Arndt v. Commissioner of Social Security, No. 1:2018cv03035 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER Granting 14 Defendant's Motion for Summary Judgment and Denying 10 Plaintiff's Motion for Summary Judgment. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator)
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Arndt v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jan 15, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 KEITH A., NO: 1:18-CV-3035-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 10 and 14. This matter was submitted for consideration 15 without oral argument. The plaintiff is represented by Attorney D. James Tree. 16 The defendant is represented by Special Assistant United States Attorney Ryan Lu. 17 The Court has reviewed the administrative record, the parties’ completed briefing, 18 and is fully informed. For the reasons discussed below, the Court GRANTS 19 Defendant’s Motion for Summary Judgment, ECF No. 14, and DENIES Plaintiff’s 20 Motion for Summary Judgment, ECF No. 10. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 JURISDICTION Plaintiff Keith A. 1 protectively filed for disability insurance benefits on May 2 3 12, 2014. Tr. 215-16. Plaintiff alleged an onset date of July 31, 2006. Tr. 215. 4 Benefits were denied initially, Tr. 136-38, and upon reconsideration, Tr. 139-40. 5 Plaintiff appeared for a hearing before an administrative law judge (“ALJ”) on 6 March 22, 2017. Tr. 63-111. Plaintiff was represented by counsel and testified at 7 the hearing. Id. The ALJ denied benefits, Tr. 12-32, and the Appeals Council 8 denied review. Tr. 1. The matter is now before this court pursuant to 42 U.S.C. § 9 405(g). 10 BACKGROUND 11 The facts of the case are set forth in the administrative hearing and 12 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 13 Only the most pertinent facts are summarized here. 14 Plaintiff was 57 years old at the time of the hearing. Tr. 70. He completed 15 high school and some college. Tr. 71. During the relevant time period he was 16 single, never married, and lived on a boat by himself. Tr. 70-71. Plaintiff has 17 work history as a clean-up worker, cargo inspector, chemistry lab technologist, and 18 tool calibrator. Tr. 101-04. He testified that he could not work during the relevant 19 1 20 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 decision. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 adjudicatory period because he was too depressed to work for long periods of time, 2 which “affected [his] job performance, [his] attendance and the attitude of [his] 3 employers.” Tr. 74-75. 4 Plaintiff testified that during the relevant period he felt depressed 80% of the 5 time and felt “good” 20% of the time; and he alternated between periods of high 6 productivity followed by a depressive “crash.” Tr. 93-95. Plaintiff testified that he 7 would isolate for weeks or months at a time “in a state of deep depression”; and he 8 would also have episodes of hypomania that negatively affected his judgment. Tr. 9 75, 85, 96-97. Plaintiff also testified that he was misdiagnosed with depression 10 and treated accordingly for many years before and after the relevant adjudicatory 11 period, but was later diagnosed with bipolar disorder which, according to his 12 testimony, is treated differently. Tr. 89-91. 13 14 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 15 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 16 limited; the Commissioner’s decision will be disturbed “only if it is not supported 17 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 18 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 19 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 20 (quotation and citation omitted). Stated differently, substantial evidence equates to 21 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 citation omitted). In determining whether the standard has been satisfied, a 2 reviewing court must consider the entire record as a whole rather than searching 3 for supporting evidence in isolation. Id. 4 In reviewing a denial of benefits, a district court may not substitute its 5 judgment for that of the Commissioner. If the evidence in the record “is 6 susceptible to more than one rational interpretation, [the court] must uphold the 7 ALJ’s findings if they are supported by inferences reasonably drawn from the 8 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 9 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 10 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 11 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 12 party appealing the ALJ’s decision generally bears the burden of establishing that 13 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 14 15 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 16 the meaning of the Social Security Act. First, the claimant must be “unable to 17 engage in any substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death or which 19 has lasted or can be expected to last for a continuous period of not less than twelve 20 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 21 “of such severity that he is not only unable to do his previous work[,] but cannot, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 considering his age, education, and work experience, engage in any other kind of 2 substantial gainful work which exists in the national economy.” 42 U.S.C. § 3 423(d)(2)(A). 4 The Commissioner has established a five-step sequential analysis to 5 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 6 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 7 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 8 “substantial gainful activity,” the Commissioner must find that the claimant is not 9 disabled. 20 C.F.R. § 404.1520(b). 10 If the claimant is not engaged in substantial gainful activity, the analysis 11 proceeds to step two. At this step, the Commissioner considers the severity of the 12 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 13 from “any impairment or combination of impairments which significantly limits 14 [his or her] physical or mental ability to do basic work activities,” the analysis 15 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 16 does not satisfy this severity threshold, however, the Commissioner must find that 17 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 18 At step three, the Commissioner compares the claimant’s impairment to 19 severe impairments recognized by the Commissioner to be so severe as to preclude 20 a person from engaging in substantial gainful activity. 