FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
Dec 05, 2023 3 SEAN F. MCAVOY, CLERK 4
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 DAVI F. V., NO: 2:22-CV-145-RMP 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. BRIEF AND GRANTING DEFENDANT’S BRIEF 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12
13 BEFORE THE COURT, without oral argument, are briefs from Plaintiff Davi 14 F. V.1, ECF No. 10, and Defendant the Commissioner of Social Security (the 15 “Commissioner”), ECF No. 12. Plaintiff seeks judicial review, pursuant to 42 16 U.S.C. §§ 405(g), of the Commissioner’s denial of his claim for Social Security 17 Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). 18 19
1 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first 20 name and middle and last initials. 21 1 Having considered the parties’ briefs, Plaintiff’s reply, the administrative 2 record, and the applicable law, the Court is fully informed. For the reasons set forth
3 below, the Court denies judgment for Plaintiff and directs entry of judgment in favor 4 of the Commissioner. 5 BACKGROUND
6 General Context 7 Plaintiff applied for SSI on approximately July 30, 2018, alleging a disability 8 onset date of June 1, 2018. Administrative Record (“AR”)2 19, 333–41. Plaintiff 9 was 29 years old on the alleged onset date and asserts that he is unable to work due
10 to anxiety; depression; a personality disorder; obesity, and a skin disorder on his 11 thighs. ECF No. 10 at 2; see also AR 369. Plaintiff’s claims proceeded to a hearing 12 before Administrative Law Judge (“ALJ”) Caroline Siderius, who issued an
13 unfavorable decision on July 22, 2020. AR 156–65. On December 9, 2020, the 14 Appeals Council vacated the ALJ’s decision and remanded the case to ALJ Siderius 15 to provide “an adequate evaluation of the medical expert’s testimony,” specifically 16 whether the ALJ accepted the medical expert Dr. Stephen Rubin’s opinion that
17 Plaintiff’s return to work would result in two or more days absent from work each 18 month. AR 171–72. The Appeals Council also noted that the ALJ had not 19
20 2 The Administrative Record is filed at ECF No. 6. 21 1 explained why she did not accept Dr. Rubin’s marked limitation in social 2 functioning and instead found Plaintiff moderately limited in that area. AR 171.
3 Following the Appeals Council’s remand, Plaintiff submitted additional 4 medical evidence, and, on April 12, 2021, Plaintiff appeared for a hearing on remand 5 held telephonically by ALJ Siderius from Spokane, Washington. AR 71, 98–127,
6 907–1028. Plaintiff was present and represented by attorney David Lybbert. AR 7 100. The ALJ heard from medical expert testimony Jay Toews, Ed.D., vocational 8 expert (“VE”) Daniel McKinney, and Plaintiff. AR 102–26. ALJ Siderius issued an 9 unfavorable decision on April 28, 2021. AR 19–30.
10 ALJ’s Decision 11 Applying the five-step evaluation process, ALJ Siderius found: 12 Step one: Plaintiff has not engaged in substantial gainful activity since July
13 30, 2018, the application date. AR 21 (citing 20 C.F.R. § 404.971 et seq.). 14 Step two: Plaintiff has the following severe impairments: anxiety, depression, 15 obesity, and degenerative disc disease. AR 21 (citing 20 C.F.R. § 416.920(c)). The 16 ALJ further found that, although she had previously found that Plaintiff had a severe
17 personality disorder based on the testimony of Dr. Rubin at the first hearing, Dr. 18 Toews did not assess Plaintiff with a personality disorder, “and the evidence of 19 record does not support such a disorder as a medically determinable impairment.”
20 21 1 AR 21–22. The ALJ further found that PTSD is not a medically determinable 2 impairment, based on the testimony of Dr. Toews. AR 22.
