Stanley v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 25, 2021
• Docket: 3:20-cv-05532
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 ROCHELLE S.,

8 Plaintiff, CASE NO. C20-5532-MAT

9 v. ORDER RE: SOCIAL SECURITY 10 ANDREW M. SAUL, DISABILITY APPEAL Commissioner of Social Security, 11 Defendant. 12

13 Plaintiff proceeds through counsel in her appeal of a final decision of the Commissioner of 14 the Social Security Administration (Commissioner). The Commissioner denied plaintiff’s 15 applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after 16 a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the 17 administrative record (AR), and all memoranda of record, this matter is AFFIRMED. 18 FACTS AND PROCEDURAL HISTORY 19 Plaintiff was born on XXXX, 1982.1 She has a limited education and previously worked 20 as a cleaner/housekeeper. (AR 44.) 21 Plaintiff filed applications for DIB and SSI in 2017, alleging disability beginning February 22 1, 2015. (AR 281, 288.) The applications were denied at the initial level and on reconsideration. 23

1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 On November 26, 2018, ALJ Rebecca L. Jones held a hearing, taking testimony from 2 plaintiff and vocational expert Carrie L. Guthrie-Whitlow. (AR 70-132.) On February 25, 2019, 3 the ALJ issued a decision finding plaintiff not disabled from the alleged onset date through the

4 date of the decision. (AR 33-46.) 5 Plaintiff timely appealed, and provided additional medical and vocational evidence. The 6 Appeals Council denied plaintiff’s request for review on April 9, 2020 (AR 1-3), making the ALJ’s 7 decision the final decision of the Commissioner. Plaintiff appealed this final decision of the 8 Commissioner to this Court. 9 JURISDICTION 10 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 11 DISCUSSION 12 The Commissioner follows a five-step sequential evaluation process for determining 13 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

14 be determined whether the claimant is gainfully employed. The ALJ found plaintiff had engaged 15 in substantial gainful activity from February 2017 to April 2017, but there had been continuous 16 12-month periods since the alleged onset date during which plaintiff did not engage in substantial 17 gainful activity. At step two, it must be determined whether a claimant suffers from a severe 18 impairment. The ALJ found plaintiff’s fibromyalgia, degenerative changes of the cervical spine, 19 post-traumatic stress disorder (PTSD), generalized anxiety disorder, cannabis use disorder, 20 occipital neuralgia, and greater trochanteric bursitis were severe. Step three asks whether a 21 claimant’s impairments meet or equal a listed impairment. The ALJ found that plaintiff’s 22 impairments did not meet or equal the criteria of a listed impairment. 23 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 1 residual functional capacity (RFC) and determine at step four whether the claimant has 2 demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform 3 light work, never climbing ladders, ropes, or scaffolds and occasionally climbing ramps and stairs.

4 She could occasionally stoop, kneel, crouch, and crawl, and must avoid vibration or hazards. She 5 could perform simple routine tasks, without public contact and with only superficial contact with 6 co-workers. With that assessment, the ALJ found plaintiff able to perform her past relevant work 7 as a cleaner/housekeeper. 8 If a claimant demonstrates an inability to perform past relevant work, or has no past 9 relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant 10 retains the capacity to make an adjustment to work that exists in significant levels in the national 11 economy. As an alternative to her step four finding, with the assistance of the vocational expert 12 the ALJ found plaintiff capable of performing other jobs, such as work as a production assembler, 13 hand packager inspector, and garment folder.

14 This Court’s review of the ALJ’s decision is limited to whether the decision is in 15 accordance with the law and the findings supported by substantial evidence in the record as a 16 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 17 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported 18 by substantial evidence in the administrative record or is based on legal error.”) Substantial 19 evidence means more than a scintilla, but less than a preponderance; it means such relevant 20 evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. 21 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of 22 which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 23 F.3d 947, 954 (9th Cir. 2002). 1 Plaintiff argues the ALJ erred in finding her activities inconsistent with disability, failing 2 to account for all limitations in a medical opinion the ALJ found persuasive, rejecting two other 3 medical opinions and a lay witness statement, and performing the steps four and five analyses.

