Rainsberry v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: September 6, 2022
• Docket: 2:20-cv-00354
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Sep 06, 2022 3 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 LAURA R., No. 2:20-CV-00354-JAG 8

9 Plaintiff, 10 v. ORDER GRANTING 11 DEFENDANT’S MOTION 12 KILOLO KIJAKAZI, FOR SUMMARY JUDGMENT ACTING COMMISSIONER OF 13 SOCIAL SECURITY, 14 Defendant. 15

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 18, 25. Attorney David Lybbert represents Laura R. (Plaintiff); Special 18 Assistant United States Attorney Danielle Mroczek represents the Commissioner 19 of Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 6. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 22 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 23 I. JURISDICTION 24 Plaintiff filed an application for Supplemental Security Income on February 25 28, 2018, alleging disability beginning February 28, 2018, due to mental health, 26 bipolar I, depression, anxiety, stress, high blood pressure, and polycystic kidney 27 disease. Tr. 92-93. The application was denied initially and upon reconsideration. 28 1 Tr. 122-25, 129-31. Administrative Law Judge (ALJ) Glenn Meyers held a hearing 2 on November 19, 2019, Tr. 35-78, and issued an unfavorable decision on February 3 12, 2020. Tr. 15-30. Plaintiff requested review by the Appeals Council and the 4 Appeals Council denied the request on July 30, 2020. Tr. 1-5. The ALJ’s February 5 2020 decision became the final decision of the Commissioner, which is appealable 6 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for 7 judicial review on September 30, 2020. ECF No. 1. 8 II. STATEMENT OF FACTS 9 Plaintiff was born in 1985 and was 32 years old when she filed her 10 application. Tr. 92. She has her GED and has worked sporadically doing cleaning 11 and working at Subway. Tr. 223, 240, 349. She had a difficult childhood and was 12 abused as a child and by her spouse. Tr. 348. She was previously on SSI benefits 13 from 2010 through 2016, but her benefits were stopped due to non-compliance 14 with a continuing disability review. Tr. 79-90, 717-19. She testified at the hearing 15 that she experiences significant impairment from polycystic kidney disease and 16 mental health conditions. 17 III. STANDARD OF REVIEW 18 The ALJ is responsible for determining credibility, resolving conflicts in 19 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 20 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 21 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 22 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 23 only if it is not supported by substantial evidence or if it is based on legal error. 24 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 25 defined as being more than a mere scintilla, but less than a preponderance. Id. at 26 1098. Put another way, substantial evidence is such relevant evidence as a 27 reasonable mind might accept as adequate to support a conclusion. Richardson v. 28 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 1 rational interpretation, the Court may not substitute its judgment for that of the 2 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 3 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 4 administrative findings, or if conflicting evidence supports a finding of either 5 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 6 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 7 supported by substantial evidence will be set aside if the proper legal standards 8 were not applied in weighing the evidence and making the decision. Brawner v. 9 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 10 IV. SEQUENTIAL EVALUATION PROCESS 11 The Commissioner has established a five-step sequential evaluation process 12 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 13 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant 14 bears the burden of establishing a prima facie case of disability. Tackett, 180 F.3d 15 at 1098-1099. This burden is met once a claimant establishes that a physical or 16 mental impairment prevents the claimant from engaging in past relevant work. 20 17 C.F.R. § 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ 18 proceeds to step five, and the burden shifts to the Commissioner to show (1) the 19 claimant can make an adjustment to other work; and (2) the claimant can perform 20 specific jobs that exist in the national economy. Batson v. Comm’r of Soc. Sec. 21 Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If a claimant cannot make an 22 adjustment to other work in the national economy, the claimant will be found 23 disabled. 20 C.F.R. § 416.920(a)(4)(v). 24 V. ADMINISTRATIVE DECISION 25 On February 12, 2020, the ALJ issued a decision finding Plaintiff was not 26 disabled as defined in the Social Security Act. Tr. 15-30. 27 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 28 activity since the application date. Tr. 17. 1 At step two, the ALJ determined Plaintiff had the following severe 2 impairments: polycystic kidney disease, depressive disorder, posttraumatic stress 3 disorder, anxiety disorder, polysubstance abuse in remission, and attention deficit 4 hyperactivity disorder. Tr. 18. 5 At step three, the ALJ found Plaintiff did not have an impairment or 6 combination of impairments that met or medically equaled the severity of one of 7 the listed impairments. Tr. 18-19. 8 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 9 she could perform light work, with the following additional limitations:

10 She is capable of engaging in unskilled, repetitive, routine tasks 11 in two-hour increments. She cannot have contact with the general 12 public. She is capable of working in proximity to but not in coordination with co-workers. She can have occasional contact 13 with supervisors. She can engage in occasional stooping and 14 crouching. She cannot engage in crawling, kneeling, or climbing ramps, stairs, ropes, ladders, or scaffolds. She will be 5% less 15 productive than the average worker in the workplace and will be 16 absent from work four times per year.

