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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LIZETH A., CASE NO. 2:22-cv-00625-JRC 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 16 17 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local 18 Magistrate Judge Rule MJR 13. See also Consent to Proceed Before a United States Magistrate 19 Judge, Dkt. 3. This matter has been fully briefed. See Dkts. 17–19. 20 This case has had a complex procedural history over the past nine years. Because the 21 present ALJ relied on substantial evidence in determining that plaintiff performed substantial 22 gainful activity after the alleged onset date, and because the ALJ gave adequate reasoning in 23 24 1 discounting plaintiff’s subjective testimony and the findings of several consultative examiners, 2 the Court affirms. 3 PROCEDURAL HISTORY 4 Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant to 42
5 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and following 6 reconsideration. See AR 60, 70. Plaintiff’s requested hearing was held before ALJ Virginia M. 7 Robinson on June 25, 2015. See AR 35–59. On October 20, 2015, ALJ Robinson issued a written 8 decision in which she concluded that plaintiff was not disabled pursuant to the Social Security 9 Act. See AR 17–34. 10 On February 15, 2017, the Appeals Council denied plaintiff’s request for review, making 11 ALJ Robinson’s decision the final agency decision subject to judicial review. AR 1–6; see 20 12 C.F.R. § 404.981. Plaintiff filed a complaint seeking judicial review of the ALJ’s written 13 decision in the U.S. District Court for the Eastern District of Washington on April 20, 2017. See 14 AR 442. On August 7, 2018, that Court reversed and remanded the ALJ’s decision for further
15 proceedings. AR 456–83. This resulted in a new hearing before ALJ Kimberley Boyce on 16 August 21, 2019, at which plaintiff failed to appear due to a family member’s illness. AR 406– 17 17. On October 9, 2019, ALJ Boyce issued a written decision in which she found plaintiff was 18 not disabled. AR 387–405. Plaintiff, who is now residing in the Western District of Washington, 19 filed a complaint seeking review in this Court on February 22, 2020. AR 853–55. Pursuant to the 20 parties’ stipulation, this Court remanded the case on June 3, 2020. AR 856–61. 21 A third hearing, at which plaintiff appeared and testified, took place before ALJ Glenn 22 Meyers on January 11, 2022. AR 818–52. On February 2, 2022, ALJ Meyers (“the ALJ”) issued 23 a decision in which he concluded plaintiff was not disabled. AR 717–42. Plaintiff filed the
24 1 complaint presently before this Court on June 13, 2022. Defendant filed the sealed administrative 2 record (“AR”) regarding this matter on August 15, 2022. See Dkt. 13. 3 BACKGROUND 4 Plaintiff was born in 1992 and was 21 years old on the alleged date of disability onset of
5 December 4, 2013. See AR 720, 735. Plaintiff has a high school and some college education. AR 6 834. Prior to the alleged onset date, plaintiff worked jobs in retail and in fruit packing, although 7 plaintiff has more recently worked at daycare centers. AR 52, 826–27. 8 According to the ALJ, plaintiff has at least the severe impairments of eating disorder, 9 depression, and anxiety. AR 723. 10 STANDARD OF REVIEW 11 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 12 social security benefits if the ALJ’s findings are based on legal error or not supported by 13 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 14 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
15 DISCUSSION 16 In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) whether the ALJ 17 erred in finding plaintiff engaged in substantial gainful activity after the alleged onset date; (2) 18 whether the ALJ properly evaluated plaintiff’s subjective testimony; and (3) whether the ALJ 19 properly evaluated the medical opinion evidence. See Dkt. 17, p. 2. 20 21 22 23
