Ehrler v. Commissioner of Social Security, No. 2:2016cv00204 - Document 20 (E.D. Wash. 2017)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 17 Plaintiff's Motion for Summary Judgment; granting 18 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Robert H. Whaley. (CV, Case Administrator)
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Ehrler v. Commissioner of Social Security Doc. 20 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 SHANA K. EHRLER, 8 Plaintiff, No. 1:16-CV-00204-RHW 9 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 NANCY A. BERRYHILL (PREVIOUSLY CAROLYN W. COLVIN), Acting Commissioner of Social Security, 1 11 12 13 Defendant. 14 15 16 17 18 Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 17 & 18. Ms. Ehrler brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her application for Disability Insurance Benefits under Title II and her application for Supplemental Security Income under Title XVI of the Social Security Act, 42 19 20 1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 20, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin as the defendant in this suit. No further action need be taken to continue this suit. 42 U.S.C. § 405(g). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 U.S.C §§ 401-434, 1381-1383F. After reviewing the administrative record and 2 briefs filed by the parties, the Court is now fully informed. For the reasons set forth 3 below, the Court GRANTS Defendant’s Motion for Summary Judgment and 4 DENIES Ms. Ehrler’s Motion for Summary Judgment. 5 I. Jurisdiction 6 Ms. Ehrler filed her applications for Disability Insurance Benefits and 7 Supplemental Security Income on September 15, 2010. AR 22, 235-242, 583. Her 8 alleged onset date is October 1, 2008, AR 22, 235, 241, 583. Ms. Ehrler’s 9 applications were initially denied on January 18, 2011, AR 150-53, and on 10 11 reconsideration on March 23, 2011, AR 158-68. Hearings with Administrative Law Judge (“ALJ”) R. J. Payne occurred on 12 January 23, 2012, AR 42-62, and August 14, 2012, AR 63-95. On September 7, 13 2012, the ALJ issued a decision finding Ms. Ehrler ineligible for disability 14 benefits. AR 22-35. The Appeals Council denied Ms. Ehrler’s request for review 15 on March 13, 2013, AR 1-3. 16 Plaintiff then filed an action challenging the ALJ’s initial denial of benefits. 17 AR 674-77. On October 6, 2014, the district court issued an Order and Judgment 18 remanding the case for additional administrative proceedings. AR 650-73, 677. 19 20 On remand, a hearing with the ALJ was held on August 19, 2015. AR 60949. On October 2, 2015, the ALJ issued a decision again finding Ms. Ehrler ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 ineligible for disability benefits. AR 580-602. The Appeals Council denied Ms. 2 Ehrler’s request for review on April 19, 2016, AR 565-67, making the ALJ’s ruling 3 the “final decision” of the Commissioner. 4 Ms. Ehrler timely filed the present action challenging the denial of benefits, 5 on June 27, 2016. ECF No. 5. Accordingly, Ms. Ehrler’s claims are properly before 6 this Court pursuant to 42 U.S.C. § 405(g). 7 8 9 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or 10 mental impairment which can be expected to result in death or which has lasted or 11 can be expected to last for a continuous period of not less than twelve months.” 42 12 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 13 under a disability only if the claimant’s impairments are of such severity that the 14 claimant is not only unable to do his previous work, but cannot, considering 15 claimant's age, education, and work experience, engage in any other substantial 16 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 17 1382c(a)(3)(B). 18 19 The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Social 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 2 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 3 Step one inquires whether the claimant is presently engaged in “substantial 4 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 5 activity is defined as significant physical or mental activities done or usually done 6 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 7 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 8 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 9 Step two asks whether the claimant has a severe impairment, or combination 10 of impairments, that significantly limits the claimant’s physical or mental ability to 11 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 12 impairment is one that has lasted or is expected to last for at least twelve months, 13 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 14 416.908-09. If the claimant does not have a severe impairment, or combination of 15 impairments, the disability claim is denied, and no further evaluative steps are 16 required. Otherwise, the evaluation proceeds to the third step. 17 Step three involves a determination of whether any of the claimant’s severe 18 impairments “meets or equals” one of the listed impairments acknowledged by the 19 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 20 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 2 equals one of the listed impairments, the claimant is per se disabled and qualifies 3 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 4 fourth step. 5 Step four examines whether the claimant’s residual functional capacity 6 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & 7 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 8 not entitled to disability benefits and the inquiry ends. Id. 9 Step five shifts the burden to the Commissioner to prove that the claimant is 10 able to perform other work in the national economy, taking into account the 11 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 12 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 13 burden, the Commissioner must establish that (1) the claimant is capable of 14 performing other work; and (2) such work exists in “significant numbers in the 15 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 16 676 F.3d 1203, 1206 (9th Cir. 2012). 