Opinion
Case No. 6:15-cv-02388-SB
03-29-2017
AMBER D. GILLIAM, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, Magistrate Judge.
Amber Gilliam ("Gilliam") brings this appeal challenging the Commissioner of Social Security's ("Commissioner") denial of her applications for Social Security disability insurance benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the Court recommends that the district judge affirm the Commissioner's decision because it is free of legal error and supported by substantial evidence.
BACKGROUND
Gilliam stands five-feet, seven-inches tall and weighs approximately 237 pounds. She was born in July 1970, making her forty-one years old on December 23, 2011, the alleged disability onset date. Gilliam is a high school graduate and the mother of three children, including two teenagers with developmental disabilities. Her past relevant work includes working as a home attendant. She alleges disability due primarily to depression, suicidal ideation, and hip and back pain.
The ALJ's written decision suggests that one of Gilliam's children has developmental disabilities, but Gilliam's hearing testimony suggests otherwise. (Compare Tr. 24, referring to Gilliam's "children, one of whom has special needs," with Tr. 44, discussing Gilliam's two children who live with her and stating, "Your children, is that correct that they're special needs children[?] . . . Yes.")
On March 4, 2014, Gilliam visited a doctor of osteopathic medicine, Charles Ross ("Dr. Ross"), complaining of depression, stress intolerance, hypertension, headaches, suicidal ideation, and back pain. On physical examination, Gilliam appeared "[w]ell developed, well nourished, [and] in no apparent distress." (Tr. 303.) Dr. Ross noted that Gilliam was "tearful intermittently" and scored in the severely depressed range on the Patient Health Questionnaire-9 ("PHQ-9"). (Tr. 303-04.)
"The PHQ-9 is a 'self-administered . . . depression module' which serves as a measure of 'depression severity.'" Camillo v. Comm'r Soc. Sec. Admin., No. 11-1345, 2013 WL 5692435, at *25 n.19 (S.D.N.Y. Oct. 2, 2013) (citation omitted).
On March 25, 2014, Gilliam visited Dr. Jennifer Bodenhamer ("Dr. Bodenhamer") of the Douglas County Independent Physicians Association ("DCIPA"), complaining of anxiety, depression, and suicidal and homicidal ideation. Dr. Bodenhamer diagnosed anxiety and suicidal and homicidal ideation, and noted that Gilliam was placed in DCIPA's psychiatric observation unit and presented as a "very depressed, but nontoxic appearing . . . female in no acute distress at this time." (Tr. 377.)
The next day, March 26, 2014, Gilliam presented for a psychiatric consultation with Dr. George Middlekauff ("Dr. Middlekauff") at Mercy Medical Center. Dr. Middlekauff noted that Gilliam "has never had any psychiatric treatment, counseling, medication or hospitalization." (Tr. 423.) Gilliam reported that her family is "really short on finances" after her husband extorted "money from his employer," that she suffers from hip and back pain, and that she has struggled with depression the last eighteen years, in particular during winter months and after her grandmother died in 2007. (Tr. 424.) Dr. Middlekauff diagnosed major depression, noted that Gilliam was not suicidal, and assigned a Global Assessment of Functioning ("GAF") score of fifty. (Tr. 425.)
A GAF score is an estimate of an individual's psychological, social, and occupational functioning used to reflect the individual's need for treatment. Vargas v. Lambert, 159 F.3d 1161, 1172 n.2 (9th Cir. 1998) (citation omitted). "A GAF score of fifty indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Wick v. Astrue, No. 08-6108-MO, 2009 WL 2393106, at *10 (D. Or. July 31, 2009) (citation and quotation marks omitted).
That same day, March 26, 2014, Gilliam met with a medical student, Jennie Chrisenberry ("Chrisenberry"), at the Douglas County Mental Health Division. Gilliam reported that she "actively" seeks "employment when 'feeling okay,'" that her husband is paying back his employer roughly $6,000 and the family is "receiving food stamps for assistance, but . . . is having to pay some of this back as well," and that "financial issues are [the] main stressor for her." (Tr. 419.)
