1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JEFFREY J., Case No. 2:23-cv-01488-TLF 7 Plaintiff, v. ORDER AFFIRMING 8 DEFENDANT’S DECISION TO ACTING 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 supplemental security income (“SSI”) and 13 disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of 14 Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this 15 matter heard by the undersigned Magistrate Judge. Dkt. 3. Plaintiff challenges the 16 Administrative Law Judge’s decision finding that plaintiff was not disabled. Dkt. 6, 17 Complaint. 18 On January 26, 2017, plaintiff filed an application for DIB alleging a disability 19 onset date of December 1, 2016. AR 145-46. He appealed the denial of his claim to this 20 Court in January 2021. On July 14, 2021 the Honorable Judge S. Kate Vaughan 21 granted a stipulated motion for remand. AR 787-88. 22 On February 3, 2020 plaintiff filed a second application for SSI and DIB alleging a 23 disability onset date of March 1, 2019. AR 1138-39. The Appeals Council directed the 24 1 ALJ to consolidate the claims on remand. AR 792. Plaintiff’s date last insured for DIB 2 purposes was March 31, 2019. AR 710. 3 The claims were denied initially and upon reconsideration. AR 1018-1019, 1028- 4 29. On February 8, 2022 a hearing was held in front of Administrative Law Judge
5 (“ALJ”) Laura Valente. AR 735-763. On March 2, 2022 ALJ Valente issued an 6 unfavorable decision finding plaintiff not to be disabled. AR 704-29. On July 24, 2023 7 the Appeals Council declined the request for review. AR 693-95. Plaintiff filed this 8 appeal. 9 The ALJ found that plaintiff had the following severe impairments through the 10 date last insured: left upper extremity epicondylitis, depression, anxiety disorder vs. 11 posttraumatic stress disorder (PTSD), and personality disorder. AR 710. Additionally, 12 the ALJ found plaintiff had the following severe impairments since April 2019: 13 degenerative joint disease of the bilateral shoulders. Id. As a result, the ALJ found that 14 from December 16, 2016 through June 30, 2018 plaintiff had the Residual Functional
15 Capacity (“RFC”) to perform light work with the following additional restrictions: 16 standing, walking, or sitting each available 6 hours in an 8-hour workday. The claimant could occasionally push, pull, and reach in all directions with the non- 17 dominant left upper extremity. The claimant did not have limitations with the dominant right upper extremity. The claimant needed to avoid concentrated 18 exposure to hazards (such as heights and dangerous machinery). The claimant could work in the same room as coworkers, but not in coordination with them. 19 AR 712. The ALJ found that from December 1, 2016 through June 30, 2018 plaintiff was 20 capable of performing past relevant work as a clergy member (DOT 120.107.010), 21 manager apartment house (DOT 186.167-018), and salesclerk food (DOT 290.477- 22 018). AR 720. 23 24 1 Additionally, the ALJ found that since July 1, 2018 plaintiff has had the RFC to 2 perform medium work, with the following additional restrictions: “standing, walking or 3 sitting each available 6 hours in an 8-hour workday. The claimant can frequently reach, 4 push, and pull with the bilateral upper extremities. The claimant can work in the same
5 room as coworkers but not in coordination with them.” AR 721. As a result, the ALJ 6 found plaintiff could perform past relevant work as clergy member (DOT 120.107.010), 7 manager apartment house (DOT 186.167-018), salesclerk food (DOT 290.477-018), 8 and caretaker (DOT 301.687-010). AR 727. 9 STANDARD 10 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 11 denial of Social Security benefits if the ALJ's findings are based on legal error or not 12 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 13 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such 14 relevant evidence as a reasonable mind might accept as adequate to support a
15 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations 16 omitted). The Court must consider the administrative record as a whole. Garrison v. 17 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the 18 evidence that supports and evidence that does not support the ALJ’s conclusion. Id. 19 The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did 20 not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope 21 of the Court’s review. Id. 22 23
24 1 DISCUSSION 2 1. Plaintiff’s statements regarding subjective symptoms 3 Plaintiff challenges the ALJ’s assessment of his subjective symptom testimony. 4 Dkt. 15 at 3-11.
