Wright v. Commissioner of Social Security

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 RACHEL W., 9 Plaintiff, Case No. C19-1636-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her application for Supplemental Security Income. 15 Plaintiff contends the administrative law judge (“ALJ”) erred in discounting certain medical 16 opinions and the statements of her partner, Kevin McGuin. (Dkt. # 10 at 1.) As discussed below, 17 the Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with prejudice. 18 II. BACKGROUND 19 Plaintiff was born in 1987, has a college degree, and has worked as a retail cashier and 20 math tutor. AR at 379-80. Plaintiff was last gainfully employed in November 2011. Id. at 380. In 21 March 2016, Plaintiff applied for benefits, alleging disability as of January 1, 2011.1 AR at 273- 22 23

1 Plaintiff subsequently amended her alleged onset date to March 21, 2016. AR at 40. 1 94. Plaintiff’s application was denied initially and on reconsideration, and Plaintiff requested a 2 hearing. Id. at 182-90, 194-204. After the ALJ conducted a hearing in May 2018 (id. at 38-78), 3 the ALJ issued a decision finding Plaintiff not disabled. Id. at 17-32. 4 Utilizing the five-step disability evaluation process,2 the ALJ found:

5 Step one: Plaintiff has not engaged in substantial gainful activity since the application date. 6 Step two: Plaintiff’s degenerative disc disease, scoliosis, fibromyalgia, obesity, affective 7 disorder, anxiety disorder, and personality disorder are severe impairments.

8 Step three: These impairments do not meet or equal the requirements of a listed impairment.3 9 Residual Functional Capacity (“RFC”): Plaintiff can lift/carry 20 pounds occasionally 10 and 10 pounds frequently. She can sit, stand, and walk for six hours each in an eight-hour workday. She can occasionally climb ladders, ropes, and scaffolds, and perform all other 11 postural activities frequently. She must avoid concentrated exposure to vibrations and hazards such as heights and dangerous moving machinery. She can perform simple, 12 routine tasks in two-hour increments throughout an eight-hour workday with the usual and customary breaks. She can interact occasionally with supervisors, and can interact 13 occasionally and superficially with the general public (with “superficial” defined to mean that contact with the general public is not an essential element of the task, and incidental 14 contact is not precluded). She can work in the same room with her co-workers, but there should be no coordination of work activity. She can adapt to simple workplace changes, 15 as may be required for simple, routine task work.

16 Step four: Plaintiff cannot perform past relevant work.

17 Step five: As there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, Plaintiff is not disabled. 18 AR at 17-31. 19 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 20 Commissioner’s final decision. AR at 1-7. Plaintiff appealed the final decision of the 21 Commissioner to this Court. 22 23 2 20 C.F.R. § 416.920. 3 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 III. LEGAL STANDARDS 2 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 3 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 4 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 5 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the

6 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 7 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 8 alters the outcome of the case.” Id. 9 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 10 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 11 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 12 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 13 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may

15 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 16 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 17 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 18 IV. DISCUSSION 19 A. The ALJ Did Not Err in Discounting Medical Opinion Evidence 20 Plaintiff challenges the ALJ’s assessment of numerous medical opinions. A contradicted 21 treating or examining physician’s opinion may be discounted for specific, legitimate reasons. See 22 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). The Court will address each disputed opinion 23 in turn. 1 1. Mental opinions: Margaret Cunningham, Ph.D.; Luci Carstens, Ph.D.; and Pietro Poletti, M.D.4 2 Dr. Cunningham examined Plaintff in September 2015 and wrote a narrative report 3 describing her psychological symptoms and limitations. AR at 842-54. Dr. Carstens examined 4 Plaintiff in November 2015 and wrote a narrative report describing her psychological symptoms 5 and limitations. Id. at 858-66. Dr. Carstens examined Plaintiff again in October 2017 and 6 completed a DSHS form opinion describing her symptoms and limitations. Id. at 1638-49. Dr. 7 Poletti, Plaintiff’s treating psychiatrist, completed form opinions in August 2016 and May 2018 8 describing Plaintiff’s mental symptoms and limitations. Id. at 1425-27, 1966-70. 9 The ALJ summarized all of these opinions, and explained that she discounted them 10 because inter alia these opinions were inconsistent with Plaintiff’s “normal and near-normal 11 examination findings” and the evidence of improvement with treatment, as well as with 12 Plaintiff’s activities, namely her ability to drive, shop, complete household chores, cook, 13 advocate for herself, manage her finances, complete self-care, move residences, attend 14 neighborhood potlucks on a monthly basis, and interact in public. AR at 23, 27-28. 15 The Court finds that the ALJ’s findings of inconsistency between the opinions and the 16 objective medical findings and activities are specific, legitimate reasons to discount the opinions. 17 The ALJ cited many normal mental status examination findings, which contradict the cognitive 18 limitations described by Drs. Cunningham, Carstens, and Poletti. AR at 26 (citing id. at 847-48, 19 850, 859, 1478, 1642, 1644, 1756, 1789). Plaintiff contends that the ALJ cherry-picked these 20 normal findings out of a record containing many abnormal findings, but she points to findings 21