17 Tr. 19. 18 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 28. 19 At step five, the ALJ determined that, based on the testimony of the 20 vocational expert, and considering Plaintiff’s age, education, work experience, and 21 RFC, Plaintiff could perform jobs that existed in significant numbers in the 22 national economy, including the jobs of small products assembler, marker, and 23 tagger. Tr. 29-30. 24 The ALJ thus concluded Plaintiff was not under a disability within the 25 meaning of the Social Security Act at any time from the application date through 26 the date of the decision. Tr. 30. 27 28 1 VI. ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. 5 Plaintiff contends the ALJ erred by (1) improperly assessing Plaintiff’s 6 subjective statements; (2) failing to properly consider all of Plaintiff’s non- 7 exertional limitations in the RFC; (3) failing to consider Plaintiff’s mental 8 conditions in a “longitudinal” fashion; and (4) failing to consider Plaintiff’s prior 9 award of benefits or to give it res judicata effect. 10 VII. DISCUSSION 11 A. Prior Application. 12 Plaintiff previously received supplemental security income from 2010 13 through 2016, based on a 2012 ALJ decision finding her incapable of engaging in 14 sustained full-time work activity. Tr. 83-90. Benefits were terminated in May 2016 15 when Plaintiff failed to comply with a continuing disability review. Tr. 717-19. 16 Plaintiff filed the current application for benefits in February 2018. Tr. 92. Plaintiff 17 argues now that the ALJ erred in failing to give res judicata effect to the prior fully 18 favorable decision, absent a showing of improvement, and asserts the record shows 19 Plaintiff has the same, if not more, physical problems now as she had in 2012. ECF 20 No. 18 at 15-19.1 21 In Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), the Ninth Circuit 22 established a presumption of continuing non-disability arising from a previous 23 unfavorable ALJ decision. (Adopted by SSA in Acquiescence Ruling 97-4(9)). 24

25 1 Plaintiff also asserts ALJ Meyers did not explain why hypertension was no 26 longer considered to be a severe impairment in the 2020 decision. ECF No. 18 27 at 16. However, ALJ Meyers found hypertension to be non-severe at step two and 28 explained his findings. Tr. 18. 1 However, the Ninth Circuit has held that no similar presumption exists for a 2 favorable ALJ decision when benefits are later terminated. Stubbs-Danielson v. 3 Astrue, 539 F.3d 1169, 1172-73 (9th Cir. 2008). Plaintiff cites no authority for her 4 argument that the 2012 ALJ decision should be given res judicata effect. 5 To the extent Plaintiff’s arguments constitute an implied request to reopen 6 the prior application and cessation in 2016, such an action by the ALJ is not 7 generally a reviewable decision for this court to consider. Lester v. Chater, 81 F.3d 8 821, 827 (9th Cir. 1996). 9 B. Plaintiff’s Symptom Statements. 10 Plaintiff alleges the ALJ erred in rejecting her symptom testimony without 11 providing adequate reasons. ECF No. 18 at 6-8, 10-11. 12 It is the province of the ALJ to make determinations regarding a claimant’s 13 subjective reports. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 14 However, the ALJ’s findings must be supported by specific cogent reasons. 15 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative 16 evidence of malingering, the ALJ’s reasons for rejecting a claimant’s testimony 17 must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 18 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 19 The ALJ found Plaintiff’s medically determinable impairments could 20 reasonably be expected to cause the alleged symptoms; however, he found 21 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 22 her symptoms were not entirely consistent with the medical evidence and other 23 evidence in the record. Tr. 20. Specifically, the ALJ found Plaintiff’s allegations to 24 be undermined by lack of support from the treatment records, inconsistent reports 25 of symptoms, Plaintiff’s demonstrated functional ability, evidence that her last 26 employment ended for reasons unrelated to her disability, and evidence of 27 exaggeration of symptoms. Tr. 20-24. 