Fry v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: September 20, 2022
• Docket: 2:20-cv-00429
• Status: Unknown

Opinion

Sep 20, 2022 1 SEAN F. MCAVOY, CLERK 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON

5 JEFFREY F.,1 No. 2:20-CV-00429-ACE 6 Plaintiff, ORDER GRANTING DEFENDANT’S 7 MOTION FOR SUMMARY JUDGMENT 8 v.

9 KILOLO KIJAKAZI, ACTING 10 COMMISSIONER OF SOCIAL SECURITY,2 ECF No. 17, 18 11

12 Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. 15 ECF No. 17, 18. Attorney Christopher H. Dellert represents Jeffrey F. (Plaintiff); 16 Special Assistant United States Attorney Danielle R. Mroczek represents the 17 Commissioner of Social Security (Defendant). The parties have consented to 18 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 19 record and the briefs filed by the parties, the Court GRANTS Defendant’s Motion 20 for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 21

22 1To protect the privacy of plaintiffs in social security cases, the undersigned 23 identifies them by only their first names and the initial of their last names. See 24 LCivR 5.2(c). 25 2Kilolo Kijakazi became the Acting Commissioner of Social Security on 26 July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 27 Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No 28 further action need be taken to continue this suit. See 42 U.S.C. § 405(g). 1 JURISDICTION 2 Plaintiff filed an application for Supplemental Security Income alleging 3 disability since October 1, 2017, due to “Irritation, Mood Swings, Bipolar, and 4 Autism Spectrum Disorder.” Tr. 208. The application was denied initially and 5 upon reconsideration. Administrative Law Judge (ALJ) Timothy Mangrum held a 6 hearing on February 6, 2020, Tr. 31-49, and issued an unfavorable decision on 7 March 27, 2020, Tr. 15-25. The Appeals Council denied Plaintiff’s request for 8 review on October 15, 2020. Tr. 1-6. The ALJ’s March 2020 decision thus 9 became the final decision of the Commissioner, which is appealable to the district 10 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 11 on November 23, 2020. ECF No. 1. 12 STATEMENT OF FACTS 13 Plaintiff was born on March 23, 1996, Tr. 171, and was 22 years old on the 14 amended disability onset date, November 2, 2018, Tr. 34. He completed high 15 school and a carpentry training program through Job Corps. Tr. 209. Plaintiff’s 16 disability report indicates he stopped working on October 31, 2017, because of his 17 conditions. Tr. 208. Plaintiff testified at the administrative hearing that the main 18 reason he was not able to work would most likely be his occasional, very intense 19 outbursts of emotion. Tr. 35-36. 20 Plaintiff testified he sometimes feels depressed, Tr. 37; he was usually able 21 to bathe, brush his teeth, comb his hair and perform household tasks like doing the 22 dishes and vacuuming, Tr. 37; he sometimes had difficulty leaving his house, 23 Tr. 38; handling change in his routine had recently not been a big problem because 24 his schedule was open, but he was sometimes easily distracted, Tr. 38-39; and he 25 sometimes had difficulty with memory and completing projects, Tr. 40. At the 26 time of the hearing, he was not taking any medications for his symptoms. Tr. 42. 27 /// 28 /// 1 STANDARD OF REVIEW 2 The ALJ is tasked with “determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence “is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 12 Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 13 U.S. 197, 229 (1938). If the evidence is susceptible to more than one rational 14 interpretation, the Court may not substitute its judgment for that of the ALJ. 15 Tackett, 180 F.3d at 1098; Morgan v. Commissioner of Social Sec. Admin., 169 16 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative 17 findings, or if conflicting evidence supports a finding of either disability or non- 18 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 19 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 20 substantial evidence will be set aside if the proper legal standards were not applied 21 in weighing the evidence and making the decision. Brawner v. Secretary of Health 22 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 23 SEQUENTIAL EVALUATION PROCESS 24 The Commissioner has established a five-step sequential evaluation process 25 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 26 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant 27 bears the burden of establishing a prima facie case of disability benefits. Tackett, 28 180 F.3d at 1098-1099. This burden is met once a claimant establishes that a 1 physical or mental impairment prevents the claimant from engaging in past 2 relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant cannot perform past 3 relevant work, the ALJ proceeds to step five, and the burden shifts to the 4 Commissioner to show (1) that Plaintiff can perform other substantial gainful 5 activity and (2) that a significant number of jobs exist in the national economy 6 which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1497-1498 (9th Cir. 7 1984). If a claimant cannot make an adjustment to other work in the national 8 economy, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). 