FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Nov 30, 2022 3 SEAN F. MCAVOY, CLERK 4
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 ALEXIS V., NO: 1:22-CV-3018-RMP 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING 10 COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR SECURITY, SUMMARY JUDGMENT 11 Defendant. 12
13 BEFORE THE COURT, without oral argument, are cross-motions for 14 summary judgment from Plaintiff Alexis V.1, ECF No. 11, and Defendant the 15 Commissioner of Social Security (the “Commissioner”), ECF No. 12. Plaintiff 16 seeks judicial review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of the 17 Commissioner’s denial of her claims for Social Security Income (“SSI”) and 18 19
1 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first 20 name and last initial. 21 1 Disability Insurance Benefits (“DIB”) under Titles XVI and Title II, respectively, of 2 the Social Security Act (the “Act”). See ECF No. 11 at 1−2.
3 Having considered the parties’ motions, the administrative record, and the 4 applicable law, the Court is fully informed. For the reasons set forth below, the 5 Court denies Plaintiff’s Motion for Summary Judgment, and grants summary
6 judgment in favor of the Commissioner. 7 BACKGROUND 8 General Context 9 Plaintiff applied for SSI on June 28, 2016, and for DIB on November 1, 2018.
10 Administrative Record (“AR”)2 17, 169–85. Plaintiff alleged an onset date of April 11 4, 2015. AR 170. Plaintiff was 18 years old on the alleged disability onset date and 12 asserted that she was unable to work due to learning disabilities and depression. AR
13 178, 196. Plaintiff’s application was denied initially and upon reconsideration, and 14 Plaintiff requested a hearing. See AR 17. 15 On November 15, 2018, Plaintiff appeared for a hearing held by 16 Administrative Law Judge (“ALJ”) Moira Ausems in Kennewick, Washington. AR
17 35−37. Plaintiff was represented by counsel Chad Hatfield. AR 36. The ALJ heard 18 from Plaintiff as well as vocational expert Michael Swanson, who participated 19
20 2 The Administrative Record is filed at ECF No. 9. 21 1 telephonically. AR 37−101. ALJ Ausems issued an unfavorable decision, and the 2 Appeals Council denied review. AR 1−6, 28.
3 Plaintiff sought review in the U.S. District Court for the Eastern District of 4 Washington. On October 5, 2020, United States District Court Judge Edward F. 5 Shea granted summary judgment for Plaintiff and remanded the case for additional
6 proceedings. AR 589–90. Judge Shea found that further development of the record 7 was necessary for a proper disability determination. AR 589. Judge Shea 8 instructed: “Consistent with Dr. Petaja’s suggestion, on remand the ALJ is to order 9 that Plaintiff participate in a Wechsler Adult Intelligence Scale test (or other
10 cognitive intelligence test). The ALJ shall then reevaluate each of the medical 11 opinions, consider any additional evidence presented, and make findings at each of 12 the five steps of the sequential evaluation process.” AR 589 (citing AR 375).
13 On November 10, 2021, Plaintiff appeared for a second hearing, again 14 represented by Mr. Hatfield, before ALJ Marie Palachuk. AR 1393. All parties 15 appeared telephonically, with Plaintiff’s consent, due to the novel coronavirus 16 (COVID-19) pandemic. AR 490. Plaintiff and vocational expert Patricia Ayerza
17 testified in response to questions from ALJ Palachuk and counsel. AR 519–35. ALJ 18 Palachuk asked Plaintiff to limit her testimony to her condition and any treatment 19 that she received or any work that she had done since the prior hearing. AR 518. In
20 addition, the record before ALJ Palachuk was supplemented with, among other 21 1 records, a consultative psychological examination report from Linda Lindman, PhD, 2 including Wechsler Adult Intelligence Scale testing. AR 817–22.
3 Plaintiff testified that since 2018, she had worked in security for Universal 4 Protection Service (“UPS”) full time for four to five months; as a part-time car 5 washer for Jiffy Car Wash for six to eight months; and as a housekeeper for
6 approximately one month. AR 519–24. Plaintiff stated that she did not perform the 7 jobs quickly enough, required periodic retraining, and/or sought frequent assistance 8 from coworkers. AR 519–21. Plaintiff also stated that she became overwhelmed at 9 work and “would have to wait” until she had a lunch break. AR 522. Plaintiff
10 testified that she had received additional mental health treatment in the two years 11 prior to the second hearing and learned techniques to calm herself down in 12 approximately fifteen minutes. AR 522–23.
