Barnett v. Colvin, No. 2:2013cv00191 - Document 22 (E.D. Wash. 2014)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - denying 17 Motion for Summary Judgment; and granting 19 Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (CC, Case Administrator)

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Barnett v. Colvin Doc. 22 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 SHARON E. BARNETT, NO: CV-13-0191-FVS Plaintiff, 8 9 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Defendant. 12 BEFORE THE COURT are the parties’ cross motions for summary 13 judgment. ECF Nos. 17 and 19. This matter was submitted for consideration 14 without oral argument. Plaintiff was represented by Dana C. Madsen. Defendant 15 was represented by Sarah L. Martin. The Court has reviewed the administrative 16 record and the parties’ completed briefing and is fully informed. For the reasons 17 discussed below, the court grants Defendant’s Motion for Summary Judgment and 18 denies Plaintiff’s Motion for Summary Judgment. 19 JURISDICTION 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 Dockets.Justia.com 1 Plaintiff Sharon E. Barnett protectively filed for supplemental security 2 income (“SSI”) on January 8, 2010. Tr. 199. Plaintiff initially alleged an onset date 3 of December 31, 1995 (Tr. 199), but later amended the onset date to January 8, 4 2010 (Tr. 37). Benefits were denied initially and upon reconsideration. Tr. 115- 5 118, 120-21. Plaintiff requested a hearing before an administrative law judge 6 (“ALJ”), which was held before ALJ R.J. Payne on June 21, 2011. Tr. 62-84. The 7 ALJ denied benefits (Tr. 88-105), but the Appeals Council remanded the case and 8 directed the ALJ to develop the record, and further evaluate Plaintiff’s subjective 9 complaints and RFC (Tr. 106-110). This hearing was held before ALJ R.J. Payne 10 on July 26, 2012. Tr. 35-61. Plaintiff was represented by counsel and testified at 11 the hearing. Tr. 46-60. Medical expert Dr. Donna Veraldi also testified. Tr. 38-45. 12 The ALJ denied benefits (Tr. 14-34) and the Appeals Council denied review (Tr. 13 1). The matter is now before this court pursuant to 42 U.S.C. § 405(g). 14 STATEMENT OF FACTS 15 The facts of the case are set forth in the administrative hearing and 16 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 17 and will therefore only be summarized here. 18 Plaintiff was 36 years old at the time of the hearing. She completed tenth 19 grade and was in special education her whole life. Tr. 47-48. Plaintiff has been 20 only sporadically employed and testified that she never held any job for more than ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 2 1 one or two months at a time. Tr. 49-50. Plaintiff testified that the number one 2 reason she wouldn’t be able to work is she is forgetful. Tr. 53-54. She also testified 3 that her reading, writing, and math skills are “poor.” Tr. 47. 4 5 STANDARD OF REVIEW A district court's review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited: the Commissioner's decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158–59 (9th Cir.2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is susceptible 18 to more than one rational interpretation, [the court] must uphold the ALJ's findings 19 if they are supported by inferences reasonably drawn from the record.” Molina v. 20 Astrue, 674 F.3d 1104, 1111 (9th Cir.2012). Further, a district court “may not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 3 1 reverse an ALJ's decision on account of an error that is harmless.” Id. at 1111. An 2 error is harmless “where it is inconsequential to the [ALJ's] ultimate nondisability 3 determination.” Id. at 1115 (quotation and citation omitted). The party appealing 4 the ALJ's decision generally bears the burden of establishing that it was harmed. 5 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 6 7 FIVE–STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant's impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4) (i)-(v). At step one, the Commissioner 20 considers the claimant's work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 4 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant's impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant's impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. Id. 12 At step three, the Commissioner compares the claimant's impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 15 404.1520(a)(4)(iii); 416.920(a) (4)(iii). If the impairment is as severe or more 16 severe than one of the enumerated impairments, the Commissioner must find the 17 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416 .920(d). 18 If the severity of the claimant's impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant's “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 5 1 defined generally as the claimant's ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 3 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 4 analysis. 5 At step four, the Commissioner considers whether, in view of the claimant's 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 8 If the claimant is capable of performing past relevant work, the Commissioner 9 must find that the claimant is not disabled. 