On April 7, 2014, Gilliam presented for an individual therapy session with Bill Duhon ("Duhon"), a licensed clinical social worker. Gilliam reported that her medications were "helping somewhat with her depressive symptoms," and she identified "spending the day at the coast" as an effective coping strategy. (Tr. 416.)
Also on April 7, 2014, Gilliam presented for a psychiatric diagnostic interview with Dr. Steven Jeffers ("Dr. Jeffers"). During the interview, Gilliam described an extensive history of feeling depressed and being raised in an "abusive home" and "persecuted" as an adolescent. (Tr. 413.) Gilliam also reported that her husband's embezzlement is what "pushed [her] over the edge." (Tr. 413.) Dr. Jeffers diagnosed major depression, chronic pain, and assigned a GAF of fifty-one.
During a group therapy session held on April 21, 2014, Gilliam reported having "two good days" and then hitting "a brick wall" due to a lack of energy and her husband losing his job. (Tr. 410.) Gilliam "responded positively" to the group's feedback and identified music as a stress management skill. (Tr. 410.)
Gilliam presented for a follow-up visit with Dr. Jeffers on April 28, 2014. Gilliam noted "some marginal improvement" in her mood, but added that "most of her complaints stem from being in pain" and that she feels "more anxious and distraut [sic] over her chronic pain." (Tr. 408.) Gilliam also claimed that she cut her hair because of difficulties raising her arms overhead. On physical and mental examination, Gilliam grimaced when rising from her chair, made audible sounds of discomfort, exhibited "adequate" concentration, memory, judgment, and insight, and was "hyperverbal and often derail[ed] with tangential thoughts [but was] able to be redirected." (Tr. 409.)
On April 30, 2014, Gilliam scored in the moderately severe depressed range on the PHQ-9. (Tr. 474.)
On May 12, 2014, Gilliam established care with Donald Bons ("Bons"), a family nurse practitioner at the Umpqua Community Health Center. Gilliam reported that her anxiety had increased, she was having "more bad days than good," and her anxiety and depression were only "somewhat controlled." (Tr. 469.) Gilliam also complained of lower back, shoulder, and right hip pain. On physical examination, Gilliam exhibited "grossly normal" joint range of motion, no signs of scoliosis in the thoracic or lumbar spine, a normal gait and station, and she appeared "in no apparent distress." (Tr. 471.)
On June 20, 2014, Bons referred Gilliam to Dr. Polly Sepulvado ("Dr. Sepulvado") for an Antinuclear Antibody ("ANA") test. Dr. Sepulvado noted that the ANA test was "of no clinical significance" and Gilliam did not fit the "criterior for lupus." (Tr. 457.) Dr. Sepulvado also encouraged Gilliam to treat her back pain via "weight loss, exercises and . . . good ergonomics." (Tr. 457.)
"An ANA test is used to help screen for autoimmune disorders." Hinton v. Astrue, 941 F. Supp. 2d 1054, 1068 n.20 (E.D. Mo. 2013) (citation omitted).
On June 23, 2014, Gilliam informed Dr. Jeffers that she dealing with numerous stressors and "was about to explode," but Gilliam denied "any increase in [her] affective symptoms." (Tr. 427.)
On June 26, 2014, Dr. Martin Lahr ("Dr. Lahr"), a non-examining state agency physician, completed a physical residual functional capacity assessment. Based on his review of the medical record, Dr. Lahr determined that Gilliam could lift and carry fifty pounds occasionally and twenty-five pounds frequently, sit, stand, or walk up to six hours in an eight-hour workday, and push or pull in accordance with her lift and carry restrictions. Dr. Lahr also determined that Gilliam does not suffer from postural, manipulative, visual, communicative, or environmental limitations.