22 4 The ALJ addressed each provider’s opinions separately, but cited some of the reasons to discount all of the opinions. See AR at 23, 27-28. Because the Court finds that the repeated reasons discussed here are 23 specific and legitimate, the Court need not address the additional and/or separate reasons, as any error as to those reasons would be harmless. See Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 1 that do not necessarily contradict the evidence cited by the ALJ. (Dkt. # 10 at 6-7 (citing AR at 2 847-48, 858-61, 1642-44).) Moreover, the ALJ did not dispute that the record established that 3 Plaintiff had significant mental limitations, and reasonably focused on the many normal findings 4 during the adjudicated period as well as as the lack of hallucinations during examinations dating 5 to that period. AR at 25-26. Given that the ALJ acknowledged the existence of Plaintiff’s mental

6 symptoms and included many mental limitations in the RFC assessment, Plaintiff has not shown 7 that the ALJ impermissibly cherry-picked normal findings from the record. 8 The ALJ also cited evidence of Plaintiff’s improvement with treatment during the 9 adjudicated period, namely her reports of feeling less stressed with medication and more social. 10 AR at 26. Plaintiff acknowledges that she improved “somewhat,” but argues that she remained 11 significantly limited. (Dkt. # 10 at 8.) This argument does not show error in the ALJ’s decision, 12 however, because the ALJ’s RFC assessment contains many significant limitations. 13 Lastly, the ALJ found that the psychological opinions were inconsistent with Plaintiff’s 14 activities. AR at 26-28. Plaintiff argues that the ALJ did not acknowledge that she completed her

15 activities with difficulty and intermittently. (Dkt. # 10 at 8-9.) For example, Plaintiff notes that 16 she got headaches with watching television and reading (AR at 1639), but the ALJ did not cite 17 Plaintiff’s ability to watch television or read as inconsistent with her allegations. Plaintiff did 18 express some pain with certain activities, but yet also reported continuing to engage in those 19 activities, and the ALJ did not err in considering the activities that Plaintiff retained the ability to 20 complete. See, e.g., id. at 25 (discussing Plaintiff’s physical activities including driving, painting 21 her toenails, and lifting heavy items, despite her complaints of pain). Plaintiff has not shown that 22 the ALJ erred in finding that Plaintiff’s activities contradicted the limitations described in the 23 1 psychological opinions, such as severe problems with concentrating, completing tasks, adapting 2 to change in a routine environment, or making simple work-related decisions. 3 Because inconsistency with the record and a claimant’s activities are legitimate reasons to 4 discount medical opinions, and because substantial evidence in the record supports the ALJ’s 5 findings of inconsistency, the Court affirms the ALJ’s assessment of the psychological opinions.

6 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (inconsistency with the record 7 properly considered by ALJ in rejection of physician’s opinions); Rollins v. Massanari, 261 F.3d 8 853, 856 (9th Cir. 2001) (affirming an ALJ’s rejection of a treating physician’s opinion that was 9 inconsistent with the claimant’s level of activity). 10 2. Physical opinions: Johanna Wang, M.D. 11 Dr. Wang treated Plaintiff’s physical conditions throughout the adjudicated period and 12 completed a form opinion in January 2018 describing Plaintiff’s physical and mental diagnoses 13 and limitations. AR at 1650-52. Dr. Wang completed similar form opinions at other times as 14 well. Id. at 792-97, 1265-69, 1633-37.

