Deal v. Commissioner of Social Security

• Court: District Court, E.D. Washington
• Decided: April 28, 2020
• Docket: 1:19-cv-03075
• Status: Unknown

Opinion

1 2 3 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 4 Apr 28, 2020 5 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK 6 EASTERN DISTRICT OF WASHINGTON

8 CYNTHIA D., No. 1:19-CV-03075-JTR

9 Plaintiff, 10 11 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY 12 ANDREW M. SAUL, JUDGMENT 13 COMMISSIONER OF SOCIAL SECURITY,1 14

15 Defendant.

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 13, 18. Attorney D. James Tree represents Cynthia D. (Plaintiff); Special 18 Assistant United States Attorney Jeffrey Eric Staples represents the Commissioner 19 of Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 7. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 22 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 23

25 1 Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). 1 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on December 21, 2015, alleging disability since 4 June 30, 2015 due to insomnia, chronic pelvic pain, IBS/Crohn’s disease, constant 5 whole body swelling, learning disability, bowel problems, restless leg syndrome, 6 depression, and anxiety. Tr. 87-88. The applications were denied initially and 7 upon reconsideration. Tr. 148-63, 164-75. Administrative Law Judge (ALJ) Ilene 8 Sloan held a hearing on October 24, 2017, Tr. 53-84, and issued an unfavorable 9 decision on May 11, 2018. Tr. Tr. 28-41. Plaintiff requested review from the 10 Appeals Council and the Appeals Council denied the request for review on 11 February 21, 2019. Tr. 1-6. The ALJ’s May 2018 decision became the final 12 decision of the Commissioner, which is appealable to the district court pursuant to 13 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on April 17, 2019. 14 ECF No. 1. 15 STATEMENT OF FACTS 16 Plaintiff was born in 1977 and was 38 years old as of her alleged onset date. 17 Tr. 39. She has a high school diploma that she obtained with special education 18 services. Tr. 61-62. Her work history included caregiving, retail, security, and deli 19 work. Tr. 65-66. She testified she is unable to work due to pain throughout her 20 body and gastrointestinal problems requiring frequent restroom breaks. Tr. 66, 74- 21 75. 22 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. Commissioner of Social Sec. Admin., 8 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 9 administrative findings, or if conflicting evidence supports a finding of either 10 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 11 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 12 supported by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision. Brawner v. 14 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 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), 18 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 19 four, the burden of proof rests upon the claimant to establish a prima facie case of 20 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 21 met once a claimant establishes that a physical or mental impairment prevents the 22 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 23 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 24 to step five, and the burden shifts to the Commissioner to show (1) the claimant 25 can make an adjustment to other work; and (2) the claimant can perform specific 26 jobs that exist in the national economy. Batson v. Comm’r of Soc. Sec. Admin., 27 359 F.3d 1190, 1193-94 (9th Cir. 2004). If a claimant cannot make an adjustment 28 1 to other work in the national economy, the claimant will be found disabled. 20 2 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 3 ADMINISTRATIVE DECISION 4 On May 11, 2018, the ALJ issued a decision finding Plaintiff was not 5 disabled as defined in the Social Security Act. 6 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 7 activity since the alleged onset date. Tr. 30. 8 At step two, the ALJ determined Plaintiff had the following severe 9 impairments: irritable bowel syndrome, borderline intellectual functioning, and 10 depressive disorder. Tr. 31. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 32-33. 14 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 15 she could perform light work with the following specific limitations:

16 She can only occasionally climb ladders, ropes, or scaffolds. She can 17 frequently climb ramps and stairs, and can frequently stoop, kneel, 18 crouch, and crawl. She should avoid concentrated exposure to hazards, extreme cold, heat, fumes, odors, dusts, gases, and areas with 19 poor ventilation. She can understand, remember, and carry out short, 20 simple tasks where such tasks are predetermined by the employer.