24 1 1. Whether the ALJ Erred at Step One in Finding Plaintiff had Performed 2 Substantial Gainful Activity 3 Plaintiff first challenges the ALJ’s assessment, in the first step of the disability evaluation 4 process, finding that she had engaged in substantial gainful activity after the alleged onset date. 5 Dkt. 17, at 3. 6 An individual who is engaged in “substantial gainful activity” (“SGA”) is not disabled. 7 42 U.S.C. § 423(d) (1) (A); Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995); 20 C.F.R. § 8 416.920(b). SGA is activity that is both “substantial” and “gainful.” 20 C.F.R. § 416.972 9 (definition of SGA). “Substantial work activity” involves “significant physical or mental 10 activities” and may include part-time work and work that pays less or involves fewer 11 responsibilities than previous work. 20 C.F.R. § 416.972(a). “Gainful” work activity is work 12 activity that is “usually done for pay or profit.” 20 C.F.R. § 416.972(b). It is the claimant's 13 burden to show that he or she is not engaged in substantial gainful activity. See Bowen v. 14 Yuckert, 482 U.S. 137, 146 n. 5 (1987); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 15 1999) (citation omitted) (noting in a footnote that “the ALJ shares the burden at each step” due to 16 the affirmative duty of the ALJ to assist in the development of the record as well as the non- 17 adversarial nature of the social security application process). 18 Earnings may show that an individual is engaged in SGA. 20 C.F.R. § 416.974(a)(1). An 19 individual earning more than a certain amount each month is presumed to be engaged in SGA. 20 Katz v. Secretary of Health & Human Services, 972 F.2d 290, 293 (9th Cir. 1992) (earnings 21 beyond a certain guideline create a rebuttable presumption of SGA) (citing Keyes v. Sullivan, 22 894 F.2d 1053, 1056 (9th Cir. 1990)); 20 C.F.R. §§ 404.1574(b)(2), 416.974(b) (2) (setting forth 23 the monthly guideline). Part-time work that pays less than full-time work can still be SGA. Katz, 24 1 972 F.2d at 292 (citing Keyes, 894 F.2d at 1056; 20 C.F.R. § 416.972(a)(“Your work may be 2 substantial even if it is done on a part-time basis or if you do less, get paid less, or have less 3 responsibility than when you worked before”)). 4 Here, the ALJ found that
5 The claimant worked after the application date, earning $515.95 in 2015, $875.38 in 2016, $6,129.50 in 2017, and $18,529.89 in 2018, $22,463.11 in 2019, 6 and $17,955.40 in 2020[.] Accordingly, the claimant’s earnings during parts of 2017, 2018, 2019, and 2020 were at substantial gainful activity levels. 7 AR 723 (citations omitted). However, the ALJ found that plaintiff had spent at least a continuous 8 twelve-month period not performing any substantial gainful activity, and the remainder of the 9 ALJ’s decision addressed these periods. Id. 10 In challenging the ALJ’s finding, plaintiff asserts that (1) her work did not rise to the 11 level of substantial gainful activity; and (2) the ALJ should have considered whether the periods 12 during which she worked were unsuccessful work attempts. Dkt. 17, at 3. 13 With respect to plaintiff’s first assertion, the SSA’s Program Operations Manual System 14 (“POMS”) sets forth the minimum monthly earnings for SGA. See POMS DI 10501.015, Table 15 2. For the years at issue here—2017, 2018, 2019, and 2020—these minimums were $1170, 16 $1180, $1220, and $1260, respectively. Id. Plaintiff asserts that, with the exception of one 17 quarter in 2019, her earnings never reached SGA levels. Dkt. 17, at 3–4. However, plaintiff’s 18 assertion is predicated on calculating her earnings separately for each job she worked in a given 19 quarter, as opposed to determining her monthly income by aggregating her earnings from all 20 work she performed in a given quarter. Id. at 4. In her reply, plaintiff points to 20 CFR 21 416.974(a)(1), which “states that the primary consideration in assessing SGA is ‘earnings you 22 derive from the work activity[.]’” Dkt. 19, at 3 (emphasis removed) (citing 20 CFR 23 416.974(a)(1)). Plaintiff avers that the singular word “activity” indicates that income from each 24 1 job is to be evaluated separately. Id. By this reasoning, a claimant could simultaneously work in 2 two part-time jobs, earning a gross income well above the SGA threshold, but found not to be 3 engaged in SGA so long as the income from each job remained below that threshold. The Court 4 finds defendant’s contention—that the SGA determination at step one “looks to ‘work activity’
