Gibson v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: August 11, 2023
• Docket: 1:22-cv-03163
• Status: Unknown

Opinion

U.S. DISTRICT COURT 1 EASTERN DISTRICT OF WASHINGTON Aug 11, 2023 2 3 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT

4 EASTERN DISTRICT OF WASHINGTON 5 VEDELL G., 6 No. 1:22-CV-3163-WFN Plaintiff, 7 ORDER -vs- 8 KILOLO KIJAKAZI, Acting 9 Commissioner of Social Security

10 Defendant. 11 12 Vedell G. [Plaintiff] brings this action seeking judicial review of the Commissioner 13 of Social Security's final decision denying his application for disability benefits. ECF No. 1. 14 Attorney D. James Tree represents Plaintiff. Special Assistant United States Attorney Ryan 15 Lu represents the Commissioner [Defendant]. After reviewing the administrative record and 16 the briefs filed by the parties, the Court AFFIRMS the Commissioner's final decision. 17 JURISDICTION 18 Plaintiff applied for Supplemental Security Income on September 4, 2019, alleging 19 disability beginning on July 3, 2017. Tr. 16, 187–92. The application was denied initially, 20 Tr. 80–88, and on reconsideration, Tr. 90–103. Administrative Law Judge [ALJ] Joseph 21 Hajjar held a hearing on August 6, 2021, Tr. 50–78, and issued an unfavorable decision on 22 August 17, 2021, Tr. 16–30. The Appeals Council denied review on September 12, 2022. 23 Tr. 1–6. The ALJ's August 2021 decision became the Commissioner's final decision, which 24 is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action 25 for judicial review on November 7, 2022. ECF No. 1. 26 FACTS 27 Plaintiff was born in 1979 and was 38 years of age as of his alleged onset date. Tr. 28 29, 55. He has a GED, Tr. 29, 582, and very minimal work history. Tr. 57. Plaintiff alleges 1 disability based on posttraumatic stress disorder [PTSD], anti-social personality disorder, 2 anxiety, and panic disorders. Tr. 54–55. 3 STANDARD OF REVIEW 4 The ALJ is responsible for determining credibility, resolving conflicts in medical 5 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 6 Cir.1995). The Court reviews the ALJ's legal conclusions de novo but gives deference 7 to a reasonable interpretation of a statute the agency is charged with administering. See 8 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The ALJ's decision will be 9 reversed only if it is not supported by substantial evidence or if it is based on legal error. 10 Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). Substantial evidence is more 11 than a scintilla, but less than a preponderance. Id. at 1098. Put another way, "'[i]t means such 12 relevant evidence as a reasonable mind might assess as adequate to support a 13 conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. 14 v. NLRB, 305 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 15 interpretation, the Court may not substitute its judgment for the ALJ's. Tackett, 180 F.3d at 16 1097–98; Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The 17 ALJ's decision is conclusive if it is supported by substantial evidence, even if conflicting 18 evidence supports a finding of either disability or non-disability. Sprague v. Bowen, 812 19 F.2d 1226, 1229–30 (9th Cir. 1987). But a decision supported by substantial evidence will 20 still be set aside if it is based on legal error. Brawner v. Sec'y of Health & Hum. Servs., 839 21 F.2d 432, 433 (9th Cir. 1988). 22 SEQUENTIAL EVALUATION PROCESS 23 The Commissioner has established a five-step sequential evaluation process for 24 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); Bowen v. 25 Yuckert, 482 U.S. 137, 140–42 (1987). In steps one through four the claimant bears the 26 burden of establishing disability. Tackett, 180 F.3d at 1098–99. This burden is met once a 27 claimant establishes that a physical or mental impairment prevents him from engaging in 28 past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 1 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to the 2 Commissioner to show (1) the claimant can make an adjustment to other work; and (2) the 3 claimant can perform specific jobs that exist in the national economy. Batson v. Comm'r of 4 Soc. Sec. Admin., 359 F.3d 1190, 1193–94 (9th Cir. 2004). If a claimant cannot make an 5 adjustment to other work in the national economy, he will be found disabled. 20 C.F.R. §§ 6 404.1520(a)(4)(v), 416.920(a)(4)(v). 7 ADMINISTRATIVE DECISION 8 On August 17, 2021, the ALJ issued a decision finding Plaintiff was not disabled as 9 defined in the Social Security Act. Tr. 16–30. 10 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 11 since the alleged onset date. Tr. 18. 