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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JOHN E. DEYOE,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of

Social Security Administration,

Defendant.

CASE NO. C06-5119JKA

ORDER AFFIRMING

ADMINISTRATIVE DECISION

This matter has been referred and reassigned to the undersigned Magistrate Judge pursuant to 28

U.S.C. § 636(c). This matter has been briefed and after reviewing the record, the Court affirms the Social

Security Administration’s decision denying plaintiff’s application for social security benefits.

Plaintiff brings the instant action pursuant to 205(g) of the Social Security Act ("the Act"), as

amended, 42 U.S.C. § 405(g), to obtain judicial review of the defendant's final decision denying plaintiff's

application for disability insurance benefits. Specifically, plaintiff argues (1) the ALJ erred in failing to find

that Plaintiff’s mental health condition met the Listing of Impairment; (2) the ALJ failed to properly

evaluate Plaintiff’s mental health impairment; (3) the ALJ failed to consider the effects of Plaintiff’s

medically determinable mental impairments in combination with the effects of his physical impairments on

his residual functional capacity; (4) the ALJ erred in determining that Plaintiff’s statements as to the degree

of his impairments and limitations were not fully credible; (5) the ALJ’s hypothetical question to the

vocational expert was fatally flawed because it used incorrect physical restrictions and ignored Plaintiff’s

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mental health impairment; and (6) the ALJ erred in determining that Plaintiff can perform his past relevant

work as a parts manager. 

After reviewing the record, the court finds and orders as follows:

1. This Court must uphold the determination that plaintiff is not disabled if the ALJ applied the

proper legal standard and there is substantial evidence in the record as a whole to support the decision. 

Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S.

389, 401 (1971); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir. 1985). It is more than a scintilla but less

than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975); Carr v.

Sullivan, 772 F. Supp. 522, 525 (E.D. Wash. 1991). If the evidence admits of more than one rational

interpretation, the Court must uphold the Secretary's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th

Cir. 1984). Here, the ALJ’s decision is properly supported by substantial evidence and free of legal error.

2. Plaintiff argues the ALJ erred when he failed to find that Mr. DeYoe’s mental health condition

met or equaled the listing of impairment under either 12.04 or 12.08. Plaintiff further argues the ALJ

otherwise failed to properly assess and evaluated Mr. DeYoe’s mental impairments. After reviewing the

record, the court finds the ALJ did not err when he evaluated the medical evidence, specifically the mental

impairments alleged by Plaintiff.

 The ALJ is entitled to resolve conflicts in the medical evidence. Sprague v. Bowen, 812 F.2d

1226, 1230 (9th Cir. 1987). He may not, however, substitute his own opinion for that of qualified medical

experts. Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982). If a treating doctor’s opinion is

contradicted by another doctor, the Commissioner may not reject this opinion without providing “specific

and legitimate reasons” supported by substantial evidence in the record for doing so. Murray v. Heckler,

722 F.2d 499, 502 (9th Cir. 1983). “ The opinion of a nonexamining physician cannot by itself constitute

substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating

physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996). In Magallanes v. Bowen, 881 F.2d 747,

751-55 (9th Cir. 1989), the Ninth Circuit upheld the ALJ’s rejection of a treating physician’s opinion

because the ALJ relied not only on a nonexamining physician’s testimony, but in addition, the ALJ relied

on laboratory test results, contrary reports from examining physicians and on testimony from the claimant

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that conflicted with the treating physician’s opinion.

The ALJ discussed the medical evidence related to Plaintiff’s mental condition, including the

reports by Dr. Hill (Tr. 46-47), Dr. Okey (Tr. 41), and Dr. Kole (Tr. 44-45). The ALJ noted that no

medical sources concluded that Plaintiff met or equaled a listed impairment, and that based on the medical

evidence, Plaintiff’s mental impairment produced only mild restrictions in activities of daily living; mild to

moderate difficulties in social functioning; mild difficulties maintaining concentration, persistence, or pace;

and no episodes of decompensation of extended duration (Tr. 49).