9 ADMINISTRATIVE DECISION 10 On March 27, 2020, the ALJ issued a decision finding Plaintiff was not 11 disabled as defined in the Social Security Act. 12 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 13 activity since November 2, 2018, the disability application date. Tr. 17. 14 At step two, the ALJ determined Plaintiff had the following severe 15 impairments: depression, anxiety, and obesity. Tr. 17. 16 At step three, the ALJ found Plaintiff did not have an impairment or 17 combination of impairments that meets or medically equals the severity of one of 18 the listed impairments. Tr. 18. 19 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 20 Plaintiff could perform a full range of work at all exertional limitations with the 21 following non-exertional limitations: he will be off task and not productive 10% of 22 the workday; he can perform some detailed instructions and tasks; he can have no 23 interaction with the general public; and he can have only incidental contact with 24 coworkers. Tr. 20. 25 At step four, the ALJ found Plaintiff was not able to perform any past 26 relevant work. Tr. 23. 27 At step five, the ALJ determined that, based on the testimony of the 28 vocational expert, and considering Plaintiff’s age, education, work experience, and 1 RFC, Plaintiff was capable of making a successful adjustment to other work that 2 exists in significant numbers in the national economy, including the jobs of lumber 3 handler, commercial cleaner, and laborer landscape. Tr. 23-25. 4 The ALJ thus concluded Plaintiff was not under a disability within the 5 meaning of the Social Security Act at any time from November 2, 2018, the 6 disability application date, through the date of the ALJ’s decision, March 27, 2020. 7 Tr. 24-25. 8 ISSUES 9 The question presented is whether substantial evidence supports the ALJ’s 10 decision denying benefits and, if so, whether that decision is based on proper legal 11 standards. 12 Plaintiff asserts the issues before the Court are whether the ALJ erred: 13 (1) in his consideration of Plaintiff’s subjective allegations; and (2) in his weighing 14 of the opinions of the examining medical source. ECF No. 17 at 2. 15 DISCUSSION 16 A. W. Douglas Uhl, Psy.D. 17 Plaintiff contends the ALJ erred by failing to give legally sufficient reasons 18 for rejecting the medical opinions of W. Douglas Uhl, Psy.D. ECF No. 17 at 19 12-16. Defendant responds that the ALJ reasonably determined the marked 20 limitations assessed by Dr. Uhl were unpersuasive. ECF No. 18 at 9-15. 21 For claims filed on or after March 27, 2017, new regulations apply that 22 change the framework for how an ALJ must weigh medical opinion evidence. 23 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 24 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new 25 regulations provide the ALJ will no longer give any specific evidentiary weight to 26 medical opinions or prior administrative medical findings, including those from 27 treating medical sources. 20 C.F.R. § 416.920c(a). Instead, the ALJ will consider 28 the persuasiveness of each medical opinion and prior administrative medical 1 finding, regardless of whether the medical source is an acceptable medical source. 2 20 C.F.R. § 416.920c(c). The ALJ is required to consider multiple factors, 3 including supportability, consistency, the source’s relationship with the claimant, 4 any specialization of the source, and other factors (such as the source’s familiarity 5 with other evidence in the file or an understanding of Social Security’s disability 6 program). Id. The regulations make clear that the supportability and consistency 7 of the opinion are the most important factors, and the ALJ must articulate how they 8 considered those factors in determining the persuasiveness of each medical opinion 9 or prior administrative medical finding. 20 C.F.R. § 416.920a(b). The ALJ may 10 explain how they considered the other factors, but the ALJ is not required to except 11 in cases where two or more opinions are equally well-supported and consistent 12 with the record. Id. 13 Supportability and consistency are further explained in the regulations as 14 follows:

15 (1) Supportability. The more relevant the objective medical evidence 16 and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical 17 finding(s), the more persuasive the medical opinions or prior 1 18 9

administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior 20 administrative medical finding(s) is with the evidence from other 21 medical sources and nonmedical sources in the claim, the more 22 persuasive the medical opinion(s) or prior administrative medical 23

f inding(s) will be. 24 20 C.F.R. § 416.920c(c). 25 On January 22, 2018, Dr. Uhl completed a mental status examination of 26 Plaintiff and filled out a Psychological/Psychiatric Evaluation form. Tr. 345-350. 27 Dr. Uhl noted Plaintiff reported panic attacks in almost every new situation and 28 was taking anti-depressant medication for depression symptoms. Tr. 347. Dr. Uhl 1 diagnosed Bipolar I Disorder, most recent episode depressed; panic disorder; and 2 conversion disorder (only present when employed). Tr. 347. With respect to 3 Plaintiff’s basic work activities, Dr. Uhl opined Plaintiff’s overall severity rating 4 was moderate, finding one marked limitation (in his ability to perform activities 5 within a schedule, maintain regular attendance, and be punctual within customary 6 tolerances without special supervision). Tr. 348. On September 18, 2018, Dr. Uhl 7 completed another psychological/psychiatric evaluation, and, on this occasion, he 8 concluded Plaintiff had several marked limitations despite again finding Plaintiff’s 9 overall severity rating was moderate. Tr. 357-360. 10 The ALJ found the opinion of Dr. Uhl “less persuasive,” noting it was not 11 entirely consistent with Plaintiff’s treatment notes and not supported by Plaintiff’s 12 benign presentation. Tr. 22. The ALJ noted Dr. Uhl’s opinions relied, in part, on 13 Plaintiff’s self-reported symptoms and limitations; however, Plaintiff’s description 14 of difficulties was contrary to his endorsement of only mild symptoms of 15 depression and anxiety during appointments with other providers. Tr. 22. The 16 ALJ indicated Dr. Uhl was unaware of this evidence because he reviewed no 17 outside records. Tr. 22. 18 With respect to consistency, the ALJ noted Dr. Uhl’s marked limitation 19 findings were inconsistent with Plaintiff’s treatment notes as providers typically 20 observed Plaintiff in no distress and found Plaintiff had normal mood, behavior, 21 speech, dress, motor activity, thought processes, alertness, and orientation. 22 Tr. 22, 368 (alert, well appearing, and in no distress; normal mood, speech, dress, 23 motor activity, and thought processes), 371 (same), 373 (same), 409 (same), 24 465 (same), 475 (same), 387 (logical and progressive thought content, congruent 25 with a presenting affect of cooperative and pleasant), 415 (mood, memory, affect 26 and judgment normal), 462 (memory, affect and judgment normal). The ALJ also 27 noted Plaintiff’s description of severe symptoms to Dr. Uhl, see Tr. 347 (reporting 28 he has panic attacks in almost every new situation), 357 (reporting that some days 1 he was not able to get out of bed, had no motivation, feels depressed, and does not 2 care about what happens that day), contrasted with the mild mental health 3 symptoms he endorsed elsewhere in the record, see Tr. 409-410 (feels his 4 symptoms had improved since discontinuing his prescribed medications), 5 415 (feels stable on medication), 465, 474. Tr. 22. The ALJ found persuasive 6 other medical professionals who opined Plaintiff was capable of performing 7 detailed tasks and completing a normal workweek with occasional, superficial 8 contact with others. Tr. 22 citing Tr. 58-60, 71-73. Dr. Uhl’s opinions were not 9 consistent with the foregoing medical evidence. 10 Moreover, the undersigned finds it significant that Dr. Uhl’s initial report 11 noted the duration of Plaintiff’s impairment would persist for only nine months, 12 there was no need for a protective payee, vocational training or services would 13 “minimize or eliminate barriers to employment,” and that Plaintiff should be 14 referred to DVR3 as soon as possible. Tr. 349. Accordingly, Dr. Uhl’s initial 15 report is also internally inconsistent. 