13 Plaintiff, who was 24 years old at the time of the hearing, recounted that she is 14 raising her two elementary school-aged children on her own. AR 525–26. When 15 she becomes upset or overwhelmed at home, she retreats to a separate room from her 16 children until she can calm down and return to them. AR 525–26. Plaintiff’s
17 mother also cares for her children at times to offer Plaintiff a break. AR 525–26. 18 ALJ’s Decision on Remand 19 On December 15, 2021, ALJ Palachuk issued an unfavorable decision. AR
20 490–505. Applying the five-step evaluation process, ALJ Palachuk found: 21 1 Step one: Plaintiff meets the insured status requirements of the Act through 2 September 30, 2023. AR 493. Plaintiff has engaged in substantial gainful activity
3 since April 4, 2015, the alleged onset date. AR 493. The ALJ found that Plaintiff 4 has engaged in “extensive work after the alleged disability onset date.” AR 493. 5 The ALJ further found that Plaintiff’s “constant ongoing work” has been “near
6 substantial activity levels” for approximately thirteen quarters of the relevant period 7 and has exceeded substantial gainful activity level in the first quarter of 2020. AR 8 493. 9 Step two: Plaintiff has the following severe impairments that are medically
10 determinable and significantly limit her ability to perform basic work activities: 11 specific learning disorder, unspecified anxiety disorder, and adjustment disorder 12 with depressed mood, pursuant to 20 C.F.R. §§ 404.1520(c) and 416.920(c). AR
13 493. 14 Step three: The ALJ concluded that Plaintiff does not have an impairment, or 15 combination of impairments, that meets or medically equals the severity of one of 16 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
17 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). AR 494. In 18 reaching this conclusion, the ALJ considered whether Plaintiff’s impairments satisfy 19 the “paragraph A” and/or “paragraph B” criteria in the disability regulations for
20 evaluating mental disorders and in the Listing of Impairments (20 C.F.R., Part 404, 21 1 Subpart P, Appendix 1). AR 494. The ALJ found that Plaintiff is moderately 2 limited in understanding, remembering, or applying information and in
3 concentrating, persisting, or maintaining pace. AR 495. The ALJ found that 4 Plaintiff is mildly impaired in interacting with others and in her ability to adapt or 5 manage herself. AR 494−95.
6 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff has 7 the RFC to perform a full range of work at all exertional levels but with the 8 following nonexertional limitations: she is able to understand, remember, and carry 9 out simple, routine, repetitive tasks and instructions; she is able to maintain
10 concentration, persistence, and pace on simple routine tasks for the 2-hour intervals 11 between regularly scheduled breaks; and she should have no contact with the public, 12 to accommodate her symptoms related to speech. AR 495−96.
13 In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s statements 14 concerning the intensity, persistence, and limiting effects of her alleged symptoms 15 “are inconsistent because the objective medical evidence does not support the level 16 of impairment claimed.” AR 497. The ALJ added: “The claimant is alleging a
17 complete inability to work, but her activities and the medical reports overall do not 18 indicate that is the case. Additionally, the evidence from claimant’s employers does 19 not support the level of special assistance claimant alleges she needed/received.”
20 21 1 AR 497. The ALJ proceeded to review Plaintiff’s medical and other records and 2 evaluate whether those materials support Plaintiff’s statements. AR 497−504.
3 Step four: The ALJ found that Plaintiff has no past relevant work. AR 504. 4 Step five: The ALJ found that Plaintiff has a limited education; was 18 years 5 old, which is defined as a younger individual (age 18-49), on the alleged disability
6 onset date; and that transferability of job skills is not material to the determination of 7 disability because Plaintiff does not have past relevant work. AR 504 (citing 20 8 C.F.R. §§ 404.1568, 404.1569, 404.1569a, 416.968, 416.969, and 416.969a). The 9 ALJ found that given Plaintiff’s age, education, work experience, and RFC, Plaintiff
10 can make a successful adjustment to other work that exists in significant numbers in 11 the national economy. AR 505. Specifically, the ALJ recounted that the VE 12 identified the following representative occupations that Plaintiff would be able to
13 perform with the RFC: machine packager (medium, unskilled work, with around 14 85,000 jobs nationally); hand packager (medium, unskilled work, with around 15 77,000 jobs nationally); and hotel/motel housekeeper (light, unskilled work with 16 around 193,000 jobs nationally). AR 504. The ALJ concluded that Plaintiff had not
17 been disabled within the meaning of the Act at any time from April 4, 2015, through 18 the date of the ALJ’s decision. AR 505. 19 / / /
20 / / / 21 1 LEGAL STANDARD 2 Standard of Review
3 Congress has provided a limited scope of judicial review of the 4 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 5 Commissioner’s denial of benefits only if the ALJ’s determination was based on
6 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 7 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s] 8 determination that a claimant is not disabled will be upheld if the findings of fact are 9 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.
