2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 May 13, 2020
4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 STEPHANIE R.,1 No. 4: 19-CV-5053-EFS
8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. SUMMARY-JUDGMENT MOTION AND GRANTING DEFENDANT’S 10 ANDREW M. SAUL, the Commissioner SUMMARY-JUDGMENT MOTION of Social Security,2 11 Defendant. 12 13 14 Before the Court are the parties’ cross summary-judgment motions.3 15 Plaintiff Stephanie R. appeals the denial of benefits by the Administrative Law 16 Judge (ALJ). She alleges the ALJ erred by 1) improperly weighing the medical 17
18 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 19 first name and last initial or by “Plaintiff.” See LCivR 5.2(c). 20 2 Because Andrew Saul is the Commissioner of the Social Security Administration, 21 the Court substitutes him as the Defendant. See Fed. R. Civ. P. 25(d). 22 3 ECF Nos. 11 & 13. 23 1 opinions; 2) discounting Plaintiff’s symptom reports; 3) improperly determining 2 that the impairments did not meet or equal a listed impairment; and 4) improperly 3 assessing Plaintiff’s residual functional capacity and therefore relying on an 4 incomplete hypothetical at step five. In contrast, Defendant Commissioner of Social 5 Security asks the Court to affirm the ALJ’s decision finding Plaintiff not disabled. 6 After reviewing the record and relevant authority, the Court denies Plaintiff’s 7 Motion for Summary Judgment, ECF No. 11, and grants the Commissioner’s 8 Motion for Summary Judgment, ECF No. 13. 9 I. Five-Step Disability Determination 10 A five-step sequential evaluation process is used to determine whether an 11 adult claimant is disabled.4 Step one assesses whether the claimant is currently 12 engaged in substantial gainful activity.5 If the claimant is engaged in substantial 13 gainful activity, benefits are denied.6 If not, the disability-evaluation proceeds to 14 step two.7 15 Step two assesses whether the claimant has a medically severe impairment, 16 or combination of impairments, which significantly limits the claimant’s physical 17 18
19 4 20 C.F.R. §§ 404.1520(a), 416.920(a). 20 5 Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 21 6 Id. §§ 404.1520(b), 416.920(b). 22 7 Id. §§ 404.1520(b), 416.920(b). 23 1 or mental ability to do basic work activities.8 If the claimant does not, benefits are 2 denied. 9 If the claimant does, the disability-evaluation proceeds to step three.10 3 Step three compares the claimant’s impairment(s) to several recognized by 4 the Commissioner to be so severe as to preclude substantial gainful activity.11 If an 5 impairment meets or equals one of the listed impairments, the claimant is 6 conclusively presumed to be disabled.12 If an impairment does not, the disability- 7 evaluation proceeds to step four. 8 Step four assesses whether an impairment prevents the claimant from 9 performing work she performed in the past by determining the claimant’s residual 10 functional capacity (RFC).13 If the claimant is able to perform prior work, benefits 11 are denied.14 If the claimant cannot perform prior work, the disability-evaluation 12 proceeds to step five. 13 Step five, the final step, assesses whether the claimant can perform other 14 substantial gainful work—work that exists in significant numbers in the national 15
16 8 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 17 9 Id. §§ 404.1520(c), 416.920(c). 18 10 Id. §§ 404.1520(c), 416.920(c). 19 11 Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 20 12 Id. §§ 404.1520(d), 416.920(d). 21 13 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 22 14 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 23 1 economy—in light of the claimant’s RFC, age, education, and work experience.15 If 2 so, benefits are denied. If not, benefits are granted.16 3 The claimant has the initial burden of establishing entitlement to disability 4 benefits under steps one through four.17 At step five, the burden shifts to the 5 Commissioner to show that the claimant is not entitled to benefits.18 6 II. Factual and Procedural Summary 7 Plaintiff filed Title II and XVI applications, alleging a disability onset date of 8 June 1, 2014.19 Plaintiff meets the insured status requirements through March 31, 9 2017.20 Her claim was denied initially and upon reconsideration.21 A telephonic 10 administrative hearing was held before Administrative Law Judge R.J. Payne.22 11 In denying Plaintiff’s disability claims, the ALJ made the following findings: 12 13