21 Tr. 33. 22 At step four, the ALJ found Plaintiff was capable of performing her past 23 relevant work as a cashier. Tr. 39. 24 Despite making dispositive step four findings, the ALJ alternatively found at 25 step five that, based on the testimony of the vocational expert, and considering 26 Plaintiff’s age, education, work experience, and RFC, there were jobs that existed 27 in significant numbers in the national economy that Plaintiff was capable of 28 1 performing, including the jobs of housekeeping cleaner, fast food worker, and 2 production assembler. Tr. 40. 3 The ALJ thus concluded Plaintiff was not under a disability within the 4 meaning of the Social Security Act at any time from the alleged onset date through 5 the date of the decision. Tr. 41. 6 ISSUES 7 The question presented is whether substantial evidence supports the ALJ’s 8 decision denying benefits and, if so, whether that decision is based on proper legal 9 standards. 10 Plaintiff contends (1) the Appeals Council erred in failing to consider and 11 exhibit relevant evidence; and the ALJ erred by (2) failing to fully develop the 12 record; (3) improperly assessing Plaintiff’s fibromyalgia; (4) improperly assessing 13 the medical opinions; and (5) not fully crediting Plaintiff’s testimony. 14 DISCUSSION 15 1. Step Two - Fibromyalgia 16 Plaintiff argues the ALJ erred in failing to find fibromyalgia to be a severe 17 impairment at step two. ECF No. 13 at 7-10. 18 At step two of the sequential evaluation process, the ALJ must determine 19 whether the claimant has any medically determinable severe impairments. 20 20 C.F.R. §§ 404.1520(a)(ii), 416.920(a)(ii). The impairment “must result from 21 anatomical, physiological, or psychological abnormalities that can be shown by 22 medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §§ 23 404.1521, 416.921. The claimant bears the burden of demonstrating that an 24 impairment is medically determinable and severe. Valentine v. Comm’r Soc. Sec. 25 Admin., 574 F.3d 685, 689 (9th Cir. 2009). 26 The ALJ found Plaintiff’s alleged musculoskeletal pain was not associated 27 with a medically determinable impairment. Tr. 31. She noted that the record 28 included only a brief mention of fibromyalgia based solely on Plaintiff’s report, 1 and found the record did not contain the requisite findings to establish 2 fibromyalgia as an established condition. Id. The ALJ further found that even if 3 fibromyalgia was a medically determinable impairment, there was insufficient 4 evidence to establish it as being severe. Id. 5 Plaintiff argues the ALJ’s rationale is not supported by substantial evidence. 6 Referencing Social Security Ruling 12-2p, Plaintiff notes the record contains 7 evidence of the necessary signs and symptoms needed to establish fibromyalgia as 8 medically determinable. ECF No. 13 at 7. She further notes that all medical 9 opinions in the record assess Plaintiff’s physical functioning based on the finding 10 that she had severe fibromyalgia, and the ALJ’s independent finding to the 11 contrary was not supported by any evidence. Id. at 8-9. 12 The Court finds the ALJ’s analysis to be supported by substantial evidence. 13 The ALJ is correct that the record contains no workup documenting the diagnosis 14 of fibromyalgia, including trigger point testing or documentation of attempts to 15 rule out other causes.2 Plaintiff received no specific treatment for fibromyalgia 16 during the relevant period, and it does not appear as an active diagnosis in her 17 treating doctor’s records until after the ALJ issued her decision. Tr. 14, 361, 365, 18 367, 412. The consultative examiner did not perform trigger point testing or 19 document any objective findings to substantiate Plaintiff’s report of diffuse 20 muscular pain other than some reduced range of motion in the back and difficulty 21 bending forward. Tr. 394. The Court finds the ALJ did not err in finding 22 fibromyalgia to not be a medically determinable impairment. 23 2. Opinion evidence 24