12 At step two, the ALJ determined Plaintiff had the following severe impairments: 13 "hypertension, obesity, circulatory system disease, [PTSD], anxiety, alcohol addiction, 14 personality disorder, and depressive disorder." Id. 15 At step three, the ALJ found Plaintiff did not have an impairment or combination of 16 impairments that met or medically equaled the severity of one of the listed impairments. Tr. 17 18–21. 18 The ALJ assessed Plaintiff's Residual Functional Capacity [RFC] and found he can 19 perform medium work 20 except: [Plaintiff] can frequently climb ramps and stairs; can occasionally 21 climb ladders, ropes, and scaffolds; can frequently balance, stoop, kneel, 22 crouch, and crawl; can adapt to occasional and superficial interactions with 23 supervisors, coworkers, and the public ("superficial" means no arbitration, 24 negotiation, mediation, confrontation, or being responsible for the safety 25 o[r] supervision of other); and can adapt to routine[] workplace 26 changes. 27 Tr. 21. 28 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 29. 1 At step five, the ALJ found, based on the vocational expert's testimony, and 2 considering Plaintiff's age, education, work experience, and RFC, there were other jobs that 3 existed in significant numbers in the national economy that Plaintiff could perform. Tr. 29– 4 30. The ALJ specifically identified the representative occupations of sweeper/cleaner, hand 5 packager, and industrial cleaner. Tr. 30. 6 The ALJ thus concluded Plaintiff was not under a disability within the meaning of the 7 Social Security Act at any time from the alleged onset date. Id. 8 ISSUES 9 The question presented is whether substantial evidence supports the ALJ's decision 10 denying benefits and, if so, whether the decision is based on proper legal standards. 11 Plaintiff contends the ALJ erred by (1) improperly rejecting Plaintiff's claims of 12 disabling symptoms from PTSD and anxiety without reasons that were specific, clear, and 13 convincing, (2) finding Plaintiff's PTSD did not meet Listing 12.15, and (3) improperly 14 rejecting medical opinion evidence. 15 DISCUSSION 16 (1) Plaintiff's Subjective Symptom Testimony 17 Plaintiff contends the ALJ erred by rejecting his subjective symptom testimony. ECF 18 No. 11 at 8–15. 19 It is the province of the ALJ to make determinations regarding a claimant's subjective 20 complaints. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ's 21 findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 22 1231 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 23 medical impairment, the ALJ may not discredit testimony as to the severity of an impairment 24 merely because it is unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 25 (9th Cir. 1998). Absent affirmative evidence of malingering, the ALJ's reasons for rejecting 26 the claimant's testimony must be "specific, clear and convincing." Smolen, 80 F.3d at 1281; 27 see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). "General findings are 28 insufficient: rather the ALJ must identify what testimony is not credible and what evidence 1 undermines the claimant's complaints." Lester, 81 F.3d at 834; see also Dodrill v. Shalala, 2 12 F.3d 915, 918 (9th Cir. 1993). 3 Plaintiff testified he cannot work because being around other people makes him too 4 uncomfortable. Tr. 61. Plaintiff explained he was in prison for a sex offense for a long time 5 and does not know how to behave outside of that context. Tr. 62–64. He cannot help but 6 react aggressively if someone looks at him too long. Id. In short, Plaintiff claims he cannot 7 work because he cannot get along with others and because he is overcome by panic and 8 anxiousness. Tr. 54, 61–69. When asked if he could maintain a job that did not require him 9 to interact with others, he said it would make him too scared to be by himself outside of his 10 own space. Tr. 70. 11 The ALJ found Plaintiff's medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms; however, he found Plaintiff's statements 13 concerning the intensity, persistence and limiting effects of his symptoms were not entirely 14 consistent with the medical evidence and other evidence in the record. Tr. 21–25. 