14 15 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 15 1497-98 (9th Cir. 1984). 16 16 20 C.F.R. §§ 404.1520(g), 416.920(g). 17 17 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 18 18 Id. 19 19 AR 107. 20 20 AR 17. 21 21 AR 159 & 167. 22 22 AR 41-104. 23 1 Step one: Plaintiff had not engaged in substantial gainful activity 2 since June 1, 2014, the alleged onset date; 3 Step two: Plaintiff had the following medically determinable severe 4 impairments: diabetes, hypertension, obesity, major depressive 5 disorder, social phobia, generalized anxiety disorder versus 6 unspecified anxiety, and a history of benzodiazepine abuse and alcohol 7 dependence; 8 Step three: Plaintiff did not have an impairment or combination of 9 impairments that met or medically equaled the severity of one of the 10 listed impairments; 11 RFC: Plaintiff had the RFC to: 12 Perform a wide range of sedentary work as defined in 20 CFR 404.1567(a) and 416.9679(a). Exertionally, [Plaintiff] can lift 13 no more than 20 pounds at a time occasionally but can lift or carry 10 pounds at a time frequently; can sit for six hours; 14 and can stand and/or walk for four hours total in any combination in an eight-hour workday with normal breaks. 15 Non-exertionally, [Plaintiff] can engage in frequent stooping; occasional crouching, kneeling, and crawling; frequent 16 climbing of ramps and stairs; no climbing of scaffolds; and occasional climbing of ladders of five steps or less, consistent 17 with a step or partial ladder. Environmentally, [Plaintiff] should avoid concentrated exposure to marked temperature 18 extremes of heat and cold, cannot work at unprotected heights, and can only frequently work around hazardous 19 moving machinery. In addition, [Plaintiff] has mental limitations in that she can have only occasional contact with 20 the general public can only occasionally work with or in the vicinity of coworkers but not in a teamwork-type work setting; 21 can handle only occasional normal supervision, that is, no over-the-shoulder or confrontational-type of supervision; 22 would do best in a routine work setting with little or no changes; can have no fast-paced or strict production quota- 23 1 type work; and cannot be in a work environment where alcohol is sold. 2
Step four: Plaintiff was not capable of performing past relevant work; 3 and 4 Step five: considering Plaintiff’s RFC, age, education, and work 5 history, Plaintiff was capable of performing work that existed in 6 significant numbers in the national economy, such as toy stuffer, 7 merchandise marker, leather laminator, and parking lot attendant.23 8 When assessing the medical-opinion evidence, the ALJ gave: 9 great weight to the opinions of testifying experts Michael Lace, Psy.D. 10 and Eliza Pierko, M.D., and examining psychologists NK Marks, 11 Ph.D. and Luci Carstens, Ph.D.; 12 significant weight to the opinion of state agency psychologist Jerry 13 Gardner Ph.D.; and 14 little weight to the opinions of Daniel Pitts, ARNP, PMHNP, Dr. 15 Marks, Dr. Carstens, examining psychologist Manuel Gomes, Ph.D., 16 state agency medical consultant Robert Hander, M.D., and treating 17 physician Jennifer Charron, M.D. 18 The ALJ also found that Plaintiff’s medically determinable impairments 19 could reasonably be expected to cause some of the alleged symptoms, but that her 20 21
22 23 AR 32-33. 23 1 statements concerning the intensity, persistence, and limiting effects of those 2 symptoms were not entirely consistent with the medical evidence and other 3 evidence in the record.24 4 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 5 which denied review.25 Plaintiff timely appealed to this Court. 6 III. Standard of Review 7 A district court’s review of the Commissioner’s final decision is limited.26 The 8 Commissioner’s decision is set aside “only if it is not supported by substantial 9 evidence or is based on legal error.”27 Substantial evidence is “more than a mere 10 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 11 mind might accept as adequate to support a conclusion.”28 Moreover, because it is 12 the role of the ALJ and not the Court to weigh conflicting evidence, the Court upholds 13 14 15 16 17
18 24 AR 21. 19 25 AR 1. 20 26 42 U.S.C. § 405(g). 21 27 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 22 28 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 23 1 the ALJ’s findings “if they are supported by inferences reasonably drawn from the 2 record.”29 The Court considers the entire record as a whole.30 3 Further, the Court may not reverse an ALJ decision due to a harmless error.31 4 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 5 nondisability determination.”32 The party appealing the ALJ’s decision generally 6 bears the burden of establishing harm.33 7 IV. Analysis 8 A. Medical Opinions: Plaintiff fails to establish consequential error. 9 Plaintiff challenges the ALJ’s assignment of little weight to Dr. Marks’ and 10 Dr. Carstens’ marked limitations and also the opinions of Dr. Gomes and Mr. Pitts. 11 12
13 29 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 14 30 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 15 consider the entire record as whole, weighing both the evidence that supports and 16 the evidence that detracts from the Commissioner's conclusion,” not simply the 17 evidence cited by the ALJ or the parties.); Black v. Apfel, 143 F.3d 383, 386 (8th 18 Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that such 19 evidence was not considered[.]”). 20 31 Molina, 674 F.3d at 1111. 21 32 Id. at 1115 (quotation and citation omitted). 