Bricker v. Saul

• Court: District Court, E.D. Washington
• Decided: September 30, 2022
• Docket: 4:21-cv-05023
• Status: Unknown

Opinion

1 EASTERU N. S D. I F SDI TLI RSE ITD CR TIIN C O TT F H C WEO AU SR HT I NGTON 2 Sep 30, 2022 3 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 PATRICIA B., No. 4:21-CV-05023-JAG

7 Plaintiff, 8 v. ORDER GRANTING 9 DEFENDANT’S MOTION 10 FOR SUMMARY JUDGMENT KILOLO KIJAKAZI, 11 ACTING COMMISSIONER OF SOCIAL SECURITY,1 12

13 14 Defendant.

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 16, 18. Attorney Chad Hatfield represents Patricia B. (Plaintiff); Special 18 Assistant United States Attorney Joseph J. Langkamer represents the 19 Commissioner of Social Security (Defendant). The parties have consented to 20 proceed before a magistrate judge. ECF No. 5. After reviewing the administrative 21 record and the briefs filed by the parties, the Court GRANTS Defendant’s Motion 22 for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 23 24

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 25 26 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 27 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 28 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 1 I. JURISDICTION 2 Plaintiff protectively filed an application for Disability Insurance Benefits on 3 August 14, 2018 alleging disability since August 20, 2017, due to impairments 4 including traumatic brain injury (TBI), migraines, speech problems, 5 mobility/stability issues, vision problem, diabetes, depression, and anxiety. Tr. 77, 6 85, 210-218. The applications were denied initially and upon reconsideration. 7 Tr. 104-06, 110-16. Administrative Law Judge (ALJ) Jesse K. Shumway held a 8 hearing on July 14, 2020, Tr. 36-75, and issued an unfavorable decision on July 27, 9 2020. Tr. 12-31. Plaintiff requested review by the Appeals Council and the 10 Appeals Council denied the request for review on December 14, 2020. Tr. 1-6. The 11 ALJ’s July 2020 decision became the final decision of the Commissioner, which is 12 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 13 action for judicial review on February 6, 2021. ECF No. 1. 14 II. STATEMENT OF FACTS 15 The facts of the case are set forth in detail in the transcript of proceedings 16 and only briefly summarized here. Plaintiff was born in 1979 and was 37 years old 17 on the alleged disability onset date. Tr. 25. She has a ninth-grade education and a 18 GED. Tr. 810. She has prior work experience as a retail worker. Id. Plaintiff was 19 involved in a motor vehicle accident (MVA) when her car was rear-ended on 20 August 20, 2017; she was diagnosed with a concussion and neck pain. Tr. 474, 21 477-78, 480-81. 22 III. STANDARD OF REVIEW 23 The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 26 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 27 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 28 only if it is not supported by substantial evidence or if it is based on legal error. 1 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 2 defined as being more than a mere scintilla, but less than a preponderance. Id. at 3 1098. Put another way, substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson v. 5 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 8 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative 9 findings, or if conflicting evidence supports a finding of either disability or non- 10 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 11 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial 12 evidence will be set aside if the proper legal standards were not applied in 13 weighing the evidence and making the decision. Brawner v. Sec’y of Health and 14 Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 IV. SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); Bowen v. 18 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four the claimant 19 bears the burden of establishing a prima facie case of disability. Tackett, 180 F.3d 20 at 1098-1099. This burden is met once a claimant establishes that a physical or 21 mental impairment prevents the claimant from engaging in past relevant work. 20 22 C.F.R. § 404.1520(a)(4). If a claimant cannot perform past relevant work, the ALJ 23 proceeds to step five, and the burden shifts to the Commissioner to show (1) the 24 claimant can make an adjustment to other work; and (2) the claimant can perform 25 other work that exists in significant numbers in the national economy. Beltran v. 26 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot make an adjustment 27 to other work in the national economy, the claimant will be found disabled. 20 28 C.F.R. § 404.1520(a)(4)(v). 1 V. ADMINISTRATIVE FINDINGS 2 On July 27, 2020 the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. Tr. 12-31. 4 At step one, the ALJ found Plaintiff meets the insured status requirements of 5 the Social Security Act through March 31, 2023 and had not engaged in substantial 6 gainful activity since August 20, 2017 the alleged onset date. Tr. 17-18. 7 At step two, the ALJ determined Plaintiff had the following severe 8 impairments: anxiety, depression, psychogenic seizures. Tr. 18. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments. Tr. 18-20. 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 13 she could perform a full range of work at all exertional levels, but with the 14 following nonexertional limitations: 15 [S]he cannot climb ladders, ropes or scaffolds; she can have no exposure to hazards such as unprotected heights and moving 16 mechanical parts; she is limited to simple, routine tasks; and she 17 requires a routine, predictable work environment with no more than 18 occasional changes and no assembly-line pace or other fast-paced work. 19 Tr. 20. 20 At step four, the ALJ found Plaintiff could perform past relevant work as a 21 sales attendant. Tr. 24. 