15 The ALJ found Plaintiff's claims were inconsistent with the objective medical 16 evidence. TR. 22–23. Mental status examinations were generally unremarkable, showing 17 normal mood, affect, memory, judgment, and interactions. Tr. 23, 272, 276, 280, 706, 708, 18 713. Treatment notes too showed mostly normal behavior, concentration, attention, and 19 memory. Tr. 23–24, 383, 440–41. Similarly, the ALJ found Plaintiff had improved with 20 treatment. Tr. 24, 580, 583, 592, 602. These are legitimate reasons for discounting Plaintiff's 21 symptom claims. See Smartt v. Kijakazi, 53 F.4th 489, 498–500 (9th Cir. 2022). And 22 although the ALJ did not credit the full extent of Plaintiff's claimed limitations, he still 23 included significant social limitations in the RFC. Tr. 21. 24 Plaintiff argues the ALJ erred by discounting his symptom claims as inconsistent with 25 the objective evidence. ECF No. 11 at 11–14. Notably, Plaintiff contends it was 26 inappropriate for the ALJ to consider remarks about Plaintiff's behavior made during the 27 course of treatment for physical issues. Id. at 11–12. According to Plaintiff, it is normal for 28 doctors to make no mention of matters beyond their own specialty. Id. But Plaintiff mistakes 1 the ALJ's reasoning. The ALJ found Plaintiff's claims that he could not get along in any 2 social situations were inconsistent with his seeming ability to get along with multiple 3 healthcare providers. Tr. 28–29. Plaintiff also cites records to show that his claims are 4 consistent with the objective evidence. ECF No. 11 at 13–14. But the Court must uphold the 5 ALJ's finding because it is supported by substantial evidence, even if there is evidence in 6 the record that could support a contrary conclusion. See Morgan, 169 F.3d at 599. Finally, 7 Plaintiff argues the ALJ cannot reject symptom claims merely because they are unsupported 8 by the record. ECF No. 11 at 12. This argument fails because the ALJ gave additional 9 reasons for rejecting Plaintiff's symptom claims. See Tr. 23. 10 The ALJ also found Plaintiff's claims were inconsistent with his daily activities. Tr. 11 23. Contrary to Plaintiff's claims that he cannot have any social interactions, he goes 12 drinking at bars, has romantic relationships with multiple partners, visits regularly with 13 friends and his mother, and drives family members places. Tr. 23–24, 422, 509, 575, 590, 14 668. He also reported he "is able to go shopping for groceries and other personal needs 15 whenever he needs them" and is also able to take care of the rest of his own daily needs on 16 his own. Tr. 562. Plaintiff offers a competing interpretation of the evidence and argues that 17 his activities are consistent with his claimed symptoms. ECF No. 11 at 9–11. However, the 18 Court will uphold the ALJ's interpretation of the evidence because it is reasonable. See Burch 19 v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005). 20 (2) Step Three 21 Plaintiff argues the ALJ erred at step three by finding Plaintiff's PTSD did not meet 22 or equal Listing 12.15. ECF No. 11 at 5–8. 23 At step three the ALJ must determine whether the claimant's impairments meet or 24 equal an impairment listed in 20 C.F.R. pt. 404, Subpt. P, app. 1. 20 C.F.R. § 416.925(d). If 25 the claimant's impairments do meet or equal a listing, the claimant will be found disabled 26 without further inquiry. 20 C.F.R. § 416.9250(a)(4)(iii); Kennedy v. Colvin, 738 F.3d 1172, 27 1176 (9th Cir. 2013). This is so because the listed impairments are highly severe. See 28 Kennedy, 738 F.3d at 1176. For established mental impairments, the ALJ must rate the 1 severity according to the Paragraph B criteria. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 2 12.00(A)(2)(a). The Paragraph B criteria cover the claimant's ability to (1) understand, 3 remember, or apply information; (2) interact with others, (3) concentrate, persist, or maintain 4 pace, and (4) adapt or manage oneself. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2)(b). 5 The claimant's impairment will only meet the listing if he has an extreme limitation in at 6 least one of the Paragraph B criteria or a marked limitation in at least two. See 20 C.F.R. pt. 7 404, subpt. P, app. 1, § 12.00(F)(2). 