Johnson v. Commissioner of Social Security, No. 1:2018cv03121 - Document 19 (E.D. Wash. 2019)

Court Description: ORDER DENYING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 17 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)

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Johnson v. Commissioner of Social Security Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jul 09, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DENNA L. J., NO: 1:18-CV-3121-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 14 ECF Nos. 12, 17. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney D. James Tree. Defendant is 16 represented by Special Assistant United States Attorney Brett E. Eckelberg. The 17 Court, having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 12, is 19 denied and Defendant’s Motion, ECF No. 17, is granted. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff Denna L. J. 1 (Plaintiff), filed for disability insurance benefits (DIB) 3 and supplemental security income (SSI) on May 29, 2014, alleging an onset date of 4 February 10, 2010.2 Tr. 255-62. Benefits were denied initially, Tr. 152-58, and 5 upon reconsideration, Tr. 161-71. Plaintiff appeared at a hearing before an 6 administrative law judge (ALJ) on May 31, 2017. Tr. 53-88. On July 26, 2017, the 7 ALJ issued an unfavorable decision, Tr.16-30, and on June 8, 2018, the Appeals 8 Council denied review. Tr. 1-5. The matter is now before this Court pursuant to 42 9 U.S.C. § 405(g); 1383(c)(3). 10 BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts, 12 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 13 therefore only summarized here. 14 15 Plaintiff was 49 years old at the time of the hearing. Tr. 60. She graduated from high school and attended some trade school for computers and accounting. Tr. 16 17 1 18 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 19 decision. 20 2 21 58-59. In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first At the hearing, Plaintiff amended the alleged onset date to March 30, 2011. Tr. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 60. She has work experience as a cleaner, census taker, crowd manager, caregiver, 2 telemarketer, waitress, nursing assistant, and childcare provider. Tr. 60-62. She 3 testified that when she is stressed or anxious, she “can’t think right,” loses 4 concentration, and cannot finish tasks. Tr. 63. Being around a lot of people causes 5 her to be anxious and she cannot breathe. Tr. 63-64. Sometimes she has anxiety at 6 home. Tr. 72-73. She has missed work due to depression, although medication 7 helps. Tr. 63, 68. She has breakthrough depression about ten days per month. Tr. 8 71. When she is depressed, she does not want to see or talk to anyone. Tr. 72. 9 Plaintiff also testified that she is prevented from working by pain in her back 10 and knee. Tr. 65. If she does more than five or ten minutes of activity, she 11 experiences so much pain that she is “down for days.” Tr. 66. She lies down to 12 relieve symptoms three to four times a day for an hour or two at a time. Tr. 74-75. 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 by 17 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 18 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 19 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 20 citation omitted). Stated differently, substantial evidence equates to “more than a 21 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 In determining whether the standard has been satisfied, a reviewing court must 2 consider the entire record as a whole rather than searching for supporting evidence in 3 isolation. Id. 4 In reviewing a denial of benefits, a district court may not substitute its 5 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 6 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 7 rational interpretation, [the court] must uphold the ALJ’s findings if they are 8 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 9 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 10 decision on account of an error that is harmless.” Id. An error is harmless “where it 11 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 12 (quotation and citation omitted). The party appealing the ALJ’s decision generally 13 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 14 396, 409-10 (2009). 15 FIVE-STEP EVALUATION PROCESS 16 A claimant must satisfy two conditions to be considered “disabled” within the 17 meaning of the Social Security Act. First, the claimant must be “unable to engage in 18 any substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 21 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 be “of such severity that he is not only unable to do his previous work[,] but cannot, 2 considering his age, education, and work experience, engage in any other kind of 3 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 4 423(d)(2)(A), 1382c(a)(3)(B). 5 The Commissioner has established a five-step sequential analysis to determine 6 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 7 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 8 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 9 engaged in “substantial gainful activity,” the Commissioner must find that the 10 11 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in substantial gainful activity, the analysis 12 proceeds to step two. At this step, the Commissioner considers the severity of the 13 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 14 claimant suffers from “any impairment or combination of impairments which 15 significantly limits [his or her] physical or mental ability to do basic work 16 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 17 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 18 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 19 §§ 404.1520(c), 416.920(c). 20 At step three, the Commissioner compares the claimant’s impairment to 21 severe impairments recognized by the Commissioner to be so severe as to preclude a ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 person from engaging in substantial gainful activity. 