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 Michael J. Astrue became Commissioner of Social Security on February 12, 2007.

REPORT AND RECOMMENDATION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL F. LOWER, )

)

Plaintiff, ) CASE NO. C06-0915 MJP-MJB

)

v. ) REPORT AND 

) RECOMMENDATION

MICHAEL J. ASTRUE,1 )

Commissioner of Social Security, )

)

Defendant. )

_________________________________ )

Plaintiff Michael F. Lower appeals to the District Court from a final decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying his

application for Disability Insurance Benefits and Supplemental Security Income under the Titles

II and XVI of the Social Security Act. For the reasons set forth below, it is recommended that

the Commissioner’s decision be AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff protectively filed for Disability Insurance Benefits (“DIB”) and Supplemental

Security Income (“SSI”) on February 23, 2004, (Tr. 43) alleging disability since January 3, 2004. 

Tr. 46-48. Plaintiff identified his impairments as paranoid schizophrenia, obsessive compulsive

disorder (“OCD”), sleep apnea and depression. Tr. 55. The Social Security Administration

denied Plaintiff’s application initially (Tr. 23-26) and upon reconsideration. Tr. 28-29. A hearing

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REPORT AND RECOMMENDATION

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was held before Administrative Law Judge (“ALJ”) Verrell Dethloff, on September 9, 2005. Tr.

450-464. Plaintiff, who was represented by counsel, testified at the hearing. Tr. 453-461. The

ALJ issued an unfavorable decision on March 1, 2006, finding that Plaintiff could return to his

past relevant work and was not disabled within the meaning of the Social Security Act. Tr. 11-

20. On June 15, 2006, the Appeals Council denied Plaintiff’s request for review, making the

ALJ’s decision the final decision of the Commissioner. Tr. 6-8. Plaintiff timely filed his appeal

with this Court.

II. THE PARTIES’ POSITIONS

Plaintiff requests that the Court reverse the Commissioner’s decision and remand for

further administrative proceedings. Plaintiff argues that the ALJ erred by: (1) failing to consider

or include Plaintiff’s exertional limitations in his Residual Functional Capacity (RFC) assessment

when he found Plaintiff’s sleep apnea to be severe at step 2; (2) failing to find Plaintiff’s

impairments do meet or equal any of the medical impairments listed in step 3; (3) failing to

provide clear and convincing reasons for rejecting Plaintiff’s testimony regarding his fatigue from

sleep apnea; (4) erroneously rejecting Plaintiff’s testimony regarding the degree of limitation he

suffers as a result of his mental impairments; (5) improperly rejecting the testimony of lay

witnesses, Ms. McCarthy, A.R.N.P and Ms. Werney, A.R.N.P; and (6) improperly “ignoring” the

opinions of Dr. Sandvick and Dr. Parlatore regarding Plaintiff’s functional limitations. The

defendant responds that the Commissioner’s decision should be affirmed because the ALJ applied

the correct legal standards and supported his decision with substantial evidence.

III. STANDARD OF REVIEW

The court may set aside the Commissioner’s denial of social security disability benefits

when the ALJ’s findings are based on legal error or not supported by substantial evidence in the

record as a whole. Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence is

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REPORT AND RECOMMENDATION

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defined as 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. Magallanes v. Bowen,

881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving

conflicts in medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995). Where the evidence is susceptible to more than one rational interpretation,

it is the Commissioner’s conclusion which must be upheld. Sample v. Schweiker, 694 F.2d 639,

642 (9th Cir. 1982).

IV. EVALUATING DISABILITY

The claimant bears the burden of proving that he is disabled. Meanel v. Apfel, 172 F.3d

1111, 1113 (9th Cir. 1999). Disability is defined as the inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment, which

can be expected to result in death, or which has lasted or can be expected to last for a continuous

period of not less than twelve months. 42 U.S.C. § 423 (d)(1)(A).

The Social Security regulations set out a five-step sequential evaluation process for

determining whether claimant is disabled within the meaning of the Social Security Act. See 20

C.F.R. § 416.920. At step one, the claimant must establish that he or she is not engaging in any

substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the claimant

must establish that he or she has one or more medically severe impairments or combination of

impairments. If the claimant does not have a “severe” impairment, he or she is not disabled. Id.

at § (c). At step three, the Commissioner will determine whether the claimant’s impairment

meets or equals any of the listed impairments described in the regulations. A claimant who meets

one of the listings is disabled. See Id. at § (d).

At step four, if the claimant’s impairment neither meets nor equals one of the impairments

listed in the regulations, the Commissioner evaluates the claimant’s residual functional capacity

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REPORT AND RECOMMENDATION

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and the physical and mental demands of the claimant’s past relevant work. Id. at § (e). If the

claimant is not able to perform his or her past relevant work, the burden shifts to the

Commissioner at step five to show that the claimant can perform some 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. Id. at § (f); Tackett v. Apfel, 180 F.3d

1094, 1100 (9th Cir. 1999). If the Commissioner finds the claimant is unable to perform other

work, then the claimant is found disabled.