5 represented by ‘earnings’ rather than limiting consideration of substantial gainful activity to one 6 job”—more persuasive. Dkt. 18, at 4. 7 With respect to plaintiff’s second assertion, an unsuccessful work attempt may be found 8 when a claimant works for a period of six months or less and stopped working due to an 9 impairment. 20 CFR 416.974(c). Subsection (2) of this regulation provides that “[t]here must be 10 a significant break in the continuity of [the claimant’s] work before we will consider that you 11 began a work attempt that later proved unsuccessful,” and that a claimant “must have stopped 12 working or reduced [their] work below the substantial activity level because of [their] 13 impairment.” 20 CFR 404.1527(c)(2). Here, plaintiff worked for three quarters each at 14 Cosmopolitan Kids Childrens’ Academy and Seattle First Methodist Church, as well as four
15 quarters at Northwest Center. AR 575, 934–36. Plaintiff points to parts of the record that 16 indicates she left each of these jobs due to her severe impairments and, to support her position, 17 relies on Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999). Therein, the 18 Ninth Circuit held that a plaintiff’s holding successive jobs that generally lasted no more than 19 two months could not be found to be engaged in SGA, because the 40-year old plaintiff “would 20 have to perform 150 jobs, at a rate of six jobs per year, to remain employed” until retirement. 21 Gatliff, 172 F.3d at 694. Gatliff is inapposite because, in this case, the plaintiff worked at several 22 jobs for much longer periods than the plaintiff therein. 23
24 1 Furthermore, plaintiff has not shown that any “significant break” took place between the 2 jobs she performed, another required element of an unsuccessful work attempt. 20 CFR 3 416.974(c)(2). In any event, the Commissioner was not required to make further findings into the 4 nature of plaintiff’s performance at these jobs.
5 The Commissioner concedes that plaintiff’s earnings in 2017 did not reach the threshold 6 amount for SGA; thus, the ALJ’s finding that plaintiff engaged in SGA is erroneous as to that 7 calendar year. Dkt. 18, at 5. However, this error was harmless. Harmless error principles apply in 8 the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is 9 harmless, however, only if it is not prejudicial to the claimant or is “inconsequential” to the 10 ALJ’s “ultimate nondisability determination.” Stout v. Commissioner, Social Security Admin., 11 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115. Here, plaintiff does not show 12 that the error caused prejudice or was of consequence in the ultimate nondisability determination. 13 The ALJ did not end his analysis at step one but, rather, found that plaintiff had still shown 14 periods of over twelve months in which she did not perform SGA and analyzed all five steps of
15 the sequential evaluation process. AR 723–36; see, e.g. Geister v. Astrue, 2010 WL 2867954 (D. 16 Ore. 2010) (after error at step one, “[t]he ALJ nevertheless went on to evaluate plaintiff’s 17 impairments and functional limitations […] Accordingly, the ALJ’s error is harmless.”). Further, 18 the ALJ did not rely solely on plaintiff’s ability to perform SGA in evaluating plaintiff’s 19 credibility and functional limitations, but considered the entire record performing the rest of the 20 sequential evaluation, citing to evidence dated throughout the relevant period and relying on 21 other reasons to find plaintiff not disabled. Accordingly, plaintiff has not shown harmful error. 22 23
24 1 2. Whether the ALJ Properly Evaluated Plaintiff’s Subjective Testimony 2 Next, plaintiff avers that the ALJ should have fully credited her subjective testimony, and 3 that the ALJ’s failure to do so constituted harmful error. Dkt. 17, at 5. 4 If the medical evidence in the record is not conclusive, sole responsibility for resolving
5 conflicting testimony and analyzing a claimant’s testimony regarding limitations lies with the 6 ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Waters v. Gardner, 452 7 F.2d 855, 858 n.7 (9th Cir. 1971), and Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). An 8 ALJ is not “required to believe every allegation of disabling pain” or other non-exertional 9 impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citing 42 U.S.C. § 423(d)(5)(A) 10 (other citations and footnote omitted)). Even if a claimant “has an ailment reasonably expected to 11 produce some pain; many medical conditions produce pain not severe enough to preclude gainful 12 employment.” Fair, supra, 885 F.2d at 603. The ALJ may “draw inferences logically flowing 13 from the evidence.” Sample, 694 F.2d at 642 (citing Beane v. Richardson, 457 F.2d 758 (9th Cir. 14 1972); and Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)).