20 C.F.R. §§ 2 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 3 than one of the enumerated impairments, the Commissioner must find the claimant 4 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 5 If the severity of the claimant’s impairment does not meet or exceed the 6 severity of the enumerated impairments, the Commissioner must pause to assess the 7 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 8 defined generally as the claimant’s ability to perform physical and mental work 9 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 10 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 11 analysis. 12 At step four, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing work that he or she has performed in the 14 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 15 claimant is capable of performing past relevant work, the Commissioner must find 16 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 17 claimant is incapable of performing such work, the analysis proceeds to step five. 18 At step five, the Commissioner should conclude whether, in view of the 19 claimant’s RFC, the claimant is capable of performing other work in the national 20 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this 21 determination, the Commissioner must also consider vocational factors such as the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 claimant’s age, education and past work experience. 20 C.F.R. §§ 2 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 3 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is therefore 6 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 10 capable of performing other work; and (2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 ALJ’S FINDINGS 14 At step one, the ALJ found Plaintiff did not engage in substantial gainful 15 activity since March 30, 2011, the amended alleged onset date. Tr. 15. At step two, 16 the ALJ found that Plaintiff has the following severe impairments: depressive 17 disorder; anxiety disorder; PTSD; borderline personality disorder; right knee 18 degenerative joint disease; lumbar degenerative disk disease; and obesity. Tr. 18. 19 At step three, the ALJ found that Plaintiff does not have an impairment or 20 combination of impairments that meets or medically equals the severity of a listed 21 impairment. Tr. 18. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 4 5 6 7 The ALJ then found that Plaintiff has the residual functional capacity to perform light work with the following additional limitations: she can only occasionally climb ramps, stairs, ladders, ropes, and scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. She needs to avoid exposure to extreme heat, humidity, vibration, and hazards. She can understand, remember, and carry out simple, routine tasks in two-hour intervals. She can have occasional, brief, and superficial contact with coworkers and the public. She cannot work in tandem tasks or in tasks requiring a cooperative team effort. Tr. 20. 8 At step four, the ALJ found that Plaintiff is unable to perform any past 9 relevant work. Tr. 28. At step five, after considering the testimony of a vocational 10 expert and Plaintiff’s age, education, work experience, and residual functional 11 capacity, the ALJ found there are jobs that exist in significant numbers in the 12 national economy that Plaintiff can perform such as production assembler, 13 inspector/hand packager, or collator/operator. Tr. 28-29. Thus, the ALJ concluded 14 that Plaintiff has not been under a disability, as defined in the Social Security Act, 15 from March 30, 2011, through the date of the decision. Tr. 30. 16 17 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 18 disability income benefits under Title II and supplemental security income under 19 Title XVI of the Social Security Act. ECF No. 12. Plaintiff raises the following 20 issues for review: 21 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 2 2. Whether the ALJ properly considered the medical opinion evidence. ECF No. 12 at 7-24. 3 4 DISCUSSION A. Symptom Claims 5 Plaintiff contends the ALJ improperly rejected her symptom claims. ECF 6 No. 12 at 16-24. An ALJ engages in a two-step analysis to determine whether a 7 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 8 ALJ must determine whether there is objective medical evidence of an underlying 9 impairment which could reasonably be expected to produce the pain or other 10 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 11 “The claimant is not required to show that her impairment could reasonably be 12 expected to cause the severity of the symptom she has alleged; she need only show 13 that it could reasonably have caused some degree of the symptom.” Vasquez v. 14 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 19 citations and quotations omitted). “General findings are insufficient; rather, the 20 ALJ must identify what testimony is not credible and what evidence undermines 21 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he 2 ALJ must make a credibility determination with findings sufficiently specific to 3 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 4 testimony.”). “The clear and convincing [evidence] standard is the most 5 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 6 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 7 924 (9th Cir. 2002)). 8 9 In assessing a claimant’s symptom complaints, the ALJ may consider, inter alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 10 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 11 daily living activities; (4) the claimant’s work record; and (5) testimony from 12 physicians or third parties concerning the nature, severity, and effect of the 13 claimant’s condition. Thomas, 278 F.3d at 958-59. 14 This Court finds that the ALJ provided specific, clear, and convincing 15 reasons for finding Plaintiff’s statements concerning the intensity, persistence, and 16 limiting effects of her symptoms less than fully persuasive. Tr. 34. 17 First, the ALJ found Plaintiff’s allegations regarding her mental limitations 18 are not generally consistent with the amount of treatment she obtained. Tr. 21. 19 Medical treatment received to relieve pain or other symptoms is a relevant factor in 20 evaluating pain testimony. 