Lejon v. Commissioner of Social Security

Opinion

6 UNITED STATES DISTRICT COURT AT TACOMA 8 NORMA L., 9 Plaintiff, CASE NO. C22-5853-DWC 10 v. 11 ORDER RE: SOCIAL SECURITY COMMISSIONER OF SOCIAL SECURITY, DISABILITY APPEAL 12 Defendant. 13

14 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of the 15 Commissioner’s denial of Plaintiff’s application for disability benefits. Pursuant to 28 U.S.C. 16 § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented 17 to proceed before the undersigned Magistrate Judge. 18 Having considered the ALJ’s decision, the administrative record (AR), and all memoranda 19 of record, this matter is AFFIRMED. 21 Plaintiff filed an application for Disability Insurance Benefits (DIB) on October 3, 2019, 22 alleging disability beginning August 31, 2016. AR 20. After the application was denied at the 23 initial level and on reconsideration, Plaintiff requested a hearing before an Administrative Law 1 Judge (ALJ). The ALJ held a hearing on August 2, 2021, and took testimony from Plaintiff and a 2 vocational expert (VE). AR 63–85. Plaintiff amended her alleged onset date to November 1, 2018.1 3 AR 21, 68. On September 1, 2021, the ALJ issued a decision finding Plaintiff not disabled.2 AR

4 20–32. The Appeals Council denied Plaintiff’s request for review on August 30, 2022, making the 5 ALJ’s decision the final decision of the Commissioner. AR 1–6; see 20 C.F.R. § 404.981. Plaintiff 6 appeals the denial of disability benefits to this Court. 8 Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s denial of 9 disability benefits if it is based on legal error or not supported by substantial evidence in the record. 10 See Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022). 12 The Commissioner follows a five-step sequential evaluation process for determining 13 whether a claimant is disabled. See 20 C.F.R. § 404.1520. At steps one through three, the ALJ

14 found Plaintiff has not engaged in substantial gainful activity, has had one or more severe 15 impairments, and has not had an impairment or combination of impairments that meet or equal the 16 criteria of a listed impairment since the alleged onset date. AR 23–25. The ALJ found Plaintiff has 17 the following severe impairments: obesity; major depressive disorder; generalized anxiety 18 disorder; mild cognitive impairment; degenerative disc disease of the lumbar spine; and history of 19

20 1 The hearing transcript indicates Plaintiff requested to amend the alleged onset date to October 10, 2018, at the hearing. AR 68. However, the ALJ’s decision identifies November 1, 2018, as the amended alleged 21 onset date, and Plaintiff confirms November 1, 2018, as the amended alleged onset date in the Opening Brief. Dkt. 11, at 1; AR 21. 22 2 The record contains an adverse disability decision dated October 30, 2018, on a previous application for benefits. AR 89–104. The ALJ found changed circumstances rebutted the presumption of continuing non- 23 disability in this case, “including newly developed degenerative disc disease.” AR 20–21 (citing Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988)). 1 subarachnoid hemorrhage secondary to mycotic aneurysm status post left frontal 2 ventriculoperitoneal shunt. AR 23. 3 At step four, the ALJ found Plaintiff has the residual functional capacity (RFC) to perform

4 light work, as defined in 20 C.F.R. § 404.1567(b), with the following limitations: 5 [T]he claimant is occasionally able to climb ramps and stairs, but she is never able to climb ropes, ladders or scaffolds. She is 6 frequently able to balance, and she is occasionally able to crouch, crawl, and kneel. The claimant is able to perform work that allows 7 a sit/stand option permitting her to stand as needed for up to 25% of an eight-hour day. She should avoid exposure to extreme cold, 8 vibration, and workplace hazards; she is able to perform simple, routine, repetitive tasks with a reasoning level of 1-2 with breaks 9 every two hours.