On July 2, 2014, Dr. Megan Nicoloff ("Dr. Nicoloff"), a non-examining state agency psychologist, completed a mental residual functional capacity assessment based on her review of the medical record. Dr. Nicoloff found that Gilliam was not significantly limited in six categories of mental activity relating to the ability to sustain concentration and persistence, and moderately limited in two. Dr. Nicoloff added that Gilliam "does not require more supervision than is customary" and "can maintain attention, concentration, persistence and pace for simple and some detailed, familiar tasks, as demonstrated by her day to day activities and participation in group [therapy]." (Tr. 89.)
On July 8, 2014, Dr. Nicoloff completed a psychiatric review technique assessment. Dr. Nicoloff found that the limitations imposed by Gilliam's mental impairments failed to satisfy listing 12.04 (affective disorders).
On July 30, 2014, Gilliam informed Duhon that her "primary stressors" continued to be "relational issues between she and her husband, financial issues, relational issues with her mother, and mood fluctuation." (Tr. 668.) Duhon noted that Gilliam was making good progress toward meeting her treatment goals and objectives, and had recently taken her children to visit their father in Idaho.
Gilliam met with Dons again on August 5, 2014. Gilliam reported that she had "been doing well" and had "not had an episode of pain since May." (Tr. 454.) Gilliam also reported that her shoulder, hip, lower back, bilateral knee, and ankle pain can "keep[] her from doing anything," but "she is still able to accomplish her [activities of daily living] as needed." (Tr. 454.) Gilliam added that she swims for enjoyment, that cold water helps alleviate her pain, that she does range of motion exercises in the water, and that she was considering signing up for water aerobics.
On August 13, 2014, Gilliam reported that she was exercising more, able to cope with stress by listening to music, and "doing better since being put on Cymbalta, in particular less pain and better sleep." (Tr. 664.)
On September 2, 2014, Gilliam scored in the severely depressed range on the PHQ-9, but informed Bons that Cymbalta was "definitely helping" reduce her pain, she was sleeping better, and she felt less depressed. (Tr. 450.)
Gilliam presented for an individual therapy session with Duhon on September 3, 2014. Gilliam "listed her primary stressors as relational issues with her husband and mother-in-law, raising two children with special needs, health issues, and financial concerns." (Tr. 619.) Gilliam also reported "coping by walking, swimming, and reminding herself of the temporary nature of her stressors," as well as "utilizing her natural support when necessary." (Tr. 619.) Duhon noted that Gilliam was making good progress in therapy and moving toward meeting her goals and objectives.
On September 10, 2014, Gilliam met with Dr. Jeffers and reported that her mood had "improved substantially" and her pain had "decreased significantly," even though her husband was living in Idaho and she had "little support with the children." (Tr. 617.) Dr. Jeffers noted that a higher dosage of antidepressant caused Gilliam to feel jittery and Cymbalta had helped reduce her pain.
On September 24, 2014, Gilliam reported that she had increased "her walking" and "lost weight." (Tr. 616.)
The next month, Gilliam reported "a decrease in exercise" and an "increase in depressive symptoms including depressed mood, crying spells, low energy, low motivation," and guilt. (Tr. 616.) Gilliam added that she still enjoyed "reading, watching movies, and watching football." (Tr. 616.)
On October 28, 2014, Gilliam presented for a follow-up visit with Bons, complaining of exercise-related injuries to her groin region and abdominal wall. Bons recommended that Gilliam treat the injuries with ice, heat, and anti-inflammatories, and noted that Gilliam had been "working out regularly" and "doing pushups, sit-ups and crunches" before injuring herself. (Tr. 446.)
On November 7, 2014, Dr. Ben Kessler ("Dr. Kessler"), a non-examining state agency psychologist, completed a mental residual functional capacity assessment. Dr. Kessler agreed with Dr. Nicoloff's conclusions that Gillian (1) is not significantly limited in six categories of mental activity relating to the ability to sustain concentration and persistence, and moderately limited in two, (2) can sustain a level of concentration and persistence necessary to perform "simple and some detailed, familiar tasks," and (3) needs only customary levels of supervision. (Tr. 117.)