20 C.F.R. § 21 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 404.1520(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 8 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education and 19 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 20 adjusting to other work, the Commissioner must find that the claimant is not 21 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 other work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 8 700 F.3d 386, 389 (9th Cir. 2012). 9 10 ALJ’S FINDINGS At step one, the ALJ found Plaintiff did not engage in substantial gainful 11 activity during the period from his alleged onset date of July 31, 2006 through his 12 date last insured of December 31, 2006. Tr. 17. At step two, the ALJ found 13 Plaintiff had the following severe impairments: diabetes mellitus and depression. 14 Tr. 17. At step three, the ALJ found that through the date last insured, Plaintiff did 15 not have an impairment or combination of impairments that met or medically 16 equaled the severity of a listed impairment. Tr. 17. The ALJ then found that 17 through the date last insured, Plaintiff had the RFC 18 19 20 to perform medium work as defined in 20 CFR 404.1567(c) except: He was limited to jobs that have a mental reasoning level no higher than 2. He was limited to performing simple and routine tasks. He was limited to simple work related decisions. He was limited to occasional interaction with supervisors and coworkers, and no public contact. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 Tr. 21. At step four, the ALJ found that through the date last insured, Plaintiff was 2 capable of performing past relevant work as a clean-up worker. Tr. 25. In the 3 alternative, at step five, the ALJ found that considering Plaintiff’s age, education, 4 work experience, and RFC, there were other jobs that exist in significant numbers 5 in the national economy that Plaintiff also could have performed, including: 6 laundry worker, hand packager, and stores laborer. Tr. 25-26. On that basis, the 7 ALJ concluded that Plaintiff was not under a disability, as defined in the Social 8 Security Act, at any time from July 31, 2006, the alleged onset date, through 9 December 31, 2006, the date last insured. Tr. 26. 10 ISSUES 11 Plaintiff seeks judicial review of the Commissioner’s final decision denying 12 her disability insurance benefits under Title II of the Social Security Act. ECF No. 13 10. Plaintiff raises the following issues for this Court’s review: 14 1. Whether the ALJ erred at step two; 15 2. Whether the ALJ erred at step three; 16 3. Whether the ALJ properly weighed the medical opinion evidence; 17 4. Whether the ALJ properly considered the lay witness evidence; and 18 5. Whether the ALJ properly considered Plaintiff’s symptom claims. 19 / / / 20 / / / 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 DISCUSSION A. Step Two 2 At step two, a claimant must establish that he or she suffers from a medically 3 determinable impairment. See Ukolov v. Barnhart, 420 F.3d 1002, 1004-1005 (9th 4 Cir. 2005). The claimant must prove the existence of a physical or mental 5 impairment by providing medical evidence consisting of signs, symptoms, and 6 laboratory findings. 20 C.F.R. § 404.1508 (1991). “Under no circumstances may 7 the existence of an impairment be established on the basis of symptoms alone.” 8 S.S.R. 96-4p. Thus, “regardless of how many symptoms an individual alleges, or 9 how genuine the individual's complaints may appear to be, the existence of a 10 medically determinable physical or mental impairment cannot be established in the 11 absence of objective medical abnormalities, i.e., medical signs and laboratory 12 findings.” Id. 13 Here, the ALJ found that depression was a severe impairment at step two. 14 Tr. 17. However, Plaintiff argues that the ALJ erred by failing to find that bipolar 15 disorder was a medically-determinable impairment, and further, “[b]ecause the 16 ALJ failed to consider [Plaintiff’s] bipolar disorder a medically-determinable 17 impairment, it could not have been considered within the RFC.” ECF No. 10 at 418 5. In support of this argument, Plaintiff cites the following evidence: a 2012 19 assessment that Plaintiff has a “3 decade long attempt[] to treat depression with a 20 number of antidepressants [and] appears to have a mood cycling problem 21 consistent with a diagnosis of Bipolar Affective Disorder, Type 2”; a 2015 opinion ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 from a treating family practice physician indicating that “bipolar disorder is 2 predominant problem,” but declining to assess any functional limitations based on 3 this diagnosis because it was not her area of expertise; a letter indicating Plaintiff 4 had symptoms “consistent with Bipolar 2 Disorder” and would be prescribed an 5 increase in medication to “target” those symptoms; and a 2017 letter from 6 Plaintiff’s treating psychiatrist opining that Plaintiff had struggled with bipolar 7 disorder symptoms since he was a teenager “based on his history.” ECF No. 10 at 8 5 (citing Tr. 362, 645, 661, 709). 9 As an initial matter, the Court notes that the relevant adjudicatory period 10 under consideration by the ALJ is the alleged onset date of July 31, 2006, through 11 Plaintiff’s date last insured of December 31, 2006. See Tr. 15. However, the 12 evidence cited by Plaintiff in support of his argument is entirely comprised of 13 records dated more than five years after Plaintiff’s date last insured in December 14 2006. The Court may disregard statements of disability made outside the relevant 15 time period. See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 16 2010). Moreover, Plaintiff does not cite any evidence “consisting of signs, 17 symptoms, and laboratory findings” to support a finding that bipolar disorder was a 18 medically determinable impairment during the relevant adjudicatory period. The 19 only evidence arguably relevant to the adjudicatory period is a 2017 letter from 20 Plaintiff’s treating psychiatrist retrospectively opining that Plaintiff suffered from 21 bipolar disorder since he was a teenager. Tr. 709. However, aside from this bare ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 diagnosis, Plaintiff fails to cite any specific limitation resulting from bipolar 2 disorder, at any point in the longitudinal record, that was not included in the 3 assessed RFC. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692, n.2 4 (9th Cir. 2009); Molina, 674 F.3d at 1111 (an error is harmless “where it is 5 inconsequential to the [ALJ's] ultimate nondisability determination”); Kay v. 6 Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (the “mere diagnosis of an 7 impairment … is not sufficient to sustain a finding of disability.”). 8 9 For all of these reasons, the Court finds the ALJ did not err in failing to find bipolar disorder was a medically determinable impairment. Rather, the ALJ 10 properly found, based on objective evidence from the relevant adjudicatory period, 11 that depression was a severe impairment at step two. 12 B. Step Three 13 14 Plaintiff faults the ALJ for finding at step three that Plaintiff’s mental impairment did not meet or medically equal the severity of a listed impairment. 2 15 16 2 17 disorder met or medically equaled the listing. ECF No. 10 at 5-6. However, “[t]o 18 meet the requirements of a listing, you must have a medically determinable Plaintiff argues the ALJ erred by failing to specifically assess whether bipolar impairment that satisfies all of the criteria in the listing.” 20 C.F.R. § 404.1525(d). 19 As discussed above, the ALJ did not err in failing to find bipolar disorder was a 20 medically determinable impairment at step two. Correspondingly, the ALJ did not 21 err in failing to evaluate bipolar disorder at step three, because it was not a medically determinable impairment. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 ECF No. 10 at 6-9. At step three, the ALJ must determine if a claimant’s 2 impairments meet or equal a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii). 3 The Listing of Impairments “describes for each of the major body systems 4 impairments [which are considered] severe enough to prevent an individual from 5 doing any gainful activity, regardless of his or her age, education or work 6 experience.” 20 C.F.R. § 404.1525. To meet a listed impairment, a claimant must 7 establish that he meets each characteristic of a listed impairment relevant to her 8 claim. 20 C.F.R. § 404.1525(d). If a claimant meets the listed criteria for 9 disability, he will be found to be disabled. 20 C.F.R. § 404.1520(a)(4)(iii). The 10 claimant bears the burden of establishing he meets a listing. Burch v. Barnhart, 11 400 F.3d 676, 683 (9th Cir. 2005). 12 In determining whether a claimant's mental impairments meet a listing, the 13 ALJ considers (1) whether specified diagnostic criteria (“paragraph A” criteria) are 14 met, and (2) whether specified functional limitations (“paragraph B” criteria) are 15 present. 20 C.F.R. § 404.1520a. To meet Listing 12.04, a claimant must satisfy 16 paragraph B criteria, which includes at least one extreme or two marked limitations 17 in these four areas of mental functioning: understanding, remembering, or applying 18 information; interacting with others; concentrating, persisting, or maintaining pace; 19 or adapting or managing oneself. 20 C.F.R. § 404, Subpart P, Appendix I. 20 “Marked” means more than moderate but less than extreme. Id. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Here, the ALJ concluded that the severity of Plaintiff’s mental impairments 2 did not meet or medically equal the criteria of Listing 12.04. Tr. 19. Specifically, 3 the ALJ found the “paragraph B” criteria were not satisfied because Plaintiff had 4 only moderate limitations in all four “paragraph B” areas of mental functioning. 5 Tr. 19-20. In support of this finding, the ALJ relied on Plaintiff’s testimony that he 6 helped his father with property management, which involved attending meetings 7 up to 250 miles away from his home at times up to twice a week; interacted with a 8 small town planning commission, engineers, and other interested parties; took 9 notes and shared notes with his father from these meetings regarding developing a 10 60-acre parcel; and made comments in these meetings. Tr. 19-20, 78-83. Further, 11 Plaintiff reported that he cared for his elderly mother, who was in poor health; 12 drove his father to the hospital for cancer treatments; ran errands; cooked meals; 13 washed laundry; drove a car; shopped for groceries; watched television; called 14 people on the phone and used a computer for emails; and handled money including 15 paying bills and using a checkbook. Tr. 19-20, 81-85, 265-68. 16 Plaintiff contends the ALJ erred in finding that Plaintiff had only moderate 17 limitations in two of the “paragraph B” criteria: (1) interacting with others, and (2) 18 adapting and managing himself. ECF No. 10 at 6-9. In support of this argument, 19 Plaintiff cites evidence of his “poor interactions with others,” including his self- 20 reports of “clashes” with the city manager; “tension” with his terminally ill mother 21 who he cared for along with his father; lack of romantic relationships; and history ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 of “deteriorating” relationships with coworkers or supervisors, including Plaintiff’s 2 report that a supervisor attempted to get a restraining order against him as a result 3 of his “threats.” ECF No. 10 at 7 (citing 88, 232-34, 361, 368). In addition, 4 Plaintiff argues the ALJ failed to consider evidence regarding his ability to adapt 5 and manage himself, including his self-reports of isolation for weeks or months at 6 a time, medical leaves of absence to manage his mental health, and inability to 7 succeed at one job despite being given “multiple chances to succeed by 8 transferring [Plaintiff] to different departments or jobs.” ECF No. 10 at 8 (citing 9 Tr. 75, 85, 92, 232-34, 367-68, 373, 428). Finally, Plaintiff cites lay witness 10 evidence that Plaintiff’s “mood swings and irritability resulted in alienation from 11 family and friends” and “[w]hen the same symptoms of depression and mania 12 evidenced themselves in his employment, he would either be terminated or quit 13 jobs on his own.” Tr. 300-01. 14 However, the Court notes that Plaintiff fails to cite medical evidence from 15 the relevant adjudicatory period, including opinion evidence, to support his 16 argument that the ALJ erred in considering this “paragraph B” criteria. Instead, 17 Plaintiff relies entirely on his own testimony and self-reported limitations, and the 18 lay witness testimony of Kathy Bennett. ECF No. 10 at 6-9. As noted by 19 Defendant, and discussed in detail below, the ALJ properly discounted Plaintiff’s 20 symptom claims, and granted little weight to the lay testimony of Kathy Bennett. 