Dr. Okey completed initial and discharge psychological evaluations in October and November

2002, assessing a pain disorder with both psychological factors and a general medical condition (Tr.

686-89, 694). Dr. Okey did not state any specific functional limitations based on Plaintiff’s mental

impairments, but the team discharge report found Plaintiff to be able to work in a full time sedentary

position (Tr. 696). Dr. Okey assessed an initial Global Assessment of Functioning (GAF) score of 60 (Tr.

686) and a discharge GAF score of 65 (Tr. 694). (A GAF score of 61 to 70 indicates some mild symptoms

or some difficulty in social, occupational, or school functioning, but generally functioning pretty well.) Dr.

Kole conducted a psychological examination of Plaintiff on February 8, 2003, as part of an independent

Department of Labor and Industries evaluation (Tr. 840-57). Dr. Kole assessed adjustment disorder with

dysphoric affect and passive dependent personality disorder, with a GAF score of 60 (Tr. 855).

Plaintiff’s argument relies on the opinion of Dr. Hill, who evaluated Plaintiff in March 2004. Dr.

Hill diagnosed pain disorder, adjustment disorder, psychological factors affecting physical various

conditions, sleep disorder, rule/out learning disability, NOS, and probable personality disorder, NOS with

histrionic and avoidant features (Tr. 1208-23). Dr. Hill assigned a GAF score of 50 (serious symptoms or

any serious impairment in social, occupational, or school functioning), and opined that Plaintiff was “quite

disabled” and that he was not capable of full time employment in any capacity (Tr. 1222-23).

Significantly, the ALJ considered Dr. Hill’s opinion, but found it unconvincing (Tr. 47). First, the

ALJ noted that despite Dr. Hill’s purported agreement with Dr. Kole’s assessment, Dr. Kole assessed

relatively few limits and did not conclude that Plaintiff could not work (Tr. 47). Second, the ALJ noted

that Dr. Hill apparently included consideration of Plaintiff’s physical diagnoses in his opinion (see Tr.

1223), which Dr. Hill had no expertise in evaluating (Tr. 47). Third, the ALJ noted that while Plaintiff was

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somatically focused and dependent, such symptoms do not necessarily preclude performance of work. It is

the ALJ’s responsibility, not a physician’s, to determine whether a claimant is disabled under the Social

Security Act. Disability has both a medical and a vocational component. See 20 C.F.R. § 404.1560. A

medical source does not have the expertise to comment on the vocational component of

disability. Accordingly, a statement by a medical source that a person is “unable to work” should not carry

much, if any, weight. See 20 C.F.R. § 404.1527(e)(1).

The contradicted opinion of an examining physician, such as Dr. Hill, may be rejected only for

specific and legitimate reasons, and the uncontradicted opinion of an examining physician may be rejected

only for clear and convincing reasons. Regennitter v. Commissioner, 166 F.3d 1294 (9th Cir. 1999). Here,

the ALJ provided specific and legitimate reasons and his rejection of Dr. Hill’s opinion is supported by

substantial evidence. The specific medical reports cited by Plaintiff do not provide findings that the

Listings criteria are met. Only Dr. Hill found Plaintiff not able to work, while the other examining

psychologists found Plaintiff to have only moderate or mild symptoms and difficulties.

Plaintiff further argues that the ALJ erred by failing to complete a required Psychiatric Review

Technique Form (PRTF) when he evaluated Plaintiff’s mental impairments. Although at one time Social

Security regulations required completion of this form by the ALJ, the current regulations do not require

ALJ’s to complete the PRTF. See 20 C.F.R. § 404.1520a(e). Here, as required, the ALJ properly made

specific findings as to the degree of limitation in each of the four functional areas (Tr. 49). 

