1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 BENJAMIN L., Case No. 2:19-cv-00608 7 Plaintiff, v. ORDER AFFIRMING 8 DEFENDANT’S DECISION TO COMMISSIONER OF SOCIAL DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of Defendant’s denial of his 13 applications for disability insurance, supplemental security income, and child’s disability 14 benefits. 15 The parties have consented to have this matter heard by the undersigned 16 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 17 MJR 13. For the reasons set forth below, the Court affirms Defendant’s decision to deny 18 benefits. 19 I. ISSUES FOR REVEW 20 1. Did the ALJ properly evaluate the medical opinion evidence? 2. Did the ALJ err in evaluating lay witness testimony? 21 II. BACKGROUND 22 Plaintiff filed applications for disability insurance benefits/child’s disability 23 insurance benefits and supplemental security benefits on October 23, 2015 and 24 1 September 9, 2015, respectively, alleging, in all three applications, a disability onset 2 date of April 28, 2011. AR 86, 183-91. Plaintiff’s applications were denied upon initial 3 administrative review and on reconsideration. AR 86, 111-12, 113-15. 4 A hearing was held before Administrative Law Judge (“ALJ”) Kimberly Boyce on
5 January 9, 2018. AR 18-40. On February 22, 2018, the ALJ issued a written decision 6 finding that Plaintiff was not disabled. AR 83-96. On February 25, 2019, the Social 7 Security Appeals Council issued an unfavorable decision, adopting all ALJ’s Boyce’s 8 findings, but noting that the ALJ failed to address Plaintiff’s application for child’s 9 disability insurance benefits in her decision. AR 4-12. The Appeals Council found that 10 Plaintiff did not qualify for child’s disability insurance benefits because there were a 11 significant number of jobs he could perform at step five of the sequential evaluation. AR 12 8-9. 13 On May 1, 2019, Plaintiff filed a complaint in this Court seeking judicial review of 14 the ALJ’s written decision. Dkt. 4.
15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 17 denial of social security benefits if the ALJ's findings are based on legal error or not 18 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 19 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 20 1999)). 21 IV. DISCUSSION
22 In this case, the ALJ found that Plaintiff had the severe, medically determinable 23 impairments of unspecified neurocognitive disorder; unspecified communication 24 1 disorder; learning disorder; depressive disorder; and adjustment disorder with anxiety. 2 AR 88. 3 Based on the limitations stemming from these impairments, the ALJ found that 4 Plaintiff could perform work at all exertional levels with a range of work-related mental
5 limitations. AR 91. Relying on vocational expert (“VE”) testimony, the ALJ found that 6 there were a significant number of unskilled jobs Plaintiff could perform at step five of 7 the sequential evaluation; therefore, the ALJ determined at step five that Plaintiff was 8 not disabled. AR 35-37, 94-96. 9 A. Whether the ALJ erred in evaluating the medical opinion evidence 10 Plaintiff maintains that the ALJ erred in evaluating the opinion of examining 11 psychologist Allen Fitz, Ph.D. Dkt. 10, pp. 4-8. 12 In assessing an acceptable medical source – such as a medical doctor – the ALJ 13 must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of 14 either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
15 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 16 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is 17 contradicted, the opinion can be rejected “for specific and legitimate reasons that are 18 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing 19 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 20 499, 502 (9th Cir. 1983)). 21 Dr. Fitz, the only examining source who offered an opinion concerning Plaintiff’s 22 mental limitations, examined Plaintiff on July 21, 2015. AR 353-57. Dr. Fitz’s evaluation 23 consisted of a clinical interview, a mental status examination, and psychological testing.
24 1 Based on this evaluation, Dr. Fitz opined that Plaintiff had “some” cognitive difficulties 2 that would make it difficult for him to function in demanding work and school activities 3 without accommodations. AR 357. Dr. Fitz observed that Plaintiff appeared to have 4 good verbal skills, but had considerable difficulties with his memory, and would benefit
5 from compensation strategies such as writing information down to help with recall, 6 having additional time to complete tasks, and trying to focus on one activity at a time. Id. 7 Dr. Fitz further observed that Plaintiff appeared to have some difficulty with social 8 interaction, and would likely have difficulty in work environments where he had to 9 interact significantly with others. Id. Dr. Fitz added that Plaintiff appeared to be 10 “methodical”, might have difficulty in work or school situations that require considerable 11 flexibility, and would do best in more structured and routine environments. Id. 12 Dr. Fitz stated that Plaintiff seemed motivated to complete his education but 13 tended to minimize his cognitive limitations. Id. Dr. Fitz opined that Plaintiff would likely 14 do best in environments that involve more "hands on" learning due to some difficulties
15 with memory and academic performance. Id. 16 And Dr. Fitz opined Plaintiff would benefit from further education about 17 reasonable career goals and use of a job coach to help him be successful in work 18 environments. Id. Dr. Fitz stated that Plaintiff might have some difficulty working in his 19 chosen field, construction, given his difficulties with social interaction and multi-tasking. 20 Id. Further, Dr. Fitz opined that Plaintiff might have more success in jobs involving 21 computer software or information technology, given his reported strengths and interests 22 in these areas. Id. Finally, Dr. Fitz opined that in a work environment, Plaintiff would 23 likely be sensitive to criticism due to past trauma and a poor reaction to stressors. Id.
24 1 The ALJ assigned “appropriate weight” to Dr. Fitz’s opinion, stating that he was 2 incorporating the cognitive and social limitations assessed by Dr. Fitz by restricting 3 Plaintiff to performing unskilled, routine and repetitive work with occasional work setting 4 changes and occasional interactions with others. AR 93. The ALJ reasoned that despite
5 these limitations, Dr. Fitz did not opine that Plaintiff was functionally precluded from 6 working. Id. 7 Plaintiff contends that the ALJ erred by not considering Dr.
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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 BENJAMIN L., Case No. 2:19-cv-00608 7 Plaintiff, v. ORDER AFFIRMING 8 DEFENDANT’S DECISION TO COMMISSIONER OF SOCIAL DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of Defendant’s denial of his 13 applications for disability insurance, supplemental security income, and child’s disability 14 benefits. 15 The parties have consented to have this matter heard by the undersigned 16 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 17 MJR 13. For the reasons set forth below, the Court affirms Defendant’s decision to deny 18 benefits. 19 I. ISSUES FOR REVEW 20 1. Did the ALJ properly evaluate the medical opinion evidence? 2. Did the ALJ err in evaluating lay witness testimony? 21 II. BACKGROUND 22 Plaintiff filed applications for disability insurance benefits/child’s disability 23 insurance benefits and supplemental security benefits on October 23, 2015 and 24 1 September 9, 2015, respectively, alleging, in all three applications, a disability onset 2 date of April 28, 2011. AR 86, 183-91. Plaintiff’s applications were denied upon initial 3 administrative review and on reconsideration. AR 86, 111-12, 113-15. 4 A hearing was held before Administrative Law Judge (“ALJ”) Kimberly Boyce on
5 January 9, 2018. AR 18-40. On February 22, 2018, the ALJ issued a written decision 6 finding that Plaintiff was not disabled. AR 83-96. On February 25, 2019, the Social 7 Security Appeals Council issued an unfavorable decision, adopting all ALJ’s Boyce’s 8 findings, but noting that the ALJ failed to address Plaintiff’s application for child’s 9 disability insurance benefits in her decision. AR 4-12. The Appeals Council found that 10 Plaintiff did not qualify for child’s disability insurance benefits because there were a 11 significant number of jobs he could perform at step five of the sequential evaluation. AR 12 8-9. 13 On May 1, 2019, Plaintiff filed a complaint in this Court seeking judicial review of 14 the ALJ’s written decision. Dkt. 4.
