Houlihan v. Commissioner of Social Security

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 BEATRIZ H., Case No. 3:23-cv-05915-TLF 7 Plaintiff, v. ORDER AFFIRMING 8 DEFENDANT’S DECISION TO COMMISSIONER OF SOCIAL DENY BENEFITS 9 SECURITY, 10 Defendant. 11 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of 12 defendant’s denial of plaintiff’s application for disability insurance benefits (“DIB”). 13 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule 14 MJR 13, the parties have consented to have this matter heard by the undersigned 15 Magistrate Judge. Dkt. 3. Plaintiff challenges the ALJ’s decision finding that plaintiff was 16 not disabled. Dkt. 1, Complaint. 17 I. ISSUES FOR REVIEW 18 1. Whether the ALJ Properly Evaluated Plaintiff’s Subjective Symptom Testimony 19 2. Whether the ALJ Erred by Failing to Evaluate Lay Witness Testimony 20 II. BACKGROUND 21 Plaintiff filed an application for DIB in November 2020, alleging an onset date of 22 October 31, 2019. AR 134, 143. Plaintiff’s application was denied initially and on 23 reconsideration. AR 142, 150. Administrative Law Judge (“ALJ”) Allen Erickson held a 24 1 hearing on August 18, 2022 (AR 79–132) and issued a decision on August 30, 2022, 2 finding plaintiff not disabled from her alleged onset date to her date last insured of June 3 30, 2021. AR 59–78. Plaintiff now seeks judicial review of the ALJ’s decision. 4 III. STANDARD OF REVIEW

5 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 6 denial of Social Security benefits if the ALJ's findings are based on legal error or not 7 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 8 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such 9 relevant evidence as a reasonable mind might accept as adequate to support a 10 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations 11 omitted). 12 IV. DISCUSSION 13 A. Whether the ALJ Properly Evaluated Plaintiff’s Subjective Symptom Testimony 14 When assessing a claimant’s residual functional capacity (“RFC”), “the ALJ must

15 consider all relevant evidence in the record,” including the claimant’s testimony about 16 the effects of symptoms “‘reasonably attributed to a medically determinable 17 impairment.’” See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) 18 (quoting Social Security Ruling (“SSR”) 96-8P at *5). The Ninth Circuit has “established 19 a two-step analysis for determining the extent to which a claimant’s symptom testimony 20 must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ 21 must determine whether there is a medically determinable impairment that reasonably 22 could be expected to cause the claimant’s symptoms. 20 C.F.R. § 404.1529(b). 23 Symptoms alone “will not be found to affect [a claimant's] ability to do basic work

24 1 activities unless medical signs or laboratory findings show that a medically determinable 2 impairment is present.” 20 C.F.R. § 404.1529(b). Medical signs and laboratory findings 3 are established by medically acceptable clinical or laboratory diagnostic techniques. Id. 4 If the claimant satisfies the first step, and there is no evidence of malingering, the ALJ

5 may reject the claimant’s testimony “‘by offering specific, clear and convincing reasons 6 for doing so.’” Trevizo, 871 F.3d at 678 (quoting Garrison v. Colvin, 759 F.3d 995, 7 1014–15 (9th Cir. 2014)). If, however, “medical signs and laboratory findings do not 8 substantiate any medically determinable impairment capable of producing the 9 individual’s alleged symptoms, the ALJ need not evaluate the individual’s symptoms at 10 step two” of this two-step analysis. See SSR 16-3P at *4. 11 In this case, the ALJ determined plaintiff has only the severe medically 12 determinable impairment of anemia. AR 64. Plaintiff does not assign error to the ALJ’s 13 evaluation of her testimony relating to her anemia, but contends the ALJ erred by failing 14 to consider her pain testimony relating to her interstitial cystitis, pelvic floor dysfunction,

