Johnson-Tingley v. Commissioner of Social Security, No. 1:2016cv03201 - Document 16 (E.D. Wash. 2017)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 14 denying 13 Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (VR, Courtroom Deputy)
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Johnson-Tingley v. Commissioner of Social Security Doc. 16 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 TAMMY JOHNSON-TINGLEY, 7 Plaintiff, 8 v. 9 10 11 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, No. 1:16-CV-03201-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF 13 Nos. 13 and 14. Ms. Johnson-Tingley brings this action seeking judicial review, 14 pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which 15 denied her application for Disability Insurance Benefits and Supplemental Security 16 Income under Titles II & XVI of the Social Security Act, 42 U.S.C §§ 401-434 & 17 1381-1383F. After reviewing the administrative record and briefs filed by the 18 parties, the Court is now fully informed. For the reasons set forth below, the Court 19 GRANTS Defendant’s Motion for Summary Judgment and DENIES Ms. 20 Johnson-Tingley’s Motion for Summary Judgment. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 I. Jurisdiction Ms. Johnson-Tingley protectively filed for Disability Insurance Benefits 3 under Title II and Supplemental Security Income under Title XVI on October 23, 4 2012. AR 18. Her alleged onset date is July 30, 2012. AR 18. Ms. Johnson- 5 Tingley’s application was initially denied on December 14, 2012, AR 18, and on 6 reconsideration on June 12, 2013, AR 18. 7 A hearing with Administrative Law Judge (“ALJ”) Laura Valente occurred 8 on February 10, 2015. AR 18. On September 16, 2013, the ALJ issued a decision 9 finding Ms. Johnson-Tingley ineligible for disability benefits. AR 21-36. The 10 Appeals Council denied Ms. Johnson-Tingley’s request for review on March 21, 11 2015, AR 1-6, making the ALJ’s ruling the “final decision” of the Commissioner. 12 Ms. Johnson-Tingley timely filed the present action challenging the denial of 13 benefits, on May 15, 2015. ECF No. 3. Accordingly, Ms. Johnson-Tingley’s claims 14 are properly before this Court pursuant to 42 U.S.C. § 405(g). 15 16 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 17 substantial gainful activity by reason of any medically determinable physical or 18 mental impairment which can be expected to result in death or which has lasted or 19 can be expected to last for a continuous period of not less than twelve months.” 42 20 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 under a disability only if the claimant’s impairments are of such severity that the 2 claimant is not only unable to do his previous work, but cannot, considering 3 claimant's age, education, and work experience, engage in any other substantial 4 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 5 1382c(a)(3)(B). 6 The Commissioner has established a five-step sequential evaluation process 7 for determining whether a claimant is disabled within the meaning of the Social 8 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 9 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 10 Step one inquires whether the claimant is presently engaged in “substantial 11 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 12 activity is defined as significant physical or mental activities done or usually done 13 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 14 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 15 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 16 Step two asks whether the claimant has a severe impairment, or combination 17 of impairments, that significantly limits the claimant’s physical or mental ability to 18 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 19 impairment is one that has lasted or is expected to last for at least twelve months, 20 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 416.908-09. If the claimant does not have a severe impairment, or combination of 2 impairments, the disability claim is denied, and no further evaluative steps are 3 required. Otherwise, the evaluation proceeds to the third step. 4 Step three involves a determination of whether any of the claimant’s severe 5 impairments “meets or equals” one of the listed impairments acknowledged by the 6 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 7 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 8 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 