Anderson v. Saul, No. 1:2019cv03061 - Document 20 (E.D. Wash. 2020)
Court Description: ORDER Denying 15 Plaintiff's Motion for Summary Judgment and Granting 18 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)
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Anderson v. Saul Doc. 20 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 06, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JENNIE MAE, A.,1 Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY,2 11 Defendant. No. 1:19-cv-03061-MKD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 15, 18 12 13 14 15 1 To protect the privacy of plaintiffs in social security cases, the undersigned 16 identifies them by only their first names and the initial of their last names. See 17 LCivR 5.2(c). 18 2 Andrew M. Saul is now the Commissioner of the Social Security Administration. 19 Accordingly, the Court substitutes Andrew M. Saul as the Defendant. See Fed. R. 20 Civ. P. 25(d). 2 ORDER - 1 Dockets.Justia.com 1 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 15, 18. The parties consented to proceed before a magistrate judge. ECF No. 3 7. The Court, having reviewed the administrative record and the parties’ briefing, 4 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 5 motion, ECF No. 15, and grants Defendant’s motion, ECF No. 18. 6 7 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 15 (quotation and citation omitted). Stated differently, substantial evidence equates to 16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 17 citation omitted). In determining whether the standard has been satisfied, a 18 reviewing court must consider the entire record as a whole rather than searching 19 for supporting evidence in isolation. Id. 20 2 ORDER - 2 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 7 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 8 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 9 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. 11 Sanders, 556 U.S. 396, 409-10 (2009). 12 13 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 14 the meaning of the Social Security Act. First, the claimant must be “unable to 15 engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than twelve 18 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 19 “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of 2 ORDER - 3 1 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 6 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 7 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 12 “any impairment or combination of impairments which significantly limits [his or 13 her] physical or mental ability to do basic work activities,” the analysis proceeds to 14 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 15 this severity threshold, however, the Commissioner must find that the claimant is 16 not disabled. 20 C.F.R. § 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 2 ORDER - 4 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 416.920(d). If the severity of the claimant’s 3 impairment does not meet or exceed the severity of the enumerated impairments, 4 the Commissioner must pause to assess the claimant’s “residual functional 5 capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 6 ability to perform physical and mental work activities on a sustained basis despite 7 his or her limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and 8 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. § 416.920(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. § 416.920(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. § 416.920(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. § 416.920(a)(4)(v). If the claimant is capable of 20 adjusting to other work, the Commissioner must find that the claimant is not 2 ORDER - 5 1 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 2 other work, analysis concludes with a finding that the claimant is disabled and is 3 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 7 capable of performing other work; and (2) such work “exists in significant 8 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 9 700 F.3d 386, 389 (9th Cir. 2012). 10 11 ALJ’S FINDINGS On October 27, 2015, Plaintiff applied for Title XVI supplemental security 12 income benefits alleging a disability onset date of October 1, 2015. Tr. 119, 24513 50. The application was denied initially, and on reconsideration. Tr. 138-46; Tr. 14 148-54. Plaintiff appeared before an administrative law judge (ALJ) on October 15 27, 2017. Tr. 42-74. On March 28, 2018, the ALJ denied Plaintiff’s claim. Tr. 16 12-35. 17 At step one of the sequential evaluation process, the ALJ found Plaintiff has 18 not engaged in substantial gainful activity since October 27, 2015. Tr. 18. At step 19 two, the ALJ found that Plaintiff has the following severe impairments: 20 degenerative joint disease of the lumbar spine; L1-2-disc protrusion; 2 ORDER - 6 1 spondylolisthesis; degenerative joint disease (hips and knees); morbid obesity; 2 unspecified mood disorder; and unspecified anxiety disorder. Tr. 18. 3 At step three, the ALJ found Plaintiff does not have an impairment or 4 combination of impairments that meets or medically equals the severity of a listed 5 impairment. Tr. 19. The ALJ then concluded Plaintiff has the RFC to perform 6 light work with the following limitations: 7 8 9 10 11 12 13 14 15 [Plaintiff] can lift/carry 10 pounds frequently and 20 pounds occasionally. She can stand/walk for two hours and sit for six hours during a typical eight-hour workday. She can perform tasks that do not include climbing ladders, ropes, or scaffolds. [Plaintiff] can frequently balance and occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to extreme cold, heat, vibrations, hazards (such as moving machinery and unprotected heights), and pulmonary irritants (defined as fumes, odors, dust, gases, and poor ventilation). [Plaintiff] must also avoid concentrated exposure to noise and must work in a “very quiet,” “quiet,” or “moderate” noise intensity level as defined in the DOT. She can understand, remember, and carry out simple, repetitive tasks and adapt to work place changes as would be required of simple, repetitive work, defined as “routine changes.” She can have occasional and superficial contact with the general public, supervisors, and co-workers. [Plaintiff] can set goals independently for simple, repetitive task work and complete a workweek without significant interruption from any symptoms. 16 17 Tr. 21. 