22 33 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 23 1 The weighing of medical-source opinions is dependent upon the nature of the 2 medical relationship, i.e., 1) a treating physician; 2) an examining physician who 3 examines but did not treat the claimant; and 3) a reviewing physician who neither 4 treated nor examined the claimant.34 Generally, more weight is given to the 5 opinion of a treating physician than to an examining physician’s opinion and both 6 treating and examining opinions are to be given more weight than the opinion of a 7 reviewing physician.35 When a treating physician’s or evaluating physician’s 8 opinion is not contradicted by another physician, it may be rejected only for “clear 9 and convincing” reasons, and when it is contradicted, it may not be rejected 10 without “specific and legitimate reasons” supported by substantial evidence in the 11 record.36 A reviewing physician’s opinion may be rejected for specific and legitimate 12 reasons supported by substantial evidence, and the opinion of an “other” medical 13 source may be rejected for specific and germane reasons supported by substantial 14 evidence.37 The opinion of a reviewing physician serves as substantial evidence if it 15 is supported by other independent evidence in the record.38 16 17
18 34 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 19 35 Id.; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 20 36 Lester, 81 F.3d at 830. 21 37 Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 22 38 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 23 1 As discussed below, the Court finds Plaintiff fails to establish that the ALJ 2 consequentially erred when weighing the medical opinions. 3 1. Dr. Marks and Dr. Carstens 4 On May 14, 2016, Dr. Marks performed a psychological evaluation of 5 Plaintiff.39 Dr. Marks diagnosed Plaintiff with posttraumatic stress disorder, social 6 anxiety disorder (social phobia), and unspecified depressive disorder. Dr. Marks 7 opined that Plaintiff had none or mild limitations in understanding, remembering, 8 and persisting in tasks by following very short and simple instructions; performing 9 routine tasks without special supervision; adapting to changes in a routine work 10 setting; making simple work-related decisions; being aware of normal hazards and 11 take appropriate precautions; and maintaining appropriate behavior in a work 12 setting. Dr Marks also opined that Plaintiff was moderately limited in 13 understanding, remembering, and persisting in tasks by follow detailed 14 instructions; learning new tasks; and completing a normal workday and work week 15 without interruptions from psychologically based symptoms. Dr. Marks further 16 opined that Plaintiff had marked limitations performing activities within a 17 schedule, maintaining regular attendance, and being punctual within customary 18 tolerances without special supervision; asking simple questions or requesting 19 assistance, communicating and performing effectively in a work setting; and 20 21
22 39 AR 609-14. 23 1 setting realistic goals and planning independently.40 Dr. Marks rated the overall 2 severity of Plaintiff’s limitations as moderate. 3 On May 31, 2016, Dr. Carsten reviewed Dr. Marks’ psychological evaluation 4 and opinion and concurred with Dr. Marks’ opined limitations.41 5 The ALJ discounted Dr. Marks and Dr. Carsten’s marked-limitation 6 opinions because 1) they were inconsistent with the results of the mental status 7 examination conducted at the time of Dr. Marks’ psychological evaluation; 2) they 8 were rendered for the purpose of determining eligibility for assistance from 9 Washington State Department of Social and Health Services (DSHS); 3) such 10 opinions are “usually substantially based on a claimant’s self-reported symptoms 11 and complaints”; and 4) they were completed by checked boxes with few objective 12 findings in support of the degree of limitations.42 13 First, the ALJ found that Drs. Marks and Carsten’s opinions regarding 14 Plaintiff’s marked limitations were inconsistent with those in Dr. Marks’ mental 15 status evaluation. Internally inconsistent opinions is a specific and legitimate 16 reason to discount a doctor’s opinion.43 Dr. Marks’ mental status evaluation 17 revealed the following observations of Plaintiff: appearance well groomed; speech 18
19 40 AR 612. 20 41 AR 615-19. 21 42 AR 29. 22 43 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 23 1 well-organized and progressive; cooperative attitude and behavior; tearful during 2 appointment; affect sad; thought process and content, orientation, perception, 3 memory, concentration, and insight and judgment all within normal limits; and 4 fund of knowledge and abstract thought outside normal limits. The ALJ rationally 5 found that Dr. Marks’ noted observations, which included both normal and fairly 6 minimal observations, were inconsistent with Drs. Marks and Carsten’s opined 7 disabling limitations. 8 Second, the ALJ erred when it discredited Drs. Marks and Carsten’s 9 opinions because they were completed for the purpose of DSHS.44 The purpose for 10 which medical reports are obtained does not provide a legitimate basis for rejecting 11 them.45 An examining doctor’s findings are entitled to no less weight when the 12 examination is procured by the claimant that when it is obtained by the 13 Commissioner.46 The error, however, is harmless. As discussed, the ALJ cited other 14 15 16 17 18