20 C.F.R. § § 404.1520(f); 416.920(f). 10 If the claimant is incapable of performing such work, the analysis proceeds to step 11 five. 12 At step five, the Commissioner considers whether, in view of the claimant's 13 RFC, the claimant is capable of performing other work in the national economy. 20 14 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a) (4)(v). In making this determination, the 15 Commissioner must also consider vocational factors such as the claimant's age, 16 education and work experience. Id. If the claimant is capable of adjusting to other 17 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 18 404.1520(g)(1); 416.920(g) (1). If the claimant is not capable of adjusting to other 19 work, the analysis concludes with a finding that the claimant is disabled and is 20 therefore entitled to benefits. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 6 1 The claimant bears the burden of proof at steps one through four above. 2 Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir.2010). If 3 the analysis proceeds to step five, the burden shifts to the Commissioner to 4 establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. § § 6 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 8 9 ALJ’S FINDINGS At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 8, 2010, the amended alleged onset date. Tr. 19. At step two, 10 the ALJ found Plaintiff has the following severe impairments: learning disorder, 11 dysthymic disorder, borderline intellectual functioning, and dependent personality 12 disorder. Tr. 19. At step three, the ALJ found that Plaintiff does not have an 13 impairment or combination of impairments that meet or medically equals the 14 severity of one of the listed impairments in 20 C.F.R. Part 404, Subpt. P, App’x 1. 15 Tr. 23. The ALJ then determined that Plaintiff had the RFC 16 17 18 to perform a full range of work at all exertional levels but with the following nonexertional limitations: moderate limitations in the ability to understand, remember, and carry out detailed instructions; the ability to interact appropriately with the general public; and the ability to set realistic goals or make plans independently of others. 19 Tr. 25. At step four, the ALJ found Plaintiff has no past relevant work. Tr. 28. At 20 step five, the ALJ found that considering the Plaintiff’s age, education, work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 7 1 experience, and RFC, there are jobs that exist in significant numbers in the national 2 economy that Plaintiff can perform. Tr. 28. 3 ISSUES 4 The question is whether the ALJ’s decision is supported by substantial 5 evidence and free of legal error. Specifically, Plaintiff asserts: (1) the ALJ 6 improperly discounted Plaintiff’s statements regarding the severity of her 7 impairments; and (2) the ALJ did not properly consider nor reject Dr. John 8 Arnold’s medical opinion. ECF No. 17 at 8-12. Defendant argues: (1) the ALJ 9 provided clear and convincing reasons to find Plaintiff not credible; and (2) the 10 ALJ properly weighed Dr. Arnold’s opinion. ECF No. 19 at 6-13. 11 DISCUSSION A. Credibility 12 In social security proceedings, a claimant must prove the existence of 13 physical or mental impairment with “medical evidence consisting of signs, 14 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A claimant's 15 statements about his or her symptoms alone will not suffice. Id. Once an 16 impairment has been proven to exist, the claimant need not offer further medical 17 evidence to substantiate the alleged severity of his or her symptoms. Bunnell v. 18 Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc). As long as the impairment 19 “could reasonably be expected to produce [the] symptoms,” the claimant may offer 20 a subjective evaluation as to the severity of the impairment. Id. This rule ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 8 1 recognizes that the severity of a claimant's symptoms “cannot be objectively 2 verified or measured.” Id. at 347 (quotation and citation omitted). 3 If an ALJ finds the claimant's subjective assessment unreliable, “the ALJ 4 must make a credibility determination with findings sufficiently specific to permit 5 [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant's 6 testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). In making this 7 determination, the ALJ may consider, inter alia: (1) the claimant's reputation for 8 truthfulness; (2) inconsistencies in the claimant's testimony or between his 9 testimony and his conduct; (3) the claimant's daily living activities; (4) the 10 claimant's work record; and (5) testimony from physicians or third parties 11 concerning the nature, severity, and effect of the claimant's condition. Id. Absent 12 any evidence of malingering, the ALJ's reasons for discrediting the claimant's 13 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 14 661, 672 (9th Cir.2012) (quotation and citation omitted). 