V. SUMMARY OF THE RECORD EVIDENCE

Plaintiff, who was born in September 1954, was 51 years old at the time of the ALJ’s

decision. Tr. 46. He served in the military between 1972 and 1974 and later obtained a Masters

Degree in Theology. Tr. 46, 453. His past work included work as a full-time minister,

custodian/janitor and a retail store greeter. Tr. 55-56. During his hearing, Plaintiff indicated that

his tendonitis and sleep apnea limit his ability to work as a janitor because he is unable to hold a

mop, fatigued and unable to stay awake. Tr 453-56. Plaintiff has been diagnosed with paranoid

schizophrenia, which has led to two incidents of psychotic behavior that required hospitalization. 

In the first incident, Plaintiff suffered a break from reality and fled to London to become King

and believed the CIA to be after him. Tr. 57, 155, 174, 458. The second incident involved

Plaintiff being hospitalized for auditory hallucinations in 1985. Id. Plaintiff has been prescribed

medications for these psychological conditions since 1985. Tr. 155, 174. In February, 2006,

Plaintiff was diagnosed with severe obstructive sleep apnea syndrome. Tr. 206. Other evidence

relevant to Plaintiff’s claims is incorporated into the discussion below.

VI. THE ALJ’S DECISION

The ALJ found that Plaintiff had not engaged in substantial gainful activity since the

alleged onset of his disability. Tr. 19. He determined that Plaintiff has the following severe

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impairments: psychotic disorders, sleep apnea, and sleep-related breathing disorder. Id. The

ALJ found that these impairments do not meet or equal one of the listed impairments in

Appendix 1, Subpart P of the Regulations. Id. 

The ALJ determined that Plaintiff’s RFC allows Plaintiff to engage in a full range of

physical work activity, with mental impairments restricting him to more simple repetitive jobs

with limited interaction with the public. Tr. 20. The ALJ further found that Plaintiff’s medically

determinable functional psychotic disorders, sleep apnea, and sleep related breathing disorders do

not preclude him from returning to his past relevant work as a janitor. Id. In reaching this

conclusion, the ALJ found that Plaintiff’s testimony regarding his limitations were not totally

credible. Id. The ALJ ended his analysis at step four. 

VII. DISCUSSION

 A. Evaluation of Medical Evidence

 Plaintiff argues that the ALJ erroneously “ignored” the findings of examining physicians

Dr. David Sandvik and Dr. Anslem A. Parlatore regarding Plaintiff’s functional limitations. Dkt.

#15 at 16. Plaintiff claims that the ALJ’s disregard for the physicians’ reports is evidenced by

his: (1) failure to explicitly reject the physicians’ opinion, (2) failure to offer reasons to discount

them, and (3) rejection of the corroborating opinions of both Advanced Registered Nurse

Practitioners, (A.R.N.P.’s). Id. Dkt. #15 at 16. The Commissioner argues that Dr. Sandvik

offered no opinion of Plaintiff’s functional limitations and Dr. Parlatore merely accepted

Plaintiff’s subjective conclusion that his “paranoia interfered with his daily life” without support

by clinical evidence. Dkt. #16 at 9-11. 

The Commissioner is correct in pointing out that Dr. Sandvik renders no opinion on

Plaintiff’s functional limitations. But rather, Dr. Sandvik does assign a Global Assessment of

Functioning in which he gives Plaintiff a score of 40 along with the comment that “[a]t times he

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A GAF of 40 indicates that claimant has “[s]ome impairment in reality testing or commination or

major impairment in several areas such as work or school, family, and is unable to work...” See American

Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 34 (4th T.R. ed. 2000). A GAF

score of 41-50 indicates serious impairment in social, occupational or school functioning. Id.

REPORT AND RECOMMENDATION

PAGE - 6

is very paranoid with impairment in work, relationships, and judgment.” Tr. 157. The

Commissioner argues that this score demonstrates that Plaintiff’s mental impairments do not

meet the definition for serious functional impairment and cannot form the basis of disability.2

Dkt. #16 at 10. In fact, the Commissioner is correct that this score alone does not satisfy or

meet a finding of disability.

Plaintiff argues error by the ALJ’s rejection of Dr. Parlatore’s opinion. Dr. Parlatore’s

opinion that Plaintiff showed marked limitations due to his paranoid behavior, hallucinations and

thought disorder can form the basis of a functional impairment. Tr. 263. Dr. Parlatore found

that Plaintiff showed marked functional limitations in his ability to relate appropriately to coworkers and supervisors and in his ability to interact appropriately in public contacts. Tr. 264. 

Finally, he found Plaintiff had severe limitations in his ability to respond appropriately to and

tolerate the pressures and expectations of a normal work setting. Id. The ALJ’s finding of not

disabled, however, appears to be derived in part, from the contradictory opinion of Matthew

Comrie, Psy.D, a state agency psychologist. Tr. 177-180. Considered a medical expert on

disability claims under the Act by the Government, (Dkt. #16 at 10), Dr. Comrie’s RFC

assessment was that “Plaintiff has the RFC for a full range of physical work activity, with mental

impairments restricting him to more simple repetitive jobs with limited interaction with the

public.” Tr. 179-80. 