19 44 See Godwin v. Colvin, No. 2017 WL 343641, *4 (E.D. Wash. Jan. 23, 2017) (citing 20 Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995)). 21 45 Lester, 81 F.3d at 832. 22 46 Id. 23 1 specific, legitimate reasons supported by substantial evidence which supports the 2 ALJ’s rejection of Dr. Marks and Dr. Carsten’s opinions.47 3 Third, the ALJ discredited these opinions because they are “usually 4 substantially based on a claimant’s self-reported symptoms and complaints.”48 A 5 physician’s opinion may be rejected if it is based on a claimant’s subjective 6 complaints which were properly discounted.49 However, when an opinion is not 7 more heavily based on a patient’s self-reports than on clinical observations, there is 8 no evidentiary basis for rejecting the opinion.50 Here, the ALJ made no specific 9 finding that the medical sources relied on Plaintiff’s self-reports, let alone a finding 10 as to how heavily either doctor’s opinion was based on Plaintiff’s self-reporting. 11 Instead, the ALJ only observed generally that DSHS opinions “although not 12 always, such opinions are usually substantially based on a claimant’s self-reported 13
14 47 Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998) (In the absence of other 15 evidence undermining the credibility of a medical report, the purpose for which the 16 report was obtained does not provide a legitimate basis for rejecting it.). 17 48 AR 29. 18 49 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm'r of 19 Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999); Fair v. Bowen, 885 F.2d 597, 604 20 (9th Cir. 1989). 21 50 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); Ryan v. Comm'r of Soc. 22 Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008). 23 1 symptoms and complaints.51 Furthermore, Dr. Marks did rely on objective findings 2 in forming her opinion. Dr. Marks conducted a mental status evaluation in support 3 of her opinion. Even though the ALJ assigned little weight to the test results, 4 absent a specific finding supported by substantial evidence that the medical 5 sources relied on Plaintiff’s self-reports in formulating their opinions, this reason 6 was not a specific and legitimate reason to discredit the opinions. However, this 7 error is harmless because the ALJ provided additional reasons for discounting Dr. 8 Marks and Dr. Carsten’s opinions that were specific, legitimate, and supported by 9 substantial evidence. 10 Lastly, the ALJ discounted Dr. Marks and Dr. Carsten’s marked limitation 11 opinions when it found that Dr. Marks’ check-box opinion contained few objective 12 findings in support of the degree of limitations opined. An ALJ may permissibly 13 reject check-box reports that do not contain any explanation of the bases for their 14 conclusions.52 Here, Dr. Marks’ report is presented in check-box format without 15 further explanation and, as explained above, Dr. Marks’ mental status evaluation 16 was inconsistent with her opined marked limitations. Accordingly, this was a 17 18 19 20
21 51 AR 29. 22 52 Garrison, 759 F.3d at 1014 n.17. 23 1 specific and legitimate reason to reject Dr. Marks and Dr. Carsten’s opined 2 limitations. 53 3 Plaintiff fails to establish the ALJ consequentially erred by discounting Dr. 4 Marks and Dr. Carsten’s marked limitations opinion. 5 2. Dr. Gomes 6 On August 30, 2015, Dr. Gomes conducted a psychological evaluation of 7 Plaintiff. Dr. Gomes diagnosed Plaintiff with generalized anxiety disorder; major 8 depressive disorder, severe; other specified trauma and stress related disorder; 9 alcohol use disorder, moderate (binge drinking); personal past history of sexual 10 abuse in child hood; personal history of self-harm; obesity; hypertension (self- 11 report); and diabetes mellitus, type II. Dr. Gomes opined that Plaintiff will have 12 difficulty learning new material; will not engage in conflict with authority, but will 13 react with increased depression and anxiety to corrections; will not easily engage 14 with those whom she is unfamiliar; will need additional, timely instruction; will 15 have difficulty initially attending an unfamiliar workplace with unfamiliar people 16 based on depression and anxiety; will not respond well to stress; and due to 17 struggles with anxiety and depression would not respond to treatment quickly, 18 19
20 53 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Bray, 554 F.3d at 1228 21 (recognizing that a medical opinion may be rejected if it is conclusory or inadequately 22 supported). 23 1 such that she would have difficulties being able to complete a normal 2 workday/workweek without interruptions from her psychiatric condition.54 3 Dr. Gomes’ opinion was contradicted by the testifying psychologist expert 4 opinion of Dr. Lace, who opined that Plaintiff be limited to occasional contact with 5 the general public, coworkers, and supervisors (normal supervision); slow paced 6 tasks due to anxiety; routine work setting with little or no changes because of 7 anxiety; and could work in the vicinity of coworkers but not teamwork type 8 settings.55 Dr. Lace’s opinion is supported by other independent evidence in the 9 record, including socializing with peers and work history, and therefore it serves as 10 substantial evidence.56 Accordingly, the ALJ, who is tasked with weighing 11 conflicting medical opinions, was required to provide specific and legitimate 12 reasons supported by substantial evidence for discounting Dr. Gomes’ opinion. 13 14