15 Plaintiff argues the ALJ improperly discounted Plaintiff’s testimony 16 concerning the severity of her impairments. ECF No. 17 at 11-12. Plaintiff 17 testified that could not read a newspaper because of poor reading skills, and also 18 reported that her spelling and math skills were poor. Tr. 47. She testified that the 19 “number one reason” she was unable to work was that she was “forgetful.” Tr. 53- 20 54. The ALJ found Plaintiff’s “statements concerning the intensity, persistence, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 9 1 and limiting effects of [her] symptoms are not entirely credible.” Tr. 26. The ALJ 2 listed multiple reasons in support of this adverse credibility finding. 3 First, the ALJ cites objective medical evidence that does not support 4 Plaintiff’s claim that she cannot work due to being forgetful. Tr. 26. Subjective 5 testimony cannot be rejected solely because it is not corroborated by objective 6 medical findings, but medical evidence is a relevant factor in determining the 7 severity of a claimant’s impairments. Rollins v. Massanari, 261 F.3d 853, 857 (9th 8 Cir. 2001)(emphasis added). While the court notes that Plaintiff was consistently 9 diagnosed as having “borderline intellectual functioning” (Tr. 314, 400, 418), the 10 results of mental status examinations have generally been within normal limits (Tr. 11 311-12, 325-326, 362-363, 402, 417-418). The ALJ also relies on evidence that 12 Rey-15 tests “have been consistent with memory malingering.” Tr. 26 (citing 417, 13 424).1 Finally, the ALJ accurately notes that the psychological evaluation evidence 14 15 1 16 given by the ALJ to support his adverse credibility finding. ECF No. 19 at 7-8. 17 However, the court finds the context of the ALJ’s citation to this evidence was to 18 support the reasoning that objective medical findings did not corroborate Plaintiff’s 19 testimony that she could not work because she was forgetful. Thus, malingering 20 will not be analyzed as a separate reason, nor does it alter the applicable standard Defendant argues that this mention of memory malingering was a separate reason ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 1 contains no report by Plaintiff of significant memory problems. Tr. 26. This 2 objective medical evidence was relevant and properly considered by the ALJ, as it 3 did not form the sole basis for his adverse credibility finding. 4 Second, the ALJ identified multiple inconsistencies in the record that 5 support the ALJ’s finding that Plaintiff was not credible. Most glaringly, Plaintiff 6 testified that the primary reason she could not work was forgetfulness (Tr. 54), but 7 at the same hearing she testified that her memory is “okay” (Tr. 52). Plaintiff’s 8 inconsistent statements about this symptom are a clear and convincing reason to 9 find her not credible. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) 10 (ALJ may consider prior inconsistent statements concerning symptoms in 11 considering credibility)). 12 Moreover, the ALJ found that “[a]lthough the undersigned has found the 13 claimant’s history of substance dependence is not material to the determination of 14 disability, the claimant has provided inconsistent information related to her 15 substance use.” Tr. 26. Conflicting statements about substance abuse may support 16 an ALJ’s “negative conclusions about [Plaintiff’s] veracity.” Thomas, 278 F.3d at 17 959; see also Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (an ALJ may 18 discredit a claimant’s allegations based on relevant character evidence). When 19 in this case requiring the ALJ to give clear and convincing reasons to support 20 finding Plaintiff’s testimony not credible. See Chaudhry, 688 F.3d at 672. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 1 questioned at the hearing, Plaintiff alternately testified that she used illegal drugs 2 “two years ago,” “two to four years ago,” and “four years ago, five years ago, or 3 somewhere around there.” Tr. 50-51. She further testified that the only drug she 4 previously used was marijuana. Tr. 51. However, in 2010 she reported to Dr. Joyce 5 Everhart that she “now uses marijuana occasionally” although the “last time she 6 used marijuana was about two years ago;” and she denied using any other drugs. 7 Tr. 361. In contrast to these previous reports, in September 2011 she reported to 8 Dr. John Arnold that “she had not used meth in years” and her last use of 9 marijuana was “about a year and a half ago.” Tr. 417. The record again shows 10 inconsistent responses regarding drug use in November 2011 when she denied any 11 drug or alcohol usage with “the exception of smoking cannabis during her youth.” 12 Tr. 422. But in 2007 she reported smoking methamphetamines “three to four 13 weeks ago” (Tr. 310), and then contradictorily reported in 2008 that she last used 14 methamphetamines one and a half years ago (Tr. 323). The former provider 15 concluded that Plaintiff was “vague and inconsistent regarding her substance abuse 16 history” (Tr. 310); and the latter determined that Plaintiff’s “report of last 17 methamphetamine and marijuana use do not appear to be credible when compared 18 to the medical record (Tr. 324). 19 20 Plaintiff argues that this reason was “inadequate” because it is “uncontradicted that there is no evidence of current substance abuse and substance ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 12 1 abuse has no [effect] on her diagnoses or impairment.” ECF No. 17 at 11-12. 