It is true that Dr. Comrie’s opinion in 2004 does not address the physical limitations

produced by the very severe sleep apnea objectively verified in 2005. The Commissioner argues,

however, that Plaintiff’s testimony includes inconsistent reasons for leaving his previous jobs and

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that he also failed to follow prescribed regime by not replacing his broken CPAP. Dkt. #16 at 6-

7. These reasons, however, were never raised by the ALJ and as such shall not be evaluated by

this Court. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (Court cannot affirm the

decision of an agency on a ground that the agency did not invoke in making its decision.) (Citing

SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575 (1947)). In fact, the ALJ’s opinion

refers to the polysomnogram which revealed very severe obstructive sleep apnea. As a medically

determinable condition, sleep apnea is a likely basis for daytime drowsiness and a contributing

cause for Plaintiff’s loss of work. Thus, on these grounds, the ALJ’s finding that Plaintiff was

partially credible or “not totally credible is not supported by the record. 

The ALJ’s most salient reason for rejecting Dr. Parlatore’s opinion and adopting Dr.

Comrie’s RFC assessment of mental impairments was that the 2005 clinic treatment notes of the

treating nurse practitioners which identify inconsistencies in Plaintiff’s statements. They also

show that Plaintiff’s proper use of the CPAP for his sleep apnea improved his mental and

physical conditions starting in April through June 2005. This kind of medical improvement

demonstrates that Plaintiff’s sleep apnea is not a condition that will satisfy the 12 month duration

requirement. See, 42 U.S.C. Section 423d(1)(A). 

The ALJ also points to those notes which reflect improvement in the twenty year history

of Plaintiff’s treatment at Whatcom Counseling and Psychiatric Clinic. Tr. 173, 174. The ALJ

cites to Plaintiff’s own report that, “Abilify [his medication] is good. I have no paranoia

whatsoever.” Dkt. #14 at 17. Further, the ALJ cites to the notes from one of the nurse

practitioners as saying, “ In the course of treatment here, he has been maintained on the low

doses of Haldol between 1and 5 mg at bedtime.” Tr. 14 at 17. This record constitutes

substantial evidence of the ALJ”s findings that Plaintiff is not disabled. Accordingly, Plaintiff’s

claims of error assigned one through five are unsupported. 

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REPORT AND RECOMMENDATION

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B. Lay Witness Testimony 

In his sixth claim of error, Plaintiff argues that the ALJ improperly rejected the

evaluations of nurse practitioners McCarthy and Werny’s, in which they concluded Plaintiff’s

mental condition caused him marked and severe functional limitations. Dkt. #15 at 14-15. The

Commissioner argues that the ALJ properly considered and weighed both “lay” opinions. Dkt.

 #16 at 12-14. A.R.N.P.’s are not doctors and under the Social Security Act regulations they are

not acceptable medical sources. 20 C.F.R. §§ 404.1513.(d)(4), (e). The ALJ need only provide

germane reasons to reject sources which are not medically acceptable. Bayliss v. Barnhart, 427

F.3d 1211, 1218 (9th Cir. 2005). An ALJ may reject such testimony only if “reasons germane to

each witness” are given. Dodrill, 12 F.3d at 919. 

Unquestionably, the ALJ’s reasons for according their opinions less weight are germane. 

In this case, the ALJ stated that from the A.R.N.P.’s evaluations from March 3, 2004 and August

11, 2004, he found (1) no indication that a psychologist or psychiatrist had been involved in the

forming of the opinions; and (2) that a finding of severe and marked impairment with regard to

limitations on mental functioning is inconsistent with their 2005 treatment notes. Tr. 17-18. The

record supports these findings. Tr. 196-199, 200-203. Nurse Practitioner Melinda Werney’s

August 11, 2004 evaluation of Plaintiff’s mental functional limitations as “marked” and “severe”

is inconsistent with her subsequent treatment notes of April through June, 2005. Tr. 200-03,

211-49, 270-79. These treatment notes show that Plaintiff reports “doing good, feels pretty

steady, no paranoia, no compulsive behaviors, no psychotic symptoms, denies depression,

cheerful, denies side effects, continuous activity in the church, feels OCD is good, no

hallucinations, no breaks with reality.” Tr. 211-49, 270-79. 

Properly considered as lay witness testimony, the A.R.N.P.’s notes shed considerable

light on Plaintiff’s course of treatment over the past year, demonstrating that he was adjusting to

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his condition and his reliance upon medications. Plaintiff’s sixth claim of error here is

unsupported.

VIII. CONCLUSION

The Commissioner’s determination to deny Plaintiff SSI and DIB benefits is free of legal

error. Therefore based on the record evidence, the undersigned recommends that the

Commissioner’s decision be AFFIRMED. A proposed Order accompanies this Report and

Recommendation.

DATED this 29th day of May, 2007.

AMONICA J. BENTON

United States Magistrate Judge

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