Harbour v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: June 19, 2020
• Docket: 2:19-cv-01675
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 TRENT H., CASE NO. C19-1675 BHS 5 Plaintiff, ORDER AFFIRMING DENIAL OF 6 v. BENEFITS 7 COMMISSIONER OF SOCIAL SECURITY, 8 Defendant. 9 10 I. BASIC DATA 11 Type of Benefits Sought: 12 ( ) Disability Insurance 13 (X) Supplemental Security Income 14 Plaintiff’s: 15 Sex: Male 16 Age: 42 at the time of alleged disability onset. 17 Principal Disabilities Alleged by Plaintiff: Lyme disease, anxiety, panic attacks, 18 tachycardia, depression, rage, and extreme fatigue. Admin. Record (“AR”), Dkt. # 8, at 130–31. 19 Disability Allegedly Began: August 1, 2015 20 Principal Previous Work Experience: Taxi driver, order clerk, home health aide, and 21 airline security representative.

22 Education Level Achieved by Plaintiff: College degree. 1 II. PROCEDURAL HISTORY—ADMINISTRATIVE 2 Before Administrative Law Judge (“ALJ”) Virginia Robinson:

3 Date of Hearing: April 25, 2018 4 Date of Decision: October 3, 2018 5 Appears in Record at: AR at 15–29 6 Summary of Decision: 7 The claimant has not engaged in substantial gainful activity since April 29, 2016. See 20 C.F.R. §§ 416.971–76. 8 The claimant has the following severe impairments: Anxiety 9 disorders and depressive disorder. See 20 C.F.R. § 416.920(c).

10 The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed 11 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 416.920(d), 416.925, 416.926. 12 The claimant has the residual functional capacity (“RFC”) to 13 perform light work as defined in 20 C.F.R. § 416.967(b), with limitations. He can perform limited to simple routine tasks in a routine work 14 environment with occasional changes and simple work-related decisions. He can have superficial interaction with coworkers. He can have no 15 interaction with the general public but can interact without limitations with the public on the internet and telephone. 16 The claimant is unable to perform any past relevant work. See 20 17 C.F.R. § 416.965.

18 The claimant was a younger individual (age 18–49) on the date the application was filed. See 20 C.F.R. § 416.963. 19 The claimant has at least a high school education and is able to 20 communicate in English. See 20 C.F.R. § 416.964.

21 Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework 22 supports a finding that the claimant is “not disabled,” whether or not the 1 claimant has transferable job skills. See Social Security Ruling 82–41; 20 C.F.R. Part 404, Subpart P, App’x 2. 2 Considering the claimant’s age, education, work experience, and 3 RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform. See 20 C.F.R. §§ 416.969, 4 416.969(a).

5 Before Appeals Council: 6 Date of Decision: August 20, 2019 7 Appears in Record at: AR at 1–3 8 Summary of Decision: Denied review. 9 III. PROCEDURAL HISTORY—THIS COURT 10 Jurisdiction based upon: 42 U.S.C. § 405(g) 11 Brief on Merits Submitted by (X) Plaintiff (X) Commissioner 12 IV. STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s 14 denial of Social Security benefits when the ALJ’s findings are based on legal error or not 15 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 16 1211, 1214 n.1 (9th Cir. 2005). “Substantial evidence” is more than a scintilla, less than 17 a preponderance, and is such relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 19 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for 20 determining credibility, resolving conflicts in medical testimony, and resolving any other 21 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 22 Although the Court is required to examine the record as a whole, it may neither reweigh 1 the evidence nor substitute its judgment for that of the ALJ. See Thomas v. Barnhart, 2 278 F.3d 947, 954 (9th Cir. 2002). “Where the evidence is susceptible to more than one

3 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 4 must be upheld.” Id. (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 5 (9th Cir. 1999). 6 V. EVALUATING DISABILITY 7 Plaintiff bears the burden of proving he is disabled within the meaning of the 8 Social Security Act (“Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The

9 Act defines disability as the “inability to engage in any substantial gainful activity” due to 10 a physical or mental impairment which has lasted, or is expected to last, for a continuous 11 period of not less than twelve months. 42 U.S.C. § 1382c(3)(A). A claimant is disabled 12 under the Act only if his impairments are of such severity that he is unable to do his 13 previous work, and cannot, considering his age, education, and work experience, engage

14 in any other substantial gainful activity existing in the national economy. 42 U.S.C. § 15 1382c(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999). 16 The Commissioner has established a five-step sequential evaluation process for 17 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. 18 § 416.920. The claimant bears the burden of proof during steps one through four.