15 and pelvic congestion syndrome, such as her abdominal and bladder pain. See Dkt. 7 at 16 3–6. 17 However, the ALJ reasonably considered plaintiff’s symptom testimony relating to 18 her anemia, but not discussing other testimony regarding symptoms such as pain from 19 other conditions, because anemia is her only medically determinable impairment. See 20 SSR 16-3P at *4; AR 64, 68. Plaintiff makes no substantive challenge to this finding, 21 stating only that “the ALJ erred in his consideration of her pelvic floor dysfunction and 22 mental impairments at Step Two and beyond”; yet plaintiff points to no meaningful 23 evidence to support her assertion. See Dkt. 7 at 1; 10 at 1. It is the claimant who has

24 1 the burden of showing a medically determinable impairment. Bowen v. Yuckert, 482 2 U.S. 137, 138, (1987). Yet plaintiff’s citations simply show her own reports of pain and 3 improvement in her condition, not medical signs or laboratory findings clearly stating the 4 diagnoses of these conditions. See Dkt. 7 at 3 (citing AR 350–51, 355, 357, 371–72,

5 376, 435–36, 439, 442, 476, 780). The Court also notes there did not seem to be any 6 citations discussing pelvic floor dysfunction. 7 In contrast, the ALJ’s finding is supported by the record; the medical record 8 shows no definitive diagnoses of interstitial cystitis, pelvic floor dysfunction, or pelvic 9 congestion syndrome. AR 68 (citing AR 436–39, 649, 687–92, 951 [treatment notes 10 stating plaintiff’s ultrasound was consistent with pelvic congestion syndrome but also 11 stating it cannot be definitively diagnosed]); AR 436, 442, 486–87, 647, 691, 780, 785 12 [observations of “possible interstitial cystitis” but also statements about how plaintiff’s 13 symptoms were atypical and not definitive of interstitial cystitis]). 14 Plaintiff also argues that though the ALJ did not find her interstitial cystitis, pelvic

15 floor dysfunction, and pelvic congestion syndrome, medically determinable, the ALJ 16 nonetheless decided to consider symptoms relating to these conditions -- but did not 17 actually do so. Dkt. 7 at 3–4. Plaintiff specifically points to the ALJ’s discussion at step 18 two where the ALJ stated the following: “[T]he medical record shows the 19 urology/urogynecology doctors did not actually diagnose [interstitial cystitis, pelvic floor 20 dysfunction, and pelvic congestion syndrome]. Accordingly, the undersigned finds these 21 impairments are not medically determinable impairments. However, her symptoms have 22 been fully considered in evaluating her medically determinable impairments to the 23 extent that they can be attributed to them.” AR 68.

24 1 According to plaintiff, the last sentence of the ALJ’s explanation indicates the ALJ 2 intended to evaluate her symptom testimony related to her interstitial cystitis, pelvic floor 3 dysfunction, and pelvic congestion syndrome. Dkt. 7 at 3–4. But the decision, in context, 4 shows the ALJ was explaining that the symptoms related to those conditions were

5 considered before ultimately declining to find them as medically determinable 6 impairments. See AR 68. 7 In assessing a claimant’s RFC, the ALJ must consider a claimant’s symptoms 8 and limitations. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 9 2009). However, “[t]he RFC assessment considers only functional limitations and 10 restrictions that result from an individual’s medically determinable impairment or 11 combination of impairments.” SSR 96-8P at *1. That the ALJ did not evaluate plaintiff’s 12 testimony relating to her interstitial cystitis, pelvic floor dysfunction, and pelvic 13 congestion syndrome, was permissible given the ALJ’s determination that they are not 14 medically determinable impairments. The Court finds no error with the ALJ’s evaluation

15 of her testimony. 16 B. Whether the ALJ Erred by Failing to Evaluate Lay Witness Testimony 17 Plaintiff contends the ALJ erred by disregarding the function reports provided by 18 her spouse. Dkt. 7 at 6–8. 19 Under the revised regulations, ALJs are “not required to articulate” how they 20 evaluate evidence from nonmedical sources using the same factors applicable to 21 medical opinion evidence. 20 C.F.R. § 404.1520c(d). But the Ninth Circuit has also yet 22 to address whether under the 2017 regulations, an ALJ is still required to provide 23 germane reasons for discounting lay witnesses. Stephens v. Kijakazi, No. 22-35998,