15 54 AR 568-69. 16 55 AR 55-58. 17 56 See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); see also AR 441, 445 18 (plaintiff social with select peers throughout shift and watched movie in common 19 area with peers); AR 443 (reported feeling worse, has not been able to self-medicate 20 with alcohol/benzos); AR 565 (ability to maintain work schedule in the past); AR 610 21 (worked at Jack in the Box with family and friends and became a shift leader until 22 began having panic attacks). 23 1 The ALJ discounted Dr. Gomes’ opinion because it was 1) inconsistent with 2 the testimony and opinion of Dr. Lace who reviewed the entire longitudinal record; 3 2) based in part on diagnosis of trauma and stress-related disorders while Dr. Lace 4 testified the disorders were not firmly established as severe; 3) inconsistent with 5 the May 2016 DSHS psychological evaluation; 4) inconsistent with Dr. Gomes’ own 6 mental status examination; 5) inconsistent with activities in the longitudinal 7 record; and 6) based on Plaintiff’s subjective complaints without objective support. 8 First, an ALJ may give more weight to an opinion that is based on more 9 record reviewed and supporting evidence.57 Here Dr. Lace reviewed the entire 10 administrative record, including Dr. Gomes’ report, while Dr. Gomes reviewed the 11 May 6, 2013 medical notes, November 10, 2014 hospitalization discharge summary, 12 and November 1, 2014 emergency department medical notes. That Dr. Lace was 13 more familiar with Plaintiff’s longitudinal case record was a legitimate and specific 14 reason to give more weight to Dr. Lace’s opinion than to Dr. Gomes’ opinion. 15 16
17 57 See 20 C.F.R. § 404.1527(c)(6) (specifying that the extent to which a medical source 18 is “familiar with the other information in [the claimant’s] case record” is relevant in 19 assessing the weight to give that opinion); Lingenfelter, 504 F.3d at 1042 (recognizing 20 that the ALJ is to consider the consistency of the medical opinion with the record as 21 a whole and assess the amount of relevant evidence that supports the opinion); 22 Andrews, 53 F.3d at 1041 (same). 23 1 Second, the ALJ discounting Dr. Gomes’ opinion because it was based in part 2 on diagnosed trauma and stress-related disorders that expert Dr. Lace testified 3 were not established as severe is a rational finding supported by substantial 4 evidence.58 As explained above, Dr. Lace, after reviewing the entire administrative 5 record, opinioned that PTSD would not be established, and if it was established it 6 would be non-severe, while Dr. Gomes based his prognosis in part on symptoms of 7 PTSD based on multiple childhood experiences.59 Discounting Dr. Gomes’ opinion 8 because it was based on contradicting evidence as opinioned by Dr. Lace, was a 9 legitimate reason to discount Dr. Gomes’ opinion. 10 Third, the ALJ finding that Dr. Gomes’ opinion was inconsistent with Dr. 11 Marks’ May 2016 DSHS psychological evaluation is a rational finding supported by 12 substantial evidence. An ALJ is not obliged to credit medical opinions that are 13 contradicted by the opinions of other examining medical sources.60 Here, the ALJ 14 gave great weight to Dr. Marks’ moderate limitations involving understanding 15 remembering and persisting in tasks, learning new tasks, and completing a normal 16 workday and work week, while Dr. Gomes opined Plaintiff would have difficulties 17 learning new materials, and completing a normal workday/workweek without 18 19
20 58 Id. 21 59 AR 54 & 568. 22 60 Tommasetti, 533 F.3d at 1041 23 1 interruptions from psychiatric condition.61 The ALJ rationally found that Dr. 2 Gomes’ opined limitations were inconsistent with Dr. Marks’ opined moderate 3 limitations and that Dr. Marks’ opined moderate limitations were more consistent 4 with the longitudinal record. 5 Fourth, the ALJ found that Dr. Gomes’ opinion regarding Plaintiff’s 6 limitations was inconsistent with his mental status examination. Internally 7 inconsistent opinions is a specific and legitimate reason to discount a doctor’s 8 opinion.62 As explained above, Dr. Gomes’ mental status examination revealed 9 Plaintiff appeared well organized with progressive speech, a cooperative attitude 10 and behavior; with normal thought process and content, orientation, perception, 11 memory, and concentration; and responded with humor and held good eye contact 12 throughout examination.63 The ALJ rationally found that Dr. Gomes’ noted normal 13 observations were inconsistent with his disabling limitations. 14 Fifth, the ALJ found Dr. Gomes’ opinion inconsistent with Plaintiff’s 15 activities in the longitudinal record. An ALJ may discount a medical source opinion 16 to the extent it conflicts with the claimant’s daily activities.64 Here, the ALJ 17 highlighted that Plaintiff cared for two foster children until she reported ceasing 18