20 C.F.R. §§ 404.1529(c)(3)(iv)-(v); 416.929(c)(3)(iv)- 21 (v) (2011). The ALJ is permitted to consider the claimant=s lack of treatment in ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 making a credibility determination. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2 2005). However, in some cases, it may be inappropriate to consider a claimant’s 3 lack of mental health treatment as evidence of a lack of credibility. See Nguyen v. 4 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). Where the evidence suggests lack of 5 mental health treatment is part of a claimant’s mental health condition, it may be 6 inappropriate to consider a claimant’s lack of mental health treatment as evidence 7 of a lack of credibility. Id. Notwithstanding, when there is no evidence suggesting 8 a failure to seek treatment is attributable to a mental impairment rather than 9 personal preference, it is reasonable for the ALJ to conclude that the level or 10 frequency of treatment is inconsistent with the level of complaints. Molina, 674 11 F.3d at 1113-14. 12 The ALJ noted that despite the mental health symptoms alleged by Plaintiff, 13 she did not start mental health treatment until May 2016, more than five years after 14 her alleged onset date of March 30, 2011. Tr. 21, 802-10. The ALJ observed the 15 before May 2016, Plaintiff made few, if any, complaints of anxiety or other mental 16 health symptoms, despite testimony that she has had anxiety for 10-15 years and 17 missed work and was laid off due to depression. Tr. 20-21 (citing Tr. 385-796); 18 Tr. 63-64. Despite Plaintiff’s testimony that she only started treatment for mental 19 symptoms a year prior to the hearing because she could not afford it, Tr. 64, the 20 ALJ noted there is no basis in the record to conclude that a lack of resources or 21 lack of insurance limited Plaintiff’s access to mental health treatment. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Plaintiff contends the record supports the assertion that she was prevented 2 from treatment by limited financial resources. ECF No. 12 at 18. Plaintiff cites a 3 record from March 2014 indicating that she was on Medicaid and had previously 4 received DSHS benefits, which does suggest a lack of income. However, it also 5 suggests at least some access to mental health treatment would have been 6 available. ECF No. 12 at 18; Tr. 515. In Dr. Cline’s March 2016 report, also cited 7 by Plaintiff, she reported that she was not seeing a counselor but had seen one in 8 the past and found it helpful. Tr. 693. She indicated that she was waiting to “see 9 what happens with my knee” but did not mention a lack of resources in stating that 10 she had not been engaged in counseling in years. ECF No. 12 at 18; Tr. 693. The 11 ALJ’s finding is reasonably supported by substantial evidence in the record. In 12 this case, the lack of mental health treatment before 2006 was reasonably 13 considered by the ALJ in evaluating Plaintiff’s allegations of mental health 14 limitations. 15 Second, the ALJ found Plaintiff’s alleged mental limitations are not 16 consistent with her reports to providers or her presentation throughout the relevant 17 period. Tr. 21. In evaluating a claimant’s symptom claims, an ALJ may consider 18 the consistency of an individual’s own statements made in connection with the 19 disability review process with any other existing statements or conduct made under 20 other circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The 21 ALJ noted Plaintiff’s statements to mental health providers are partially consistent ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 with her allegations as they include complaints of depression, anxiety, poor 2 concentration, anxiety attacks, problems interacting with others, and difficulty 3 leaving her house and completing daily activities due to depression and anxiety. 4 Tr. 21-22 (citing Tr. 902-46), 63-64, 72-74. However, the ALJ observed Plaintiff 5 reported audiovisual hallucinations to mental health providers, which were not 6 mentioned during her testimony. Tr. 22, 63-64, 72-74, 902, 904. 7 While the ALJ is correct that Plaintiff reported hallucinations during a 8 psychiatric evaluation in July 2016, Tr. 902-04, she subsequently denied 9 hallucinations. Tr. 908-09, 915-16, 922-23, 929-30, 935-36. To the extent the 10 instances cited by the ALJ could be considered an inconsistency between 11 Plaintiff’s testimony and the record, the Court concludes it does not rise to the 12 level of a clear and convincing reason for giving less weight to Plaintiff’s 13 allegations overall.3 14 However, the ALJ also found that Plaintiff’s presentation throughout the 15 treatment record was unremarkable, notwithstanding her testimony and the 16 symptoms she reported to her providers. Tr. 22. The ALJ observed that Plaintiff 17 18 3 19 harmless. See Carmickle v. Comm’r of Soc. Sec. Admin, 533 F.3d 1155, 1162 (9th 20 Cir. 2008); Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 21 2006); Batson, 359 F.3d at 1195-97. To the extent this portion of the ALJ’s reasoning constituted error, the error was ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 presented as cooperative and pleasant, with no significant abnormality in affect, 2 behavior, concentration, memory, mood, psychomotor activity, grooming, hygiene, 3 eye contact, or speech. Tr. 22 (citing Tr. 445-45, 462, 486, 490, 520, 527, 550, 4 557, 669, 713, 718, 722-23, 728, 816, 819-20, 825, 829-30, 837, 878, 884, 889, 5 896, 904, 909, 915-16, 923, 930, 936). Although Plaintiff argues these findings do 6 not undermine her testimony regarding “debilitating” symptoms, ECF No. 12 at 7 17, in this case the ALJ provided detailed evidence supporting that conclusion. 8 Plaintiff contends the ALJ erred by considering treatment records for unrelated 9 conditions that do not specifically address Plaintiff’s mental health symptoms. 10 ECF No. 12 at 17. However, Plaintiff’s presentation and report in context other 11 than mental health treatment settings is relevant to the consistency of her 12 allegations overall. 13 The ALJ also found that despite Plaintiff’s claim of frequent, severe anxiety 14 and a recurring inability to leave her house, Plaintiff had no significant difficulty 15 interacting with her providers or maintaining her appointment schedule due to her 16 symptoms. Tr. 22 (citing Tr. 520-22, 524-80, 768-96, 813-65, 902-46, 949-60). 