Also on November 7, 2014, Dr. Kessler issued a psychiatric review technique assessment, agreeing with Dr. Nicoloff's conclusion that Gillian's mental impairments failed to satisfy listing 12.04.
On November 11, 2014, Dr. Leslie Arnold ("Dr. Arnold"), a non-examining state agency physician, completed a residual functional capacity assessment, agreeing with Dr. Lahr's findings in all respects.
On December 2, 2014, Gilliam met with Bons to discuss fibromyalgia-related pain. Bons noted that there was "a large psychological component to this condition" and that he would "not prescribe controlled substances" to Gilliam. (Tr. 681.) Bons added that Gilliam complained of joint and back pain, but reported that she was tolerating her pain medication "well," the medication was "somewhat effective at relieving her pain," "her pain is not debilitating," she is able to "accomplish" her "activities of daily living," and she "has little difficulty taking care of herself or others." (Tr. 682.)
In a treatment note dated December 4, 2014, Dr. Jeffers observed that Gilliam's mood was stable and she appeared "upbeat," despite reporting that she was "emotionally a wreck." (Tr. 660.) Dr. Jeffers added that he asked Gilliam about the disparity in her presentation and reports: "[W]hen asked about this she explains she has been told this by others however [she] has been having crying spells and feeling overwhelmed. Chronic pain continues to be her primary focus." (Tr. 660.)
On January 5, 2015, Gilliam informed Dr. Jeffers that her mood was "stable" and she was feeling "happy" after moving into a new home, but she continued to "endorse chronic pain." (Tr. 656.) The following week, Gilliam informed Duhon that she was "feeling somewhat down and disappointed" that her recent move to Reedsport had "not led to her feeling much better." (Tr. 655.)
On February 4, 2015, a magnetic resonance imaging ("MRI") scan of Gilliam's right hip revealed "mild degenerative changes . . . at the sacroiliac joint" and no "acute fractures or dislocation." (Tr. 738.) An x-ray of Gilliam's spine also revealed "disc space narrowing at L4-5 and L5-S1." (Tr. 736.) Around this time, Gilliam reported walking "upwards of [five] miles" to lose weight. (Tr. 732.)
On January 23, 2015, Gilliam informed Bons that her "medications have been effective at controlling her fibromyalgia," she "still has continual flares and some pain," she is "able" to complete her activities of daily living "as necessary," and she continues to care for her family. (Tr. 677.)
On April 7, 2015, Gilliam reported continued struggles with anger management, but described a recent incident where "she was able to separate from the situation when she felt angry." (Tr. 702.)
An administrative law judge ("ALJ") convened a hearing on May 5, 2015, at which Gilliam testified about the limitations resulting from her impairments. Gilliam testified that she is unable to sustain gainful employment because she has a history of getting into verbal altercations at work and walking "off the job basically," which is what took place when she last worked in December 2011. (Tr. 39-40.) Gilliam also stated that she suffers from suicidal ideation (and has an undocumented history of suicide attempts), hepatitis, crying spells, hip and back pain, headaches, stress intolerance, "short tempers," forgetfulness, and an inability to "lift that much," maintain focus, spell, type, or "read that well." (Tr. 41, 49, 53-55, 64, 66-68.) Gilliam added that she lives with her husband and two teenage children who suffer from developmental disabilities, and does "quite a bit" of the cleaning, chores, and meal preparation. (Tr. 43-44.) In terms of social activities, Gilliam is able to "stand and sit" through her children's sporting events and the family will occasionally go on outings to the beach, but she does not spend much time with other family members or friends. (Tr. 45-48.)
The ALJ posed a single hypothetical question to a vocational expert ("VE") who testified at Gilliam's hearing. Specifically, the ALJ asked the VE to assume that a hypothetical work of Gilliam's age, education, and work experience could perform light work that involved "simple, routine, repetitive tasks" and no more than occasional interaction with coworkers and the general public. (Tr. 72.) The VE testified that hypothetical worker could not perform Gilliam's past relevant work as a "home attendant," but could be employed as an office helper, mail clerk, and security guard. (Tr. 71-72.) The VE further testified that there are 150,000 office helper jobs, 55,000 mail clerk jobs, and 300,000 security guard jobs available in the national economy. (Tr. 72.)