25 2 Plaintiff argues Dr. Guturu’s records indicate the necessary “rule out” 26 investigations. ECF No. 13 at 8. However, Dr. Guturu is a gastroenterology 27 specialist and was only referring to an extensive workup that was done with respect 28 to Plaintiff’s GI symptoms, and not her diffuse body pain. Tr. 382. 1 Plaintiff alleges the ALJ improperly weighed the opinion evidence. ECF 2 No. 13 at 10-14. Specifically, she alleges the ALJ gave insufficient reasons for 3 rejecting the opinions from treating source Dr. Ross Bethel and consultative 4 examiner Dr. Mary Pellicer. Id. 5 When a treating or examining physician’s opinion is contradicted by another 6 physician, the ALJ may reject the opinion by providing “specific and legitimate 7 reasons,” based on substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1041 8 (9th Cir. 1995); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Dr. Bethel 9 and Dr. Pellicer’s opinions were contradicted by the state agency reviewing 10 doctor’s opinion. Tr. 120-22. 11 a. Treating doctor Ross Bethel 12 In February 2017, Dr. Bethel completed a medical source statement 13 regarding Plaintiff’s ability to work. Tr. 416-17. He noted her diagnoses included 14 fibromyalgia, chronic abdominal pain, severe depression, and pelvic pain. Tr. 416. 15 He said her prognosis was poor based on her prolonged course of symptoms 16 without response to numerous treatments. Tr. 417. He estimated that Plaintiff 17 would miss on average three days of work per month if she attempted to work a 18 full-time job. Tr. 417. 19 The ALJ gave this opinion little weight, noting Dr. Bethel did not provide a 20 completed evaluation with objective findings consistent with his opinion, and 21 instead indicated that workup had been largely normal. Tr. 39. The ALJ further 22 found none of the treatment records to contain objective findings consistent with 23 the opinion. Id. Finally, she noted the opinion was somewhat based on the 24 diagnosis of fibromyalgia, which the ALJ found was not supported by the overall 25 record. Id. 26 The lack of explanation and lack of support from any treating records are 27 both specific and legitimate reasons to discount the opinion from Dr. Bethel. 20 28 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (“The better an explanation a source 1 provides for an opinion, the more weight we will give that opinion.”); see also 2 Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014)(noting the opinions 3 provided were accompanied by numerous records, “and were therefore entitled to 4 weight that an otherwise unsupported and unexplained check-box form would not 5 merit.”). Dr. Bethel did not explain the basis for his opinion on the form, and his 6 medical records do not clarify the matter, particularly in light of his explicit 7 statement that workup had been largely normal. 8 Plaintiff reasserts her arguments regarding fibromyalgia being an established 9 impairment, and argues that Dr. Bethel, as Plaintiff’s treating doctor, would have 10 been well-aware of her fibromyalgia diagnosis and symptoms. ECF No. 13 at 11- 11 12. She further argues that the comment about largely normal findings is 12 consistent with the presentation of fibromyalgia. As discussed above, the ALJ did 13 not err in her evaluation of fibromyalgia. Dr. Bethel’s records do not indicate 14 fibromyalgia as being one of Plaintiff’s impairments until months after the ALJ’s 15 decision. Compare Tr. 14 (including fibromyalgia as a current problem) with Tr. 16 361, 365, 367-68, 412 (not mentioning current diagnosis of fibromyalgia or 17 including it in medical history). The ALJ’s evaluation is supported by substantial 18 evidence. 19 b. Examining doctor Mary Pellicer 20 Plaintiff underwent a consultative physical exam with Dr. Mary Pellicer in 21 March 2016. Tr. 390-95. Dr. Pellicer’s clinical impression was that Plaintiff 22 suffered limitations from bowel issues (presumed IBS), diffuse musculoskeletal 23 pain secondary to fibromyalgia (somewhat improved with more movement), 24 chronic mental health issues including depression and anxiety, and a learning 25 disability. Tr. 394. She opined Plaintiff could stand and walk for six hours in a 26 day with frequent breaks due to IBS and fibromyalgia; could sit unlimited; could 27 lift and carry 10 pounds occasionally; could not bend; could occasionally engage in 28 1 other postural activities; and had no limitations in manipulative activities, hearing, 2 speaking, or traveling independently. Tr. 395. 3 The ALJ found portions of Dr. Pellicer’s opinion, regarding sitting, standing, 4 and manipulative activities, to be consistent with the largely unremarkable 5 examination findings and the objective medical evidence; however, she found the 6 opinion regarding lifting and postural limitations to be inconsistent with the 7 essentially normal exam findings and Plaintiff’s unremarkable presentation in the 8 record as a whole. Tr. 38. She further found Dr. Pellicer based the limitations in 9 part on Plaintiff’s reported diagnosis of fibromyalgia, which was not a medically 10 determinable impairment. Id. 11 Plaintiff argues the ALJ’s rationale was insufficient. She first argues that, 12 despite the ALJ’s assertion that the standing and walking limits were consistent 13 with the exam, she failed to actually credit the limit, as the doctor opined Plaintiff 14 would need frequent breaks throughout the day due to her IBS and fibromyalgia. 