5 The ALJ’s determinations regarding a claimant’s statements about limitations 6 “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 7 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In 8 assessing a Plaintiff’s credibility, the ALJ must determine whether Plaintiff has 9 presented objective medical evidence of an underlying impairment. If such evidence is 10 present and there is no evidence of malingering, the ALJ can only reject plaintiff’s 11 testimony regarding the severity of his symptoms for specific, clear and convincing 12 reasons. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Lingenfelter v. 13 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 14 At the first hearing, plaintiff testified that he lived with his nine year old daughter
15 and performed limited activities with his right hand including driving, carrying wood, 16 microwaving food, and doing dishes with the help of his daughter. AR 893-95. He 17 testified that his right arm gets to a point of overuse and he has to rest it for about an 18 hour. AR 898-99. He testified that his mental health is impacted by his physical 19 condition and causes difficulty with concentration, attention, and interactions with the 20 public and coworkers. AR 903-904. 21 At the second hearing, plaintiff testified that he was now homeless, living in a 22 van. AR 743. He testified that his right shoulder and hip had begun causing him pain. 23 AR 744-45. He testified that he would have difficulty being productive and dealing with
24 1 stress in a job because of the pain. AR 748. He testified that his left upper extremity 2 condition prohibited him from holding anything heavier than a bottle of water straight 3 out. AR 749. He testified that he needs to keep his left arm close to him and not move it. 4 AR 750.
5 A. Physical impairments 6 The ALJ found that plaintiff’s medically determinable impairments could 7 reasonably be expected to cause the alleged symptoms, but plaintiff’s statements 8 regarding the intensity, persistence, and limiting effects of these symptoms were not 9 entirely consistent with the objective medical evidence, the nature of his treatment, his 10 activities of daily living, and other discrepancies in the record. AR 713-23. 11 As for the ALJ’s first reason, the ALJ found plaintiff’s testimony to be inconsistent 12 with benign imaging studies and physical examination findings. AR 713-14, 722. 13 Contradiction with the medical record is a sufficient basis for rejecting the 14 claimant’s subjective testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
15 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 16 Cir.1995)). But an ALJ may not reject a claimant’s subjective symptom testimony “solely 17 on a lack of objective medical evidence to fully corroborate the alleged severity of pain.” 18 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Byrnes v. Shalala, 60 F.3d 639, 19 641-42 (9th Cir. 1995) (applying rule to subjective complaints other than pain). 20 Treatment records cannot be cherry-picked; the ALJ must consider a particular record 21 of treatment in light of the overall diagnostic record. Ghanim v. Colvin, 763 F.3d at 1164. 22 Plaintiff argues that the ALJ erred by disregarding the context in which many of 23 the ALJ’s findings were made. Dkt. 15 at 5. Specifically, plaintiff argues that the ALJ
24 1 erred in relying on the benign imaging findings because x-rays are of limited use for 2 injuries such as plaintiff’s that don’t involve bones and the ALJ did not consider that 3 further testing was recommended that ultimately did not offer a cause for plaintiff’s 4 symptoms. Id.