21 ECF No. 14 at 17. Accordingly, Plaintiff’s reliance on this evidence does not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 establish that the ALJ erred in failing to credit that evidence when assessing the 2 “paragraph B” criteria. 3 Based on the foregoing, and regardless of evidence that could be considered 4 more favorable to Plaintiff, the Court finds the ALJ properly considered the 5 “paragraph B” criteria; and ultimately concluded, based on substantial evidence, 6 that Plaintiff’s claimed mental impairments did not meet or medically equal Listing 7 12.04 during the relevant adjudicatory period. See Burch, 400 F.3d at 679 (where 8 evidence is susceptible to more than one interpretation, the ALJ’s conclusion must 9 be upheld). 10 11 C. Medical Opinions There are three types of physicians: “(1) those who treat the claimant 12 (treating physicians); (2) those who examine but do not treat the claimant 13 (examining physicians); and (3) those who neither examine nor treat the claimant 14 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 15 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir.2001) (citations omitted). 16 Generally, a treating physician's opinion carries more weight than an examining 17 physician's, and an examining physician's opinion carries more weight than a 18 reviewing physician's. Id. If a treating or examining physician's opinion is 19 uncontradicted, the ALJ may reject it only by offering “clear and convincing 20 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 21 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 2 providing specific and legitimate reasons that are supported by substantial 3 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 4 “However, the ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory and inadequately supported 6 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 7 (9th Cir. 2009) (quotation and citation omitted). 8 Plaintiff argues the ALJ improperly assessed the opinions of treating 9 physician Daniel McCabe, M.D., treating physician Stephen Wescott, M.D., and 10 examining physician Timothy S. Cahn, Ph.D. ECF No. 10 at 10-13, 17-19. 11 1. Daniel McCabe, M.D. 12 In January 2017, as noted by the ALJ, Dr. McCabe wrote a letter noting that 13 he had treated Plaintiff since August 2015 for bipolar disorder, “which has been 14 difficult to control with ongoing episodes of mania and depression.” Tr. 24 (citing 15 Tr. 709). Dr. McCabe also noted that bipolar disorder is “typically a disease 16 process in which individuals begin having symptoms in the late teenage years or 17 early 20’s. It is usually a disease process which requires lifelong treatment. Given 18 this [Dr. McCabe] believe[s] that [Plaintiff] has been struggling with Bipolar 19 Disorder Symptoms since his teenage years of 16-17 years of age based on his 20 history.” Tr. 709. The ALJ assigned Dr. McCabe’s opinion little weight for 21 several reasons. Tr. 24. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 “First, [Dr. McCabe] did not begin treating [Plaintiff] until several years 2 after the period at issue in [the] decision, and his opinion has little relevancy. 3 Second, [Dr. McCabe’s] opinion is vague and does not provide specific vocational 4 limitations.” Tr. 24. Plaintiff argues the ALJ improperly granted Dr. McCabe’s 5 opinion less weight because it was provided after the relevant period, as “the Ninth 6 Circuit has ruled that medical evaluations made after a claimant’s insured status 7 has expired are still relevant to pre-expiration conditions.” ECF No. 10 at 12 8 (citing Lester, 81 F.3d at 832). However, even assuming, arguendo, that the ALJ 9 erred in rejecting Dr. McCabe’s letter because it was written well after the 10 adjudicatory period, any error is harmless because the ALJ additionally found that 11 Dr. McCabe did not offer any specific work-related functional limitations from the 12 relevant adjudicatory period. Tr. 24. Where, as here, a physician's report did not 13 assign any specific limitations or opinions in relation to an ability to work, “the 14 ALJ did not need to provide 'clear and convincing reasons' for rejecting [the] report 15 because the ALJ did not reject any of [the report's] conclusions.” See, e.g., Turner, 16 613 F.3d at 1223. 17 Plaintiff additionally contends that the ALJ erred by evaluating Dr. 18 McCabe’s 2017 letter “about the longevity of [Plaintiff’s] disorder in isolation 19 without consideration of [Dr. McCabe’s] supportive treatment notes regarding the 20 specifics of the disorder, and then used this as a reason to find the opinion 21 ‘vague’.” ECF No. 10 at 11-12. In support of this argument, Plaintiff cites (1) an ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 August 2015 treatment note wherein Dr. McCabe noted a “diagnosed history of 2 bipolar 2 disorder with extreme irritability and also depressive symptoms” and 3 “extensive history of volatile behaviors with impulsive anger toward others and 4 irritability”; and (2) a letter from Dr. McCabe noting that he would be “targeting” 5 Plaintiff’s bipolar disorder symptoms with medication increases. ECF No. 10 at 6 10-11 (citing Tr. 656-67, 661). However, Plaintiff fails to identify any specific 7 functional limitations opined by Dr. McCabe that were not properly accounted for 8 in the assessed RFC. See Turner, 613 F.3d at 1223; Molina, 674 F.3d at 1111 (an 9 error is harmless “where it is inconsequential to the [ALJ's] ultimate nondisability 10 determination”). Moreover, the “mere diagnosis of an impairment … is not 11 sufficient to sustain a finding of disability.” Kay, 754 F.2d at 1549. 12 13 For all of these reasons, the Court finds no error in the ALJ’s consideration of Dr. McCabe’s 2017 letter. 3 14 15 3 The ALJ additionally found “the medical evidence of record does not support the severity of [Dr. McCabe’s] opinions.” Tr. 24. Plaintiff correctly argues that this 16 was an “improperly conclusory finding.” ECF No. 10 at 13. “When explaining his 17 [or her] reasons for rejecting medical opinion evidence, the ALJ must do more than 18 state a conclusion, rather, the ALJ must “set forth his own interpretations and explain why they, rather than the doctors’, are correct.” Reddick v. Chater, 157 19 F.3d 715, 725 (9th Cir. 1998). However, this error is harmless because, as 20 discussed herein, the ALJ offered additional reasons, supported by substantial 21 evidence, for rejecting Dr. Wescott’s opinion. See Carmickle, 533 F.3d at 116263. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 2. Stephen Wescott, M.D. 2 In August 1999, Plaintiff’s treating physician, Dr. Wescott, noted on a 3 prescription sheet that Plaintiff was “unable to work” from August 2, 1999 to 4 August 30, 1999, “due to his medical condition.” Tr. 242. The ALJ gave Dr. 5 Wescott’s opinion little weight for several reasons. Tr. 23. 6 First, the ALJ noted that Dr. Wescott’s opinion is “several years prior to the 7 period at issue in [the] decision, and has little relevancy.” Tr. 23. Plaintiff 8 generally argues that “[a]lthough [this] opinion [was] rendered prior to the relevant 9 period, these findings provided supportive, concurrent evidence of many of 10 [Plaintiff’s] own statements regarding the longevity of his disorder, his social and 11 occupational struggles, and the severity of his symptoms.” ECF No. 10 at 17-18. 12 However, it is well-settled in the Ninth Circuit that “medical opinions that predate 13 the alleged onset of disability are of limited relevance.” See, e.g., Carmickle v. 14 Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). Thus, because 15 Dr. Wescott’s 1999 opinion is dated almost seven years prior to the alleged onset 16 of disability on July 31, 2006, it was reasonable for the ALJ to reject Dr. Wescott’s 17 opinion because it had “little relevancy” to the period Plaintiff is claiming 18 disability. 19 Second, the ALJ noted Dr. Wescott’s opinion was not well explained and 20 contained little analysis. Tr. 23. The Court may decline to address this issue 21 because Plaintiff did not challenge the reason with specificity in his opening brief. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 See Carmickle, 533 F.3d at 1161 n.2. Regardless, the ALJ may permissibly reject 2 reports that do not contain any explanation of the bases for their conclusions. 3 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); see also Bray, 554 F.3d at 4 1228 (“the ALJ need not accept the opinion of any physician, including a treating 5 physician, if that opinion is brief, conclusory and inadequately supported by 6 clinical findings.”). Thus, the ALJ properly discounted Dr. Wescott’s opinion 7 because it had no explanation whatsoever for finding that Plaintiff could not work 8 in August 1999 aside from a vague reference to his “medical condition.” Tr. 242. 9 Third, the ALJ rejected Dr. Wescott’s opinion because he “appears to base 10 his opinion on the claimant’s subjective complaints rather than on objective 11 medical evidence.” Tr. 23. An ALJ may reject a physician’s opinion if it is based 12 “to a large extent” on Plaintiff’s self-reports that have been properly discounted as 13 incredible. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Plaintiff 14 argues the ALJ did not provide the requisite basis for this finding. ECF No. 10 at 15 18. The Court agrees. “When explaining his [or her] reasons for rejecting medical 16 opinion evidence, the ALJ must do more than state a conclusion, rather, the ALJ 17 must “set forth his own interpretations and explain why they, rather than the 18 doctors’, are correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 19 However, any error is harmless because, as discussed above, the ALJ gave 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 additional reasons, supported by substantial evidence, for rejecting Dr. Wescott’s 2 opinion.4 See Carmickle, 533 F.3d at 1162-63. 3 4 For all of these reasons, the Court finds no error in the ALJ’s consideration of Dr. Wescott’s opinion. 5 3. Timothy S. Cahn, Ph.D. 6 In October 1999, Dr. Cahn examined Plaintiff and conducted psychological 7 tests in order to assess his “fitness-for-duty” after being suspended from his job for 8 “a threat of violence.” Tr. 367-73. Dr. Cahn opined that “[w]hile Plaintiff does 9 not represent a threat of violence to his supervisor or others at this time, he does 10 not appear to be fit for duty by virtue of his depression and should be offered the 11 option of a medical leave of absence. The timing of his return to work should be 12 deferred to his treatment providers.” Tr. 373. The ALJ gave Dr. Cahn’s opinion 13 little weight for several reasons. Tr. 23-24. 14 First, the ALJ found Dr. Cahn’s report “is dated several years prior to the 15 period at issue, and has little relevancy to [the] period [Plaintiff] is alleging 16 disability.” Tr. 24. As with Dr. Wescott’s opinion, discussed above, Plaintiff 17 argues that although Dr. Cahn’s opinion was rendered prior to the relevant period, 18 19 4 20 severity of [Dr. Wescott’s] opinion.” Tr. 23. However, the Court declines to 21 address this reason as it was not identified or challenged by either party. See The ALJ also noted that “the medical record as a whole does not support the Carmickle, 533 F.3d at 1161 n.2. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 his findings are nonetheless “supportive” of Plaintiff’s statements regarding the 2 “longevity of his disorder, his social and occupational struggles, and the severity of 3 his symptoms.” ECF No. 10 at 17-18. However, it is well-settled in the Ninth 4 Circuit that “medical opinions that predate the alleged onset of disability are of 5 limited relevance.” See, e.g., Carmickle, 533 F.3d at 1165. Thus, because Dr. 6 Cahn’s 1999 opinion was rendered almost seven years prior to Plaintiff’s alleged 7 onset of disability on July 31, 2006, it was reasonable for the ALJ to reject Dr. 8 Cahn’s opinion as having “little relevancy” to the period Plaintiff is alleging 9 disability. 10 Second, the ALJ noted that Dr. Cahn “did not take into account [Plaintiff’s] 11 abilities if he followed up with consistent treatment for his impairments, and took 12 medication for his impairments as prescribed.” Tr. 24. Plaintiff argues this was an 13 improper reason for the ALJ to reject Dr. Cahn’s opinion. The Court agrees. The 14 Court is unable to discern, nor does the ALJ cite to, legal authority to support the 15 rejection of a medical opinion because the provider did not consider what 16 Plaintiff’s limitations might be with hypothetical treatment. See Brown-Hunter v. 17 Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (a court “cannot substitute [the court's] 18 conclusions for the ALJ's, or speculate as to the grounds for the ALJ's conclusions. 