2 However, Plaintiff’s inconsistent statements throughout the record, regarding both 3 the timing and nature of her drug use, is a clear and convincing reason to discount 4 Plaintiff’s credibility. 5 Third, the ALJ found that Plaintiff’s “poor work history additionally raises 6 some questions as to whether the current unemployment is truly the result of 7 mental health problems.” Tr. 26. Poor work history is an appropriate factor to 8 consider when evaluating Plaintiff’s credibility. See Thomas, 278 F.3d at 959. This 9 reason was not challenged by Plaintiff in her briefing. See Carmickle v. Comm’r of 10 Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (court may decline to 11 address this issue as it was not raised with specificity in Plaintiff’s briefing). As 12 noted by the ALJ, Plaintiff has not worked since 1998; and prior to that Plaintiff 13 only worked sporadically and not at substantial gainful activity levels. Tr. 26. She 14 testified that the longest she had ever worked was one or two months at a time. Tr. 15 49-50. Plaintiff’s poor work history, even in the years predating her alleged 16 disability, is a clear and convincing reason to discount Plaintiff’s credibility. 17 Finally, the ALJ noted that Plaintiff did not seek mental health counseling at 18 any time during the relevant period. Tr. 26. Unexplained, or inadequately 19 explained, failure to seek treatment or follow a prescribed course of treatment may 20 be the basis for an adverse credibility finding unless there is a showing of a good ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 1 reason for the failure. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). However, 2 an ALJ “must not draw any inferences about an individual’s symptoms and their 3 functional effects from a failure to seek or pursue regular medical treatment 4 without first considering any explanations that the individual may provide, or other 5 information in the case record, that may explain infrequent or irregular medical 6 visits or failure to seek medical treatment.” Social Security Ruling (“SSR”) 96-7p 7 at *7 (July 2, 1996), available at 1996 WL 374186. Plaintiff’s briefing offers no 8 explanation for her failure to pursue treatment. Plaintiff testified that she has 9 medical insurance and she knows how to make an appointment. Tr. 51-52. A 10 review of the record confirms that Plaintiff did not seek mental health treatment; 11 and reveals a statement by Dr. Arnold in 2010 indicating that the only condition 12 that would impair Plaintiff’s ability to cooperate with treatment was “non- 13 compliance.” Tr. 402. Plaintiff’s failure to pursue treatment was a valid reason to 14 find her not credible. 15 For all of these reasons, and having thoroughly reviewed the record, the 16 court concludes that the ALJ supported his adverse credibility finding with 17 specific, clear and convincing reasons supported by substantial evidence. 18 B. Medical Opinion Evidence 19 20 There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 14 1 (examining physicians); and (3) those who neither examine nor treat the claimant 2 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 3 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir.2001)(citations omitted). 4 Generally, a treating physician's opinion carries more weight than an examining 5 physician's, and an examining physician's opinion carries more weight than a 6 reviewing physician's. Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th 7 Cir.2001)(citations omitted). If a treating or examining physician's opinion is 8 uncontradicted, the ALJ may reject it only by offering “clear and convincing 9 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 10 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's 11 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 12 providing specific and legitimate reasons that are supported by substantial 13 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830–831 (9th Cir.1995)). 14 “However, the ALJ need not accept the opinion of any physician, including a 15 treating physician, if that opinion is brief, conclusory and inadequately supported 16 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 17 (9th Cir. 2009)(quotation and citation omitted). Plaintiff argues that the ALJ erred 18 by improperly rejecting Dr. John Arnold’s opinion. ECF No. 17 at 8-10. 19 20 In December 2010, Dr. Arnold examined the Plaintiff and assessed marked limitations in multiple cognitive and social factors, including her ability to: ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 15 1 understand, remember, and persist in tasks by following complex instructions of 2 three or more steps; learn new tasks; communicate and perform effectively in a 3 work setting with either normal or limited public contact; and maintain appropriate 4 behavior in a work setting. Tr. 401. He opined in the narrative section that Plaintiff 5 was “capable of understanding and carrying out simple repetitive instructions” and 6 able to “complete very simple tasks without close supervision.” Tr. 401. In 7 November 2011, Dr. Arnold again examined the Plaintiff and similarly concluded 8 that Plaintiff is “capable of following simple and repetitive instructions,” but she 9 would “function best in a work environment having direct support from 10 supervisors and fellow employees... [that] does not require direct interaction with 11 the general public.” Tr. 422. He also opined that Plaintiff’s “difficulty with 12 memory, focus and concentration will limit her success in the work setting.” Tr. 13 422. 