10 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 11 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 12 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir.
13 1989). Substantial evidence “means such evidence as a reasonable mind might 14 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 15 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the 16 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark
17 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the 18 record, not just the evidence supporting the decisions of the Commissioner. 19 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989).
20 21 1 A decision supported by substantial evidence still will be set aside if the 2 proper legal standards were not applied in weighing the evidence and making a
3 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 4 1988). Thus, if there is substantial evidence to support the administrative findings, 5 or if there is conflicting evidence that will support a finding of either disability or
6 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 7 812 F.2d 1226, 1229–30 (9th Cir. 1987). 8 Definition of Disability 9 The Social Security Act defines “disability” as the “inability to engage in any
10 substantial gainful activity by reason of any medically determinable physical or 11 mental impairment which can be expected to result in death or which has lasted or 12 can be expected to last for a continuous period of not less than 12 months.” 42
13 U.S.C. §§ 423(d)(1)(A). The Act also provides that a claimant shall be determined 14 to be under a disability only if her impairments are of such severity that the claimant 15 is not only unable to do her previous work, but cannot, considering the claimant’s 16 age, education, and work experiences, engage in any other substantial gainful work
17 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A). Thus, the 18 definition of disability consists of both medical and vocational components. Edlund 19 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
20 / / / 21 1 Sequential Evaluation Process 2 The Commissioner has established a five-step sequential evaluation process
3 for determining whether a claimant is disabled. 20 C.F.R. §§ 416.920, 404.1520. 4 Step one determines if he is engaged in substantial gainful activities. If the claimant 5 is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§
6 416.920(a)(4)(i), 404.1520(a)(4)(i). 7 If the claimant is not engaged in substantial gainful activities, the decision 8 maker proceeds to step two and determines whether the claimant has a medically 9 severe impairment or combination of impairments. 20 C.F.R. §§ 416.920(a)(4)(ii),
10 404.1520(a)(4)(ii). If the claimant does not have a severe impairment or 11 combination of impairments, the disability claim is denied. 12 If the impairment is severe, the evaluation proceeds to the third step, which
13 compares the claimant’s impairment with listed impairments acknowledged by the 14 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §§ 15 416.920(a)(4)(iii), 404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If 16 the impairment meets or equals one of the listed impairments, the claimant is
17 conclusively presumed to be disabled. 18 If the impairment is not one conclusively presumed to be disabling, the 19 evaluation proceeds to the fourth step, which determines whether the impairment
20 prevents the claimant from performing work that he has performed in the past. If the 21 1 claimant can perform her previous work, the claimant is not disabled. 20 C.F.R. §§ 2 416.920(a)(4)(iv), 404.1520(a)(4)(iv). At this step, the claimant’s RFC assessment
3 is considered. 4 If the claimant cannot perform this work, the fifth and final step in the process 5 determines whether the claimant is able to perform other work in the national
6 economy considering her residual functional capacity and age, education, and past 7 work experience. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v); Bowen v. 8 Yuckert, 482 U.S. 137, 142 (1987). 9 The initial burden of proof rests upon the claimant to establish a prima facie
10 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 11 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 12 is met once the claimant establishes that a physical or mental impairment prevents
13 her from engaging in her previous occupation. Meanel, 172 F.3d at 1113. The 14 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 15 can perform other substantial gainful activity, and (2) a “significant number of jobs 16 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722
17 F.2d 1496, 1498 (9th Cir. 1984). 18 / / / 19 / / /
20 / / 21 1 ISSUES ON APPEAL 2 The parties’ motions raise the following issues regarding the ALJ’s decision:
3 1. Did the ALJ erroneously determine that Plaintiff engaged in substantial gainful activity since the alleged onset date? 4 2. Did the ALJ erroneously evaluate the medical source opinions in the 5 record? 6 3. Did the ALJ erroneously assess Plaintiff’s subjective symptom complaints? 7 4. Did the ALJ conduct an adequate analysis at step five? 8
Substantial Gainful Activity (“SGA”) 9 Plaintiff maintains that the updated record shows that Plaintiff has never 10 earned an amount that would constitute SGA in any calendar year. ECF No. 11 at 11 10. Plaintiff continues that in the only quarter during which her earnings exceeded 12 SGA, the first quarter of 2020, her work at UPS was characterized by mistakes, 13 slowness, and repeated training, as evidenced by Plaintiff’s testimony. Id. (citing 14 AR 718). In addition, Plaintiff argues that her past work should be classified as an 15 unsuccessful work attempt because her work was accommodated with special 16 conditions and the limitations resulting from her impairments prevented her from 17 successfully completing her job duties and led to her firing after a period of fewer 18 than six months. ECF No. 13 at 2 (citing 20 C.F.R. § 404.1574(c)(3)). 19 20 21 1 The Commissioner responds that Plaintiff does not show how the record has 2 been “updated” in any way that makes the reports cited by the ALJ unreliable. ECF
3 No. 12 at 5. The Commissioner adds that at the prior administrative hearing, 4 Plaintiff’s counsel admitted that “‘the first quarter of 2018 did get over SGA.’” Id. 5 (quoting the Nov. 15, 2018 hearing transcript at AR 47).