3 Step three: The ALJ concluded that Plaintiff does not have an impairment, or 4 combination of impairments, that meets or medically equals the severity of one of 5 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
6 416.920(d), 416.925, and 416.926). AR 22. With respect to Plaintiff's physical 7 impairments, the ALJ memorialized that she considered listings 1.15 (disorders of 8 the skeletal spine resulting in compromise of a nerve root(s)) and 1.16 (lumbar 9 spinal stenosis causing cauda equina compression). AR 22. The ALJ also
10 considered whether Plaintiff’s functional limitations resulting from obesity meet or 11 medically equal a listing and found that “no medical source opined that claimant’s 12 obesity medically equaled a listing on its own or exacerbated her [sic] other
13 impairments to the point that they medically equaled a listing. The undersigned 14 cannot assume otherwise.” AR 22 (citing Social Security Ruling (“SSR”) 19-2). In 15 assessing the severity of Plaintiff’s mental impairments, the ALJ considered listings 16 12.04 and 12.06 and whether Plaintiff satisfied the “paragraph B” criteria. AR 22–
17 23. The ALJ found that Plaintiff is mildly limited in: understanding, remembering, 18 or applying information and concentrating, persisting, or maintaining pace. AR 22– 19 24. The ALJ found Plaintiff moderately limited in: interacting with others and in
20 adapting or managing. AR 23–24. Therefore, the ALJ found that Plaintiff does not 21 1 exhibit at least two marked limitations or one extreme limitation in a broad area of 2 functioning. AR 24. The ALJ also memorialized her finding that the evidence in
3 Plaintiff’s record fails to satisfy the “paragraph C” criteria. AR 24. 4 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff can 5 perform medium work, as defined in 20 C.F.R. § 416.967(b), except that:
6 he could sit up to eight hours per day; he could stand and/or walk up to one hour at a time before taking a five-minute break; he could 7 stand and/or walk up to four hours in an eight-hour day; he could occasionally crouch, kneel, stoop, crawl, and climb ladders, ropes, or 8 scaffolds; he could have occasional, brief contact with co-workers and no contact with the public; and he could not tolerate more than ordinary 9 production requirements.
10 AR 24. 11 In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s “medically 12 determinable impairments could reasonably be expected to cause the alleged 13 symptoms; however, the claimant’s statements concerning the intensity, persistence 14 and limiting effects of these symptoms are not entirely consistent with the medical 15 evidence and other evidence in the record for the reasons explained in this decision.” 16 AR 25. 17 Step four: The ALJ found that Plaintiff has no past relevant work. AR 29 18 (citing 20 C.F.R. § 416.965). 19 20 21 1 Step five: The ALJ concluded that Plaintiff was not under a disability, as 2 defined by the Act, from September 1, 2018, through the date of the decision. AR
3 1727 (citing 20 C.F.R. §§ 404.1520(f) and 416.920 (f)). 4 Plaintiff sought review of the ALJ’s decision in this Court. ECF No. 1. 5 LEGAL STANDARD
6 Standard of Review 7 Congress has provided a limited scope of judicial review of the 8 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 9 Commissioner’s denial of benefits only if the ALJ’s determination was based on
10 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 11 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s] 12 determination that a claimant is not disabled will be upheld if the findings of fact are
13 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 14 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 15 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 16 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir.
17 1989). Substantial evidence “means such evidence as a reasonable mind might 18 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 19 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the
20 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark 21 1 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the 2 record, not just the evidence supporting the decisions of the Commissioner.
