1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Aug 14, 2020 3 SEAN F. MCAVOY, CLERK 4
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 MEKYHNA C., NO: 2:19-CV-228-FVS 8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 ANDREW M. SAUL, PLAINTIFF’S MOTION FOR COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 11 SECURITY,
12 Defendant.
13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 10, 14. This matter was submitted for consideration without 16 oral argument. The Plaintiff is represented by Attorney Dana C. Madsen. The 17 Defendant is represented by Special Assistant United States Attorney Jacob P. 18 Phillips. The Court has reviewed the administrative record, the parties’ completed 19 briefing, and is fully informed. For the reasons discussed below, the Court 20 GRANTS Defendant’s Motion for Summary Judgment, ECF No. 14, and DENIES 21 Plaintiff’s Motion for Summary Judgment, ECF No. 10. 1 JURISDICTION 2 Plaintiff Mekyhna C.1 filed for Disability Insurance Benefits (DIB) and 3 Supplement Security Income (SSI) on January 8, 2017, Tr. 83, 103, alleging an 4 onset date of May 15, 2015, Tr. 215, 222, due to posttraumatic stress disorder
5 (PTSD), bipolar disorder, attention deficit hyperactivity disorder (ADHD), clinical 6 depression, anxiety, borderline personality disorder, masochistic personality 7 disorder, borderline narcissism, sacroiliitis, and polycystic ovarian syndrome, Tr.
8 247. Benefits were denied initially, Tr. 138-41, and upon reconsideration, Tr. 144- 9 49. A hearing before administrative law judge Jesse Shumway (“ALJ”) was 10 conducted on June 15, 2018. Tr. 35-64. Plaintiff was represented by counsel and 11 testified at the hearing. Id. The ALJ also took the testimony of psychological
12 expert Colette Valette, Ph.D. and vocational expert Jeff Tiddlefitz Id. The ALJ 13 denied benefits on August 20, 2018. Tr. 15-27. The Appeals Council denied 14 review on May 8, 2019. Tr. 1-5. The matter is now before this court pursuant to
15 42 U.S.C. §§ 405(g), 1383(c)(3). 16 / / / 17 / / /
19 1In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s 20 first name and last initial, and, subsequently, Plaintiff’s first name only, throughout 21 this decision. 1 BACKGROUND 2 The facts of the case are set forth in the administrative hearing and 3 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 4 Only the most pertinent facts are summarized here.
5 Plaintiff was 28 years old at the alleged onset date. Tr. 215. She completed 6 her GED and has specialized training as a certified nursing assistant (CNA) and in 7 welding and metal fabrication. Tr. 248. Plaintiff has worked as a CNA and
8 laborer at a boat trailer assembly business. Tr. 249. At application, she stated that 9 she stopped working on May 28, 2015, due to her conditions and other reasons: 10 I have serious issues adhering to schedules with all of my mental conditions. There are many moments I “expect” to be able to do as I 11 please. Other moments I would go to work, follow orders, even show signs of initiative/managerial skills. Most times I couldn’t get out of 12 bed because of fear/anxiety/depression. In addition, my right forearm got caught in a drill press at work on 5/15/2015 causing a severe 13 contusion. That accident has left my arm weak and painful. L&I has not released me back to work. 14 Tr. 248. 15 STANDARD OF REVIEW 16 A district court’s review of a final decision of the Commissioner of Social 17 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 18 limited; the Commissioner’s decision will be disturbed “only if it is not supported 19 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 20 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 21 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 1 (quotation and citation omitted). Stated differently, substantial evidence equates to 2 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 3 citation omitted). In determining whether the standard has been satisfied, a 4 reviewing court must consider the entire record as a whole rather than searching
5 for supporting evidence in isolation. Id. 6 In reviewing a denial of benefits, a district court may not substitute its 7 judgment for that of the Commissioner. “The court will uphold the ALJ's
8 conclusion when the evidence is susceptible to more than one rational 9 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 10 Further, a district court will not reverse an ALJ’s decision on account of an error 11 that is harmless. Id. An error is harmless where it is “inconsequential to the
12 [ALJ’s] ultimate nondisability determination.” Id. (quotation and citation omitted). 13 The party appealing the ALJ’s decision generally bears the burden of establishing 14 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
15 FIVE-STEP EVALUATION PROCESS 16 A claimant must satisfy two conditions to be considered “disabled” within 17 the meaning of the Social Security Act. First, the claimant must be “unable to
18 engage in any substantial gainful activity by reason of any medically determinable 19 physical or mental impairment which can be expected to result in death or which 20 has lasted or can be expected to last for a continuous period of not less than twelve 21 1 months.” 42 U.S.C. §§ 423(d)(1)(A). Second, the claimant’s impairment must be 2 “of such severity that he is not only unable to do his previous work[,] but cannot, 3 considering his age, education, and work experience, engage in any other kind of 4
