1 EASTERN DISTRICT OF WASHINGTON Oct 02, 2024 2 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK 3 EASTERN DISTRICT OF WASHINGTON 4 ADAM J.,1 No. 2:22-cv-00241-RHW 5 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION TO 6 vs. DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 7 MARTIN O’MALLEY, AND GRANT DEFENDANT’S COMMISSIONER OF SOCIAL MOTION FOR SUMMARY 8 SECURITY, JUDGMENT
9 Defendant. ECF Nos. 11, 13, 16 Before the Court is the Report and Recommendation issued by Magistrate 10 Judge Alexander Ekstrom, ECF No. 16, recommending Plaintiff’s Motion for 11 Summary Judgment, ECF No. 11, be denied and Defendant’s Motion for Summary 12 Judgment, ECF No. 13, be granted. Plaintiff filed objections to the Report and 13 Recommendation and Defendant responded. ECF Nos. 17, 18. After reviewing 14 the Report and Recommendation, the Court finds the Magistrate Judge’s findings 15 are correct. Therefore, the Court adopts the Report and Recommendation in its 16 entirety with the following additional explanations. 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 1 Under the Federal Magistrates Act (Act), the Court may “accept, reject, or 2 modify, in whole or in part, the findings or recommendations made by the
3 magistrate.” 28 U.S.C. § 636(b)(1). A party may file “specific written objections 4 to the proposed findings or recommendations.” Fed. R. Civ. P. 72(b)(2). If a party 5 objects to a magistrate judge’s findings and recommendations, “the court shall
6 make a de novo determination of those portions of the report or specified proposed 7 findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 8 72(b)(3). 9 The Court has conducted a de novo review of the entire record and the
10 Report and Recommendation. The Court agrees with the Report and 11 Recommendation’s findings and conclusions. Plaintiff’s objections restate 12 previously presented arguments addressed in the Report and Recommendation.
13 Compare ECF No. 11 with ECF No. 17. Accordingly, the Court need not address 14 each objection at length again. See, e.g., El Papel LLC v. Inslee, 2021 WL 71678, 15 at *2 (W.D. Wash. Jan. 8, 2021) (“Because the Court finds that nearly all 16 objections are merely a rehash of arguments already raised and decided upon by
17 the Magistrate Judge, the Court will not address each objection here.”); Aslanyan v. 18 Herzog, 2014 WL 7272437, at *1 (W.D. Wash. Dec. 17, 2014) (rejecting a 19 challenge to a magistrate judge’s report and recommendations when “all of
20 [plaintiff’s] objections simply rehash arguments contained in his amended opening 1 memorandum or in his reply memorandum”). 2 The Report and Recommendation properly concludes substantial evidence
3 supports the ALJ’s rejection of Plaintiff’s counselor Jacqueline Lucas’ opinion. 4 Plaintiff’s objection disregards the handwritten narrative Ms. Lucas included on 5 the form opinion which states:
6 Assessing mental health capacities is not a specialization of [Ms.] Lucas. [Ms.] Lucas’ training [and] background in positive [psychology] could 7 impact assessment for the better. Per [Plaintiff’s] reports it sounds like he is able to maintain a job for a minimal amount of time before PTSD symptoms 8 cause him to lose his job or quit.
9 Tr. 645. Based on the foregoing, the ALJ’s conclusion that Ms. Lucas’ opinion 10 was less persuasive based on an over-reliance on Plaintiff’s self-report and lack of 11 other narrative reference to the medical record is supported by substantial 12 evidence. Furthermore, the ALJ’s conclusion that Plaintiff was able to function to 13 a greater degree than identified by Ms. Lucas was reasonable and supported by the 14 opinion. Although the ALJ did not cite all of the records in the paragraph 15 discussing Ms. Lucas’ opinion, he was not required to repeat it where it was stated 16 elsewhere in the decision. Plaintiff’s alternative interpretation of the evidence does 17 not deprive the ALJ’s finding of substantial evidence. Morgan v. Comm’r of Soc. 18 Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (“[W]hen evidence is susceptible to 19 more than one rational interpretation, the ALJ’s conclusion must be upheld.”).
20 In addition, Plaintiff has failed to demonstrate the ALJ harmfully erred in the 1 analysis of state agency psychiatrist Eugene Kester’s opinion (Tr. 170-72). Dr. 2 Kester opined that Plaintiff was not disabled and capable of persisting through a
3 regular workweek with adequate breaks, despite finding that Plaintiff would also 4 have “difficulty in maintaining attention and concentration as well as difficulty 5 maintaining regular attendance when [mental health symptoms] are exacerbated.”