9 equals one of the listed impairments, the claimant is per se disabled and qualifies 10 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 11 the fourth step. 12 Step four examines whether the claimant’s residual functional capacity 13 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 14 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 15 is not entitled to disability benefits and the inquiry ends. Id. 16 Step five shifts the burden to the Commissioner to prove that the claimant is 17 able to perform other work in the national economy, taking into account the 18 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 19 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 20 burden, the Commissioner must establish that (1) the claimant is capable of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 performing other work; and (2) such work exists in “significant numbers in the 2 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 3 676 F.3d 1203, 1206 (9th Cir. 2012). 4 5 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 6 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 7 Commissioner's decision will be disturbed “only if it is not supported by 8 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 9 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 10 a mere scintilla but less than a preponderance; it is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 12 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 13 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 14 whether the Commissioner’s findings are supported by substantial evidence, “a 15 reviewing court must consider the entire record as a whole and may not affirm 16 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 17 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 18 F.2d 498, 501 (9th Cir. 1989)). 19 20 In reviewing a denial of benefits, a district court may not substitute its judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 1992). If the evidence in the record “is susceptible to more than one rational 2 interpretation, [the court] must uphold the ALJ's findings if they are supported by 3 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 4 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 5 2002) (if the “evidence is susceptible to more than one rational interpretation, one 6 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 7 a district court “may not reverse an ALJ's decision on account of an error that is 8 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 9 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 10 The burden of showing that an error is harmful generally falls upon the party 11 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 12 IV. 13 Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 14 and only briefly summarized here. Ms. Johnson-Tingley was 48 years old at the 15 alleged onset date. AR 595. She dropped out of school in the ninth grade and has 16 never obtained her general education diploma. Id. She has no college or formal 17 vocational training. Id. Ms. Johnson-Tingley is the mother of two children. AR 64, 18 85. 19 20 Among the conditions cited in Ms. Johnson-Tingley’s medical record are obesity, diabetes mellitus, degenerative disc disease, sprains, gastrointestinal ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 disorders, anxiety disorder, affective disorder, personality disorder and somatoform 2 disorder. AR 20. A disability report from July 3, 2013, also lists multiple sclerosis, 3 panic attacks, depression, high blood pressure, lower back pain, neck pain, and 4 shoulder pain. AR 329. 5 Ms. Johnson-Tingley has previous work experience as a cashier in various 6 positions from 1999 through 2012. AR 46-52. Ms. Johnson-Tingley was in a car 7 accident in May 2005. ECF No. 13 at 1. Post-accident she has been fired from 8 multiple positions due to missing too much work for health problems. AR 46-52. 9 V. 10 The ALJ’s Findings The ALJ determined that Ms. Johnson-Tingley was not under a disability 11 within the meaning of the Act from July 30, 2012, her alleged date of onset. AR 12 33. 13 At step one, the ALJ found that Ms. Johnson-Tingley had not engaged in 14 substantial gainful activity since July 30, 2012, her alleged onset date (citing 20 15 C.F.R. §§ 404.1571 et seq. & 416.971 et seq.). AR 20. 16 At step two, the ALJ found Ms. Johnson-Tingley had the following severe 17 impairments: obesity, diabetes mellitus, degenerative disc disease, sprains, 18 gastrointestinal disorders, anxiety disorder, affective disorder, personality disorder 19 and somatoform disorder (citing 20 C.F.R. §§ 404.1520(c) & 416.920(c)). AR 20. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 At step three, the ALJ found that Ms. Johnson-Tingley did not have an 2 impairment or combination of impairments that meets or medically equals the 3 severity of one of the listed impairments in 20 C.F.R. §§ 404, Subpt. P, App. 1. AR 4 23. 5 At step four, the ALJ found Ms. Johnson-Tingley has the residual functional 6 capacity: (1) lift and carry 20 pounds occasionally and 10 pounds frequently; (2) 7 sit, stand and walk for six hours each in an eight-hour workday; (3) limited to 8 occasional overhead reaching bilaterally; (4) no limitations balancing and can 9 frequently stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and 10 scaffolds; (5) sufficient concentration to understand, remember and carry out 11 simple repetitive tasks ; and (6) maintain concentration, pace, and attention in two 12 hour increments for simple, repetitive task work for eight hours in an eight-hour 13 workday; (7) work superficially and occasionally with the general public; (8) work 14 in the same room and vicinity with an unlimited number of coworkers, but should 15 not work in coordination with them; (9) make simple workplace decisions as 16 would be required for simple, repetitive task work; (10) should not be required to 17 drive; (11) can interact occasionally with supervisors and with occasional 18 interaction, she is likely to respond appropriately to supervisor criticism; and (12) 19 with these restrictions, complete a normal day and workweek. AR 24-31. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 The ALJ determined that Ms. Johnson-Tingley is capable of performing her 2 past relevant work as a cashier II, telephone solicitor, and cafeteria attendant. AR 3 31. 4 At step five, the ALJ found that although Ms. Johnson-Tingley is capable of 5 performing past relevant work, and there are other jobs existing in the national 6 economy that she is also able to perform. AR 31. 7 VI. Issues for Review 8 Ms. Johnson-Tingley argues that the Commissioner’s decision is not free of 9 legal error and not supported by substantial evidence. Specifically, she argues the 10 ALJ erred by: (1) improperly weighing the medical opinions; (2) improperly 11 assessing Ms. Johnson-Tingley’s medically-determinable severe impairments; (3) 12 improperly assessing the residual functional capacity and finding that Ms. Johnson- 13 Tingley can perform past relevant work and adjust to other work in the economy; 14 and (4) discrediting Ms. Johnson-Tingley without specific, clear and convincing 15 reasons to do so. 16 17 18 VII. Discussion A. The ALJ Properly Weighed the Medical Opinion Evidence. The Ninth Circuit has distinguished between three classes of medical 19 providers in defining the weight to be given to their opinions: (1) treating 20 providers, those who actually treat the claimant; (2) examining providers, those ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 who examine but do not treat the claimant; and (3) non-examining providers, those 2 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 3 Cir. 1995). 4 5 6 7 8 9 10 A treating provider’s opinion is given the most weight, followed by an examining provider, and finally a non-examining provider. Id. at 830-31. In the absence of a contrary opinion, a treating or examining provider’s opinion may not be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a treating or examining provider’s opinion is contradicted, it may only be discounted for “specific and legitimate reasons that are supported by substantial evidence in the record.” Id. at 830-31. 11 The ALJ may meet the specific and legitimate standard by “setting out a 12 detailed and thorough summary of the facts and conflicting clinical evidence, 13 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 14 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 15 provider’s opinion on a psychological impairment, the ALJ must offer more than 16 his or her own conclusions and explain why he or she, as opposed to the provider, 17 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 It is the Commissioner’s responsibility, and not a physician’s, to make the 2 determination of whether a claimant’s limitations meet the statutory definition of 3 disability. McLeod v. Astrue, 640 F.3d 881, 884-85 (9th Cir. 2011). 