15 ECF No. 13 at 13-14. Plaintiff additionally raises the same objections as discussed 16 above with respect to fibromyalgia and its lack of objective signs. Id. at 14. 17 The Court finds the ALJ did not err in her evaluation. With respect to Dr. 18 Pellicer’s opinion that Plaintiff could stand or walk for six hours in a workday with 19 frequent breaks, Dr. Pellicer failed to explain what she meant by “frequent.” It is 20 unclear whether she was indicating more frequent breaks than would be normally 21 allowed throughout the workday. Because this statement is vague and imprecise, 22 the Court finds the ALJ was not required to credit or reject it. See Valentine v. 23 Comm, ’r Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009) (reasoning that 24 the ALJ is not required to credit or reject an examining doctor’s recommendations 25 for coping with symptoms when those recommendations do not include opinions as 26 to specific functional limitations). 27 As discussed above, the ALJ adequately explained her rationale for finding 28 fibromyalgia to not be medically established. To the extent Dr. Pellicer relied on 1 that diagnosis in formulating her opinion, the ALJ sufficiently explained her 2 rejection. The exam findings document some slight tenderness in Plaintiff’s 3 abdomen and decreased range of motion in the back and that Plaintiff walked with 4 a slight limp and had some difficulty bending forward. Tr. 392-94. Her physical 5 exam was otherwise normal. Id. An ALJ may legitimately consider the 6 supportability and consistency of an opinion with exam findings and the record as 7 a whole. 20 C.F.R. § 404.1527(c). 8 Additionally, a doctor’s opinion may be discounted if it is “based to a large 9 extent on a claimant’s self-reports that have been properly discounted as 10 incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Plaintiff 11 reported a ten-year history of fibromyalgia. Tr. 390. However, fibromyalgia did 12 not appear in her medical history with her primary doctor. Tr. 361-62, 382, 412- 13 14. As discussed further below, the ALJ gave sufficient reasons for discounting 14 Plaintiff’s reports. Dr. Pellicer did not perform trigger point testing or any other 15 evaluations that indicate her diagnosis of fibromyalgia was based on something 16 other than Plaintiff’s self-reports. 17 The Court finds the ALJ offered specific and legitimate reasons for 18 discounting Dr. Pellicer’s opinion. 19 3. Plaintiff’s subjective statements 20 Plaintiff alleges the ALJ improperly disregarded her subjective symptom 21 reports. ECF No. 13 at 14-21. 22 It is the province of the ALJ to make credibility determinations. Andrews v. 23 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 24 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 25 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 26 medical impairment, the ALJ may not discredit testimony as to the severity of an 27 impairment merely because it is unsupported by medical evidence. Reddick v. 28 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 1 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 2 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 3 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 4 insufficient: rather the ALJ must identify what testimony is not credible and what 5 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 6 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 7 The ALJ found Plaintiff’s medically determinable impairments could 8 reasonably be expected to cause few of the alleged symptoms; however, she found 9 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 10 her symptoms to be generally not consistent with the medical evidence and other 11 evidence in the record. Tr. 34. The ALJ found Plaintiff’s allegations to be 12 undermined by inconsistent statements in the record, Plaintiff’s work history and 13 daily activities, and evidence that she remained unemployed due to factors other 14 than disability. Tr. 34-37. The ALJ also found Plaintiff’s allegations to be 15 unsupported by the objective evidence of her medical and mental conditions. Tr. 16 36-37. 