17 18 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 19 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 20 Commissioner's decision will be disturbed “only if it is not supported by ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 2 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 3 mere scintilla but less than a preponderance; it is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 5 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 6 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 7 whether the Commissioner’s findings are supported by substantial evidence, “a 8 reviewing court must consider the entire record as a whole and may not affirm 9 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 10 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 11 F.2d 498, 501 (9th Cir. 1989)). 12 In reviewing a denial of benefits, a district court may not substitute its 13 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 14 1992). If the evidence in the record “is susceptible to more than one rational 15 interpretation, [the court] must uphold the ALJ's findings if they are supported by 16 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 17 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 18 2002) (if the “evidence is susceptible to more than one rational interpretation, one 19 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 20 a district court “may not reverse an ALJ's decision on account of an error that is ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 2 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 3 The burden of showing that an error is harmful generally falls upon the party 4 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 5 6 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 7 and only briefly summarized here. Ms. Ehrler was 34 years old at the alleged date 8 of onset. AR 235, 241, 600. She has a high school degree and at least two years of 9 college. AR 255, 589, 598, 600. Ms. Ehrler is able to communicate in English. AR 10 600. Ms. Ehrler previously worked as an office assistant, a postal worker, a 11 security guard, and a telemarketer. AR 255, 269, 600, 643. 12 V. 13 14 15 The ALJ’s Findings The ALJ determined that Ms. Ehrler was not under a disability within the meaning of the Act from October 1, 2008, her alleged date of onset. AR 601. At step one, the ALJ found that Ms. Ehrler had not engaged in substantial 16 gainful activity since October 1, 2008 (citing 20 C.F.R. §§ 404.1571 et seq. & 17 416.971 et seq.). AR 586. 18 At step two, the ALJ found Ms. Ehrler had the following severe 19 impairments: seizure disorder of unknown type, major depressive disorder, anxiety 20 disorder NOS, somatization disorder, and personality disorder with borderline ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 histrionic and narcissistic features (citing 20 C.F.R. §§ 404.1520(c) & 416.920(c)). 2 AR 586. 3 At step three, the ALJ found that Ms. Ehrler did 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. § 404, Subpt. P, App. 1. AR 586. 6 At step four, the ALJ found Ms. Ehrler had the residual functional capacity 7 to perform a full range of work at all exertional levels with these nonexertional 8 limitations: (1) no climbing ladders, ropes, or scaffolds; (2) no exposure to 9 unprotected heights, hazardous machinery, or commercial driving; (3) she can 10 understand, remember, and carry out detailed work instructions and work tasks but 11 not complex work instructions or work tasks (e.g., no significant multitasking, no 12 independent complex work related decisions, no frequent changes in the work 13 setting); (4) she can handle occasional contact with the general public, co-workers, 14 and supervisors and; (5) she can handle occasional workplace changes. AR 587. 15 16 17 The ALJ determined that Ms. Ehrler is able to perform her past relevant work as an office helper and as a security guard. AR 600-01. At step five, the ALJ found that, in light of her age, education, work 18 experience, and residual functional capacity, in conjunction with the Medical- 19 Vocational Guidelines, there are jobs that exist in significant numbers in the 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 national economy that she can perform, in addition to her past relevant work she is 2 able to perform. AR 600-01. 3 4 VI. Issues for Review Ms. Ehrler argues that the Commissioner’s decision is not free of legal error 5 and not supported by substantial evidence. Specifically, she argues the ALJ erred 6 by exceeding the scope of remand in violations of the rule of mandate. 