15 Nevertheless, the ALJ’s determinations regarding a claimant’s statements about 16 limitations “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 17 722 (9th Cir. 1998) (citing Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991)). In 18 evaluating a claimant's allegations of limitations, the ALJ cannot rely on general findings, but 19 “‘must specifically identify what testimony is credible and what evidence undermines the 20 claimant's complaints.’” Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (quoting Morgan 21 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)); Reddick, 157 F.3d at 722 22 (citations omitted); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citation omitted). 23 According to the Ninth Circuit, “we may not take a general finding-an unspecified conflict
24 1 between Claimant’s testimony about daily activities and her reports to doctors-and comb the 2 administrative record to find specific conflicts.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 3 2014); see also Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“Because the ALJ 4 failed to identify the testimony she found not credible, she did not link that testimony to the
5 particular parts of the record supporting her non-credibility determination, [which] was legal 6 error”) (citing Burrell, 775 F.3d at 1139). 7 Here, plaintiff testified that she could not work due to insomnia that prevented her from 8 sleeping more than two to three hours per night, difficulty concentrating due to racing thoughts 9 and fatigue, difficulty socializing, and a low appetite—sometimes eating only one meal a day 10 while weighing under 100 pounds. AR 42, 44–47, 842. Plaintiff also endorsed frequent suicidal 11 ideation and panic attacks or “meltdowns” on a weekly basis, although she stated that these had 12 subsided with medication. AR 44, 341. The ALJ found that, to the extent plaintiff’s testimony 13 described disabling limitations, it was inconsistent with a record of (1) normal mental status 14 exams; (2) plaintiff’s minimal efforts at treatment; (3) evidence of improvement with
15 medication; (4) plaintiff’s own inconsistent statements to health care providers; (5) a “situational 16 component” to plaintiff’s mental health issues; (6) plaintiff’s activities of daily living; and (7) 17 plaintiff’s work activity. AR 727–31. 18 Plaintiff also raised issues with ALJ Robinson’s evaluation of her subjective testimony on 19 her first appeal in the Eastern District of Washington. See AR 468–76. That Court held that ALJ 20 Robinson’s findings of minimal treatment effort and inconsistent activities of daily living were 21 supported by substantial evidence. AR 473–76. With regard to minimal treatment efforts, the 22 Court first noted that “unexplained, or inadequately explained, failure to seek treatment or to 23 follow a prescribed course of treatment may be the basis for an adverse credibility finding unless
24 1 there is a showing of good reason for the failure.” AR 474 (citing Orn v. Astrue, 495 F.3d 625, 2 638 (9th Cir. 2007)). The Court noted examples of “good reasons,” including “where the 3 evidence suggests lack of mental health treatment is part of a claimant’s mental health 4 condition,” and when “the claimant’s failure to obtain treatment she cannot obtain for lack of
5 funds.” Id. at 474–75 (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996); and 6 Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)). Applying this to ALJ Robinson’s 7 reasoning, the Court stated: 8 The record reflects that some of [p]laintiff’s failure to engage in treatment was attributable to anxiety or a lack of health insurance. Plaintiff declined a 9 recommendation to group therapy due to her social anxiety. [AR] 343. Some instances of [p]laintiff’s failure to seek health care were attributed to her lack of 10 insurance. [AR] 339 (Plaintiff reported she could not get treatment because she did not have insurance); [AR] 277 (Plaintiff had no health insurance and no 11 medical coupons); [AR] 270–272 (Plaintiff began seeking referrals after obtaining Medicaid health insurance). However, [] ALJ [Robinson] accurately observed that 12 once [p]laintiff did begin treatment, she only attended monthly counseling despite being recommended weekly counseling. [AR] 27; see [AR]257 (weekly 13 counseling recommended on September 12, 2013); [AR] 382 (weekly sessions recommended on July 9, 2014); [AR] 368 (weekly depression group 14 recommended on March 18, 2015); [AR] 362 (weekly sessions recommended on May 1, 2015); [AR] 356 (weekly outpatient treatment recommended on June 1, 15 2015). Plaintiff also failed to complete counseling homework and to pick up her prescriptions. See [AR] 368, 373. It is the ALJ’s responsibility to resolve conflicts 16 in the evidence. Andrews[,] 53 F.3d [at] 1039[.] Where the ALJ’s interpretation of the record is reasonable, it should not be second-guessed. Rollins v. Massanari, 17 261 F.3d 853, 857 (9th Cir. 2001). Here, although some of [p]laintiff’s failure to seek treatment may have been attributable to anxiety or finances, [] ALJ 18 [Robinson] still reasonably concluded that [p]laintiff’s failure to engage in treatment undermine[d] her subjective symptom testimony. This finding was 19 supported by substantial evidence.