15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 17 denial of social security benefits if the ALJ's findings are based on legal error or not 18 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 19 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 20 1999)). 21 IV. DISCUSSION
22 In this case, the ALJ found that Plaintiff had the severe, medically determinable 23 impairments of unspecified neurocognitive disorder; unspecified communication 24 1 disorder; learning disorder; depressive disorder; and adjustment disorder with anxiety. 2 AR 88. 3 Based on the limitations stemming from these impairments, the ALJ found that 4 Plaintiff could perform work at all exertional levels with a range of work-related mental
5 limitations. AR 91. Relying on vocational expert (“VE”) testimony, the ALJ found that 6 there were a significant number of unskilled jobs Plaintiff could perform at step five of 7 the sequential evaluation; therefore, the ALJ determined at step five that Plaintiff was 8 not disabled. AR 35-37, 94-96. 9 A. Whether the ALJ erred in evaluating the medical opinion evidence 10 Plaintiff maintains that the ALJ erred in evaluating the opinion of examining 11 psychologist Allen Fitz, Ph.D. Dkt. 10, pp. 4-8. 12 In assessing an acceptable medical source – such as a medical doctor – the ALJ 13 must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of 14 either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
15 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 16 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is 17 contradicted, the opinion can be rejected “for specific and legitimate reasons that are 18 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing 19 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 20 499, 502 (9th Cir. 1983)). 21 Dr. Fitz, the only examining source who offered an opinion concerning Plaintiff’s 22 mental limitations, examined Plaintiff on July 21, 2015. AR 353-57. Dr. Fitz’s evaluation 23 consisted of a clinical interview, a mental status examination, and psychological testing.
24 1 Based on this evaluation, Dr. Fitz opined that Plaintiff had “some” cognitive difficulties 2 that would make it difficult for him to function in demanding work and school activities 3 without accommodations. AR 357. Dr. Fitz observed that Plaintiff appeared to have 4 good verbal skills, but had considerable difficulties with his memory, and would benefit
5 from compensation strategies such as writing information down to help with recall, 6 having additional time to complete tasks, and trying to focus on one activity at a time. Id. 7 Dr. Fitz further observed that Plaintiff appeared to have some difficulty with social 8 interaction, and would likely have difficulty in work environments where he had to 9 interact significantly with others. Id. Dr. Fitz added that Plaintiff appeared to be 10 “methodical”, might have difficulty in work or school situations that require considerable 11 flexibility, and would do best in more structured and routine environments. Id. 12 Dr. Fitz stated that Plaintiff seemed motivated to complete his education but 13 tended to minimize his cognitive limitations. Id. Dr. Fitz opined that Plaintiff would likely 14 do best in environments that involve more "hands on" learning due to some difficulties
15 with memory and academic performance. Id. 16 And Dr. Fitz opined Plaintiff would benefit from further education about 17 reasonable career goals and use of a job coach to help him be successful in work 18 environments. Id. Dr. Fitz stated that Plaintiff might have some difficulty working in his 19 chosen field, construction, given his difficulties with social interaction and multi-tasking. 20 Id. Further, Dr. Fitz opined that Plaintiff might have more success in jobs involving 21 computer software or information technology, given his reported strengths and interests 22 in these areas. Id. Finally, Dr. Fitz opined that in a work environment, Plaintiff would 23 likely be sensitive to criticism due to past trauma and a poor reaction to stressors. Id.
24 1 The ALJ assigned “appropriate weight” to Dr. Fitz’s opinion, stating that he was 2 incorporating the cognitive and social limitations assessed by Dr. Fitz by restricting 3 Plaintiff to performing unskilled, routine and repetitive work with occasional work setting 4 changes and occasional interactions with others. AR 93. The ALJ reasoned that despite
5 these limitations, Dr. Fitz did not opine that Plaintiff was functionally precluded from 6 working. Id. 7 Plaintiff contends that the ALJ erred by not considering Dr. Fitz’s statement that 8 Plaintiff “would benefit” from compensation strategies such as writing information down 9 to help with recall, having additional time to complete tasks, and trying to focus on one 10 activity at a time. Dkt. 10, pp. 6-8; AR 357. 11 Plaintiff contends that Dr. Fitz’s statement that Plaintiff would benefit from these 12 compensation strategies indicates that Plaintiff might require special accommodations in 13 a work setting, which might preclude Plaintiff from engaging in substantial gainful 14 activity. Dkt. 10, pp. 7-8, citing 20 C.F.R. §§ 404.1573(c), 416.973(c) (work done under
