1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 TASHA B., Case No. 3:19-cv-05109 7 Plaintiff, v. ORDER AFFIRMING 8 DEFENDANT’S DECISION TO COMMISSIONER OF SOCIAL DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of Defendant’s denial of her 13 application for supplemental security income benefits. 14 The parties have consented to have this matter heard by the undersigned 15 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 16 MJR 13. For the reasons set forth below, the Court affirms Defendant’s decision to deny 17 benefits. 18 I. ISSUES FOR REVEW 19 1. Did the ALJ properly evaluate the opinion evidence? 2. Did the ALJ err in evaluating Plaintiff’s symptom testimony? 20 3. Did the ALJ err in evaluating lay witness testimony?
21 II. BACKGROUND 22 On June 6, 2012, Plaintiff filed an application for supplemental security income 23 benefits, alleging that she became disabled the same day. AR 26, 166-71. Plaintiff’s 24 application was denied upon initial administrative review and on reconsideration. AR 26, 1 99-102, 106-09. A hearing was held before Administrative Law Judge (“ALJ”) Robert 2 Kingsley on May 20, 2014. AR 44-71, 741-68. On August 26, 2014, ALJ Kingsley issued 3 a written decision finding that Plaintiff was not disabled. AR 23-38, 549-64. The Social 4 Security Appeals Council denied Plaintiff’s request for review on February 17, 2016. AR
5 1-7, 570-76. 6 On May 23, 2016, Plaintiff filed a new application for supplemental security 7 income benefits. AR 727-32. Plaintiff’s application was denied upon initial administrative 8 review and on reconsideration. AR 630-38, 642-52. 9 On April 22, 2016, Plaintiff filed a complaint in this Court seeking judicial review 10 of ALJ Kingsley’s written decision. AR 602. On December 12, 2016, this Court 11 remanded the case to evaluate the unconsidered August 2013 opinion of examining 12 psychologist Dan Neims, Psy.D., and to re-evaluate lay witness testimony from 13 Plaintiff’s mother. AR 605-15. On February 21, 2017, the Appeals Council vacated the 14 ALJ’s August 26, 2014 decision and issued an order remanding the case for further
15 administrative proceedings consistent with the Court’s order. AR 616-18. The Appeals 16 Council found that Plaintiff’s subsequent SSI claim was duplicative, and ordered the ALJ 17 to consolidate the two claims. AR 618. 18 On June 14, 2018, ALJ David Johnson held a new hearing. AR 521-48. On 19 October 15, 2018, ALJ Johnson issued a written decision finding that Plaintiff was not 20 disabled. AR 486-511. ALJ Johnson found that Plaintiff had Major depressive disorder, 21 attention-deficit hyperactivity disorder, anxiety disorder, personality disorder, and sleep 22 disorder as severe impairments. AR 491. The ALJ found that plaintiff “had a disability 23
24 1 conviction and exaggerated her symptoms”, and also had “secondary gain motivation”. 2 AR 505, 507-08. 3 On February 21, 2019, Plaintiff filed a complaint in this Court seeking judicial 4 review of the ALJ’s written decision. Dkt. 5. Plaintiff asks this Court to reverse the ALJ’s
5 decision and to remand this case for an award of benefits. Dkt. 13, p. 19. 6 III. STANDARD OF REVIEW 7 The Court will uphold an ALJ’s decision unless: (1) the decision is based on legal 8 error, or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 9 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a 10 reasonable mind might accept as adequate to support a conclusion.’” Biestek v. 11 Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 12 U.S. 197, 229 (1938)). This requires “more than a mere scintilla,” of evidence. Id. 13 The Court must consider the administrative record as a whole. Garrison v. 14 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). It must weigh both the evidence that
15 supports, and evidence that does not support, the ALJ’s conclusion. Id. The Court 16 considers in its review only the reasons the ALJ identified and may not affirm for a 17 different reason. Garrison, 579 F.3d at 1010. Furthermore, “[l]ong-standing principles of 18 administrative law require us to review the ALJ’s decision based on the reasoning and 19 actual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 20 what the adjudicator may have been thinking.” Bray v. Comm’r of SSA, 554 F.3d 1219, 21 1225-26 (9th Cir. 2009) (citations omitted). 22 If the ALJ’s decision is based on a rational interpretation of conflicting evidence, 23 the Court will uphold the ALJ’s finding. Carmickle v. Comm’r of Soc. Sec. Admin., 533
24 1 F.3d 1155, 1165 (9th Cir. 2008). It is unnecessary for the ALJ to “discuss all evidence 2 presented”. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 3 1984) (citation omitted) (emphasis in original). The ALJ must only explain why 4 “significant probative evidence has been rejected.” Id.