3 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 4 A decision supported by substantial evidence still will be set aside if the 5 proper legal standards were not applied in weighing the evidence and making a
6 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 7 1988). Thus, if there is substantial evidence to support the administrative findings, 8 or if there is conflicting evidence that will support a finding of either disability or 9 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen,
10 812 F.2d 1226, 1229–30 (9th Cir. 1987). 11 Definition of Disability 12 The Act defines “disability” as the “inability to engage in any substantial
13 gainful activity by reason of any medically determinable physical or mental 14 impairment which can be expected to result in death, or which has lasted or can be 15 expected to last, for a continuous period of not less than 12 months.” 42 U.S.C. § 16 423(d)(1)(A). The Act also provides that a claimant shall be determined to be under
17 a disability only if the impairments are of such severity that the claimant is not only 18 unable to do their previous work, but cannot, considering the claimant’s age, 19 education, and work experiences, engage in any other substantial gainful work
20 which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Thus, the 21 1 definition of disability consists of both medical and vocational components. Edlund 2 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
3 Sequential Evaluation Process 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a claimant is disabled. 20 C.F.R § 416.920. Step one
6 determines if they are engaged in substantial gainful activities. If the claimant is 7 engaged in substantial gainful activities, benefits are denied. 20 C.F.R. § 8 416.920(a)(4)(i). 9 If the claimant is not engaged in substantial gainful activities, the decision
10 maker proceeds to step two and determines whether the claimant has a medically 11 severe impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If 12 the claimant does not have a severe impairment or combination of impairments, the
13 disability claim is denied. 14 If the impairment is severe, the evaluation proceeds to the third step, which 15 compares the claimant’s impairment with listed impairments acknowledged by the 16 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §
17 416.920(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment 18 meets or equals one of the listed impairments, the claimant is conclusively presumed 19 to be disabled.
20 21 1 If the impairment is not one conclusively presumed to be disabling, the 2 evaluation proceeds to the fourth step, which determines whether the impairment
3 prevents the claimant from performing work that they have performed in the past. If 4 the claimant can perform their previous work, the claimant is not disabled. 20 5 C.F.R. §§ 416.920(a)(4)(iv). At this step, the claimant’s RFC assessment is
6 considered. 7 If the claimant cannot perform this work, the fifth and final step in the process 8 determines whether the claimant is able to perform other work in the national 9 economy considering their residual functional capacity and age, education, and past
10 work experience. 20 C.F.R. § 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 11 142 (1987). 12 The initial burden of proof rests upon the claimant to establish a prima facie
13 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 14 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 15 is met once the claimant establishes that a physical or mental impairment prevents 16 them from engaging in their previous occupation. Meanel, 172 F.3d at 1113. The
17 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 18 can perform other substantial gainful activity, and (2) a “significant number of jobs 19 exist in the national economy” that the claimant can perform. Kail v. Heckler, 722
20 F.2d 1496, 1498 (9th Cir. 1984). 21 1 ISSUES ON APPEAL 2 The parties’ motions raise the following issues regarding the ALJ’s decision:
3 1. Did the ALJ erroneously assess the medical source opinions? 2. Did the ALJ erroneously discount Plaintiff’s subjective complaints? 4 3. Did the ALJ fail to meet her burden at step five? 5 Medical Source Opinions 6 Plaintiff argues that the ALJ could not have relied only upon the opinion of 7 non-examining medical expert Dr. Toews to discredit or ignore the opinion of 8 examining medical source Dr. Rubin. ECF No. 10 at 14–15. Plaintiff asserts that he 9 shows in the introductory section of his opening brief that “Dr. Toews’ assumptions 10 and review” were in error. Id. at 15. In introducing the relief that he requests, 11 Plaintiff asserts that while the ALJ found persuasive Dr. Toews’ opinion that no 12 mental condition causes limitations for Plaintiff, Plaintiff’s position is that Dr. 13 Toews based his opinion on three invalid assumptions. ECF No. 10 at 6. First, 14 Plaintiff argues that Dr. Toews stated that Plaintiff’s mental status examination 15 findings were normal but “admitted” on cross-examination that his mental status 16 examinations indicated that Plaintiff presented with a “flat affect” and a 17 “disheveled” appearance. ECF No. 10 at 6 (citing nothing). Second, Plaintiff argues 18 that Dr. Toews incorrectly opined that psychological examiner Thomas Genthe, 19 PhD’s assessment lacked reliability because the personality inventory testing that 20 Dr. Genthe performed was invalid. Id. at 18. Plaintiff counters that Dr. Toews 21 1 admitted that Dr. Genthe’s interpretation should be “limited,” not completely invalid 2 because Plaintiff left twenty percent of the personality inventory blank and Dr.