Gilliam's attorney also posed a series of questions to the VE who testified at the hearing. Responding to the questions posed by Gilliam's attorney, the VE confirmed that the hypothetical worker would be unable to sustain substantial gainful employment if she: (1) was off-task for more than ten percent of the workday on a "regular and on-going" basis, (2) suffered from crying spells two to three times a week, (3) became "so agitated that she had to leave the worksite for an hour a week at unpredictable intervals" and such "behavior continues," and (4) lacked the ability to interact with supervisors and coworkers without having verbal altercations. (Tr. 74-76.)
In a written decision issued on June 24, 2015, the ALJ applied the five-step sequential process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), and found that Gilliam was not disabled. (Tr. 17-27.) The Social Security Administration Appeals Council denied Gilliam's petition for review, making the ALJ's decision the Commissioner's final decision. Gilliam timely appealed to federal district court.
THE FIVE-STEP SEQUENTIAL ANALYSIS
I. LEGAL STANDARD
A claimant is considered disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are as follows:
(1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal [one of the listed impairments]? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform?Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).
II. THE ALJ'S DECISION
The ALJ first determined that Gilliam had not engaged in substantial gainful activity since December 23, 2011, the alleged disability onset date. At the second step, the ALJ concluded that Gilliam had the severe impairments of obesity, mechanical back pain with radiculitis, and depression. At the third step, the ALJ found that Gilliam did not have an impairment or combination of impairments that met or equaled one of the Listed Impairments. The ALJ then assessed Gilliam's residual functional capacity ("RFC") and found that she could perform light exertion work that involved "simple, routine, repetitive tasks" and no more than occasional interaction with coworkers and the general public. (Tr. 22.) At the fourth step, the ALJ concluded Gilliam is not capable of performing her past relevant work. At the fifth and final step, the ALJ concluded that there were other jobs existing in significant numbers in the national economy that Gilliam could perform, such as an office helper, mail clerk, and security guard. Accordingly, the ALJ determined that Gilliam was not disabled within the meaning of the Social Security Act.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are "'not supported by substantial evidence or [are] based on legal error.'" Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as "'more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court "cannot affirm the Commissioner's decision 'simply by isolating a specific quantum of supporting evidence.'" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the ALJ's decision must be upheld; the district court may not substitute its judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
DISCUSSION
In this appeal, Gillian argues that the ALJ erred by: (1) failing to provide clear and convincing reasons for discounting her symptom testimony; (2) rejecting her GAF scores; (3) failing to order a consultative psychological evaluation; and (4) failing to meet the step-five burden of demonstrating that there are jobs in the economy that Gilliam could perform. As explained below, the Court concludes that the Commissioner's decision is free of legal error and supported by substantial evidence. Accordingly, the Commissioner's decision should be affirmed.
I. CREDIBILITY DETERMINATION
A. Applicable Law
Absent an express finding of malingering, an ALJ must provide clear and convincing reasons for rejecting a claimant's testimony:
Without affirmative evidence showing that the claimant is malingering, the [ALJ]'s reasons for rejecting the claimant's testimony must be clear and convincing. If an ALJ finds that a claimant's testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive. The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's [subjective] complaints.Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 597 (9th Cir. 1999) (citations omitted). Clear and convincing reasons for rejecting a claimant's subjective symptom testimony "include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of." Bowers v. Astrue, No. 6:11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) ("[T]he ALJ is not 'required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989))).
B. Application of Law to Fact
There is no affirmative evidence that Gilliam is malingering and, therefore, the ALJ was required to provide clear and convincing reasons for discrediting Gilliam's symptom testimony. Upon review, the Court concludes that the ALJ satisfied the clear and convincing reasons standard.