28 1 Plaintiff argues the ALJ selectively cited the evidence, mentioning only the 2 positive aspects of the record. ECF No. 18 at 6-8, 10-11. She specifically 3 challenges the ALJ’s interpretation of the evidence of exaggeration and lack of 4 acute distress, and asserts the record supports her testimony of severe limitations 5 from her polycystic kidney disease. Id. Defendant argues the ALJ gave multiple 6 valid reasons for finding Plaintiff’s reports to be unreliable, noting Plaintiff failed 7 to challenge several of the ALJ’s proffered reasons. ECF No. 25 at 14-18. 8 Defendant argues the ALJ’s interpretation of the evidence, particularly regarding 9 exaggeration and lack of support for the physical claims, is well-supported and 10 consistent with the testimony of the medical expert and the lack of any imposed 11 restrictions from any treating doctor. Id. 12 The Court finds the ALJ did not err. An ALJ may consider inconsistent 13 statements by a claimant in assessing her credibility. Tonapetyan v. Halter, 242 14 F.3d 1144, 1148 (9th Cir. 2001). The ALJ found Plaintiff’s reports of persistent 15 nausea and vomiting were inconsistent with her regular denial of these symptoms. 16 Tr. 21. A claimant’s daily activities may also support an adverse credibility finding 17 if the claimant’s activities contradict her other testimony. Orn v. Astrue, 495 F.3d 18 625, 639 (9th Cir. 2007). The ALJ found Plaintiff’s allegations of persistent 19 debilitating pain and social difficulty to be inconsistent with evidence of her ability 20 to caretake for her two children, one of whom has mental impairments of his own, 21 and Plaintiff’s ability to spend time with friends, do physical activities, and attend 22 church. Tr. 24. The Court finds the ALJ’s interpretation of the record is reasonable. 23 “Even when the evidence is susceptible to more than one rational interpretation, we 24 must uphold the ALJ’s findings if they are supported by inferences reasonably 25 drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 26 Although it cannot serve as the sole ground for rejecting a claimant’s 27 symptom statements, objective medical evidence is a “relevant factor in 28 determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 1 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ reasonably found the 2 objective findings throughout the record to not be supportive of the extent of 3 Plaintiff’s alleged limitations. 4 While the ALJ offered other reasons that are not supported by substantial 5 evidence, any such error was harmless. See Carmickle v. Comm'r Soc. Sec. Admin, 6 533 F.3d 1155, 1163 (9th Cir. 2008) (upholding an adverse credibility finding 7 where the ALJ provided four reasons to discredit the claimant, two of which were 8 invalid). 9 C. Medical Opinions. 10 Plaintiff argues the ALJ failed to formulate an RFC that adequately reflected 11 her mental impairments, as he omitted limitations recommended by the state 12 agency doctors and improperly rejected the opinions from Dr. Genthe. ECF No. 18 13 at 11-15.2 14 For claims filed on or after March 27, 2017, new regulations apply that 15 change the framework for how an ALJ must weigh medical opinion evidence. 16 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 17 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new 18 regulations provide the ALJ will no longer give any specific evidentiary weight to 19 medical opinions or prior administrative medical findings, including those from 20 treating medical sources. 20 C.F.R. § 416.920c(a). Instead, the ALJ will consider 21 the persuasiveness of each medical opinion and prior administrative medical 22 finding, regardless of whether the medical source is an Acceptable Medical Source. 23 20 C.F.R. § 416.920c(c). The ALJ is required to consider multiple factors, 24 including supportability, consistency, the source’s relationship with the claimant, 25