19 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step 20 five, the burden shifts to the Commissioner. Id. 21 VI. ISSUES ON APPEAL 22 A. Whether the ALJ harmfully erred at step two by failing to find Plaintiff’s 1 alleged Immunoglobulin M deficiency to be a severe impairment. 2 B. Whether the ALJ harmfully erred in rejecting statements from Plaintiff’s

3 treating providers. 4 C. Whether the ALJ harmfully erred in failing to address questionnaire 5 responses from Nazanin Kimiai, N.D., and Peter Hashisaki, M.D., regarding Plaintiff’s 6 alleged Immunoglobulin M deficiency. 7 D. Whether the ALJ harmfully erred in rejecting Plaintiff’s symptom 8 testimony, in part because of Plaintiff’s admitted symptom magnification.

9 E. Whether the ALJ reasonably assessed Plaintiff’s RFC. 10 VII. DISCUSSION 11 A. The ALJ Did Not Harmfully Err by Failing to Find Immunoglobulin M Deficiency a Severe Impairment at Step Two 12 Plaintiff argues the ALJ harmfully erred at step two of the disability evaluation 13 process by finding that Plaintiff did not have a severe impairment of immunoglobulin M 14 deficiency. See Pl. Op. Br. (Dkt. # 10) at 4–5. The ALJ found Plaintiff’s alleged 15 immunoglobulin M deficiency disorder was not a medically determinable impairment 16 because “the record does not contain a diagnosis from an acceptable medical source 17 based on imaging or on medically acceptable clinical or laboratory diagnostic 18 techniques.” AR at 19. The ALJ further found that Plaintiff’s “presentation in the record 19 suggest[s] no significant functional restriction from the alleged conditions/symptoms 20 because it reflects little to no abnormality in any area, including musculoskeletal, 21 neurological, and cardiac function.” Id. 22 1 The step-two inquiry is “merely a threshold determination meant to screen out 2 weak claims.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Bowen v.

3 Yuckert, 482 U.S. 137, 146–47 (1987)). At step two, the ALJ must determine if the 4 claimant suffers from any impairments that are “severe.” 20 C.F.R. § 416.920(c). As 5 long as the claimant has at least one severe impairment, the disability inquiry moves on to 6 step three. See 20 C.F.R. § 416.920(d). The step-two inquiry “is not meant to identify 7 the impairments that should be taken into account when determining the RFC.” Buck, 8 869 F.3d at 1048–49. At the RFC phase, the ALJ must consider the claimant’s

9 limitations from all impairments, including those that are not severe. Id. at 1049. “The 10 RFC therefore should be exactly the same regardless of whether certain impairments are 11 considered ‘severe’ or not.” Id. (emphasis omitted). Thus, a claimant cannot be 12 prejudiced by failure to consider a particular impairment severe at step two as long as the 13 ALJ finds the claimant has at least one severe impairment, and still addresses the non-

14 severe impairment when considering the claimant’s RFC. Id. (citing Molina v. Astrue, 15 674 F.3d 1104, 1115 (9th Cir. 2012)). 16 Plaintiff has failed to show harmful error. See Ludwig v. Astrue, 681 F.3d 1047, 17 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407–09 (2009)) (holding 18 that the party challenging an administrative decision bears the burden of proving harmful

19 error). The ALJ found Plaintiff had two severe impairments, moving on to the later steps 20 of the disability evaluation process. See AR at 18–19. And the ALJ addressed Plaintiff’s 21 alleged limitations from his immunoglobulin M deficiency when determining Plaintiff’s 22 1 RFC. See AR at 21–27. As discussed below, the ALJ reasonably evaluated the evidence 2 supporting those alleged limitations, and thus did not harmfully err at step two.