5 Here the ALJ cited not only benign imaging findings, but also evidence that 6 plaintiff retained full range of motion of his elbow, had intact stability, normal sensation, 7 normal motor strength and no signs of tenderness, and 5/5 strength throughout with a 8 March 20, 2017 exam showing 4/5 strength in the left elbow and left shoulder. AR 713- 9 14 (citing 312, 295-301, 308, 626, 663-64, 368, 373). 10 As for the evidence regarding plaintiff’s physical conditions since July 1, 2018, 11 the ALJ cited records showing that plaintiff has not undergone further treatment or had 12 any significant flare-ups relating to his right elbow and objective findings related to 13 plaintiff’s shoulders were relatively mild. AR 722. 14 Plaintiff challenges the evidence, arguing that the ALJ did not consider that the
15 imaging recommended further testing and some of the evidence was from examinations 16 for concerns for other ailments. Dkt. 15 at 5-6. However, plaintiff does not offer any 17 evidence that contradicts the ALJ’s interpretation. 18 Additionally, the alternative interpretation presented by plaintiff is unsupported by 19 the record. Some of the findings the ALJ cited were not from appointments relating to 20 plaintiff’s elbow but with the exception of a citation of an emergency room visit involving 21 perianal pain, the ALJ’s citations to the medical records involved emergency room visits 22 for other physical ailments where it is reasonable that plaintiff’s elbow would be 23 assessed. See AR 626, 368, 373. Plaintiff also argues that the ALJ failed to mention
24 1 that where imaging was benign, plaintiff’s providers recommended further testing, 2 however, this testing did not reveal a source for the pain. Dkt. 15 at 5 (citing AR 313). 3 Therefore, this additional testing does not contradict the ALJ’s interpretation. There is “a 4 presumption that ALJs are, at some level, capable of independently reviewing and
5 forming conclusions about medical evidence to discharge their statutory duty to 6 determine whether a claimant is disabled and cannot work.” Farlow v. Kijakazi, 53 F.4th 7 485, 488 (9th Cir. 2022); see Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 8 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational 9 interpretation, it is the ALJ's conclusion that must be upheld.”). 10 As for the ALJ’s second reason, plaintiff argues the ALJ failed to consider 11 plaintiff’s financial situation when she discounted his testimony for the level of treatment 12 plaintiff received. Dkt. 15 at 6-7. An ALJ may consider an “unexplained or inadequately 13 explained failure to seek treatment or to follow a prescribed course of treatment.” 14 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). But an ALJ may “not find an
15 individual’s symptoms inconsistent with the evidence in the record on this basis without 16 considering possible reasons [they] may not comply with treatment or seek treatment 17 consistent with the degree of [their] complaints.” SSR 16-3p; see also Fair v. Bowen, 18 885 F.2d 597, 603 (9th Cir. 1989). 19 The ALJ found that plaintiff’s left elbow complaints were not fully consistent with 20 the nature of his treatment which consisted of “only a few physical therapy sessions, 21 one cortisone shot on March 22, 2017, and no recommendation for surgery.” AR 714. 22 There is no indication that the ALJ considered why plaintiff did not seek further 23 treatment for his elbow. The record reflects plaintiff’s financial difficulties throughout the
24 1 period at issue. For example, in an office visit for his elbow on January 12, 2017, he 2 was described as tearful when describing his fear of financial instability as a result of his 3 elbow injury. AR 286. 4 At the first hearing he was living in a cabin on Anderson Island; when he testified
5 at the second hearing, he stated that he was homeless and living in his van. AR 894, 6 742-43. At the second hearing he testified that he had not sought treatment for a few 7 years due to challenges he faced being homeless and specifically stated that using gas 8 to get somewhere was prohibitive. AR 246. The ALJ failed to consider plaintiff’s financial 9 constraints in pursuing treatment and therefore this was not a clear and convincing 10 reason for discounting his testimony. 11 As for the ALJ’s third reason, an ALJ may discount a claimant's testimony based 12 on daily activities that contradict their testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th 13 Cir. 2007). Here, for the period from December 1, 2016 through June 30, 2018 the ALJ 14 cited activities such as doing odd jobs as a handyman, looking after 25 acres of land,
15 caring for his home, filling his wood stove, using a shovel to dig, and pruning a tree on a 16 ladder as inconsistent with plaintiff’s claims of severe dysfunction in the upper left 17 extremity. AR 714. 18 For the period since July 1, 2018, the ALJ found plaintiff’s testimony regarding 19 severe limitations in upper extremities in lifting, handling, and reaching to be 20 inconsistent with activities such as moving a big dresser, reporting to a provider that he 21 works manual labor and cannot take time off, injuring himself using a chainsaw on a 22 fallen tree, repairing his truck, helping people and working odd jobs, and helping his 23 elderly neighbors with chores. AR 723.