19 61 AR 569 & 613-14. 20 62 See Tommasetti, 533 F.3d at 1041. 21 63 AR 566-69. 22 64 Morgan, 169 F.3d at 601-02. 23 1 foster care due to panic attacks, her aunt’s children, and her twelve-year-old sister; 2 washes dishes, does laundry, and cleans her room on a weekly basis; and 3 vacationed in California.65 On this record, the nature and quality of the activities 4 cited by the ALJ as inconsistent with Dr. Gomes’ opinion do not constitute a 5 legitimate reason to discount Dr. Gomes’ opinion because the ALJ failed to 6 meaningfully articulate how the nature and quality of the activities are 7 inconsistent with sustaining full-time work. Yet, any error by the ALJ in relying on 8 Plaintiff’s daily activities as a basis to discount Dr. Gomes’ opinion is harmless 9 because the ALJ provided other specific and legitimate reasons, supported by 10 substantial evidence, to discount Dr. Gomes’ opinion.66 11 Sixth, the ALJ discounting Dr. Gomes’ opinion because the opinion was 12 based on Plaintiff’s subjective complaints and not supported by objective medical 13 evidence is a rational finding supported by substantial evidence. “A physician's 14 opinion . . . premised to a large extent upon the claimant's own accounts of his 15 symptoms and limitations may be disregarded where those complaints have been 16 properly discounted.”67 Because, as explained below, the ALJ properly discounted 17 Plaintiff’s reported symptoms because they were inconsistent with the objective 18 medical evidence and longitudinal medical record, the ALJ also properly rejected 19
20 65 See e.g., AR 25, 281 & 572. 21 66 See Molina, 674 F.3d at 1115. 22 67 Morgan, 169 F.3d at 602 (internal quotation marks omitted). 23 1 the findings of Dr. Gomes to the extent they were based on Plaintiff’s subjective 2 complaints.68 3 Plaintiff fails to establish that the ALJ consequentially erred by discounting 4 Dr. Gomes’ opinion. 5 3. Mr. Pitts 6 On September 20, 2016, nurse practitioner, Daniel Pitts, completed a mental 7 residual functional capacity assessment. Mr. Pitts opined that Plaintiff had 8 moderate limitations in understanding and remembering very short and simple 9 instructions; carrying out very short simple instructions; sustaining an ordinary 10 routine without special supervision; working in coordination with or proximity to 11 others without being distracted by them; making simple work-related decisions; 12 interacting appropriately with the general public; asking simple questions or 13 requesting assistance; getting along with co-workers or peers without distracting 14 them; maintaining socially appropriate behavior; adhering to basic standards of 15 neatness and cleanliness; being aware of normal hazards and taking appropriate 16 precautions; and setting realistic goals or making plans independently of others. 17
18 68 See Bray, 554 F.3d at 1228 (ALJ properly may discount physician's opinion that is 19 based solely upon claimant's self-reporting if ALJ concludes claimant's self-reporting 20 is not credible); Tonapetyan, 242 F.3d at 1149 (medical opinion premised on 21 subjective complaints may be disregarded where record supports ALJ in discounting 22 claimant's reported symptoms). 23 1 Mr. Pitts also opined Plaintiff had marked limitations in remembering locations 2 and work-like procedures; understanding and remembering detailed instructions; 3 carrying out detailed instructions; maintaining attention and concentration for 4 extended periods’ performing activities within a schedule, maintaining regular 5 attendance and being functional within customary tolerances; accepting 6 instructions and responding appropriately to criticism from supervisors; and 7 responding appropriately to changes in the work setting. Mr. Pitts also opined that 8 Plaintiff had severe limitations in terms of her ability to complete a normal work- 9 day and workweek without interruptions from psychologically based symptoms, to 10 perform at a consistent pace without an unreasonable number and length of rest 11 periods, and travel in unfamiliar places or use public transportation. Mr. Pitts 12 further opined that Plaintiff had marked limitations in terms of maintaining social 13 functioning and concentration, persistence, or pace and that Plaintiff met the 14 criteria of the mental listings. Lastly, Mr. Pitts opinioned that based on the 15 cumulative limitations, Plaintiff is likely to be off task for over thirty percent of the 16 time during a forty-hour work week and miss four or more days per month when 17 attempting to work a forty-hour work schedule.69 18 The ALJ discounted Mr. Pitts’ opinion because 1) issues of disability are 19 reserved to the Commissioner; 2) it was inconsistent with Mr. Pitts’ objective 20 21
22 69 AR 812-15. 23 1 findings, which support Dr. Lace’s testimony; and 3) inconsistent with the 2016 2 DSHS evaluation and October 2015 psychological evaluation. 3 First, the ALJ discounted Mr. Pitts’ opinion because the issue of disability is 4 reserved to the Commissioner. Opinions on the ultimate issue of disability are an 5 issue reserved to the Commissioner.70 That Mr. Pitts opined Plaintiff had 6 “disabling anxiety” is a germane reason to discount Mr. Pitt’s opinions, so long as 7 the ALJ considered the substance of Mr. Pitt’s evaluation, which the ALJ did as is 8 discussed below.71 9 Second, the ALJ noted Mr. Pitts’ opinion was internally inconsistent. An 10 ALJ may reject opinions that are internally inconsistent. Although Mr. Pitts noted 11 that Plaintiff consistently arrived on time to appointments, not having any notable 12 psychomotor agitation, and presenting as calm, cooperative, and pleasant, with 13 some mood abnormalities and fair insight and judgment and the ability to 14 maintain eye contact, he then imposed marked limitations in social functioning and 15 concentration, persistence, or pace, and severe limitations in completing a 16 17 18