4 a. Dr. Jamie Simmons, M.D. 5 Dr. Jamie Simmons, M.D., was Ms. Johnson-Tingley’s treating psychiatrist. 6 AR 29. Nevertheless, the ALJ gave “minimal weight” to her opinions because the 7 treatment records do not contain objective findings in examinations that support 8 the assessed limitations, and the overall record for all sources do not support the 9 opinions of Dr. Simmons. AR 29-30. Ms. Johnson-Tingley argues that the ALJ 10 erred in assigning this amount of weight to her treating psychiatrist’s opinions. 11 ECF No. 13 at 5-8. 12 An ALJ may properly discredit a doctor’s opinion if it is contradicted by 13 objective evidence or other findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 14 Cir. 2005). In particular, Dr. Simmon’s June 10, 2014, mental source statement 15 form opining Ms. Johnson-Tinlgey’s limitations provides “minimal rationale” and 16 is unsupported by the record. AR 30, 1196-99. In addition, the Ninth Circuit has 17 “repeatedly held that the ALJ may permissibly reject check-off reports that do not 18 contain any explanation of the bases of their conclusion. Molina, 674 F. 3d 1110- 19 11. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 The ALJ asserts that the only objective evidence Dr. Simmons presented 2 was Ms. Johnson-Tingley’s score of 20/30 on the Montreal Cognitive Assessment 3 (“MOCA”), 1 AR 1196-99, however, the ALJ questioned whether Ms. Johnson- 4 Tingley gave her best efforts on that testing. AR 30. Dr. Simmons opinions were 5 also not confirmed by other sources in the record. Records from Ms. Johnson- 6 Tingley’s primary care provider show her memory was normal and that she was 7 fully oriented at visits. AR 30, 1266, 1269, 1272. On September 24, 2013, upon 8 examination, Ms. Johnson-Tingley was oriented to time, place, and person and 9 recent memory was normal. AR 22, 1269. On October 14, 2014, Ms. Johnson- 10 Tingley’s judgment was good, she was alert and oriented to time, place and person, 11 and her recent and remote memory was normal. AR 22, 1266. Therefore, the ALJ 12 did not err in assigning this opinion minimal weight. 13 When assigning weight to Dr. Simmons opinions, the ALJ also noted that 14 some of her opinions were internally inconsistent. Dr. Simmons opined that Ms. 15 Johnson-Tingley was not significantly limited in abilities to maintain attention and 16 concentration for extended periods of time, perform activities with a schedule, 17 18 19 20 A score of 26/30 is considered normal. See “Montreal Cognitive Assessment,” MOCATEST.ORG, http://www.mocatest.org/pdf_files/instructions/MoCA-Instructions-English_2010.pdf (last visited November 6. 2017). 1 The Montreal Cognitive Assessment (MoCA) was designed as a rapid screening instrument for mild cognitive dysfunction. It assesses different cognitive domains: attention and concentration, executive functions, memory, language, visuoconstructional skills, conceptual thinking, calculations, and orientation. Time to administer the MoCA is approximately 10 minutes. The total possible score is 30 points; a score of 26 or above is considered normal. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 maintain regular attendance, and be punctual within customary tolerances. AR 30, 2 1196-1199. Dr. Simmons also noted that Ms. Johnson-Tingley had no difficulties 3 in maintaining concentration, persistence, and pace. Id. However, she also opined 4 that the claimant would be off task over 30 percent of the time during a 40-hour 5 workweek. AR 1196. In addition to this, Dr. Simmons opined that Ms. Johnson- 6 Tingley was moderately limited in the ability to accept instructions and respond 7 appropriately to criticism from supervisors, but also stated that the claimant had no 8 difficulties in maintaining social functioning. Id. Because inconsistencies between 9 a physician’s opinion and the medical record are sufficient grounds to reject an 10 opinion, the ALJ did not err in assigning minimal weight to Dr. Simmons opinions. 11 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 12 13 b. Dr. Rox C. Burkett, M.D. Dr. Rox C. Burkett, M.D., reviewed Ms. Johnson-Tingley’s medical records 14 on March 23, 2015, at the request of Ms. Johnson-Tingley’s attorney, Mr. Tree. 15 AR 30, 1301-5. The ALJ assigned “minimal weight” to the opinion Dr. Burkett 16 issued due to inconsistencies between his opinion and the recent medical records as 17 well as the fact that he was obtained by counsel to “bolster” Ms. Johnson-Tingley’s 18 disability claim. AR 30. Ms. Johnson-Tingley claims the ALJ did so in error. ECF 19 No. 13 at 8-12. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 In his discussion of Ms. Johnson-Tingley’s medical evidence, Dr. Burkett 2 referenced things such as foot drop and right sided weakness, however, those 3 symptom complaints date back to 2007 and records show that Ms. Johnson- 4 Tingley returned to work after that time period. AR 30, 1301-5. In addition to this, 5 the medical records from the relevant time period do not mention foot drop and 6 Ms. Johnson-Tingley’s gait and strength were repeatedly described as normal by 7 other treatment providers. AR 30, see e.g., 1100, 1104, 1203, 1219. 8 9 10 11 12 13 14 15 16 17 18 19 20 Dr. Burkett also referenced findings from the 2014 Selah Clinic’s MRI’s of the Ms. Johnson-Tingley’s brain as suggestive of multiple sclerosis and chronic demyelinating neuritis, but Ms. Johnson-Tingley was ruled out for multiple sclerosis and was not receiving any treatment for chronic demyelinating neuritis. AR 30, 1181. Dr. Burkett also referenced headaches, but Ms. Johnson-Tingley was able to work in the past with headaches and records from the relevant period do not show that the headaches significantly limit her ability to do basic work and she is not receiving any treatment for them. Id. When a doctor’s opinion is based “to a large extent” on the claimant’s self-reports, and the claimant’s subjective complaints have been properly discredited, an ALJ may give limited weight to that opinion. Tommasetti, 533 F.3d at 1041. In addition to this the Ninth Circuit has stated, “when evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 by clinical findings.” See Bayliss, 427 F.3d at 1216 citing to Tonapetyan v. Halter, 2 242 F.3d 1144, 1149 (9th Cir. 2001). 3 4 5 6 7 8 9 10 It was appropriate for the ALJ to assign minimal weight to Dr. Burkett’s opinion due to lack of supporting evidence and contradictory findings, coupled with the opinion being solicited by counsel in order to bolster Ms. JohnsonTingley’s claims. See Saelee v. Chater, 94 F.3d 520, 522-23 (9th Cir. 1996) (recognizing that although the purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them, ALJ’s have also been permitted to question a doctor’s credibility because the doctor’s opinion letter had been solicited by claimant’s counsel). 11 c. Dr. Emma J. Billings, Ph.D. 12 Dr. Emma J. Billings, Ph.D., performed a consultative psychological 13 evaluation and rated the Ms. Johnson-Tingley’s Global Assessment of Functioning 14 (“GAF”) on May 30, 2013. AR at 28, 600. The ALJ assigned “some weight” to Dr. 15 Billings’ opinion. AR 28. Ms. Johnson-Tingley argues that the ALJ failed to give a 16 specific, legitimate reason to giving less weight to Dr. Billings’ one of findings. 17 18 In her report, Dr. Billings stated that Ms. Johnson-Tingley showed memory 19 difficulty maintaining attention and concentration during complex mental tasks and 20 that it was necessary to extend testing time 30 minutes past normal because she ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 was slow to respond to and complete many of the activities in the evaluation. AR 2 28, 601. The ALJ accepted that Ms. Johnson-Tingley would have difficulty with 3 complex mental tasks and accommodated this finding by factoring it into limiting 4 Ms. Johnson-Tingley to simple, repetitive task work. AR 28. However, the ALJ 5 assigned limited weight to the report that it took 30 minutes longer than normal for 6 Ms. Johnson-Tingley to complete the evaluation because other treatment care 7 providers did not report that the she was slow to respond and because her mental 8 status and activities showed that she can perform simple, repetitive task work at an 9 acceptable pace. Id. Further, records from Ms. Johnson-Tingley’s primary care 10 provider do not show that her memory was abnormal. AR 22. See supra at 12. 11 Therefore, the ALJ did not err in assigning this opinion minimal weight. See 12 Bayliss, at 1216 (stating that if a treating or examining doctor’s opinion is 13 contradicted by another doctor’s opinion, an ALJ may reject it by providing 14 specific and legitimate reasons that are supported by substantial evidence). 15 16 B. The ALJ Properly Assessed Ms. Johnson-Tingley’s MedicallyDeterminable Severe Impairments. 