental status, and functional ability. (AT 715-17.)

Central to plaintiff's argument on appeal are two sentences of Dr. Wong's opinion regarding plaintiff's ability to interact with co-workers and ability to maintain pace and endurance. These two sentences are excerpted below, in context and with emphasis added. In regards to plaintiff's ability to maintain pace and endurance, Dr. Wong opined:

At this time, [plaintiff] is cognitively intact and is capable of carrying out simple and complex instructions. His ability to maintain an adequate pace and level of endurance over an eight-hour workday is probably at this point still markedly impaired, but this is because he has no interest or motivation at succeeding with exposure therapy and progressive desensitization of his symptoms. (AT 717 (emphasis added).) Similarly, in regards to plaintiff's ability to interact with co-workers, Dr. Wong opined:

[Plaintiff's] ability to take directions from a supervisor appears to be intact in my opinion. His ability to relate to co-workers and the public is still markedly impaired, but once again this is because he has no interest in improving beyond his current comfortable state. The probability of functional deterioration due to typical workplace stressors is not felt to be elevated. In fact for this individual the avoidance of stress begets stress and avoidance. (AT 717 (emphasis added).) In a nutshell, Dr. Wong recognized potentially "marked limitations" upon plaintiff's abilities to interact with co-workers and to maintain pace and endurance, but Dr. Wong ultimately opined that such "limitations" were self-imposed due to plaintiff's lack of "interest" in improving upon them. (Id.)

Although plaintiff's arguments center on Dr. Wong's opinions regarding plaintiff's ability to interact with co-workers and maintain pace, the other aspects of Dr. Wong's opinion are further summarized here for context. With respect to plaintiff's history, Dr. Wong noted that plaintiff "has had problems with anxiety ever since about 1989-190 [sic]" when he began to have resentful and violent thoughts towards his business partner, with whom he operated a T.V. repair company. (AT 715-17.) Plaintiff alleged to Dr. Wong that he had developed an obsessive-compulsive disorder that made him "afraid to leave his house" and instilled in him "a sense of high anxiety." (Id.) However, he also told Dr. Wong that he believed he was "benefitting from treatment and enjoys going to 'movie group' at County Mental Health," where "[h]e goes once a week to watch a movie and chitchat with other patients." (Id.) Additionally, he stated that he was "benefitting from his medications," which consisted of "Prozac 20 mg daily three pills daily and propranolol 20 mg two pills twice a day." (Id.) Dr. Wong observed that plaintiff "currently has waxing and waning of his obsessive-compulsive syndromes." (Id.) He additionally noted that:

[Plaintiff] has no hand washing. He has no hyperreligiosity. He does have issues around scrupulosity and order. Things have to be straight and neat and tidy when laid out in front of him. He has no suicidal or homicidal thoughts. He has no loss of appetite. He has no loss of joy. He enjoys his relationship with his girlfriend of 26 years. They watch a lot of TV, play cards, used to go out with her to baseball games, watch movies, and go out to dinner with her in the past, but not so much anymore. He has no hallucinosis. He has no posttraumatic symptoms. he [sic] has no periods of hyperactivity associated with racing thoughts, decreased need for sleep, and impulsiveness. He has no chemical dependency history.

(Id.) Additionally, Dr. Wong noted that plaintiff has never been hospitalized for a psychiatric condition, but that he does receive treatment at the San Joaquin County Mental Health Clinic in the form of weekly group movie therapy sessions. (Id.) However, Dr. Wong determined that the plaintiff's treating records from the clinic "do not suggest aggressive treatment of his phobic avoidance," and that he had not made an "effort to desensitize himself to the patterns of phobic avoidance." (Id.)

With respect to plaintiff's behavior, Dr. Wong observed that plaintiff demonstrated reasonable assertiveness, showed no signs of autonomic arousal or somatic anxiety, "was animated and chatty," made good eye contact, and had a "cheerful" demeanor. (AT 716.) Dr. Wong also noted that, during his examination, plaintiff's "[a]ffect at no time exhibited any anxiety," and that plaintiff "appeared fairly comfortable" with a well-modulated affect. (Id.) Additionally, Dr. Wong found plaintiff to have generally linear and well organized thought form, no suicidal or homicidal ideation, an intact memory, and good attention and ability to concentrate. (AT 716-17.)

Ultimately, Dr. Wong diagnosed plaintiff with "[a]nxiety order, not otherwise specified." (AT 717.) Dr. Wong noted that plaintiff "has some social anxiety and some obsessive-compulsive symptoms," but that plaintiff was not "as impaired by his anxiety condition as he portrays it." (Id.) Additionally, Dr. Wong observed that plaintiff was obese and gave ...

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