22 At step five, the ALJ found that, based on the testimony of the vocational 23 expert, and considering Plaintiff’s age, education, work experience, and RFC, 24 Plaintiff could also perform jobs that existed in significant numbers in the national 25 economy, including the jobs of facility storage rental clerk, floor waxer, and router. 26 Tr. 25. 27 28 1 The ALJ thus concluded Plaintiff was not under a disability within the 2 meaning of the Social Security Act at any time from the alleged onset date through 3 the date of the decision. Tr. 26. 4 VI. ISSUES 5 The question presented is whether substantial evidence supports the ALJ’s 6 decision denying benefits and, if so, whether that decision is based on proper legal 7 standards. Plaintiff raises the following issues for review (1) whether the ALJ 8 properly evaluated the medical opinion evidence; (2) whether the ALJ conducted a 9 proper step-two analysis; (3) whether the ALJ conducted a proper step-three 10 analysis; (4) whether the ALJ properly evaluated Plaintiff’s subjective complaints; 11 and (5) whether the ALJ conducted a proper step-five analysis. 12 VII. DISCUSSION 13 A. Medical Opinion Evidence. 14 Plaintiff alleges the ALJ erred by improperly disregarding the opinion of K. 15 Mansfield-Blair, PhD. ECF No. 16 at 10-12. 16 For claims filed on or after March 27, 2017, new regulations apply that 17 change the framework for how an ALJ must evaluate medical opinion evidence. 18 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 19 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The new 20 regulations provide the ALJ will no longer give any specific evidentiary weight to 21 medical opinions or prior administrative medical findings. Revisions to Rules, 2017 22 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a). Instead, 23 the ALJ must consider and evaluate the persuasiveness of all medical opinions or 24 prior administrative medical findings from medical sources. 20 C.F.R. § 25 404.1520c(a) and (b). The factors for evaluating the persuasiveness of medical 26 opinions and prior administrative findings include supportability, consistency, the 27 source’s relationship with the claimant, any specialization of the source, and other 28 factors (such as the source’s familiarity with other evidence in the file or an 1 understanding of Social Security’s disability program). 20 C.F.R. § 2 404.1520c(c)(1)-(5). Supportability and consistency are the most important factors, 3 and the ALJ must explain how both factors were considered. 20 C.F.R. § 4 404.1520c(b)(2). The ALJ may explain how he or she considered the other factors, 5 but is not required to do so, except in cases where two or more opinions are equally 6 well-supported and consistent with the record. Id. Supportability and consistency 7 are explained in the regulations: 8 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 9 support his or her medical opinion(s) or prior administrative medical 10 finding(s), the more persuasive the medical opinions or prior 11 administrative medical finding(s) will be.

12 (2) Consistency. The more consistent a medical opinion(s) or prior 13 administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more 14 persuasive the medical opinion(s) or prior administrative medical 15 finding(s) will be. 16 20 C.F.R. § 404.1520c(c)(1)-(2). 17 The Ninth Circuit recently addressed the issue of whether the new regulatory 18 framework displaces the longstanding case law requiring an ALJ to provide 19 specific and legitimate reasons to reject an examining provider’s opinion. Woods v. 20 Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The Court held that the new 21 regulations eliminate any hierarchy of medical opinions, and the specific and 22 legitimate standard no longer applies. Id. at 788-89, 792. The Court reasoned the 23 “relationship factors” remain relevant under the new regulations, and thus the ALJ 24 can still consider the length and purpose of the treatment relationship, the 25 frequency of examinations, the kinds and extent of examinations that the medical 26 source has performed or ordered from specialists, and whether the medical source 27 has examined the claimant or merely reviewed the claimant’s records. Id. at 790, 28 792. Even under the new regulations, an ALJ must provide an explanation 1 2 supported by substantial evidence when rejecting an examining or treating doctor’s 3 opinion as unsupported or inconsistent. Id. at 792. 4 On July 20, 2019 Plaintiff attended a mental consultative examination with 5 Dr. Mansfield-Blair. Tr. 800-805. Dr. Mansfield-Blair diagnosed Plaintiff with an 6 unspecified anxiety disorder. Tr. 804. She opined Plaintiff would have difficulty 7 performing simple and repetitive tasks, “given her performance on memory tasks 8 and despite an estimated level of intelligence in the Low Average range,” and that 9 she would also have difficulty performing detailed and complex tasks. Tr. 804. She 10 opined Plaintiff would not have difficulty accepting instructions from supervisors, 11 she would not have difficulty interacting with coworkers and the public; and that 12 she would not have difficulty performing work activities on a daily basis without 13 special or added instructions or added information, given her performance on 14 memory tasks and estimated level of intelligence in low average range. Tr. 804-05. 15 Dr. Mansfield-Blair further opined Plaintiff would have difficulty maintaining 16 regular attendance and completing a normal workday/work week without 17 interruptions from a psychiatric condition, given a current lack of mental health 18 treatment; and that she would have difficulty dealing with the usual stress 19 encountered in the workplace as she exhibited a minimally adequate level of 20 distress tolerance skill during the interview. Tr. 805. 