26 2 Plaintiff includes these arguments under other headings, but for clarity’s 27 sake the Court will address the medical opinion evidence separately from other 28 arguments. 1 any specialization of the source, and other factors (such as the source’s familiarity 2 with other evidence in the file or an understanding of Social Security’s disability 3 program). Id. The regulations make clear that the supportability and consistency of 4 an opinion are the most important factors, and the ALJ must articulate how they 5 considered those factors in determining the persuasiveness of each medical opinion 6 or prior administrative medical finding. 20 C.F.R. § 416.920c(b). The ALJ may 7 explain how they considered the other factors, but is not required to do so, except 8 in cases where two or more opinions are equally well-supported and consistent 9 with the record. Id. 10 Supportability and consistency are further explained in the regulations:

11 (1) Supportability. The more relevant the objective medical 12 evidence and supporting explanations presented by a medical 13 source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the 14 medical opinions or prior administrative medical finding(s) will 15 be.

16 (2) Consistency. The more consistent a medical opinion(s) or 17 prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the 18 more persuasive the medical opinion(s) or prior administrative 19 medical finding(s) will be. 20 21 20 C.F.R. § 416.920c(c). The Ninth Circuit has additionally held that the new 22 regulatory framework displaces the longstanding case law requiring an ALJ to 23 provide “specific and legitimate” or “clear and convincing” reasons for rejecting a 24 treating or examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 25 2022). 26 1. State Agency Doctors. 27 Plaintiff argues the ALJ ignored the opinions of the state agency doctors, 28 who opined Plaintiff would have moderate impairments in her ability to maintain 1 focus and concentration and complete a normal workday or workweek. ECF No. 2 18 at 12-13. Defendant argues the ALJ was not required to address each individual 3 rating in various work-related categories, but was only required to discuss the 4 narrative functional limitations included in the opinions. ECF No. 25 at 10. 5 The ALJ did not err. The narrative portions of the opinions included the 6 explicit functional limitations that the doctors assigned to Plaintiff, including that 7 she was able to carry out simple tasks despite some difficulty with concentration, 8 persistence, and pace. Tr. 101, 117. The ALJ reasonably relied on the narrative 9 section of the opinions in formulating Plaintiff’s RFC. Buck v. Berryhill, 869 F.3d 10 1040, 1051 (9th Cir. 2017). 11 2. Consultative Examiner Dr. Thomas Genthe. 12 Plaintiff attended three consultative exams with Dr. Thomas Genthe, in May 13 2018, June 2018, and June 2019. Tr. 348-53, 355-59, 511-18. At each exam he 14 diagnosed Plaintiff with major depressive disorder, PTSD, ADHD, and substance 15 abuse in remission, and in June 2018 also diagnosed other specified personality 16 disorder. Tr. 350, 359, 514. He assessed various levels of impairment, with overall 17 moderate limitations after the first exam and marked impairment by the third exam. 18 Tr. 351, 359-60, 515. In each opinion Dr. Genthe stated Plaintiff was unlikely to 19 function adequately in a work setting until her psychiatric symptoms were more 20 effectively managed. Tr. 351, 360, 515-16. 21 The ALJ found these opinions unpersuasive. Tr. 28. He reasoned that the 22 marked limitations were inconsistent with the longitudinal record showing no more 23 than moderate findings, and found the opinions were unsupported by any 24 contemporaneous review of records, inconsistent with the mental status exams, and 25 internally inconsistent. Id. The ALJ further found Dr. Genthe did not provide 26 adequate medical explanation for the greater limitations in the later opinions, 27 which the ALJ found suggested Dr. Genthe relied on Plaintiff’s reports and not the 28 objective evidence. Id. 1 Plaintiff argues the ALJ erred by failing to consider that the opinions were 2 consistent with each other and with other psychological reports from years earlier, 3 and that the ALJ failed to acknowledge Dr. Genthe’s statements that Plaintiff was 4 unlikely to function adequately in a work setting. ECF No. 18 at 14. Defendant 5 argues the ALJ reasonably considered the record, including Dr. Genthe’s own 6 statements regarding the validity of testing, the mild to moderate results on mental 7 status exams, and the lack of explanation for the increase in limitations from one 8 opinion to the next. ECF No. 25 at 10-13. Defendant further notes the ALJ 9 considered the opinions’ consistency with the longitudinal record, and reasonably 10 found the opinions at odds with the treatment records. Id. at 13. 11 The Court finds the ALJ did not err. He considered the two most important 12 factors, consistency, and supportability. The ALJ’s interpretation of the 13 longitudinal record as being inconsistent with the marked limitations opined by Dr. 14 Genthe is reasonable, in light of Plaintiff’s generally unremarkable presentation 15 during medical appointments and with her counselor. The ALJ also reasonably 16 found Dr. Genthe’s opinions to be unsupported by any contemporaneous record 17 review and to contain some internal inconsistency, such as Dr. Genthe’s statement 18 in June 2018 that Plaintiff was unlikely to function adequately in a work setting but 19 also was able to maintain a regular schedule and complete a 40-hour workweek. 20 Tr. 359-60. The Court finds the ALJ’s discussion is supported by substantial 21 evidence. 22 D. Residual Functional Capacity (RFC). 23 Plaintiff makes various other arguments throughout her briefing, including 24 that the ALJ erred in formulating an RFC that does not include adequate 25 absenteeism limitations and in not taking a “longitudinal view” of her mental 26 27 28 1 || impairments. ECF No. 18 at 11-15.> Plaintiff does not point to any evidence 2 || supporting her allegation that she would miss work at least once per month, other 3 || than her own statements, which the ALJ offered sufficient reasons for discounting. 4|| Plaintiff does not assert any specific legal argument regarding the ALJ not taking a 5 || longitudinal view of the record, other than with respect to the issues discussed 6|| above. Therefore, the Court finds no error in the ALJ’s formulation of the RFC. 7 VU. CONCLUSION 8 The Court has reviewed the record and the ALJ’s findings and the Court finds the ALJ’s decision is supported by substantial evidence and free of legal error. Therefore, IT IS HEREBY ORDERED: 11 1. Defendant’s Motion for Summary Judgment, ECF No. 25, is 12|| GRANTED. 13 2. Plaintiffs Motion for Summary Judgment, ECF No. 18, is DENIED. 14 The District Court Executive is directed to file this Order and provide a copy 15 |} to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 16|| and the file shall be CLOSED. 17 DATED September 6, 2022.

JAMES A. GOEKE 20 a” UNITED STATES MAGISTRATE JUDGE 21 22 23 24 > The header of section B of Plaintiff's argument referring to evidence submitted to the Appeals Council appears to be in error as no evidence was 26|| submitted to the Appeals Council and the body of the argument contains no discussion of any such error. ECF No. 18 at 11-13. 28