5 IV. DISCUSSION
6 Based on the limitations stemming from Plaintiff’s severe impairments, the ALJ 7 assessed Plaintiff as being able to perform a full range of work at all exertional levels 8 with several work-related mental limitations. AR 493. Relying on vocational expert 9 (“VE”) testimony, the ALJ found that Plaintiff could perform other medium and light 10 unskilled jobs at step five of the sequential evaluation; therefore the ALJ determined at 11 step five that Plaintiff was not disabled. AR 510-11, 542-43. 12 A. Whether the ALJ erred in evaluating the medical opinion evidence 13 Plaintiff alleges that the ALJ erred in evaluating medical opinion evidence from 14 examining psychologists Dan Neims, Psy.D., Alysa A. Ruddell, Ph.D., David Widlan, 15 Ph.D., Enid Griffin, Psy.D., Brett Valette, Ph.D. and non-examining state agency 16 consultants Michael Brown, Ph.D., Alex Fisher, Ph.D., Christmas Covell, Ph.D., and 17 Beth Fitterer, Ph.D. Dkt. 13, pp. 3-7, 11-13. 18 In assessing an acceptable medical source – such as a medical doctor – the ALJ 19 must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of 20 either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 21 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 22 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is 23 contradicted, the opinion can be rejected “for specific and legitimate reasons that are
24 1 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing 2 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 3 499, 502 (9th Cir. 1983)). 4 1. Dr. Neims
5 Dr. Neims examined Plaintiff four times for the Washington State Department of 6 Social and Health Services (“DSHS”). 7 Dr. Neims first examined Plaintiff on September 7, 2011. AR 987-1003. Dr. 8 Neims’ evaluation consisted of a clinical interview, a mental status examination, a 9 review of the available records, and psychological testing. Based on this evaluation, Dr. 10 Neims opined that Plaintiff would have a range of mild work-related mental limitations 11 along with moderate limitations in communicating and performing effectively in a work 12 setting with public contact. AR 989. 13 Dr. Neims examined Plaintiff again on August 22, 2012. AR 293-305, 341-53. Dr. 14 Neims’ evaluation again consisted of a clinical interview, a mental status examination, a
15 review of the available records, and psychological testing. Based on this evaluation, Dr. 16 Neims opined that Plaintiff would have a range of moderate work-related mental 17 limitations along with marked limitations in communicating and performing effectively in 18 a work setting. AR 297, 345. 19 Dr. Neims examined Plaintiff a third time on August 22, 2013. AR 354-70. Dr. 20 Neims’ evaluation again consisted of a clinical interview, a mental status examination, a 21 review of the available records, and psychological testing. Based on this evaluation, Dr. 22 Neims assessed work-related mental limitations identical to those contained in his 2012 23 opinion. AR 356.