14 The ALJ gave little weight to the evaluations conducted by Dr. Arnold 15 during the relevant period.2 Tr. 27. Plaintiff argues the ALJ “did not properly 16 2 17 limitations as in his later assessments. Tr. 350. The ALJ did not address this 18 evaluation in his decision. However, [m]edical opinions that predate the alleged 19 onset of disability are of limited relevance.” Carmickle, 533 F.3d at 1165. The 20 amended alleged onset date in this case is January 8, 2010 and the evaluation was Dr. Arnold also conducted an evaluation in 2009 that found substantially similar ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 16 1 consider nor reject Dr. Arnold’s opinion and, instead, relied on the testimony of 2 Dr. Veraldi.” ECF No. 17 at 10. Plaintiff notes that Dr. Arnold examined Plaintiff, 3 whereas Dr. Veraldi testified as a medical expert at the hearing but did not treat or 4 examine the Plaintiff. Tr. 38-45. Plaintiff is correct that “[t]he opinion of a 5 nonexamining physician cannot by itself constitute substantial evidence that 6 justifies the rejection of the opinion of either an examining or a treating physician.” 7 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)(emphasis added). However, 8 where, as here, the treating physician's opinion is contradicted by medical 9 evidence, the opinion may still be rejected if the ALJ provides specific and 10 legitimate reasons supported by substantial evidence in the record. See Andrews v. 11 Shalala, 53 F.3d 1035, 1041 (9th Cir.1995). Plaintiff contends that “the ALJ did 12 not expressly reject Dr. Arnold’s report and utterly failed to provide any reason to 13 discount it.” ECF No. 17 at 10. However, while not identified or challenged by 14 Plaintiff in her opening brief, the ALJ did offer specific and legitimate reasons for 15 rejecting Dr. Arnold’s opinion. See Carmickle, 533 F.3d at 1161 n.2 (court may 16 decline to address this issue as it was not raised with specificity in Plaintiff’s 17 briefing). 18 conducted in 2009. Tr. 37. In addition, Plaintiff does not argue that the ALJ erred 19 in failing to consider this opinion. Thus, the court declines to address this issue as 20 it was not raised in Plaintiff’s briefing. See id. at 1161 n.2. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 17 1 As an initial matter, the court finds that two of the reasons given by the ALJ 2 for rejecting Dr. Arnold’s opinion are not specific, legitimate, and supported by 3 substantial evidence. First, the ALJ identifies an alleged discrepancy between the 4 narrative portions of Dr. Arnold’s evaluations indicating that Plaintiff was capable 5 of understanding and carrying out simple and repetitive instructions (Tr. 401, 422); 6 and the marked limitations assessed by Dr. Arnold in the check-box portion of the 7 2010 evaluation, as identified above, including but not limited to the ability to 8 learn new tasks and the ability to maintain appropriate behavior in the work 9 setting. Tr. 401. The ALJ is correct that in the functional limitations section of the 10 DSHS evaluation form, “marked” is defined as “very significant interference” 11 “with the individual’s ability to perform basic work-related activities” (Tr. 27, 12 401). However, the ALJ appears to reason that it is inconsistent for Dr. Arnold to 13 opine that Plaintiff is capable of understanding and carrying out simple and 14 repetitive instructions while at the same time assessing any marked limitations in 15 other cognitive and social factors. The ALJ does not cite a specific functional 16 limitation assessed by Dr. Arnold as “marked” that is inconsistent with his opinion 17 that Plaintiff can carry out simple and repetitive tasks. In fact, Dr. Arnold’s check 18 the box limitations were consistent with his narrative comments, as he assessed 19 mild limitation in Plaintiff’s ability to understand, remember, and persist in tasks 20 following simple instructions, in contrast to marked limitations in her ability to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 18 1 understand, remember, and persist in following complex instructions. Tr. 401. This 2 reason is not specific and legitimate, nor is it supported by substantial evidence. 3 Second, the ALJ rejects Dr. Arnold’s opinion based in part on “the setting 4 where [Plaintiff] was being evaluated for the specific purpose of determining 5 entitlement to either state general assistance benefits, where rules for obtaining 6 benefits are much more relaxed than those used for Social Security disability 7 purposes, or for the express purpose of determining eligibility to social security 8 benefits.” Tr. 27-28. It is well-settled in the Ninth Circuit that the purpose for 9 which a report is obtained does not provide a legitimate basis for rejecting it. See 10 Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995). Thus, the ALJ erred in 11 considering the purpose for which Dr. Arnold’s report was obtained. 