17 The Court finds no error. While not every reason offered by the ALJ 18 withstands scrutiny, the ALJ offered sufficient clear and convincing reasons for 19 disregarding Plaintiff’s subjective complaints. See Carmickle v. Comm'r Soc. Sec. 20 Admin, 533 F.3d 1155, 1163 (9th Cir. 2008) (upholding an adverse credibility 21 finding where the ALJ provided four reasons to discredit the claimant, two of 22 which were invalid); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 23 (9th Cir. 2004) (affirming a credibility finding where one of several reasons was 24 unsupported by the record); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 25 2008) (an error is harmless when “it is clear from the record that the . . . error was 26 inconsequential to the ultimate nondisability determination”). 27 a. Inconsistent statements 28 1 The ALJ found Plaintiff’s reports about stopping work in 2015 due to her 2 impairments to be inconsistent with the fact that Plaintiff had continued to work 3 through 2015 with the same conditions. Tr. 34-35. The ALJ also noted conflicting 4 and confusing reports about the reasons she stopped working. Tr. 35. Finally, the 5 ALJ noted an observation from Dr. Bethel that Plaintiff’s symptom reports did not 6 always make sense, with her reporting no bowel movements for weeks on end 7 without signs of obstruction. Id. 8 An ALJ may consider inconsistent statements by a claimant in assessing her 9 credibility. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The ALJ’s 10 interpretation of the record as reflecting conflicting explanations from Plaintiff as 11 to the basis for the end of her work is reasonable. In her disability report she 12 reported stopping work in 2015 due to her conditions. Tr. 272-73. However, she 13 also reported to her GI doctor only a few weeks before the alleged onset date that 14 she had had no change in her symptoms in the last 4-5 years. Tr. 382. At the 15 consultative exam she reported she was fired from her job after passing out at 16 home, and when asked to elaborate, “gave a vague and confusing explanation.” Tr. 17 402. Plaintiff asserts there is no inconsistency, as the record reflects Plaintiff was 18 having dizzy spells and seeing black spots around this time, and that this is one of 19 her many conditions that contributed to the loss of employment. ECF No. 13 at 16. 20 While Plaintiff offers an alternative interpretation of the record, the ALJ’s 21 interpretation is also reasonable. “If the evidence can reasonably support either 22 affirming or reversing a decision, we may not substitute our judgment for that of 23 the Commissioner.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 24 Plaintiff’s implication that the consultative examiner simply didn’t understand how 25 her conditions could have led to a blackout episode is not an accurate reflection of 26 the examiner’s notes; rather, Dr. Johnson indicated that Plaintiff’s explanation was 27 vague and confusing, not the concept that she could have experienced a blackout. 28 Tr. 402. 1 The ALJ’s discussion of Dr. Bethel’s records as showing contradictions is 2 not a clear and convincing reason for discounting Plaintiff’s allegations. Simply 3 because her symptoms did not make sense to her providers does not mean the 4 symptoms were unbelievable. Dr. Bethel did not characterize her reports as 5 contradictory and at no time did he indicate that he did not believe her. Tr. 365. In 6 the records submitted after the hearing, Dr. Bethel noted he did believe she was 7 disabled even though he had been unable to determine the root of her chronic 8 abdominal pain. Tr. 15. 9 b. Objective evidence 10 Although it cannot serve as the sole ground for rejecting a claimant’s 11 symptom statements, objective medical evidence is a “relevant factor in 12 determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 13 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 14 The ALJ identified a number of factors regarding the objective medical and 15 mental evidence that failed to support Plaintiff’s allegations, including extensive 16 normal workups with respect to her GI problems, normal physical exams, reported 17 symptoms that did not make sense to her treating provider, and testimony 18 regarding symptoms and side effects that did not appear in her medical records. Tr. 19 36. With respect to her mental health allegations, the ALJ found them to be 20 undermined by her lack of specialized treatment and medication, and exam 21 findings indicating no greater limitations than those already contained in the RFC. 22 Tr. 37. While Plaintiff offers alternative interpretations of the objective record, the 23 ALJ’s discussion is reasonable and supported by substantial evidence. 