17 Plaintiff contends that, contrary to the ALJ’s assertion, she missed appointments 18 due to her mental health symptoms. ECF No. 12 at 17. Plaintiff cites two records 19 from July 2016 indicating she missed an appointment because she was sick and 20 canceled a second appointment. ECF No. 12 at 17; Tr. 940, 943. There is no basis 21 in the record to conclude either of these appointments was missed due to mental ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 health symptoms. Plaintiff also notes a September 2016 record indicating Plaintiff 2 missed an appointment, and when asked about it at her October appointment she 3 stated she “got scared.” Tr. 927, 934. The meaning of that statement is not 4 entirely clear from the context, but even if she reported that anxiety prevented her 5 from attending that appointment, this one instance does not undermine the ALJ’s 6 conclusion. 7 Plaintiff also contends the ALJ’s finding “disregards the significant 8 differences between engaging in full-time employment and attending medical 9 appointments.” ECF No. 12 at 17. Even if a claimant’s activities do not 10 demonstrate a claimant can work, they may undermine the claimant’s complaints if 11 they suggest the severity of the claimant’s limitations were exaggerated. See 12 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). The 13 ALJ’s consideration of Plaintiff’s interaction with her providers and ability to 14 maintain her appointments was reasonable under the circumstances. The ALJ 15 reasonably concluded this is an inconsistency between Plaintiff’s allegations and 16 her presentation to providers which makes her allegations less reliable. Thus, this 17 is a clear and convincing reason supported by substantial evidence. 18 Third, the ALJ found the objective medical evidence is only partially 19 consistent with Plaintiff’s allegations regarding knee and back pain. Tr. 22. 20 While subjective pain testimony may not be rejected solely because it is not 21 corroborated by objective medical findings, the medical evidence is a relevant ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 factor in determining the severity of a claimant’s pain and its disabling effects. 2 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); 20 C.F.R. §§ 3 404.1529(c)(2), 416.929(c)(2) (2011). The ALJ observed that although there are 4 few records showing complaints of chronic back pain, most treatment notes 5 indicate no mention of back pain. Tr. 22 (citing e.g., Tr. 867-91); see Tr. 867-71 6 (complaints of back pain 6/13/16); 873-78 (no back pain mentioned 1/8/16); 879- 7 84 (no back pain mentioned 9/24/15); 885-89 (no back pain mentioned 9/10/15). 8 Similarly, the ALJ noted Plaintiff made no reports of problems sitting due to 9 knee or back pain, and only once stated that she needed to lie down three to four 10 times per day for one to two hours at a time for knee or back pain. Tr. 22 (citing 11 385-92, 408-38, 442-88, 524-80, 687-704, 712-23, 731-66, 867-89). The ALJ 12 noted that Plaintiff sometimes affirmatively denied back pain. Tr. 22 (citing e.g., 13 Tr. 429 (review of systems negative except for foot injury), 432 (no known 14 physical impairments), 444 (review of systems negative except for diarrhea, 15 nausea), 449 (denies back pain), 495 (denies back pain), 819 (no complaints of 16 joint pains, no complaints of muscle pain or weakness). Plaintiff argues these 17 records involve exams for conditions other than Plaintiff’s back. ECF No. 12 at 18 18. However, that is precisely their value in evaluating whether Plaintiff’s 19 symptom complaints are consistent throughout the record. 20 21 Additionally, the ALJ found the only imaging in the record shows no more than mild abnormalities in the spine. Tr. 839-40, and that clinical exams were ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 largely unremarkable regarding Plaintiff’s back. Tr. 22 (citing Tr. 444-45 (exam 2 findings normal except abdominal tenderness), 461-62 (exam findings normal 3 except left ankle swelling and pain), 486 (exam findings normal except burn on left 4 hand), 490 (exam findings normal except right arm and hand tenderness), 526-27 5 (musculoskeletal exam normal, except for plantar fasciitis symptoms), 550 6 (musculoskeletal exam normal), 556-57 (musculoskeletal exam normal), 669 7 (lumbar spine exam normal except for tenderness, pain with motion, and pain with 8 right straight leg test), 713-14 (exam findings normal except for right knee pain), 9 717-18 (exam of back showed normal range of motion), 722-23 (exam findings 10 normal except for right knee tenderness), 727-28 (exam findings normal except for 11 right knee tenderness), 815-37 (multiple musculoskeletal exams with normal 12 findings), 878 (exam findings normal except for right knee tenderness), 884 13 (musculoskeletal exam with normal cervical, thoracic, and lumbar spine findings), 14 889 (musculoskeletal exam notes only abnormal findings regarding right knee), 15 896 (back exam included finding of normal inspection and range of motion), 949- 16 60 (exam findings only regarding right ankle)). Plaintiff contends that “virtually 17 none of the treatment records cited by the ALJ even include examinations of 18 [Plaintiff’s] back.” ECF No. 12 at 19. To the contrary, the ALJ cited multiple 19 records indicating normal musculoskeletal or back findings on exam (Tr. 526-27, 20 550, 556-57, 717-18, 815-37, 884, 896) and other records showing normal exam 21 findings except for findings related to the current non-back complaint (Tr. 444-45, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 461-62, 486, 490, 713-14, 722-23, 727-28, 878, 949-60). Notably, Plaintiff does 2 not point to any records demonstrating additional or significant back findings. 