15 The ALJ summarized Dr. Wang’s opinions and explained that she gave them little weight 16 because they were inconsistent with the largely normal examination findings as well as with 17 Plaintiff’s minimal use of a neck brace and lack of need for an assistive device; Plaintiff’s 18 improvement with medication; and Plaintiff’s physical activities, such as driving, cooking, 19 performing chores, managing her self-care, and engaging in heavy lifting on occasion. AR at 26- 20 27. Indeed, although Dr. Wang opined that inter alia Plaintiff’s mental conditions left her unable 21 to see, hear, or communicate (id. at 1634), and that her physical conditions left her unable to sit 22 for more than three hours total in a workday or lift more than 10 pounds (id. at 1650-51), such 23 limitations were inconsistent with the many normal objective findings as to inter alia gait and 1 strength, as well as inconsistent with Plaintiff’s ability to engage in activities such as driving, 2 lifting, and walking without assistance. The ALJ did not err in discounting Dr. Wang’s opinions 3 on these bases.5 See Tommasetti, 533 F.3d at 1041; Rollins, 261 F.3d at 856. 4 Plaintiff also points to a letter that Dr. Wang wrote in November 2018 regarding certain 5 urine drug tests Plaintiff underwent in 2016 and 2017. (See Dkt. # 10-1.) In that letter, which was

6 submitted to the Appeals Council, Dr. Wang wrote that those drug tests did not suggest that 7 Plaintif had a substance abuse problem. (Id.) Indeed, the ALJ herself concluded that any 8 substance abuse was not a severe impairment at step two, and the ALJ did not refer to Plaintiff’s 9 urine drug tests at any other point during the decision. AR at 20. Under these circumstances, 10 Plainitiff has not shown how Dr. Wang’s letter deprives the ALJ’s decision of the support of 11 substantial evidence or undermines it in any way, and thus has not shown that it provides a basis 12 for reversing the ALJ’s decision. See Brewes v. Comm’r of Social Sec. Admin., 682 F.3d 1157, 13 1163 (9th Cir. 2012) (“[W]hen the Appeals Council considers new evidence in deciding whether 14 to review a decision of the ALJ, that evidence becomes part of the administrative record, which

15 the district court must consider when reviewing the Commissioner's final decision for substantial 16 evidence.”). 17 B. The ALJ Did Not Harmfully Err in Discounting Mr. McGuin’s Statements

18 Mr. McGuin completed a narrative statement in 2013 and a third-party function report in 19 2016 describing Plaitniff’s symptoms and limitations. AR at 374-76, 395-402. The ALJ found 20 that Mr. McGuin’s statements were similar to Plaintiff’s own subjective statements, and that she 21 22 5 Even if the ALJ’s other reasons to discount Dr. Wang’s opinions are not legitimate, these reasons are 23 sufficient to support the ALJ’s assessment and therefore render any error harmless. See Carmickle, 533 F.3d at 1162-63. 1 discounted both of those in light of inconsistencies with the objective medical evidence.6 Id. at 2 29. 3 An ALJ’s reasons to discount a lay statement must be germane. See Dodrill v. Shalala, 12 4 F.3d 915, 919 (9th Cir. 1993) (“If the ALJ wishes to discount the testimony of the lay witnesses, 5 he must give reasons that are germane to each witness.”). Plaintiff argues that the ALJ did not

6 point to any objective evidence that contradicted Mr. McGuin’s statements, even though she 7 found that Mr. McGuin’s statements were “not entirely consistent” with the evidence. (Dkt. # 10 8 at 18.) Throughout the ALJ’s decision, however, the ALJ pointed to many findings that 9 contradict Mr. McGuin’s statements, such as evidence showing that Plaintiff had full strength 10 and normal gait, in contrast to Mr. McGuin’s statement that Plaintiff could lift no more than 11 three pounds and must walk very slowly. Compare AR at 400 with id. at 1407, 1770. The ALJ’s 12 decision cites substantial evidence that is inconsistent with Mr. McGuin’s statements, and thus 13 Plaintiff has not shown that the ALJ harmfully erred in discounting Mr. McGuin’s statements on 14 that basis. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One reason for which an ALJ

15 may discount lay testimony is that it conflicts with medical evidence.”). 16 // 17 // 18 // 19 // 20

6 The ALJ also listed other reasons to discount Mr. McGuin’s statements (AR at 29), and the 21 Commissioner does not defend those reasons. Even if those other reasons are erroneous, the ALJ linked her assessment of Mr. McGuin’s statements to her assessment of Plaintiff’s subjective testimony, which 22 Plaintiff does not challenge here, thus rendering harmless any error in the other reasons. See Valentine v. Comm’r of Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (because “the ALJ provided clear and 23 convincing reasons for rejecting [the claimant’s] own subjective complaints, and because [the lay witness’s] testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting [the lay witness’s] testimony”). 1 V. CONCLUSION 2 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 3 case is DISMISSED with prejudice. 4 Dated this 2nd day of June, 2020. 5 A 6 MICHELLE L. PETERSON United States Magistrate Judge 7

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