10 AR 25–26. With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. 11 AR 30. 12 At step five, the ALJ found Plaintiff capable of making a successful adjustment to other 13 work that exists in significant numbers in the national economy. AR 31. The ALJ thus concluded 14 Plaintiff has not been under a disability since the amended alleged onset. AR 32. 16 Plaintiff raises the following issues on appeal: (1) Whether the ALJ properly evaluated the 17 medical evidence; (2) whether the ALJ properly evaluated Plaintiff’s testimony; (3) whether the 18 ALJ properly evaluated the lay evidence; and (4) whether the ALJ properly assessed Plaintiff’s 19 RFC. Plaintiff requests remand for further administrative proceedings. The Commissioner argues 20 the ALJ’s decision has the support of substantial evidence and should be affirmed. 21 1. Medical Opinion Evidence 22 A. Dr. Jan G. Johnson, Ph.D. 23 On November 29, 2016, Dr. Johnson observed Plaintiff “presented as mildly depressed and 1 anxious” and “displayed some dependent and regressive behaviors” during a psychological 2 assessment. AR 377. Dr. Johnson assessed Plaintiff’s cognitive abilities to be “within normal range 3 with the possible exception of her abstract abilities and attention/concentration” and similarly

4 assessed Plaintiff’s processing speed, visuospatial organization, and recall drawing to be within 5 average range. AR 377. The doctor concluded that, “[i]f this testing data represents an accurate 6 summary of [Plaintiff’s] present condition, it is unlikely that [Plaintiff] is ready to return to the 7 work that she is accustomed.” AR 377. 8 The ALJ found Dr. Johnson’s opinion “persuasive to the extent that the examiner’s internal 9 findings . . . support these limitations.” AR 28. However, the ALJ found Dr. Johnson’s opinion 10 “does not provide a function-by-function analysis of the claimant’s maximum abilities to perform 11 mental work activities that is consistent with the overall evidence, including evidence that 12 developed after the claimant’s amended alleged onset date.” AR 29. 13 Plaintiff argues the ALJ failed to account for Dr. Johnson’s opinion that Plaintiff “has

14 impaired memory, attention, and concentration” in the RFC. Dkt. 11, at 3. The RFC must include 15 all the claimant’s functional limitations supported by the record. Valentine v. Comm’r of Soc. Sec. 16 Admin., 574 F.3d 685, 690 (9th Cir. 2009); see Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 17 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and incorporating clinical 18 findings into a succinct RFC.”). Here, Dr. Johnson found Plaintiff’s episodic and short-term 19 memory to be within normal limits “with the exception of her ability to identify dates and/or her 20 age for important events” and found Plaintiff to have “mild limitations in her 21 attention/concentration abilities.” AR 373. The RFC adequately accounts for Dr. Johnson’s 22 assessed limitations by limiting Plaintiff to performing “simple, routine, repetitive tasks with a 23 reasoning level of 1-2 with breaks every two hours.” AR 25–26. Plaintiff has not shown the ALJ 1 erred when incorporating Dr. Johnson’s opinion in the RFC. Indeed, the doctor assessed only that 2 it was “possible” Plaintiff’s attention and concentration abilities were not within normal limits, 3 which assessment does not reasonably specify functional limitations. AR 377 (opining Plaintiff’s

4 cognitive abilities were “within normal range with the possible exception of 5 her . . . attention/concentration” (emphasis added)); see Ford v. Saul, 950 F.3d 1141, 1156 (9th 6 Cir. 2020) (finding limitations phrased equivocally, such as “limited” or “fair,” fail to specify 7 functional limitations). Therefore, Plaintiff has not shown the ALJ erred when evaluating Dr. 8 Johnson’s opinion or when assessing the RFC. 9 B. Dr. Stephen S. Meharg, Ph.D. 10 Plaintiff summarizes Dr. Meharg’s treatment records dated February 28, 2017, and August 11 11, 2018, including the doctor’s diagnoses and findings. Dkt. 11, at 3–5. Plaintiff, however, fails 12 to identify any error in the ALJ’s evaluation of Dr. Meharg’s treatment records. Therefore, 13 Plaintiff’s reference to Dr. Meharg’s treatment records fails to establish reversible error in this

14 case. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not 15 consider any claims that were not actually argued in appellant’s opening brief.”); see also 16 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to 17 address issues not argued with any specificity). 18 C. Other Medical Evidence 19 Plaintiff summarizes other medical evidence of record and asserts these records “provide[] 20 further support for [Plaintiff’s] testimony about her limitations.” Dkt. 11, at 6. Plaintiff again fails 21 to identify any specific error in the ALJ’s evaluation of this medical evidence. See Carmickle, 533 22 F.3d at 1161 n.2 (declining to address issues not argued with any specificity). At most, Plaintiff 23 argues for a different interpretation of the medical evidence, which fails to show reversible error 1 in the ALJ’s rational interpretation. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 2 (9th Cir. 1999) (“[W]hen evidence is susceptible to more than one rational interpretation, the ALJ’s 3 conclusion must be upheld.”).