First, the ALJ discounted Gilliam's symptom testimony because it is inconsistent with her daily activities. (Tr. 23, 25.) "Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination." Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). It was reasonable for the ALJ to conclude that Gilliam's reported activities, which included caring for two teenage children with developmental disabilities, walking up to five miles per day, "working out regularly," "doing pushups, sit-ups and crunches," and handling "quite a bit" of the cleaning, chores, and meal preparation at her household, undermined Gilliam's claim of disability. (Tr. 43-44, 446, 732.) Indeed, Gilliam admitted to providers that "her pain is not debilitating," that she is able to "accomplish" her "activities of daily living," and that she "has little difficulty taking care of herself or others." (Tr. 454, 682.)
The portion of ALJ's written decision addressing daily activities did not rely explicitly on some of the activities and/or admissions cited herein. Nevertheless, it is appropriate for the Court consider additional support for a ground on which the ALJ relied. See Fenton v. Colvin, No. 6:14-00350-SI, 2015 WL 3464072, at *1 (D. Or. June 1, 2015) ("The Court is not permitted to affirm the Commissioner on a ground upon which the Commissioner did not rely, but the Court is permitted to consider additional support for a ground on which the ALJ relied.").
The ALJ also discounted Gilliam's testimony because treatment records reflected improvement in Gilliam's condition and that she was progressing toward meeting her therapy goals and objectives. (Tr. 24.) Treatment notes that include signs of improvement may support an adverse credibility determination. See Hadnot v. Astrue, 371 F. App'x 875, 877 (9th Cir. 2010) ("The ALJ found additional evidence supporting the finding that claimant was not entirely credible. For example, claimant stated that she received little improvement from surgery, but the medical evidence indicated otherwise."); Cadena v. Astrue, 365 F. App'x 777, 780 (9th Cir. 2010) (concluding that the ALJ provided clear and convincing reasons for discounting the claimant's testimony, which was undermined by, among other things, treatment notes that "included signs of improvement"); Morales v. Astrue, 300 F. App'x 457, 459 (9th Cir. 2008) (explaining that "[m]edical improvement is a clear and convincing reason for rejecting a claimant's testimony"). It was reasonable for the ALJ to conclude that Gilliam's improvement undermined her claim of disability. To be sure, the record reflects that Gilliam's mood stabilized, her pain improved with medication, she was able to exercise more frequently, she was able to develop coping strategies to deal with stressors, her anger management improved, and her chronic pain improved with medication, exercise, and cold water therapy. (Tr. 24, 454, 619, 660, 664, 668, 702.)
Third, the ALJ discounted Gilliam's testimony because Gilliam testified that she "quit" her last job in December 2011, the same month she alleges the onset of disability. (Tr. 23.) The foregoing testimony led the ALJ to conclude that Gilliam could "have continued working" and was not "forced to quit . . . due to any functional limitation" or debilitating condition. (Tr. 23.) It is well settled that an "ALJ may reasonably draw an adverse inference from evidence that a claimant stopped working for reasons other than her allegedly disabling medical condition." Jenson v. Colvin, No. 13-01018, 2014 WL 1878449, at *10 (D. Ariz. May 9, 2014) (citing, inter alia, Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001)). Accordingly, the ALJ did not err in this regard.
Gilliam contends that her difficulties in social functioning led to her "departure from the workforce." (Pl.'s Br. at 11.) Although Gilliam's social functioning may have impacted her decision to quit her job, that does not mean her social functioning prevents her from sustaining gainful employment. Indeed, the record suggests that Gilliam was not terminated from her most recent position, even though she "walked off the job basically . . . on more than occasion." (Tr. 39.) --------
Fourth and finally, the ALJ discounted Gilliam's testimony because no "treating or examining source has provided an opinion or indicated the claimant has significant functional limitations." (Tr. 25.) In making an adverse credibility determination, it is appropriate for an ALJ to consider the lack of medical evidence corroborating a claimant's subjective symptom testimony. See Martin v. Colvin, No. 3:14-cv-01603, 2016 WL 890106, at * 9 (D. Or. Feb. 9, 2016) ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.") (citation omitted); Nikitchuk v. Astrue, 240 F. App'x 740, 742 (9th Cir. 2007) ("The ALJ also properly considered the lack of medical evidence corroborating Nikitchuk's testimony as one factor in his credibility determination.").