20 AR 476. However, given that “[o]f the many reasons offered by [] ALJ [Robinson] to discredit 21 [p]laintiff’s symptom testimony, only two”—plaintiff’s activities of daily living and minimal 22 efforts at treatment—“were minimally supported by evidence in the record[,]” the Court reversed 23 and remand for further proceedings. Id. 24 1 In the decision presently before the Court, the ALJ gave additional reasoning and support 2 for his finding. For example, the ALJ noted that plaintiff’s overall condition improved during 3 periods when she was compliant with medication and treatment regimens. The ALJ noted, for 4 example, that medication helped not only with plaintiff’s panic symptoms but more generally
5 with her anxiety and depression as well—in 2013, plaintiff showed improvement while taking 6 citalopram; by February 2014, plaintiff was no longer experiencing panic attacks. AR 729 (citing 7 AR 268, 341). Then, in 2016, plaintiff apparently felt better to the point that she ceased taking 8 medications for six months and only gradually experienced renewed depression symptoms that 9 compelled her to seek care. AR 729 (citing AR 666). This improvement ultimately culminated in 10 plaintiff performing substantial gainful activity and attending classes between 2018 and 2020. 11 AR 731. 12 Thus, after the District Court remand, the ALJ provided additional reasoning for rejecting 13 plaintiff’s symptom testimony that was supported by the record. Taken together, the ALJ’s 14 reasoning described herein was supported by substantial evidence. Thus, the Court need not
15 address the ALJ’s other reasons for discounting plaintiff’s subjective testimony, as any error 16 would be harmless. See Batson v. Commissioner of Social Security, 359 F.3d 1190, 1197 (9th 17 Cir. 2004) (concluding that even if record did not support one stated reason for discounting 18 claimant’s testimony, any error was harmless). 19 3. Whether the ALJ Properly Evaluated the Medical Opinion Evidence 20 Next, plaintiff assigns error to the ALJ’s evaluation of medical opinions from six 21 examining medical sources. Dkt. 17, at 12. The Court addresses each source in turn. 22 Because other medical source opinions contradicted these sources’ opinions regarding 23 marked limitations, the ALJ had to provide specific and legitimate reasons supported by
24 1 substantial evidence1 to reject their opinions in this regard. Lester v. Chater, 81 F.3d 821, 830– 2 31 (9th Cir. 1996) (citing Andrews, 53 F.3d at 1043). 3 a. Dr. Barnard 4 First, plaintiff contends that the ALJ erred by giving little weight to the September 2013
5 opinion from consultative examiner Philip Barnard, Ph.D. Dkt. 17, at 13.2 The prior remand 6 order from the Eastern District of Washington addressed this issue, holding that ALJ Robinson 7 permissibly discounted Dr. Barnard’s opinion—first, because Dr. Barnard inexplicably opined 8 that plaintiff’s impairments were moderate but would cause marked limitations; second, because 9 “Dr. Barnard was not familiar with [p]laintiff’s subsequent treatment notes showing 10 improvement in panic attacks,” which had been plaintiff’s “chief complaint” to Dr. Barnard. AR 11 480. 12 The law of the case doctrine generally prohibits a court from considering an issue that has 13 already been decided by that same court or a higher court in the same case. Stacy v. Colvin, 825 14 F.3d 563, 567 (9th Cir. 2016) (citations omitted). The law of the case doctrine “should not be