4 She contends the Appeals Council erred by rejecting a medical opinion and a vocational expert’s 5 declaration submitted after the ALJ’s decision. She requests remand for further administrative 6 proceedings. The Commissioner argues the ALJ’s decision has the support of substantial evidence 7 and should be affirmed. 8 Symptom Testimony 9 Absent evidence of malingering, an ALJ must provide specific, clear, and convincing 10 reasons to reject a claimant’s subjective symptom testimony. Burrell v. Colvin, 775 F.3d 1133, 11 1136-37 (9th Cir. 2014). “General findings are insufficient; rather, the ALJ must identify what 12 testimony is not credible and what evidence undermines the claimant’s complaints.” Lester v. 13 Chater, 81 F.3d 821, 834 (9th Cir. 1996). In considering the intensity, persistence, and limiting

14 effects of a claimant’s symptoms, the ALJ “examine[s] the entire case record, including the 15 objective medical evidence; an individual’s statements about the intensity, persistence, and 16 limiting effects of symptoms; statements and other information provided by medical sources and 17 other persons; and any other relevant evidence in the individual’s case record.” Social Security 18 Ruling (SSR) 16-3p.2 19 Plaintiff testified to fibromyalgia pain, hip pain, headaches, falling two or three times a 20 week, and anxiety and PTSD symptoms such as isolation and aggression. (AR 39.) The ALJ 21 22 2 Effective March 28, 2016, the Social Security Administration (SSA) eliminated the term “credibility” from its policy and clarified the evaluation of a claimant’s subjective symptoms is not an 23 examination of character. SSR 16-3p. The Court continues to cite to relevant case law utilizing the term credibility. 1 discounted plaintiff’s testimony because she failed to follow recommended fibromyalgia treatment 2 or seek mental health treatment, her headaches improved with treatment, mental health findings 3 were typically normal, and her activities were inconsistent with a finding of disability. (AR 40-

4 42.) Plaintiff challenges only the last reason. Even if erroneous, its inclusion was harmless 5 because the ALJ’s remaining reasons are clear and convincing. See Carmickle v. Commissioner, 6 Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (where the ALJ provides specific reasons 7 supporting an assessment and substantial evidence supports the conclusion, an error in the 8 assessment may be deemed harmless). For example, plaintiff failed to follow her rheumatologist’s 9 recommendations to exercise and participate in physical therapy. (AR 1512, 1610, 99.) An ALJ 10 appropriately considers an unexplained or inadequately explained failure to seek treatment or 11 follow a prescribed course of treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 12 2008). And the medical evidence showed concentration, memory, and behavior were typically 13 normal. (See, e.g., AR 771, 839, 854.) “Contradiction with the medical record is a sufficient basis

14 for rejecting the claimant’s subjective testimony.” Carmickle, 533 F.3d. at 1161. 15 The Court concludes the ALJ did not harmfully err in discounting plaintiff’s testimony. 16 Lay Witness 17 Patty Olive, a Social Security facilitator, observed plaintiff was easily distracted, had 18 memory issues, avoided eye contact, and showed flat affect. (AR 305-06.) The ALJ “considered” 19 Ms. Olive’s observations but declined to articulate how. (AR 44.) Under the regulations the ALJ 20 cited, she was “not required to articulate how [she] considered evidence from nonmedical sources 21 using the requirements” for medical sources, such as supportability, consistency, and treating 22 relationship. 20 C.F.R. §§ 404.1520c(d), 416.920c(d). However, as the Commissioner concedes, 23 the regulation does not permit the ALJ to reject lay witness testimony without providing reasons. 1 See also Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (“If the ALJ wishes to discount the 2 testimony of the lay witnesses, he must give reasons that are germane to each witness.”). 3 However, the ALJ’s failure to articulate reasons is harmless error because, as the

4 Commissioner contends, the reasons the ALJ provided to reject plaintiff’s testimony apply equally 5 well to Ms. Olive’s similar statements. See Molina v. Astrue, 674 F.3d 1104, 1117-22 (9th Cir. 6 2012) (“Where lay witness testimony does not describe any limitations not already described by 7 the claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s testimony apply 8 equally well to the lay witness testimony,” the failure to address the lay testimony may be deemed 9 harmless.). Inconsistency with the medical evidence is a germane reason to discount lay witness 10 testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). The medical record revealed 11 concentration, memory, and behavior were typically normal. (See, e.g., AR 771, 839, 854.) 12 The Court concludes the ALJ did not harmfully err in addressing Ms. Olive’s statements. 13 Medical Opinions