8 Here, the ALJ found Plaintiff had no limitation in understanding, remembering, or 9 applying information; moderate limitation in interacting with others; mild imitation in 10 concentrating, persisting, or maintaining pace, and moderate limitation in adapting or 11 managing oneself. Tr. 19–20. In finding Plaintiff had moderate limitation in interacting with 12 others, the ALJ considered objective evidence indicating Plaintiff was irritable, paranoid, 13 and hypervigilant. Tr. 20. However, the ALJ also considered objective evidence showing 14 Plaintiff was friendly and cooperative with treatment providers, as discussed above. Id. 15 Likewise, the ALJ found Plaintiff's activities, discussed above, were inconsistent with an 16 extreme limitation in Plaintiff's ability to interact with others. Id. 17 Plaintiff argues the ALJ erred by not finding that Plaintiff has an extreme limitation 18 in interacting with others. ECF No. 11 at 7. According to Plaintiff the evidence actually 19 leads to the conclusion that he is extremely limited in his ability to interact with others. Id. 20 Plaintiff offers alternative explanations for the evidence the ALJ cited in support of his 21 finding. Id. However, this Court will affirm the ALJ's reasoning because it is rational. See 22 Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) ("[T]he key question is not whether 23 there is substantial evidence that could support a finding of disability, but whether there is 24 substantial evidence to support the Commissioner's actual finding that claimant is not 25 disabled."). 26 (3) Medical Opinion Evidence 27 Plaintiff alleges the ALJ erred by improperly evaluating the opinions of Marvin Neal 28 Anderson, L.I.C.S.W., and Thomas Genthe, Ph.D. ECF No. 11 at 15–20. 1 The ALJ considers the persuasiveness of each medical opinion and prior 2 administrative medical finding, regardless of whether the medical source is an Acceptable 3 Medical Source. 20 C.F.R. § 404.1520c(c). The ALJ is required to consider multiple 4 factors, including supportability, consistency, the source's relationship with the 5 claimant, any specialization of the source, and other factors, such as the source's familiarity 6 with other evidence in the file or an understanding of Social Security's disability 7 program. Id. The regulations make clear that the supportability and consistency of 8 the opinion are the most important factors, and the ALJ must articulate how he 9 considered those factors in determining the persuasiveness of each medical opinion or prior 10 administrative medical finding. 20 C.F.R. § 404.1520c(b). The ALJ may explain how 11 he considered the other factors, but is not required to do so, except in cases where 12 two or more opinions are equally well-supported and consistent with the record. 13 Id. 14 Supportability and consistency are further explained in the regulations: 15 (1) Supportability. The more relevant the objective medical evidence and 16 supporting explanations presented by a medical source are to support his or her 17 medical opinion[s] or prior administrative medical finding[s], the more 18 persuasive the medical opinions or prior administrative medical finding[s] will 19 be. 20 (2) Consistency. The more consistent a medical opinion[s] or prior 21 administrative medical finding[s] is with the evidence from other medical 22 sources and nonmedical sources in the claim, the more persuasive the medical 23 opinion[s] or prior administrative medical finding[s] will be. 24 20 C.F.R. § 404.1520c(c). 25 The Ninth Circuit has additionally held that the new regulatory framework displaces 26 the longstanding case law requiring an ALJ to provide "specific and legitimate" or "clear 27 and convincing" reasons for rejecting a treating or examining doctor's opinion. Woods v. 28 Kijakazi, 32 F.4th 785, 787, 792 (9th Cir. 2022). "Now, an ALJ's decision, including the 1 decision to discredit any medical opinion, must simply be supported by substantial 2 evidence." Id. at 787. 3 (a) Marvin Neal Anderson, L.I.C.S.W. 4 Mr. Anderson was Plaintiff's treating therapist. On July 30, 2021, he completed a form 5 questionnaire provided by Plaintiff's counsel. Tr. 700–04. Among other things, Mr. 6 Anderson checked boxes stating Plaintiff would be unable to: "maintain attention and 7 concentration for extended periods"; "perform activities within a schedule, maintain regular 8 attendance, and be punctual within customary limits"; "sustain an ordinary routine without 9 special supervision"; "work in coordination with or proximity to others without being 10 distracted by them"; "complete a normal workday and workweek without interruptions from 11 psychologically based symptoms and . . . perform at a consistent pace without an 12 unreasonable number and length of rest periods"; "interact appropriately with the general 13 public"; "accept instructions and respond appropriately to criticism from supervisors"; or 14 "get along with coworkers or peers without distracting them or exhibiting behavioral 15 extremes." Tr. 701–02. Mr. Anderson also stated Plaintiff would be off task more than 30% 16 of the time and absent at least four days a month. Tr. 703. He opined Plaintiff had moderate 17 limitations in