18 At step four, the ALJ found Plaintiff is unable to perform any past relevant 19 work. Tr. 27. At step five, the ALJ found that, considering Plaintiff’s age, 20 education, work experience, RFC, and testimony from the vocational expert, there 2 ORDER - 7 1 were jobs that existed in significant numbers in the national economy that Plaintiff 2 could perform, such as, assembler, escort vehicle driver, and document preparer. 3 Tr. 28. Therefore, the ALJ concluded Plaintiff was not under a disability, as 4 defined in the Social Security Act, from the date of the application though the date 5 of the decision. Tr. 29. 6 On February 8, 2019, the Appeals Council denied review of the ALJ’s 7 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 8 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 9 10 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 her supplemental security income benefits under Title XVI of the Social Security 12 Act. Plaintiff raises the following issues for review: 13 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 14 2. Whether the ALJ properly evaluated the medical opinion evidence; 15 3. Whether the ALJ properly evaluated the lay witness evidence; and 16 4. Whether the ALJ conducted a proper step-five analysis. 17 ECF No. 15 at 2, 18. 18 19 20 2 ORDER - 8 1 DISCUSSION 2 A. Plaintiff’s Symptom Claims 3 Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 4 discrediting her symptom claims. ECF No. 15 at 3-12; ECF No. 19 at 2-4. An 5 ALJ engages in a two-step analysis to determine whether to discount a claimant’s 6 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 7 “First, the ALJ must determine whether there is objective medical evidence of an 8 underlying impairment which could reasonably be expected to produce the pain or 9 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 10 “The claimant is not required to show that [her] impairment could reasonably be 11 expected to cause the severity of the symptom [she] has alleged; [she] need only 12 show that it could reasonably have caused some degree of the symptom.” Vasquez 13 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 14 Second, “[i]f the claimant meets the first test and there is no evidence of 15 malingering, the ALJ can only reject the claimant’s testimony about the severity of 16 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 17 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 18 omitted). General findings are insufficient; rather, the ALJ must identify what 19 symptom claims are being discounted and what evidence undermines these claims. 20 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 2 ORDER - 9 1 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 2 explain why it discounted claimant’s symptom claims)). “The clear and 3 convincing [evidence] standard is the most demanding required in Social Security 4 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 5 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 Factors to be considered in evaluating the intensity, persistence, and limiting 7 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 8 duration, frequency, and intensity of pain or other symptoms; (3) factors that 9 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 10 side effects of any medication an individual takes or has taken to alleviate pain or 11 other symptoms; (5) treatment, other than medication, an individual receives or has 12 received for relief of pain or other symptoms; (6) any measures other than 13 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 14 any other factors concerning an individual’s functional limitations and restrictions 15 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. 16 §§ 416.929 (c). The ALJ is instructed to “consider all of the evidence in an 17 individual’s record,” “to determine how symptoms limit ability to perform work18 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 19 20 2 ORDER - 10 1 The ALJ found Plaintiff’s medically determinable impairments could cause 2 her alleged symptoms, but that her statements concerning the intensity, persistence, 3 and limiting effects of her symptoms were not entirely credible. Tr. 22. 4 1. Daily Activities 5 The ALJ found Plaintiff’s daily activities were inconsistent with her alleged 6 mental and physical limitations. Tr. 23, 25. A claimant’s daily activities may 7 support an adverse credibility finding if (1) the claimant’s activities contradict her 8 other testimony, or (2) the claimant “is able to spend a substantial part of [her] day 9 engaged in pursuits involving performance of physical functions that are 10 transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 11 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). It is reasonable for an 12 ALJ to consider a claimant’s activities which undermine claims of totally disabling 13 pain in making the credibility determination. See Rollins v. Massanari, 261 F.3d 14 853, 857 (9th Cir. 2001). The ability to care for others without help may 15 undermine claims of totally disabling pain, id., so long as the record identifies the 16 nature, scope, and duration of the care involved and establishes that the care is 17 “hands on” rather than a “one-off” care activity. Trevizo v. Berryhill, 871 F.3d 18 664, 675-76 (9th Cir. 2017). It is well-established that a claimant need not be 19 “utterly incapacitated” to be eligible for benefits. Fair, 885 F.2d at 603. 20 2 ORDER - 11 1 In support of her finding, the ALJ noted that, despite Plaintiff’s reported 2 symptoms of pain, depression, and anxiety (including social phobia and difficulty 3 interacting with others, Tr. 280, 294, 309; self-isolation, Tr. 367, 405; difficulty 4 completing tasks, Tr. 376; limitations in sitting/standing for prolonged periods, 5 following instructions, concentrating for prolonged periods, keeping appointments, 6 using the telephone, and using transportation, Tr. 382-83), Plaintiff was able to 7 attend community college classes (50-minute classes four days/week and 908 minute classes two days/week), complete homework, and earn a criminal justice 9 program certificate; that she was able to go tent camping, go grocery shopping by 10 herself, do the laundry and cleaning, and tend to the needs of a newborn baby 11 (including changing his diapers, feeding him, reading to him, and playing with 12 him); and that she was able to regularly attend substance abuse recovery meetings. 13 Tr. 25. The ALJ reasonably concluded that Plaintiff’s engagement in these 14 activities demonstrated she was “not as limited as alleged.” Tr. 25; see Valentine 15 v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009); Molina, 674 F.3d 16 at 1113 (“[e]ven where [Plaintiff’s] activities suggest some difficulty functioning, 17 they may be grounds for discrediting the claimant’s testimony to the extent that 18 they contradict claims of a totally debilitating impairment.”). 