21 The ALJ found Dr. Mansfield-Blair’s opinion unpersuasive because it was 22 23 “contradicted by the much more thorough neuropsychological evaluation” of Dr. 24 Wald Baker, PsyD, “in which . . . objective testing demonstrated little to no 25 cognitive impairment.” Tr. 24. The ALJ also found Plaintiff’s “presentation during 26 the psych CE is significantly exaggerated when compared to presentation in 27 treatment notes, which show little to no stuttering and normal cognitive 28 functioning.” Tr. 24. Plaintiff contends the ALJ erred because Dr. Mansfield- Blair’s opinion is consistent with the neuropsychological exam and also another 1 2 evaluation by Dr. Musnick, which the ALJ did not consider. ECF No. 16 at 10-11. 3 Defendant contends the ALJ reasonably evaluated Dr. Mansfield-Blair’s opinion 4 under the new regulations and reasonably found the opinion lacked thoroughness 5 and conflicted with other records. ECF No. 18 at 11-14. 6 The Court finds the ALJ did not err. First, the ALJ found Dr. Mansfield- 7 Blair’s opinion was contradicted by the neuropsychological evaluation of Dr. Wald 8 Baker, PsyD. Tr. 24. The more relevant objective evidence and supporting 9 explanations that support a medical opinion and the more consistent an opinion is 10 with the evidence from other sources, the more persuasive the opinion is. 20 C.F.R. 11 § 404.1520c(c)(1)-(2). On July 23, 2019 and August 11, 2019, Dr. Wald Baker 12 performed a neuropsychological evaluation to assess Plaintiff’s cognitive and 13 emotional functioning. Tr. 808-11, 818-26. The ALJ reasonably found that Dr. 14 Wald Baker’s evaluation was more thorough than Dr. Mansfield-Blair’s exam, as 15 the neuropsychologist performed formal testing, which revealed a person “average 16 estimated premorbid and current intellectual functioning whose 17 neuropsychological profile is generally within normal limits.” Tr. 821. Dr. Wald 18 Baker explained neuropsychological testing showed “no frank areas of cognitive 19 impairment,” and opined “overall this patient’s current neuropsychological profile 20 demonstrates no evidence of a lateralizing process nor is it strongly suggestive of a 21 patten seen in an underlying neurological condition”; she noted “[r]ather, her 22 23 cognitive profile is generally intact and notable for mild, variable inefficiencies in 24 basic attention, encoding, and problem solving.” Tr. 821-22. She also noted 25 Plaintiff was “also reporting significant psychological distress (e.g., moderate 26 depression and mild anxiety)” and that “as such, it is likely that ongoing 27 suboptimally treated psychological symptoms, current stressors, and poor coping 28 skills are contributing to her current cognitive complaints and impacting her 1 2 functional abilities.” Tr. 822. 3 The ALJ reasonably found that Dr. Wald Baker’s evaluation was more 4 persuasive than Dr. Mansfield-Blair’s consultative exam because Dr. Wald Baker’s 5 findings were supported by her clinical interview along with formal 6 neuropsychological testing; Dr. Wald Baker also performed validity testing and 7 noted that “[o]bjective measures of performance validity were within normal 8 limits. As such, results are considered an accurate representation of the patients 9 current neurocognitive and emotional functioning.” Tr. 821. While Dr. Mansfield- 10 Blair based her opinion partially on Plaintiff’s presentation, noting her speech was 11 slurred and she stuttered at times,” Dr. Mansfield-Blair did not indicate she 12 performed any validity testing, as Dr. Wald Baker did, and Dr. Wald Baker did not 13 indicate any such symptoms at her evaluation; she met with Plaintiff for an intake 14 interview three days after Dr. Mansfield-Blair’s consultative examination, and 15 conducted formal neurological testing a few weeks later. See Tr. 800-05, 808-12, 16 818-25. 17 The ALJ also concluded Plaintiff’s presentation during Dr. Mansfield- 18 Blair’s 2019 consultative evaluation was “significantly exaggerated when 19 compared to presentation in treatment notes, which show little to no stuttering and 20 normal cognitive functioning.” Tr. 24 (citing Tr. 630, 635, 728, 791, 837-38, 846, 21 900, 904). Records from March 2018 show that she reported her “stuttering has 22 23 completely resolved and her [headaches], nausea, vomiting, vision and other issues 24 are almost completely resolved.” Tr. 642. While she reported she was stuttering 25 again at an appointment in February 2019, her neurologist noted her neurological 26 exam was otherwise normal and that “[w]hen she speaks she stutters at times that 27 is not consistent [sic]” she also indicated the “stuttering which she [is] 28 experiencing right now usually [is] nonneurologic.” Tr. 795. “[T]he ALJ is the final arbiter with respect to resolving ambiguities in the 1 2 medical evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 3 Additionally, even if the evidence could be interpreted more favorably to Plaintiff, 4 if it is susceptible to more than one rational interpretation, the ALJ’s ultimate 5 conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 6 The ALJ reasonably found Dr. Mansfield-Blair’s opinion less persuasive than the 7 opinion of Dr. Wald Baker because Dr. Wald Baker’s evaluation was more 8 thorough and more consistent with treatment notes/evidence from other sources, 9 and the ALJ’s findings are supported by substantial evidence. 10 While Plaintiff argues the ALJ erred by failing to consider the consistency of 11 Dr. Mansfield-Blair’s opinion with “independent neuropsychological testing, for 12 which the ALJ failed to account,” in regard to a consult by Dr. Musnick, ECF 13 No. 16 at 11-12, review of the record shows Dr. Musnick is certified in sports 14 medicine/internal medicine, Tr. 599, and there is no evidence of 15 neuropsychological testing at his appointments; he noted, in fact, that Plaintiff had 16 not had any when he saw her in 2018. See e.g., Tr. 596-99. There is also no 17 evidence he provided any opinion regarding plaintiff’s functional capacity. Id. 18 The Court finds the ALJ’s discussion of the medical opinion evidence is 19 supported by substantial evidence. 20 B. Step Two. 21 Plaintiff contends the ALJ erred at step two by rejecting Plaintiff’s traumatic 22 23 brain injury (TBI) and migraine headaches as severe impairments. ECF No. 16 at 24 12-13. 