In summary, the Court declines to second-guess the ALJ's adverse credibility determination because it is reasonable and supported by substantial evidence in the record. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) ("[T]he ALJ's interpretation of [the claimant's] testimony may not be the only reasonable one. But it is still a reasonable interpretation and is supported by substantial evidence; thus, it is not our role to second-guess it.").
II. GAF SCORES
Gilliam also argues that the ALJ erred by assigning little weight to the GAF scores in the record. The Court disagrees.
The Ninth Circuit has held, albeit in an unpublished opinion, that an ALJ does not err by failing to address a claimant's GAF scores. See Pinegar v. Comm'r Soc. Sec. Admin., 499 F. App'x 666, 667 (9th Cir. 2012) (noting that the Ninth Circuit "has not found error when an ALJ does not consider" GAF scores and, therefore, holding that the ALJ "did not err by not considering" the claimant's GAF scores); see also Aquila v. Colvin, No. 15-932, 2016 WL 1456770, at *5 (D. Nev. Feb. 22, 2016) (citing unpublished opinions from the Ninth Circuit holding that an ALJ may disregard a treating doctor's GAF scores without setting forth clear and convincing reasons, and that failure to address GAF scores does not constitute legal error); Aldrich v. Colvin, No. 13-401, 2014 WL 6653999, at *11 (E.D. Wash. Nov. 24, 2014) ("An ALJ has no obligation to credit or even consider GAF scores in the disability determination."); Brown v. Colvin, 2015 WL 5601400, at *3 (E.D. Cal. Sept. 21, 2015) (rejecting the claimant's argument that the ALJ erred by failing to consider his GAF score, which was "not a 'medical opinion' that the ALJ needed to discuss"). Thus, an ALJ need not even consider GAF scores in the record.
Importantly here, however, the ALJ expressly stated that he was assigning little weight to the GAF scores, because "the use of GAF scores as a measure of functioning has been discredited by the American Psychological Association as unreliable." (Tr. 24.) The ALJ did not err in assigning little weight to the GAF scores, which he appropriately deemed to be unreliable. See also Castillo v. Colvin, No. 15-1869, 2016 WL 4446327, at *13 (W.D. Wash. July 28, 2016) (noting that "the American Psychiatric Association has discontinued the use of GAF scores in the latest edition of the [Diagnostic and Statistical Manual of Mental Disorders] because of its 'conceptual lack of clarity' and 'questionable psychometrics in routine practice,'" and stating that "a GAF score may help guide an ALJ's determination, but an ALJ is not bound to consider it").
Even if the ALJ was required to provide clear and convincing reasons for assigning little weight to the GAF scores assigned by Gilliam's physicians, the Court finds that the ALJ met the standard here. Specifically, the ALJ noted that the GAF score of fifty-one assigned by Dr. Jeffers was based largely on factors not related to Gilliam's vocational abilities, and that Dr. Jeffers did not provide an opinion of Gilliam's functional abilities. (Tr. 24.) The ALJ also found that Gilliam's mental status findings and chart notes did not reflect significant impairment in mental functioning. (Id.) The Court finds that the reasons articulated by the ALJ for assigning little weight to the GAF scores are clear and convincing, and supported by substantial evidence. Cf. Riedinger v. Berryhill, No. 16-1080, 2017 WL 782753, at *4 (W.D. Wash. Feb. 1, 2017) ("[A]lthough Dr. Hakeman assessed a GAF score of 50, she did not opine Mr. Riedinger is disabled and did not set forth functional limitations which the ALJ should have but did not consider, which were consistent with a GAF score of 50. In short, because Mr. Riedinger points to nothing in the record showing Dr. Hakeman found limitations that were not addressed by the ALJ, he has not shown harmful error with respect to the ALJ's treatment of Dr. Hakeman's GAF scores or opinions.").