19 Plaintiff argues that the ALJ failed to demonstrate how her attendance at 20 classes and meetings contradicts her testimony or would be transferable to a work 2 ORDER - 12 1 setting, ECF No. 15 at 4-5; ECF No. 19 at 3-4, and notes that she was absent more 2 than five days in her most recent academic quarter due to pain. ECF No. 15 at 4 3 (citing Tr. 62). However, Plaintiff’s successful completion of an educational 4 program (which required her to routinely attend classes, pay attention during 5 classes, follow instructions, and complete assignments independently), and 6 consistent attendance at recovery meetings (which requires interacting with 7 others), were reasonably interpreted by the ALJ to contradict her alleged 8 limitations, specifically those related to completing tasks, interacting with others, 9 following instructions, concentrating, and keeping appointments. See, e.g., Tr. 47 10 (“I have a hard time completing daily tasks because I’m in so much pain;”); Tr. 11 280, 283 (Plaintiff self-reports anxiety keeps her from interacting with others and 12 going places alone); Tr. 285 (Plaintiff self-reports she can only pay attention for 20 13 minutes); Tr. 314 (Plaintiff self-reports she can only pay attention for five 14 minutes). 15 Plaintiff also argues that the ALJ failed to cite specific allegations 16 contradicted by her performance of household and childcare obligations. ECF No. 17 15 at 5. However, on this record, the ALJ reasonably determined that Plaintiff’s 18 symptom complaints, including constant and debilitating back pain, Tr. 47, 19 difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, 20 and stair climbing, Tr. 285, and inability to pay attention longer than five minutes, 2 ORDER - 13 1 Tr. 314, were inconsistent with her ability to change, feed, play with, read to, clean 2 up after, and care for her children, as well as perform chores on a sustained basis. 3 Tr. 25. Although the evidence of Plaintiff’s daily activities could form the basis of 4 an interpretation more favorable to her, the ALJ’s interpretation was rational, and 5 the Court must uphold the ALJ’s decision where the evidence is susceptible to 6 more than one rational interpretation.” See Burch v. Barnhart, 400 F.3d 676, 6807 81 (9th Cir. 2005) (internal quotation marks and alterations omitted). 8 In addition, the ALJ determined that the RFC as formulated would 9 accommodate Plaintiff’s alleged limitations. Tr. 22. The RFC restricts Plaintiff to 10 light work and contemplates that she can lift/carry 10 pounds frequently and 20 11 pounds occasionally, stand or walk for two hours and sit for six hours, and 12 occasionally climb stairs/ramps, stoop, crawl, kneel, or crouch. Tr. 21. The RFC 13 restricts her to very quiet workspaces, expects that she can complete repetitive 14 tasks and adapt to routine changes involving simple, repetitive work, and restricts 15 her contact with others. Tr. 21. In these ways, the RFC addresses Plaintiff’s 16 complaints and mirrors many of her daily activities. The RFC addresses her 17 complaints of anxiety and social phobia by limiting her interaction with co18 workers, supervisors, and the general public. Tr. 21. Accordingly, Plaintiff’s 19 alleged limitations do not call for a more restrictive RFC than set forth by the ALJ. 20 2 ORDER - 14 1 2. Conservative Treatment 2 The ALJ found Plaintiff’s conservative level of treatment was inconsistent 3 with the alleged severity of her impairments. Tr. 25. Evidence of conservative 4 treatment is sufficient to discount a claimant’s testimony regarding the severity of 5 an impairment. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 6 (holding the ALJ permissibly inferred that the claimant’s “pain was not as all7 disabling as he reported in light of the fact that he did not seek an aggressive 8 treatment program” and “responded favorably to conservative treatment including 9 physical therapy and the use of anti-inflammatory medication, a transcutaneous 10 electrical nerve stimulation unit, and a lumbosacral corset”). Here, the ALJ noted 11 that, “even with worsened symptoms,” treatment providers did not recommend 12 surgery and opted for more conservative treatment. Tr. 25 (citing Tr. 748 (“At this 13 time [Plaintiff] would like to be referred to physical medicine to help manage her 14 pains non-operatively. Weight loss would be necessary before surgery could be 15 considered.”)). However, while the ALJ identified a medical record indicating 16 Plaintiff’s treating physician recommended physical therapy over surgery, the ALJ 17 failed to note that surgery was not deemed a feasible option due to Plaintiff’s 18 weight. The same medical record states, “elective surgery should be limited to 19 individuals with a BMI of less than 40,” and records Plaintiff’s BMI as 52.08. Tr. 20 747-48. Likewise, Dr. Chang stated, “in view of her obesity, she is not a surgical 2 ORDER - 15 1 candidate for my practice.” Tr. 754. Because surgery was neither recommended 2 or sanctioned by Plaintiff’s doctors due to her weight, the doctors’ 3 recommendation of more conservative treatment (i.e., physical therapy/aquatic 4 therapy) was not a clear and convincing reason to discredit her symptom 5 testimony. Nevertheless, this error is harmless where, as discussed supra, the ALJ 6 provides additional reasons, supported by substantial evidence, for discrediting 7 Plaintiff’s symptom complaints. See Carmickle, 533 F.3d at 1162-63; Molina, 674 8 F.3d at 1115. 9 10 3. Improvement with Treatment The ALJ found that Plaintiff’s mental and physical symptoms were 11 improving with treatment. Tr. 24. The effectiveness of medication and treatment 12 is a relevant factor in determining the severity of a claimant’s symptoms. 20 13 C.F.R. §§ 416.929(c)(3) (2011); Tommasetti, 533 F.3d at 1040 (a favorable 14 response to treatment can undermine a claimant’s complaints of debilitating pain or 15 other severe limitations). As to her mental impairments, the ALJ found Plaintiff’s 16 treatment records demonstrated her reported symptoms improved with therapy. Tr. 17 23. The ALJ noted that, during therapy sessions, Plaintiff cried “out of happiness 18 of the positive progress she’s made in her life,” and expressed gratitude for lessons 19 she learned from therapy, Tr. 547; that she reported “overall she feels as if she is 20 doing well” and believes she is “managing [her] depression and anxiety pretty 2 ORDER - 16 1 well,” Tr. 549; and that she demonstrated an ability to “keep some type of balance” 2 amidst stressful events, Tr. 559. In addition, the ALJ noted Plaintiff’s self-reported 3 PHQ-9 scores “steadily decreased with counseling,” Tr. 23 (citing Tr. 542, 544, 4 547, 551, 553, 555-560) as recognized by her counselor. See Tr. 555 (treatment 5 note indicates PHQ-9 scores are below threshold for the third time in a row). The 6 ALJ noted Plaintiff indicated only “mild” depression symptoms3 in January, June, 7 and July of 2017. Tr. 23. Plaintiff contends the treatment records chosen are not 8 representative of the record as a whole and that the ALJ failed to acknowledge the 9 PHQ-9 scores waxed and waned over time. ECF No. 15 at 7; ECF No. 19 at 2. 