25 At step two of the sequential evaluation process, the ALJ must determine 26 whether the claimant has any medically determinable severe impairments. 20 27 C.F.R. § 404.1520(a)(4)(ii). An impairment may be found to be not severe when 28 “medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s 1 2 ability to work . . . .” Social Security Ruling (SSR) 85-28 at *3. Similarly, an 3 impairment is not severe if it does not significantly limit a claimant’s physical or 4 mental ability to do basic work activities or does not meet the duration 5 requirement. 20 C.F.R. §§ 404.1509, 404.1522; SSR 85-28.2 6 The claimant bears the burden of demonstrating that an impairment is 7 medically determinable and severe. Valentine v. Comm’r Soc. Sec. Admin., 574 8 F.3d 685, 689 (9th Cir. 2009). The step-two analysis is “a de minimis screening 9 device used to dispose of groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 10 (9th Cir. 2005). 11 Here, the ALJ determined Plaintiff’s concussion and migraine headaches 12 were non-severe. Tr 18. Plaintiff contends the ALJ failed to mention TBI and 13 ignored evidence of migraine headaches during the period at issue. Tr. 12-13. 14 Defendant contends Plaintiff failed to show any error in the ALJ’s step-two 15 findings, the ALJ reasonably found that her concussion and migraines were not 16 severe, and the ALJ’s RFC accounted for all her impairments. Tr. 15-17. 17 The Court finds the ALJ did not err. At step two, the ALJ noted her history 18 of concussion and migraines during the period at issue. Tr. 18. The ALJ found that 19 the medical evidence of record showed improvement in her conditions, and that 20 based on the testimony of the medical expert at the hearing, Dr. Jahnke, these 21 conditions did not meet durational requirements. Tr. 18 (citing Tr. 40-42, 632, 642, 22 23 808, 834). While Plaintiff points to evidence her migraine medication, Topamax, 24 was increased in 2019, ECF No. 16 at 13, the records Plaintiff cites to show her 25

26 2 The Supreme Court upheld the validity of the Commissioner’s severity 27 regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 28 (1987). neurologist’s report that while she has a history of migraine headaches for which 1 2 she takes Topamax, it was “because of her history of seizures her Topamax has 3 been increased . . . she denied any headaches.” Tr. 903. The neurologist further 4 noted “if she continues to do well with cognitive behavioral therapy [as her 5 seizures were determined to be nonepileptic in nature] she doesn’t need to be on 6 this high of a dose of Topamax for migraine prevention.” Tr. 905. The ALJ 7 reasonably found these impairments nonsevere. 8 Plaintiff has not met her burden in demonstrating her impairments are severe 9 nor that the ALJ harmfully erred in finding the impairments non-severe. Plaintiff is 10 not entitled to remand on these grounds. 11 C. Step Three. 12 Plaintiff contends the ALJ erred at step three by failing to conduct an 13 adequate analysis and failing to find the Plaintiff disabled. ECF No. 16 at 13-16. At 14 step three of the sequential evaluation process, the ALJ considers whether one or 15 more of the claimant’s impairments meets or equals an impairment listed in 16 Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each 17 Listing sets forth the “symptoms, signs, and laboratory findings” which must be 18 established for a claimant’s impairment to meet the listing. Tackett, 180 F.3d at 19 1099. If a claimant’s condition meets or equals a listing, the claimant is considered 20 disabled without further inquiry. 20 C.F.R. § 404.1520(d). “Listed impairments are 21 purposefully set at a high level of severity because ‘the listings were designed to 22 23 operate as a presumption of disability that makes further inquiry unnecessary.’” 24 Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 25 493 U.S. 521, 532 (1990)). 26 “To meet a listed impairment, a claimant must establish that he or she meets 27 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 180 28 F.3d at 1099 (emphasis in original); 20 C.F.R. § 404.1525(d). “To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings ‘at 1 2 least equal in severity and duration’ to the characteristics of a relevant listed 3 impairment . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 20 4 C.F.R. § 404.1526(a)). “If a claimant suffers from multiple impairments and none 5 of them individually meets or equals a listed impairment, the collective symptoms, 6 signs and laboratory findings of all of the claimant’s impairments will be evaluated 7 to determine whether they meet or equal the characteristics of any relevant listed 8 impairment.” Id. However, “[m]edical equivalence must be based on medical 9 findings,” and “[a] generalized assertion of functional problems is not enough to 10 establish disability at step three.” Id. at 1100 (quoting 20 C.F.R. § 404.1526(a)). 11 The claimant bears the burden of establishing her impairment (or 12 combination of impairments) meets or equals the criteria of a listed impairment. 13 Burch, 400 F.3d at 683. Further, “[a]n adjudicator’s articulation of the reason(s) 14 why the individual is or is not disabled at a later step in the sequential evaluation 15 process will provide rationale that is sufficient for a subsequent reviewer or court 16 to determine the basis for the finding about medical equivalence at step 3.” SSR 17 17-2p, 2017 WL 3928306, at *4 (effective March 27, 2017). 18 Here, the ALJ found Plaintiff’s impairments or combination of impairments 19 did not meet or equal any listings, including listing 11.18 for TBI. Tr. 18-19. 20 Plaintiff argues the ALJ failed to consider her TBI as a severe impairment and 21 failed to properly consider evidence that supports listing 11.02 and 11.18. ECF 22 23 No. 16 at 13-16. Defendant contends the ALJ reasonably found Plaintiff’s 24 impairments were not severe enough to satisfy the listing criteria at step three, and 25 that Plaintiff did not meet her burden to prove her impairments met or medically 26 equaled the criteria of any listing. ECF No. 18 at 17-18. 