7 8 VII. Discussion A. The ALJ did not violate the rule of mandate. 9 The rule of mandate applies in the social security context. Stacy v. Colvin, 10 825 F.3d 563, 567 (9th Cir. 2016). “The rule provides that any ‘district court that 11 has received the mandate of an appellate court cannot vary or examine that 12 mandate for any purpose other than executing it.’” Id. at 568 (citing Hall v. City of 13 Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012)). “The district court may, 14 however, ‘decide anything not foreclosed by the mandate’. . . . But the district 15 court commits ‘jurisdictional error’ if it takes actions that contradict the mandate.” 16 Id. (citing Hall, 697 F.3d at 1067). “We have previously allowed district courts to 17 reexamine any issue on remand that is not inconsistent with the mandate.” Id. 18 (citing See Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995)). 19 The prior district court order correctly noted that the prior decision by the 20 ALJ discounted Ms. Ehrler’s credibility based on a failure to seek treatment for ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 seizure symptoms and mental health problems and found that the ALJ erred by not 2 sufficiently developing the record regarding her credibility. AR 660-63. The prior 3 order noted that pursuant to SSR 96-7p, and ALJ must not draw an adverse 4 inference from a claimant’s failure to seek or pursue treatment “without first 5 considering any explanations that the individual may provide, or other information 6 in the case record, that may explain infrequent or irregular medical visits or failure 7 to seek medical treatment.” See also Dean v. Astrue, No. CV-08-3042-CI, 2009 8 WL 2241333, at *5 (E.D. Wash. July 22, 2009) (noting that “the SSR regulations 9 direct the ALJ to question a claimant at the administrative hearing to determine 10 whether there are good reasons for not pursuing medical treatment in a consistent 11 manner”). AR 660-61. 12 Therefore, the prior order remanded the case and directed: 13 (1) The ALJ should further develop the record concerning possible explanations for the lack of treatment and reevaluate Plaintiff’s credibility in light of a more fully developed record. AR 663. 14 15 16 17 18 19 20 (2) [t]he ALJ's errors with regard to the assessment of Plaintiff's credibility materially impacted the consideration of medical opinions concerning Plaintiff's limitations. These opinions should be revisited on remand after further development of the record and reconsideration of Plaintiffs credibility. AR 666. (3) Here, the ALJ concluded that Plaintiff retained the RFC to perform her past relevant work as a security guard and telemarketer. (T at 35). However, this conclusion was affected by the ALJ's decision to discount Plaintiff's credibility, which (in turn) influenced the assessment of Plaintiff's RFC. For this reason, the step four ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 analysis will need to be revisited on remand after reconsideration of Plaintiffs credibility and redetermination of her RFC. AR 670. 2 Just as Dean v. Astrue, No. CV-08-3042-CI, 2009 WL 2241333, at *5 (E.D. 3 4 Wash. July 22, 2009) directs, the ALJ questioned Ms. Ehrler at the administrative 5 hearing on August 19, 2015, to determine whether there are good reasons for not 6 pursuing medical treatment. AR 618-19. Specifically, after noting that the medical 7 experts had provided testimony at the current hearing as well as previously that 8 there is a lack of consistent medical treatment, the ALJ directly asked “why is that, 9 Ms. Ehrler?” AR 583, 614-15, 618. Ms. Ehrler responded, “Um, I really don’t 10 understand, that I really don’t have an explanation about that.” AR 619. Later 11 during the remand hearing, Ms. Ehrler’s attorney questioned her about her lack of 12 explanation stating, “[e]arlier, you were asked how come you haven’t received any 13 counseling, but you didn’t have an answer for that.”2 AR 635. Ms. Ehrler 14 responded, “I did not have an answer for that because no one has referred me to 15 one. Once the - - the insurance I used, they have to refer me to one, and they have 16 not yet.” Id. 17 In the ALJ’s decision on October 2, 2015, the ALJ specifically noted Ms. 18 Ehrler’s direct statement that she had no explanation for her lack of treatment and 19 addressed her statement about needed a referral for treatment. AR 592. In addition, 20 2 Ms. Ehrler, in her motion, attributes this statement to the ALJ; however, this statement was made by her attorney during the questioning of Ms. Ehrler by her attorney. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 as required by the remand order, the ALJ reevaluated Ms. Ehrler’s credibility in 2 light of the entire record. AR 587-94. The ALJ addressed and discounted other 3 possible explanations for Ms. Ehrler’s lack of treatment as well as inconsistent 4 statements, inconsistency with the treatment she did receive, and inconsistencies 5 with Ms. Ehrler’s daily activities and alleged level of impairment. Id. 6 In her motion, Ms. Ehrler takes issue with the ALJ’s development of the 7 record with the brief statement that “the remand order clearly required more of the 8 ALJ to develop the record.” ECF No. 17 at 14. In her reply brief, Ms. Ehrler 9 contends that the remand order required the ALJ to ask more questions of Ms. 10 Ehrler regarding possible explanations for her