15 applied when the evidence on remand is substantially different, when the controlling law has 16 changed, or when applying the doctrine would be unjust.” Id. Here, although the prior ruling 17 issued from another district court, the decision concerned the same issue in the same case by a 18 court of equal rank. See Smith Intern., Inc. v. Hughes Tool Co., 759 F.2d 1572, 1576 (Fed. Cir. 19 1985) (federal appellate court applied law of the case doctrine in refusing to review prior 20 decision in the same case issued by appellate court of equal rank). The Court will not disturb the 21 1 The Administration has amended regulations for evaluating medical evidence, but the amended regulations apply 22 only to claims filed on or after March 27, 2017 and therefore are not relevant to this case. See 20 C.F.R. §§ 404.1527, 416.927 (applicable to claims filed before March 27, 2017); 20 C.F.R. §§ 404.1520c, 416.920c 23 (applicable to claims filed after March 27, 2017). 2 Reviewing psychologist Phyllis Sanchez, Ph.D. reviewed Dr. Barnard’s opinion and concurred with Dr. Barnard. 24 The ALJ discounted this opinion for the same reasons he discounted Dr. Barnard’s opinion. AR 733. 1 previous holding in the Eastern District indicating that the ALJ’s reasoning in giving Dr. 2 Barnard’s opinion little weight was supported by substantial evidence and free of legal error. 3 b. Dr. Cline 4 Next, plaintiff assigns error to the ALJ’s assessment of a July 2015 evaluation from
5 Rebekah Cline, Ph.D., who opined that plaintiff would have marked limitations in her ability to 6 communicate effectively and in completing a normal workday. AR 633. The ALJ gave the 7 opinion little weight, reasoning that Dr. Cline (1) did not review plaintiff’s records; (2) 8 diagnosed moderate depression and overall moderate symptoms without explaining the greater, 9 marked limitations, which were unsupported by the record; (3) opined that the duration of 10 disability could be as little as six months; and (4) opined to limitations that “appear[ed] 11 somewhat inconsistent with her mental status examination[.]” AR 733. The Court addresses the 12 ALJ’s second reason, which, if supported by substantial evidence, is a specific and legitimate 13 reason for rejecting Dr. Cline’s opinion. 14 The ALJ specifically found that Dr. Cline “diagnosed moderate depression and an overall
15 severity of moderate without explanation for the greater marked limitations.” AR 733. In 16 plaintiff’s first District Court appeal, as discussed supra Section 3.a., the Court held that a lack of 17 explanation as to how overall moderate limitations could result in marked impairments was a 18 valid reason to discount Dr. Barnard’s opinion, and this feature manifested in Dr. Cline’s opinion 19 as well. AR 479–80, 633–34. 20 In addition, the ALJ noted that these marked limitations were inconsistent with the 21 longitudinal record. AR 733. In support, the ALJ includes a string of citations covering over 50 22 pages of records, which are discussed in greater detail earlier in the opinion. Id.; see AR 728–29 23 (citing AR 233, 237, 244, 247, 255, 258, 268, 270, 273, 285, 287, 316, 321, 339–42, 348–51,
24 1 356, 358–59, 361, 364–65, 368, 373–75, 378, 380, 382, 614, 619, 623, 635, 637, 639–40, 645– 2 46, 648–49, 652–53, 659, 661, 663, 665–68, 671–72, 694, 699–700, 705, 709–10, 713–14, 997, 3 1000, 1003–7). The Court has reviewed these records and found that they contain objective 4 evidence clearly supporting the ALJ’s rejection of the marked limitations.