27 The Court finds the ALJ did not err. The step three findings by the ALJ must 28 be read in conjunction with the entire ALJ decision. SSR 17-2p, 2017 WL 3928306, at *4. Here, under the step three finding the ALJ explained Plaintiff did 1 2 not meet or equal the severity of any listed impairment, and also briefly explained 3 findings related to the relevant listings. Tr. 18-20. The ALJ concluded there was no 4 evidence of a TBI, noting Plaintiff reported no loss of consciousness at the time of 5 the accident and that imaging showed no abnormalities. Tr. 19 (citing Tr. 450-51, 6 474, 585-86). The ALJ further found that to the extent her concussion “could be 7 considered a TBI, I would nevertheless find the [Plaintiff] much less than markedly 8 limited in all domains of the listing.” Tr. 19. He noted “her neuropsychological 9 testing was quite normal, and according to reports to providers … her activities of 10 living remain quite intact.” Id. (citing e.g., Tr. 810). 11 Further, the ALJ relied on the testimony of the medical expert, Dr. Jahnke, 12 who testified that Plaintiff had post concussive symptoms, including headaches, 13 lasting just under a year, which improved with treatment including physical 14 therapy. Tr. 40-43. Upon questioning by the ALJ as to whether the evidence 15 established a brain injury, Dr. Jahnke testified that Plaintiff’s providers “felt she 16 had a concussion . . . so that’s a mild traumatic brain injury.” Tr. 45. Dr. Jahnke 17 testified, however: 18 It’s not what I would consider – the listing is really addressing are 19 people who’ve had . . . major trauma to the brain or a[n] . . . explosion 20 related to military service or industrial injury of the like. But . . . when you read about post-concussion . . . they’ll call it a mild traumatic brain 21 injury, but I don’t believe it’s really what they’re discussing [in] the 22 listing.” 23 Tr. 44-45. 24 The ALJ reasonably assessed Plaintiff’s impairments at step three, and 25 factual findings later in the ALJ’s decision also describe evidence with sufficient 26 specificity, adequately supporting the ALJ’s step three determination throughout 27 the decision. Plaintiff has failed to articulate how any of her impairments (or 28 combination of impairments) meets or equals the criteria of any listed impairment 1 2 and has not met the burden of demonstrating she meets or equals any listing. 3 Additionally, courts will not find an ALJ has erred in determining whether 4 combined impairments equal a listed impairment unless the Plaintiff has offered a 5 “plausible theory” of medical equivalency. See Kennedy, 738 F.3d at 1176-77 6 (citing Lewis, 236 F.3d at 514). Plaintiff has not done so here. 7 The ALJ’s analysis in its entirety is sufficient for the Court to meaningfully 8 review the ALJ’s finding that Plaintiff’s impairments did not meet or equal the 9 criteria of any listing, and Plaintiff is not entitled to remand on this basis. 10 D. Subjective Complaints. 11 Plaintiff contends the ALJ improperly rejected her subjective complaints. 12 ECF No. 16 at 16-20. It is the province of the ALJ to make determinations 13 regarding a claimant’s subjective statements. Andrews, 53 F.3d at 1039. However, 14 the ALJ’s findings must be supported by specific, cogent reasons. Rashad v. 15 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical 16 evidence of an underlying medical impairment, the ALJ may not discredit 17 testimony as to the severity of an impairment merely because it is unsupported by 18 medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent 19 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 20 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 21 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). 22 23 “General findings are insufficient: rather the ALJ must identify what testimony is 24 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 25 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 26 The ALJ concluded Plaintiff’s medically determinable impairments could 27 reasonably be expected to cause some of the alleged symptoms; however, 28 Plaintiff’s statements concerning the intensity, persistence and limiting effects of those symptoms were not entirely consistent with the medical evidence and other 1 2 evidence in the record. Tr. 21. The ALJ found Plaintiff’s allegations were 3 inconsistent with the objective evidence; records showed inconsistent reports to 4 providers; Plaintiff has a minimal work history prior to her allegations of 5 disability; she has failed to comply with treatment recommendations; and there is 6 evidence of symptom exaggeration/malingering. Tr. 22-23. Plaintiff argues the 7 ALJ improperly rejected Plaintiff’s subjective complaints. ECF No. 16 at 16-20. 8 Defendant argues that even if the evidence did not amount to malingering, there is 9 evidence Plaintiff exaggerated her symptoms and the ALJ reasonably interpreted 10 the record. ECF No. 18 at 4-11. 11 1. Inconsistent Objective Medical Evidence. 12 The ALJ found the objective medical evidence does not fully support the 13 level of limitations claimed. Tr. 21-22. Although it cannot serve as the sole ground 14 for rejecting a claimant’s symptom statements, objective medical evidence is a 15 “relevant factor in determining the severity of the claimant’s pain and its disabling 16 effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the ALJ 17 found while there was evidence Plaintiff was involved in a motor vehicle accident 18 in August 2017, records show she “specifically denied loss of consciousness and 19 EMS workers reported she was ambulatory on the scene and acting appropriately.” 20 Tr. 21 (citing Tr. 474).3 The ALJ noted exam findings at the time showed a small 21 hematoma on her forehead and generalized tenderness in the neck but was 22 23 otherwise normal with no evidence of neurological, motor, or cognitive deficits. Id. 24 (citing Tr. 476). The ALJ noted imaging including MRI and CT of Plaintiff’s brain 25 was unremarkable. Id. (citing Tr. 450-51, 459-60). The also ALJ noted while 26