6 Under the regulations, the ALJ may find a claimant not disabled if there is 7 evidence of the Plaintiff having engaged in substantial gainful activity after the 8 alleged onset date. 20 C.F.R. §§ 404.1571, 416.971 (“If you are able to engage in 9 substantial gainful activity, we will find that you are not disabled.”); see also id. §§
10 404.1520(b), 416.920(b) (“If you are working and the work you are doing is 11 substantial gainful activity, we will find that you are not disabled regardless of your 12 medical condition or your age, education, and work experience.”). However, the
13 Social Security Administration does not consider “unsuccessful work attempts” to be 14 substantial gainful activity. See 20 C.F.R. §§ 404.1574(c)(1), 416.974(c)(1). To be 15 an unsuccessful work attempt, a claimant must have discontinued work for a 16 “significant period” of thirty or more consecutive days before attempting to work.
17 The work attempt must then have been for six months or less, and the claimant must 18 have stopped working, or reduced her work and earnings below SGA level, because 19 of her impairment or because of the removal of special conditions that took into
20 account her impairment and permitted her to work. 20 C.F.R. §§ 404.1574(c)(2)– 21 1 (4), 416.974(c)(2)–(4). Plaintiff bears the burden of establishing that her prior work 2 qualifies as an unsuccessful work attempt. See Argueta v. Colvin, No. 1:15-cv-
3 01110-SKO, 2016 U.S. Dist. LEXIS 102007, at *26 (E.D. Cal. Aug. 2, 2016). 4 The unsuccessful work attempt analysis takes into account the length of time a 5 claimant was employed in a particular job. See 20 C.F.R. §§ 404.1574(c)(3)–(5),
6 416.974(c)(3)–(5); SSR 05-02, 2005 SSR LEXIS 2, *1, 2005 WL 6491604, at *2-3. 7 However, Plaintiff has not cited the Court to anything definitive showing that she 8 held her UPS job for fewer than six months. See ECF Nos. 11 at 10; 13 at 2; see 9 also AR 519 (Plaintiff’s testimony that she worked at UPS for “at least four or five
10 months”); 718 (earnings records referencing employment at UPS over two quarters 11 in 2020). Plaintiff also does not discuss whether she had a qualifying discontinuance 12 of work before her alleged work attempt. See ECF Nos. 11 and 13. When the
13 evidence is susceptible to more than one interpretation, the ALJ’s interpretation must 14 be upheld if rational. 15 Even if Plaintiff had made an adequate showing that any of her work at an 16 SGA level was an unsuccessful work attempt, the ALJ proceeded to analyze the
17 remaining steps of the disability analysis and found that Plaintiff had no past 18 relevant work. AR 504. The ALJ found that Plaintiff was not under a disability 19 during the relevant period only upon finding that Plaintiff could make a successful
20 adjustment to other work that exists in the national economy. AR 505. This Court 21 1 “may not reverse an ALJ's decision on account of an error that is harmless.” 2 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). The Court finds no
3 reversible error in the ALJ’s finding that Plaintiff engaged in substantial gainful 4 activity since her alleged onset date of April 4, 2015. 5 Medical Opinion Testimony
6 Plaintiff alleges that the ALJ erred in her treatment of two medical source 7 opinions, examining psychologist Kris Marks, PhD, and Washington State 8 Department of Social and Health Services psychologist Holly Petaja, PhD. ECF No. 9 11 at 11. The Commissioner responds that the ALJ’s evaluation of both opinions
10 was reasonable and supported by substantial evidence. ECF No. 12 at 18. 11 Plaintiff applied for SSI on approximately June 28, 2016. AR 169. Revisions 12 to rules guiding the evaluation of medical evidence that took effect on March 27,
13 2017, do not apply to claims filed before March 27, 2017, and the “treating 14 physician rule” under the previous regulations instead applies. See 20 C.F.R. § 15 416.927. 16 Under the treating physician rule, “the weight afforded to a medical opinion