10 However, while Plaintiff’s symptoms naturally waxed and waned over time, see 11 Tr. 367, 388, 407, 559, 557, 556, 555, 553, 542, 549, 660, 547, 649 (PHQ-9 scores 12 chronologically from November 9, 2015 to July 26, 2017: 14, 11, 11, 10, 12, 7, 11, 13 8, 3, 3, 11, 10, 11, 8, 4, 5), they were consistently better than when she started 14 treatment. See Tr. 544 (recording PHQ-9 score of 14). Moreover, as noted by the 15 ALJ, Plaintiff herself reported significant progress during treatment sessions and 16 acknowledged that she benefitted from therapy. See Tr. 547, 549, 551, 553, 555, 17 18 3 The following diagnoses follow total PHQ-9 scores: minimal depression (0-4); 19 mild depression (5-9); moderate depression (10-14); moderately severe depression 20 (15-19); severe depression (20-27). 2 ORDER - 17 1 558, 559. On this record, there is substantial evidence supporting the ALJ’s 2 finding that Plaintiff’s mental health symptoms improved with treatment. This 3 constitutes a clear and convincing reason to give less weight to Plaintiff’s symptom 4 testimony. 5 The ALJ similarly found Plaintiff’s physical symptoms improved with 6 treatment. Tr. 24. The ALJ noted, and the record corroborates, that Plaintiff 7 reported that her pain decreased as a result of taking meloxicam, Tr. 649, 651; that 8 her pain decreased with physical therapy and exercises, Tr. 527, 529, 537; and that 9 she benefited in mobility and pain management from aquatic therapy, Tr. 528, 533, 10 538. Plaintiff contends the “testimony of relatively improved symptoms is not 11 substantial evidence contradicting her allegations or the opinions of her treating 12 providers.” ECF No. 15 at 8. However, as noted above, the record demonstrates 13 Plaintiff consistently showed improved symptoms following treatment. The ALJ 14 reasonably concluded Plaintiff’s symptom testimony was inconsistent with her 15 improvement with treatment. This was a clear and convincing reason to find 16 Plaintiff’s subjective symptom testimony less credible. 17 4. Inconsistency with Objective Medical Evidence 18 The ALJ found the objective medical evidence was inconsistent with the 19 alleged severity of Plaintiff’s limitations. Tr. 24. An ALJ may not discredit a 20 claimant’s symptom testimony and deny benefits solely because the degree of the 2 ORDER - 18 1 symptoms alleged is not supported by objective medical evidence. Rollins, 261 2 F.3d at 857; Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). The 3 medical evidence is a relevant factor in determining the severity of a claimant’s 4 pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 5 416.929(c)(2). As to Plaintiff’s mental impairments, the ALJ found that treatment 6 records documented some of the symptoms that Plaintiff alleged, but that overall, 7 the evidence demonstrated that Plaintiff’s depression and anxiety are not as severe 8 and limiting as alleged. Tr. 23. The ALJ noted that the “record contains multiple 9 instances in which the claimant’s mental status appeared normal,” and noted that 10 Plaintiff generally presented as “calm, cooperative, appropriate, and/or even with a 11 ‘happy’ mood and affect during office visits.” Tr. 23 (citing Tr. 547, 553, 555, 12 558, 657, 666, 676, 683, 708). Additionally, the ALJ noted that Plaintiff 13 demonstrated “normal attitude, behavior, stream of mental activity, speech, content 14 of thought, mood, affect, intellectual functioning, memory, fund of knowledge, 15 concentration, and judgment during a consultative psychological evaluation in 16 February 2016. Tr. 23 (citing Tr. 413-14). Plaintiff contends the ALJ cherry17 picked therapy sessions where she presented in “good spirits,” and that the record 18 contains more sessions indicating abnormalities. ECF No. 15 at 9. The ALJ must 19 consider all relevant evidence in the record and may not point to only those 20 portions of the records that bolster her findings. See, e.g., Holohan v. Massanari, 2 ORDER - 19 1 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding an ALJ cannot selectively rely on 2 some entries in plaintiff’s records while ignoring others). Here, rather than 3 disregarding records, the ALJ acknowledged and considered that some records 4 indicated depression and anxiety symptoms, see Tr. 23, and formulated Plaintiff’s 5 RFC accordingly. Tr. 21. Plaintiff’s argument that there were more sessions 6 where she presented as depressed/anxious speaks only to the frequency and not to 7 the severity of the symptoms (and ultimately the impairments), which the ALJ 8 reasonably concluded was less severe than alleged. Based on the record, the ALJ’s 9 interpretation is rational and supported by substantial evidence; this was a clear 10 and convincing reason to find Plaintiff’s testimony less credible. 11 The ALJ also found the medical evidence was inconsistent with the alleged 12 severity of Plaintiff’s physical impairments. Tr. 24. The ALJ noted that, despite 13 Plaintiff’s complaints, multiple records indicated normal gait/muscle tone and 14 showed no signs of neurological deficits, Tr. 649-83; that Plaintiff’s low back 15 radiation did not go down to her feet very often, Tr. 670; that Plaintiff sometimes 16 endorsed tenderness around her SI joint, hip, and buttocks, and other times denied 17 it, Tr. 655, 666; that Plaintiff took ibuprofen only as needed for back pain, Tr. 388; 18 that Plaintiff was “ambulating weight bearing without any difficulty,” Tr. 424; and 19 that, upon diagnosis and treatment of her diabetes, Plaintiff had improved blood 20 sugar levels and no reports of significantly limiting symptoms, Tr. 488. In 2 ORDER - 20 1 addition, the ALJ noted that when Plaintiff’s back symptoms did appear to worsen, 2 they were successfully managed, as discussed supra, by conservative treatment. 