lack of treatment. However, the 11 remand order directs the ALJ to further develop the record concerning possible 12 explanations for the lack of treatment, and when directly asked about possible 13 explanations for lack of treatment by the ALJ and by her attorney, Ms. Ehrler 14 stated that she had no explanation. AR 618-19, 635, 633. “[W]hen claimants are 15 represented by counsel, they must raise all issues and evidence at their 16 administrative hearings in order to preserve them on appeal.” Meanel v. Apfel, 172 17 F.3d, 1111, 1115 (9th Cir. 1999). Ms. Ehrler did not provide any other possible 18 explanations for her lack of treatment. Id. The remand order does not require the 19 ALJ present Ms. Ehrler with examples or options of possible explanations from 20 which she then may choose. Nevertheless, the ALJ did still properly take into ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 account, evaluate, and consider other possible explanations for the lack of 2 treatment in the ultimate determination issued on October 2, 2015. AR 587-94. 3 Thus the ALJ properly developed the record regarding Ms. Ehrler’s explanation for 4 her lack of treatment in accordance with the remand order. 5 Ms. Ehrler notes that the ALJ addressed “various new rationalizations, i.e., 6 daily activities, inconsistent statements, for discrediting Ms. Ehrler’s symptom 7 testimony” and briefly states that “[t]hese statements are outside of this Court’s 8 remand order and need not be addressed.” However, the remand order specifically 9 states that the ALJ is to “reevaluate Plaintiff’s credibility in light of a more fully 10 developed record” and the remand was to include a “reconsideration of Plaintiff’s 11 credibility.” AR 663, 666, 670. “Given the expansive remand orders in this case, 12 the ALJ did not violate the rule of mandate.” Stacy v. Colvin, 825 F.3d 563, 568 13 (9th Cir. 2016). 14 The remand order found the ALJ’s error regarding Ms. Ehrler’s credibility to 15 have materially impacted the consideration of medical opinions and directed the 16 ALJ to revisit the opinions on remand after further development of the record and 17 reconsideration of Ms. Ehrler’s credibility. AR 666. In addition, the ALJ was to re- 18 determine Ms. Ehrler’s residual functional capacity after reconsideration of her 19 credibility. AR 670. Ms. Ehrler does not argue that the ALJ’s re-visitation of the 20 opinion evidence and reconsideration of her residual functional capacity, in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 accordance with the remand order, violates the rule of mandate. Instead, Ms. Ehrler 2 briefly reasserts that the ALJ failed to develop the record with regard to her 3 credibility, and contends that as such the opinion evidence and her residual 4 functional capacity cannot be properly examined. However, as directed by the 5 remand order, the ALJ evaluated all of the opinion evidence and reconsidered Ms. 6 Ehrler’s residual functional capacity in the decision issued on October 2, 2015. AR 7 587-600. 8 9 10 11 Thus, the Court finds that the ALJ properly executed the district court’s remand order and did not violate the rule of mandate. B. The arguments adopted and incorporated by reference fail. Ms. Ehrler does not present any specific argument in her opening brief or 12 her reply brief addressing the ALJ’s ultimate determinations in the decision issued 13 on October 2, 2012, and she does not present this as an issue that the Court needs 14 to address. Rather, in a footnote and in a passing sentence Ms. Ehrler states that 15 she adopts and incorporates by reference the arguments she attaches as Appendix 16 A and Appendix B, which she previously made over three years ago in 2014. ECF 17 No. 17 at 13 n5, 18. Ms. Ehrler is referring to her motion for summary judgment 18 and reply brief filed in April and June of 2014, addressing the ALJ’s initial 19 decision issued on September 7, 2012, that the district court ruled on in October 20 2014. Defendant objects to this incorporation by reference and contends that the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Court should not consider it an acceptable method of argument, which definitely 2 avoids the Court’s 20-page limitation for Ms. Ehrler’s current motion for summary 3 judgment to address the ALJ’s current 2015 decision. ECF No. 18 at 14. In reply, 4 Ms. Ehrler does not provide any legal support for her use of past briefing on a 5 motion filed over three years ago, nor does she explain why she could not present 6 argument in her current brief. Rather, Mr. Ehrler states that her arguments from the 7 first appeal remain intact, and additional legal argument was required to address 8 the claimed failure of the ALJ to address the court’s instructions on remand. 9 Again, Ms. Ehrler does not actually present any argument against the ALJ’s 10 ultimate determinations in her briefing of her summary judgment motion, instead 11 she attempts to incorporate by reference points and authorities set forth in a 12 previous motion filed over three years ago. The Court is not obliged to consider 13 such arguments. See Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir. 14 1996) (the Federal Rules of Civil Procedure do not sanction “the incorporation of 15 substantive material by reference” and the district court did not abuse its discretion 16 in striking the incorporations); see, e.g., Calence, LLC v. Dimension Data 17 Holdings, PLC, 222 F. App'x 563, 566 (9th Cir. 2007) (the district court did not 18 abuse its discretion in refusing to consider an argument contained in prior briefing 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 that the plaintiff incorporated by reference from briefing on a prior motion).3 Thus 2 the attempted incorporation by reference is inappropriate. 