4 D. Non-Examining Opinions 5 Plaintiff argues the ALJ’s analysis of the prior administrative findings “supports both a 6 limitation to sedentary exertion and a sit/stand option.” Dkt. 11, at 6. Regarding the sedentary 7 limitation, Plaintiff’s offers an alternative interpretation of the evidence and the ALJ’s analysis, 8 which, without further argument, is insufficient to establish reversible error. See Indep. Towers, 9 350 F.3d at 929 (declining to address assertions unaccompanied by legal arguments); see also 10 Morgan, 169 F.3d at 601. Regarding the sit/stand option, the RFC provides that Plaintiff “is able 11 to perform work that allows a sit/stand option permitting her to stand as needed for up to 25% of 12 an eight-hour day” and, thus, provides a sit/stand option. AR 25–26. Therefore, the record does 13 not support Plaintiff’s argument.

14 Finally, Plaintiff argues the ALJ improperly found the prior administrative findings 15 “‘persuasive to the extent that it is supported by the state agency consultant’s review of the records, 16 including the opinions of Jan Johnson, Ph.D., and Stephen Meharg, Ph.D.,’” and argues the ALJ’s 17 explanation “is not a valid reason for discrediting the opinions of Dr. Johnson and Dr. Meharg.” 18 Dkt. 11, at 6–7 (citing AR 29). As discussed above, Plaintiff has not shown the ALJ erred when 19 evaluating the opinions of Dr. Johnson, Dr. Meharg, or the non-examining opinions. Therefore, 20 Plaintiff’s argument fails to show reversible error in this case. 21 2. Subjective Testimony 22 Plaintiff argues the ALJ improperly evaluated Plaintiff’s symptom testimony because the 23 ALJ failed to evaluate the objective medical evidence properly. Dkt. 11, at 7. As discussed above, 1 Plaintiff has not shown reversible error in the ALJ’s evaluation of the opinions of Dr. Johnson, Dr. 2 Meharg, the non-examining opinions, or the other medical evidence of record. Therefore, Plaintiff 3 has not shown reversible error in the ALJ’s evaluation of Plaintiff’s subjective testimony.

4 Plaintiff argues the ALJ misapplied the “objective evidence test” by finding Plaintiff “‘has 5 a degree of limitation in her mental functioning, but not to the extent alleged.’” Dkt. 11, at 7 6 (quoting AR 27). “While subjective pain testimony cannot be rejected on the sole ground that it is 7 not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor 8 in determining the severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 9 261 F.3d 853, 857 (9th Cir. 2001) (emphasis added); see 20 C.F.R. § 404.1529(c)(4) (“Your 10 symptoms, including pain, will be determined to diminish your capacity for basic work activities 11 to the extent that your alleged functional limitations and restrictions due to symptoms, such as 12 pain, can reasonably be accepted as consistent with the objective medical evidence and other 13 evidence.”). Here, the ALJ identified several reasons for discounting Plaintiff’s subjective

14 testimony regarding her mental functioning, including by finding Plaintiff’s testimony inconsistent 15 with evidence of “normal mental status findings of memory, judgment, fund of knowledge, 16 behavior, speech, thought content, grooming, hygiene, mood, and affect.” AR 27. Therefore, the 17 Court can meaningfully review the ALJ’s reasons for discounting Plaintiff’s symptom testimony. 18 See Kaufmann v. Kijakazi, 32 F.4th 843, 851–52 (9th Cir. 2022) (the Court considers “the ALJ’s 19 full explanation” when reviewing whether substantial evidence supports the ALJ’s evaluation of 20 the claimant’s subjective testimony). 21 Plaintiff argues evidence of “many normal mental status findings . . . do not negate the 22 abnormal findings which support [Plaintiff’s] testimony” and that evidence showing Plaintiff was 23 able to produce normal performance results on more complex cognitive demand tests “is not a 1 convincing reason to reject any of [Plaintiff’s] testimony about her symptoms and functional 2 limitations.” Dkt. 11, at 8. Plaintiff again provides no argument or discussion to support these 3 assertions. See Indep. Towers, 350 F.3d at (declining to “manufacture arguments where none is

4 presented”). Indeed, “[w]hen objective medical evidence in the record is inconsistent with the 5 claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” 6 Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in original). To the extent Plaintiff 7 argues for an alternative interpretation of the evidence, such argument is insufficient to deprive the 8 ALJ’s interpretation of substantial evidence. See Morgan, 169 F.3d at 601. 9 Moreover, substantial evidence supports the ALJ’s evaluation of Plaintiff’s mental health 10 symptom testimony. Despite Plaintiff’s reports of memory problems, trouble maintaining focus, 11 and speech difficulty, the ALJ cited evidence showing Plaintiff had “normal mental status findings 12 of memory, judgment, funding of knowledge, behavior, speech, thought content, grooming, 13 hygiene mood, and affect” on examination. AR 27 (citing AR 419, 425, 430, 437, 530, 545, 775,

14 876). The ALJ also found Plaintiff “denied ongoing symptoms of depression or anxiety during the 15 period at issue” and that, although Plaintiff produced low scores on lower cognitive demand tests, 16 she “was able to rally her attentional skills to produce normal performance results as the tests 17 became more complex.” AR 27 AR 27 (citing AR 396, 539, 546, 877). Additionally, as discussed 18 above, Dr. Johnson assessed Plaintiff’s cognitive abilities, processing speed, visuospatial 19 organization, and recall drawing to be within average range, and Dr. Meharg found Plaintiff had 20 “quite normal scores on most measures, including a few above average levels of performance,” 21 concluding “that the vast majority of [Plaintiff’s] cognitive functions remain within the normal 22 range.” AR 377, 387. To the extent that Plaintiff’s clinical findings showed some abnormalities 23 with attention, concentration, or focus, the ALJ’s RFC accounts for Plaintiff’s cognitive difficulties 1 by limiting Plaintiff to “simple, routine, repetitive tasks with a reasoning level of 1-2 with breaks 2 every two hours.” AR 26. Therefore, the ALJ reasonably found the severity of Plaintiff’s alleged 3 mental limitations to be inconsistent with the medical evidence, and the ALJ’s reasoning has the

4 support of substantial evidence. 5 Plaintiff next argues that, although Plaintiff lacked treatment from a mental health 6 specialist, “there is no evidence that a mental health specialist could treat or cure [Plaintiff’s] 7 cognitive problems.” Dkt. 11, at 8. Plaintiff further argues that, “to the extent that [Plaintiff] might 8 have benefited from mental health treatment, there is no evidence that she understood this.” Id. 9 The Ninth Circuit Court of Appeals has “particularly criticized the use of a lack of treatment to 10 reject mental complaints both because mental illness is notoriously underreported and because it 11 is a questionable practice to chastise one with a mental impairment for the exercise of poor 12 judgment in seeking rehabilitation.” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 13 1299–1300 (9th Cir. 1999) (internal quotation marks and citations omitted). Here, however, the

14 ALJ did not reject Plaintiff’s mental complaints solely based on the lack of mental health 15 treatment; rather, as discussed above, the ALJ found Plaintiff’s “mental status evaluations are 16 replete with normal mental status findings.” AR 27. Therefore, even if the ALJ erred by rejecting 17 Plaintiff’s testimony based on Plaintiff’s lack of mental health treatment, this error would be 18 harmless because the ALJ gave other valid reasons for rejecting Plaintiff’s mental complaints, 19 including by finding them inconsistent with normal findings in Plaintiff’s mental status 20 evaluations. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (if one 21 of an ALJ’s reasons for discounting a Plaintiff’s testimony was erroneous, such error is harmless 22 if the ALJ gave other valid independent reasons). 23 Finally, Plaintiff summarizes Plaintiff’s testimony regarding symptoms from her physical 1 and mental impairments and asserts the ALJ improperly rejected this testimony. Dkt. 11, at 8–11. 2 In determining disability, the ALJ “consider[s] all [the claimant’s] symptoms, including pain, and 3 the extent to which [the claimant’s] symptoms can reasonably be accepted as consistent with the