17 At step two in the five-step sequential evaluation for Social Security cases, the 18 ALJ must determine whether a claimant has a medically severe impairment or 19 combination of impairments. An impairment is found to be not severe “when 20 medical evidence establishes only a slight abnormality or a combination of slight ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 abnormalities which would have no more than a minimal effect on an individual’s 2 ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (quoting 3 SSR 85-28). Step two is “a de minimis screening device [used] to dispose of 4 groundless claims,” and the ALJ is permitted to find a claimant lacks a medically 5 severe impairment only when the conclusion is clearly established by the record. 6 Webb v. Barnhart, 433 F. 683, 687 (9th Cir. 2005) (quoting Smolen v. Chater, 80 7 F.3d 1273, 1290 (9th Cir.1996)). A diagnosis from an “acceptable medical source,” 8 such as a licensed physician or certified psychologist, is necessary to establish a 9 medically determinable impairment. 20 C.F.R. § 416.913(a). 10 11 12 13 14 15 Under step 2, an impairment is not severe if it does not significantly limit a claimant’s ability to perform basic work activities. Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (citing 20 C.F.R. § 404.1521(a)(b)). Ms. Johnson-Tingley argues that the ALJ erred by finding that she did not have the severe medically-determinable impairments of chronic inflammatory demyelinating polyneuritis, fibromyalgia and dementia. ECF No. 13 at 14. 16 a. Chronic Inflammatory Demyelinating Polyneuritis 17 18 19 20 A report from October 30, 2014, by Dr. Laura Wulff, M.D., showed that Ms. Johnson-Tingley’s problems included chronic inflammatory demyelinating polyneuritis. However, the ALJ did not consider this because Dr. Wulff did not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 include this condition among the diagnoses rendered that day or at a prior 2 evaluation a week before. AR 22, 1259, 1263. In addition, this condition was also 3 listed in the problem list on a chart note by Dr. Marciano Capati Jr., M.D., on 4 October 14, 2014, but he also did not list it among the diagnoses he rendered. AR 5 28, 1267. For these reasons and because she was not receiving any treatment for 6 chronic inflammatory demyelinating polyneuritis, the ALJ properly did not include 7 it as one of Ms. Johnson-Tingley’s severe impairments. 8 b. Fibromyalgia 9 The ALJ notes that records from 2005 and 2006 show that fibromyalgia was 10 suggested as a possible diagnosis, but also that the claimant was not formally 11 diagnosed with this condition. AR 22, 981, 962. In 2014, Dr. Gordon Irving, M.D., 12 diagnosed Ms. Johnson-Tingley with fibromyalgia because of her history of 13 widespread pain and based on his report that she had 11/18 tender points, more 14 than three axial body areas and pain for more than three months. AR 22, 1191-92. 15 Despite this diagnosis, the ALJ claimed the record did not support a diagnosis of 16 this condition. AR 22. The ALJ pointed to Ms. Johnson-Tingley’s history of pain 17 not being in all four quadrants, and that medical records do not show any report of 18 her complaining of pain in the left side of her body or below the waist. Id. For 19 these reasons the ALJ appropriately found that fibromyalgia does not qualify as 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 one of Ms. Johnson-Tingley’s severe impairments because a claimant cannot rely 2 on a physician’s diagnosis of a condition alone. SSR 12-2 at *2. 3 4 5 6 7 8 9 10 11 12 c. Dementia On December 30, 2013, Dr. Simmons diagnosed Ms. Johnson-Tingley with dementia. AR 22, 1243. Dr. Simmons noted that a prior doctor had commented that Ms. Johnson-Tingley could not identify the previous president, but that the doctor suspected this was attributable to poor effort, if not actually intentional. AR 22, 1236-55. On February 7, 2014, Dr. Simmons quizzed Ms. Johnson-Tingley on the current and previous president and she was unable to identify the previous president after two attempts. AR 22 23F5. Dr. Simmons was of the opinion that Ms. Johnson-Tingley gave good effort during this questioning and again diagnosed her with dementia. Id. 13 Despite Dr. Simmons diagnosis, the ALJ pointed to records from Ms. 14 Johnson-Tingley’s primary care provider do not show that her memory was 15 abnormal. AR 22. See supra at 12, 16. For instance, on September 24, 2013, upon 16 examination, Ms. Johnson-Tingley was oriented to time, place, and person and 17 recent memory was normal. AR 22, 1269. On October 14, 2014, Ms. Johnson18 Tingley’s judgment was good, she was alert and oriented to time, place and person, 19 and her recent and remote memory was normal. AR 22, 1266. In addition to these 20 findings, the ALJ also noted that Dr. Simmons did not review the primary care ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 provider’s records and was unaware of the discrepancies when formulating her 2 diagnoses. 