5 The ALJ took note of many examinations that showed plaintiff was alert and oriented, with 6 memory, concentration, focus, and attention span within normal limits. AR 728 (citing AR 635, 640, 7 649, 724, 728, 753, 786, 801, 804, 994, 1000, 1115). The ALJ also noted that examinations were also 8 indicative of some social acumen, with clinicians regularly observed good eye contact, cooperation, 9 openness, and engagement. AR 728 (citing AR 348–50,359, 361, 380, 634, 639, 648, 786, 994, 999, 1108). The ALJ did not ignore evidence of “up and down progress with [plaintiff]’s condition,” 10 noting, for example, periods of “increased depression symptoms,” weight loss, poor academic 11 performance, and examinations in which plaintiff displayed a depressed or flat affect. AR 727–28 12 (citing AR 270, 276, 348–51, 365, 368, 635, 666). However, the ALJ contrasted these instances with 13 plaintiff’s improvement during periods when she complied with treatment, as well as many instances 14 in which plaintiff’s mood and affect were normal. AR 729 (citing AR 268, 270, 653, 659, 804, 816). 15 The ALJ’s conclusion that overall medical evidence did not support marked limitations was sound. 16 Thus, while some of these findings could be read to indicate marked limitations, many 17 others may be read to support only moderate limitations in these areas. Where the evidence is 18 susceptible to more than one rational interpretation, the ALJ’s conclusion must be upheld. 19 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan, 169 F.3d at 599, 601)). 20 c. Dr. Wilkinson 21 Plaintiff, next, avers that the ALJ erred in giving little weight to the opinion of 22 consultative examiner Dr. Wilkinson, who evaluated plaintiff in June 2017. Dr. Wilkinson 23 assessed marked limitations in plaintiff’s ability to maintain appropriate behavior in a work 24 1 setting and in her ability to perform activities within a schedule, maintain regular attendance, and 2 be punctual within customary tolerances. AR 638. In rejecting Dr. Wilkinson’s opinion, the ALJ 3 reasoned that (1) marked limitations were inconsistent with the longitudinal record; (2) Dr. 4 Wilkinson reviewed no records; (3) Dr. Wilkinson found plaintiff’s depression and overall
5 severity of plaintiff’s condition to be only moderate; and (4) Dr. Wilkinson opined that plaintiff’s 6 impairments would last only 8 months with treatment. The ALJ’s fourth reason for rejecting the 7 opinion is dispositive. An impairment and any work-related limitations stemming from the 8 impairment must last or be expected to last for twelve months to be disabling under the 9 regulations. See 42 U.S.C. §423(d)(1)(A); Barnhart v. Walton, 535 U.S. 212, 217–22 (2002). 10 Given that Dr. Wilkinson indicated that plaintiff’s limitations would not last twelve consecutive 11 months, the duration requirement for giving little weight to the opinion. See Karpinski v. 12 Berryhill, 757 F. App’x 631, 633 (9th Cir. 2019) (ALJ “reasonably took into account [a 13 physician’s] opinion that [the plaintiff’s] limitations would last eight months, short of the twelve 14 months necessary to establish eligibility for disability benefits” in assigning little weight to the
15 physician’s opinion). 16 Plaintiff contends that this was not a valid reason to reject Dr. Wilkinson’s opinion, 17 because other evidence in the record supports that her depression and anxiety symptoms lasted 18 for at least twelve months. Dkt. 17, at 18. Dr. Wilkinson, however, specifically opined that 19 plaintiff’s impairment was not expected to last for twelve consecutive months, and plaintiff’s 20 alternative interpretation of the evidence provides no basis for finding error. See James H. v. 21 Saul, 2020 WL 6379309, at *8 (E. D. Wash. 2020) (“[The provider] specifically opined that [the 22 plaintiff’s] impairment was not expected to last for a ‘continuous period of not less than 12 23
24 1 months,’ thus, the durational requirement was not met. This was a specific and legitimate reason 2 for the ALJ to reject [the provider’s] opinions.”). 3 As the ALJ gave a specific and legitimate reason for rejecting Dr. Wilkinson’s opinion, 4 the Court need not evaluate the ALJ’s other reasons, as any error would be harmless. See Molina,
5 674 F.3d at 1115. 6 d. Dr. Kenderline 7 Dr. Kenderline assessed plaintiff as having moderate limitations in the functional areas of 8 completing a normal work day and work week; maintaining appropriate behavior and 9 communicating and performing effectively in a work setting; making simple work-related 10 decisions; and understanding, remembering, and persisting in tasks by following detailed 11 instructions. AR 647. The ALJ gave this opinion “some weight,” but found that “the record 12 suggests [plaintiff] at times leans more toward moderate than mild symptoms.” AR 732. Plaintiff 13 contends that the ALJ failed to include Dr. Kenderline’s “significant” limitations in his RFC 14 determination, specifically the “moderate” limitation in completing a normal work day and work