19 Although the ALJ's analysis need not be extensive, the ALJ must provide some 20 reasoning in order for [the court] to meaningfully determine whether the ALJ's 21 conclusions were supported by substantial evidence.”). Nor does the ALJ cite ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 evidence that Plaintiff failed to seek or comply with a prescribed course of 2 treatment. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (unexplained, or 3 inadequately explained, failure to seek treatment or follow a prescribed course of 4 treatment may be the basis for an adverse credibility finding unless there is a 5 showing of a good reason for the failure). However, this error is harmless because 6 the ALJ gave additional reasons, supported by substantial evidence, for rejecting 7 Dr. Cahn’s opinion. See Carmickle, 533 F.3d at 1162-63. 8 9 Third, the ALJ notes that “it is unclear what period of time [Dr. Cahn’s] opinion addressed. . .. However, if [Dr. Cahn’s] opinion applies to all work, I give 10 little weight to his opinions because it is inconsistent with [Plaintiff’s] robust 11 activities of daily living, which involved helping his father with property 12 management, attending meetings of a town planning commission, taking long car 13 trips, taking his father to the hospital several hours away for cancer treatment, and 14 providing companionship to his ill mother.” Tr. 24. An ALJ may discount an 15 opinion that is inconsistent with a claimant’s reported functioning. See Morgan v. 16 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). Plaintiff 17 generally argues “[t]here is no clear contradiction between Dr. Cahn’s opinion and 18 the ALJ’s listed activities of [Plaintiff] attending a few meetings and spending time 19 with his father as he died of cancer.” ECF No. 10 at 18. However, regardless of 20 Plaintiff’s characterization of these activities, the Court finds it was reasonable for 21 the ALJ to conclude that Dr. Cahn’s opinion that Plaintiff is completely unable to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 do “all work” is inconsistent with his extensive activities, which included: helping 2 with his father’s property management business, participating in meetings with the 3 planning commission, taking long car trips, and care-taking both of his parents 4 while they were ill. Tr. 24; see Burch, 400 F.3d at 679 (where evidence is 5 susceptible to more than one interpretation, the ALJ’s conclusion must be upheld). 6 7 8 9 Based on the foregoing, the Court finds no error in the ALJ’s consideration of Dr. Cahn’s opinion. D. Lay Witness Evidence “In determining whether a claimant is disabled, an ALJ must consider lay 10 witness testimony concerning a claimant’s ability to work.” Stout v. Comm'r, Soc. 11 Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); see also Dodrill v. Shalala, 12 12 F.3d 915, 918-19 (9th Cir. 1993) (“friends and family members in a position to 13 observe a claimant's symptoms and daily activities are competent to testify as to 14 [his] condition.”). To discount evidence from lay witnesses, an ALJ must give 15 reasons “germane” to each witness. Dodrill, 12 F.3d at 919. 16 Here, Kathy Bennett, self-described as a “family member,” and a licensed 17 social worker employed at DSHS for 27 years, wrote a letter “attest[ing] to 18 [Plaintiff’s] difficulties with employment and interpersonal relationships.” Tr. 19 300-01. Specifically, she reported that Plaintiff was exhibiting symptoms of 20 bipolar disorder at 16 years old, he was unable to complete college despite many 21 attempts due to episodes of severe depression, he had difficulties remaining ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 employed due to irritability with co-workers and erratic job performance, he was 2 dismissed from multiple jobs, he isolated himself for weeks and sometimes months 3 at a time, he made poor decisions in “manic” phases, and he has never been 4 married or had a serious relationship “due to his fluctuating moods.” Tr. 300-01. 5 Ms. Bennett also noted that Plaintiff has “tried multiple attempts at treatment with 6 antidepressants and therapy without success.” Tr. 301. The ALJ gave Ms. 7 Bennett’s opinion little weight. Tr. 24. 8 9 As an initial matter, Plaintiff argues the ALJ “failed to properly consider the appropriate factors to determine to what extent this opinion should be credited.” 10 ECF No. 10 at 14-15 (citing 20 C.F.R. § 404.1527(c), (f) (in weighing opinion 11 evidence, the ALJ considers length of treatment relationship, nature and extent of 12 the relationship, supportability, consistency, specialization; however, “not every 13 factor for weighing opinion evidence will apply in every case.”)). Plaintiff notes 14 that Ms. Bennett is a social worker employed by DSHS and has known Plaintiff for 15 27 years, and therefore contends that “[g]iven her [professional] training, on top of 16 this extensive contact, her opinion may have even outweighed an acceptable 17 medical source’s, had the ALJ properly considered these factors.” ECF No. 10 at 18 15. However, as noted by Defendant, Ms. Bennett has never examined or treated 19 Plaintiff, nor does her letter indicate any review of his treatment records. ECF No. 20 14 at 13-14. Moreover, “[e]ven if Ms. Bennett were considered more than a lay 21 witness, she, as a social worker, could only qualify as an “other source” under the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 regulations, and the ALJ would still only have to offer germane reasons to reject 2 her statement. The ALJ offered such a reason here.” ECF No. 14 at 14 (citing 3 Molina, 674 F.3d at 1111). 4 The ALJ gave little weight to Ms. Bennett’s opinion because “the severity of 5 her opinions is inconsistent with [Plaintiff’s] robust activities of daily living during 6 the period at issue. For instance, he reports attending planning commission 7 hearings and testifying; helping his father with a property management business; 8 and, performing household chores.” Tr. 24. Inconsistency between a claimant’s 9 activities and a lay witness’s testimony is a germane reason to discount the lay 10 testimony. See Carmickle, 533 F.3d at 1164. Plaintiff argues the ALJ failed to 11 indicate how Plaintiff daily activities were inconsistent with Ms. Bennett’s 12 statements that Plaintiff had periods of time during which he was able to hold 13 down a job, but also needed to isolate for significant periods and had interpersonal 14 conflicts at work that resulted in being terminated or quitting. ECF No. 10 at 16. 