Sahagun v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 3, 2021
• Docket: 3:20-cv-06024
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 BERTHA S., 9 Plaintiff, Case No. C20-6024-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her application for a Period of Disability, Disability 15 Insurance Benefits, and Supplemental Security Income. Plaintiff contends the administrative law 16 judge (“ALJ”) erred by improperly evaluating medical evidence, by discounting her testimony, 17 by declining to weigh lay witness testimony, and by crafting a deficient residual functional 18 capacity (“RFC”). (Dkt. # 24.) As discussed below, the Court AFFIRMS the Commissioner’s 19 final decision and DISMISSES the case with prejudice. 20 II. BACKGROUND 21 Plaintiff was born in 1977, has at least a high school education, and previously worked as 22 a medical receptionist and shipping order clerk. AR at 42-43. Plaintiff applied for benefits in 23 October 2017, alleging disability as of September 15, 2016. Id. at 33. Plaintiff’s application was 1 denied initially and on reconsideration. The ALJ held a hearing in October 2019, taking 2 testimony from Plaintiff and a vocational expert. See id. at 69-110. In October 2019, the ALJ 3 issued a decision finding Plaintiff not disabled. Id. at 30-49. In relevant part, the ALJ found 4 Plaintiff’s severe impairments of fibromyalgia, digestive distress, anxiety, and adjustment

5 disorder limited her to light work subject to a series of further limitations. Id. at 35-38. Based on 6 vocational expert testimony, the ALJ found Plaintiff could perform past relevant work. Id. at 42. 7 The Appeals Council denied review, making the ALJ’s decision the Commissioner’s final 8 decision. Id. at 1-6. Plaintiff appealed this final decision of the Commissioner to this Court. (Dkt. 9 #3.) 10 III. LEGAL STANDARDS 11 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 12 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 13 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 14 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the

15 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 16 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 17 alters the outcome of the case.” Id. 18 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 19 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 20 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 21 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 22 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 23 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 1 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 2 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 3 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 4 IV. DISCUSSION

5 A. The ALJ Did Not Err in Evaluating the Medical Evidence 6 Plaintiff filed her disability claim in October 2017. The regulations effective March 27, 7 2017, 20 C.F.R. §§ 404.1520c(c), 416.920c(c), require the ALJ to articulate how persuasive the 8 ALJ finds medical opinions and to explain how the ALJ considered the supportability and 9 consistency factors. 20 C.F.R. §§ 404.1520c(a), (b), 416.920c(a), (b). The regulations require an 10 ALJ to specifically account for the legitimate factors of supportability and consistency in 11 addressing the persuasiveness of a medical opinion. Thus, the ALJ is required to provide specific 12 and legitimate reasons to reject a doctor’s opinions. See, e.g., Kathleen G. v. Comm’r of Soc. 13 Sec., 2020 WL 6581012, at *3 (W.D. Wash. Nov. 10, 2020) (finding that the new regulations do 14 not clearly supersede the “specific and legitimate” standard because the “specific and legitimate”

15 standard refers not to how an ALJ should weigh or evaluate opinions, but rather the standard by 16 which the Court evaluates whether the ALJ has reasonably articulated his or her consideration of 17 the evidence). 18 Further, the Court must continue to consider whether the ALJ’s analysis is supported by 19 substantial evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 20 Fed. Reg. 5852 (January 18, 2017) (“Courts reviewing claims under our current rules have 21 focused more on whether we sufficiently articulated the weight we gave treating source opinions, 22 rather than on whether substantial evidence supports our final decision … [T]hese courts, in 23 reviewing final agency decisions, are reweighing evidence instead of applying the substantial 1 evidence standard of review, which is intended to be highly deferential standard to us.”). With 2 these regulations and considerations in mind, the Court proceeds to its analysis of the medical 3 evidence in this case. 4 1. Examining Psychologist David Barrett, Ph.D.

5 Dr. Barrett examined Plaintiff on February 22, 2018, and opined Plaintiff “has serious 6 physical problems which have precipitated anxiety and depression symptoms. Her concentration 7 and memory are affected, perhaps by her anxiety and/or by her pain and medication, and this 8 would make it difficult for her to learn and carry out at least complex job tasks. Her anxiety and 9 pain also make it difficult for her to go out and be around others and this would probably make 10 getting to and staying on a job questionable.” AR at 494. The ALJ found Dr. Barrett’s opinion 11 “unpersuasive.” Id. at 42. 12 The ALJ first discounted Dr. Barrett’s opinion as inconsistent with the mental status 13 examination findings, noting Plaintiff “was able to spell a word, do serial counting exercises, and 14 perform a three-step command.” AR at 41. The ALJ’s finding is not substantially supported by