15 week. Dkt. 17, at 18. 16 An ALJ is not required to provide reasons in support of incorporating a medical opinion 17 into the residual functional capacity determination. See Turner v. Comm’r of Soc. Sec. Admin., 18 613 F.3d 1217, 1223 (9th Cir. 2010) (“the ALJ did not need to provide ‘clear and convincing 19 reasons’ for rejecting [a treating doctor’s] report because the ALJ did not reject any of [his] 20 conclusions”). However, “[w]here the ALJ accepts the medical assessment of moderate 21 limitations, those limitations must be accounted for in the RFC.” Wascovich v. Saul, 2019 WL 22 4572084, at *4 (E.D. Cal. 2019) (citing Betts v. Colvin, 531 F. App’x 799, 800 (9th Cir. 2013)). 23 Plaintiff avers that even a moderate limitation in the ability to complete a normal work day or
24 1 work week without interruption from psychologically based symptoms is preclusive of any 2 ability to work, but fails to cite any case law that supports this interpretation. Dkt. 17, at 18. 3 Instead, plaintiff points to Program Operations Manual System (“POMS”) DI 25020.010(B)(3), 4 which states only that this is one of several mental abilities required to perform unskilled work
5 and that the requirement of being able to complete a work day and work week is “usually strict.” 6 “POMS may be entitled to some deference ‘to the extent it provides a persuasive interpretation 7 of an ambiguous regulation, but it does not impose judicially enforceable duties on either this 8 court or the ALJ.’” Hartley v. Colvin, 672 F. Appx. 743, 743 (9th Cir. 2017) (quoting Carillo- 9 Years v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011)). Plaintiff fails to identify any ambiguity in 10 the applicable regulations. Further, plaintiff does not point to any specific conflict between the 11 RFC and Dr. Kenderline’s opined moderate limitations; nor has the Court found any such 12 conflict. The ALJ did not err in evaluating Dr. Kenderline’s opinion. 13 e. Drs. Czysz and Knapp 14 Finally, plaintiff assigns error to the ALJ’s evaluation of opinions from consultative
15 examiners James Czysz, Psy.D., and Geordie Knapp, Psy.D. Dkt. 17, at 19–20. Dr. Czysz 16 evaluated plaintiff in 2019 and opined that plaintiff would have marked limitations in 17 maintaining attendance, being punctual, and completing a normal work day or work week. AR 18 993. Dr. Knapp evaluated plaintiff in 2020 and found that plaintiff would have marked 19 limitations in her ability to maintain appropriate behavior, ask simple questions or request 20 assistance, adapt to changes in a routine work setting, and be punctual, in addition to severe 21 limitations in her ability to communicate and perform effectively and complete a normal work 22 day or week. AR 998. The ALJ evaluated the opinions in conjunction and gave them little 23 weight, finding that they were (1) inconsistent with the longitudinal treatment notes, (2)
24 1 uninformed by a review of plaintiff’s records and overly reliant on her subjective reports; and (3) 2 inconsistent with the doctors’ own mental status examinations. 3 The Court, again, focuses on the ALJ’s contrast of marked and severe limitations with the 4 overall record. As discussed above, supra Section 3.b., the ALJ found that plaintiff’s symptoms
5 were generally manageable so long as plaintiff remained compliant with her medication regimen. 6 Furthermore, the ALJ cited records that showed plaintiff was engaged in SGA during the period 7 in which both of these evaluations took place, which would clearly undermine a finding of severe 8 limitations in plaintiff’s ability to complete a normal work day and work week and to 9 communicate and perform effectively in a work setting. AR 731, 733. While the ALJ did not 10 explicitly state this conclusion, the Court is not “deprived of [its] faculties for drawing specific 11 and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th 12 Cir. 1989). Because the ALJ’s findings were supported by substantial evidence, plaintiff has not 13 shown harmful error. 14 CONCLUSION
15 Based on these reasons and the relevant record, the Court ORDERS that this matter be 16 AFFIRMED. 17 JUDGMENT shall be for the defendant and the case shall be closed. 18 Dated this 8th day of December, 2022. A 19
20 J. Richard Creatura Chief United States Magistrate Judge 21
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