17 depends upon the source of that opinion. A treating physician's opinion, for 18 example, is entitled to greater weight than the opinions of nontreating physicians.” 19 Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020). An ALJ must consider the
20 acceptable medical source opinions of record and assign weight to each. 20 C.F.R. 21 1 §§ 404.1527(c), 416.927(c). This responsibility often involves resolving conflicts 2 and ambiguities in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722
3 (9th Cir. 1998). To reject the contradicted opinion of a treating or examining 4 physician, the ALJ must provide specific and legitimate reasons for doing so. 5 Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). “An ALJ can satisfy the
6 substantial evidence requirement by setting out a detailed and thorough summary 7 of the facts and conflicting clinical evidence, stating his interpretation thereof, and 8 making findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing 9 Reddick, 157 F.3d at 725).
10 An ALJ may discount an otherwise valid medical source opinion as overly 11 conclusory, poorly supported by or inconsistent with the objective medical record, 12 or inordinately reliant on a claimant’s self-reported symptoms, provided the ALJ
13 provides clear and convincing reasons to discredit the symptom allegations. See, 14 e.g., Coleman v. Saul, 979 F.3d 751, 757–58 (9th Cir. 2020). 15 Dr. Marks 16 Plaintiff asserts that the ALJ provided erroneous reasons in rejecting Dr.
17 Marks’s 2015 opinion regarding Plaintiff’s limitations. ECF No. 11 at 12. 18 Plaintiff argues that contrary to the ALJ’s reasoning that Plaintiff was able to get a 19 job after Dr. Marks’s disabling opinion, Plaintiff obtained only part-time
20 accommodated employment that ended due to limitations emanating from 21 1 Plaintiff’s severe impairments. Id. at 12. Plaintiff continues that, although the ALJ 2 reasoned that the 2021 updated psychological testing was inconsistent with Dr.
3 Marks’s opinion, “the testing from 2021 actually shows the following: (1) verbal 4 comprehension score of 66, for an extremely low score in the 1st percentile; (2) 5 perceptual reasoning of 67 for an extremely low score in the 1st percentile; (3)
6 working memory score of 69, for an extremely low score in 2nd percentile; and (4) 7 full scale IQ score of 67, for an extremely low score in the 1st percentile.” AR 8 821. Plaintiff further argues that the prior ALJ opinion discussed clinical testing 9 from 2014 that tended to support the limitations that Dr. Marks assessed, and Dr.
10 Marks’s own clinical interview and mental status examination of the claimant. Id. 11 at 13–14 (citing AR 22–23, 322, 324, 382, 384, and 821). Lastly, Plaintiff argues 12 that while the ALJ cited normal findings in the record regarding Plaintiff’s
13 presentation at appointments with no visible anxiety, those records are from 14 pregnancy-related medical visits and records associated with physical complaints. 15 Id. at 15. Plaintiff maintains that other documents in the record show that Plaintiff 16 presented with symptoms of depression and anxiety. Id. at 15 (citing mental health
17 treatment records on AR 352–55, 389–92, 399, and 408). 18 The Commissioner responds that the ALJ reasonably found that the grounds 19 provided by the ALJ, taken in combination, support giving Dr. Marks’s opinion
20 little weight. ECF No. 12 at 17. The ALJ relied on substantial evidence in the 21 1 record in concluding that Plaintiff was only eighteen years old when Dr. Marks 2 opined that her symptoms would make it difficult to find a job, and the record
3 supports that Plaintiff subsequently engaged in, as the ALJ characterized it, 4 “ongoing consistent work (whether part-time or otherwise) for 5 years (2017- 5 2021).” Id. at 17 (citing AR 502). The Commissioner also maintains that Dr.