27 3 The ALJ provides the incorrect citation here, citing to “16F, p. 63” in what 28 appears to be a scrivener’s error. The correct citation is 1F, p. 63, which is Tr. 474. Plaintiff subsequently reported weakness, facial droop, speech difficulties, 1 2 cognitive problems, and seizure activity, extensive workup including repeat 3 imaging, neurological exams, EEG, and neuropsychological testing was normal. 4 Id. (citing Tr. 448-49, 585-87, 728, 791, 795-98, 808-09, 819-22). The ALJ noted 5 exams 12 months after her accident showed no cognitive deficits, normal mental 6 status and, usually, a normal gait. Id. (citing Tr. 810, 834, 904). The ALJ also 7 noted her reports of “significant ongoing cognitive deficits . . . is markedly 8 inconsistent with the thorough neuropsychological testing” performed by Dr. Wald 9 Baker, described supra, which showed “intact cognitive abilities with the 10 exception of mild, variable inefficiencies in basic attention, encoding, and 11 problems solving”; the ALJ noted Plaintiff performed within the average range on 12 this testing and that there were no areas of frank cognitive impairment. Tr. 21 13 (citing Tr. 819-822). 14 The ALJ’s interpretation of the record is reasonable. It is the ALJ’s 15 responsibility to resolve conflicts in the medical evidence. Andrews, 53 F.3d at 16 1039. Where the ALJ’s interpretation of the record is reasonable as it is here, it 17 should not be second-guessed. Rollins, 261 F.3d at 857. The Court must also 18 consider the ALJ’s decision in the context of “the entire record as a whole,” and if 19 the “evidence is susceptible to more than one rational interpretation, the ALJ’s 20 decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 21 (9th Cir. 2008) (internal quotation marks omitted). On this record, the ALJ 22 23 reasonably concluded that the objective medical evidence is not consistent with 24 Plaintiff’s complaints of disabling symptoms. This finding is supported by 25 substantial evidence and was a clear and convincing reason to discount Plaintiff’s 26 symptom complaints. 27 28 2. Inconsistent Reports. 1 2 The ALJ found that Plaintiff’s reports to providers were inconsistent with 3 her disability allegations. Tr. 22. In evaluating a claimant’s symptom claims, an 4 ALJ may consider the consistency of an individual’s own statements made in 5 connection with the disability-review process with any other existing statements or 6 conduct under other circumstances. Smolen, 80 F.3d at 1284. Here, the ALJ 7 concluded that Plaintiff’s reports of disabling symptoms with extremely limited 8 activities of daily living were inconsistent with contemporaneous reports to 9 providers. Tr. 22. For example, the ALJ cited to records from March 2020, noting 10 she reported “no seizures in almost six months and significant improvement with 11 walking, speech issues, memory loss, etc.” at that time. Id. (citing Tr. 833). The 12 ALJ noted that while she testified she suffers five to six debilitating headaches a 13 month, in May 2018 she reported that her headaches, nausea, vomiting, vision and 14 other issues were almost completely resolved. Id. (citing Tr. 642).4 She also denied 15 headaches at an appointment with a neurologist/epilepsy specialist in October 16 2019; her provider observed normal neurological and mental status findings at that 17 time, along with normal gait and strength, and the provider also noted Plaintiff had 18 just attended her daughter’s wedding without any issues. Tr. 903-04. 19 While Plaintiff reported at the CE in July 2019 that she used a walker full 20 time along with walking sticks, the provider observed no assistive devices at that 21 time, Tr. 802, and at an appointment with the neuropsychologist Dr. Wald Baker a 22 23 few weeks later, Dr. Baker noted that while her “gait was remarkably halting” she 24 walked independently and “no gross motor, sensory, or perceptual abnormalities 25 were appreciated.” Tr. 821. Records from 2020 show she walked without 26

27 4 The ALJ provides the incorrect citation here, citing to “16F, p. 16.” The correct 28 citation is at 6F, p. 16, which is Tr. 642. restrictions, she was ambulating normally, and her gait, station, and mental status 1 2 were normal. Tr. 833-34. The ALJ also noted that Plaintiff “told multiple providers 3 immediately after her motor vehicle accident that she did not lose consciousness . . 4 . which is consistent with EMS observations and her initial presentation at the ER.” 5 Tr. 22 (citing Tr. 441, 474). The ALJ noted Plaintiff later claimed she did lose 6 consciousness; the ALJ determined that this inconsistency undermined the 7 reliability of Plaintiff’s symptom allegations. Id. (citing Tr. 503, 505, 808, see also 8 Tr. 49). 9 On this record, the ALJ reasonably concluded that Plaintiff’s symptom 10 claims were inconsistent with reports to providers during the period at issue. This 11 finding is supported by substantial evidence and is a clear and convincing reason to 12 discount Plaintiff’s symptom claims. 13 3. Work History. 14 The ALJ found that Plaintiff’s “fairly weak work history suggest[s] the 15 explanation for her ongoing unemployment is likely something of longer standing 16 duration tha[n] her current medical conditions.” Tr. 23. Evidence of a poor 17 employment history that suggests a claimant is not motivated to work is a 18 permissible reason to discredit a claimant’s testimony that she is unable to work. 19 Thomas v. Banhart, 278 F.3d 947, 959 (9th Cir. 2002); Smolen, 80 F.3d at 1285. 20 Plaintiff’s earnings records show limited overall earnings and many years without 21 earnings, and records show she has reported she was home with her children, and 22 23 also worked a few years in retail before her accident. Tr. 222, 226-28, 810. The 24 ALJ’s conclusion is supported by substantial evidence. This finding, coupled with 25 the additional clear and convincing reasons offered by the ALJ as discussed above, 26 is a clear and convincing reason to give less weight to Plaintiff’s subjective 27 complaints. 