16 With respect to supportability, as noted by the ALJ, Tr. 22, Dr. Uhl reviewed 17 no relevant outside records in preparation of his evaluation. Tr. 345 (reviewed 18 only December 2014 DSHS psychological evaluation which is not a part of the 19 administrative record), 357 (reviewed only his own January 22, 2018 evaluation). 20 However, as discussed above, treatment notes reflect Plaintiff typically presented 21 in no distress; had normal mood, behavior, speech, dress, motor activity, thought 22 processes, alertness, and orientation; and reported only mild mental health 23 3DVR is a statewide resource assisting people with disabilities to prepare 24 for, secure, maintain, advance in, or regain employment. DVR partners with 25 organizations and businesses to develop employment opportunities and serves 26 people who seek meaningful, secure employment but whose disabilities may result 27 in one or more barriers to achieving an employment goal. 28 1 symptoms. Supra. In addition, the only new information provided by Dr. Uhl in 2 his September 18, 2018 report is that Plaintiff was fired from his last job for 3 insubordination in October 2017, Tr. 357, and that there were occasions during the 4 interview portion of the evaluation where Plaintiff was a “smart ass,” Tr. 358. 5 Nevertheless, on this occasion, Dr. Uhl concluded, without explanation, that 6 Plaintiff now had several marked limitations. Tr. 358-359. Dr. Uhl’s opinion that 7 Plaintiff had marked limitations is not supported. 8 The Court finds the ALJ provided sufficient rationale for finding 9 unpersuasive the marked limitations assessed by Dr. Uhl. The ALJ’s conclusion in 10 this regard is supported by substantial evidence. 11 B. Plaintiff’s Subjective Complaints 12 Plaintiff challenges the ALJ’s rejection of Plaintiff’s subjective allegations. 13 ECF No. 17 at 3-12. Defendant responds that the ALJ reasonably found Plaintiff’s 14 subjective complaints inconsistent with the evidence of record. ECF No. 18 at 3-8. 15 It is the province of the ALJ to make credibility determinations. Andrews, 16 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 17 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 18 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 19 testimony must be “specific, clear and convincing.” Lester v. Chater, 81 F.3d 821, 20 834 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must 21 identify what testimony is not credible and what evidence undermines the 22 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 23 918 (9th Cir. 1993). 24 In this case, the ALJ found Plaintiff’s medically determinable impairments 25 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 26 statements concerning the intensity, persistence and limiting effects of those 27 symptoms were not entirely consistent with the medical and other evidence of 28 record. Tr. 20. 1 The ALJ first determined Plaintiff’s allegations of disabling mental 2 impairments were not consistent with the objective medical evidence. Tr. 21. 3 A lack of supporting objective medical evidence is a factor which may be 4 considered in evaluating an individual’s credibility, provided it is not the sole 5 factor. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Robbins v. Soc. Sec. 6 Admin., 466 F3d 880, 883 (9th Cir. 2006). 7 The ALJ acknowledged Plaintiff had been diagnosed with depression and 8 anxiety and treated with counseling and medications. Tr. 21. However, as 9 discussed in Section A, above, treatment notes reveal providers typically observed 10 Plaintiff in no distress and noted Plaintiff had normal mood, behavior, speech, 11 dress, motor activity, thought processes, alertness, and orientation. Supra. As 12 indicated by the ALJ, Tr. 21-22, Plaintiff endorsed mild mental health symptoms 13 from January 2019 through October 2019, and state agency reviewers Jon 14 Anderson, Ph.D., and Renee Eisenhauer, Ph.D., found Plaintiff capable of 15 performing detailed tasks and completing a normal workweek with occasional, 16 superficial contact with others. Tr. 58-60, 71-73. 