3 Tr. 24. Despite Plaintiff’s arguments to the contrary, see ECF No. 15 at 10, 4 objective evidence in the record supports the ALJ’s findings. See Tr. 390 (mild 5 multilevel spondylosis without significant neural foraminal narrowing or central 6 canal stenosis); Tr. 419 (imaging results show small protrusion of L1-L2 disc with 7 remainder appearing unremarkable); Tr. 486 (no gross fracture or dislocation of 8 hips observed); Tr. 488 (diabetes under good control). While a different 9 interpretation of the medical evidence could be made, the ALJ’s interpretation that 10 the objective evidence was inconsistent with Plaintiff’s complaints of disabling 11 symptoms is rational and supported by substantial evidence. See Batson v. 12 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (recognizing that 13 when evidence in the record is subject to more than one rational interpretation, the 14 court defers to the ALJ’s finding). These findings, coupled with the other reasons 15 articulated, provided clear and convincing reasons to give less weight to Plaintiff’s 16 subjective symptoms complaints. 17 B. Medical Opinion Evidence 18 Plaintiff contends the ALJ improperly weighed the medical opinions of M. 19 Gabriela Mondragon, LCSW, Morgan Liddell, M.D., Rita Flanagan, Ph.D., Steven 20 2 ORDER - 21 1 Haney, M.D., Jeremiah Crank, M.D, Raylee Weaver-Jensen, PA-C, and Marybeth 2 Wheeler, ARNP. ECF No. 15 at 12-18; ECF No. 19 at 4-8. 3 There are three types of physicians: “(1) those who treat the claimant 4 (treating physicians); (2) those who examine but do not treat the claimant 5 (examining physicians); and (3) those who neither examine nor treat the claimant 6 but who review the claimant’s file (nonexamining or reviewing physicians).” 7 Holohan, 246 F.3d at 1201-02. “Generally, a treating physician’s opinion carries 8 more weight than an examining physician’s, and an examining physician’s opinion 9 carries more weight than a reviewing physician’s.” Id. “In addition, the 10 regulations give more weight to opinions that are explained than to those that are 11 not, and to the opinions of specialists concerning matters relating to their specialty 12 over that of nonspecialists.” Id. (citations omitted). 13 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 14 reject it only by offering “clear and convincing reasons that are supported by 15 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 16 “However, the ALJ need not accept the opinion of any physician, including a 17 treating physician, if that opinion is brief, conclusory and inadequately supported 18 by clinical findings.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 19 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 20 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 2 ORDER - 22 1 may only reject it by providing specific and legitimate reasons that are supported 2 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8303 31). 4 “Only physicians and certain other qualified specialists are considered 5 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original); 6 see 20 C.F.R. § 416.902 (acceptable medical sources include licensed physicians, 7 licensed or certified psychologists, licensed optometrists, licensed podiatrists, 8 qualified speech-language pathologists, licensed audiologists, licensed advanced 9 practice registered nurses, and licensed physician assistants). However, an ALJ is 10 required to consider evidence from non-acceptable medical sources, such as 11 therapists. 20 C.F.R. § 416.927(f). An ALJ may reject the opinion of a non12 acceptable medical source by giving reasons germane to the opinion. Ghanim, 763 13 F.3d at 1161. 14 Medical Opinions on Mental Functioning 15 1. M. Gabriela Mondragon, LCSW 16 Ms. Mondragon, Plaintiff’s treating therapist, submitted opinions in 17 November 2015, October 2016, and May 2017. Tr. 449-52, 462-65, 504-07. In 18 her November 2015 opinion, she diagnosed Plaintiff with Major Depressive 19 Disorder Recurrent Mild, found that the disorder would affect her ability to work 20 (enabling 1-10 hours of work/week), and would likely limit her for at least 12 2 ORDER - 23 1 months. Tr. 449-50. She determined Plaintiff’s difficulty regulating emotions and 2 tearful affect could pose difficulties interacting with others and completing tasks. 3 Tr. 449. In October 2016, Ms. Mondragon noted similar concerns, but increased 4 Plaintiff’s ability to work to 11-20 hours per week and indicated that the condition 5 would likely limit Plaintiff’s ability to work for six months. Tr. 462-63. In May 6 2017, Ms. Mondragon reported the same findings, i.e., that Plaintiff was limited to 7 11-20 hours of work/week and would likely be limited for six months. Tr. 505. 8 The ALJ gave little weight to Ms. Mondragon’s opinions. Tr. 27. 9 Plaintiff argues that the ALJ improperly discounted Ms. Mondragon’s 10 opinions. ECF No. 15 at 13-14; ECF No. 19 at 5. Because Ms. Mondragon is 11 considered a nonacceptable medical source, the ALJ was required to give germane 12 reasons to discount the opinions. Ghanim, 763 F.3d at 1161. First, the ALJ found 13 Ms. Mondragon’s opinions were “inconsistent with the claimant’s treatment 14 history,” given the mild nature of Plaintiff’s symptoms and Ms. Mondragon’s prior 15 representations of improvement. Tr. 27. A medical opinion may be rejected if it is 16 unsupported by medical findings, see Bray, 554 F.3d at 1228; Batson, 359 F.3d at 17 1195, or inconsistent with a medical source’s prior records or notes. Molina, 674 18 F.3d at 1112 (finding a nonacceptable medical source’s opinion was properly 19 discounted on the basis that it conflicted with her earlier assessment of the 20 plaintiff); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (finding a 2 ORDER - 24 1 treating physician’s opinion was properly discredited on basis that it was 2 inconsistent with his treatment notes). In support of her finding, the ALJ noted 3 that Plaintiff’s treatment history showed relatively mild symptoms (largely 4 managed throughout the adjudicatory period by over-the-counter medication) and 5 that Ms. Mondragon had reported that Plaintiff’s symptoms were improving, and 6 her depression and anxiety were becoming milder. Tr. 27. The record supports the 7 ALJ’s findings. For example, in October 2016, Ms. Mondragon noted that 8 Plaintiff presented with a low PHQ-9 score of 3 and that it was the third session in 9 a row where such scores were below the threshold; she noted that she discussed 10 graduating from therapy services early with Plaintiff. Tr. 555. In January 2017, 11 Ms. Mondragon noted that Plaintiff had started community college classes and was 12 “doing well” so far; she noted that Plaintiff was happy and maintained a low PHQ13 9 score of 3. Tr. 553. In April 2017, Ms. Mondragon noted that Plaintiff’s PHQ-9 14 score, even when upset, was low compared to when she started therapy, that she 15 was set to graduate from her community college program in June 2017, and that 16 her relationship with her daughter had improved significantly. Tr. 551. Finally, 17 Ms. Mondragon’s three opinions indicated improvement over time as she increased 18 the hours Plaintiff could participate in work and decreased the estimated duration 19 of the limitations. See 449-50, 462-63, 504-05. The inconsistency between Ms. 20 Mondragon’s treatment notes, which documented substantial improvement, and the 2 ORDER - 25 1 limitations assessed in her opinions constituted a germane reason to give the 2 opinions less weight. 