3 Genthe did not follow up as to the reason for not responding to the questions. Id. at 4 18 (citing AR 104, 112–13). Third, Plaintiff also asserts that Dr. Toews erroneously 5 decided to ignore Plaintiff’s symptoms on the basis that Plaintiff did not take the
6 Wellbutrin that was prescribed to him because Plaintiff testified that he did not take 7 Wellbutrin because of severe side effects and that Plaintiff took the alternative 8 medication that was prescribed. Id. at 7 (citing nothing). 9 The Commissioner responds that Plaintiff does not adequately develop his
10 argument with respect to alleged error in treatment of the medical source opinions 11 and does not provide citations to the record. ECF No. 12 at 6 (citing ECF No. 10; 12 Hibbs v. Dep’t of Hum. Res., 273 F.3d 844, 873 (9th Cir. 2001), aff’d sub nom.
13 Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721 (2003); Indep. Towers of Wash. 14 v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Our circuit has repeatedly 15 admonished that we cannot manufacture arguments for an appellant and therefore we 16 will not consider any claims that were not actually argued in appellant’s opening
17 brief.”) (internal quotation omitted)). The Commissioner further maintains that the 18 ALJ “thoroughly analyzed all the opinion and prior administrative medical finding 19 evidence, under the applicable regulations, and provided far more than the ‘mere
20 scintilla’ of support, with extensive citations to the record, necessary to meet the low 21 1 threshold of the substantial evidence standard of review.” Id. at 11–12 (citing 2 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)). The Commissioner argues that,
3 on remand from the Appeals Council, the ALJ “fully addressed Dr. Rubin’s opinion 4 regarding both Plaintiff’s absenteeism, and his social and other mental functional 5 abilities.” Id. at 12 (citing AR 22–26). The Commissioner asserts that the ALJ
6 relied on substantial evidence in reasoning that Plaintiff’s social anxiety symptoms 7 did not rise to the level to which Dr. Rubin opined in light of Plaintiff’s activities 8 and presentation to examining providers, as well as the other medical source 9 opinions. Id.
10 The regulations that took effect on March 27, 2017, provide a new framework 11 for the ALJ’s consideration of medical opinion evidence, and require the ALJ to 12 articulate how persuasive he finds all medical opinions in the record, without any
13 hierarchy of weight afforded to different medical sources. See Rules Regarding the 14 Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 15 2017). Instead, for each source of a medical opinion, the ALJ must consider several 16 factors, including supportability, consistency, the source’s relationship with the
17 claimant, any specialization of the source, and other factors such as the source’s 18 familiarity with other evidence in the claim or an understanding of Social Security’s 19 disability program. 20 C.F.R. § 416.920c(c)(1)-(5).
20 21 1 Supportability and consistency are the “most important” factors, and the ALJ 2 must articulate how he considered those factors in determining the persuasiveness of
3 each medical opinion or prior administrative medical finding. 20 C.F.R. § 4 416.920c(b)(2). With respect to these two factors, the regulations provide that an 5 opinion is more persuasive in relation to how “relevant the objective medical
6 evidence and supporting explanations presented” and how “consistent” with 7 evidence from other sources the medical opinion is. 20 C.F.R. § 416.920c(c)(1). 8 The ALJ may explain how he considered the other factors, but is not required to do 9 so, except in cases where two or more opinions are equally well-supported and
10 consistent with the record. 20 C.F.R. § 416.920c(b)(2), (3). Courts also must 11 continue to consider whether the ALJ’s finding is supported by substantial evidence. 12 See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to
13 any fact, if supported by substantial evidence, shall be conclusive . . . .”). 14 Prior to revision of the regulations, the Ninth Circuit required an ALJ to 15 provide clear and convincing reasons to reject an uncontradicted treating or 16 examining physician’s opinion and provide specific and legitimate reasons where the