For all of these reasons, the ALJ did not commit harmful error by assigning little weight to Gilliam's GAF scores.
III. CONSULTATIVE PSYCHOLOGICAL EVALUATION
Gilliam also argues that the ALJ erred by failing to order a consultative psychological evaluation. In support of her argument, Gilliam notes that some cases (i.e., those involving ambiguity, insufficiency in the evidence, or the need for additional evidence not contained in the record) "require a consultative examination." (Pl.'s Br. at 9, citing Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001)). Gilliam adds that her treating psychiatrists and counselors declined to provide opinions as to her functional limitations, and yet the ALJ declined to order a consultative examination.
The Court is not persuaded by Gilliam's argument. Nothing in the record indicates that the ALJ should have ordered a consultative psychological examination to assess Gilliam's mental impairments, because nothing in the record (or Gilliam's brief) reasonably suggests that the medical opinions and findings of record were ambiguous or otherwise insufficient to render a disability decision. Cf. Leitner v. Comm'r of Soc. Sec. Admin., 361 F. App'x 876, 877 (9th Cir. 2010) ("The ALJ's duty to develop the record is triggered if there is ambiguous evidence or the record is inadequate for proper evaluation of evidence. Neither is true here."). Based on Gilliam's testimony and the findings of the treating and non-examining sources, it was reasonable for the ALJ to conclude that Gilliam's mental impairments did not preclude employment. See Guitierrez v. Astrue, No.09-2323, 2010 WL 2232175, at *7 (N.D. Cal. June 3, 2010) (noting the Commissioner "has broad latitude in ordering a consultative examination" and "[t]he government is not required to bear the expense of an examination for every claimant"). Accordingly, the ALJ did not err by declining to order a consultative examination.
IV. STEP-FIVE BURDEN
Finally, Gilliam argues that the ALJ erred by failing to meet the step-five burden of demonstrating that there are jobs in the economy that Gilliam could perform. Specifically, Gilliam contends that the VE hypothetical, which was derived from the RFC, was defective because it failed to account for her need to have no more than occasional interaction with supervisors. Rather, the ALJ's hypothetical limited Gilliam to no more than occasional interaction with coworkers and the public.
"An ALJ's RFC need only incorporate credible limitations supported by substantial evidence in the record and [it] must be consistent with the restrictions identified in the medical testimony." Burke v. Comm'r of Soc. Sec., No. 13-1890, 2015 WL 769951, at *5 (D. Or. Feb. 23, 2015) (citation omitted). Gilliam alleges that she does not respond well to supervision, but that allegation is supported only by her own testimony. As discussed above, the Court found that the ALJ properly discounted Gilliam's testimony and, therefore, was not required to account for her testimony in formulating the RFC. See Romo v. Colvin, No. 15-2324, 2016 WL 146417, at *5 (C.D. Cal. Jan. 12, 2016) (rejecting argument that RFC needed to account for claimant's properly discounted testimony).
In any event, contrary to Gilliam's argument that she cannot sustain employment due to her inability to respond appropriately to supervision, as allegedly demonstrated by her termination after "getting into it" with a manager at the Farmington Center, the Court notes that Gilliam actually testified that she quit her job prior to "getting into it" with her manager, as opposed to being terminated:
A. Farmington Center in Gresham, I was a caregiver.(Tr. 52.)
Q. How'd that end?
A. I gave my two-week notice and they didn't want me to quit when I told them I was going to. . . . [Then] me and the manager got into it, and she told me that she was . . . going to put a note in my file to not rehire.
The Court concludes that the ALJ incorporated all credible limitations into the RFC, and did not err at step-five of the sequential process.
CONCLUSION
For the foregoing reasons, the Court recommends that the district judge affirm the Commissioner's decision because it is free of legal error and supported by substantial evidence in the record.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 29th day of March, 2017.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge