1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Apr 22, 2021
3 SEAN F. MCAVOY, CLERK
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 ADAM P., NO: 2:20-CV-172-RMP 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING 10 COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR SECURITY, SUMMARY JUDGMENT 11 Defendant. 12
13 BEFORE THE COURT, without oral argument, are cross-motions for 14 summary judgment from Plaintiff Adam P. 1, ECF No. 16, and the Commissioner of 15 Social Security (“Commissioner”), ECF No. 18. Plaintiff seeks judicial review, 16 pursuant to 42 U.S.C. § 405(g), of the Commissioner’s denial of his claim for 17 supplemental security income under Title XVI of the Social Security Act (the 18 “Act”). See ECF No. 16 at 1. Having reviewed the parties’ motions and the 19
1 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first 20 name and last initial. 21 1 administrative record, the Court is fully informed. The Court grants summary 2 judgment in favor of the Commissioner.
3 BACKGROUND 4 General Context 5 Plaintiff filed his initial claim for disability benefits and supplemental security
6 income on April 6, 2015, alleging that he was unable to function and/or work due to 7 cerebral palsy as of his birth date in 1986. Administrative Record (“AR”) 72.2 In 8 addition to cerebral palsy, Plaintiff asserts that he is unable to sustain competitive 9 employment on a regular and continuing basis due to a combination of impairments,
10 including unspecified cognitive disorder, unspecified depressive disorder, 11 unspecified personality disorder, generalized anxiety disorder, borderline intellectual 12 functioning, conduct disorder, and flat feet. Plaintiff’s date last insured is June 30,
13 2010. AR 86. The application was denied initially and upon reconsideration, and 14 Plaintiff requested a hearing. Administrative Law Judge (“ALJ”) Jesse Shumway 15 held a hearing on July 3, 2019, in Spokane, Washington. Plaintiff was 33 years old 16 at the time of the hearing, and appeared and testified at the hearing, represented by
17 counsel Chad Hatfield. Medical expert Lynne Jahnke, M.D. and vocational expert 18 Fred Cutler, M.A. also testified at the hearing. At the hearing, Plaintiff amended his 19
20 2 The AR is filed at ECF No. 13. 21 1 alleged disability onset date to March 8, 2012, when Plaintiff was 26 years old. AR 2 16. As a result of the amended onset date coming after the date last insured of June
3 30, 2010, the ALJ dismissed Plaintiff’s claim for disability insurance benefits and 4 proceeded only to evaluate Plaintiff’s eligibility for supplemental security income. 5 AR 16.
6 ALJ’s Decision 7 On July 26, 2019, the ALJ issued an unfavorable decision. AR 16–30. 8 Applying the five-step evaluation process, Judge Shumway found: 9 Step one: Plaintiff had not engaged in substantial gainful activity since
10 March 8, 2012, the amended alleged onset date. AR 18. 11 Step two: Plaintiff had the following severe impairments that are 12 medically determinable and significantly limit his ability to perform
13 basic work activities: unspecified cognitive disorder, unspecified 14 depressive disorder, generalized anxiety disorder. AR 18–19. The ALJ 15 found that the Plaintiff’s “congenital pes planus (flat feet) bilaterally 16 with orthotic inserts as the treatment recommendation, a history of
17 patellar dislocation, and hyperlipidemia . . . caused only transient and 18 mild symptoms and limitations, are well controlled with treatment, did 19 not persist for twelve continuous months, do not have greater than a
20 minimal limitation on the claimant’s physical or mental ability to 21 1 perform basic work activities, or are otherwise not adequately 2 supported by the medical evidence of record.” AR 19. Consequently,
3 the ALJ concluded that Plaintiff’s flat feet and the other two 4 impairments recited above are “nonsevere at most.” Id. The ALJ 5 further found that cerebral palsy was a nonmedically determinable
6 impairment because, as the testifying medical expert noted, “the 7 longitudinal record contains no description of any physical problems 8 related to cerebral palsy throughout the entire period at issue. AR 19 9 (citing record of a physical examination and review of medical history
10 from January 2019). Likewise, the ALJ found the record supported 11 only that borderline intellectual functioning and psychotic disorder 12 were provisional diagnoses that were not confirmed by a subsequent
13 provider or examiner and were not substantiated by “medical signs or 14 laboratory findings,” and were, therefore, not medically determinable. 15 AR 20. 16 Step three: The ALJ concluded that Plaintiff’s impairments,
17 considered singly and in combination, did not meet or medically equal 18 the severity of one of the listed impairments in 20 CFR Part 404, 19 Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526,
20 416.920(d), 416.925, and 416.926). AR 20. 21 1 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff 2 had the RFC to:
3 perform a full range of work at all exertional levels, with the following exceptions: he is limited to simple, routine tasks 4 consistent with a reasoning level of two or less; and he is limited to superficial contact with supervisors, co-workers, and the 5 public.
6 AR 22. 7 In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s statements 8 concerning the intensity, persistence and limiting effects of his alleged symptoms 9 “are not entirely consistent with the medical evidence and other evidence in the 10 record.” AR 22. The ALJ further found that Plaintiff’s course of treatment “is also 11 in tension with his allegations.” AR 23. 12 Step four: The ALJ found that Plaintiff had no relevant work. 13 Step five: After finding that Plaintiff has a high school education, is 14 able to communicate in English, and that “[t]ransferability of job skills 15 is not an issue because the claimant does not have past relevant work[,]” 16 the ALJ found that there are jobs that exist in significant numbers in the
17 national economy that Plaintiff could perform considering his age, 18 education, work experience, and RFC. AR 28–29. Specifically, the 19 ALJ recounted that the vocational expert identified hand packager,
20 agricultural produce packer, and cafeteria attendant as suitable jobs. 21 1 AR 29. The ALJ concluded that Plaintiff had not been disabled within 2 the meaning of the Social Security Act at any time since the amended
3 alleged onset date of March 8, 2012. AR 29. 4 LEGAL STANDARD 5 A. Standard of Review
6 Congress has provided a limited scope of judicial review of a Commissioner’s 7 decision. 42 U.S.C. § 405(g). A court may set aside the Commissioner’s denial of 8 benefits only if the ALJ’s determination was based on legal error or not supported by 9 substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing
10 42 U.S.C. § 405(g)). “The [Commissioner’s] determination that a claimant is not 11 disabled will be upheld if the findings of fact are supported by substantial evidence.” 12 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)).
13 Substantial evidence is more than a mere scintilla, but less than a preponderance. 14 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975); McCallister v. 15 Sullivan, 888 F.2d 599, 601–02 (9th Cir. 1989). Substantial evidence “means such 16 evidence as a reasonable mind might accept as adequate to support a conclusion.”
17 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). “[S]uch 18 inferences and conclusions as the [Commissioner] may reasonably draw from the 19 evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir.
20 1965). On review, the court considers the record as a whole, not just the evidence 21 1 supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 2 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).
3 It is the role of the trier of fact, not the reviewing court, to resolve conflicts in 4 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 5 interpretation, the court may not substitute its judgment for that of the
6 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Allen v. 7 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by 8 substantial evidence will still be set aside if the proper legal standards were not 9 applied in weighing the evidence and making a decision. Brawner v. Sec’y of Health
10 and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial 11 evidence to support the administrative findings, or if there is conflicting evidence 12 that will support a finding of either disability or nondisability, the finding of the
13 Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229–30 (9th Cir. 14 1987). 15 B. Definition of Disability 16 The Social Security Act defines “disability” as the “inability to engage in any
17 substantial gainful activity by reason of any medically determinable physical or 18 mental impairment which can be expected to result in death or which has lasted or 19 can be expected to last for a continuous period of not less than 12 months.” 42
20 U.S.C. §§ 423(d)(1)(A). The Act also provides that a claimant shall be determined 21 1 to be under a disability only if his impairments are of such severity that the claimant 2 is not only unable to do his previous work, but cannot, considering the claimant’s
3 age, education, and work experiences, engage in any other substantial gainful work 4 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A). Thus, the 5 definition of disability consists of both medical and vocational components. Edlund
6 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 7 C. Sequential Evaluation Process 8 The Commissioner has established a five-step sequential evaluation process 9 for determining whether a claimant is disabled. 20 C.F.R. § 404.1520. Step one
10 determines if he is engaged in substantial gainful activities. If the claimant is 11 engaged in substantial gainful activities, benefits are denied. 20 C.F.R. § 12 404.1520(a)(4)(i).
13 If the claimant is not engaged in substantial gainful activities, the decision 14 maker proceeds to step two and determines whether the claimant has a medically 15 severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). 16 If the claimant does not have a severe impairment or combination of impairments,
17 the disability claim is denied. 18 If the impairment is severe, the evaluation proceeds to the third step, which 19 compares the claimant’s impairment with listed impairments acknowledged by the
20 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. § 21 1 404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment 2 meets or equals one of the listed impairments, the claimant is conclusively presumed
3 to be disabled. 4 If the impairment is not one conclusively presumed to be disabling, the 5 evaluation proceeds to the fourth step, which determines whether the impairment
6 prevents the claimant from performing work that he has performed in the past. If the 7 claimant can perform his previous work, the claimant is not disabled. 20 C.F.R. § 8 404.1520(a)(4)(iv). At this step, the claimant’s RFC assessment is considered. 9 If the claimant cannot perform this work, the fifth and final step in the process
10 determines whether the claimant is able to perform other work in the national 11 economy considering his residual functional capacity and age, education, and past 12 work experience. 20 C.F.R. § 404.1520(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137,
13 142 (1987). 14 The initial burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 16 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden
17 is met once the claimant establishes that a physical or mental impairment prevents 18 him from engaging in his previous occupation. Meanel, 172 F.3d at 1113. The 19 burden then shifts, at step five, to the Commissioner to show that (1) the claimant
20 can perform other substantial gainful activity, and (2) a “significant number of jobs 21 1 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722 2 F.2d 1496, 1498 (9th Cir. 1984).
3 ISSUES ON APPEAL 4 The parties’ motions raise the following issues regarding the ALJ’s decision: 5 1. Did the ALJ improperly reject the medical opinions of Plaintiff’s providers? 2. Did the ALJ erroneously reject Plaintiff’s subjective symptom testimony? 6 3. Did the ALJ err in his treatment of lay witness statements? 7 4. Did the ALJ fail to satisfy his Step Five burden? 8 DISCUSSION 9 Medical Opinions 10 Plaintiff argues that the ALJ did not provide specific and legitimate reasons 11 for rejecting the opinions of Plaintiff’s examiners or providers, John Arnold, PhD, 12 Holly Petaja, PhD, Deborah Wiser, ARNP, and Benjamin Salzman, MS, LMHC. 13 An ALJ must consider the acceptable medical source opinions of record and 14 assign weight to each. 20 C.F.R. §§ 404.1527(c), 416.927(c). This responsibility 15 often involves resolving conflicts and ambiguities in the medical evidence. Reddick 16 v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). To reject the contradicted opinion of a 17 treating or examining physician, the ALJ must provide specific and legitimate 18 reasons for doing so. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). “An 19 ALJ can satisfy the substantial evidence requirement by setting out a detailed and 20 21 1 thorough summary of the facts and conflicting clinical evidence, stating his 2 interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995,
3 1012 (9th Cir. 2014) (citing Reddick, 157 F.3d at 725). 4 An ALJ may discount an otherwise valid medical source opinion as overly 5 conclusory, poorly supported by or inconsistent with the objective medical record, or
6 inordinately reliant on a claimant’s self-reported symptoms, provided the ALJ 7 provides clear and convincing reasons to discredit the symptom allegations. See, 8 e.g., Coleman v. Saul, 979 F.3d 751, 757–58 (9th Cir. 2020). However, the Ninth 9 Circuit has stressed that,
10 [t]he report of a psychiatrist should not be rejected simply because of the relative imprecision of the psychiatric methodology . . . 11 [p]sychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnosis will always depend in 12 part on the patient's self-report, as well as on the clinician's observations of the patient. But such is the nature of psychiatry. Thus, allowing an 13 ALJ to reject opinions based on self-reports does not apply in the same manner to opinions regarding mental illness. 14 Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (internal citations omitted); 15 see also Raicevic v. Saul, 836 F. App'x 569, 569 (9th Cir. 2021) (“As we explained 16 in Buck, clinical interviews and mental status evaluations are objective measures that 17 ‘cannot be discounted as a ‘self-report.”) (internal quotation to Buck omitted). 18 The Court addresses each provider in turn. 19 / / / 20 / / / 21 1 Drs. Arnold and Petaja 2 Psychologist Dr. Arnold examined Plaintiff on October 25, 2018, and
3 included in his report the clinical finding that Plaintiff experienced symptoms of 4 “shallow-reactive mood, rage episodes 3-4x/month, abandonment issues, brief 5 dissociation/blackout angry x2” that affect Plaintiff’s ability to work. AR 589–91.
6 Dr. Arnold opined that Plaintiff had moderate to marked limitations related to basic 7 work activity. AR 591. Dr. Arnold further opined that vocational training or 8 services would minimize or eliminate Plaintiff’s barriers to employment. AR 592. 9 On October 31, 2018, non-examining psychologist Dr. Petaja reviewed Dr.
10 Arnold’s report regarding Plaintiff’s functional limitations and assessed the same 11 moderate and marked limitations related to work-related abilities. AR 596–97. 12 Plaintiff argues that it was error for the ALJ to reject Dr. Arnold’s opinion that
13 Plaintiff has several marked and moderate limitations in his mental functioning as 14 inconsistent with his own examination findings and inconsistent with the 15 longitudinal record. ECF No. 16 at 11. 16 The Commissioner responds that the ALJ provided specific and legitimate
17 examples of inconsistencies in Dr. Arnold’s opinions. ECF No. 18 at 12. For 18 example, the ALJ found that Dr. Arnold’s opinion that Plaintiff is markedly limited 19 in his ability to learn new tasks is inconsistent with Dr. Arnold’s findings that
20 Plaintiff “passed serial seven subtractions, had good abstract thought, and normal 21 1 insight and judgment.” Id. (citing AR 26, 594). The Commissioner also refers the 2 Court to the ALJ’s citation to objective findings from treating providers and
3 examiners that supported that Plaintiff has a normal memory, attention span and 4 concentration, and cognitive test results indicating a low average working memory, 5 processing speed, and verbal comprehension. Id. (citing AR 20–22, 353, 365, 367,
6 374, 416, 423, 429, 432, 435, 437, 455, 458, 461, 479, 495, 508, and 512). In 7 addition, the Commissioner highlights that the ALJ noted that Dr. Arnold’s opinion 8 that Plaintiff has marked limitations in his ability to communicate and perform 9 effectively and maintain behavior in a work setting is inconsistent with Dr. Arnold’s
10 findings that Plaintiff presented with a cooperative and engaged attitude, generally 11 logical and progressive speech with some delays, normal thought content, and 12 normal perception. Id. at 13 (citing AR 26, 593–94).
13 The ALJ noted that Dr. Arnold performed only a “basic” psychological 14 examination and reviewed only one 2015 Washington State Department of Social 15 and Health Services examination by another examiner before offering his opinions. 16 AR 26. The ALJ also found that Dr. Arnold’s finding of marked limitation in
17 Plaintiff’s ability to learn new tasks was at odds with his findings that Plaintiff 18 showed good ability for abstract thought and intact and normal insight and 19 judgment. AR 26. The Court finds that the ALJ satisfied the requirement that he
20 provide a detailed and thorough summary of the facts he relied on in giving little 21 1 weight to Dr. Arnold’s opinion, and articulated specific and legitimate reasons for 2 doing so. See Lester, 81 F.3d at 830–31; Garrison, 759 F.3d at 1012.
3 Dr. Wiser 4 Treating physician Dr. Wiser completed a medical report form regarding 5 Plaintiff’s ability to perform daily work-related activities on June 10, 2019. Dr.
6 Wiser checked the boxes finding several physical limitations in Plaintiff’s functional 7 abilities. 8 Plaintiff argues that the ALJ erroneously rejected Dr. Wiser’s opinions 9 because her opinions were consistent with “opinions from other improperly rejected
10 sources . . . .” ECF No. 16 at 13. 11 The Commissioner responds that the ALJ provided valid reasons for assigning 12 Dr. Wiser’s opinions “little weight.” ECF No. 18 at 14–15. The Commissioner
13 offers that the ALJ was reasonable in noting that Dr. Wiser’s assessment of 14 Plaintiff’s physical limitations was the most restrictive in the record, but her own 15 physical examination of Plaintiff indicated that Plaintiff was not in acute distress and 16 had normal gait and station. Id. at 15.
17 Having reviewed both Dr. Wiser’s medical report and the ALJ’s description of 18 it, the Court finds that the ALJ accurately portrayed Dr. Wiser’s findings and the 19 apparent contradictions between some of those findings. AR 25, 606–08.
20 Specifically, the ALJ noted that Dr. Wiser did not offer any meaningful explanation 21 1 for her opinions regarding the degree of Plaintiff’s limitations and described her own 2 physical examination of Plaintiff as “inconclusive.” AR 25. The ALJ also found
3 that the record indicates that Dr. Wiser saw Plaintiff for a treatment visit only once, 4 in January 2019, and noted at that time that Plaintiff was stable and exhibited normal 5 gait, station, and neurological findings. AR 25 (citing AR 418–20). The Court notes
6 that Dr. Wiser’s treatment notes from the January 2019 visit indicate that Plaintiff 7 also displayed normal mood and affect, as well as normal behavior, judgment, and 8 thought content. AR 420. Consequently, the ALJ gave specific and legitimate 9 reasons giving little weight to Dr. Wiser’s medical report. Lester v. Chater, 81 F.3d
10 821, 830-31 (9th Cir. 1995). The Court finds no error on this basis. 11 Mr. Salzman 12 Treating counselor Mr. Salzman completed a mental medical source statement
13 form for Plaintiff on June 19, 2019. AR 601–03. Mr. Salzman checked boxes 14 indicating a wide range of assessments, from “Not Significantly Limited” to 15 “Severely Limited.” Mr. Salzman stated that in his opinion that Plaintiff was most 16 limited in his ability to complete a normal workday and was likely to miss four? or
17 more days of work per month. AR 601–03. 18 Judge Shumway found Mr. Salzman’s opinions to be “not consistent with or 19 supported by the longitudinal evidence of record, including Mr. Salzman’s very few
20 treatment notes.” AR 27. The ALJ noted that Mr. Salzman saw Plaintiff for an 21 1 appointment in late March 2019 to create a treatment plan and then for one single 2 counseling session in April 2019. AR 27.
3 Plaintiff argues that Mr. Salzman’s assessment of Plaintiff’s limitations was 4 not inconsistent with activities such as volunteering at an animal shelter, preparing a 5 grill for meal preparation, and fixing a bicycle with the help of his father because
6 none of these activities supports an ability to remain employed in a competitive 7 work environment. ECF No. 19 at 5–6. Plaintiff also asserts that the ALJ’s 8 reasoning that Mr. Salzman’s opinion was not based on a lengthy history of treating 9 Plaintiff overlooked that Mr. Salzman was a provider at a clinic that Plaintiff visited
10 frequently. ECF No. 16 at 14. Therefore, Plaintiff maintains that Mr. Salzman had 11 access to Plaintiff’s treatment notes at the clinic, and “Mr. Salzman’s assessment 12 that the claimant would miss four or more days of work is consistent with the
13 claimant’s pattern of repeated missed appointments at the clinic, which at one point 14 resulted in him being discharged from services.” Id. at 14. 15 The Commissioner responds that ALJs may assign less weight to the opinions 16 of mental health practitioners, such as Mr. Salzman, who are “other sources” under
17 the Social Security regulations. ECF No. 18 at 16. The Commissioner argues that 18 the ALJ gave sufficient, germane reasons to discount Mr. Salzman’s opinions by 19 explaining why they were unsupported by the longitudinal record, including Mr.
20 Salzman’s own sparse treatment notes. ECF No. 18 at 17. 21 1 The Court agrees with the Commissioner that the ALJ gave sufficient, specific 2 reasons for discounting Mr. Salzman’s opinions. The ALJ reasoned that at the
3 single therapy session that Plaintiff attended with Mr. Salzman, Plaintiff reported 4 daily living activities including volunteering and meal preparation that undermined 5 the severity of the limitations that Mr. Salzman assessed approximately two months
6 later in his medical source statement. AR 27. There also are very limited records, 7 treatment notes, or explanation from Mr. Salzman to support the limitations that he 8 assessed for Plaintiff. See AR 26, 601–03. Even if there are other explanations that 9 could be drawn from the record for why Mr. Salzman opined that Plaintiff would
10 miss four or more days per work each month, such as that Plaintiff did not show up 11 for mental health appointments at the clinic, the ALJ’s reasons were relevant and 12 supported by the record. The Court finds no error in the ALJ’s handling of Mr.
13 Salzman’s statement. 14 Therefore, the Court does not find reversible error based on the ALJ’s 15 treatment of medical opinion testimony. 16 Plaintiff’s Subjective Symptom Testimony
17 The ALJ found that Plaintiff’s medically determinable impairments could 18 reasonably be expected to cause some of his alleged symptoms of anxiety, 19 depression, and pain due to knee issues and flat feet. AR 22. However, the ALJ
20 further found that Plaintiff’s statements regarding the intensity, persistence, and 21 1 limiting effects of these symptoms are not entirely consistent with the medical 2 evidence and other evidence in the record, which reflects unremarkable objective
3 findings over time and a level of functioning that is not as limited as Plaintiff 4 alleges. AR 22–23. 5 Plaintiff argues that the ALJ erred in rejecting Plaintiff’s subjective symptom
6 testimony as inconsistent with treatment records because treatment records support 7 that Plaintiff often exhibited depressed and/or anxious mood or affect, AR 479, 495, 8 517, 520, 523, and 593, demonstrated limited judgment, AR 479, 495, and showed 9 impaired memory functions, AR 351, 495, and 594. ECF No. 19 at 6. Plaintiff also
10 argues that the ALJ erred in rejecting Plaintiff’s subjective symptoms testimony as 11 inconsistent with his daily activities because Plaintiff’s work history included over 12 20 jobs, with the longest held job lasting only approximately six months. Id. at 7
13 (citing AR 590). Moreover, Plaintiff argues that the vocational expert confirmed 14 that his rage symptoms would result in termination from a job. Id. (citing AR 57– 15 60). 16 The Commissioner responds that treatment records did not corroborate the
17 significant mental health symptoms that Plaintiff alleged. ECF No. 18 at 4. 18 Although Plaintiff alleged significant memory issues, the ALJ cited evidence in the 19 record that supported intact memory. Id. (citing AR 365, 367, 374, 416, 423, 429,
20 432, 435, 437, 455, 461, 479, 508, and 512). The Commissioner also asserts that the 21 1 ALJ cited to treatment notes and Plaintiff’s self-reports that contradicted Plaintiff’s 2 alleged difficulty interacting with others. Id. at 4–5 (citing AR 20, 22, 416, 420, and
3 479 and citing AR 507, 512, 516, 523, 530, 536, and 543 for other similar findings 4 in the record). 5 “Credibility determinations are the province of the ALJ.” Fair v. Bowen, 885
6 F.2d 597, 604 (9th Cir. 1989) (citation omitted); see Greger v. Barnhart, 464 F.3d 7 968, 972 (9th Cir. 2006) (“[Q]uestions of credibility and resolutions of conflicts in 8 the testimony are functions solely of the Secretary.” (citation omitted)); Parra v. 9 Astrue, 481 F.3d 742, 750 (9th Cir. 2007).
10 In deciding whether to accept a claimant's subjective pain or symptom 11 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 12 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has
13 presented objective medical evidence of an underlying impairment ‘which could 14 reasonably be expected to produce the pain or other symptoms alleged.’” 15 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 16 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is met and there
17 is no evidence of malingering, “the ALJ can reject the claimant's testimony about the 18 severity of her symptoms only by offering specific, clear and convincing reasons for 19 doing so.” Smolen, 80 F.3d at 1281.
20 21 1 Reviewing the ALJ’s decision, the Court identifies several clear, specific, and 2 convincing reasons, in the context of the full record, for not fully accepting
3 Plaintiff’s statements concerning the intensity, persistence, and limiting effects of his 4 claimed symptoms and their effect on his ability to work. AR 22–24. The ALJ cited 5 to numerous treatment and examination records, which included Plaintiff’s past
6 contemporaneous statements to providers, that were inconsistent with Plaintiff’s 7 self-described intensity of his anger issues and depression and anxiety symptoms. 8 AR 22−25. The ALJ also noted Plaintiff’s course of treatment, ability to live 9 independently, care for a pet dog, ride the bus and shop in stores independently, as
10 inconsistent with the degree of limitation that Plaintiff alleged at the hearing. AR 11 22–23. Moreover, the ALJ noted that Plaintiff’s “weak work history” preceded his 12 amended onset date by several years and found that fact to undermine Plaintiff’s
13 claim that his current medical conditions inhibit his ability to work. AR 23. 14 Accordingly, in formulating the RFC, Judge Shumway reasonably accepted 15 Plaintiff’s statements to the extent that they were consistent with the objective 16 medical and other evidence by incorporating several nonexertional limitations
17 consisting of limiting Plaintiff to simple, routine tasks consistent with a reasoning 18 level of two or less on the U.S. Department of Labor’s six-level General Educational 19 Development (“GED”) scale and superficial contact with supervisors, coworkers,
20 and the public. See AR 22; Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) 21 1 (explaining the Department of Labor’s GED scale, which includes the reasoning 2 ability required of a worker at each level for satisfactory job performance). The
3 Court does not find error on this basis. 4 Lay Witness Testimony 5 The ALJ gave the statements of Plaintiff’s parents little weight because,
6 although Plaintiff’s parents “have known the claimant for his entire life[, . . .] they 7 did not indicate how often they spend time with the claimant.” AR 30 (citing AR 8 342–43). The ALJ further noted that Plaintiff’s parents’ statements were not 9 consistent with or supported by Plaintiff’s self-reports of functioning. AR 27–28.
10 The ALJ gave as an example Plaintiff’s parents’ report that Plaintiff self-medicates 11 his subjective physical pain with marijuana, but the ALJ noted that that Plaintiff had 12 told his treatment provider that he has no physical pain outside of intermittent pain
13 and only after prolonged walking or standing. AR 28 (citing AR 34). 14 Plaintiff argues that the ALJ erroneously discredited the lay opinions of 15 Plaintiff’s parents on the reasoning that the opinions were inconsistent with 16 Plaintiff’s own testimony, when, Plaintiff asserts, his parents’ statements and his
17 self-report are generally consistent with and support one another. ECF Nos. 16 at 18 19; 19 at 8. 19 The Commissioner responds that Plaintiff’s parents’ statements that Plaintiff
20 had physical disabilities that caused him to be in pain “most of the time” were 21 1 contradicted by treatment notes indicating that Plaintiff denied pain and 2 musculoskeletal symptoms. ECF No. 18 at 19–20 (citing AR 28, 342, 356, 365,
3 366, 423, 428, 429, and 430). The Commissioner further argues that any error with 4 respect to discounting Plaintiff’s parents’ statements is harmless because the ALJ 5 gave clear and convincing reasons for rejecting Plaintiff’s subjective complaints,
6 which “generally mirror” Plaintiff’s parents’ allegations of disability in their 7 statement. Id. at 20. 8 An ALJ must consider the statements of “non-medical sources” including 9 spouses, parents, and other relatives in determining the severity of a claimant’s