14 Because plaintiff filed her claim after March 27, 2017, new regulations apply to the ALJ’s 15 evaluation of medical opinion evidence. Under the regulations, an ALJ “will not defer or give any 16 specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior 17 administrative medical finding(s)[.]” 20 C.F.R. §§ 404.1520c(a), 416.920c(a).3 The ALJ must 18 articulate and explain the persuasiveness of an opinion or prior finding based on “supportability” 19 and “consistency,” the two most important factors in the evaluation. Id. at (a), (b)(1)-(2). The 20 “more relevant the objective medical evidence and supporting explanations presented” and the 21 22 3 “A prior administrative medical finding is a finding, other than the ultimate determination about [disability], about a medical issue made by our Federal and State agency medical and psychological 23 consultants at a prior level of review . . . in [a] claim based on their review of the evidence in your case record[.]” 20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5). 1 “more consistent” with evidence from other sources, the more persuasive a medical opinion or 2 prior finding. Id. at (c)(1)-(2). The ALJ may but is not required to explain how other factors were 3 considered, as appropriate, including relationship with the claimant (length, purpose, and extent of

4 treatment relationship; frequency of examination); whether there is an examining relationship; 5 specialization; and other factors, such as familiarity with other evidence in the claim file or 6 understanding of the Social Security disability program’s policies and evidentiary requirements. 7 Id. at (b)(2), (c)(3)-(5). But see id. at (b)(3) (where finding two or more opinions/findings about 8 same issue equally supported and consistent with the record, but not exactly the same, ALJ will 9 articulate how other factors were considered). Where a single medical source provides multiple 10 opinions or findings, the ALJ conducts a single analysis and need not articulate how each opinion 11 or finding is considered individually. Id. at (b)(1). 12 Thomas Clifford, Ph.D. 13 An ALJ must either incorporate a medical opinion into the RFC or explain why it was

14 rejected. See SSR 96-8p, 1996 WL 374184, at *7 (Jul. 2, 1996) (“If the RFC assessment conflicts 15 with an opinion from a medical source, the adjudicator must explain why the opinion was not 16 adopted.”). 17 The ALJ found persuasive the opinions of Dr. Clifford, a State agency reviewing doctor. 18 (AR 43.) However, plaintiff argues the ALJ failed to incorporate into the RFC Dr. Clifford’s 19 opinions she was “[m]oderately limited” in several work-related abilities. (AR 174-75.) Plaintiff 20 fails to show error. 21 Dr. Clifford opined moderate limitation in understanding and remembering detailed 22 instructions and, in the narrative section, explained plaintiff “retains the cognitive ability to do 23 [simple routine tasks].” (AR 174.) Dr. Clifford opined moderate limitations in maintaining 1 extended concentration, maintaining punctual attendance, sustaining a routine without special 2 supervision, working with others, and completing a normal workday and workweek. (AR 174- 3 75.) He further explained that while plaintiff’s concentration was “diminished at times,” she

4 “retains the ability to maintain attention/concentration sufficient to complete simple routine tasks 5 over a normal 8-hour workday with customary breaks.” (AR 175.) Consistent with Dr. Clifford’s 6 opinions, the ALJ limited plaintiff to “simple routine tasks.” (AR 39.) 7 Dr. Clifford opined moderate limitations in all social interaction abilities, including 8 interacting with the public and getting along with coworkers, and further explained plaintiff was 9 “[n]ot well suited to work with the public or closely with coworkers. Superficial contact only due 10 to aggressive behavior.” (AR 175.) Accordingly, the ALJ limited plaintiff to “no contact with the 11 public [and] occasional superficial contact with co-workers with no team tasks.” (AR 39.) 12 Dr. Clifford opined moderate limitations in responding appropriately to changes in the 13 work setting, and explained plaintiff “would work best with reasonable time to adapt to workplace