5 substantial gainful work which exists in the national economy.” 42 U.S.C. § 6 423(d)(2)(A). 7 The Commissioner has established a five-step sequential analysis to
8 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 9 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 10 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 11 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the
12 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 13 404.1520(b), 416.920(b). 14 If the claimant is not engaged in substantial gainful activity, the analysis
15 proceeds to step two. At this step, the Commissioner considers the severity of the 16 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416,920(a)(4)(ii). If the 17 claimant suffers from “any impairment or combination of impairments which
18 significantly limits [his or her] physical or mental ability to do basic work 19 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 20 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 21 1 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 2 §§ 404.1520(c), 416.920(c). 3 At step three, the Commissioner compares the claimant’s impairment to 4 severe impairments recognized by the Commissioner to be so severe as to preclude
5 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 6 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 7 severe than one of the enumerated impairments, the Commissioner must find the
8 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 9 If the severity of the claimant’s impairment does not meet or exceed the 10 severity of the enumerated impairments, the Commissioner must pause to assess 11 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),
12 defined generally as the claimant’s ability to perform physical and mental work 13 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 14 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the
15 analysis. 16 At step four, the Commissioner considers whether, in view of the claimant’s 17 RFC, the claimant is capable of performing work that he or she has performed in
18 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 19 If the claimant is capable of performing past relevant work, the Commissioner 20 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 21 1 If the claimant is incapable of performing such work, the analysis proceeds to step 2 five. 3 At step five, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing other work in the national economy.
5 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 6 the Commissioner must also consider vocational factors such as the claimant’s age, 7 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),
8 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 11 work, analysis concludes with a finding that the claimant is disabled and is
12 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 13 The claimant bears the burden of proof at steps one through four. Tackett v. 14 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five,
15 the burden shifts to the Commissioner to establish that (1) the claimant is capable 16 of performing other work; and (2) such work “exists in significant numbers in the 17 national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue,
18 700 F.3d 386, 389 (9th Cir. 2012). 19 ALJ’S FINDINGS 20 At step one, the ALJ found that Plaintiff has not engaged in substantial 21 gainful activity since May 15, 2015, the alleged onset date. Tr. 17. At step two, 1 the ALJ found that Plaintiff has the following severe impairments: bipolar I 2 disorder; PTSD; ADHD; lumbar degenerative disc disease; and obesity. Tr. 17. 3 At step three, the ALJ found that Plaintiff does not have an impairment or 4 combination of impairments that meet or medically equal the severity of a listed
5 impairment. Tr. 18. The ALJ then found that Plaintiff had the RFC to perform 6 medium work as defined in 20 CFR §§ 404.1567(c), 416937(c) except: 7 she can only frequently climb stairs and ramps, balance, stoop, kneel, and crouch; she can only occasionally crawl and climb ropes, ladders, 8 or scaffolds; she can frequently handle with her right upper extremity; she cannot have concentrated exposure to hazards (e.g., unprotected 9 heights, moving mechanical parts); she needs a routine predictable work environment with no more than occasional changes and with 10 simple decision-making; she can have no contact with the public and only occasional superficial contact with coworkers and supervisors; she 11 would be off task 5-10% of the workday.
12 Tr. 19-20. 13 At step four, the ALJ found that Plaintiff was able to perform her past 14 relevant work as trailer assembler I. Tr. 25. As an alternative to denying 15 Plaintiff’s benefits at step four, the ALJ found that at step five, considering 16 Plaintiff’s age, education, work experience, and RFC, there were other jobs that 17 exist in significant numbers in the national economy that Plaintiff could perform, 18 including: janitor, electronic worker, and small products assembler. Tr. 27. On 19 that basis, the ALJ concluded that Plaintiff was not under a disability, as defined in 20 the Social Security Act, from May 15, 2015, the alleged onset date, through the 21 date of his decision. Tr. 27. 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her DIB under Title II of the Social Security Act and SSI under Title XVI of the 4 Social Security Act. ECF No. 10. Plaintiff raises the following issues for this
5 Court’s review: 6 1. Whether the ALJ properly considered Plaintiff’s symptom statements; and 7 2. Whether the ALJ properly considered the medical opinion evidence.