24 1 And, Dr. Neims examined Plaintiff on October 29, 2014. AR 1004-20. Dr. Neims’ 2 evaluation consisted of a clinical interview, a mental status examination, a review of the 3 available records, and psychological testing. Based on this evaluation, Dr. Neims 4 opined that Plaintiff would have a range of moderate work-related mental limitations. AR
5 1006. 6 The ALJ assigned “some weight” to Dr. Neims’ opinion that Plaintiff would have a 7 range of mild and moderate mental limitations. AR 508. However, the ALJ gave “little 8 weight” to Dr. Neims’ 2012 and 2013 opinions that Plaintiff would have marked 9 limitations in the ability to communicate and perform effectively in the workplace, 10 reasoning that: (1) Dr. Neims noted that Plaintiff demonstrated a pattern of “negative 11 impression management and mounting disability conviction”; (2) while Dr. Neims had 12 some longitudinal perspective from his prior examinations, he did not have the benefit of 13 reviewing other examinations and treatment notes; and (3) Dr. Neims observed 14 inconsistencies during the evaluations, including his August 2013 observation that
15 Plaintiff initially presented with a bright affect and no anxiety. AR 508. 16 With respect to the ALJ’s first reason, a finding that a claimant exaggerated his or 17 her symptoms can serve as a specific and legitimate reason for discounting limitations 18 assessed by a physician, but only when the physician’s opinion contains an affirmative 19 finding of malingering and the record otherwise supports a conclusion that a claimant is 20 prone to symptom exaggeration. See Cha Yang v. Comm'r of Soc. Sec., 488 F. App'x 21 203, 205 (9th Cir. 2012) (finding that the record did not contain clear evidence of 22 malingering when the physician merely noted in his record to “R/O [rule out] malingering 23
24 1 [,]”, failed to follow up on his suspicions and none of the claimant’s other treating or 2 examining doctors suggested that the claimant might be malingering). 3 In his 2012 opinion, Dr. Neims observed that Plaintiff demonstrated prominent 4 anxiety and avoidance behavior which appeared “predominately characterologically
5 driven.” AR 296. Dr. Neims stated that Plaintiff exhibited patterns of avoidance behavior, 6 and that there were “marked” and “quite significant” inconsistencies between Plaintiff’s 7 self-reported symptoms and the symptoms she reported during Dr. Neims’ 2011 8 evaluation; specifically, Plaintiff’s report that she was now suffering from post-traumatic 9 stress and hallucinations. AR 296, 298-99. Dr. Neims opined that Plaintiff exhibited 10 patterns of “negative impression management” and “mounting disability conviction.” AR 11 298. 12 In his 2013 opinion, Dr. Neims again noted that Plaintiff exhibited patterns of 13 avoidance and depersonalization that appeared “characterologically based.” AR 355. 14 Dr. Neims again noted that Plaintiff endorsed traumatic stress symptoms indicating she
15 was diagnosed with this condition in counseling intake, but that Plaintiff adamantly 16 denied suffering from these symptoms at previous meetings. AR 355. Dr. Neims again 17 observed that Plaintiff exhibited patterns of negative impression management and 18 mounting disability conviction. AR 357. 19 In his 2014 opinion, Dr. Neims observed that Plaintiff continued to exhibit 20 mounting disability conviction against the backdrop of moderate mental health 21 symptoms. AR 1007. 22 Here, the ALJ reasonably inferred that Dr. Neims statements that Plaintiff 23 exhibited patterns of “negative impression management” constituted an affirmative
24 1 finding of malingering, and did not err in discounting the marked limitations contained in 2 Dr. Neims’ opinions on this basis. See Sample v. Schweiker, 694 F.2d 639, 642 (9th 3 Cir.1982) (An ALJ is entitled to draw inferences logically flowing from the evidence). 4 Dr. Neims’ statements are consistent with the 2017 opinion of examining
5 psychologist Dr. Valette, who stated that Plaintiff was vague and evasive when 6 explaining why she could not work, and that when a patient demonstrates anger, 7 irritability, and excessive vagueness when being asked simple questions, this is typically 8 due to symptom exaggeration. AR 985-96; Cha Yang v. Comm'r of Soc. Sec., 488 F. 9 App'x 203, 205 (9th Cir. 2012). Dr. Neims’ statements are also consistent with the 10 observations of examining psychologist Dr. Griffin, who stated that there was some 11 question over Plaintiff’s level of motivation, and her examination results “should be 12 viewed with caution.” AR 310. 13 Although the ALJ provided other specific, legitimate reasons to discount Dr. 14 Neims’ opinions, the Court need not assess whether these reasons were proper, as any
15 error would be harmless. See Presley-Carrillo v. Berryhill, 692 Fed. Appx. 941, 944-45 16 (9th Cir. 2017) (citing Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 17 (9th Cir. 2008)) (although an ALJ erred on one reason he gave to discount a medical 18 opinion, “this error was harmless because the ALJ gave a reason supported by the 19 record” to discount the opinion). 20 2. Dr. Ruddell 21 Dr. Ruddell examined Plaintiff on June 13, 2016 for DSHS. AR 1021-25. Dr. 22 Ruddell’s evaluation consisted of a clinical interview, a mental status examination, and a 23 patient self-evaluation. Based on this evaluation, Dr. Ruddell opined that Plaintiff would
24 1 have a range of moderate and marked work-related mental limitations, along with 2 severe limitations in learning new tasks. AR 1023. 3 The ALJ assigned “little weight” to Dr. Ruddell’s opinion, reasoning that: (1) 4 Plaintiff’s presentation during Dr. Ruddell’s evaluation was inconsistent with
5 contemporaneous mental status examinations; and (2) the limitations contained in Dr. 6 Ruddell’s assessment were inconsistent with Plaintiff’s self-reported activities of daily 7 living. AR 508. 8 With respect to the ALJ’s first reason, inconsistencies with the medical evidence 9 may serve as specific, legitimate reasons for discounting limitations assessed by a 10 physician. See 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a medical 11 opinion is with the record as a whole, the more weight [the Social Security 12 Administration] will give to that medical opinion.”); Ghanim v. Colvin, 763 F.3d 1154, 13 1161 (9th Cir. 2014) (An ALJ may give less weight to medical opinions that conflict with 14 treatment notes).