28 4. No Mental Health Treatment. 1 2 The ALJ found that “plaintiff has sought no mental health treatment despite 3 recommendations from her neurologist and neuropsychological examiner.” Tr. 22 4 (citing Tr. 822,5 905). It is well-established that unexplained or inadequately 5 explained non-compliance with treatment reflects on a claimant’s credibility. See 6 Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012); Tommasetti, 533 F.3d at 7 1039; see also Smolen, 80 F.3d at 1284 (an ALJ may consider a claimant’s 8 unexplained or inadequately explained failure to follow a prescribed course of 9 treatment when assessing a claimant’s credibility). 10 Here, the ALJ noted Plaintiff’s testimony that “none of the therapists her 11 neurologist referred her to would accept her insurance, and she was unable to find 12 anyone else locally to take her insurance either.” Tr. 22; see Tr. 66-69. The ALJ 13 found “that assertion simply not plausible” noting that Plaintiff lives in an area 14 with “many mental health treatment resources available” and the ALJ found “the 15 [Plaintiff] has not shown diligence to seek mental health treatment, as 16 recommended by multiple providers.” Tr. 22. 17 Plaintiff testified that as she understands it, she is supposed to have a 18 specific type of counseling with a neuropsychologist, and the providers in her area 19 who provide this type of counseling do not take her insurance. See Tr. 66-69. 20 Additionally, Plaintiff testified that she had called more than the ten providers 21 recommended by Dr. Atkinson, her neurologist; Dr. Atkinson’s records appear to 22 23 support this, as in 2019 Dr. Atkinson noted “she hasn’t been able to set up 24 25

26 5 The ALJ again provides an incorrect citation here, citing to “12F, p. 7.” Tr. 22. 27 The correct citation is 12F, p. 17, which is Tr. 822. 28 cognitive behavioral therapy with a neuropsychologist yet because of where she 1 2 lives.” Tr. 903. 3 Dr. Atkinson, however, was not the only provider to refer her for mental 4 health treatment. For example, after determining testing showed Plaintiff’s 5 neuropsychological profile was normal in August 2019, the neuropsychologist Dr. 6 Wald Baker “strongly recommended that the patient begin weekly cognitive 7 behavioral therapy (CBT) to process her negative emotions and learn stress 8 management skills. Therapy should also incorporate a sleep hygiene component.” 9 Tr. 822. Dr. Wald Baker also noted that “given the severity of her emotional 10 distress, this patient may also benefit from an antidepressant medication as 11 research shows the most efficacious treatment of psychological distress is the 12 combined effect of medication and psychotherapy.” Tr. 822. The consultative 13 examiner, Dr. Mansfield-Blair, also opined that some of Plaintiff’s limitations were 14 due to Plaintiff’s “current lack of mental health treatment,” and that “her condition 15 might improve over the next 12 months with engagement in mental health therapy, 16 both individual and group, to learn symptom management strategies and to derive 17 additional support”; she noted “[Plaintiff] may benefit from psychotropic 18 medication,” as well. Tr. 804-05. 19 While Plaintiff provided some explanation for why she had not yet received 20 specialized counseling by a neuropsychologist at the time of the hearing, records 21 indicate multiple providers have recommended mental health counseling and/or 22 23 antidepressant medication and there is no evidence Plaintiff pursued such 24 treatment. Again, where the ALJ’s interpretation of the record is reasonable as it is 25 here, it should not be second-guessed. Rollins, 261 F.3d at 857. The Court must 26 consider the ALJ’s decision in the context of the record as a whole and if the 27 “evidence is susceptible to more than one rational interpretation, the ALJ’s 28 decision should be upheld.” Ryan, 528 F.3d at 1198 (internal quotation marks omitted). On this record, the ALJ reasonably concluded The ALJ’s finding plaintiff 1 2 has sought no mental health treatment despite recommendations is supported by 3 substantial evidence and was a clear and convincing reason to discredit her 4 symptom testimony. 5 5. Malingering. 6 The ALJ also discounted Plaintiff’s symptom claims because “the record 7 contains evidence of symptom exaggeration/malingering.” Tr. 22. Evidence of 8 being motivated by secondary gain is sufficient to support an ALJ’s rejection of 9 testimony evidence. See Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 10 1020 (9th Cir. 1992) (“The ALJ set out specific findings which were supported by 11 the record . . . [including] well documented motivation to obtain social security 12 benefits.”). 13 Here, the ALJ cites to records showing that a provider noted she “stuttered at 14 times that [are] not consistent,” that she had “unsteady gait, can’t tandem,” and that 15 “this appears be more volitional than true ataxia.” Tr. 22 (citing Tr. 795, 900). 16 However, the same provider, her neurologist, also noted in these visits that she 17 wanted to continue to “assess and make absolutely sure there [are] no signs of 18 residual trauma from her car accident” and “wonder[ed] weather or not she may be 19 suffering from nonepileptic seizures and that she is having just tremendous 20 emotional trauma related to the car accident that she sustained.” Tr. 796. While her 21 neuropsychological evaluation did not show any evidence of cognitive impairment, 22 23 it was “thought that a lot of her symptoms are secondary to her anxiety and 24 depression,” Tr. 903, and that, in terms of her seizures, these were “most likely … 25 psychogenic nonepileptic seizures secondary to her car accident which was quite 26 traumatic for her emotionally.” Tr. 905. 