17 record contains a contradictory opinion. See Revels v. Berryhill, 874 F.3d 648, 654 18 (9th Cir. 2017). However, the Ninth Circuit has held that the Social Security 19 regulations revised in March 2017 are “clearly irreconcilable with [past Ninth
20 Circuit] caselaw according to special deference to the opinions of treating and 21 1 examining physicians on account of their relationship with the claimant.” Woods v. 2 Kijakazi, No. 21-35458, 2022 U.S. App. LEXIS 10977, at *14 (9th Cir. Apr. 22,
3 2022). The Ninth Circuit continued that the “requirement that ALJs provide 4 ‘specific and legitimate reasons’ for rejecting a treating or examining doctor’s 5 opinion, which stems from the special weight given to such opinions, is likewise
6 incompatible with the revised regulations.” Id. at *15 (internal citation omitted). 7 Plaintiff applied for SSI on approximately July 30, 2018. AR 15, 234–48. 8 Accordingly, as Plaintiff acknowledges is appropriate in his reply, the Court refers to 9 the standard and considerations set forth by the revised rules for evaluating medical
10 evidence. See ECF No. 13 at 7. 11 In formulating Plaintiff’s RFC, the ALJ considered the persuasiveness of Dr. 12 Rubin’s testimony at the first hearing that Plaintiff likely would be absent more than
13 two days per month if he returned to work. AR 25. The ALJ found that Dr. Rubin’s 14 opinion was not supported by objective medical evidence or by Plaintiff’s “reports 15 of activity, his presentation to examining providers, and provider opinions generally 16 indicate that his anxiety symptoms do not rise to the level opined by Dr. Rubin.”
17 AR 26. The ALJ noted that Dr. Genthe opined in 2018 and 2019 that Plaintiff was 18 “unlikely to function adequately in a work setting until his psychological symptoms 19 have been managed more effectively.” AR 26. Dr. Genthe also rated Plaintiff as
20 markedly limited in three or four of thirteen categories of basic work activity. AR 21 1 26. The ALJ found Dr. Genthe’s opinion inconsistent with Dr. Genthe’s own 2 observations of Plaintiff and with the findings of Plaintiff’s counselor “who noted in
3 February 2019 that he presented with a positive mood and had significantly 4 increased his social activities to an almost daily basis.” AR 26 (citing AR 551, 772). 5 The ALJ further considered the additional medical expert testimony that she
6 received from Dr. Toews at the second hearing and found the majority of Dr. Toews’ 7 opinion persuasive. AR 28. Specifically, the ALJ reasoned that Dr. Toews’ opinion 8 that Plaintiff should have no more than superficial interaction with the public was 9 persuasive because Dr. Toews “had the opportunity to review all the evidence of
10 record, he provided a thorough explanation of the records he reviewed and how they 11 shaped his opinion, he has specialized expertise in clinical psychology, and he is 12 familiar with Social Security regulations.” AR 28. The ALJ found that Dr. Toews’
13 testimony that Plaintiff could perform the job duties of someone who checks 14 produce in the back of a grocery store was not persuasive because Dr. Toews is not a 15 vocational expert. AR 28. 16 Plaintiff challenges the ALJ’s finding that the opinions of Drs. Rubin and
17 Genthe were not persuasive and correspondingly argues that the ALJ should not 18 have relied on the opinion of Dr. Toews. ECF No. 10 at 5–7, 14–15. Plaintiff cites 19 to nothing in the record in his argument alleging error by the ALJ in the treatment of
20 the medical source opinions and instead refers the Court back to Plaintiff’s recitation 21 1 of the background of the case. See ECF No. 10 at 14–15. In Plaintiff’s reply, 2 Plaintiff’s arguments are not separated into distinct bases for relief, but instead
3 consist of a conglomerated argument of how the ALJ allegedly weighed the 4 evidence incorrectly and did not address the basis for the Appeals Council’s remand. 5 See ECF No. 13. Even piecing Plaintiff’s arguments together and giving Plaintiff