14 change.” (AR 175.) However, RFC need not incorporate what is best for a claimant; rather, RFC 15 describes the most a claimant can still do despite limitations. 20 C.F.R. §§ 404.1545(a)(1), 16 416.945(a)(1) (RFC “is the most you can still do despite your limitations.”); see also Carmickle, 17 533 F.3d at 1165 (An ALJ may reasonably decline to adopt the opinion of a physician “offered as 18 a recommendation, not an imperative.”). 19 Plaintiff fails to explain how any of Dr. Clifford’s opinions of moderate limitations 20 necessitate additional restrictions in the RFC. The Court concludes the ALJ did not err in 21 analyzing Dr. Clifford’s opinions. 22 Dan M. Neims, Psy.D. 23 Dr. Neims examined plaintiff in May 2016 and opined she had marked limitations in 1 communicating and performing effectively, maintaining appropriate behavior, completing a 2 normal work day and work week, and planning realistically. (AR 487.) The ALJ found Dr. Neims’ 3 opinions unpersuasive based on inconsistency with the medical evidence and plaintiff’s

4 demonstrated functioning, because the opinions were largely based on plaintiff’s unreliable 5 statements, and because he inadequately addressed the effect of plaintiff’s chronic cannabis use. 6 (AR 43.) Plaintiff challenges only the last two reasons. Even if cannabis use and overreliance on 7 plaintiff’s self-reports were erroneous reason to discount Dr. Neims’ opinions, the error is harmless 8 because the ALJ provided other, valid reasons, such as inconsistency with medical evidence. See 9 Tommasetti, 533 F.3d at 1041 (not improper to reject an opinion presenting inconsistencies 10 between the opinion and the medical record). The Court concludes plaintiff has shown no harmful 11 error in the ALJ’s analysis of Dr. Neims’ opinions. 12 Bryan Zolnikov, Ph.D. 13 Dr. Zolnikov examined plaintiff in March 2017 and opined she was unable to communicate

14 and perform effectively, maintain appropriate behavior, and complete a normal work day and work 15 week. (AR 539.) The ALJ found Dr. Zolnikov’s opinions unpersuasive for several reasons, 16 including inconsistency with the record and failure to fully account for plaintiff’s cannabis use. 17 (AR 43.) Plaintiff only challenges the reason of cannabis use. Even if that reason is erroneous, 18 the error is harmless because inconsistency with medical evidence is a sufficient reason to discount 19 a medical opinion. The Court concludes plaintiff has shown no harmful error in the ALJ’s analysis 20 of Dr. Zolnikov’s opinions. 21 Evidence First Presented to Appeals Council 22 “[W]hen the Appeals Council considers new evidence in deciding whether to review a 23 decision of the ALJ, that evidence becomes part of the administrative record, which the district 1 court must consider when reviewing the Commissioner’s final decision for substantial evidence.” 2 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). This Court must, in 3 other words, “determine whether the ALJ’s finding of nondisability was supported by substantial

4 evidence in the entire record – including any new evidence in the administrative record that the 5 Appeals Council considered – not just the evidence before the ALJ.” Gardner v. Berryhill, 856 6 F.3d 652, 656 (9th Cir. 2017). 7 Preethy Pankaj, M.D. 8 Dr. Pankaj examined plaintiff in April 2016 and provided reports dated April and June 9 2016, limiting plaintiff to sedentary work. (AR 54, 63.) Yet her reports were not provided to the 10 Commissioner until after the ALJ’s 2019 decision. (See AR 2.) The Appeals Council determined 11 the evidence in the reports did “not show a reasonable probability that it would change the outcome 12 of the decision.” (AR 2.) 13 Plaintiff fails to show Dr. Pankaj’s opinions deprive the ALJ’s decision of substantial

14 evidence. 15 Dr. Pankaj’s April 2016 report describes plaintiff’s “reported symptoms” as recurrent 16 abdominal pain with nausea and vomiting for six months and right flank pain for two years. (AR 17 52.) Six months does not meet the durational requirement for Social Security benefits, and plaintiff 18 did not testify to any ongoing or long-term abdominal pain, nausea, or vomiting. (See AR 97- 19 122.) Dr. Pankaj opined right flank pain only caused “[m]oderate” limitations in work activities. 20 (AR 53.) Plaintiff offers no argument as to why moderate limitations would require any additional 21 restrictions in the RFC and no other way Dr. Pankaj’s report could deprive the ALJ’s decision of 22 substantial evidence. 23 Dr. Pankaj’s June 2016 report lists conditions of recurrent abdominal pain with vomiting 1 for six months, depression, anxiety, and right flank pain for two years. (AR 61.) Dr. Pankaj limited 2 plaintiff to sedentary work, expressly based on plaintiff’s self-reports. (AR 61-62.) Dr. Pankaj 3 wrote, “Per patient, her mental health issues prevent her from being able to concentrate or