3 B. The ALJ Did Not Harmfully Err in Rejecting Statements from Plaintiff’s Treating Providers 4 Plaintiff argues the ALJ erred in rejecting “the totality of the treating opinion 5 evidence of record.” See Pl. Op. Br. at 5–7. Plaintiff fails to identify any providers by 6 name, citing instead to several pages of the record without naming the author. See id. 7 Based on those citations, it appears Plaintiff challenges the ALJ’s evaluation of 8 statements from Dr. Kimiai, Deborah Cowley, M.D., and Marty Ross, M.D. See AR at 9 375–76, 386, 400, 458. The Court does not consider the ALJ’s evaluation of any other 10 statements from Plaintiff’s providers, as Plaintiff has failed to adequately challenge those 11 evaluations. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th 12 Cir. 2008) (declining to address one of the ALJ’s findings because the claimant “failed to 13 argue this issue with any specificity in his briefing”). 14 Dr. Kimiai drafted several letters explaining her treatment of Plaintiff, his 15 symptoms, and her diagnoses. See AR at 375–76. Dr. Kimiai reported Plaintiff’s 16 symptoms to include chronic upper respiratory infections, shortness of breath, anxiety, 17 panic attacks, elevated blood pressure, difficulty with concentration, and poor memory. 18 See id. In a letter dated October 27, 2015, Dr. Kimiai reported Plaintiff’s health was 19 “slowly improving,” but he was “not able to hold a full time work position at this time.” 20 See AR at 375. In a letter dated May 4, 2016, Dr. Kimiai reported, “[d]ue to the severity 21 22 1 of his condition [Plaintiff] has not been able to hold a job to support his basic expenses.” 2 See AR at 376.

3 Dr. Cowley reported in her treatment notes and a letter that Plaintiff had various 4 symptoms related to panic and anxiety, which she concluded were disabling and rendered 5 Plaintiff unable to work. See AR at 386, 458. In a letter dated August 23, 2016, Dr. Ross 6 wrote, “I have previously diagnosed [Plaintiff] with chronic Lyme disease. This 7 condition makes it difficult for him to work.” AR at 400. 8 The ALJ gave these providers’ statements no weight. See AR at 27. First, the

9 providers’ statements that Plaintiff was disabled or could not work were legal conclusions 10 rather than medical opinions, and such conclusions are reserved to the Commissioner. 11 See AR at 27. Second, to the extent the statements constituted medical opinions, they 12 were “brief, conclusory, and inadequately supported by medical findings.” Id. Third, the 13 providers’ notes and other medical records were inconsistent with a finding of disability.

14 See id. 15 An ALJ’s reasons for rejecting a treatment provider’s opinions are subjected to 16 varying levels of scrutiny depending on the provider’s qualifications. Dr. Kimiai, as a 17 naturopathic doctor, is not an acceptable medical source under the Commissioner’s 18 regulations. See Bales v. Berryhill, 688 F. App’x 495, 497 (9th Cir. 2017); 20 C.F.R. §

19 416.902(a). The ALJ therefore needed to provide germane reasons for rejecting Dr. 20 Kimiai’s opinions. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2017) (citing Molina, 21 674 F.3d at 1111). Dr. Cowley and Dr. Ross are medical doctors, however, and qualify 22 as acceptable medical sources. See 20 C.F.R. § 416.902(a). The ALJ was accordingly 1 required to give clear and convincing reasons to reject these doctors’ uncontradicted 2 opinions, and specific and legitimate reasons to reject their contradicted opinions. See

3 Lester v. Chater, 81 F.3d 830 (9th Cir. 1996). The ALJ met her obligation under any of 4 these standards. 5 First, the ALJ reasonably rejected the treating providers’ statements that Plaintiff 6 was disabled or unable to work because those are issues reserved to the Commissioner. 7 See 20 C.F.R. § 416.927(d)(1); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 8 2011).

9 Second, the ALJ reasonably found the providers’ statements were brief, 10 conclusory, and inadequately supported. See AR at 27. “‘The ALJ need not accept the 11 opinion of any physician, including a treating physician, if that opinion is brief, 12 conclusory, and inadequately supported by clinical findings.’” Ford v. Saul, 950 F.3d 13 1141, 1154 (9th Cir. 2020) (quoting Thomas, 278 F.3d at 957). Dr. Kimiai and Dr.