6 the benefit of the doubt regarding whether the arguments are supported by the 7 record, Plaintiff’s assertion of error amounts to a reinterpretation of the record and 8 asks this Court to substitute its judgment for that of the agency. This is not the 9 Court’s role in a Social Security disability benefits appeal. Ahearn v. Saul, 988 F.3d
10 1111, 1115 (9th Cir. 2021). 11 Rather, the Court looks to the factors considered by the ALJ, particularly 12 supportability and consistency, and whether those factors were supported by
13 substantial evidence. See 20 C.F.R. § 416.920c. In discounting Dr. Rubin’s opinion 14 that Plaintiff is markedly limited in interacting with others and may miss more than 15 two days per month, the ALJ cited to evidence that Plaintiff presented to treating 16 providers with mild symptoms and admitted to a provider that it was his “choice” to
17 isolate in his room to “‘engross’ himself in his gameplay and watch Disney movies 18 associated with the game.” AR 26, 749–50. The ALJ also cited evidence that 19 Plaintiff was able to socialize with friends and attend social occasions, including a
20 nephew’s birthday party and an event at which Plaintiff assisted his dad. AR 26, 21 1 543, 755, and 758. This evidence provides substantial support for the ALJ’s 2 determination that the degree of limitation to which Dr. Rubin opined was not
3 supported by the two “most important” persuasiveness factors, supportability and 4 consistency. 5 Likewise, for Dr. Genthe, the ALJ considered whether Dr. Genthe’s opinion
6 was supported by an explanation and objective medical evidence, and cited to 7 evidence indicating that it was not. AR 26, 551, and 772. The ALJ further 8 considered whether Dr. Genthe’s opinion was consistent with other evidence in the 9 record and cited to Plaintiff’s treating counselor’s notes that were inconsistent with
10 Dr. Genthe’s opinion. AR 26, 521. 11 Lastly, the ALJ also cited to substantial evidence in her discussion of why she 12 found Dr. Toews’ opinion persuasive, including noting that Dr. Toews was able to
13 review Plaintiff’s full record and provided a thorough explanation for how the record 14 supported his opinion. AR 28. 15 Plaintiff has not shown that the ALJ erred, even assuming that Plaintiff 16 showed that the ALJ could have weighed the medical source opinions differently.
17 Therefore, the Court finds no error on this ground, and grants judgment to Defendant 18 the Commissioner, and denies judgment to Plaintiff, on the same. 19 / / /
20 / / / 21 1 Subjective Symptom Testimony 2 Plaintiff argues that the ALJ provided insufficient reasons for discounting
3 Plaintiff’s subjective complaints. ECF No. 10 at 15. Plaintiff argues that both his 4 mother and examining medical source Dr. Genthe corroborate the limitations that 5 Plaintiff described. Id. Plaintiff asserts that the ALJ relied on cherry-picked facts.
6 Id. at 16 (no citation to the record). Plaintiff further argues that the ALJ erroneously 7 relies on Plaintiff’s daily activities, including attending family gatherings and 8 playing video games online, when the activities do not consume a substantial part of 9 Plaintiff’s day and do not support an inference that Plaintiff can sustain work
10 activity. Id. at 16–17 (no citation to the record). 11 The Commissioner does not address the ALJ’s treatment of Plaintiff’s 12 subjective statements but discusses Plaintiff’s statements in the context of the
13 treatment of medical source opinions and cites the Court to Plaintiff’s attendance at 14 family events such as a nephew’s birthday party and family holiday gatherings, as 15 well as other social activities like serving as best man in a friend’s wedding and 16 attending a barbeque. ECF No. 12 at 10, 12 (citing AR 26–27, 543, 545, 755, 758,
17 837, and 848). 18 In deciding whether to accept a claimant’s subjective pain or symptom 19 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d
20 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has 21 1 presented objective medical evidence of an underlying impairment ‘which could 2 reasonably be expected to produce the pain or other symptoms alleged.’”