3 With regard to Plaintiff’s right knee pain, the ALJ found the level of severity 4 alleged is not supported by the record. Tr. 22. The ALJ observed there is virtually 5 no mention of knee pain before September 2015, and in fact Plaintiff often denied 6 knee pain. Tr. 22 (citing e.g., Tr. 429, 432, 444, 449, 495, 819). Most exam noted 7 found no abnormalities in Plaintiff’s presentation due to knee pain, back pain, or 8 other musculoskeletal conditions and Plaintiff usually presented with normal gait, 9 range of motion, muscle strength, muscle tone, and sensation. Tr. 22 (citing Tr. 10 444-45, 461-62, 486, 490, 526-27, 550, 556-57, 669, 815-37). Significant right 11 knee pain was first noted in September 2015 and imaging showed only mild 12 degenerative changes in the knee, but other findings were consistent with a sprain. 13 Tr. 22, 760, 880-84. 14 There were no further findings regarding the knee sprain until January 1, 15 2016, when Plaintiff reported that she had gone dancing the previous night and 16 slipped on some ice and subsequently experienced knee pain and swelling. Tr. 23, 17 746. Ultimately, Dr. Griffiths diagnosed degenerative joint disease and a meniscal 18 tear and performed surgery on the right knee in March 2016. Tr. 23, 775. In 19 December 2016, Plaintiff complained of swelling and pain rated at 9 out of 10 in 20 severity, but Dr. Griffiths found she had pain free range of motion, no effusion, 21 and normal valgus/varus tests. Tr. 23, 892-93. He indicated that even though ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 Plaintiff reported swelling, he could not see any swelling, and that her history and 2 examination were consistent with mild knee arthritis. Tr. 23, 892-93. The ALJ 3 also noted that at a mental health appointment in December 2016, Plaintiff had 4 “‘no reports of pain.” Tr. 23, 922. 5 The ALJ observed that thereafter, Plaintiff did not return to Dr. Griffiths, 6 suggesting that her knee pain was resolved or controlled. Tr. 23. The ALJ also 7 observed that Plaintiff visited the emergency room for a sprained ankle in February 8 2017 but did not mention knee pain and examination of both knees was normal. 9 Tr. 23, 894-900. In an April 2017 mental health treatment note, Plaintiff denied 10 symptoms of physical pain. Tr. 23, 908. Furthermore, the ALJ noted that Plaintiff 11 never reported she had to lie down several times a day due to pain, nor did any of 12 her treating providers make such a recommendation. Tr. 23. To the contrary, the 13 ALJ noted that long-time treating provider Dr. Jackson recommended that Plaintiff 14 increase her exercise to 45 to 60 minutes of walking daily, five to seven times a 15 week. Tr. 23, 955. 16 Plaintiff contends the ALJ’s characterization of various medical findings and 17 records regarding Plaintiff’s knee pain are erroneous, ECF No. 12 at 19-20, but 18 having reviewed the records and the ALJ’s findings, the Court concludes the ALJ’s 19 interpretation of the evidence regarding Plaintiff’s knee problems is accurate and 20 supported by substantial evidence. The ALJ found Plaintiff’s allegations regarding 21 physical impairments are inconsistent with her reports to providers, and that her ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 presentation in the overall record does not support the level of limitation alleged. 2 Tr. 22. The ALJ’s interpretation of the evidence is reasonable and supported by 3 the record. This is a clear and convincing reason for giving less weight to 4 Plaintiff’s alleged limitations. 5 Fourth, the ALJ found Plaintiff’s activities are not entirely consistent with 6 her allegations. Tr. 23-24. It is reasonable for an ALJ to consider a claimant’s 7 activities which undermine claims of totally disabling pain in assessing a 8 claimant’s symptom complaints. See Rollins, 261 F.3d at 857. However, it is 9 well-established that a claimant need not “vegetate in a dark room” in order to be 10 deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). 11 Notwithstanding, if a claimant is able to spend a substantial part of her day 12 engaged in pursuits involving the performance of physical functions that are 13 transferable to a work setting, a specific finding as to this fact may be sufficient to 14 discredit an allegation of disabling excess pain. Fair v. Bowen, 885 F.2d 597, 603 15 (9th Cir. 1989). Furthermore, “[e]ven where [Plaintiff’s daily] activities suggest 16 some difficulty functioning, they may be grounds for discrediting the claimant’s 17 testimony to the extent that they contradict claims of a totally debilitating 18 impairment.” Molina, 674 F.3d at 1113. 19 The ALJ gave several examples of activities in the record which are 20 inconsistent with Plaintiff’s alleged limitations. Tr. 23-24. The ALJ noted that 21 although Plaintiff alleges anxiety and recurrent panic attacks that are more severe ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 when she is away from home and around others, she uses public transportation 2 regularly and goes out alone. Tr. 23-24, 66, 291. The ALJ observed that 3 Plaintiff’s complaints of anxiety, the need to lie down for several hours every day, 4 and an inability to walk for more than five minutes are contradicted by her 5 testimony that she enjoys taking her grandchildren for walks along a river and that 6 she wades in the river and looks for rocks. Tr. 24, 68, 76. She testified that the 7 walks take about an hour round trip and that she rests about every 15 minutes. Tr. 8 24, 76. She said she is able to take her grandchildren for such walks because she 9 uses an electric scooter. Tr. 24, 75. 10 The ALJ found this testimony is inconsistent with Plaintiff’s allegations 11 because it would be reasonable to expect uneven or loose surfaces or steep grades 12 near a river. Tr. 24. Furthermore, the ALJ observed that if Plaintiff were using a 13 scooter to go on walks, she would not need to rest every 15 minutes as she 14 testified. Tr. 24. Moreover, the medical record does not reflect that a scooter was 15 prescribed or that she told any provider she uses one. Tr. 24. To the contrary, the 16 ALJ observed Plaintiff’s medical providers encouraged her to increase her 17 exercise, including walking. Tr. 24 (citing e.g., Tr. 955). Additionally, the ALJ 18 noted that Plaintiff reported she went out dancing at least once during the relevant 19 period. Tr. 24, 745. The ALJ reasonably found that even though Plaintiff may not 20 have engaged in these activities on a daily basis, they suggest greater ability and 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 fewer restrictions than alleged. Tr. 24; see Valentine v. Comm’r of Soc. Sec. 2 Admin., 574 F.3d 685, 693 (9th Cir. 2009). 