8 DISCUSSION 9 1. Plaintiff’s Symptom Statements 10 An ALJ engages in a two-step analysis when evaluating a claimant’s 11 testimony regarding subjective pain or symptoms. “First, the ALJ must determine
12 whether the claimant has presented objective medical evidence of an underlying 13 impairment which could reasonably be expected to produce the pain or other 14 symptoms alleged.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal
15 quotation marks omitted). “The claimant is not required to show that his 16 impairment could reasonably be expected to cause the severity of the symptom he 17 has alleged; he need only show that it could reasonably have caused some degree
18 of the symptom.” Id. (internal quotation marks omitted). 19 Second, “[i]f the claimant meets the first test and there is no evidence of 20 malingering, the ALJ can only reject the claimant’s testimony about the severity of 21 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 2 citations and quotations omitted). “General findings are insufficient; rather, the 3 ALJ must identify what testimony is not credible and what evidence undermines 4 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th
5 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 6 must make a credibility determination with findings sufficiently specific to permit 7 the court to conclude that the ALJ did not arbitrarily discredit claimant’s
8 testimony.”). “The clear and convincing [evidence] standard is the most 9 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 10 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 11 924 (9th Cir. 2002)).
12 Here, the ALJ found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms; however, 14 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of
15 these symptoms are not entirely consistent with the medical evidence and other 16 evidence in the record” for several reasons. Tr. 21. The ALJ provided four 17 reasons in support of his determination: (1) Plaintiff’s allegations are inconsistent
18 with the objective medical evidence; (2) Plaintiff’s course of treatment undermines 19 her claims of significant psychological dysfunction; (3) Plaintiff fabricated a 20 diagnosis of multiple sclerosis when she wanted to allege physical limitations; and 21 1 (4) Plaintiff’s daily activities are not as limited to the extent one would expect 2 given her complaints. 3 In her opening brief, Plaintiff only challenges the ALJ’s fourth reason for 4 rejecting her symptom statements. ECF No. 10 at 14-15. By failing to challenge
5 the ALJ’s remaining three reasons, Plaintiff has waived any challenge to these 6 reasons. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 7 (9th Cir. 2008). The Ninth Circuit explained the necessity for providing specific
8 argument: 9 The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the 10 court. Particularly on appeal, we have held firm against considering arguments that are not briefed. But the term “brief” in the appellate 11 context does not mean opaque nor is it an exercise in issue spotting. However much we may importune lawyers to be brief and to get to the 12 point, we have never suggested that they skip the substance of their argument in order to do so. It is no accident that the Federal Rules of 13 Appellate Procedure require the opening brief to contain the “appellant’s contentions and the reasons for them, with citations to the 14 authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). We require contentions to be accompanied by 15 reasons.
16 Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).2 17 Moreover, the Ninth Circuit repeatedly has admonished that the court will not 18 “manufacture arguments for an appellant” and therefore will not consider 19
20 2Under the current version of the Federal Rules of Appellate Procedure, the 21 appropriate citation would be to FED. R. APP. P. 28(a)(8)(A). 1 claims that were not actually argued in appellant’s opening brief. Greenwood 2 v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Because Plaintiff 3 failed to provide adequate briefing regarding the ALJ’s fourth reason for 4 rejecting her symptom statements, the court declines to consider this issue.
5 Even if Plaintiff succeeded in convincing the Court that the ALJ erred in his 6 fourth reason for rejecting her symptom statements, this would be insufficient to 7 establish that the ALJ’s error was harmful. See Carmickle, 533 F.3d at 1163
8 (upholding an adverse credibility finding where the ALJ provided four reasons to 9 discredit the claimant, two of which were invalid); Batson v. Comm’r. of Soc. Sec., 10 359 F.3d 1190, 1197 (9th Cir. 2004) (affirming a credibility finding where one of 11 several reasons was unsupported by the record); Tommasetti, 533 F.3d at 1038 (an
12 error is harmless when “it is clear from the record that the . . . error was 13 inconsequential to the ultimate nondisability determination”). Therefore, the Court 14 will not disturb the ALJ’s treatment of Plaintiff’s symptom statements.