3 Second, the ALJ gave little weight to the opinions because Ms. Mondragon 4 “at one point” opined Plaintiff’s symptoms would persist for only six months. Tr. 5 27. Temporary limitations are not enough to meet the durational requirement for a 6 finding of disability. 20 C.F.R. § 416.905(a) (requiring a claimant’s impairment to 7 be expected to last for a continuous period of not less than twelve months); 8 Carmickle v. Comm’r of Soc. Sec. Admin, 533 F.3d 1155, 1165 (9th Cir. 2008) 9 (affirming the ALJ’s finding that treating physicians’ short-term excuse from work 10 was not indicative of “claimant’s long-term functioning”). In her first opinion, Ms. 11 Mondragon opined that Plaintiff’s symptoms would persist for at least twelve 12 months. Tr. 450. Accordingly, Ms. Mondragon’s first opinion satisfied the 13 durational requirement, and this was not a germane reason to discredit the opinion. 14 In her second and third opinions, authored within seven months of each other, Ms. 15 Mondragon opined that Plaintiff’s symptoms would persist for six months. Tr. 463, 16 505. These opinions, which are substantially similar, and which occurred in close 17 succession, together form a continuous period of twelve months and thus satisfy 18 the durational requirement. Nonetheless, the error is harmless because the ALJ 19 provided another germane reason to discount the opinions. Molina, 674 F.3d at 20 1115. 2 ORDER - 26 1 2. Morgan Liddell, M.D. 2 On February 20, 2016, Dr. Liddell performed a consultative psychological 3 evaluation. Tr. 411. She diagnosed Plaintiff with methamphetamine/alcohol use 4 disorders in sustained remission, unspecified mood/anxiety disorders, and 5 borderline personality disorder traits. Tr. 415. She ultimately concluded that 6 Plaintiff does not have a psychiatric disorder that would impair her ability to work 7 and that symptoms from the diagnosed disorders would likely improve within 12 8 months of standard care treatment. Tr. 415. The ALJ gave great weight to Dr. 9 Liddell’s evaluation. Tr. 26. 10 Plaintiff faults the ALJ for affording great weight to Dr. Liddell’s opinion. 11 ECF No. 15 at 13. An ALJ must set forth specific, legitimate reasons for crediting 12 one medical opinion over a conflicting opinion. Garrison, 759 F.3d at 1012-13; 13 Lester, 81 F.3d at 831. Here, the ALJ provided several reasons for crediting Dr. 14 Liddell’s opinion over the conflicting and discounted opinions of Ms. Mondragon, 15 who is considered an other source. First, the ALJ found that Dr. Liddell’s 16 conclusion that Plaintiff “has few mental functional limitations,” was consistent 17 with Plaintiff’s presentation at the evaluation. Tr. 26. Relevant factors to 18 evaluating any medical opinion include the amount of relevant evidence that 19 supports the opinion, the quality of the explanation provided in the opinion, and the 20 consistency of the medical opinion with the record as a whole. Lingenfelter v. 2 ORDER - 27 1 Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. During the 2 evaluation with Dr. Liddell, Plaintiff was observed to have adequate intellectual 3 functioning/sensorium, Tr. 414, fair insight into her mental health difficulties, Tr. 4 415, and an adequate stream of mental activity/speech and content of thought, Tr. 5 414. She was cooperative, disclosing, and attentive, and she exhibited a happy and 6 stable mood. Tr. 413-14. The ALJ reasonably found that the characteristics that 7 Plaintiff displayed during her evaluation were consistent with Dr. Liddell’s 8 opinions, including that Plaintiff would be able to interact with coworkers, accept 9 instructions from supervisors, and manage usual stress encountered in the 10 workplace. Tr. 415. This was a legally sufficient reason to credit to Dr. Liddell’s 11 opinion. 12 Second, the ALJ found that Dr. Liddell’s opinion was consistent with 13 Plaintiff’s reported daily activities. Tr. 26. The ALJ may consider a claimant’s 14 activities that undermine reported symptoms. Rollins, 261 F.3d at 857. Here, as 15 discussed in detail supra, Plaintiff’s ability to complete community college classes 16 and earn a criminal justice certificate, her consistent attendance at narcotics 17 anonymous meetings (once every two weeks and meeting with her sponsor twice 18 weekly), and her ability to be the caretaker for her baby, plan and prepare daily 19 dinners, shop weekly for groceries, do the “washing, drying, folding, and putting 20 away the clothes,” see Tr. 413, were reasonably interpreted by the ALJ to detract 2 ORDER - 28 1 from the severity of the mental impairments she alleged, and thus reasonably 2 interpreted to be consistent with Dr. Liddell’s finding of minimal mental functional 3 limitations. This was a legally sufficient reason to credit Dr. Liddell’s opinion. 4 Plaintiff also argues that the ALJ’s assignment of great weight to Dr. 5 Liddell’s opinion is inconsistent with her Step Two finding, ECF No. 15 at 13; 6 ECF No. 19 at 5, where she found Plaintiff’s unspecified mood/anxiety disorders 7 were severe impairments. Tr. 18. However, the ALJ noted that, despite giving Dr. 8 Liddell’s opinion great weight, she nonetheless provided some mental limitations 9 in light of Plaintiff’s subjective symptom complaints and reported pain. Tr. 26. 10 This is consistent with the ALJ’s position, which informed her formulation of the 11 RFC, that the treatment records reflected some of Plaintiff’s symptoms relating to 12 her anxiety. See Tr. 23 (acknowledging that Plaintiff had to “coach herself” to “get 13 out and do life”). Moreover, the ALJ also gave great weight to the opinions of Dr. 14 Haney and Dr. Flanagan, discussed infra, both which opined moderate limitations. 15 Accordingly, the ALJ’s decision to afford great weight to Dr. Liddell’s opinion 16 was not irreconcilably inconsistent with her Step Two findings. 17 3. Steven Haney, M.D., and Rita Flanagan, Ph.D. 18 Dr. Haney reviewed Plaintiff’s medical records and opined a mental RFC 19 assessment on March 8, 2016. Tr. 115-16. He found Plaintiff did not have 20 significant limitations in remembering locations and work-like procedures or 2 ORDER - 29 1 understanding and remembering short and simple instructions but was markedly 2 limited in her ability to understand and remember detailed instructions. Tr. 115. 