understanding, remembering, and applying information, and extreme 18 limitations in the other three Paragraph B criteria. Id. He also agreed Plaintiff satisfied the 19 Paragraph C criteria. Id. 20 The ALJ found these opinions unpersuasive because they were not supported by 21 citations to objective evidence or consistent with the record as a whole. Tr. 26. Although 22 Mr. Anderson indicated Plaintiff had extreme limitations in concentrating, persisting, or 23 maintaining pace, mental status notes consistently described Plaintiff as having good 24 alertness, concentration, and attention, id. (citing Tr. 276, 280, 583, 595), and objective 25 measures confirmed that description, id. (citing Tr. 462–94). Regarding social interaction, 26 the ALJ noted reports that Plaintiff is paranoid, hypervigilant, and irritable. Tr. 26. However, 27 The ALJ also considered Plaintiff's generally normal mental status exams during physical 28 treatment, ability to interact positively with treatment providers, and social activities— 1 discussed above—all of which the ALJ found inconsistent with Mr. Anderson's extreme 2 social limitations. Id. Finally, the ALJ noted Mr. Anderson's opinion was inconsistent with 3 the opinions of Steven Hanly, M.D., and Michael Regets, Ph.D., whom the ALJ found to be 4 more persuasive. Id. 5 Plaintiff argues the ALJ erred by rejecting Mr. Anderson's opinion for not being 6 supported by citations to objective evidence. ECF No. 15 at 17–18. According to Plaintiff it 7 is error, under Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014), to reject a treating 8 source's check-the-box report if it is supported by numerous records. ECF No. 11 at 17–18. 9 However, Garrison was decided under law that has since been superseded. See Woods, 32 10 F.4th at 791–92. Under the current regulatory regime, treating sources are not entitled to 11 special weight, and supportability and consistency are the most important factors. See 20 12 C.F.R. § 404.1520c. The ALJ discussed those factors and reasonably found Mr. Anderson's 13 opinion was inconsistent with the record and insufficiently supported. Plaintiff goes on to 14 argue the evidence is consistent with Mr. Anderson's opinion, ECF No. 11 at 18–19, but the 15 ALJ's finding will be upheld because it is supported by substantial evidence, see Morgan, 16 169 F.3d at 599. 17 (b) Thomas Genthe, Ph.D. 18 Dr. Genthe evaluated Plaintiff on February 12, 2020. Tr. 462–94, 560–70. He opined 19 Plaintiff had marked impairments in maintaining appropriate behavior at work and 20 completing a normal workday and workweek without interruption. Tr. 465. He also opined 21 treatment for six to nine months could be enough to address Plaintiff's issues moderately 22 well. Tr. 466. 23 The ALJ found Dr. Genthe's opinion unpersuasive because it was not supported by 24 explanation or by the results of Dr. Genthe's own examination, which was fairly 25 unremarkable. Tr. 27. Plaintiff reported he could care for himself independently, including 26 buying groceries, washing laundry, cleaning, and grooming. Id. (citing Tr. 562). He also 27 performed basic cognitive tasks, had normal memory, paid attention, and was friendly with 28 the examiner. Id. (citing Tr. 562). 1 Plaintiff argues that the ALJ rejected Dr. Genthe's opinion because it was presente in a check-the-box form. ECF No. 11 at 19-20. The Court disagrees. The ALJ rejected D 3|| Genthe's opinion because it was not supported by an explanation and because it wa 4|| inconsistent with the record. As discussed above, these are appropriate factors for rejectin 5|| medical opinion evidence under current regulations. See 20 C.F.R. § 404.1520c. Here toc 6|| Plaintiff argues the evidence is contrary to the ALJ's findings, ECF No. 11 at 19-20, but th Court upholds the ALJ's finding because it 1s supported by substantial evidence. 8 CONCLUSION 9 Having reviewed the record and the ALJ's findings, the Court finds the ALJ's decisio 10|| is supported by substantial evidence and free of reversible error. The Court has reviewed th briefs and the file and is fully informed Accordingly, 12 IT IS ORDERED that: 13 1. Plaintiff's Brief, filed March 10, 2023, ECF No. 11, is DENIED. 14 2. Defendant's Brief, filed May 8, 2023, ECF No. 15, is GRANTED. 15 The District Court Executive is directed to file this Order and provide copies t counsel. Judgment shall be entered for Defendant and the file shall be CLOSED. 17 DATED this 11th day of August, 2023. 18 . 19 L. D1. Aa — 20 WM. FREMMING NIELSEN 51 || 2 SENIOR UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28