10 symptoms. 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4). Statements from lay- 11 witness sources are competent evidence and cannot be disregarded without 12 comment. Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir. 1993). To reject lay
13 witness testimony, the ALJ must provide “reasons that are germane to each witness.” 14 Rounds v. Comm’r, 807 F.3d 996, 1007 (9th Cir. 2015) (internal quotation omitted). 15 Having reviewed the treatment notes in the record, the Court finds some 16 contradiction that confirms one of the reasons given by the ALJ in discounting
17 Plaintiff’s parents’ statements. Specifically, Plaintiff’s parents asserted that Plaintiff 18 is in pain “most of the time,” while treatment notes from 2016 and 2017 indicate that 19 Plaintiff’s knee and flatfoot pain is intermittent, and that Plaintiff reported having no
20 pain at the time of the visits. AR 365–66, 428–29. The Court finds that the minor 21 1 inconsistency still surpasses the “germane reason” threshold. See Rounds, 807 F.3d 2 at 1007. Moreover, the ALJ also offered as a reason that Plaintiff’s parents did not
3 indicate how often they spend time with the claimant. Given that the record 4 indicates that Plaintiff was not living with his parents for approximately three years 5 before his hearing, the Court also finds the potential that Plaintiff’s parents were not
6 aware of Plaintiff’s daily functioning relevant to his ability to work to be a germane 7 reason for discounting their statements. Finally, the Court finds that any legal 8 deficiency in the ALJ’s reasoning for discounting Plaintiff’s parents’ statements 9 would be harmless error because the ALJ validly discounted Plaintiff’s subjective
10 complaints and the opinions of the treating or examining medical sources. See 11 Robbins v. Comm’r, 466 F.3d 880, 885 (9th Cir. 2006) (holding that an error is 12 harmless if it was “inconsequential to the ultimate nondisability determination.”).
13 Therefore, the Court finds no reversible error in the ALJ’s handling of lay witness 14 statements. 15 Step Five Evaluation 16 At step five in the sequential evaluation, the ALJ found that Plaintiff has a
17 high school education, can communicate in English, and that “[t]ransferability of job 18 skills is not an issue because the claimant does not have past relevant work.” AR 28. 19 As a result, the ALJ found that there are jobs that exist in significant numbers in the
20 21 1 national economy that Plaintiff could perform considering his age, education, work 2 experience, and RFC. AR 28–29.
3 Plaintiff argues that the ALJ’s Step Five assessment was erroneous because 4 the ALJ did not include all of Plaintiff’s limitations in the hypothetical scenarios that 5 the ALJ posed to the vocational expert. ECF No. 19 at 8–9. The Commissioner
6 argues that the ALJ appropriately included all of the limitations that were supported 7 by the record in the RFC, and a person with the RFC as formulated by the ALJ could 8 perform the jobs that the ALJ identified at step five. ECF No. 18 at 21. 9 An ALJ is not required to accept as true limitations alleged by a claimant and
10 may decline to include those limitations in the vocational expert’s hypothetical if 11 they are not supported by sufficient evidence. See Bayliss v. Barnhart, 427 F.3d 12 1211, 1217–18 (9th Cir. 2005). Plaintiff’s argument that the ALJ erred in the
13 limitations posed to the vocational expert derives from Plaintiff’s challenges to the 14 medical source opinions and subjective symptom testimony that the ALJ discounted 15 in determining Plaintiff’s RFC. Having determined that the ALJ discounted certain 16 evidence of Plaintiff’s limitations for legally permissible reasons, the Court finds no
17 error with respect to the ALJ’s step-five analysis. 18 Having addressed all issues raised by the parties’ cross-motions for summary 19 judgment, the Court denies Plaintiff’s Motion for Summary Judgment, ECF No. 16,
20 and grants Defendant Commissioner’s Motion for Summary Judgment, ECF No. 18. 21 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED.
3 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is 4 GRANTED. 5 3. Judgment shall be entered in Defendant’s favor.
6 IT IS SO ORDERED. The District Court Clerk is directed to enter this 7 Order, provide copies to counsel, and close the file in this case. 8 DATED April 22, 2021.
9 s/ Rosanna Malouf Peterson 10 ROSANNA MALOUF PETERSON United States District Judge 11 12 13 14 15 16 17 18 19
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