4 understand even simple concepts. She also reports that due to the abdominal pain, gagging & 5 vomiting, she is unable to sit/stand/lift heavy objects/stoop.” (AR 61.) Dr. Pankaj checked a box 6 stating plaintiff could work zero hours per week, writing “per patient unable to do any productive 7 work. Difficult to quantify from an objective standpoint.” (AR 61.) Dr. Pankaj’s report is not a 8 medical opinion demonstrating her own considered judgment, but a recitation of plaintiff’s self- 9 reported symptoms. The ALJ thoroughly addressed plaintiff’s self-reports and permissibly 10 discounted them. Dr. Pankaj’s June 2016 report does not deprive the ALJ’s decision of substantial 11 evidence. 12 The Court concludes remand is not required to address Dr. Pankaj’s 2016 reports. 13 Joseph A. Moisan, Ed.D.

14 At step five, the ALJ relied on the testimony of vocational expert Ms. Guthrie-Whitlow to 15 determine plaintiff could perform work as a production assembler, with 227,000 jobs in the 16 national economy, hand packager inspector, with 131,000 jobs, and garment folder, with 88,000 17 jobs. (AR 45.) Ms. Guthrie-Whitlow’s testimony provided substantial evidence supporting the 18 ALJ’s decision. A vocational expert’s testimony “is one type of job information that is regarded 19 as inherently reliable; thus there is no need for an ALJ to assess its reliability.” Buck v. Berryhill, 20 869 F.3d 1040, 1051 (9th Cir. 2017). 21 Plaintiff submitted to the Appeals Council a declaration by vocational expert Dr. Moisan 22 stating that, according to Job Browser Pro software, in the national economy there are only 614 23 production assembler jobs, 2,155 hand packager jobs, and 42 garment folder jobs. (AR 11.) 1 Plaintiff contends this case is similar to Buck, where the Ninth Circuit held “VE testimony is not 2 incontestable” and concluded, “[i]n this case, the vast discrepancy between the VE’s job numbers 3 and those tendered by Buck, presumably from the same source, is simply too striking to be ignored.

4 This inconsistency in the record must be addressed by the ALJ on remand.” 869 F.3d at 1051 5 (internal citation omitted). But in Buck, the ALJ “curtailed Buck’s cross-examination of the VE 6 on the issue of job numbers, promising Buck that he would be able to make a post-hearing 7 submission. In the end, however, the ALJ did not address Buck’s submission.” Id. at 1047. In 8 this case, in contrast, plaintiff’s attorney raised no issue concerning job numbers at the hearing. 9 Plaintiff’s only submission was to the Appeals Council, which considered and rejected Dr. 10 Moisan’s declaration. Unlike in Buck, where the claimant’s evidence was offered but never 11 addressed during the administrative proceedings, here plaintiff’s evidence was given due 12 consideration. Plaintiff fails to show reversible error in the Appeals Council’s determination that 13 Dr. Moisan’s report did “not show a reasonable probability that it would change the outcome of

14 the decision.” (AR 2.) 15 Plaintiff’s statement that “Dr. Moisan has provided documented evidence that the 16 testimony of the VE at the hearing is not valid” is not accurate. Dr. Moisan’s declaration merely 17 asserts that his numbers are more accurate than Ms. Guthrie-Whitlow’s, providing no evidence to 18 support his assertion. Dr. Moisan, at most, provides an alternative opinion regarding the job 19 numbers. He does not demonstrate the evidence offered by the VE was not reliable. Without 20 more, Dr. Moisan’s declaration does not deprive the ALJ’s decision of substantial evidence. The 21 Court concludes Mr. Moisan’s declaration does not necessitate remand. 22 Plaintiff also challenges the ALJ’s step four finding. The Court need not address this issue. 23 Even if the ALJ erred in finding plaintiff could perform past relevant work, that error is harmless 1 because the ALJ properly decided plaintiff could perform other work in the economy. Tommasetti, 2 533 F.3d at 1037. 3 CONCLUSION

4 For the reasons set forth above, this matter is AFFIRMED. 5 DATED this 25th day of January, 2021.

6 A 7 Mary Alice Theiler 8 United States Magistrate Judge

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