15 During Dr. Ruddell’s examination, Plaintiff exhibited signs of paranoia, as well as 16 impaired memory, abstract thinking, insight, and judgment. AR 1024. 17 The ALJ found that Plaintiff’s presentation was inconsistent with mental status 18 examinations performed around the same time, which revealed normal mood, affect, 19 insight and judgment, and no mood swings, paranoia or anxiousness. AR 508, 917, 20 920, 924. 21 These inconsistencies, by themselves, may only reflect the waxing and waning of 22 symptoms common in mental health impairments. See Garrison v. Colvin, 759 F.3d 23 995, 1017-18 (2014) (with respect to mental health impairments, cycles of improvement
24 1 and debilitating symptoms “are a common occurrence, and in such circumstances it is 2 error for an ALJ to pick out a few isolated instances of improvement over a period of 3 months or years and to treat them as a basis for concluding a claimant is capable of 4 working.”).
5 Yet the context of the entire record supports the ALJ’s conclusion that these 6 inconsistencies are part of a broader pattern of inconsistent statements and symptom 7 magnification; the evidence throughout the longitudinal record and the opinions of Dr. 8 Neims, Dr. Brett, and Dr. Griffin are substantial evidence supporting the ALJ’s decision 9 on this point. See supra Section A.I; see infra Section B. As such, the inconsistencies 10 cited by the ALJ are a specific and legitimate reason for discounting the limitations 11 assessed by Dr. Ruddell. 12 3. Dr. Widlan 13 Dr. Widlan examined Plaintiff on January 23, 2009. AR 251-55. The ALJ 14 assigned “little weight” to Dr. Widlan’s opinion, reasoning that it was rendered several
15 years prior to Plaintiff’s alleged disability onset date. AR 509. 16 A finding that a medical opinion is too distant in time from the period at issue to 17 be useful in making a disability determination can serve as a specific and legitimate 18 reason for discounting that opinion. Johnson v. Astrue, 303 F. App'x 543, 545 (9th Cir. 19 2008) (finding that an ALJ properly rejected medical opinions that were remote in time, 20 and instead relying more heavily on more recent opinions in denying Social Security 21 disability benefits); see also Flores v. Colvin, 546 Fed. Appx. 638 (finding that the ALJ 22 properly rejected part of a medical opinion because it was ten years old and instead 23 relying upon two more recent opinions).
24 1 Here, the earliest Plaintiff could be found disabled is the date she applied for SSI, 2 either June 6, 2012 or May 23, 2016, depending of which of the two consolidated 3 applications is used. AR 166-71, 727-32; 20 C.F.R. §§ 416.335, 416.501. Dr. Widlan’s 4 opinion was issued either 3 or 7 years before Plaintiff could conceivably have been
5 found disabled by the Social Security Administration, and significantly predates the 6 period at issue. As such, the ALJ has provided a specific and legitimate reason for 7 discounting Dr. Widlan’s opinion. 8 4. Dr. Griffin 9 Dr. Griffin examined Plaintiff on August 27, 2012. AR 307-10. Dr. Griffin’s 10 evaluation consisted of a clinical interview and a mental status examination. Based on 11 this evaluation, Dr. Griffin opined that Plaintiff had no memory issues that would prevent 12 her from performing simple tasks, and that once Plaintiff began psychiatric treatment, 13 she would be able to engage in job training and/or part-time work, and that within 12 14 months Plaintiff would be able to resume full time work. AR 310.