3 4 5 6 7 The ALJ provided a well-reasoned explanation for her finding at step two, and the Court determines no error. C. The ALJ Properly Assessed Ms. Johnson-Tingley’s RFC, PRW, and Ability to Adjust to Other Work in the Economy. Ms. Johnson-Tingley attempts to reargue the same issues in her challenge to 8 the ALJ’s step four finding that she was able to return to her past relevant work 9 and the ALJ’s step five finding that there were alternative jobs available. Ms. 10 Johnson-Tingley bases her argument on the hypothetical posed to the vocational 11 expert, which she asserts was incomplete. ECF No. 1 at 16-18. Specifically, she 12 challenges the ALJ disregarding medical reasons without sufficient reason to do 13 so; however, the Court has already found no error in the ALJ’s weight assigned to 14 the medical opinion. See supra at 11-16. The Court will uphold the ALJ’s findings 15 when a claimant attempts to restate the argument that the residual functional 16 capacity finding did not account for all limitations. Stubbs-Danielson v. Astrue, 17 539 F.3d 1169, 1175-76 (9th Cir. 2008). 18 The Court “must uphold the ALJ’s findings if they are supported by 19 inferences reasonably drawn from the record.” Molina, 674 F. 3d at 1111; see also 20 Thomas, 278 F. 3d at 954 (if the “evidence is susceptible to more than one rational ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 interpretation, one of which supports the ALJ’s decision, the conclusion must be 2 upheld”). 3 4 5 6 7 8 9 10 11 D. The ALJ Did Not Err By Discrediting Ms. Johnson-Tingley. An ALJ engages in a two-step analysis to determine whether a claimant’s testimony regarding subjective symptoms is credible. Tommasetti, 533 F.3d at 1039. First, the claimant must produce objective medical evidence of an underlying impairment or impairments that could reasonably be expected to produce some degree of the symptoms alleged. Id. Second, if the claimant meets this threshold, and there is no affirmative evidence suggesting malingering, “the ALJ can reject the claimant’s testimony about the severity of [his] symptoms only by offering specific, clear, and convincing reasons for doing so.” Id. 12 In weighing a claimant's credibility, the ALJ may consider many factors, 13 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 14 reputation for lying, prior inconsistent statements concerning the symptoms, and 15 other testimony by the claimant that appears less than candid; (2) unexplained or 16 inadequately explained failure to seek treatment or to follow a prescribed course of 17 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 18 1284 (9th Cir. 1996). When evidence reasonably supports either confirming or 19 reversing the ALJ's decision, the Court may not substitute its judgment for that of 20 the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). “General findings ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 are insufficient: rather the ALJ must identify what testimony is not credible and 2 what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834 (as 3 amended). 4 In briefing, Ms. Johnson-Tingley points to several pieces of evidence that 5 she asserts proves ample objective evidence of her complaints. ECF No. 13 at 14- 6 16 . The ALJ is the ultimate arbiter of the evidence, and the Court will not reverse 7 the ALJ’s evaluation because one party disagrees with the threshold of required 8 evidence. See, e.g., Molina, 674 F.3d at 1111; Thomas, 278 F.3d at 954. 9 The ALJ identified multiple reasons for discrediting Ms. Johnson-Tingley. 10 First, Ms. Johnson-Tingley claims that the ALJ improperly discredited her for not 11 taking pain medications or seeking other pain treatment in 2013-2014 because in 12 her opinion nothing helped. ECF No. 13 at 18. However, the ALJ notes that 13 treatment records from 2013 and 2014 make limited mention of neck and back 14 pain. AR 27. And treatment records after 2008 make little mention of shoulder 15 pain. AR 27, 1019-1083, 1200-1235, 1256-1294. 16 17 18 19 20 In addition to this, the ALJ points to Ms. Johnson-Tingley being seen once at the Swedish Pain Center on May 22, 2014, but never attending a six week follow up as she was supposed to. AR 27, 1195. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[I]nadequately explained failure to seek treatment . . . can cast doubt on the sincerity of [a] claimant’s [] testimony.”). A claimant’s statements ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 may be less credible when treatment is inconsistent with the level of complaints or 2 a claimant is not following treatment prescribed without good reason. Molina, 674 3 F.3d at 1114. When refusing prescribed treatment, the reasons presented for not 4 following the treatment must be related to the mental impairment and not a matter 5 of personal preference. Id. 6 7 8 9 10 11 12 13 Second, Ms. Johnson-Tingley believes that the ALJ erred by discrediting her for her GI symptoms. ECF No. 13 at 19. The record shows that the ALJ properly looked to evidence that her gastroesophageal reflux disease symptoms improved with omeprazole. AR 27. See Tommasetti, 533 F.3d at 1040 (ALJ may consider a claimant’s response to treatment in finding disability). And although she reported intermittent abdominal pain, no etiology was found for these complaints in 2012 and 2013 exams. AR 27, 489, 1270. Ms. Johnson-Tingley also, complained of constipation at times, but the symptoms did not last 12 months. AR 27, 1212, 1256. 14 Third, Ms. Johnson-Tingley asserts that the ALJ improperly discredited her 15 for her anxiety and panic attacks. ECF No. 13 at 19. The ALJ pointed to Ms. 16 Johnson-Tingley complaining of such symptoms in 2006 but subsequently working 17 in occupations that entailed dealing with the public such as cashiering and working 18 at the fairgrounds. AR 27. See, e.g., Gregory v. Bowen, 844 F.2d 664, 666-67 (9th 19 Cir. 1988) (a claimant’s ability to continue working despite impairments tend to 20 support a finding the impairments are not disabling). Additionally, on January 3, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 2013, Ms. Johnson-Tingley also reported having panic attacks every other day, 2 however, on January 14, 2013 she was observed to have normal mood and affect. 3 AR 28, 1251, 1253. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Lastly, Ms. Johnson-Tingley claims that the ALJ improperly discredited her for “some inconsistencies,” ECF No. 13 at 19, because the ALJ identified the following: On September 15, 2013, Ms. Johnson-Tingley told her psychiatrist that she had not taken her Paxil medication in three months and that she was waking with panic attacks once a week and presented herself as anxious with dysphoric mood. AR 28, 1237. Yet, when she was seen by her primary care provider the next month she presented with normal mood and affect. AR 28, 1266. And, on September 25, 2013, Ms. Johnson-Tingley reported that she had stopped taking her medication three months earlier due to cost and presented as anxious with dysphoric mood. AR 28, 1246. However, when see by her primary care provider on September 24, 2013, she presented as active and alert with normal mood and affect. AR 28, 1269. And although Ms. Johnson-Tingley’s visits with her psychiatrist led to a diagnosis of dementia, other treatment records show that she was observed to have normal orientation and memory and that she did not have the angry, hostile manner towards these providers that she has connected to her dementia. AR 28. Finally, despite making a statement that she had only been outside once in the prior month, Ms. Johnson-Tingley left her home on four ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 different occasions that month to attend medical appointments. AR 27, 314, 1230, 2 1251, 1253, 1271. 3 4 5 6 7 The ALJ interpreted these inconsistencies as evidence that Ms. JohnsonTingley’s subjective complaints were not present or as severe as she indicated. This was a permissible, rational interpretation that is supported by substantial evidence, see Tommasetti, 533 F.3d at 1040, and the Court finds no error with the ALJ’s determination. 8 9 10 11 12 13 14 15 16 17 18 19 20 VIII. Conclusion Having reviewed the record and the ALJ’s findings, the Court finds the ALJ’s decision is supported by substantial evidence and free from legal error. Accordingly, IT IS ORDERED: 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 3. Judgment shall be entered in favor of Defendant and the file shall be CLOSED. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel and close the file. DATED this 17th day of November, 2017. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25
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