6 Marks’s opinion is inconsistent with objective medical evidence, including the 7 opinion of consultative examining psychologist Dr. Lindman, that Plaintiff’s 8 limitations are only “mild” and that Plaintiff is “capable of simple work.” Id. The 9 Commissioner argues that the inconsistency of Dr. Marks’s opinion with Dr.
10 Lindman’s findings was a reasonable reason to assign Dr. Marks’s opinion less 11 weight. Id. at 18 (citing AR 495, 501–02). The Commissioner further argues that 12 Plaintiff’s presentation at numerous physical examinations without anxiety-related
13 symptoms and mood, affect, and behavior within normal limits is evidence that 14 supports the ALJ’s findings. Id. (citing AR 408, 417, 424, 444, 451, 454, 457, 462, 15 467, 482, and 502–03). 16 On June 25, 2015, Dr. Marks completed a mental status examination and
17 psychological evaluation of Plaintiff. AR 319–24, 379–84. Dr. Marks noted 18 findings within normal limits on all of the following categories of the mental status 19 exam: thought process and content; orientation; perception; concentration; and
20 insight and judgment. AR 324. Dr. Marks noted deficits in Plaintiff’s memory, 21 1 fund of knowledge, and abstract thought. AR 324. Dr. Marks observed that 2 Plaintiff displayed a “slight speech impediment[,]” but presented with a
3 “cooperative, generally friendly and calm” attitude, a “neutral, friendly” mood, and 4 a “consistent” affect. AR 323. In addition to interviewing Plaintiff, Dr. Marks 5 reviewed Plaintiff’s 2015 Social Security Disability Request for Reconsideration
6 and documents describing the Individualized Education Programs that were 7 formulated for Plaintiff by the public school district through ninth grade. AR 319. 8 Dr. Marks opined that Plaintiff’s ability to work would be affected by her learning 9 disability, anxiety, and speech difficulties. AR 322. Dr. Marks specified that
10 Plaintiff’s “well documented” learning disability consists of difficulty 11 understanding what she hears and expressing herself, as well as “weak skills in 12 reading, math and written language,” all of which will result in Plaintiff needing “a
13 fair amount of accommodation on any job, if she was hired.” AR 322. Dr. Marks 14 further opined that testing placed Plaintiff in the moderately anxious range and that 15 Plaintiff’s “overall mild speech difficulties” would nevertheless contribute to 16 Plaintiff’s difficulty in maintaining “a job in which enunciation or clarity of speech
17 was a necessity.” AR 322. Dr. Marks assessed mild limitations in three areas of 18 functioning, moderate limitations in four areas, and marked limitations in six areas. 19 AR 322–23.
20 21 1 ALJ Palachuk assigned little weight to the opinion of Dr. Marks based on 2 several grounds. AR 502. First, the ALJ found that Plaintiff’s “ongoing consistent
3 work (whether part-time or otherwise)” from 2017 through 2021 is inconsistent 4 with the degree of limitation to which Dr. Marks opined, and, moreover, Dr. 5 Marks’s finding that Plaintiff cannot recall complex instructions is not inconsistent
6 with the RFC limiting Plaintiff to simple, routine tasks. AR 502. The Court finds 7 that substantial evidence in the record supports the ALJ’s reasoning that Plaintiff’s 8 employment history following Dr. Marks’s report undermines the marked 9 limitations she assessed. See AR 739–41 (earnings records).
10 Second, the ALJ reasoned that Dr. Marks’s assessment of Plaintiff’s 11 limitations is inconsistent with Dr. Lindman’s post-remand consultative 12 examination concluding that Plaintiff is capable of simple work and has no more
13 than mild limitations. AR 502. Indeed, while Dr. Lindman’s testing found 14 Plaintiff to have an “extremely low” intellectual ability, without a likelihood of 15 improvement, Dr. Lindman drew from that testing a conclusion that Plaintiff is 16 “capable of low-level employment which does not require complex tasks or
17 decision-making.” AR 822. This opinion is inconsistent with the disabling 18 opinion of Dr. Marks and provides support for the ALJ’s interpretation that Dr. 19 Marks’s opinion is entitled to little weight. While the Court is required to examine
20 the record as a whole, it may neither reweigh the evidence nor substitute its 21 1 judgment for that of the ALJ. Thomas v. Barnhart, 278 F.3d 947, 954, 957 (9th 2 Cir. 2002).