24 1 Here the ALJ reasonably concluded that these activities were inconsistent with 2 plaintiff’s testimony regarding the limitations stemming from his impairments. Plaintiff 3 argues that the ALJ either ignored the description of how the activities were carried out 4 or did not have enough information about the activity to support her conclusions. Dkt. 15
5 at 7-8. Plaintiff specifically challenges the ALJ’s reliance on the use of the wood stove 6 and the accident where he fell off the ladder. Id. 7 When asked at the hearing about the wood stove plaintiff indicated that he 8 carries the wood one handed. AR 48. The ALJ did not address this limitation. The ALJ 9 cited a few notes related to the accident on the ladder. At the hearing, plaintiff testified 10 that he is required to keep the property nice due to his housing agreement and as such 11 he climbed onto a shed using a ladder and fell off when the dead limbs he kicked came 12 off easier than he expected. AR 905. The other notes are from the emergency room visit 13 for the accident. AR 371-72, 380. Plaintiff contends that this was not inconsistent with 14 his testimony because he was trying to kick the branch, which is not inconsistent with a
15 restriction on his ability to reach. Dkt. 15 at 7. However, plaintiff does not address the 16 action of climbing the ladder, which is inconsistent with his limitations in using his arm. 17 Furthermore, the ALJ reasonably relied on the activities that plaintiff does not challenge 18 such as maintaining the 25 acre property, using a shovel to dig and the activities that 19 she cited in discounting his testimony for the period since Jully 1, 2018. See Smartt v. 20 Kijakazi, 53 F.4th 489, 500 (9th Cir. 2022) (“It is not the court’s role to ‘second guess’ an 21 ALJ’s reasonable interpretation of a claimant’s testimony.”) 22 As for the ALJ’s fourth reason, the ALJ also discounted plaintiff’s testimony on 23 the basis that plaintiff made various inconsistent statements to providers throughout the
24 1 record. AR 715-16, 724-25. An ALJ may consider prior inconsistent statements 2 concerning symptoms and “other testimony by [plaintiff] that appears less than candid” 3 in weighing a plaintiff’s credibility, Tomasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 4 2008). Plaintiff argues that these statements were minor and unrelated to plaintiff’s
5 allegations, and states that in the case of the reports about spending time with his 6 daughter the ALJ failed to consider plaintiff’s changing circumstances. Dkt. 15 at 8. 7 The ALJ failed to consider plaintiff’s changing circumstances regarding reports 8 about plaintiff’s daughter and social activities, because plaintiff was dealing with 9 unstable housing. The discrepancies could have been attributed to changes in his living 10 situation. However, the other discrepancies noted by the ALJ including statements 11 regarding his alcohol consumption, history of using illicit drugs, performance in school, 12 and psychotic symptoms he experienced, are relevant to plaintiff’s credibility as a 13 historian. See Tomasetti, 533 F.3d at 1039. 14 Therefore, the inconsistency with the medical record, plaintiff’s activities, and the
15 other inconsistencies in the record were clear and convincing reasons to discredit 16 plaintiff’s subjective symptom testimony; any error in relying on plaintiff’s lack of 17 treatment and the discrepancies in reports involving his daughter was harmless. 18 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 19 B. Mental impairments 20 Plaintiff argues the ALJ erred in determining that plaintiff’s allegations about his 21 mental impairments were inconsistent with his presentation at unrelated appointments. 22 Dkt. 15 at 6. The ALJ discounted plaintiff’s mental impairments on the basis that 23 plaintiff’s conditions predated his alleged onset date and did not prevent him from
24 1 working before that point, plaintiff’s employment ended for reasons unrelated to his 2 mental conditions, plaintiff testified that if not for his physical condition he would go back 3 to work “in a heartbeat,” plaintiff’s allegations were inconsistent with benign presentation 4 during appointments, and plaintiff has not sought mental health treatment since July