24 c. Unemployment due to non-disability factors 25 The ALJ found Plaintiff’s disabling symptom reports to be undermined by 26 evidence suggesting her unemployment was due to factors other than her 27 impairments, namely economic factors. Tr. 35. The ALJ cited to Plaintiff’s report 28 to Dr. Johnson that she was looking for jobs, but jobs were scarce; the ALJ found 1 this suggested she was unemployed due to lack of jobs and not her medical 2 conditions. Id., citing 5F/5 (contained in this record at Tr. 403). However, the 3 immediately preceding sentence in the report states: “She says she wants to work 4 but can’t.” Tr. 403. The ALJ’s reading is selective. While a claimant would not 5 be found disabled based only on job availability factors, she would be disabled if 6 economic factors resulted in there not being jobs that existed in significant 7 numbers in the national economy that the claimant could perform given her 8 particular medical limitations. The ALJ’s selective reading of the sentence as 9 implying Plaintiff was primarily unemployed due to lack of jobs is not supported 10 by substantial evidence. 11 d. Work history 12 An ALJ may rely on evidence that a claimant’s condition “ha[s] remained 13 constant for a number of years” and “ha[s] not prevented [the claimant] from 14 working over that time.” Gregory v. Bowen, 844 F.2d 664, 666-67 (9th Cir. 1988). 15 The ALJ discussed Plaintiff’s work history and found that her ability to 16 work previously, while reporting essentially the same level of symptomatology, 17 undermined her current allegations of disability. Tr. 35-36. Specifically, the ALJ 18 noted Plaintiff’s reports of years-long GI symptoms, full body pain, and learning 19 disability did not interfere with her ability to work as a nurse assistant, food sales 20 clerk, and cashier in the past, and that the record did not reflect worsening of her 21 conditions at the time of the alleged onset date. Tr. 35. 22 The ALJ is correct that the record reflects Plaintiff reporting virtually the 23 same symptoms over the relevant period. In June 2015, prior to the alleged onset 24 date, she reported to Dr. Guturu that her GI condition had not changed over the 25 past 4-5 years. Tr. 382. Nearly a year later she told Dr. Bethel her symptoms had 26 not changed since the consult with Dr. Guturu. Tr. 412. 27 However, the ALJ’s rationale is undermined somewhat by her own finding 28 that Plaintiff’s impairments rendered her physically incapable of performing at 1 least some of her past jobs. Tr. 39. Similarly, the ALJ’s discussion of Plaintiff’s 2 past ability to perform semi-skilled work is not particularly relevant in light of the 3 ALJ’s finding that Plaintiff is now limited to performing only short and simple 4 tasks that are predetermined by the employer. Tr. 33. The ALJ’s implication that 5 Plaintiff’s conditions have not worsened since she last worked is inconsistent with 6 her own findings. Thus, this does not constitute a clear and convincing reason for 7 discounting Plaintiff’s subjective statements. 8 e. Daily activities 9 The ALJ found Plaintiff’s activities are generally not consistent with her 10 allegations. Tr. 37. Specifically, the ALJ found Plaintiff’s unhindered activities 11 regarding self- and household care to be inconsistent with her allegations of 12 chronic severe abdominal cramping and musculoskeletal pain, and found it 13 unlikely that Plaintiff would have been able to care for small children if she was in 14 constant pain and had to use the bathroom every 10 to 20 minutes. Id. 15 While a claimant’s daily activities may support an adverse credibility 16 finding if the activities contradict other testimony, Orn v. Astrue, 495 F.3d 625, 17 639 (9th Cir. 2007), the ALJ failed to identify activities that show any 18 inconsistency with Plaintiff’s allegations. The ability to care for herself and do 19 household chores is not inconsistent with being in pain. Plaintiff testified she does 20 not do much during the day due to pain (Tr. 68-69) and she told a consultative 21 examiner that the chores she does engage in make her exhausted by the end of the 22 day, but she tries to stay busy to distract herself from pain. Tr. 404. The Ninth 23 Circuit has warned ALJs against using minimal household activities against 24 disability claimants:

25 We have repeatedly warned that ALJs must be especially cautious in 26 concluding that daily activities are inconsistent with testimony about 27 pain, because impairments that would unquestionably preclude work 28 and all the pressures of a workplace environment will often be 1 consistent with doing more than merely resting in bed all day. 2 3 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) citing Smolen v. Chater, 80 4 F.3d 1273, 1287 n.7 (9th Cir. 1996) (“The Social Security Act does not require that 5 claimants be utterly incapacitated to be eligible for benefits, and many home 6 activities may not be easily transferable to a work environment where it might be 7 impossible to rest periodically or take medication.” (citation omitted)); Fair, 885 8 F.2d at 603 (“[M]any home activities are not easily transferable to what may be the 9 more grueling environment of the workplace, where it might be impossible to 10 periodically rest or take medication.”). 11 With respect to Plaintiff’s babysitting activities, while the ALJ’s conclusion 12 regarding watching children and the frequency of bathroom breaks is logical, there 13 is virtually no evidence of Plaintiff’s responsibilities when caring for her friends’ 14 children, and both times she has watched children have been for limited durations, 15 and therefore do not reflect ongoing daily activities. Tr. 63-65. Trevizo v. 16 Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (“As discussed above, however, there 17 is almost no information in the record about Trevizo's childcare activities; the mere 18 fact that she cares for small children does not constitute an adequately specific 19 conflict with her reported limitations.”). 20 4. ALJ’s development of the record 21 Plaintiff asserts the ALJ erred in failing to fully develop the record when she 22 failed to obtain records from the University of Washington Medical Center. ECF 23 No. 13 at 6-7. 24 An ALJ has a duty to make every reasonable effort to develop the record and 25 obtain evidence from all of a claimant’s medical sources for the relevant period. 26 20 C.F.R. § 404.1512. 27 Plaintiff’s representative at the hearing level submitted a letter to the 28 Hearing Office requesting assistance in obtaining medical records. Tr. 348. This 1 request included the University of Washington Medical Center, and indicated 2 treatment dates were “01/01/04 – 01/01/05” and did not contain regular ongoing 3 treatment. Id. At the hearing, Plaintiff’s representative apologized to the ALJ for 4 submitting a request with incorrect dates on it, and clarified that the request was 5 supposed to be for records for 2014, 2015, and up to the present. Tr. 56. 6 Plaintiff asserts the mistake was explained at the hearing and the records 7 should have been requested. ECF No. 13 at 7. Plaintiff also notes that two other 8 sources of records were included on the request letter and internal hearing office 9 notes indicate that records were indeed requested from 2014 and 2015, thus 10 indicating the hearing office staff recognized the typo for the other two requests 11 and should have made the same inference with regard to the UW Medical Center 12 records. Id. 13 The Court finds no error. At the hearing the ALJ specifically asked whether 14 there were any outstanding records and the representative indicated there was only 15 one outstanding record from Lakeview Spine Therapy. Tr. 57. Despite discussing 16 the request that contained the incorrect dates, the representative made no indication 17 that those records still needed to be obtained. Tr. 56. He limited his comments 18 only to apologizing to the ALJ for the mistake and any additional work it may have 19 caused for anyone. Tr. 56. Based on these representations at hearing, the ALJ 20 made all reasonable efforts to fully develop the record and obtain records that she 21 was informed of. 22 5. Evidence submitted to the Appeals Council 23 Following the issuance of the ALJ’s decision, Plaintiff filed a request for 24 review with the Appeals Council. Tr. 236-39. In connection with the request, 25 Plaintiff submitted additional records and a medical source opinion from Dr. Ross 26 Bethel. Tr. 7-19. The Appeals Council found this additional evidence did not 27 show a reasonable probability that it would change the outcome of the decision, 28 and thus did not exhibit the evidence. Tr. 2. 