15 2. Medical Opinions 16 Plaintiff argues that the ALJ failed to properly weigh the medical opinions 17 from Kirsten Nestler, M.D., Kayleen Islam-Zwart, Ph.D., Christopher Korsgaard,
18 M.S., F.N.P, and the non-examining medical experts. ECF No. 10 at 15-19. 19 If a treating or examining physician's opinion is uncontradicted, the ALJ 20 may reject it only by offering “clear and convincing reasons that are supported by 21 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 1 Conversely, “[i]f a treating or examining doctor's opinion is contradicted by 2 another doctor's opinion, an ALJ may only reject it by providing specific and 3 legitimate reasons that are supported by substantial evidence.” Id. (citing Lester, 4 81 F.3d at 830-31).
5 A. Kirsten Nestler, M.D. 6 On May 21, 2017, Dr. Nestler completed a consultative examination of 7 Plaintiff. Tr. 560-64. Dr. Nestler diagnosed Plaintiff with unspecified personality
8 disorder, unspecified psychotic disorder, rule out bipolar disorder, PTSD by 9 history, unspecified anxiety disorder, and ADHD. Tr. 563. Dr. Nestler found 10 Plaintiff would have difficulty interacting with coworkers and the public, difficulty 11 maintaining regular attendance in the workplace, and difficulty dealing with the
12 usual stress encountered in the workplace. Tr. 564. Otherwise, Dr. Nestler opined 13 Plaintiff would not have difficulty in the remaining functional abilities she 14 addressed. Id.
15 The ALJ gave Dr. Nestler’s opinion some weight, finding that it was 16 internally inconsistent and finding that matters such as the abilities to maintain 17 attendance and complete a normal workweek were not susceptible to assessment in
18 a one-time exam. Tr. 23-24. Plaintiff failed to challenge the reasons the ALJ 19 provided for only assigning the opinion some weight. Plaintiff discussed the ALJ’s 20 finding that Dr. Nestler’s examination included some normal findings. ECF No. 21 10 at 17-18 citing Tr. 19. However, the ALJ’s discussion of Dr. Nestler’s normal 1 findings were not applicable to the weight the ALJ assigned to the opinion several 2 pages later. Tr. 23-24. Because Plaintiff failed to challenge the ALJ’s treatment of 3 Dr. Nestler’s opinion, the Court will not consider this issue further. See Carmickle, 4 533 F.3d at 1161 n.2.
5 B. Kayleen Islam-Zwart, Ph.D. 6 On February 28, 2017, Dr. Islam-Zwart completed a 7 Psychological/Psychiatric Evaluation for the Washington Department of Social and
8 Health Services (DSHS). Tr. 630-38. She diagnosed Plaintiff with PTSD, bipolar 9 I disorder, attention deficit disorder, and unspecified personality disorder. Tr. 631. 10 She opined that Plaintiff had a marked limitation in the abilities to perform 11 activities within a schedule, maintain regular attendance, and be punctual within
12 customary tolerances without special supervision, to adapt to changes in a routine 13 work setting, and to complete a normal work day and work week without 14 interruptions from psychologically based symptoms. Id. She further opined that
15 Plaintiff had a moderate limitation in six additional basic work activities. Id. The 16 ALJ gave Dr. Islam-Zwart’s opinion little weight with the following explanation: 17 [I]t was based on a cursory exam with no significant testing, and what little objective findings were made were largely normal. Moreover, it 18 was completed on a checkbox form with little explanation for her conclusions. Matters like the ability to maintain attendance and 19 complete a normal work day/week are not susceptible to assessment in a one-time exam. 20 Tr. 24. 21 1 The ALJ’s first reason for rejecting Dr. Islam-Zwart’s opinion, that it was 2 based on a cursory exam with no significant testing, is not supported by substantial 3 evidence. Dr. Islam-Zwart completed a clinical interview, a Mini-Mental Status 4 Exam, Trails Making Test, and the Fifteen Item Memory Test. Tr. 637. Therefore,
5 the ALJ’s finding that Dr. Islam-Zwart’s opinion was not based on any significant 6 testing is not supported by substantial evidence. 7 The ALJ’s second reason for rejecting Dr. Islam-Zwart’s opinion, that the
8 little objective findings made in her evaluation were largely normal, is specific and 9 legitimate. Inconsistency with the majority of objective evidence is a specific and 10 legitimate reason for rejecting physician’s opinions. Batson, 359 F.3d at 1195; see 11 also Lester, 81 F.3d at 831 (The ALJ may give weight to consulting opinions “only
12 insofar as they are supported by evidence in the case record.”). Plaintiff’s testing 13 revealed normal results. Tr. 637. Dr. Islam-Zwart performed the Mini-Mental 14 Status Exam and stated that Plaintiff “exhibited mental control within normal
15 limits.” Id. On the Trails Making Test, Plaintiff’s scores fell within normal limits. 16 Id. On the Fifteen Item Memory Test, Plaintiff recalled 15 out of the 15 items. Id. 17 Therefore, the ALJ is accurate in finding that Plaintiff’s testing showed normal
18 results. 19 The ALJ’s third reason for rejecting Dr. Islam-Zwart’s opinion, that it was 20 on a check-box form, is specific and legitimate. The Ninth Circuit has stated a 21 preference for individualized medical opinions over check-box reports. See 1 Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). However, check-the-box 2 forms that do not stand alone, but are supported by records, should be “entitled to 3 weight that an otherwise unsupported and unexplained check-box form would not 4 merit.” Garrison, 759 F.3d at 1013. Here, Dr. Islam-Zwart’s evaluation is
5 included with the check-box form, but this evaluation demonstrated normal results 6 on testing and little explanation for the severity of limitations opinions. Tr. 637. 7 Therefore, this meets the specific and legitimate standard.