3 Third, the ALJ cited to Plaintiff’s longitudinal treatment record indicating 4 that Plaintiff presented at appointments for physical complaints without exhibiting 5 anxiety-related symptoms and with mood, affect, and behavior within normal
6 limits. AR 502. Numerous records support the ALJ’s finding. See AR 408, 417, 7 424, 444, 451, 454, 457, 462, 467, 482, and 502–03. The Court will not reweigh 8 the evidence by determining, as Plaintiff requests, that Plaintiff’s presentation with 9 depression- and anxiety-related symptoms at other appointments in 2016 and 2018
10 offsets the inferences that may be drawn from the records cited by the ALJ. 11 Taken cumulatively, ALJ Palachuk provided clear and convincing reasons to 12 discount Dr. Marks’s 2015 medical source opinion.
13 Dr. Petaja 14 On July 14, 2015, Dr. Petaja, who was contracted by DSHS to review Dr. 15 Marks’s report and the evidence on which it was based, partially concurred with 16 Dr. Marks’s assessment. AR 375–76. Dr. Petaja wrote:
17 Psychological evaluation by Dr. Kris Marks 6/25/2015 diagnosing Specific Learning Disorders in mathematics, reading, and written 18 expression. This is based on records from the school district regarding special education services. IQ testing was only completed in 2003 and 19 yielded an FSIQ of 8l. Diagnosis of Specific Learning Disorders typically requires a discrepancy between academic and IQ scores, 20 which is difficult to achieve with a low average IQ. It is likely that this individual is experiencing difficulty in several academic areas due to 21 1 deficits in cognitive functioning. Testing with the WAIS is recommended. Diagnosis of Unspecified Anxiety Disorder is supported 2 by the medical evidence.
3 ECF No. 9-1 at 375.
4 The ALJ gave little weight to Dr. Petaja’s opinion based on its 5 contradictions with Dr. Lindman’s opinion and because Dr. Petaja did not 6 review anything but “the one-time, brief snapshot in time captured in Dr. 7 Marks’s report.” AR 503. The Court already found that ALJ Palachuk 8 provided clear and convincing reasons for discounting Dr. Marks’s opinion, 9 and the same conclusion applies to Dr. Petaja’s accompanying opinion. 10 The Court concludes that the ALJ did not err in her treatment of either 11 contested medical source opinion, and denies Plaintiff’s Motion for Summary 12 Judgment, and grants summary judgment to the Commissioner, on this ground.
13 Subjective Symptom Testimony 14 Plaintiff argues that the ALJ failed to provide clear and convincing reasons for 15 making a negative credibility finding. ECF No. 11 17–18. Specifically, Plaintiff 16 contends, the ALJ erred when she discounted Plaintiff’s testimony at the 2021
17 hearing based on: (1) waxing and waning symptoms; (2) inconsistency with the 18 clinical findings; (3) inconsistency with Plaintiff’s activities of daily living; and (4) 19 Plaintiff’s work history. ECF No. 11 at 18. Plaintiff maintains that objective testing
20 and mental examinations support Plaintiff’s testimony that her learning disability 21 1 and delays in reading, math, written expression, auditory comprehension, and 2 expressive communication, as well as psychological symptoms of anxiety and
3 depression, are disabling. Id. at 18–19. Plaintiff further argues that the ALJ may not 4 penalize her or deny benefits “due to the simple fact that she is a mother” when “she 5 testified to the need for breaks and the need for her father to watch her children due
6 to her mental health symptoms.” ECF No. 13 at 11 (citing AR 60, 64–65, 525–26). 7 Moreover, Plaintiff argues, Plaintiff’s “attempts to work despite her impairments 8 shall not be held against her, as she was unable to continue working due to 9 functional deficits associated with symptoms from her learning disorders, borderline
10 intellectual functioning, and anxiety[.]” ECF No. 13 at 10 (citing Lingenfelter v. 11 Astrue, 504 F.3d 1028, 1038–39 (9th Cir. 2007)). 12 The Commissioner responds that substantial evidence supports the ALJ’s
13 evaluation of Plaintiff’s complaints. ECF No. 12 at 8. The Commissioner asserts 14 that the severity of Plaintiff’s subjective complaints was inconsistent with her 15 extensive work activity, including at multiple part-time jobs simultaneously, during 16 the relevant period. Id. at 9 (citing AR 493, 760–61). The Commissioner also
17 maintains that the ALJ’s reasoning was sound in finding that Plaintiff’s receipt of 18 unemployment benefits is inconsistent with her alleged disability, as she was 19 required to verify weekly that she was seeking employment and was physically able
20 and available to work each day. Id. at 10 (citing AR 493). The Commissioner also 21 1 argues that Plaintiff’s “robust” daily activities of caring for her young children, 2 doing her own laundry, shopping, cooking, and self-care, as well as evidence
3 indicating that Plaintiff declined medications, did not follow through with 4 recommended speech therapy, and brief engagement with counseling, all support the 5 ALJ’s conclusions. Id. at 13–14.