1 Plaintiff argues the Appeals Council erred in failing to exhibit this evidence 2 and in finding it was not probable that the evidence would change the outcome of 3 the decision. ECF No. 13 at 3-5. Defendant asserts the decision of the Appeals 4 Council is not a reviewable decision, and even though the evidence is a part of the 5 record before this court, it is largely duplicative of other evidence from Dr. Bethel, 6 which the ALJ appropriately disregarded. ECF No. 18 at 10-11. 7 It has been established by the Ninth Circuit that federal courts “do not have 8 jurisdiction to review a decision of the Appeals Council denying a request for 9 review of an ALJ’s decision, because the Appeals Council decision is a non-final 10 agency action.” Brewes v. Comm’r of Soc. Sec., 682 F.3d 1157, 1161 (9th Cir. 11 2012) (citing Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1231 (9th Cir. 2011)). 12 However, when the Appeals Council is presented with new evidence in deciding 13 whether to review an ALJ’s decision, the evidence becomes part of the 14 administrative record and the Court must consider the new evidence, along with 15 the record as a whole, when reviewing the ALJ’s decision for substantial evidence. 16 Id. at 1162- 63; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 17 2007) (noting that when the Appeals Council considers new evidence in denying a 18 claimant’s request for review, the reviewing court considers both the ALJ’s 19 decision and the additional evidence submitted to the Council); Harman v. Apfel, 20 211 F.3d 1172, 1180 (9th Cir. 2000) (“We properly may consider the additional 21 materials because the Appeals Council addressed them in the context of denying 22 Appellant’s request for review.”). 23 The Court declines to review the decision of the Appeals Council in this 24 case, because the decision is a non-final agency action. Consistent with Brewes, 25 the new evidence submitted to the Appeals Council is now part of the 26 administrative record, and the Court will consider whether the ALJ’s decision is 27 still supported by substantial evidence in light of the record as a whole. 682 F.3d 28 at 1162-63. The Court finds that it is. 1 The ALJ issued her decision on May 11, 2018. Tr. 41. The records 2 submitted to the Appeals Council all post-date the ALJ’s decision, and therefore do 3 not pertain to whether Plaintiff was disabled on or before May 11, 2018. Tr. 7-19. 4 The treatment records submitted cover three visits in August, September, and 5 October of 2018. Tr. 12-19. Though Dr. Bethel’s October 13, 2018 letter refers to 6 Plaintiff’s “long-standing” conditions, the letter fails to specify the particular time 7 period at issue. Tr. 7. The Physical Functional Evaluation form Dr. Bethel filled 8 out contains no comments as to how long Plaintiff’s conditions had rendered her 9 unable to meet the demands of sedentary work, and indeed did not even contain an 10 answer to how long Plaintiff’s impairments had existed. Tr. 9-11. 11 Furthermore, Dr. Bethel’s letter states only that Plaintiff is unable to 12 “consistently work” and has not been able to “sustain employment.” Id. Such 13 comments are on issues reserved to the Commissioner and are not given any 14 special significance in a disability determination. 20 C.F.R. § 404.1527(d). The 15 functional evaluation form indicates that Plaintiff’s GI testing and imaging had all 16 been normal over many years, and Dr. Bethel failed to offer an explanation for the 17 basis of the significant limitations, thus rendering the opinion virtually 18 unsupported. 20 C.F.R. § 404.1527(c)(3). As discussed above, the ALJ 19 reasonably discounted Dr. Bethel’s earlier opinion on the basis that it was 20 unsupported by any stated objective findings, either from Dr. Bethel himself or 21 throughout the record as a whole. 22 The Court finds that the new evidence does not render the ALJ’s decision 23 unsupported by substantial evidence. 24 CONCLUSION 25 Having reviewed the record and the ALJ’s findings, the Court finds the 26 ALJ’s decision is supported by substantial evidence and free of legal error and is 27 affirmed. Therefore, IT IS HEREBY ORDERED: 28 1. Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 2 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 3 The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 5|| and the file shall be CLOSED. 6 IT IS SO ORDERED. 7 DATED April 28, 2020.

° JOHNT. RODGERS 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28