6 Tr. 171. The Report and Recommendation concludes that any error in not fully 7 crediting any portion of Dr. Kester’s opinion was harmless because even if 8 credited, the opinion supports the ALJ’s determination that Plaintiff is not disabled. 9 ECF No. 16 at 11. Plaintiff claims that because the ALJ did not make findings as
10 to the number of days Plaintiff would be absent when his symptoms were 11 exacerbated, the Court cannot find harmless error. ECF No. 17 at 7. However, the 12 ALJ’s opinion provides adequate explanation as to why absenteeism limitations
13 were not included in the residual functional capacity. The ALJ found that Plaintiff 14 experienced “some transient episodes where he would experience increased 15 symptoms,” but that Plaintiff was otherwise stable and improving with “generally 16 conservative forms of care” in the form of medication management, therapy and
17 monitoring of his conditions. Tr. 29. The ALJ further reasonably concluded that 18 episodes were often treated with additional changes to medication without 19 requiring “more intensive care” and Plaintiff’s functioning during episodes was not
20 representative of Plaintiff’s maximum level of functioning throughout the relevant 1 period. Id. Accordingly, the requested remand for further findings as to 2 absenteeism is not warranted, and as Dr. Kester concluded Plaintiff was not
3 disabled notwithstanding his limitations, Plaintiff cannot demonstrate harmful error 4 in the ALJ’s analysis of Dr. Kester’s opinion. 5 For the reasons stated in the Report and Recommendation, the ALJ also gave
6 specific, clear and convincing reasons supported by substantial evidence for giving 7 less weight to Plaintiff’s symptom claims based on the inconsistent objective 8 medical evidence, improvement with treatment, and activity levels. Plaintiff 9 asserts his subjective claims are “well-supported,” but Plaintiff relies almost
10 exclusively on the medical evidence documenting symptoms he experienced in 11 June 2021, which the ALJ also acknowledged in the analysis. ECF No. 17 at 9. 12 Based on the Court’s review of the records cited by the ALJ, the Court finds that
13 the ALJ appropriately relied on the longitudinal record, and not on a few isolated 14 records. 15 Plaintiff claims the Report and Recommendation “simply rubberstamps” the 16 ALJ’s step three findings “without sufficient analysis.” ECF No. 17 at 8. This
17 objection is frivolous as the Report and Recommendation devotes over three pages 18 thoroughly analyzing the ALJ’s step three decision and Plaintiff’s failure to meet 19 his burden.
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1 EASTERN DISTRICT OF WASHINGTON Oct 02, 2024 2 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK 3 EASTERN DISTRICT OF WASHINGTON 4 ADAM J.,1 No. 2:22-cv-00241-RHW 5 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION TO 6 vs. DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 7 MARTIN O’MALLEY, AND GRANT DEFENDANT’S COMMISSIONER OF SOCIAL MOTION FOR SUMMARY 8 SECURITY, JUDGMENT
9 Defendant. ECF Nos. 11, 13, 16 Before the Court is the Report and Recommendation issued by Magistrate 10 Judge Alexander Ekstrom, ECF No. 16, recommending Plaintiff’s Motion for 11 Summary Judgment, ECF No. 11, be denied and Defendant’s Motion for Summary 12 Judgment, ECF No. 13, be granted. Plaintiff filed objections to the Report and 13 Recommendation and Defendant responded. ECF Nos. 17, 18. After reviewing 14 the Report and Recommendation, the Court finds the Magistrate Judge’s findings 15 are correct. Therefore, the Court adopts the Report and Recommendation in its 16 entirety with the following additional explanations. 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 1 Under the Federal Magistrates Act (Act), the Court may “accept, reject, or 2 modify, in whole or in part, the findings or recommendations made by the
3 magistrate.” 28 U.S.C. § 636(b)(1). A party may file “specific written objections 4 to the proposed findings or recommendations.” Fed. R. Civ. P. 72(b)(2). If a party 5 objects to a magistrate judge’s findings and recommendations, “the court shall
6 make a de novo determination of those portions of the report or specified proposed 7 findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 8 72(b)(3). 9 The Court has conducted a de novo review of the entire record and the
10 Report and Recommendation. The Court agrees with the Report and 11 Recommendation’s findings and conclusions. Plaintiff’s objections restate 12 previously presented arguments addressed in the Report and Recommendation.
13 Compare ECF No. 11 with ECF No. 17. Accordingly, the Court need not address 14 each objection at length again. See, e.g., El Papel LLC v. Inslee, 2021 WL 71678, 15 at *2 (W.D. Wash. Jan. 8, 2021) (“Because the Court finds that nearly all 16 objections are merely a rehash of arguments already raised and decided upon by
17 the Magistrate Judge, the Court will not address each objection here.”); Aslanyan v. 18 Herzog, 2014 WL 7272437, at *1 (W.D. Wash. Dec. 17, 2014) (rejecting a 19 challenge to a magistrate judge’s report and recommendations when “all of
20 [plaintiff’s] objections simply rehash arguments contained in his amended opening 1 memorandum or in his reply memorandum”). 2 The Report and Recommendation properly concludes substantial evidence
3 supports the ALJ’s rejection of Plaintiff’s counselor Jacqueline Lucas’ opinion. 4 Plaintiff’s objection disregards the handwritten narrative Ms. Lucas included on 5 the form opinion which states:
6 Assessing mental health capacities is not a specialization of [Ms.] Lucas. [Ms.] Lucas’ training [and] background in positive [psychology] could 7 impact assessment for the better. Per [Plaintiff’s] reports it sounds like he is able to maintain a job for a minimal amount of time before PTSD symptoms 8 cause him to lose his job or quit.