5 2018 including not seeking treatment after receiving DSHS benefits including coverage 6 for care since 2020. AR 714-15, 723. 7 The ALJ cited notes throughout the record showing normal mental status 8 examinations and concluded these did not corroborate plaintiff’s claims of severe 9 mental dysfunction. AR 714-15. Plaintiff argues that none of these notes involved 10 consideration of plaintiff’s mental health conditions, however, plaintiff does not point to 11 any portion of the record that showed worsening symptoms or otherwise undermined 12 the ALJ’s conclusion. 13 Plaintiff does not challenge any of the ALJ’s other reason for discounting his mental- 14 health related testimony and cites no records to undermine the ALJ’s findings. The
15 Court, therefore, declines to disturb the ALJ’s assessment of plaintiff’s testimony. See 16 Carmickle., 533 F.3d at 1161 n. 2 (quoting Paladin Assocs., Inc. v. Mont. Power Co., 17 328 F.3d 1145, 1164 (9th Cir. 2003)) (noting that a court will not consider matters that 18 are not “‘specifically and distinctly’” argued in the plaintiff’s opening brief). 19 2. Medical evidence. 20 Plaintiff challenges the ALJ’s assessment of the opinions regarding his left arm 21 and opinions regarding his mental abilities. Dkt. 15 at 12-14. 22 Plaintiff filed their applications prior to March 27, 2017, therefore under the 23 applicable regulations, an ALJ must provide “clear and convincing” reasons to reject the
24 1 uncontradicted opinions of an examining doctor, and “specific and legitimate” reasons to 2 reject the contradicted opinions of an examining doctor. See Lester v. Chater, 81 F.3d 3 821, 830-31 (9th Cir. 1995). When a treating or examining physician's opinion is 4 contradicted, the opinion can be rejected “for specific and legitimate reasons that are
5 supported by substantial evidence in the record.” Id. (citing Andrews v. Shalala, 53 F.3d 6 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 7 An examining physician’s opinion is “entitled to greater weight than the opinion of 8 a non-examining physician.” Lester 81 F.3d at 830 (citations omitted); see also 20 9 C.F.R. § 404.1527(c)(1) (“Generally, we give more weight to the opinion of a source 10 who has examined you than to the opinion of a source who has not examined you”). A 11 non-examining physician’s or psychologist’s opinion may not constitute substantial 12 evidence by itself sufficient to justify the rejection of an opinion by an examining 13 physician or psychologist. Lester, 81 F.3d at 831 (citations omitted). However, “it may 14 constitute substantial evidence when it is consistent with other independent evidence in
15 the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing 16 Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989)). “In order to discount the 17 opinion of an examining physician in favor of the opinion of a non-examining medical 18 advisor, the ALJ must set forth specific, legitimate reasons that are supported by 19 substantial evidence in the record.” Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 20 1996) (citing Lester, 81 F.3d at 831). 21 A. Opinions regarding use of left arm 22 On March 20 2017 Dr. Gary Gaffield, M.D. performed an examination of plaintiff 23 and conducted a review of records. AR 296-301. He diagnosed plaintiff with weakness
24 1 and moderate discomfort in his left elbow with a probable underlying epicondylitis 2 awaiting an MRI. AR 300. He opined that plaintiff could lift no more than 20 pounds 3 occasionally and 10 pounds frequently, had no manipulative restrictions as long as he is 4 not reaching or working overhead with the left arm, and should avoid climbing
5 scaffolding, ladders, obstacles in his pathway. AR 300-01. 6 On May 19 2017 Dawn Mautner, M.D. completed a medical source statement. 7 AR 317-18. She listed plaintiff’s diagnoses as left medial and lateral epicondylitis and 8 right lateral epicondylitis. AR 317. She stated that lifting, reaching, and handling 9 exacerbate plaintiff’s symptoms. Id. She opined that plaintiff could not perform even 10 sedentary work. AR 318. She opined that plaintiff can never handle or reach with either 11 upper extremity but could lift at least two pounds with the caveat that he cannot handle 12 or manipulate or tilt on a repetitive or sustained basis. Id. 13 On June 26, 2017 Dr. Greg Saue, M.D. reviewed plaintiff’s file as a part of the 14 reconsideration for plaintiff’s DIB claim. AR 94-95. Dr. Saue opined that plaintiff could lift