14 Cowley noted that Plaintiff had symptoms such as anxiety, panic attacks, elevated blood 15 pressure, and difficulty with concentration. See AR at 375–76, 386, 458. Dr. Ross did 16 not identify any symptoms. See AR at 400. But none of those statements set forth any 17 specific functional limitations. The ALJ thus reasonably determined the providers’ 18 statements were brief and conclusory, and rejected them accordingly. See Turner v.

19 Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010). 20 The Court need not address the ALJ’s third reason for rejecting the statements of 21 Dr. Kimiai, Dr. Cowley, and Dr. Ross because any error in that analysis was harmless. 22 “[A]n error is harmless so long as there remains substantial evidence supporting the 1 ALJ’s decision and the error ‘does not negate the validity of the ALJ’s ultimate 2 conclusion.’” Molina, 674 F.3d at 1115 (quoting Batson v. Comm’r of Soc. Sec. Admin.,

3 359 F.3d 1190, 1197 (9th Cir. 2004)). The ALJ’s first two reasons are enough to justify 4 rejecting these providers’ statements regardless of whether the ALJ’s third reason was 5 valid. The ALJ therefore did not harmfully err. 6 C. The ALJ Did Not Harmfully Err in Failing to Address Questionnaire Responses from Dr. Kimiai and Dr. Hashisaki 7 Plaintiff argues the ALJ erred failed to adequately consider statements from Dr. 8 Kimiai and Dr. Hashisaki. See Pl. Op. Br. at 2–4. Both providers responded to yes/no 9 questionnaires from Plaintiff’s counsel. See AR at 462–64. Dr. Kimiai agreed Plaintiff 10 suffered from Immunoglobulin M deficiency, and agreed this predisposed Plaintiff to 11 upper respiratory infections. See AR at 462–63. Dr. Kimiai stated she had treated 12 Plaintiff for four to six such infections since January 1, 2016. See AR at 463. Dr. Kimiai 13 reported that, on average, Plaintiff had a fever and severe symptoms for one week after 14 starting antibiotics for these infections. See id. 15 Dr. Hashisaki completed a questionnaire from Plaintiff’s counsel comprised of 16 three questions, all of which were identical to questions posed to Dr. Kimiai in her 17 questionnaire. See AR at 462, 464. Dr. Hashisaki agreed Plaintiff suffered from an 18 immunoglobulin M deficiency, that it was confirmed by blood work, and that this 19 condition predisposed Plaintiff to upper respiratory infections and pneumonia. Id. 20 The ALJ did not address either provider’s responses to Plaintiff’s counsel’s 21 questionnaires. See AR at 26–27. But Plaintiff has again failed to show harmful error. 22 1 See Ludwig, 681 F.3d at 1054 (citing Shinseki, 556 U.S. at 407–09). Dr. Kimiai noted 2 Plaintiff was “predispose[d]” to upper respiratory infections, and she had treated him for

3 four to six such infections over two years as his primary care provider. See AR at 462– 4 63. But Dr. Kimiai did not express an opinion as to how frequently she expected Plaintiff 5 to suffer severe respiratory infections in the future, or what functional limitations those 6 infections would cause. See id. Dr. Hashisaki said even less, as he merely agreed 7 Plaintiff was predisposed to upper respiratory infections. See AR at 464. Plaintiff has 8 not identified any specific limitations about which the providers opined that were

9 excluded from the RFC, and has thus not shown harmful error. See Osenbrock v. Apfel, 10 240 F.3d 1157, 1163–64 (9th Cir. 2001) (noting the ALJ has no obligation to include in 11 the RFC alleged limitations for which the claimant fails to present evidence). 12 D. The ALJ Did Not Harmfully Err in Rejecting Plaintiff’s Testimony Based on Evidence of Symptom Exaggeration 13 Plaintiff argues the ALJ erred in rejecting his symptom testimony. See Pl. Op. Br. 14 at 7–8. In particular, Plaintiff argues the ALJ should have interpreted an instance in 15 which Plaintiff admitted exaggerating his symptoms as “an act of desperation and a cry 16 for help” rather than as support for rejecting Plaintiff’s testimony. See id. 17 The Ninth Circuit has “established a two-step analysis for determining the extent 18 to which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 19 F.3d 664, 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has 20 presented objective medical evidence of an impairment that “‘could reasonably be 21 expected to produce the pain or other symptoms alleged.’” Id. (quoting Garrison v. 22 1 Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). At this stage, the claimant need only 2 show the impairment could have caused some degree of the symptoms; he does not have