In sum, the ALJ properly evaluated the medical evidence (both mental and physical) and concluded

Mr. DeYoe suffers from only “mild limitations regarding daily living; mild to moderate limitations

regarding social functioning; mild limitations regarding concentration, persistence, and pace; and no

episodes of decompensation of extended duration.” (Tr. 49).

3. The ALJ properly evaluated Mr. DeYoe’s credibility. The ALJ has a special duty to fully and

fairly develop the record and to assure that the claimant’s interests are considered. Brown v. Heckler, 713

F.2d 441, 443 (9th Cir. 1983). Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc), is controlling

Ninth Circuit authority on evaluating plaintiff's subjective complaints of pain. Bunnell requires the ALJ

findings to be properly supported by the record, and "must be sufficiently specific to allow a reviewing

court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not

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'arbitrarily discredit a claimant's testimony regarding pain.'" Id. at 345-46 (quoting Elam v. Railroad

Retirement Bd., 921 F.2d 1210, 1215 (11th Cir. 1991)). 

Here, the ALJ sufficiently explained his reasons for discrediting plaintiff’s testimony or credibility

with regard to his alleged disabilities and limitations. The ALJ noted that Plaintiff’s motives were suspect

and he often was noted to exaggerate his symptoms. Dr. Okey noted that Plaintiff “did not seem fully

engaged or to fully ‘buy in’ to the concept” [pain management program approach] (Tr. 694), and Dr. Cole

and Dr. Khamisani reported that Plaintiff’s condition was due to pain behavior, symptom magnification,

and non-physiological findings (Tr. 829). The ALJ further noted Plaintiff collected unemployment benefits

for a year after he stopped working, suggesting he was actually willing and able to work during part of the

same period in which he was claiming disability. The court finds the ALJ’s reasons for discrediting

plaintiff’s testimony legally sufficient.

2. Finally, Plaintiff argues the administration failed to pose a hypothetical to the vocational expert

that included all of Plaintiff’s impairments and limitations and further erred in concluded that Plaintiff could

perform his past work as a parts manager.

It is the administration’s burden to show that the plaintiff can perform other substantial gainful

work that exists in the national economy. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The

ALJ’s use or reliance on a Vocational Expert is a common method for establishing the existence of such

jobs. See Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). The ALJ’s findings will be upheld where the

weight of the medical evidence supports the hypothetical questions posed by the ALJ. Martinez v.

Heckler, 807 F.2d 771 (9th Cir. 1986). A vocational hypothetical must set forth all the reliable limitations

and restrictions of the particular claimant that are supported by substantial evidence. See Osenbrock, 240

F.3d at 1162-63; Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). Although the hypothetical may

be based on evidence which is disputed, the assumptions in the hypothetical must be supported by the

record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)(citing Gallant v. Heckler, 753 F.2d 1450,

1456 (9th Cir. 1984)).

The ALJ did not err when he relied on the Vocational Expert’s testimony in this matter. The

hypothetical posed to the Vocational Expert in this matter contained all of the limitations and impairments

properly considered by the ALJ. Plaintiff’s argument that the ALJ failed to pose a proper hypothetical that

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included all of Plaintiff’s impairments is premised on the arguments that the ALJ erred when he evaluated

the medical evidence and Plaintiff’s credibility. As discussed above, the ALJ did not err as argued by

Plaintiff. The Vocational Expert testified that a person with Mr. DeYoe’s residual functional capacity, as

assessed by the ALJ, could return to his past relevant work as a parts manager. In addition, the Vocational

Expert stated that Mr. DeYoe would be able to perform work as an Order clerk, a light deliveryman, or a

cashier (Tr. 50-51). 

3. Accordingly, the Court AFFIRMS the Social Security Administration’s final decision and this

matter is DISMISSED in favor of defendant.

DATED this 20th day of December 2006.

/s/ J. Kelley Arnold J. Kelley Arnold

U.S. Magistrate Judge

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