3 Fifth, the ALJ found Plaintiff’s work history is not consistent with her 4 allegations. Tr. 24. The claimant’s work record is an appropriate consideration in 5 weighing the claimant’s symptom complaints. Thomas, 278 F.3d at 958-59. The 6 ALJ observed that in September 2012, Plaintiff stated she worked at the 7 fairgrounds sweeping and in 2015, Plaintiff stated she was looking for work. Tr. 8 24, 456, 814. Plaintiff testified that her job at the fair was seasonal and she earned 9 about $528, which is less than substantial gainful activity. Tr. 60; Social Security 10 Administration, Program and Operations Manual System (POMS) DI 10501.015 11 (December 28, 2018). 4 Furthermore, Plaintiff’s mention that she was “looking for 12 work” does not necessarily indicate that Plaintiff could find or maintain work. As 13 a policy matter, claimants should be encouraged to pursue employment and should 14 not be penalized for trying to do so. The Court concludes that Plaintiff’s brief 15 employment and an expression of “looking for work” was not reasonably 16 determined to be inconsistent with Plaintiff’s allegations. Although this is not a 17 clear and convincing reason, any error is harmless because the ALJ gave other 18 legally sufficient reasons. See Carmickle v. Comm’r of Soc. Sec. Admin, 533 F.3d 19 1155, 1162 (9th Cir. 2008). 20 21 4 Available at www.secure.ssa.gov/poms.nsf/lnx/0410501015. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 2 B. Medical Opinion Evidence Plaintiff contends the ALJ failed to properly consider the opinions of treating 3 provider Jason Roberts, ARNP; and examining psychologists N.K. Marks, Ph.D., 4 and R.A. Cline, Psy.D. ECF No. 12 at 4-16. 5 There are three types of physicians: “(1) those who treat the claimant (treating 6 physicians); (2) those who examine but do not treat the claimant (examining 7 physicians); and (3) those who neither examine nor treat the claimant but who 8 review the claimant’s file (nonexamining or reviewing physicians).” Holohan v. 9 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). “Generally, 10 a treating physician’s opinion carries more weight than an examining physician’s, 11 and an examining physician’s opinion carries more weight than a reviewing 12 physician’s.” Id. “In addition, the regulations give more weight to opinions that are 13 explained than to those that are not, and to the opinions of specialists concerning 14 matters relating to their specialty over that of nonspecialists.” Id. (citations omitted). 15 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 16 reject it only by offering “clear and convincing reasons that are supported by 17 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 18 “However, the ALJ need not accept the opinion of any physician, including a 19 treating physician, if that opinion is brief, conclusory and inadequately supported by 20 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 21 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 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.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). 4 The opinion of an acceptable medical source, such as a physician or 5 psychologist, is given more weight than that of an “other source.” 20 C.F.R. §§ 6 404.1527, 416.927 (2012); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). 7 “Other sources” include nurse practitioners, physician assistants, therapists, teachers, 8 social workers, spouses and other non-medical sources. 20 C.F.R. §§ 404.1513(d), 9 416.913(d) (2013).5 The ALJ is required to consider evidence from “other sources,” 10 but may discount testimony from these sources if the ALJ “gives reasons germane to 11 each witness for doing so.” Molina, 674 F.3d at 1104. 12 1. R.A. Cline, Psy.D. 13 Dr. Cline examined Plaintiff and completed a DSHS 14 Psychological/Psychiatric Evaluation form in March 2016. Tr. 692-97. Dr. Cline 15 16 5 17 changed to include some sources previously considered to be “other” sources. See 18 20 C.F.R. §§ 404.1520, 416.920 (2017). However, for licensed audiologists, 19 licensed advanced practice registered nurses, and licensed physician assistants, the 20 change applies “only with respect to claims filed . . . on or after March 27, 2017”). 21 20 C.F.R. §§ 404.1502(a)(6)-(8), 416.902(a)(6)-(8) (2017). Effective March 27, 2017, the definition of an “acceptable medical source” ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 diagnosed borderline personality disorder, PTSD, and major depressive disorder, 2 recurrent, in partial to full remission. Tr. 694. He assessed a marked limitation in 3 the ability to communicate and perform effectively in a work setting and moderate 4 limitations in the ability to learn new tasks, maintain appropriate behavior in a work 5 setting, and in the ability to complete a normal work day and work week without 6 interruptions from psychologically based symptoms. Tr. 695. He opined that 7 Plaintiff “appears capable of at least simple, part time employment.” Tr. 695. 8 The ALJ found that “[a]lthough Dr. Cline did not review any treatment notes 9 and did not provide specific rationale [regarding] each area of limitation,” the mild 10 and moderate limitations he assessed “are generally consistent with the overall 11 treatment record.” Tr. 27. The ALJ concluded, however, that the marked limitation 12 assessed by Dr. Cline in communicating and performing effectively in a work setting 13 is entitled to less weight. Tr. 27. Because Dr. Cline’s opinion regarding 14 communicating and performing effectively in a work setting was contradicted by the 15 opinions of Renee Eisenhauer, Ph.D., Tr. 112-14, and Dan Donahue, Ph.D., Tr. 142- 16 44, the ALJ was required to provide specific and legitimate reasons for rejecting that 17 portion of Dr. Cline’s opinion. Bayliss, 427 F.3d at 1216. 18 First, the ALJ found that the overall treatment record is inconsistent with Dr. 19 Cline’s opinion that Plaintiff would have a marked limitation in communicating and 20 performing effectively in a work setting. Tr. 27. The consistency of a medical 21 opinion with the record as a whole is a relevant factor in evaluating a medical ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 opinion. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 2 495 F.3d 625, 631 (9th Cir. 2007). The ALJ noted that the longitudinal record 3 indicates Plaintiff consistently presented as cooperative and pleasant with no 4 significant abnormality in affect, behavior, psychomotor activity, eye contact, or 5 speech. Tr. 27 (citing Tr. 445-45, 462, 486, 490, 520, 527, 550, 557, 669, 713, 718, 6 722-23, 728, 816, 819-20, 825, 829-30, 837, 878, 884, 889, 896, 904, 909, 915-16, 7 923, 930, 936). Contrary to Plaintiff’s assertion, these records reasonably speak to 8 Plaintiff’s ability to communicate and interact. ECF No. 12 at 12. Plaintiff asserts 9 that, for example, one record cited by the ALJ states only that Plaintiff was “alert 10 and awake” and “oriented to time and space,” and does not speak to the marked 11 limitation assessed by Dr. Cline. ECF No. 12 at 12 (citing Tr. 820). However, that 12 record actually notes that Plaintiff complained of depression but was “very 13 pleasant,” “cheerful,” and was well disposed with a normal affect, no agitation, 14 anxiety or depression on exam. Tr. 27, 819-20. The ALJ also observed that the 15 record reflects Plaintiff rarely had difficulty interacting with providers or that she 16 missed or cancelled appointments due to her alleged anxiety and depression. Tr. 27 17 (citing Tr. 520-22, 524-80, 768-96, 813-65, 902-46, 949-60). 18 Second, the ALJ found that Dr. Cline did not provide a specific rationale for 19 the marked limitation assessed. Tr. 27. The quality of the explanation provided in 20 a medical opinion is a factor relevant in evaluating the opinion. 20 C.F.R. §§ 21 404.1527(c), 416.927(c) ; Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631; see ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 also Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (indicating opinions on a 2 check-box form or form reports which do not contain significant explanation of the 3 basis for the conclusions may accorded little or no weight). Indeed, Dr. Cline did 4 not include an explanation for the marked limitation and none of the findings in the 5 report reasonably explain the degree of limitation assessed. A “marked” limitation 6 is defined as “a very significant limitation,” Tr. 694, yet Dr. Cline indicated 7 Plaintiff’s speech was within normal limits and she was cooperative for the most 8 part, although she was rather dramatic and appeared to be scowling during the 9 interview. Tr. 696. Without an explanation or findings supporting the marked 10 limitation, the ALJ reasonably rejected it. 11 Plaintiff contends “an ALJ cannot reject a medical source opinion simply 12 because that opinion does not include a ‘specific rationale’ for the limitations 13 assessed.” ECF No. 12 at 13 (citing Burrell v. Colvin, 775 F.3d 1133, 1140 (9th 14 Cir. 2014); Garrison, 759 F.3d at 1013). 6 Plaintiff erroneously interprets Burrell, 15 which actually provides that, “an ALJ may discredit treating physicians’ opinions 16 that are conclusory, brief, and unsupported by the record as a whole or by objective 17 medical findings.” 775 F.3d at 1140 (quoting Batson v. Comm’r of Soc. Sec. 18 19 6 20 12 at 13, which has been withdrawn from publication, amended and superseded. 21 See also ECF No. 12 at 5. Plaintiff also cites Popa v. Berryhill, 868 F.3d 764, 770 (9th Cir. 2017), ECF No. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 Admin., 359 F.3d 1190, 1195 (9th Cir.2004)). Nor does Garrison support 2 Plaintiff’s argument, as it states “an ALJ errs when he rejects a medical opinion or 3 assigns it little weight while doing nothing more than ignoring it, asserting without 4 explanation that another medical opinion is more persuasive, or criticizing it with 5 boilerplate language that fails to offer a substantive basis for his conclusion.” 759 6 F.3d at 1012–13. The ALJ made none of the errors mentioned in Garrison, and the 7 case is not applicable here. 8 9 Third, the ALJ found that Dr. Cline’s narrative discussion contradicts the marked limitation in communicating and performing effectively in a work setting. 10 Tr. 27. A medical opinion may be rejected by the ALJ if it contains 11 inconsistencies. Bray, 554 F.3d 1219, 1228 (9th Cir. 2009). Despite assessing a 12 marked limitation in the ability to communicate and perform effectively at work, 13 Dr. Cline’s narrative explanation indicates that Plaintiff is capable of at least 14 simple, part time employment. Tr. 27, 695. Dr. Cline further opined that although 15 Plaintiff’s personality traits “may prove prob[le]matic when it comes to 16 maintaining employment and interacting with others, but this alone is not sufficient 17 to prevent her from working.” Tr. 695. Although Plaintiff argues this is not a 18 contradiction, ECF No. 12 at 15, the ALJ’s analysis is reasonable since a marked 19 limitation in this area is typically inconsistent with the ability to work, yet Dr. 20 Cline specifically indicated her problems interacting with others would not prevent 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 1 her from working.7 Tr. 695. This is a specific, legitimate reason for rejecting the 2 marked limitation. 3 2. N.K. Marks, Ph.D. 4 Dr. Marks examined Plaintiff and completed a DSHS 5 Psychological/Psychiatric Evaluation form in March 2014. Tr. 508-11. She 6 diagnosed depressive disorder and anxiety disorder and assessed marked limitations 7 in the ability to ask simple questions or request assistance; to communicate and 8 perform effectively in a work setting; and to set goals and plan independently, as 9 well as moderate limitations in seven other functional areas. Tr. 509-510. 10 The ALJ gave less weight to Dr. Marks’ opinion. Tr. 27. Because Dr. Marks’ 11 opinion was contradicted by the opinions of Dr. Eisenhauer and Dr. Donahue, Tr. 12 112-14, 142-44, the ALJ was required to provide specific and legitimate reasons for 13 rejecting that portion of Dr. Marks’ opinion. Bayliss, 427 F.3d at 1216. 