24 1 2023 WL 6937296, at *2 (9th Cir. Oct. 20, 2023). At the same time, if lay witness 2 testimony is similar to the claimant’s testimony, and the ALJ provided valid reasons for 3 rejecting the claimant's testimony, the ALJ’s disregard of lay witness testimony is 4 harmless because the ALJ’s reasons for discounting claimant’s testimony apply equally

5 to the lay witness testimony. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 6 (9th Cir. 2009). 7 Here, plaintiff testified to depression, brain fog, extreme fatigue, and pain and 8 discomfort in her urethra and bladder, exaggerated by standing and walking. AR 98, 9 101–02. In discounting plaintiff’s testimony about her anemia-related fatigue, the ALJ 10 noted its inconsistency with the objective medical evidence and her conservative 11 treatment, both of which are valid reasons. Smartt v. Kijakazi, 53 F.4th 489, 498 (9th 12 Cir. 2022) (“When objective medical evidence in the record is inconsistent with the 13 claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such 14 testimony.”); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (quoting Johnson v.

15 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (“[E]vidence of ‘conservative treatment’ is 16 sufficient to discount a claimant’s testimony regarding severity of an impairment.”)); AR 17 69–70. Evidence cited by the ALJ includes normal physical examinations, notations of 18 improvement from medication, and reports of plaintiff denying fatigue. AR 458–59, 599, 19 683–84, 840, 928, 1019, 1023. 20 In discounting plaintiff’s testimony concerning her mental health, the ALJ 21 explained her treatment records post-date the relevant period. AR 70. While treatment 22 records provided after a claimant’s date late insured are “only marginally relevant,” Dale 23 v. Colvin, 823 F.3d 941, 944 (9th Cir. 2016), they “should not be disregarded solely on

24 1 that basis” because medical records are inherently retrospective. Smith v. Bowen, 849 2 F.2d 1222, 1225 (9th Cir. 1988). However, the ALJ also noted the inconsistency 3 between plaintiff’s testimony and her record which shows “few psychological 4 symptoms.” AR 70. A claimant’s inconsistent statements regarding her symptoms is a

5 valid reason to discount the claimant’s testimony. See Tommasetti v. Astrue, 533 F.3d 6 1035, 1039 (9th Cir. 2008). The evidence cited by the ALJ includes normal 7 psychological findings and reports of plaintiff denying mental health symptoms. See AR 8 458–59, 599, 662. 9 The reports provided by plaintiff’s husband are substantially similar to plaintiff’s 10 testimony—he described her fatigue, bladder or stomach pain, brain fog, anxiety, and 11 inability to stand too long without needing to rest. AR 358, 381. As stated in the previous 12 section, plaintiff does not challenge the ALJ’s reasons for discounting her anemia- or 13 mental health-related testimony, and cites no records to undermine the ALJ’s findings. 14 Dkt. 7 at 3–6. The Court, therefore, declines to disturb the ALJ’s assessment of

15 plaintiff’s testimony. See Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 n. 2 16 (9th Cir. 2008) (quoting Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 17 (9th Cir. 2003)) (noting that a court will not consider matters that are not “‘specifically 18 and distinctly’” argued in the plaintiff’s opening brief). And because plaintiff’s testimony 19 and her husband’s statements are substantially similar, the ALJ’s unchallenged reasons 20 for discounting plaintiff's testimony apply equally to her husband’s reports. Valentine, 21 574 F.3d at 694. 22 Regarding the statements provided by both plaintiff and her husband concerning 23 pain and discomfort in her urethra and bladder, as discussed above, the ALJ was not

24 1 required to consider them given they were related to conditions that are not medically 2 determinable impairments. SSR 16-3P at *4. Accordingly, in disregarding lay witness 3 testimony, the ALJ did not harmfully err. 4 CONCLUSION 5 Based on the foregoing discussion, the Court concludes the ALJ’s decision is 6 supported by substantial evidence and the ALJ did not commit harmful error. Therefore, 7 the ALJ’s decision is affirmed. 8 Dated this 29th day of April, 2024. 9 A

10 Theresa L. Fricke United States Magistrate Judge 11

13 14 15 16 17 18 19 20 21 22 23 24