15 However, while not acknowledged by Plaintiff, the ALJ specifically found that Ms. 16 Bennett’s statements were inconsistent with Plaintiff’s activities during the 17 relevant adjudicatory period, July 31, 2006 through December 31, 2006, during 18 which he reported helped his father with a property management business, attended 19 planning commission meetings up to twice a week and 250 miles away from his 20 home, drove a car, did household chores, and cared for his elderly mother. Tr. 24. 21 Thus, regardless of Ms. Bennett’s observations over the entire course of their ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 familial relationship that could be considered more favorable to Plaintiff, it was 2 reasonable for the ALJ to find that Plaintiff’s extensive daily activities during the 3 relevant adjudicatory period were inconsistent with the severity of Ms. Bennett’s 4 statements. See Burch, 400 F.3d at 679. 5 Second, the ALJ noted that Ms. Bennett “did not take into account 6 [Plaintiff’s] abilities if he followed up with consistent treatment for his 7 impairments and took his medications as prescribed.” Tr. 24. Plaintiff argues this 8 reason is “inaccurate” because Ms. Bennett specifically noted that Plaintiff “tried 9 multiple attempts at treatment with antidepressants and therapy without success. 10 His attempts often resulted in temporary improvement but ultimately resulted in 11 more severe episodes of depression.” ECF No. 10 at 15-16 (citing Tr. 301). The 12 Court agrees. This was not a specific and germane reason for the ALJ to reject Ms. 13 Bennett’s lay witness statement. See Brown-Hunter, 806 F.3d at 495 (a court 14 “cannot substitute [the court's] conclusions for the ALJ's, or speculate as to the 15 grounds for the ALJ's conclusions. Although the ALJ's analysis need not be 16 extensive, the ALJ must provide some reasoning in order for [the court] to 17 meaningfully determine whether the ALJ's conclusions were supported by 18 substantial evidence.”). However, this error is harmless because the ALJ gave 19 additional reasons, supported by substantial evidence, for rejecting Ms. Bennett’s 20 lay witness statement. See Carmickle, 533 F.3d at 1162-63. Moreover, Plaintiff 21 fails to identify any specific functional limitations opined by Ms. Bennett, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 particularly from the relevant adjudicatory period, that are not accounted for in the 2 RFC. See Turner, 613 F.3d at 1223; Molina, 674 F.3d at 1111 (an error is 3 harmless “where it is inconsequential to the [ALJ's] ultimate nondisability 4 determination”). 5 6 7 For all of these reasons, the ALJ did not err in considering Ms. Bennett’s lay witness statement. E. Plaintiff’s Symptom Claims 8 An ALJ engages in a two-step analysis when evaluating a claimant’s 9 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 10 whether there is objective medical evidence of an underlying impairment which 11 could reasonably be expected to produce the pain or other symptoms alleged.” 12 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 13 required to show that her impairment could reasonably be expected to cause the 14 severity of the symptom he has alleged; he need only show that it could reasonably 15 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 16 (9th Cir. 2009) (internal quotation marks omitted). 17 Second, “[i]f the claimant meets the first test and there is no evidence of 18 malingering, the ALJ can only reject the claimant’s testimony about the severity of 19 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 20 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 21 citations and quotations omitted). “General findings are insufficient; rather, the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 28 1 ALJ must identify what testimony is not credible and what evidence undermines 2 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v. 3 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 4 determination with findings sufficiently specific to permit the court to conclude 5 that the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and 6 convincing [evidence] standard is the most demanding required in Social Security 7 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 8 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 9 Here, the ALJ found Plaintiff’s medically determinable impairments could 10 reasonably be expected to cause some of the alleged symptoms; however, 11 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of 12 these symptoms are not entirely consistent with the medical evidence and other 13 evidence in the record” for several reasons. Tr. 22. 14 1. Lack of Objective Medical Evidence First, regarding Plaintiff’s claimed mental impairment, 5 the ALJ found 15 16 Plaintiff’s “treatment notes contain only intermittent complaints of mental 17 symptoms; there are few objective findings indicative of significant functional 18 19 5 20 Plaintiff’s alleged physical limitations. Tr. 22. However, the Court declines to 21 address this issue because it was not raised with specificity in Plaintiff’s briefing. The ALJ similarly found that the medical record does not support the severity of Carmickle, 533 F.3d at 1161 n.2. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 29 1 restrictions.” Tr. 22. An ALJ may not discredit a claimant’s pain testimony and 2 deny benefits solely because the degree of pain alleged is not supported by 3 objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 4 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 5 885 F.2d 597, 601 (9th Cir. 1989). However, the medical evidence is a relevant 6 factor in determining the severity of a claimant’s pain and its disabling effects. 7 Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). Thus, minimal objective 8 evidence is a factor which may be relied upon in discrediting a claimant’s 9 testimony, although it may not be the only factor. See Burch, 400 F.3d at 680. 10 First, Plaintiff argues the ALJ failed to consider “the many prior attempts 11 [Plaintiff] has made to seek ultimately unhelpful treatment.” ECF No. 10 at 20. 