15 and/or carry 20 pounds occasionally, 10 pounds frequently. AR 94. He opined plaintiff 16 was limited in reaching in front and/or laterally and overhead. Id. He opined plaintiff is 17 not able to reach and should avoid concentrated exposure to hazards. AR 95. 18 The ALJ gave partial weight to Dr. Gaffield’s and Dr. Saue’s opinions on the 19 basis that their opinions that plaintiff could perform light exertional work was consistent 20 with the overall evidence, however, the ALJ found that the manipulative limitations were 21 out of proportion with unremarkable workup findings, Dr. Gaffield’s own examination 22 findings, later improvements in symptoms, plaintiff’s daily activities, the nature of 23 plaintiff’s treatment, and the ALJ rejected them to the extent they relied on plaintiff’s
24 1 self-reported limitations. AR 716-717. The ALJ gave little weight to Dr. Mautner’s 2 opinion on the basis that it relied on plaintiff’s right tennis elbow, which was non-severe, 3 it relied on the diagnosis of left tennis elbow which Dr. Mautner saw plaintiff for only 4 twice early on and therefore did not account for later findings that showed improvement,
5 it was inconsistent with plaintiff’s activities, it was inconsistent with the nature of 6 plaintiff’s treatment, the opinion that he could not perform sedentary work was 7 inconsistent with the fact that he has no impairments with standing/walking, and the ALJ 8 rejected it to the extent it relied on plaintiff’s self-reported limitations. AR 717-18. 9 The ALJ cited largely the same daily activities in discrediting the opinions of the 10 doctors as she did in discrediting plaintiff’s testimony – doing odd jobs as a handyman, 11 caring for 25 acres of land, carrying wood to his stove, digging with a shovel, and 12 climbing a ladder to trim a tree. AR 717. She also cited the fact that plaintiff reported 13 using a chainsaw to cut a tree in July 2020. Id. Inconsistency with a claimant’s activities 14 may serve as a proper basis for rejecting a medical source’s opinion. Rollins v.
15 Massanari, 261 F.3d 853, 856 (9th Cir. 2001). The Court has already determined that 16 the ALJ reasonably concluded that most of these activities were inconsistent with the 17 limitations plaintiff testified to. The same is the case here. For example, Dr. Gaffield 18 opined that plaintiff should avoid climbing ladders which is clearly inconsistent with 19 reports that plaintiff injured himself after falling off of a shed he had used a ladder to 20 climb onto. See AR 300-01. It was reasonable for the ALJ to conclude that the other 21 activities listed were also inconsistent with the manipulative limitations opined by Dr. 22 Gaffield and Dr. Saue and with Dr. Mautner’s opinion that plaintiff was severely limited 23
24 1 and could not lift ten pounds or handle, manipulate or lift on a repetitive or sustained 2 basis. 3 Accordingly, the ALJ provided a specific and legitimate reason for rejecting these 4 opinions and the Court will not consider the additional reasons for discounting their
5 opinions because any error would be harmless. Carmickle v. Comm’r, Soc. Sec. 6 Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 7 B. Opinions regarding mental impairments 8 On March 15, 2017 Dr. Stephanie Hanson, Ph.D. performed a psychological 9 evaluation of plaintiff. AR 291-94. Dr. Hanson reported that plaintiff showed hostility 10 beginning with the reception room and throughout the evaluation plaintiff became more 11 somber but laughed at some tasks with contempt. AR 293. She opined that plaintiff 12 would be able to maintain work considering his psychological factors; he could 13 remember and understand simple to complex instructions, make simple or complex 14 decisions independently, and would be able to concentrate on goal-directed behavior.