17 The Court finds the credible objective medical evidence of record 18 demonstrates Plaintiff was not as limited as he alleged in this case. 19 The ALJ next mentioned Plaintiff reported stabilization of his symptoms 20 with therapy and medications. Tr. 21. 21 An ALJ may rely on the effectiveness of treatment to find a plaintiff’s 22 testimony unpersuasive. See Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 23 595, 599-600 (9th Cir. 1999) (an ALJ may properly rely on a report that a 24 plaintiff’s symptoms improved with the use of medication); Odle v. Heckler, 707 25 F.2d 439, 440 (9th Cir. 1983) (noting impairments that are controlled by treatment 26 cannot be considered disabling). 27 /// 28 /// 1 As indicated by the ALJ, Tr. 21, the record reflects Plaintiff reported his 2 symptoms stabilized with therapy and medications, see Tr. 370 (patient has been 3 stable), 415 (reported feeling stable on medication), 436 (feeling more stable), 4 464 (symptoms are currently manageable). Moreover, Plaintiff testified at the 5 administrative hearing that he was not taking any medication for his symptoms. 6 Tr. 21, 42. 7 The evidence of record supports the ALJ’s finding that Plaintiff’s symptoms 8 improved when he was complaint with his medication management. 9 The ALJ also indicated Plaintiff gave inconsistent statements regarding his 10 symptoms and limitations. Tr. 21. 11 In determining credibility, an ALJ may engage in ordinary techniques of 12 credibility evaluation, such as considering claimant’s reputation for truthfulness 13 and inconsistencies in claimant’s testimony. Burch v. Barnhart, 400 F.3d 676, 680 14 (9th Cir. 2005); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). When 15 a claimant fails to be a reliable historian, “this lack of candor carries over” to other 16 portions of his testimony. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 17 The ALJ mentioned Plaintiff alleged he was unable to live independently, 18 Tr. 430, yet he had been living alone in an apartment since October 2016, Tr. 191, 19 and that Plaintiff’s allegations of inability to work were inconsistent with his 20 occasional searches for jobs on the computer, 358. Tr. 21. Plaintiff additionally 21 mentioned difficulty with maintaining focus, but the ALJ noted Plaintiff had no 22 apparent problems maintaining focus while playing video games for multiple hours 23 throughout the day, Tr. 345. Tr. 21. 24 The ALJ appropriately found these inconsistencies detracted from Plaintiff’s 25 overall believability. 26 The ALJ is responsible for reviewing the evidence and resolving conflicts or 27 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 28 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 1|| evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 2|| determining whether the ALJ’s decision is supported by substantial evidence and may not substitute its own judgment for that of the ALJ even if it might justifiably 4|| have reached a different result upon de novo review. 42 U.S.C. § 405(g). After reviewing the record, the Court finds that the ALJ provided clear and convincing 6|| reasons, which are fully supported by the record, for finding Plaintiff's symptom allegations were not entirely credible in this case. 8 CONCLUSION 9 Having reviewed the record and the ALJ’s findings, the Court finds the 10|| ALJ’s decision is supported by substantial evidence and free of error. Accordingly, IT IS HEREBY ORDERED: 12 1. Defendant’s Motion for Summary Judgment, ECF No. 18, is 13|| GRANTED. 14 2. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 15 IT IS SO ORDERED. The District Court Executive is directed to file this 16|| Order and provide a copy to counsel. Judgment shall be entered for 17|| DEFENDANT and the file shall be CLOSED. 18 DATED September 20, 2022. 19 SD, 20 Clyenabec ( Gham Cj, Oe ds ALEXANDER C. EKSTROM —_ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28