14 First, the ALJ found Dr. Marks’ opinion is inconsistent with the longitudinal 15 record. Tr. 27. As discussed supra, the consistency of a medical opinion with the 16 longitudinal record is a relevant factor in considering that opinion. Lingenfelter, 504 17 F.3d at 1042; Orn, 495 F.3d at 631. The ALJ again noted that Plaintiff consistently 18 19 7 20 Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Murray v. Heckler, 722 F.2d 499, 501 21 (9th Cir. 1983). Individual medical opinions are preferred over check-box reports. See Crane v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29 1 presented as cooperative and pleasant, with no significant abnormality in affect, 2 behavior, psychomotor activity, eye contact, or speech. Tr. 27 (citing Tr. 445-45, 3 462, 486, 490, 520, 527, 550, 557, 669, 713, 718, 722-23, 728, 816, 819-20, 825, 4 829-30, 837, 878, 884, 889, 896, 904, 909, 915-16, 923, 930, 936). The ALJ 5 reasonably determined that the limitations assessed by Dr. Marks are inconsistent 6 with such findings in the overall record. This is a specific, legitimate reason for 7 rejecting Dr. Marks’ opinion. 8 9 Second, the ALJ found Dr. Marks did not provide a specific rationale or objective findings to substantiate the limitations assessed. Tr. 27. As discussed 10 supra, this is a specific, legitimate reason for giving less weight to a medical 11 opinion. The ALJ observed the mental status exam findings reported by Dr. Marks 12 were largely within normal limits, Tr. 27, 511, reasonably suggesting the limitations 13 assessed exceed those findings. Indeed, Dr. Marks found Plaintiff to be cooperative 14 and pleasant and her thought process and content, orientation, perception, memory, 15 concentration, abstract thought, and insight and judgment were within normal limits. 16 Tr. 511. 17 Plaintiff contends that her scores in the “severely anxious” range on the Beck 18 Anxiety Inventory and in the moderate range on the Beck Depression Inventory 19 support Dr. Marks’ opinion. ECF No. 12 at 14. However, consistent with the ALJ’s 20 finding, there is no indication in the opinion how those ratings translate into the 21 limitations assessed by Dr. Marks. It is the ALJ’s duty to resolve conflicts and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 30 1 ambiguity in the medical and non-medical evidence. See Morgan v. Comm’r of Soc. 2 Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999). It is not the role of the court to 3 second-guess the ALJ. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 4 ALJ’s reasons for rejecting Dr. Marks’ opinion are specific, legitimate, and 5 supported by substantial evidence. 6 3. Jason Roberts, ARNP 7 In March 2014, Mr. Roberts completed a DSHS Physical Functional 8 Evaluation form and noted diagnoses of lumbago/sciatica and morbid obesity. Tr. 9 512-14. He opined Plaintiff is limited to sedentary work and recommended an 10 11 independent medical exam and an MRI of the lumbar spine. Tr. 514. The ALJ gave less weight to Mr. Roberts’ opinion that Plaintiff is limited to 12 sedentary work due to back pain. Tr. 25. As an ARNP, Mr. Roberts is an “other 13 source” under the regulations. 20 C.F.R. §§ 404.1513(d), 416.913(d) (2013). 14 Thus, the ALJ was required to cite germane reasons for rejecting the opinion. See 15 Molina, 674 F.3d at 1104. 16 First, the ALJ found Mr. Roberts did not provide a completed evaluation with 17 objective findings consistent with the level of limitations in the opinion. Tr. 25. A 18 medical opinion may be rejected if it is unsupported by medical findings. Bray, 554 19 F.3d at 1228; Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957; Tonapetyan v. 20 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney v. Sullivan, 981 F.2d 1016, 21 1019 (9th Cir.1992). The ALJ observed Mr. Roberts’ findings were “mostly ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 31 1 unremarkable,” and noted normal gait, range of motion, muscle strength, stability 2 reflexes, and sensation on examination. Tr. 25-26 (citing Tr. 518). 3 Plaintiff contends the ALJ overlooked the lumbar spine evaluation completed 4 by Mr. Roberts, which noted Plaintiff’s normal gait; paraspinous lumbar tenderness; 5 pain with motion; no pain in the left or right greater trochanter, buttock, and SI joint; 6 normal left straight leg raises; and back pain only with right straight leg raises. Tr. 7 518. Mr. Roberts also found Plaintiff’s lumbar active range of motion was normal 8 “with limiting factors of pain.” Tr. 518. These findings were reasonably 9 categorized by as “mostly” unremarkable as they do not demonstrate or support any 10 particular limitation. Even if the ALJ should not have called the lumbar spine 11 findings “unremarkable,” Mr. Roberts advised an MRI of the lumbar spine. Tr. 518. 12 The ALJ noted an MRI of Plaintiff’s spine from April 2014 found only mild 13 degenerative disc disease at the lumbosacral disc. Tr. 22, 840. Thus, this supports 14 the conclusion that Mr. Roberts findings do not support the degree of limitation 15 assessed due to back pain. 16 Second, the ALJ found Mr. Roberts’ opinion is inconsistent with the overall 17 treatment record. Tr. 26. The consistency of a medical opinion with the record as a 18 whole is a relevant factor in evaluating a medical opinion. Lingenfelter, 504 F.3d 19 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. The ALJ determined that the 20 record overall indicates only mild spine abnormalities on imaging and few abnormal 21 clinical findings. Tr. 26. As discussed supra, the ALJ thoroughly reviewed the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 32 1 record regarding Plaintiff’s back pain. See Tr. 22. The ALJ reasonably found Mr. 2 Roberts’ opinion is inconsistent with the degree of limitation otherwise supported by 3 the record. This is a germane reason for rejecting the opinion. 4 CONCLUSION 5 Having reviewed the record and the ALJ’s findings, this Court concludes the 6 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 7 Accordingly, 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is 10 11 GRANTED. IT IS SO ORDERED. The District Court Clerk is directed to enter this 12 Order and provide copies to counsel. Judgment shall be entered for Defendant and 13 the file shall be CLOSED. 14 DATED July 9, 2019. 15 16 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 33

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