9 Tr. 645. Based on the foregoing, the ALJ’s conclusion that Ms. Lucas’ opinion 10 was less persuasive based on an over-reliance on Plaintiff’s self-report and lack of 11 other narrative reference to the medical record is supported by substantial 12 evidence. Furthermore, the ALJ’s conclusion that Plaintiff was able to function to 13 a greater degree than identified by Ms. Lucas was reasonable and supported by the 14 opinion. Although the ALJ did not cite all of the records in the paragraph 15 discussing Ms. Lucas’ opinion, he was not required to repeat it where it was stated 16 elsewhere in the decision. Plaintiff’s alternative interpretation of the evidence does 17 not deprive the ALJ’s finding of substantial evidence. Morgan v. Comm’r of Soc. 18 Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (“[W]hen evidence is susceptible to 19 more than one rational interpretation, the ALJ’s conclusion must be upheld.”).
20 In addition, Plaintiff has failed to demonstrate the ALJ harmfully erred in the 1 analysis of state agency psychiatrist Eugene Kester’s opinion (Tr. 170-72). Dr. 2 Kester opined that Plaintiff was not disabled and capable of persisting through a
3 regular workweek with adequate breaks, despite finding that Plaintiff would also 4 have “difficulty in maintaining attention and concentration as well as difficulty 5 maintaining regular attendance when [mental health symptoms] are exacerbated.”
6 Tr. 171. The Report and Recommendation concludes that any error in not fully 7 crediting any portion of Dr. Kester’s opinion was harmless because even if 8 credited, the opinion supports the ALJ’s determination that Plaintiff is not disabled. 9 ECF No. 16 at 11. Plaintiff claims that because the ALJ did not make findings as
10 to the number of days Plaintiff would be absent when his symptoms were 11 exacerbated, the Court cannot find harmless error. ECF No. 17 at 7. However, the 12 ALJ’s opinion provides adequate explanation as to why absenteeism limitations
13 were not included in the residual functional capacity. The ALJ found that Plaintiff 14 experienced “some transient episodes where he would experience increased 15 symptoms,” but that Plaintiff was otherwise stable and improving with “generally 16 conservative forms of care” in the form of medication management, therapy and
17 monitoring of his conditions. Tr. 29. The ALJ further reasonably concluded that 18 episodes were often treated with additional changes to medication without 19 requiring “more intensive care” and Plaintiff’s functioning during episodes was not
20 representative of Plaintiff’s maximum level of functioning throughout the relevant 1 period. Id. Accordingly, the requested remand for further findings as to 2 absenteeism is not warranted, and as Dr. Kester concluded Plaintiff was not
3 disabled notwithstanding his limitations, Plaintiff cannot demonstrate harmful error 4 in the ALJ’s analysis of Dr. Kester’s opinion. 5 For the reasons stated in the Report and Recommendation, the ALJ also gave
6 specific, clear and convincing reasons supported by substantial evidence for giving 7 less weight to Plaintiff’s symptom claims based on the inconsistent objective 8 medical evidence, improvement with treatment, and activity levels. Plaintiff 9 asserts his subjective claims are “well-supported,” but Plaintiff relies almost
10 exclusively on the medical evidence documenting symptoms he experienced in 11 June 2021, which the ALJ also acknowledged in the analysis. ECF No. 17 at 9. 12 Based on the Court’s review of the records cited by the ALJ, the Court finds that
13 the ALJ appropriately relied on the longitudinal record, and not on a few isolated 14 records. 15 Plaintiff claims the Report and Recommendation “simply rubberstamps” the 16 ALJ’s step three findings “without sufficient analysis.” ECF No. 17 at 8. This
17 objection is frivolous as the Report and Recommendation devotes over three pages 18 thoroughly analyzing the ALJ’s step three decision and Plaintiff’s failure to meet 19 his burden. In summary, Plaintiff’s claim he meets a Listing relies upon the
20 opinion of Ms. Lucas, which the ALJ reasonably discounted, and Plaintiff failed to 1 otherwise satisfy his step three burden of establishing that he has an impairment 2 that meets or equals the requirements of the Listings.
3 Finally, Plaintiff’s objection restates the same arguments as to steps four and 4 five which the Report and Recommendation appropriately rejects. The ALJ’s 5 error at step four was harmless because the ALJ made alternative findings at step
6 five, and Plaintiff’s step five argument hinge upon other rejected assignments of 7 error. Accordingly, IT IS ORDERED: 8 1. Plaintiff’s objections to the Report and Recommendation, ECF No. 17, 9 are OVERRULED.
10 2. The Report and Recommendation, ECF No. 16, is ADOPTED in its 11 entirety. 12 2. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED.
13 3. Defendant’s Motion for Summary Judgment, ECF No. 13, is 14 GRANTED. 15 The District Court Executive is directed to enter this order, ENTER 16 JUDGMENT in favor of Defendant, forward copies to counsel and Magistrate
17 Judge Ekstrom, and CLOSE THE FILE. 18 DATED October 2, 2024. 19 s/Robert H. Whaley ROBERT H. WHALEY 20 Senior United States District Judge