15 AR 294. She opined that independent of the mental health diagnoses, contempt for the 16 person providing information may interfere with his ability to learn and this may also 17 impact his relationship with supervisors, coworkers, and the public. Id. 18 On September 25, 2020 Dr. Katia Ramirez, Psy.D. performed a psychological 19 evaluation of plaintiff on referral from the Washington State Division of Disability 20 Determination Services. AR 1373-78. Dr. Ramirez opined that plaintiff was capable of 21 performing simple and repetitive tasks and may be able to perform more detailed tasks. 22 AR 1378. She opined plaintiff may have difficulty attending work regularly and making it 23 through a workday without disruption from psychological symptoms. Id. She opined
24 1 plaintiff would not have difficulty accepting instruction from supervisors or getting along 2 with coworkers and the public. Id. She opined plaintiff may perform on a consistent 3 basis with limited supervision and would have difficulty dealing with the stress of a 4 competitive or intense work environment. Id.
5 On November 23, 2020 Dr. Alysa A. Ruddell, Ph.D. performed a psychological 6 evaluation of plaintiff. AR 1394-968. Dr. Ruddell assigned an overall severity rating of 7 4/5 or marked, and rated plaintiff’s anxiety and depression as a 4/5. AR 1395. Dr. 8 Ruddell assessed plaintiff’s ability to perform basic work activities and opined plaintiff 9 would have a marked limitation in the following activities: perform activities within a 10 schedule, maintain regular attendance, and be punctual within customary tolerances 11 without special supervision, learn new tasks, adapt to changes in a routine work setting, 12 complete a normal work day and work week without interruptions from psychologically 13 based symptoms, and set realistic goals and plan independently. AR 1396. She opined 14 that plaintiff would have none or mild or moderate limitations in every other listed basic
15 work activity and assigned an overall severity rating of marked. Id. 16 The ALJ gave partial weight to Dr. Hanson’s opinion on the basis that plaintiff’s 17 hostile presentation during the evaluation was inconsistent with relatively unremarkable 18 presentations in routine appointments with treating providers, and his demonstrated 19 ability to interact with his family and people in the community. AR 719. The ALJ gave 20 little weight to Dr. Ramirez’s opinion on the basis that it was inconsistent with her 21 objective findings and appeared to rely on plaintiff’s self-reported symptoms/limitations. 22 AR 725-26. The ALJ gave little weight to Dr. Ruddell’s opinion on the basis that it was 23 inconsistent with plaintiff’s presentation during the interview, plaintiff’s minimal mental
24 1 health treatment, plaintiff’s activities, the fact that plaintiff’s self-reported symptoms/ 2 limitations were not fully reliable, and plaintiff’s prior testimony that if not for his physical 3 condition he would go back to work. AR 726-27. 4 As for the ALJ’s first reason for discounting Dr. Hanson’s opinion, plaintiff argues
5 that the ALJ erred in concluding that plaintiff’s presentation was in stark contrast with his 6 presentation in other appointments, because plaintiff was equally as dismissive when he 7 was evaluated by Dr. Ruddell in November 2020. Dkt. 15 at 13. Dr. Ruddell noted that 8 the interview with plaintiff was difficult because: 9 [h]is phone reception was not consistent. He resisted providing information. Often his responses were vague or did not answer the question. He complained he was 10 cold. Response latency was an issue. Questions and directions were repeated. He asked to stop the interview, ‘how much longer will this go on?’ The examiner 11 said if he responded more quickly, it would go faster. This statement upset him.
12 AR 1395. The ALJ considered this presentation in his evaluation of Dr. Ruddell’s 13 opinion and concluded that it raised questions regarding plaintiff’s effort and therefore 14 the reliability of the results of the examination. AR 726. Furthermore, the ALJ cited 15 emergency room encounters and primary care visits throughout the record where 16 plaintiff presented with a normal mood, behavior, and affect, and where plaintiff 17 presented relatively unremarkably. AR 719 (citing AR 373, 381, 626, 638, 648, 663, 18 674-75, 1332, 1337, 1368, 1381, 1384, 1389). The Court concludes that the evidence 19 the ALJ cited of normal presentation in examinations was substantial evidence that 20 supports the ALJ’s conclusion. 21 The evidence that plaintiff typically presented with normal mood, behavior, and 22 affect supports the ALJ’s conclusion that plaintiff can act appropriately with the public 23 and with supervisors despite Dr. Hanson’s opinion based upon plaintiff’s hostile 24 1 presentation in her evaluation of him. The ALJ is responsible for determining credibility 2 and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 3 F.3d 715, 722 (9th Cir. 1998). Where the evidence is inconclusive, “questions of 4 credibility and resolution of conflicts are functions solely of the [ALJ].” Sample v.