3 He found Plaintiff was moderately limited in her ability to interact with the public 4 so that only “occasional superficial interactions” would be appropriate. Tr. 116. 5 On May 24, 2016, Dr. Flanagan conducted a similar assessment. Tr. 130-32. She 6 also found moderate limitations in Plaintiff’s ability to understand, remember, and 7 carry out detailed instructions, as well as Plaintiff’s ability to interact appropriately 8 with the general public. Tr. 130-31. She noted that Plaintiff would be able to 9 relate with coworkers and supervisors if contact were minimal. Tr. 132. 10 Moreover, she found that Plaintiff was moderately limited in her ability to respond 11 appropriately to changes in the work setting, but that she could adapt to routine 12 changes and make simple plans. Tr. 132. The ALJ gave both opinions great 13 weight, with slightly greater weight given to Dr. Flanagan’s opinion due to its 14 increased specificity. Tr. 26. 15 Plaintiff summarily asserts that the ALJ erred in relying on the opinions of 16 nonexamining physicians. ECF No. 15 at 13. Because Plaintiff fails to 17 substantively challenge the ALJ’s decision, any challenge is waived. See 18 Carmickle, 533 F.3d at 1161 n.2 (determining Court may decline to address on the 19 merits issues not argued with specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th 20 Cir. 1998) (the Court may not consider on appeal issues not “specifically and 2 ORDER - 30 1 distinctly argued” in the party’s opening brief). However, the Court conducted an 2 independent review of the ALJ’s decision and finds that it is supported by 3 substantial evidence in the record. 4 An ALJ must set forth specific, legitimate reasons for crediting one medical 5 opinion over a conflicting opinion. Garrison, 759 F.3d at 1012-13; Lester, 81 F.3d 6 at 831. Here, the ALJ gave several reasons for crediting the similar opinions of Dr. 7 Haney and Dr. Flanagan over the conflicting and discounted opinions of Ms. 8 Mondragon. Tr. 26. First, the ALJ found both opinions were consistent with the 9 medical evidence indicating minimal mental health limitations, particularly in light 10 of Plaintiff’s improvement with treatment. Tr. 26. The consistency of a medical 11 opinion with the record as a whole is a relevant factor in evaluating that medical 12 opinion. Orn, 495 F.3d at 631. Dr. Haney’s and Dr. Flanagan’s opinions 13 identified mild and moderate limitations resulting from Plaintiff’s mental 14 impairments. See Tr. 115-16; Tr. 130-32. These limitations are consistent with 15 those identified by the ALJ throughout the record and incorporated into the RFC, 16 see Tr. 23 (ALJ acknowledging medical records indicating symptoms of anxiety 17 and depression), as well as the documented improvement of Plaintiff’s mental 18 symptoms with treatment discussed supra. This was a specific and legitimate 19 reason to credit the opinions. 20 2 ORDER - 31 1 Second, the ALJ found the opined limitations in both opinions were 2 consistent with Plaintiff’s reported daily activities. Tr. 26. The ALJ may consider 3 a claimant’s activities that undermine reported symptoms. Rollins, 261 F.3d at 4 857. As discussed supra, Plaintiff’s reported activities are well documented 5 throughout the record and include her ability to attend college courses in person 6 and care/arrange childcare for her children. Tr. 26. The level of functioning 7 required to perform such activities was reasonably interpreted to be consistent with 8 the minimal mental limitations asserted by both Dr. Haney and Dr. Flanagan. 9 Overall, the ALJ did nor err in crediting the opinions of Dr. Haney and Dr. 10 Flanagan over the opinions of Ms. Mondragon. 11 Medical Opinions on Physical Functioning 12 1. Jeremiah Crank, M.D. 13 Dr. Crank, Plaintiff’s treating physician, submitted a medical statement in 14 December 2016. Tr. 466-68. He opined that, due to her lower back/hip pain and 15 wrist pain, Plaintiff would be limited to sedentary work and would only be able to 16 work 1-10 hours per week and that her depression and social anxiety would impact 17 her ability to work. Tr. 466-67. Dr. Crank indicated the limitations identified 18 would be temporary but stated that the duration was unknown. Tr. 467. The ALJ 19 gave little weight to Dr. Crank’s opinion that Plaintiff would be limited to 20 sedentary work. Tr. 27. Because Dr. Crank’s opinion was contradicted by Dr. 2 ORDER - 32 1 Virgi’s opinion, Tr. 128-30 (opining Plaintiff was capable of light work), the ALJ 2 was required to provide specific and legitimate reasons supported by substantial 3 evidence” to discount the opinion. Bayliss, 427 F.3d at 1216 (citing Lester, 81 4 F.3d at 830-831). 5 First, the ALJ discounted the opinion because the ALJ concluded that Dr. 6 Crank relied on Plaintiff’s self-reports rather than objective findings. Tr. 27. A 7 physician’s opinion may be rejected if it is based on a claimant’s subjective 8 complaints, which were properly discounted. Tonapetyan v. Halter, 242 F.3d 9 1144, 1149 (9th Cir. 2001); Fair, 885 F.2d at 604. However, when an opinion is 10 not more heavily based on a patient’s self-reports than on clinical observations, 11 there is no evidentiary basis for rejecting the opinion. Ghanim, 763 F.3d at 1162; 12 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008). As 13 discussed supra, the ALJ gave legally sufficient reasons for discounting Plaintiff’s 14 symptom testimony. Plaintiff argues the ALJ unreasonably concluded that Dr. 15 Crank “relied heavily” on Plaintiff’s self-reports. ECF No. 15 at 15. However, the 16 ALJ’s detailed observations about the inconsistencies between Plaintiff’s reported 17 daily activities and her alleged limitations, coupled with the brevity of the 18 explanations and evidence provided in Dr. Crank’s opinion, led the ALJ to 19 reasonably conclude that Dr. Crank’s opinion relied on self-reports which had been 20 discredited. Tr. 27. For example, Dr. Crank opined Plaintiff’s impairments result 2 ORDER - 33 1 in her limited access to services, with the sole explanation being, “due to 2 depression [and] social anxiety.” Tr. 467. Plaintiff’s daily activities and the record 3 at large do not support that her mental impairments limit her from accessing 4 services. See, e.g., Tr. 398-408 (successfully accessing treatment); Tr. 54-55 5 (attending recovery meetings). Similarly, Dr. Crank determined Plaintiff had 6 limitations standing, sitting, concentrating, interacting with people, completing 7 applications, keeping appointments, and using transportation because “pain of 8 back/hips/wrists limits walking [and] moving.” Tr. 466-67. However, as the ALJ 9 acknowledged, many of Plaintiff’s reported daily activities required such actions. 