15 The ALJ assigned “significant weight” to Dr. Griffin’s opinion, reasoning that Dr. 16 Griffin was familiar with Social Security regulations, was able to examine Plaintiff in 17 person, and that Dr. Griffin’s opinion that Plaintiff could perform simple tasks was 18 consistent with the medical record and Plaintiff’s self-reported activities of daily living. 19 AR 506. 20 Plaintiff contends that Dr. Griffin’s opinion is consistent with the opinions of Dr. 21 Neims and Dr. Ruddell. Dkt. 13, pp. 11-12. Even if the Court assumes, for purposes of 22 argument, that Plaintiff is correct on this point, Dr. Griffin’s opinion that her examination 23 results “should be viewed with caution” due to Plaintiff’s lack of motivation is also
24 1 consistent with the reservations that Dr. Neims and Dr. Brett expressed about Plaintiff’s 2 performance during examinations. AR 298, 310, 357, 985-96, 1007. The ALJ’s 3 determination is supported by substantial evidence. 4 5. Dr. Valette
5 Plaintiff contends that Dr. Valette’s opinion is consistent with the opinions of Dr. 6 Neims and Dr. Ruddell. Dkt. 13, pp. 11-12. 7 Dr. Vallete examined Plaintiff on April 9, 2017. AR 981-86. Dr. Vallete’s 8 examination consisted of a records review, a clinical interview, and a mental status 9 examination. Based on this evaluation, Dr. Vallete opined that Plaintiff could 10 understand, remember, and carry out simple one and two step instructions, as well as 11 an extensive variety of complex instructions. AR 986. Dr. Valette further opined that 12 Plaintiff would be able to interact appropriately with supervisors, co-workers, and the 13 public, and would be able to maintain sufficient concentration to perform simple and 14 complex tasks. Id.
15 The ALJ assigned “significant weight” to Dr. Valette’s opinion, reasoning that it 16 was consistent with Plaintiff’s self-reported daily activities, and also assigned significant 17 weight to Dr. Valette’s conclusion that Plaintiff’s vague and evasive behavior was typical 18 of individuals engaging in symptom exaggeration. AR 507. 19 First, Dr. Valette, unlike Dr. Neims and Dr. Ruddell, assessed Plaintiff as having 20 no work-related functional limitations. AR 986, compare with AR 297, 345, 1006, 1023. 21 Second, Dr. Valette’s conclusion that Plaintiff was likely engaging in symptom 22 exaggeration is consistent with the opinions of Dr. Ruddell and Dr. Griffin. The ALJ’s 23 assessment is supported by substantial evidence.
24 1 6. Dr. Covell and Dr. Fitterer 2 Non-examining state agency psychologists Dr. Covell and Dr. Fitterer offered 3 opinions concerning Plaintiff’s work-related functional limitations in late 2016. AR 583- 4 85, 595-97. Dr. Covell opined that based on her review of the record, Plaintiff had the
5 ability to understand and recall very short and simple instructions. AR 583. Dr. Covell 6 further opined that Plaintiff had the ability to perform simple, routine tasks and some 7 detailed/complex tasks, might have some lapses in concentration, persistence, and 8 pace, but could persist at simple, routine tasks for a workday/week. AR 584. Dr. Covell 9 further opined that Plaintiff should have limited, superficial contact with the general 10 public and co-workers. AR 584-85. Dr. Fitterer assessed Plaintiff as having identical 11 limitations. AR 595-97. 12 The ALJ did not evaluate the opinions of Dr. Covell and Dr. Fitterer. The Ninth 13 Circuit has held that failing to discuss a medical opinion generally does not constitute 14 harmless error. Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (“the ALJ’s disregard
15 for Dr. Johnson’s medical opinion was not harmless error and Dr. Johnson’s opinion 16 should have been considered”) (citing 20 C.F.R. § 404.1527(c) (noting that this 17 regulation requires the evaluation of “every medical opinion” received)). 18 However, reasons given by an ALJ for rejecting an opinion of an earlier physician 19 may apply with equal force to an opinion issued later by a different physician. See Hoyt 20 v. Colvin, 607 F. App'x 692, 693 (9th Cir. 2015) (holding that new evidence did not 21 require remand because the reasons the ALJ gave for rejecting the opinions of 22 claimant’s treating doctor applied with equal force to another doctor’s newly submitted 23 opinions), citing Molina v. Astrue, 674 F.3d 1104, 1122 (explaining that, even when the