19 70 20 C.F.R. § 404.1527(c); see also Wickramasekera v. Astrue, No. CV 09-449-TUC- 20 HCE, 2010 WL 3883241, at *34 (D. Ariz. Sept. 29, 2010) (applying regulation to lay 21 witness testimony). 22 71 AR 815. 23 1 workday/workweek without interruptions.72 These internal inconsistencies are a 2 germane reason to discount Mr. Pitts’ opinion. 3 Lastly, the ALJ discounted Mr. Pitts’ opinion because it was inconsistent 4 with the evaluation in October 2015 and the May 2016 DSHS evaluation. 5 Inconsistency with the medical evidence is a germane reason for rejecting lay 6 witness testimony.73 As discussed above, Mr. Pitts opined Plaintiff was markedly 7 limited in understanding, remembering and carrying out detailed instructions, 8 while the May 2016 DSHS evaluation opined only a moderate limitation in 9 Plaintiff’s ability to understand, remember, and persist in learning new tasks.74 10 Inconsistency with the medical evidence was a germane reason to discount Mr. 11 Pitts’ opinion. 12 Plaintiff fails to establish that the ALJ erred by discounting Mr. Pitts’ 13 opinion. 14 B. Step Three (Listings): Plaintiff fails to establish error. 15 Plaintiff contends the ALJ erred by finding that Plaintiff’s impairments did 16 not meet Listings 12.04, 12.06, and 12.15 singly, or in combination. The listings 17
18 72 AR 575, 589, 598, & 812-13. 19 73 See Bayliss, 427 F.3d at 1218; Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001) 20 (germane reasons include inconsistency with medical evidence, activities, and 21 reports). 22 74 AR 609-14. 23 1 findings by the ALJ must be read in conjunction with the entire ALJ decision.75 2 Here, the ALJ discussed the medical records and medical opinions related to 3 Plaintiff’s mental impairments at great length. The ALJ’s analysis in its entirety 4 as to Plaintiff’s mental-health impairments permits the Court to meaningfully 5 review the ALJ’s finding that Plaintiff’s mental impairments did not satisfy the 6 listings paragraph C criteria. Plaintiff’s argument is based entirely on her initial 7 argument that the ALJ erred in considering the medical-opinion evidence. For the 8 above-explained reasons, the ALJ’s consideration of the medical-opinion evidence 9 was legally sufficient and supported by substantial evidence. 10 The ALJ’s finding that Plaintiff did not meet or medically equal any listing 11 is rational and supported by substantial evidence 12 C. Plaintiff’s Symptom Reports: Plaintiff fails to establish 13 consequential error. 14 Plaintiff argues the ALJ failed to provide valid reasons for rejecting her 15 symptom reports. When examining a claimant’s symptom reports, the ALJ must 16 make a two-step inquiry. “First, the ALJ must determine whether there is objective 17 medical evidence of an underlying impairment which could reasonably be expected 18 to produce the pain or other symptoms alleged.”76 Second, “[i]f the claimant meets 19 the first test and there is no evidence of malingering, the ALJ can only reject the 20
21 75 SSR 17-2p. 22 76 Molina, 674 F.3d at 1112. 23 1 claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific, 2 clear and convincing reasons’ for the rejection.”77 Here, the ALJ found Plaintiff’s 3 statements concerning the intensity, persistence, and limiting effects of her 4 symptoms inconsistent with the medical signs and laboratory findings of record.78 5 Plaintiff only challenges the legal standard used, that the objective medical 6 evidence was inconsistent with Plaintiff’s symptom complaints, and that Plaintiff’s 7 daily activities contradict her disabling symptoms.79 Plaintiff failed to challenge the 8 other reasons the ALJ cited in support of its finding that Plaintiff’s symptom 9 complaints were not entirely credible, thus, any challenges are waived and the Court 10 may decline to review them.80 However, upon review, the Court finds that the ALJ 11 provided specific, clear, and convincing reasons, supported by substantial evidence, 12 to support its finding. 13 As to the legal standard used by the ALJ, Plaintiff argues the ALJ used the 14 wrong legal standard when it “misapprehended Plaintiff’s allegations . . . that she 15 cannot maintain employment on a regular, continuing basis, rather than that she 16 17
18 77 Ghanim v. Colvin, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036). 19 78 AR 22. 20 79 ECF No. 11 at 17-20 (citing SSR 96-8p (assessing RFC in initial claims)). 21 80 See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 22 2008). 23 1 is incapable of all work activity.”81 However, the ALJ only need to give “specific, 2 clear and convincing reasons” for the rejection,” as it did.82 3 The ALJ discounted Plaintiff’s symptom reports because they were 4 inconsistent with the objective medical evidence. Symptom reports cannot be solely 5 discounted on the grounds that they were not fully corroborated by the objective 6 medical evidence.83 However, medical evidence is a relevant factor in considering 7 the severity of the reported symptoms. 84 As discussed above, Plaintiff presented, 8 during the course of treatment, as calm, cooperative, pleasant, well oriented, with 9 fair insight and judgment, good eye contact, speech rate and rhythm, and thought 10 process and content, orientation, perception, memory, and concentration within 11 normal limits, all in contrast to Plaintiff’s reported disabling symptoms. This was a 12 relevant factor for the ALJ to consider. 13 The ALJ also discounted Plaintiff’s symptom reports because they were 14 inconsistent with improvement once Plaintiff began treatment. The effectiveness of 15 treatment is a relevant factor in determining the severity of a claimant’s 16 17 18