15 “special conditions” that accommodate a claimant’s impairments, such as work done in 16 a sheltered workshop or as a patient in a hospital, may indicate that a claimant cannot 17 engage in substantial gainful activity). 18 Dr. Fitz’s statement that Plaintiff “would benefit” from compensation strategies is 19 framed as a recommendation rather than an imperative. AR 357, item 1. The ALJ does 20 not need to accommodate a physician’s non-imperative recommendations when 21 formulating the residual functional capacity (“RFC”). See Carmickle v. Comm’r, Soc. 22 Sec. Admin, 533 F.3d 1155, 1165 (9th Cir. 2008) (the ALJ does not err in rejecting a 23 physician’s proposal when it is framed as a recommendation rather than an imperative);
24 1 Valentine v. Comm’r of Soc. Sec. Admin., 533 F.3d 685, 691-92 (9th Cir. 2009) (an ALJ 2 does not err by excluding recommendations from the residual functional capacity 3 finding). 4 Here, the ALJ included in the RFC significant cognitive and social limitations
5 consistent with Dr. Fitz’s opinion. AR 91. However, Dr. Fitz’s recommendation that 6 Plaintiff would benefit from compensation strategies does not mean that Plaintiff could 7 only perform work in a sheltered work environment, a conclusion supported by Dr. Fitz’s 8 statement that Plaintiff may do well in jobs dealing with computer software and 9 information technology. AR 357. The ALJ’s conclusion that Dr. Fitz’s opinion does not 10 foreclose the possibility of Plaintiff engaging in substantial gainful activity is supported 11 by substantial evidence, and the ALJ did not err in evaluating this opinion. 12 B. Whether the ALJ erred in evaluating lay witness statements 13 Plaintiff contends that the ALJ erred by discounting lay witness statements from 14 vocational counselor Catherine Herring. Dkt. 10, pp. 8-9.
15 When evaluating opinions from non-acceptable medical sources such as a 16 therapist or a family member, an ALJ may expressly disregard such lay testimony if the 17 ALJ provides “reasons germane to each witness for doing so.” Turner v. Commissioner 18 of Social Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (citing Lewis v. Apfel, 236 F.3d 503, 19 511 (9th Cir. 2001); 20 C.F.R. §§ 404.1502, 416.902. 20 During an intake appointment in July 2015, Ms. Herring observed that it initially 21 took Plaintiff a while to process information and give a verbal response, but that Plaintiff 22 became more comfortable throughout the meeting and was able to clearly 23 communicate. AR 386.
24 1 In August 2015, Ms. Herring observed that Plaintiff tends to have a “somewhat 2 unrealistic views of his limitations” and might have difficulty pursuing a career as a 3 construction contractor given his statement that he does not want to work with people 4 and has difficulty communicating and relating to others. AR 385. In a case narrative, Ms.
5 Herring stated that Plaintiff was eligible for vocational assistance based on Dr. Fitz’s 6 diagnoses and the limitations he observed during psychological testing. AR 388-89. 7 The ALJ assigned “little weight” to Ms. Herring’s observations, reasoning that: (1) 8 Plaintiff was able to obtain an associate’s degree, and even though Plaintiff received 9 accommodations while in school, this does not mean he would be unable to work; and 10 (2) Plaintiff has useful vocational skills. AR 93. 11 With respect to the ALJ’s first reason, an ALJ may consider the inconsistency 12 between lay witness testimony and Plaintiff’s activities of daily living, and a finding that a 13 claimant was able to successfully complete continuous full-time coursework may serve 14 as a germane reason for discounting such testimony. Carmickle v. Comm’r of Soc. Sec.
15 Admin., 533 F.3d 1155, 1164 (9th Cir. 2007). 16 Even if the ALJ did not provide germane reasons for discounting Ms. Herring’s 17 observations, any error would be harmless, given that Ms. Herring’s observations were 18 consistent with, and partly based on, Dr. Fitz’s opinion; for the reasons discussed 19 above, the ALJ adequately accounted for the limitations assessed by Dr. Fitz when 20 assessing Plaintiff’s RFC. See supra Section IV.A; Molina v. Astrue, 674 F.3d 1104, 21 1115 (9th Cir. 2012) (noting that harmless error principles apply in the Social Security 22 context). 23
24 1 CONCLUSION 2 Based on the foregoing discussion, the Court finds the ALJ properly determined 3 that Plaintiff was not disabled. Defendant’s decision to deny benefits therefore is 4 AFFIRMED.
5 Dated this 15th day of June, 2020.
6 A
7 Theresa L. Fricke United States Magistrate Judge 8
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