3 to show the impairment could reasonably be expected to cause the severity of the 4 symptoms alleged. Id. The ALJ found Plaintiff met this step because his medically 5 determinable impairments could reasonably be expected to cause some of the symptoms 6 he alleged. See AR at 22. 7 If the claimant satisfies the first step, and there is no evidence of malingering, the 8 ALJ may only reject the claimant’s testimony “‘by offering specific, clear and convincing

9 reasons for doing so. This is not an easy requirement to meet.’” Trevizo, 871 F.3d at 678 10 (quoting Garrison, 759 F.3d at 1014–15). Affirmative evidence of malingering, 11 however, can alone support an ALJ’s rejection of the plaintiff’s testimony. See Schow v. 12 Astrue, 272 F. App’x 647, 651 (9th Cir. 2008) (noting the existence of “affirmative 13 evidence suggesting malingering vitiates the clear and convincing standard of review”)

14 (internal quotation marks omitted). 15 The ALJ found Plaintiff exaggerated his symptoms, diminishing the reliability of 16 his allegations. See AR at 25. Plaintiff has failed to establish that the ALJ harmfully 17 erred in making this finding, and in relying on it to reject Plaintiff’s symptom testimony. 18 See Ludwig, 681 F.3d at 1054 (citing Shinseki, 556 U.S. at 407–09). The ALJ noted

19 Plaintiff admitted he fabricated symptoms in a report to medical providers. See AR at 25, 20 109. The ALJ further noted examining psychologist Jane Hayward, Psy.D. documented 21 numerous signs of exaggeration. See AR at 25–26. Dr. Hayward noted Plaintiff’s self- 22 reports of his family, educational, employment, and substance use histories contrasted 1 with earlier reports, such that they “appear[ed] to represent confabulation, rather than 2 actual history.” AR at 454. Dr. Hayward reported Plaintiff made errors during his

3 mental status exam that were so unusual they indicated an effort to exaggerate his 4 symptoms. See AR at 454–56. The ALJ reasonably rejected Plaintiff’s symptom 5 testimony based on this evidence. 6 Plaintiff’s request for an alternate interpretation of this evidence does not save his 7 claim. As long as the ALJ’s interpretation of the evidence is rational, it must be upheld, 8 even if other rational interpretations exist. See Thomas, 278 F.3d at 954 (citing Morgan,

9 169 F.3d at 599). Plaintiff’s argument that the ALJ should have interpreted the evidence 10 differently does not show the way the ALJ interpreted the evidence was irrational, and 11 thus Plaintiff has failed to show error. 12 E. The ALJ Did Not Err in Assessing Plaintiff’s RFC 13 Plaintiff argues the ALJ erred in assessing Plaintiff’s RFC, and erred by basing her

14 step five findings on that RFC assessment. See Pl. Op. Br. at 8–9. This argument is 15 derivative of Plaintiff’s other arguments, as it is based on the contention that the ALJ 16 failed to properly evaluate the medical evidence and Plaintiff’s symptom testimony. See 17 id. Because the Court has found that the ALJ did not err in her assessment of the 18 evidence, Plaintiff’s argument fails. See Stubbs-Danielson v. Astrue, 539 F.3d 1169,

19 1174 (9th Cir. 2008) (holding an ALJ has no obligation to include limitations in the RFC 20 that are based on properly rejected opinions and testimony). 21 22 1 VIII. ORDER 2 Therefore, it is hereby ORDERED that the Commissioner’s final decision denying

3 Plaintiff disability benefits is AFFIRMED and this case is DISMISSED with prejudice. 4 Dated this 19th day of June, 2020. A 5 6 BENJAMIN H. SETTLE 7 United States District Judge

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