5 Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such situations, “the ALJ’s conclusion 6 must be upheld.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 7 1999). Determining whether inconsistencies in the evidence “are material (or are in fact 8 inconsistencies at all) and whether certain factors are relevant to discount” medical 9 opinions “falls within this responsibility.” Id. at 603. 10 Furthermore, plaintiff does not contest the other evidence the ALJ cited in 11 discounting Dr. Hanson’s opinion, including his ability to care for his daughter, attend 12 church and community center activities, shop for groceries, work as a senior deckhand, 13 get along with friends, family, neighbors, and bosses, and perform odd jobs for people. 14 See AR 719 (AR 197, 199-200, 202, 292, 1394). This evidence also supports the ALJ’s
15 conclusion. Therefore, the ALJ did not err in discounting Dr. Hanson’s opinion. 16 As for the ALJ’s first reason for discounting Dr. Ramirez’s opinion, an internal 17 inconsistency can serve as a proper reason for discounting a physician’s opinion. See 18 Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999); see also 19 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (upholding ALJ’s rejection of an 20 internally inconsistent medical opinion). Here, the ALJ concluded that plaintiff’s 21 appearance and performance testing during the evaluation did not support Dr. 22 Ramirez’s conclusion that plaintiff’s mental conditions were disabling. AR 725. 23 Specifically, the ALJ noted that plaintiff appeared appropriately dressed and well
24 1 groomed, had a depressed mood but appropriate eye contact, was pleasant and 2 cooperative, displayed normal speech, linear, logical, and goal-directed thought 3 process, normal thought content, with no psychosis or suicidal ideation; and testing 4 showed that plaintiff was capable of performing simple as well as more detailed tasks.
5 AR 725. The ALJ concluded that this was inconsistent with Dr. Ramirez’s opinion that 6 plaintiff would have difficulty attending work regularly, making it through the day without 7 interruption from psychological symptoms, and dealing with the stress of a competitive 8 or intense work environment. Id. Plaintiff does not contest this conclusion. This was a 9 specific and legitimate reason for discounting Dr. Ramirez’s opinion. See Morgan, 169 10 F.3d at 601. 11 The ALJ also noted that the reliance on self-reported symptoms/limitations was 12 problematic given the discrepancies noted elsewhere in the opinion that detracted from 13 plaintiff’s reliability as a historian. AR 726. The ALJ also made such a finding in 14 evaluating Dr. Ruddell’s opinion. AR 727. Here, as stated above, the ALJ already
15 properly discounted plaintiff’s statements about his symptoms. Therefore, it was not 16 error for the ALJ to discount these opinions for the reliance on those discounted 17 statements. 18 Plaintiff also challenges the ALJ’s reliance on plaintiff’s statement that if not for 19 his physical condition, he would go back to work in a heartbeat, arguing that it was 20 improper for the ALJ to discount Dr. Ruddell and Dr. Ramirez on the basis that plaintiff 21 desired to return to work. Dkt. 15 at 14. However, the ALJ did not discredit these 22 opinions because of plaintiff’s desire to return to work, but rather because plaintiff’s 23
24 1 statement is inconsistent with the limitations opined by Drs. Ruddell and Ramirez 2 concerning plaintiff’s inability to work due to his mental health limitations. 3 Accordingly, the ALJ provided a specific and legitimate reason for rejecting these 4 opinions and the Court will not consider the additional reasons for discounting their
5 opinions because any error would be harmless. Carmickle v. Comm’r, Soc. Sec. 6 Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 7 CONCLUSION 8 Based on the foregoing discussion, the Court concludes the ALJ properly 9 determined plaintiff to be not disabled. Therefore, the ALJ’s decision is affirmed. 10 11 Dated this 12th day of August, 2024. A 12 Theresa L. Fricke 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24