Mercer v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: June 22, 2022
• Docket: 2:21-cv-00974
• Status: Unknown

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 ALCHEMIE M., 9 Plaintiff, Case No. C21-0974-SKV 10 v. ORDER AFFIRMING THE COMMISSIONER’S DECISION 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 Plaintiff seeks review of the denial of her application for Supplemental Security Income. 14 Having considered the ALJ’s decision, the administrative record (AR), and all memoranda of 15 record, the Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with 16 prejudice. 17 BACKGROUND 18 Plaintiff was born in 2000, graduated from high school and has some college education, 19 and has never worked. AR 601. 20 In May 2019, Plaintiff applied for benefits, alleging disability as of October 1, 2005. AR 21 155-60. Plaintiff’s application was denied initially and on reconsideration, and Plaintiff 22 requested a hearing. AR 74-77, 79-82. After the ALJ conducted hearings in July and December 23 2020 (AR 30-45, 596-612), the ALJ issued a decision finding Plaintiff not disabled. AR 13-25. 1 THE ALJ’S DECISION 2 Utilizing the five-step disability evaluation process,1 the ALJ found:

3 Step one: Plaintiff has not engaged in substantial gainful activity since the application date. 4 Step two: Plaintiff has the following severe impairments: juvenile rheumatoid arthritis, 5 autism, scoliosis, and attention deficit hyperactivity disorder.

6 Step three: These impairments do not meet or equal the requirements of a listed impairment.2 7 Residual Functional Capacity: Plaintiff can perform light work with additional 8 limitations: she can lift/carry 20 pounds occasionally and 10 pounds frequently. She can stand/walk for two hours in an eight-hour workday, and sit for about six hours. She can 9 frequently climb ramps and stairs, and occasionally climb ladders, ropes, and scaffolds. She can occasionally stoop, kneel, crouch, and crawl. She can frequently handle and 10 finger bilaterally. She can understand, remember, and carry out simple, routine instructions. She can have brief and superficial interaction with supervisors, coworkers, 11 and the public. She can maintain concentration, persistence, and pace within these parameters. 12 Step four: Plaintiff has no past relevant work. 13 Step five: As there are jobs that exist in significant numbers in the national economy that 14 Plaintiff can perform, Plaintiff is not disabled.

15 AR 13-25. 16 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 17 Commissioner’s final decision. AR 1-6. Plaintiff appealed the final decision of the 18 Commissioner to this Court. Dkt. 4. 19 LEGAL STANDARDS 20 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 21 security benefits when the ALJ’s findings are based on harmful legal error or not supported by 22 23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P, App. 1. 1 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2 2005). As a general principle, an ALJ’s error may be deemed harmless where it is 3 “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 4 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to

5 determine whether the error alters the outcome of the case.” Id. 6 Substantial evidence is “more than a mere scintilla. It means - and means only - such 7 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 8 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (cleaned up); Magallanes v. Bowen, 881 F.2d 9 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating symptom testimony, resolving 10 conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. 11 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record 12 as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the 13 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 14 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that

15 must be upheld. Id. 16 DISCUSSION 17 Plaintiff argues the ALJ erred in assessing the medical opinion evidence and in 18 discounting her subjective complaints. The Commissioner argues the ALJ’s decision is free of 19 harmful legal error, supported by substantial evidence, and should be affirmed.3 20 21 22

23 3 The Court notes that the Commissioner’s brief contains notations of tracked changes in the footer on every page, as well as the signature block. Dkt. 24. Counsel is reminded to accept all changes before filing briefs in the future. 1 A. The ALJ Did Not Err in Assessing the Medical Opinion Evidence 2 Plaintiff challenges the ALJ’s assessment of opinions written by examining psychologist 3 Mark Hawley, Ph.D., and treating nurse practitioner Bethany Rena Smith, ARNP. The Court 4 will address each disputed opinion in turn.

5 1. Legal Standards 6 Under regulations applicable to this case, the ALJ is required to articulate the 7 persuasiveness of each medical opinion, specifically with respect to whether the opinions are 8 supported and consistent with the record. 20 C.F.R. § 416.920c(a)-(c). An ALJ’s consistency 9 and supportability findings must be supported by substantial evidence. See Woods v. Kijakazi, 10 32 F.4th 785, 792 (9th Cir. 2022). 11 2. Dr. Hawley 12 Dr. Hawley examined Plaintiff in July 2019 and wrote a narrative report describing her 13 symptoms and limitations. AR 412-16. Dr. Hawley described Plaintiff’s marked adaptation and 14 social limitations, and found that she would be markedly impaired in meeting typical workplace

15 performance demands. AR 415-16. Dr. Hawley described Plaintiff’s prognosis as “fair,” going 16 on to elaborate: 17 The claimant is planning to move to Idaho later this year to live with her stepfather. Her first academic experience in college was disappointing, having 18 failed two classes and being disenrolled from financial aid. Claimant has no appreciable work history, and at her present level of maturation, she is incapable 19 of full-time employment. However, further pursuit of vocational and academic options and maturation may produce improvement in overall psychosocial and 20 vocational functioning. Reassessment in two to three years is recommended.

21 AR 415. The ALJ discounted the disabling limitations described by Dr. Hawley as inconsistent 22 with his own examination findings and with Plaintiff’s reported level of functioning: 23 [Dr. Hawley’s] own findings do not reflect a marked level of difficulty with social interactions and the claimant admitted to Dr. Hawley that she felt better when she 1 was engaging with her friends and her boyfriend. Nothing from his examination shows that she would struggle[] on a marked level as he opined, as she has been 2 noted to have unimpaired insight and judgment, only a moderately impaired immediate memory and he felt she was able to reason and understand moderately 3 complex ideas and instructions. His findings are inconsistent with his opinions and the opinions are also inconsistent with the claimant’s own testimony and 4 reports regarding her activities, which reflect ongoing interaction with friends. While the nature of her diagnosis may lead one to believe she would have 5 problems meeting typical workplace demands, the diagnosis alone does not justify marked limitations. 6 AR 22. 7 Plaintiff raises several challenges to the ALJ’s assessment of Dr. Hawley’s opinion. 8 First, Plaintiff argues that the ALJ erred in pointing to mental status examination findings 9 because these are irrelevant to the social and emotional limitations that Dr. Hawley identified. 10 Dkt. 17 at 6. Mental status examinations findings may not pertain to Plaintiff’s social 11 functioning, but mostly normal findings (with at most moderate impairment in concentration and 12 memory) are reasonably inconsistent with Dr. Hawley’s opinion that Plaintiff would be markedly 13 limited in her ability to meet typical workplace performance demands. See AR 416. Plaintiff 14 has not shown that the ALJ erred in finding Dr. Hawley’s mental status findings to be 15 meaningfully inconsistent with at least some of the limitations he identified. 16 Next, Plaintiff argues that the ALJ overstated her social activities, in finding them 17 inconsistent with Dr. Hawley’s conclusions. Plaintiff emphasizes her report that she socializes 18 only once or twice monthly, and has struggled interpersonally. Dkt. 17 at 7-8. But Plaintiff’s 19 report indicates that she socializes “at least” once or twice monthly (AR 195) and she did not 20 report even those limits to Dr. Hawley: when he asked whether she has friends, she reported that 21 she has “a ton of friends” as well as a boyfriend, and that she spends time with them away from 22 her home, going to the mall, watching movies, and participating in outdoor activities. AR 415. 23 Dr. Hawley described Plaintiff’s pleasant, appropriate, polite, and respectful behavior during the 1 examination as well. AR 414. The ALJ did not err in finding that Dr. Hawley’s findings 2 regarding Plaintiff’s social limitations were inconsistent with his own observations as well as 3 with Plaintiff’s reported social activities. 4 Lastly, Plaintiff points to other evidence in the record that she contends corroborates Dr.

5 Hawley’s conclusions. Dkt. 17 at 8-10 (citing AR 200-01, 353-55, 425-28, 447-49, 482, 526, 6 580-82, 588-89). Some of this evidence, as well as other evidence in the record, however, is 7 consistent with the ALJ’s interpretation of the evidence. See, e.g., AR 425-26 (describing 8 Plaintiff as enjoying “spending time with friends and family” and “[s]ocially, well-supported by 9 family and friends”), 448 (Plaintiff reports that her “[f]riendships are good” and that she has “a 10 supportive relationship with her boyfriend”), 594 (a treating source opinion that Plaintiff would 11 have marked limitations in public interaction, but at most moderate limitations in interacting with 12 co-workers and supervisors). The Court will not reweigh the evidence in Plaintiff’s requested 13 manner, and finds that she has failed to show error in the ALJ’s finding that Dr. Hawley’s 14 conclusions are inconsistent with the evidence.

15 For these reasons, the Court finds that Plaintiff has failed to show that the ALJ erred in 16 assessing Dr. Hawley’s opinion. 17 3. Ms. Smith 18 Ms. Smith wrote a letter in July 2020 describing Plaintiff’s need for “work assistance,” 19 which reads as follows, in relevant part: 20 Autism is a barrier for [Plaintiff]. She is highly intelligent but at times lacks situation awareness and social cues. She is polite but often interrupts and has 21 trouble controlling her energy level or excitement. She does well with frequent redirection by her parent who always accompanies her visit. Redirection will not 22 always be available in the workplace.

23 I do see [Plaintiff] being able to thrive in some environments but would like her to have formal evaluation by Psychology or Neuropsych for a full recommendation 1 and evaluation. Given the pandemic and limited resources this is not able to be done in a reasonable time frame. I am asking that you take into consideration her 2 mental health barriers as I have discussed above in the meantime.

3 AR 586. In December 2020, Ms. Smith completed a checkbox form describing Plaintiff’s 4 mental limitations. AR 593-95. 5 The ALJ found Ms. Smith’s July 2020 letter unpersuasive (AR 22-23), and found the 6 letter to be inconsistent with Ms. Smith’s December 2020 checkbox opinion, which listed a few 7 marked limitations but otherwise rated Plaintiff’s limitations as either none or moderate. See AR 8 23 (citing AR 593-95). 9 Plaintiff first contends that the ALJ’s rationale for discounting Ms. Smith’s July 2020 10 letter is “not entirely apparent.” Dkt. 17 at 11-12. The ALJ emphasized, however, that the 11 wording of Ms. Smith’s letter, indicating that Plaintiff required work assistance and was capable 12 of thriving in certain environments, undermined any suggestion that Plaintiff was unable to work 13 in any environment. AR 22-23. The ALJ also found that although Ms. Smith had indicated that 14 during appointments Plaintiff required redirection from her parent, which would not be available 15 in the workplace, Plaintiff had nonetheless been able to graduate from high school and start 16 college courses. AR 23. The ALJ further pointed to other evidence indicating that Plaintiff 17 could perform simple, routine tasks with brief and superficial social interaction, which the ALJ 18 contrasted with Ms. Smith’s letter and checkbox findings. AR 23. Lastly, the ALJ found that 19 Ms. Smith did not support her opinions with “actual observations made at examinations and 20 reports made to her by the claimant, whereby the claimant has noted good relationships with 21 friends and her family.” AR 23. These findings are clearly stated in the ALJ’s decision and 22 pertain to the supportability and consistency of the July 2020 letter. 23 1 Plaintiff goes on to, accurately, note that the ALJ did not separately and explicitly assess 2 the persuasiveness of Ms. Smith’s December 2020 checkbox opinion, the regulations instruct 3 ALJs to consider the opinions of one source together rather than individually. See 20 C.F.R. § 4 416.920c(b)(1). The ALJ addressed both of Ms. Smith’s opinions in the same paragraph and

5 adequately explained why he discounted the checkbox opinion to the extent it described 6 disabling limitations: because the record as well as Ms. Smith’s own July 2020 letter suggested 7 that Plaintiff was capable of performing work under some conditions, and neither of Ms. Smith’s 8 opinions was not supported with reference to clinical observations. AR 22-23. Even if the ALJ 9 did not organize his assessment of Ms. Smith’s opinions with ideal clarity, the ALJ’s logic can 10 be discerned and Plaintiff has not shown that the ALJ’s findings are unreasonable or unsupported 11 by substantial evidence. Molina, 674 F.3d at 1121 (“Even when an agency explains its decision 12 with less than ideal clarity, we must uphold it if the agency’s path may reasonably be discerned.” 13 (cleaned up)). 14 For these reasons, the Court finds no harmful error in the ALJ’s assessment of the

15 challenged medical opinion evidence. 16 B. The ALJ Did Not Err in Discounting Plaintiff’s Testimony 17 The ALJ summarized Plaintiff’s complaints and explained that he discounted them 18 because: (1) the evidence shows that Plaintiff’s arthritis is generally controlled by medication, 19 and does not (even during flares) cause disabling functional limitations; (2) Plaintiff’s mental 20 conditions were controlled by medication and did not cause disabling functional limitations; and 21 (3) Plaintiff’s activities were inconsistent with disabling handling, fingering, concentration, 22 persistence, pace, and social limitations. AR 19-21. In the Ninth Circuit, an ALJ must provide 23 1 clear and convincing reasons to discount a claimant’s testimony, absent evidence of malingering. 2 See Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 3 As to the ALJ’s first reason, Plaintiff contends that the ALJ cherry-picked evidence 4 showing that her arthritis was under control with medications, citing other evidence showing that

5 her pain flared and that providers recommended physical therapy. Dkt. 17 at 17. But the ALJ 6 himself acknowledged that Plaintiff continued to experience pain, and noted that when she did, 7 she took over-the-counter pain medication. See AR 20. The ALJ also indicated that Plaintiff 8 reported intermittent knee and wrist pain in January 2020, but that even with increased pain, 9 Plaintiff’s functional findings continued to be normal. Id. Because the ALJ’s decision itself 10 acknowledges that Plaintiff’s arthritis was not entirely controlled by medication, Plaintiff does 11 not establish error in the decision by pointing to evidence of persistent pain. The ALJ reasoned 12 that even when Plaintiff’s pain did flare, she retained sufficient functionality to perform some 13 limited work, which is why the ALJ discounted Plaintiff’s allegation of an inability to work due 14 to arthritis. AR 20. Plaintiff has not shown that the ALJ erred in finding that the objective

15 medical evidence was inconsistent with Plaintiff’s allegation of disabling arthritis-related 16 limitations. See Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 17 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 18 subjective testimony.”). 19 Plaintiff also disputes whether her activities contradict her allegations, noting that she 20 reported needing to take a break after playing video games for 2-3 hours, and thus her gaming 21 activity did not demonstrate that she could handle and finger on a frequent basis. Dkt. 17 at 18. 22 Plaintiff also disputes whether the ability to concentrate on video games is equivalent to 23 concentrating on work tasks. Id. The Court agrees that the ALJ’s findings regarding video 1 gaming do not identify any particular inconsistency nor do they demonstrate the existence of 2 transferable work skills, and thus the ALJ erred in relying on Plaintiff’s video gaming as a reason 3 to discount her allegations. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (activities may 4 undermine credibility where they (1) contradict the claimant’s testimony or (2) “meet the

5 threshold for transferable work skills[.]”). 6 But the ALJ adequately explained why Plaintiff’s social activities contradict her 7 allegation of disabling social limitations, rendering the video gaming finding harmless. The ALJ 8 noted that Plaintiff claimed to be unable to work due to problems with social interaction, but 9 found that although she was observed to have problems getting along with family members 10 during an appointment, the record showed that she did not have problems interacting with her 11 friends and boyfriend. AR 19-21. Plaintiff reiterates her argument that the ALJ overstated her 12 social activities, but, as explained supra, the record contains substantial evidence supporting the 13 ALJ’s interpretation of the record. See, e.g., AR 425-26 (describing Plaintiff as enjoying 14 “spending time with friends and family” and “[s]ocially, well-supported by family and friends”),

15 448 (Plaintiff reports that her “[f]riendships are good” and that she has “a supportive relationship 16 with her boyfriend”), 594 (a treating source opinion that Plaintiff would have marked limitations 17 in public interaction, but at most moderate limitations in interacting with co-workers and 18 supervisors). Moreover, Plaintiff has not pointed to any evidence showing that Plaintiff ever 19 struggled to interact appropriately with providers; instead, providers routinely described Plaintiff 20 as pleasant, cooperative, and/or making good eye contact. See, e.g., AR 359, 379, 398, 401, 403, 21 405, 408, 414, 426, 455, 461, 463, 465, 468. Plaintiff has not shown that the ALJ erred in 22 finding that the record contradicts Plaintiff’s allegation of disabling social limitations. 23 1 Because Plaintiff has failed to show harmful error in the ALJ’s assessment of her 2 testimony, the Court affirms this portion of the ALJ’s decision. 3 CONCLUSION 4 For the reasons set forth above, the Commissioner’s final decision is AFFIRMED and

5 this case is DISMISSED with prejudice. 6 Dated this 22nd day of June, 2022. 7 8 A 9 S. KATE VAUGHAN 10 United States Magistrate Judge

11 12 13 14 15 16 17 18 19 20 21 22 23