3 Nevertheless, the Court will briefly address Ms. Ehrler’s arguments 4 previously submitted regarding: (1) the ALJ’s credibility determination; (2) the 5 medical opinions; and (3) her argument regarding her residual functional capacity. 6 1. The ALJ Properly Discounted Ms. Ehrler’s Credibility. 7 An ALJ engages in a two-step analysis to determine whether a claimant’s 8 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 9 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 10 medical evidence of an underlying impairment or impairments that could 11 reasonably be expected to produce some degree of the symptoms alleged. Id. 12 Second, if the claimant meets this threshold, and there is no affirmative evidence 13 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 14 15 see also DeSilva v. DiLeonardi, 181 F.3d 865, 866-867 (7th Cir.1999) (“Petitioners direct us to a document filed in the district court, but we have not read it because adoption by reference amounts to a self-help increase in the length of the appellate brief. . . .Even when a litigant has unused space (as appellants did not[]), incorporation is a pointless imposition on the court’s time. A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record.”) (ellipsis inserted where citation omitted; insertions in brackets in superscript added where footnote omitted); and see Fulgham v. Embarq Corp., 785 F.3d 395, 410 (10th Cir. 2015) (Plaintiff in appellate brief did not explain exactly why denial of motion for reconsideration on a point was an abuse of discretion but instead, in a footnote, incorporated by reference arguments made before the district court, directing the U.S. Court of Appeals for the Tenth Circuit to the forty-five pages in the appendix containing documents they filed in the district court; the Tenth Circuit held that “This is not acceptable appellate procedure. ‘Allowing litigants to adopt district court filings would provide an effective means of circumventing the page limitations on briefs set forth in the appellate rules and unnecessarily complicate the task of an appellate judge.’ Gaines–Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998) (citations omitted). Accordingly, we deem the argument waived. See id.”). 3 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 severity of [her] symptoms only by offering specific, clear, and convincing reasons 2 for doing so.” Id. 3 In weighing a claimant's credibility, the ALJ may consider many factors, 4 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 5 reputation for lying, prior inconsistent statements concerning the symptoms, and 6 other testimony by the claimant that appears less than candid; (2) unexplained or 7 inadequately explained failure to seek treatment or to follow a prescribed course of 8 treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284. When 9 evidence reasonably supports either confirming or reversing the ALJ's decision, the 10 Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 11 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically 12 determinable impairments could reasonably be expected to produce the symptoms 13 Ms. Ehrler alleges; however, the ALJ determined that Ms. Ehrler’s statements 14 regarding intensity, persistence, and limiting effects of the symptoms were not 15 entirely credible. AR 591. 16 In consideration of Ms. Ehrler’s credibility, the ALJ noted the infrequency 17 of her treatment, the lack of treatment, the inconsistency of her treatment and 18 inconsistency in following prescribed medication, and the fact that she specifically 19 stated that she did not have an explanation for the inconsistencies and lack of 20 treatment. AR 587-594. A claimant’s statements may be less credible when ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 treatment is inconsistent with the level of complaints or a claimant is not following 2 treatment prescribed without good reason. Molina, 674 F.3d at 1114. 3 “Unexplained, or inadequately explained, failure to seek treatment . . . can cast 4 doubt on the sincerity of [a] claimant’s pain testimony.” Fair v. Bowen, 885 F.2d 5 597, 603 (9th Cir. 1989). 6 The ALJ also noted several inconsistent statements regarding her ability to 7 be around others, her ability to leave the house, and her ability to take care of 8 herself. AR 587-594. Additionally, the ALJ notes multiple daily activities that are 9 inconsistent with Ms. Ehrler’s alleged level of impairment. Id. Ms. Ehrler does not 10 refute or address any of these findings the ALJ made in weighing her credibility. 11 The Court does not find the ALJ erred when assessing Ms. Ehrler’s 12 credibility because Ms. Ehrler’s unrefuted activities reflect a level of functioning 13 that is inconsistent with her claims of disability, as well as unrefuted inconsistent 14 statements, unrefuted inconsistencies with the record, and a failure to treat her 15 alleged impairments. 16 2. The ALJ Did Not Err in Weighing the Opinion Evidence. 