4 objective medical evidence and other evidence.” 20 C.F.R § 404.1529(a). Here, as described 5 above, the ALJ properly considered Plaintiff’s symptom testimony and gave valid reasons for 6 discounting Plaintiff’s subjective testimony about the severity of her mental health symptoms. 7 Plaintiff has not challenged the ALJ’s evaluation of Plaintiff’s testimony regarding symptoms from 8 her physical impairments. Therefore, Plaintiff’s recitation of Plaintiff’s testimony does not deprive 9 the ALJ’s decision of substantial evidence in this case. 10 3. Lay Witness Testimony 11 Plaintiff argues the ALJ improperly discounted the lay witness testimony of the SSA 12 interviewer and the testimony of Plaintiff’s mother, pastor, and friend, who identified deficits in 13 Plaintiff’s memory, concentration, focus, and ability to adapt to changes in routine. Dkt. 11, at 11–

14 14. “Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ must take into 15 account, unless he or she expressly determines to disregard such testimony and gives reasons 16 germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The ALJ 17 found the lay witness statements contradicted the neurological assessment performed by Dr. 18 Meharg, which “showed no clear signs of impairment, including basic measures of attention and 19 calculation,” and indicated Plaintiff was able to produce normal results on more complex cognitive 20 demand tests. AR 28. 21 Plaintiff argues the lay witness statements do not contradict Dr. Meharg’s assessment. Dkt. 22 11, at 14. Plaintiff provides no argument and cites to no evidence of record to support this assertion. 23 Assertions unaccompanied legal arguments are insufficient to establish reversible error. See Indep. 1 Towers, 350 F.3d at 929. 2 Plaintiff next argues the ALJ’s reasoning is not legally valid. Dkt. 11, at 14 (citing Bruce 3 v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009)). In Bruce v. Astrue, the Ninth Circuit held that an

4 ALJ may not discredit lay witness testimony based on its relevance or irrelevance to medical 5 conclusions or based on its lack of support from the medical evidence in the record. Bruce, 557 6 F.3d at 1116. However, an ALJ may properly reject a lay witness statement based on inconsistency 7 between the statement and the medical record. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 8 2005). Here, the ALJ reasonably found the lay witness statements contradicted Dr. Meharg’s 9 neurological assessment. Although the lay witnesses testified Plaintiff had difficulties with 10 memory, attention, focus, and changes in routine, Dr. Meharg found Plaintiff had “quite normal 11 scores on most measures, including a few above average levels of performance,” and concluded 12 “that the vast majority of [Plaintiff’s] cognitive functions remain within the normal range.” AR 13 387. Therefore, the ALJ properly discounted the lay witness testimony by finding it inconsistent

14 with Dr. Meharg’s clinical findings and conclusions, and substantial evidence supports the ALJ’s 15 reasoning. 16 Even if the ALJ had erred when evaluating the lay witness statements, any such error would 17 be harmless in this case. See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 18 2006) (an ALJ’s error may be deemed harmless where it is “inconsequential to the ultimate 19 nondisability determination”). The ALJ’s RFC adequately accounts for the memory, attention, 20 focus, and adaptation limitations identified by the lay witnesses by limiting Plaintiff to “simple, 21 routine, repetitive tasks with a reasoning level of 1-2 with breaks every two hours.” AR 26. 22 Therefore, any error in the ALJ’s evaluation of the lay witness testimony would be inconsequential 23 to the outcome of the case. 1 4. Steps Four and Five 2 Plaintiff argues that the ALJ erred at steps four and five because the RFC and the VE 3 hypothetical did not properly include all of Plaintiff’s limitations. Dkt. 11, at 14–15. As discussed

4 above, Plaintiff has not shown that the ALJ erred in evaluating the medical evidence, Plaintiff’s 5 symptom testimony, the lay witness testimony, or when assessing the RFC. See Valentine, 574 6 F.3d at 691–92 (limitations from properly discounted evidence does not need to be included in the 7 RFC or f the VE hypothetical). Therefore, Plaintiff has not shown that the RFC or VE hypothetical 8 was deficient or that the ALJ erred by relying on the VE testimony at step five. 10 For the reasons set forth above, this matter is AFFIRMED. 11 DATED this 11th day of August, 2023. 12 A 13 David W. Christel Chief United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23