24 1 ALJ fails to comment upon certain testimony, such failure is harmless when the ALJ's 2 reasons for rejecting other testimony “apply with equal force” to the ignored testimony). 3 In this case, the ALJ assigned “significant weight” to the 2012 opinions of non- 4 examining state agency psychologists Dr. Brown and Dr. Alex Fisher, who assessed
5 Plaintiff as being able to understand simple instructions, perform simple, routine tasks, 6 and needing to have limited contact with the public. AR 78-79, 93-94, 506. 7 The ALJ reasoned that Dr. Brown and Dr. Fisher were familiar with Social 8 Security regulations, and had the opportunity to examine the medical record in forming 9 their opinions. AR 506. However, the ALJ reasoned that Dr. Brown and Dr. Fisher did 10 not have an opportunity to review additional evidence which supported additional 11 restrictions to work that does not require interaction with the general public and that 12 does not require more than occasional adaptation to changes in the work setting or 13 work processes. Id. 14 First, the limitations assessed by Dr. Brown and Dr. Fisher in 2012 are similar to
15 the limitations assessed by Dr. Dr. Covell and Dr. Fitterer in 2016. 16 Second, it is unclear how the ALJ’s decision would be different even if the 17 limitations contained in the opinions of Dr. Covell and Dr. Fitterer were credited as true. 18 Here, when assessing the RFC, the ALJ found that Plaintiff could perform simple, 19 routine tasks that did not require interaction with the general public and that did not 20 require more than occasional adaptation to changes in the work setting or work 21 processes; these limitations are broadly consistent with those assessed by Dr. Covell 22 and Dr. Fitterer, and with respect to the limitations concerning adaptation, are more 23 restrictive then the opinions of the state agency consultants. AR 493.
24 1 Accordingly, while the ALJ erred in not evaluating the opinions of Dr. Covell and 2 Dr. Fitterer, another remand would be unlikely to clarify the record further. Molina v. 3 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (noting that harmless error principles apply 4 in the Social Security context).
5 B. Whether the ALJ erred in evaluating Plaintiff’s testimony 6 Plaintiff contends that the ALJ did not provide clear and convincing reasons for 7 discounting her symptom testimony. Dkt. 13, pp. 13-17. 8 In weighing a Plaintiff’s testimony, an ALJ must use a two-step process. Trevizo 9 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether 10 there is objective medical evidence of an underlying impairment that could reasonably 11 be expected to produce some degree of the alleged symptoms. Ghanim v. Colvin, 763 12 F.3d 1154, 1163 (9th Cir. 2014). If the first step is satisfied, and provided there is no 13 evidence of malingering, the second step allows the ALJ to reject the claimant’s 14 testimony of the severity of symptoms if the ALJ can provide specific findings and clear
15 and convincing reasons for rejecting the claimant’s testimony. Id. See Verduzco v. 16 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). 17 In discounting Plaintiff’s symptom testimony, the ALJ reasoned that: (1) the 18 record contains evidence of symptom exaggeration and disability conviction that 19 undermines her credibility; (2) Plaintiff’s allegations were inconsistent with the medical 20 record; (3) Plaintiff’s allegations were inconsistent with her self-reported activities of 21 daily living; (4) many of Plaintiff’s mental health symptoms occurred in the context of 22 situational stressors; and (5) Plaintiff’s mood improved with counseling and medication. 23 AR 504-06.