3 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 4 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is met and there 5 is no evidence of malingering, “the ALJ can reject the claimant’s testimony about
6 the severity of her symptoms only by offering specific, clear and convincing reasons 7 for doing so.” Smolen, 80 F.3d at 1281. 8 The ALJ reasoned that Plaintiff’s activities as well as his medical records 9 before and after the date of the remanded decision were inconsistent with the degree
10 of impairment that Plaintiff claims. The ALJ cited to substantial evidence in support 11 of this reasoning, including medical records showing that: Plaintiff reported to a 12 therapist in August 2018 that his mental health symptoms were “minimal if at all
13 present most days” and that Plaintiff was uninterested in employment; that Plaintiff 14 reported to a therapist that his lack of progress toward his mental health goals was 15 “not because of his symptoms impacting his functioning,” but instead because he 16 was prioritizing his gaming hobby; and Plaintiff ceased therapy in March 2021 after
17 Plaintiff did not make “significant progress . . . over 30 sessions” and the therapist 18 had unsuccessfully tried to motivate Plaintiff to try to make changes or identify what 19 he is willing to do to change his symptoms[.] AR 623, 627, and 1026. The Court
20 finds no error in the ALJ’s assessment of Plaintiff’s subjective symptom statements. 21 1 Step Five 2 Plaintiff contends that the ALJ erred at step five because the VE testified in
3 response to a hypothetical that was incomplete due to the ALJ’s allegedly improper 4 consideration of the medical opinion evidence and Plaintiff’s subjective symptom 5 testimony. See ECF No. 10 at 8. The ALJ’s hypothetical must be based on medical
6 assumptions supported by substantial evidence in the record that reflect all of a 7 claimant’s limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 8 The ALJ is not bound to accept as true the restrictions presented in a hypothetical 9 question propounded by a claimant’s counsel. Osenbrock, 240 F.3d at 1164. The
10 ALJ may accept or reject these restrictions if they are supported by substantial 11 evidence, even when there is conflicting medical evidence. Magallanes v. Bowen, 12 881 F.2d 747, 756 (9th Cir. 1989).
13 Plaintiff’s argument assumes that the ALJ erred in her treatment of Plaintiff’s 14 subjective symptom testimony and the medical source testimony in formulating the 15 RFC. As discussed above, the Court finds no error in the ALJ’s assessment of this 16 evidence. Therefore, the RFC and hypothetical contained the limitations that the
17 ALJ found credible and supported by substantial evidence in the record. The ALJ’s 18 reliance on testimony that the VE gave in response to the hypothetical was proper. 19 See Bayliss, 427 F.3d at 1217–18. The Court grants judgment to the Commissioner
20 on this final ground. 21 1 Lastly, the Court notes that Plaintiff raises in a conclusory manner the 2 allegation that the ALJ failed to “properly evaluate the Mental [sic] conditions
3 affecting the Plaintiff, by failing to look at the record in a ‘longitudinal’ fashion, as 4 required by Statute [sic][.]” ECF No. 10 at 2. However, the Court already 5 determined that the ALJ cited to evidence over the course of Plaintiff’s medical
6 record in evaluating the medical source opinions and subjective symptom 7 statements, and the Court finds no fruitful purpose in pursuing this undeveloped 8 issue any further. 9 CONCLUSION
10 Having reviewed the record and the ALJ’s findings, this Court concludes that 11 the ALJ’s decision is supported by substantial evidence and free of harmful legal 12 error.
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17 / / / 18 / / / 19 / / /
20 / / / 21 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s Opening Brief, ECF No. 10, is DENIED.
3 2. Defendant the Commissioner’s Brief, ECF No. 12, is GRANTED. 4 4. Judgment shall be entered for Defendant. 5 IT IS SO ORDERED. The District Court Clerk is directed to enter this
6 Order, enter judgment for Defendant as directed, provide copies to counsel, and 7 close the file in this case. 8 DATED December 5, 2023.
9 s/ Rosanna Malouf Peterson 10 ROSANNA MALOUF PETERSON Senior United States District Judge 11 12 13 14 15 16 17 18 19
20 21