19 81 ECF No. 11 at 18. 20 82 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036). 21 83 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 22 84 Id. 23 1 symptoms.85 Here, the ALJ noted Plaintiff had normal mood and affect at times 2 when her anxiety and depression were stable, abstained from alcohol, and 3 continued to take her medications as prescribed.86 This finding is supported by 4 substantial evidence and was a clear and convincing reason to discount Plaintiff’s 5 symptom complaints. 6 The ALJ also discounted Plaintiff’s symptom reports because they were 7 inconsistent with her activities of daily living.87 If a claimant can spend a 8 substantial part of the day engaged in pursuits involving the performance of 9 exertional or non-exertional functions, the ALJ may find these activities 10 inconsistent with the reported disabling symptoms.88 As previously described, the 11 ALJ highlighted that Plaintiff cared for two foster children, her aunt’s children, 12 and her twelve-year-old sister; washes dishes, does laundry, and cleans her room 13
14 85 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2011); Warre v. Comm’r of Soc. Sec. 15 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (determining that conditions effectively 16 controlled with medication are not disabling for purposes of determining eligibility 17 for benefits); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (recognizing 18 that a favorable response to treatment can undermine a claimant’s complaints of 19 debilitating pain or other severe limitations). 20 86 See e.g., AR 669-72, 686-87 & 836-37. 21 87 AR 24. 22 88 Molina, 674 F.3d at 1113. 23 1 on a weekly basis; and vacationed in California.89 In order for Plaintiff’s cited 2 activities to be deemed activities of daily living constituting a clear and convincing 3 reason to discount Plaintiff’s symptoms, the ALJ needed to have more 4 meaningfully articulated this finding. These cited activities, which can be achieved 5 with relatively limited interaction with strangers and not on an everyday basis, do 6 not “contradict claims of a totally debilitating impairment.”90 However, the ALJ 7 articulated other supported grounds for discounting Plaintiff’s reported 8 symptoms—that they were inconsistent with the objective medical evidence and 9 inconsistent with improvement observed with continued treatment—thus, the 10 ALJ’s decision to discount Plaintiff’s reported symptoms is upheld on this record. 11 Plaintiff can identify some evidence in the record that shows abnormal 12 mental health observations.91 However, in reviewing a denial of benefits, a district 13 court may not substitute its judgment for that of the Commissioner.92 If the 14 evidence in the record “is susceptible to more than one rational interpretation, [the 15 court] must uphold the ALJ’s findings if they are supported by inferences 16 reasonably draw from the record.”93 Even if Plaintiff can identify evidence that can 17
18 89 AR 25, 281, 572, 831, 834. 19 90 Molina, 674 F.3d at 1112-13. 20 91 ECF No. 14 at 9 (observations of tearfulness, anxiety, and suicidal ideations). 21 92 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 22 93 Molina, 674 F.3d at 1111. 23 1 be interpreted more favorably to Plaintiff’s position, the evidence is susceptible to 2 more than one rational interpretation, and therefore the ALJ’s ultimate conclusion 3 must be upheld.94 4 In summary, Plaintiff fails to establish the ALJ erred by discounting 5 Plaintiff’s symptom reports. 6 D. Step Five: Plaintiff fails to establish error. 7 Plaintiff argues that the ALJ’s hypothetical failed to account for the 8 limitations set forth by her providers. However, this argument merely restates 9 Plaintiff’s earlier allegations of error, which are not supported by the record. 10 Accordingly, the ALJ’s hypothetical properly accounted for the limitations 11 supported by the record.95 12 V. Conclusion 13 Accordingly, IT IS HEREBY ORDERED: 14 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 15 2. The Commissioner’s Motion for Summary Judgment, ECF No. 13, is 16 GRANTED. 17 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 18 4. The case shall be CLOSED. 19
20 94 See Burch, 400 F.3d at 679. 21 95 See Magallanes, 881 F.2d at 756–57 (holding it is proper for the ALJ to limit a 22 hypothetical to those restrictions supported by substantial evidence in the record). 23 1 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order, 2 provide copies to all counsel, and close the file. 3 DATED this 13th day of May 2020. 4
s/Edward F. Shea _____________ 5 EDWARD F. SHEA Senior United States District Judge 6 7 8 9 10 Q:\EFS\Civil\2019\19cv5053.Stephane Rule. MSJ.lc02.docx 11 12 13 14 15 16 17 18 19 20 21 22 23