15 the record. Plaintiff’s ability to “spell a word, do serial counting exercises, and perform a three- 16 step command” is not reasonably inconsistent with Dr. Barrett’s assessment that Plaintiff would 17 have difficulty “learn[ing] and carry[ing] out at least complex job tasks” and “go[ing] out and 18 be[ing] around others.” Id. at 494. However, the error is harmless because the ALJ accounted for 19 these limitations in the RFC. See Molina, 674 F.3d at 1115. 20 The ALJ next discounted Dr. Barrett’s opinion as inconsistent with Plaintiff’s “own 21 abilities,” referring to Plaintiff’s statements “that she leaves the house every day, she drives 22 places, she shops in stores, and she likes to go to the [m]all to walk[.]” AR at 42. The ALJ noted 23 “while Dr. Barrett said that the claimant’s ability to get to and stay on the job are questionable, I

conclude his statements were based on inaccurate representations made by the claimant.” Id. 1 Substantial evidence supports this ground. Notably, Plaintiff reported walking around the mall 2 “2-3 times per week” for “about 2-3 hours.” AR at 599. This material inconsistency between the 3 doctor’s opinion and Plaintiff’s level of activity is a valid reason for rejecting the doctor’s 4 opinion. See, e.g., Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (upholding ALJ’s

5 decision to discredit treating physician where his opinions were “inconsistent with the level of 6 activity that [plaintiff] engaged in”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601– 7 02 (9th Cir. 1999) (upholding ALJ’s rejection of treating physician’s opinion where it was 8 contradicted by plaintiff’s daily activities). The ALJ thus did not err by discounting the doctor’s 9 opinion as inconsistent with Plaintiff’s own level of activity. 10 Finally, the ALJ discounted Dr. Barrett’s opinion as inconsistent with the “statements of 11 other medical sources.” AR at 42. Substantial evidence supports this ground. The ALJ cited 12 numerous treatment records that are at odds with Dr. Barrett’s assessment. See id. at 39 (citing 13 id. at 416, 420, 498, 503, 528, 610, 653, 656, 660, 664, 672, 675, 678, 681, 684, 687, 680, 683). 14 The ALJ accordingly did not err by discounting the doctor’s opinion on this ground. See

15 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (not improper to reject an opinion 16 presenting inconsistencies between the opinion and the medical record). 17 B. The ALJ Did Not Err by Discounting Plaintiff’s Testimony 18 The ALJ found Plaintiff presented objective medical evidence establishing underlying 19 impairments that could cause the symptoms alleged and made no finding she was malingering. 20 AR at 38-39. The ALJ was thus required to provide “specific, clear, and convincing” reasons 21 supported by substantial evidence to discount Plaintiff’s testimony. Trevizo v. Berryhill, 871 F.3d 22 664, 678 (9th Cir. 2017). 23 1 Among other grounds, the ALJ discounted Plaintiff’s testimony as inconsistent with her 2 activities, finding Plaintiff “stated she can drive, attend [c]hurch, and she can do light 3 housework, laundry, and light cleaning” and “is able to shop in stores, walk places, go outside 4 almost every day, handle money, and get along with others without difficulty.” AR at 40. As

5 discussed above in the context of Dr. Barrett’s opinion, Plaintiff’s activities are inconsistent with 6 her allegations. The ALJ accordingly did not err by discounting Plaintiff’s testimony on this 7 ground. See, e.g., Molina, 674 F.3d at 1113 (“The ALJ could reasonably conclude that Molina’s 8 activities, including walking her two grandchildren to and from school, attending church, 9 shopping, and taking walks, undermined her claims that she was incapable of being around 10 people without suffering from debilitating panic attacks.”). 11 Because the ALJ gave at least one valid reason for discounting Plaintiff’s testimony, the 12 Court need not address the balance of the ALJ’s stated reasons for discounting Plaintiff’s 13 testimony. Any inclusion of erroneous reasons was inconsequential and therefore harmless. See 14 id. at 1115 (where ALJ provided at least one valid reason to discount testimony, error in

15 remaining reasons is harmless). 16 C. The ALJ Did Not Err by Declining to Weigh Lay Witness Testimony 17 An ALJ may discount lay witness testimony by giving a germane reason. Diedrich v. 18 Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). Plaintiff argues the ALJ erred by failing to discuss 19 testimony submitted by her husband. The Commissioner avers the error is harmless in light of 20 the similarities between the Plaintiff’s testimony and her husband’s testimony. (Dkt. # 25 at 12 21 (citing Molina, 674 F.3d at 1122).) The Court agrees with the Commissioner. See Guith v. 22 Kijakazi, 2021 WL 3721436, at *1 (9th Cir. Aug. 23, 2021) (“The ALJ’s failure to address the 23 lay witness statement of Guith’s father was harmless error because the ALJ gave clear and 1 convincing reasons for rejecting Guith’s testimony, and Guith’s father’s statement was similar to 2 Guith’s testimony.”) (citing Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th 3 Cir. 2009)). The ALJ accordingly did not harmfully err by declining to weigh the lay witness 4 testimony.

5 D. The ALJ Did Not Err by Formulating Plaintiff’s RFC 6 Plaintiff argues the Court should find the ALJ’s RFC determination is erroneous. The 7 argument is foreclosed because, as discussed above, the ALJ validly assessed the medical 8 evidence and validly discounted Plaintiff’s testimony. 9 V. CONCLUSION 10 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED, and this 11 case is DISMISSED with prejudice. 12 Dated this 3rd day of September, 2021. 13 A 14 MICHELLE L. PETERSON United States Magistrate Judge 15 16

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