6 In deciding whether to accept a claimant’s subjective pain or symptom 7 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 8 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has 9 presented objective medical evidence of an underlying impairment ‘which could
10 reasonably be expected to produce the pain or other symptoms alleged.’” 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 12 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is met and there
13 is no evidence of malingering, “the ALJ can reject the claimant’s testimony about 14 the severity of her symptoms only by offering specific, clear and convincing reasons 15 for doing so.” Smolen, 80 F.3d at 1281. 16 Plaintiff argues that the medical record supports the degree of impairment that
17 Plaintiff alleges results from her learning delays and psychological symptoms but 18 cites the Court to nothing. See ECF Nos. 11 at 18–19; 13 at 10–11. In contrast, the 19 ALJ cited to materials in the record to support her conclusions. AR 499. Employers
20 did not substantiate Plaintiff’s allegations that she received special assistance to 21 1 complete her work. AR 499; 742–53. Plaintiff asserts that she has difficulty 2 following instruction but was able to follow simple directives and could concentrate
3 during the psychological consultative exam. AR 377, 499. The record indicates 4 limited treatment given the severity of impairment alleged and minimal engagement 5 even with prescribed treatment. For instance, Plaintiff did not show up to some of
6 her therapy appointments. AR 385−86. Furthermore, Plaintiff manages an 7 admirable scope of daily activities that includes independently caring for herself 8 with, as Plaintiff herself testified, occasional assistance from her mother. AR 526. 9 The Court finds that the ALJ cited substantial evidence in noting that
10 Plaintiff’s daily activities are compatible with the RFC that the ALJ formulated, and 11 inconsistent with Plaintiff’s complaints. Accordingly, the Court denies summary 12 judgment to Plaintiff, and grants summary judgment to the Commissioner, on this
13 ground. 14 Step Five 15 Plaintiff contends the ALJ erred at step five because “[w]hen presented with 16 more complete hypotheticals containing the improperly rejected limitations—
17 specifically, the need for reminders, reinstruction, and retraining past the 18 probationary period, or 20% less productive than the average worker—the 19 vocational expert (VE) testified that such limitation would preclude competitive
20 employment.” ECF No. 13 at 11 (citing AR 533–34). The ALJ’s hypothetical must 21 1 be based on medical assumptions supported by substantial evidence in the record 2 that reflect all of a claimant’s limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1165
3 (9th Cir. 2001). The ALJ is not bound to accept as true the restrictions presented in 4 a hypothetical question propounded by a claimant's counsel. Osenbrock, 240 F.3d at 5 1164. The ALJ may accept or reject these restrictions if they are supported by
6 substantial evidence, even when there is conflicting medical evidence. Magallanes 7 v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). 8 Plaintiff's argument assumes that the ALJ erred in considering medical 9 opinion evidence and Plaintiff’s subjective symptom testimony. As discussed
10 above, the ALJ’s assessment of the medical source opinions and Plaintiff’s 11 testimony was appropriate. Therefore, the RFC and hypothetical contained the 12 limitations that the ALJ found credible and supported by substantial evidence in the
13 record. The ALJ’s reliance on testimony the VE gave in response to the 14 hypothetical was proper. See Bayliss v. Barnhart, 427 F.3d 1211, 1217–18 (9th Cir. 15 2005). The Court denies Plaintiff's Motion for Summary Judgment on this final 16 ground.
17 / / / 18 / / / 19 / / /
20 / / / 21 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, this Court concludes that
3 the ALJ’s decision is supported by substantial evidence and free of harmful legal 4 error. Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED.
6 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is 7 GRANTED. 8 4. Judgment shall be entered for Defendant. 9 IT IS SO ORDERED. The District Court Clerk is directed to enter this
10 Order, enter judgment as directed, provide copies to counsel, and close the file in 11 this case. 12 DATED November 30, 2022.
13 s/ Rosanna Malouf Peterson 14 ROSANNA MALOUF PETERSON Senior United States District Judge 15 16 17 18 19 20 21