12 However, despite this flawed reasoning, these errors are harmless because 13 the ALJ articulated additional specific and legitimate reasons for rejecting Dr. 14 Arnold’s opinion that were supported by substantial evidence. See Carmickle, 533 15 F.3d at 1162-63. First, the ALJ found that several of Dr. Arnold’s opinions were 16 unsupported by the results of his own testing, and the record as a whole. Tr. 27. 17 Consistency with the medical record as a whole, and between a treating physician’s 18 opinion and his or her own treatment notes, are relevant factors when evaluating a 19 treating physician’s medical opinion. See Bayliss, 427 F.3d at 1216 (discrepancy 20 between treating physician’s opinion and clinical notes justified rejection of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 19 1 opinion); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (ALJ may 2 reject treating physician’s opinion that is unsupported by record as a whole, or by 3 objective medical findings”). Moreover, “an ALJ need not accept the opinion of a 4 doctor if that opinion is brief, conclusory, and inadequately supported by clinical 5 findings.” Thomas, 278 F.3d at 957. 6 Here, Dr. Arnold opined that Plaintiff’s “difficult with memory, focus, and 7 concentration would limit her success in the work setting.” Tr. 422. However, as 8 noted by the ALJ, the results of the few mental status examinations conducted by 9 Dr. Arnold were within normal limits. Tr. 402, 417-18. Most notably, in 10 September 2011, Dr. Arnold found that Plaintiff had “relatively good short-term, 11 and acceptable long term memory” and “generally adequate concentration abilities 12 at the time of assessment.” Tr. 417-418. The ALJ found Dr. Arnold’s statement 13 was also unsupported by the “longitudinal record which indicates her pace 14 persistence, and memory are all within normal limits.” Tr. 27. In 2007, Dr. Mahon 15 Dalley found Plaintiff’s IQ indicated Borderline Intellectual Functioning, but the 16 results of the mental status exam were in the normal to “mild impairment” range. 17 Tr. 311-312. Dr. Dalley opined that Plaintiff did not have a psychological disability 18 that would prevent her from working in an entry level position. Tr. 315. In 2008, 19 Dr. Joyce Everhart opined that Plaintiff had “no difficulty with executive 20 functioning,” “persistence seems good,” and the results of mental status exams ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 20 1 were within normal limits. Tr. 325-327. In 2010, Dr. Everhart opined that 2 Plaintiff’s pace and persistent were good; and mental status exam results indicated 3 her long term memory was fair, and she was able to recall three of three objects 4 immediately and three of three objects after five minutes. Tr. 362-364. 5 The ALJ noted an additional internal inconsistency between Dr. Arnold’s 6 statement in November 2011 that Plaintiff “will require direct supervision in terms 7 of meeting even basic cognitive demands” (Tr. 422); and his opinion in an earlier 8 evaluation that Plaintiff “can complete very simple tasks without close 9 supervision” (Tr. 402)(emphasis added). The November 2011 statement is also 10 inconsistent with the medical record as a whole; which consistently indicates no 11 problems with social functioning, using public transportation, and interacting with 12 medical professionals. Tr. 312, 327, 362 -64, 400, 422. After an exhaustive review 13 of the record, the court finds that inconsistencies between several of Dr. Arnold’s 14 opinions in November 2011, and his own treatment notes and objective findings 15 from the record as a whole, was a specific and legitimate reason for the ALJ to 16 reject Dr. Arnold’s opinion. 17 Finally, the ALJ reasoned that “Dr. Arnold appeared to place undue reliance 18 upon the subjective allegations” of the Plaintiff. Tr. 27. “An ALJ may reject a 19 treatment physician’s opinion if it is based ‘to a large extent’ on a claimant’s self- 20 reports that have been properly discounted as incredible.” Tommasetti v. Astrue, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 21 1 533 F.3d 1035, 1041 (9th Cir. 2008). As discussed above, the ALJ properly found 2 Plaintiff was not credible. Dr. Arnold’s opinion was based in part on Plaintiff’s 3 self-reports; therefore this was a valid reason for the ALJ to reject his opinion. 4 For all of these reasons, the ALJ properly rejected Dr. Arnold’s medical 5 opinion by articulating specific and legitimate reasons supported by substantial 6 evidence. 7 8 9 10 CONCLUSION After review the court finds the ALJ’s decision is supported by substantial evidence and free of harmful legal error. ACCORDINGLY, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 12 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is 13 14 GRANTED. The District Court Executive is hereby directed to enter this Order and 15 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE 16 the file. 17 18 19 DATED this 19th day of June, 2014. s /Fred Van Sickle Fred Van Sickle Senior United States District Judge 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 22

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