24 1 With respect to the ALJ’s first reason, affirmative evidence of symptom 2 magnification, or malingering, relieves an ALJ from the burden of providing specific, 3 clear, and convincing reasons for discounting a claimant’s testimony. Greger v. 4 Barnhart, 464 F.3d 968, 972 (9th Cir.2006); Morgan v. Comm'r of Soc. Sec. Admin., 169
5 F.3d 595, 599 (9th Cir.1999). “The essential feature of malingering is the intentional 6 production of false or grossly exaggerated physical or psychological symptoms, 7 motivated by external incentives such as . . . obtaining financial compensation . . . or 8 obtaining drugs.” American Psychiatric Association, Diagnostic and Statistical Manual 9 of Mental Disorders 726 (5th ed. 2013) (“DSM V”). 10 Here, the ALJ found that Plaintiff had a disability conviction and exaggerated her 11 symptoms, which was supported by opinions of Dr. Neims, Dr. Griffin, and Dr. Valette. 12 AR 505. As discussed above, the ALJ did not err in finding that the statements in these 13 opinions indicated that Plaintiff exaggerated her symptoms. See supra Section A.I. 14 The ALJ therefore found that Plaintiff was malingering and the “clear and
15 convincing reasons” standard does not apply. Baghoomian v. Astrue, 319 Fed. App’x 16 563, 565 (9th Cir. 2009). To discredit a claimant's testimony when a medical impairment 17 has been established, but the record contains affirmative evidence of malingering, the 18 ALJ must provide “specific, cogent reasons” for discounting a claimant’s testimony. See 19 Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). 20 Here, the ALJ relied on the inconsistencies between Plaintiff’s allegations and the 21 medical record; the ALJ has provided specific and cogent reasons for discounting 22 Plaintiff’s testimony. See 20 C.F.R. § 416.927(c)(4); Ghanim v. Colvin, 763 F.3d 1154, 23 1161 (9th Cir. 2014).
24 1 The ALJ found that Plaintiff’s performance during consultative examinations, 2 which was itself called into question by several examining psychologists, was also 3 inconsistent with the longitudinal record; Plaintiff routinely demonstrated intact memory, 4 concentration, insight, and judgment and typically presented as alert and fully oriented
5 during mental status examinations. AR 408, 414, 433, 438, 444, 450, 455, 472, 478, 6 504,1065, 1076, 1090, 1107, 1134, 1157, 1174. 7 The ALJ also found that Plaintiff’s testimony that she suffered from hallucinations 8 was inconsistent with the treatment record; Plaintiff did not report hallucinations, and Dr. 9 Neims’ stated that Plaintiff made inconsistent statements about whether she had 10 experienced visual and auditory hallucinations. AR 296, 300, 309, 344, 473, 479, 505, 11 898, 955, 957, 991, 1021-25, 1225, 1228, 1231, 1234, 1237, 1240, 1242, 1245, 1248, 12 1251, 1254, 1257, 1259, 1261, 1263, 1269, 1273. 13 The ALJ also noted that Plaintiff made inconsistent statements concerning her 14 drug use. Plaintiff testified at the hearing that she had not used drugs since age 16 or
15 17, but stated to Dr. Ruddell in 2016 that she had last used heroin, cocaine, and 16 methamphetamine in 2006. AR 505, 532-33 1022. 17 The ALJ’s finding that the record contains evidence of malingering is supported 18 by substantial evidence, and in citing the inconsistencies between Plaintiff’s allegations 19 and the record, the ALJ has provided specific and cogent reasons for discounting her 20 testimony. 21 C. Whether the ALJ erred in evaluating lay witness statements 22 Plaintiff contends that the ALJ erred in evaluating lay witness statements from 23 her mother. Dkt. 13, pp. 17-18.
24 1 When evaluating opinions from non-acceptable medical sources such as a 2 therapist or a family member, an ALJ may expressly disregard such lay testimony if the 3 ALJ provides “reasons germane to each witness for doing so.” Turner v. Commissioner 4 of Social Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (citing Lewis v. Apfel, 236 F.3d 503,
5 511 (9th Cir. 2001); 20 C.F.R. § 416.902. 6 Here, the ALJ found the 2013 statements made by Plaintiff’s mother, in which 7 Plaintiff’s mother reported that Plaintiff suffered from hallucinations and other serious 8 mental health symptoms, reflected Plaintiff’s self-reports, and were inconsistent with the 9 record for the same reasons as Plaintiff’s own statements were inconsistent with the 10 objective evidence. AR 222-24, 509; Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 11 685, 694 (9th Cir. 2009) (an ALJ may reject lay witness testimony for the same reasons 12 she rejected a claimant’s subjective complaints if the lay witness statements are similar 13 to such complaints). The statements from Plaintiff’s mother are similar to Plaintiff’s own 14 allegations, and the ALJ has provided a germane reason for discounting these
15 statements. 16 CONCLUSION 17 Based on the foregoing discussion, the Court finds the ALJ properly determined 18 plaintiff to be not disabled. Defendant’s decision to deny benefits therefore is 19 AFFIRMED. 20 Dated this 30th day of June, 2020.
21 A
22 Theresa L. Fricke United States Magistrate Judge 23