27 As discussed supra, the ALJ reasonably determined Plaintiff had made some 28 inconsistent statements. The ALJ has not, however, cited to any instances in the record to suggest that secondary gain was a primary motivating factor for 1 2 Plaintiff’s disability application. See Tr. 15-26. Further, there is no evidence any 3 provider determined she was malingering, and validity testing at her 4 neuropsychological evaluation in 2019 was within normal limits. Tr. 821. Finally, 5 records show untreated mental health impairments, which more than one provider 6 suggested may be causing at least some of her symptoms. Tr. 822, 903. For 7 example, in interpreting the results of neuropsychological testing, Dr. Wald Baker 8 noted that while there was no evidence of an underlying neurologic condition, “it is 9 likely that ongoing sub optimally treated psychological symptoms, current 10 stressors, and poor coping skills are contributing to her current cognitive 11 complaints and impacting her functional abilities.” Tr. 822. 12 Any error by the ALJ in concluding that Plaintiff was malingering or 13 motivated by secondary gain is harmless, however, because the ALJ identified 14 other specific, clear, and convincing reasons to discount Plaintiff’s symptom 15 claims. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th 16 Cir. 2008); Molina, 674 F.3d at 1115 (“[S]everal of our cases have held that an 17 ALJ’s error was harmless where the ALJ provided one or more invalid reasons for 18 disbelieving a claimant’s testimony, but also provided valid reasons that were 19 supported by the record.”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 20 1197 (9th Cir. 2004) (holding that any error the ALJ committed in asserting one 21 impermissible reason for claimant’s lack of credibility did not negate the validity 22 23 of the ALJ’s ultimate conclusion that the claimant’s testimony was not credible). 24 Plaintiff is not entitled to remand on these grounds. 25 E. Step Five. 26 Plaintiff contends the ALJ erred in failing to include all limitations in the 27 hypothetical posed to the vocational expert. ECF No. 16 at 20-21. At step five of 28 the sequential evaluation analysis, the burden shifts to the Commissioner to establish that 1) the claimant can perform other work and 2) such work “exists in 1 2 significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran, 3 700 F.3d at 389. In assessing whether there is work available, the ALJ must rely on 4 complete hypotheticals posed to a vocational expert. Nguyen v. Chater, 100 F.3d 5 1462, 1467 (9th Cir. 1996). The ALJ’s hypothetical must be based on medical 6 assumptions supported by substantial evidence in the record that reflects all of the 7 claimant’s limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 8 The hypothetical should be “accurate, detailed, and supported by the medical 9 record.” Tackett, 180 F.3d at 1101. The hypothetical that ultimately serves as the 10 basis for the ALJ’s determination, i.e., the hypothetical that is predicated on the 11 ALJ’s final RFC assessment, must account for all the limitations and restrictions of 12 the claimant. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 13 2009). 14 As discussed above, the ALJ’s RFC need only include those limitations 15 found credible and supported by substantial evidence. Bayliss v. Barnhart, 427 16 F.3d 1211,1217 (9th Cir. 2005) (“The hypothetical that the ALJ posed to the VE 17 contained all of the limitations that the ALJ found credible and supported by 18 substantial evidence in the record.”). “If an ALJ’s hypothetical does not reflect all 19 of the claimant’s limitations, then the expert’s testimony has no evidentiary value 20 to support a finding that the claimant can perform jobs in the national economy.” 21 Id. However, the ALJ “is free to accept or reject restrictions in a hypothetical 22 23 question that are not supported by substantial evidence.” Greger v. Barnhart, 464 24 F.3d 968, 973 (9th Cir. 2006). Therefore, the ALJ is not bound to accept as true the 25 restrictions presented in a hypothetical question propounded by a claimant’s 26 counsel if they are not supported by substantial evidence. Magallanes v. Bowen, 27 881 F.2d 747, 756-57 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773 (9th 28 Cir. 1986). A claimant fails to establish that a step five determination is flawed by simply restating an argument that the ALJ improperly discounted certain evidence, 1 2 when the record demonstrates the evidence was properly rejected. Stubbs- 3 Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). 4 Plaintiff contends the ALJ erred by relying on the vocational expert’s 5 response to an incomplete hypothetical at step four and five. ECF No. 16 at 20-21. 6 However, Plaintiff’s argument assumes that the ALJ erred in his analysis of the 7 medical opinion and other evidence. As addressed supra, the ALJ properly 8 assessed the medical evidence. The ALJ has the discretion to evaluate and weigh 9 the evidence and the Plaintiff’s alternative interpretation of the evidence does not 10 undermine the ALJ’s analysis. The ALJ did not err in assessing the RFC or finding 11 Plaintiff capable of performing past work and other work existing in the national 12 economy, and the RFC adequately addresses the medical opinions and evidence in 13 this record. 14 Plaintiff is not entitled to remand on these grounds. 15 VII. CONCLUSION 16 Having reviewed the record and the ALJ’s findings, the Court finds the 17 ALJ’s decision is supported by substantial evidence and free of legal error and is 18 affirmed. Therefore, IT IS HEREBY ORDERED: 19 1. Defendant’s Motion for Summary Judgment, ECF No. 18, is 20 GRANTED. 21 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 22 23 24 25 26 27 28 1 The District Court Executive is directed to file this Order and provide a copy 2 || to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 3 || and the file shall be CLOSED. 4 IT IS SO ORDERED. 5 DATED September 30, 2022.

JAMES A. GOEKE 8 a UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28