8 C. Christopher Korsgaard, M.S., F.N.P 9 Plaintiff was treated by Mr. Korsgaard beginning in May of 2017 for her 10 mental health impairments, and his treatment reports are in the record. Tr. 565- 11 620. Plaintiff argues that the ALJ erred by not giving these treatment records great
12 weight. ECF No. 10 at 19. 13 The ALJ is required to evaluate and weigh every medical opinion in the 14 record. 20 C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c). A medical opinion is
15 defined as “statements from acceptable medical sources that reflect judgments 16 about the nature and severity of your impairment(s), including your symptoms, 17 diagnosis and prognosis, what you can still do despite impairment(s), and your
18 physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). 19 Mr. Korsgaard’s treatment notes are not medical opinions as defined in 20 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Therefore, the ALJ was not required to 21 weigh them or provide reasons for not adopting his opinions. 1 D. Non-examining Medical Experts 2 Plaintiff argues that ALJ erred by crediting the opinions of non-examining, 3 non-treating doctors. ECF No. 10 at 19. The non-examining, non-treating doctor 4 Plaintiff specifically discusses in her briefing is Colette Vallette, Ph.D. Id. at 17.
5 Dr. Vallette testified at the June 15, 2018 hearing. Tr. 40-47. She opined 6 that Plaintiff had bipolar disorder and ADHD. Tr. 40. She provided an opinion 7 regarding the B Criteria addressed in steps two and three. Tr. 41-42. She did not
8 provide an opinion regarding Plaintiff’s RFC, but did state that she relied on Dr. 9 Nestler’s and Dr. Islam-Zwart’s normal test results. Tr. 45. In regard to Dr. 10 Nestler’s opinion, she stated “it seems like Dr. Nestler took - - put too much weight 11 on what the claimant said and doesn’t put a lot of weight on what is actually
12 observed, because her mental status is normal.” Id. In regard to Dr. Islam-Zwart’s 13 opinion, she stated that Dr. Islam-Zwart’s finding is “totally inconsistent with a 14 normal mental status,” but the portion that Dr. Islam-Zwart’s opinion that Dr.
15 Valette is discussing is inaudible in the transcript. Id. The ALJ stated that he 16 found “her testimony persuasive,” and gave it “great weight.” Tr. 23. 17 Here, Plaintiff has not succeeded in successfully challenging the ALJ’s
18 treatment of the opinions of the examining doctors, Dr. Nestler, Dr. Islam-Zwart, 19 and Mr. Korsgaard. Therefore, the Court will not disturb the ALJ’s treatment of 20 Dr. Valette’s testimony. 21 1 CONCLUSION 2 A reviewing court should not substitute its assessment of the evidence for 3 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must 4 defer to an ALJ’s assessment so long as it is supported by substantial evidence. 42
5 U.S.C. § 405(g). As discussed in detail above, Plaintiff failed to adequately 6 challenge the ALJ’s treatment of her symptom statements and the ALJ did not err 7 in his treatment of the opinions. After review, the court finds the ALJ’s decision is
8 supported by substantial evidence and free of harmful legal error. 9 ACCORDINGLY, IT IS HEREBY ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is
12 GRANTED. 13 The District Court Executive is hereby directed to enter this Order and 14 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE
15 the file. 16 DATED August 14, 2020.
17 s/ Rosanna Malouf Peterson 18 ROSANNA MALOUF PETERSON United States District Judge 19 20 21