12 However, the only evidence offered by Plaintiff in support of this finding are his 13 own self-reports that he sought treatment. See Tr. 236-37, 301, 362. The Court 14 does not discern, nor does Plaintiff identify, any objective medical evidence from 15 July 31, 2006 through December 31, 2006, the relevant adjudicatory period, that 16 supports Plaintiff’s symptom claims. Second, Plaintiff argues “the record 17 supportively shows [Plaintiff] had a flat or constricted affect, was sad, or 18 discouraged, was frustrated, and had reduced psychomotor.” ECF No. 10 at 20 19 (citing Tr. 362, 365, 370-71, 417, 655, 663, 667). However, as noted by 20 Defendant, treatment records from the overall record also noted that Plaintiff was 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 30 1 “engaging” and “cooperative” during interviews, with appropriate mood and affect, 2 and normal insight and judgment. ECF No. 14 at 7 (citing Tr. 362, 380). 3 Thus, regardless of evidence that could be interpreted more favorably to the 4 Plaintiff from the longitudinal record, it was reasonable for the ALJ to discount 5 Plaintiff’s symptom claims based on the complete lack of objective criteria during 6 the relevant adjudicatory period to support those claims. See Burch, 400 F.3d at 7 679 (ALJ’s conclusion must be upheld where evidence is susceptible to more than 8 one rational interpretation). This lack of corroboration of Plaintiff’s claimed 9 limitations by the medical evidence was a clear and convincing reason, supported 10 11 by substantial evidence, for the ALJ to discount Plaintiff’s symptom claims. 2. Daily Activities 12 Second, the ALJ noted that Plaintiff reported that he was able to perform a 13 wide variety of activities with his depression. Tr. 22-23. Plaintiff correctly notes 14 that a claimant need not be utterly incapacitated in order to be eligible for benefits. 15 ECF No. 10 at 14 (citing Fair, 885 F.2d at 603); see also Orn, 495 F.3d at 639 16 (“the mere fact that a plaintiff has carried on certain activities . . . does not in any 17 way detract from her credibility as to her overall disability.”). Regardless, even 18 where daily activities “suggest some difficulty functioning, they may be grounds 19 for discrediting the [Plaintiff’s] testimony to the extent that they contradict claims 20 of a totally debilitating impairment.” Molina, 674 F.3d at 1113. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 31 1 Here, Plaintiff testified that in 2006 he was unable to work because he could 2 not get out of bed for weeks or months at a time, due to depression, which 3 “affected [his] job performance, [his] attendance and the attitude of [his] 4 employers.” Tr. 74-75. He further testified that he feels depressed 80% of the 5 time and “good” 20% of the time. Tr. 95. In a function report, Plaintiff reported 6 “[p]eriodic, often long-term bouts of serious depression intertwined with 7 noticeable irritability have been the cause of both firings/layoffs and long periods 8 of unemployment.” Tr. 21 (citing Tr. 264). However, as noted by the ALJ, 9 Plaintiff also testified to a “wide a variety of activities with his impairments during 10 the period he is alleging disability,” including: helping his father with his property 11 management business, which involved attending meetings up to 250 miles away 12 from his home; attending meetings as much as twice a week that involved 13 interacting with the planning commission, engineers, and other interested parties; 14 helping manage rental properties; and helping to care for his elderly mother, who 15 was in poor health. Tr. 21-23, 78-83. Moreover, Plaintiff reported that he 16 performed a “wide variety of activities,” including: running errands, cooking 17 meals, washing laundry, driving a car, shopping for groceries, calling people on the 18 phone and using email, paying bills, and handling money. Tr. 22 (citing Tr. 265- 19 68). 20 Plaintiff argues the ALJ fails to consider the “limited nature” of these 21 activities. ECF No. 10 at 19. In support of this argument, Plaintiff cites his ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 32 1 testimony that he only took notes at the meetings and commented “once in a 2 while,” he was still depressed most of the time while helping his parents, he was 3 sometimes not able to function, and he “clashed” with the city manager while 4 attending planning commission meetings. Tr. 79, 84-85, 88. However, regardless 5 of whether the evidence could be viewed more favorably to Plaintiff, it was 6 reasonable for the ALJ to conclude that “these activities support a finding 7 [Plaintiff’s] depression was not as limiting as he alleges.” Tr. 23; Molina, 674 8 F.3d at 1113 (Plaintiff’s activities may be grounds for discrediting Plaintiff’s 9 testimony to the extent that they contradict claims of a totally debilitating 10 impairment); Burch, 400 F.3d at 679 (“where evidence is susceptible to more than 11 one rational interpretation, it is the [Commissioner’s] conclusion that must be 12 upheld.”). This was a clear and convincing reason to discredit Plaintiff’s symptom 13 claims. 14 15 16 17 The Court concludes that the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff’s symptom claims. CONCLUSION A reviewing court should not substitute its assessment of the evidence for 18 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must 19 defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42 20 U.S.C. § 405(g). As discussed in detail above, the ALJ properly evaluated 21 Plaintiff’s impairments at step two; properly found Plaintiff’s mental impairment ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 33 1 did not meet or medically equal Listing 12.04; properly weighed the medical 2 opinion evidence; properly considered the lay witness statement; and provided 3 clear and convincing reasons to discount Plaintiff’s symptom testimony. After 4 review the court finds the ALJ’s decision is supported by substantial evidence and 5 free of harmful legal error. 6 Accordingly, IT IS HEREBY ORDERED: 7 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED. 8 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 9 10 GRANTED. The District Court Executive is hereby directed to enter this Order and 11 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE 12 the file. 13 14 15 DATED January 15, 2019. s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 16 17 18 19 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 34
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