17 The Ninth Circuit has distinguished between three classes of medical 18 providers in defining the weight to be given to their opinions: (1) treating 19 providers, those who actually treat the claimant; (2) examining providers, those 20 who examine but do not treat the claimant; and (3) non-examining providers, those ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 2 Cir. 1996) (as amended). 3 A treating provider’s opinion is given the most weight, followed by an 4 examining provider, and finally a non-examining provider. Id. at 830-31. An ALJ 5 may reject the opinion of a non-examining doctor by reference to specific evidence 6 in the medical record. See Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). 7 In the absence of a contrary opinion, a treating or examining provider’s opinion 8 may not be rejected unless “clear and convincing” reasons are provided. Id. at 830. 9 If a treating or examining provider’s opinion is contradicted, it may only be 10 discounted for “specific and legitimate reasons that are supported by substantial 11 evidence in the record.” Id. at 830-31. 12 “Other sources” for opinions include nurse practitioners, physicians' 13 assistants, therapists, teachers, social workers, spouses, and other non-medical 14 sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is required to “consider 15 observations by non-medical sources as to how an impairment affects a claimant's 16 ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987). Non- 17 medical testimony can never establish a diagnosis or disability absent 18 corroborating competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 19 (9th Cir.1996). An ALJ is obligated to give reasons germane to “other source” 20 testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 Ms. Ehrler does not present any argument in her current briefing regarding 2 the ALJ’s weighing of the opinion evidence. As noted in the remand order, the 3 2014 brief submitted by Ms. Ehrler’s counsel is not well organized and 4 unnecessarily difficult to parse and analyze. AR 658. However, the two opinions at 5 issue in the 2014 motion for summary judgment, where those of physician’s 6 assistant Kathleen Duthie, and Dr. Frank Rosekrans. Once the ALJ re-evaluated 7 the opinion evidence in light of the updated credibility findings and with the 8 addition of yet another doctor refuting the findings of Ms. Duthie and Dr. 9 Rosekrans, the ALJ again afforded their opinions little weight. AR 596, 598. 10 The ALJ properly determined that the opinions of Ms. Duthie and Dr. 11 Rosekrans are inconsistent with the findings of other medical professionals as well 12 as their own findings, and are based on Ms. Ehrler’s subjective complaints. Id. As 13 the remand order points out, it is reasonable for an ALJ to discount an opinion 14 predicated on subjective complaints found to be less than credible. Bray v Comm’r 15 of Soc. Sec., 554 F.3d 1219, 1228 (9th Cir. 2009). As stated above, the ALJ 16 properly discounted Ms. Ehrler’s credibility, and the opinions based on her 17 subjective complaints that have been found less than credible are properly 18 discounted. 19 20 Thus the ALJ did not err is weighing the opinion evidence. // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 3. The ALJ Properly Determined the Residual Functional Capacity. 2 Pursuant to the remand order, the ALJ was to reassess Ms. Ehrler’s residual 3 functional capacity. AR 670. The ALJ appropriately did so. AR 587. 4 In her 2014 motion for summary judgment and briefing, Ms. Ehrler briefly 5 attempts to argue that her assessed residual functioning capacity did not account 6 for all of her limitations, based on Ms. Ehrler’s subjective complaints and 7 testimony. Specifically, Ms. Ehrler contends that the residual functional capacity is 8 incomplete because it fails to take into account additional limitations from which 9 she has suggested she suffers; however, the Court has already found no error in the 10 ALJ’s treatment of Ms. Ehrler’s subjection complaint testimony and determined 11 that the ALJ properly discounted her credibility. See supra at 16-18. The Court will 12 uphold the ALJ’s findings when a claimant attempts to restate the argument that 13 the residual functional capacity finding did not account for all limitations. Stubbs- 14 Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). 15 The ALJ properly determined Ms. Ehrler’s residual functional capacity. 16 Additionally, the ALJ found Ms. Ehrler can perform past relevant work and the 17 vocational expert identified jobs in the national economy that exist in significant 18 numbers that match the abilities of Ms. Ehrler, given her limitations. Thus, the 19 Court finds the ALJ did not err in his analysis. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 VIII. Conclusion 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is supported by substantial evidence and is free from legal error. 4 Accordingly, IT IS ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is 7 GRANTED. 8 3. Judgment shall be entered in favor of Defendant and the file shall be 9 CLOSED. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 10 forward copies to counsel and close the file. 11 DATED this 9th day of May, 2017. 12 13 14 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22
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