10 See, e.g., Tr. 53-54, Tr. 58-59 (describing community college courses, which 11 included in-class group work and independent work); Tr. 413 (Plaintiff reports 12 preparing meals, shopping for groceries, taking care of her baby, doing the 13 laundry, and attending recovery meetings multiple times per week). When viewed 14 in light of the whole record, the limitations opined by Dr. Crank were reasonably 15 interpreted by the ALJ to be primarily based on self-reported symptoms, rather 16 than on objective or clinical evidence. Accordingly, this was a specific and 17 legitimate reason to discount Dr. Crank’s opinion. 18 Second, the ALJ noted that Dr. Crank indicated Plaintiff’s limitations would 19 not be permanent but gave no expected duration. Tr. 27. Temporary limitations 20 are not enough to meet the durational requirement for a finding of disability. 20 2 ORDER - 34 1 C.F.R. § 416.905(a) (requiring a claimant’s impairment to be expected to last for a 2 continuous period of not less than twelve months). Dr. Crank’s opinion failed to 3 provide an estimate as to how temporary Plaintiff’s limitations would be. As such, 4 the Court, as well as the ALJ, are unable to determine whether the opinion posits 5 the limitations will last over 12 months. Dr. Crank’s failure to provide a temporal 6 estimate regarding Plaintiff’s limitations was a specific and legitimate reason to 7 discount Dr. Crank’s opinion. 8 2. Raylee Weaver-Jensen, PA-C 9 Ms. Weaver-Jensen submitted an opinion in October 2016. Tr. 445-48. She 10 determined Plaintiff would be unable to participate in any work, that she was 11 severely limited (unable to lift at least 2 pounds or unable to stand or walk), and 12 that “any lifting or prolonged sitting or standing is likely to exacerbate her disc 13 disease.” Tr. 445-46. The ALJ gave her opinion little weight. Tr. 27. 14 Because Ms. Weaver-Jensen is considered a nonacceptable medical source, 15 the ALJ was required to give reasons germane to the opinion to discount the 16 opinion. Ghanim, 763 F.3d at 1161. First, the ALJ found that the opinion was 17 “overstated in the context of the claimant’s conservative treatment.” Tr. 27. An 18 ALJ may discount a physician’s opinion that is inconsistent with the conservative 19 nature of the claimant’s treatment. Rollins, 261 F.3d at 856; Parra v. Astrue, 481 20 F.3d 742, 750-51 (9th Cir. 2007); Garrison, 759 F.3d at 1015. However, as 2 ORDER - 35 1 discussed supra, Plaintiff’s conservative treatment pertaining to her physical 2 impairments resulted partly due to her weight. See Tr. 748, 754. The conservative 3 treatment measures were recommended because surgery was not feasible. That 4 Plaintiff was conservatively treated, in light of this fact, is not a germane reason to 5 discredit Ms. Weaver-Jensen’s opinion. However, any error is harmless because 6 the ALJ provided a separate germane reason discussed infra. See Carmickle, 533 7 F.3d at 1162-63; Molina, 674 F.3d at 1115. 8 Second, the ALJ found the opinion was inconsistent with Plaintiff’s daily 9 activities. Tr. 27. An ALJ may discount a medical source opinion to the extent it 10 conflicts with the claimant’s daily activities. Morgan v. Comm’r of Soc. Sec. 11 Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). Plaintiff’s daily activities, discussed 12 in detail throughout the ALJ’s opinion (including caring for her baby, driving, 13 attending classes and meetings, shopping, and doing household chores), were 14 reasonably determined by the ALJ to be inconsistent with the level of physical 15 limitation presented in Ms. Weaver-Jensen’s opinion, namely that Plaintiff could 16 not lift 2 pounds or walk or stand and that she could not participate in any activity 17 without exacerbating her symptoms. See Tr. 445. This was a germane reason to 18 discredit the opinion. 19 Third, the ALJ gave no weight to Ms. Weaver-Jensen’s opinion that Plaintiff 20 was “disabled,” finding that such an issue is “reserved to the Commissioner.” Tr. 2 ORDER - 36 1 27. Plaintiff contends Ms. Weaver-Jensen did not find Plaintiff was disabled, but 2 merely recommended she should not participate in any work activity. ECF No. 15 3 at 16. A statement by a medical source that a claimant is “unable to work” is not a 4 medical opinion and is not due “any special significance.” 20 C.F.R. § 416.927(d). 5 Nevertheless, the ALJ is required to consider medical source opinions about any 6 issue, including issues reserved to the Commissioner, by evaluating the opinion in 7 light of the evidence in the record and applying the applicable 20 C.F.R. § 8 416.927(d) factors. SSR 96-5p at *2-3. Here, Ms. Weaver-Jensen indicated 9 Plaintiff should be limited to zero hours of work per week. Tr. 445. In light of 10 Plaintiff’s reported daily activities, improvement with treatment, and relatively 11 mild objective evidence, as discussed by the ALJ throughout her opinion, Ms. 12 Weaver-Jensen’s opinion is inconsistent with the record. The ALJ did not err in 13 discounting Ms. Weaver-Jensen’s opinion. 14 3. Marybeth Wheeler, ARNP 15 Ms. Wheeler completed a medical report in September 2017. Tr. 724-25. 16 Ms. Wheeler diagnosed Plaintiff with chronic low back pain, DMII, Gerd, and 17 obesity. Tr. 724. She found that full-time work would exacerbate Plaintiff’s back 18 pain, that Plaintiff would need to lie down intermittently due to her back, and that 19 Plaintiff would likely miss “some work” as a result of her impairments. Tr. 72420 25. Ms. Wheeler did not specify how many days she believed Plaintiff would miss 2 ORDER - 37 1 per month and instead wrote “unknown.” Tr. 725. She also noted Plaintiff’s pain 2 would improve with weight loss. Tr. 725. The ALJ gave little weight to Ms. 3 Wheeler’s opinion. 4 Because Ms. Wheeler is considered a nonacceptable medical source, the 5 ALJ was required to give reasons germane to the opinion to discount the opinion. 6 Ghanim, 763 F.3d at 1161. First, the ALJ found Ms. Wheeler’s opinion regarding 7 Plaintiff’s ability to work was inconsistent with Plaintiff’s treatment history and 8 “positive response to physical therapy and therapeutic exercises.” Tr. 27. 9 Effectiveness of treatment is a germane reason to reject a medical opinion. Warre 10 v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Plaintiff does 11 not offer further argument regarding this finding and rests on her earlier argument 12 that the record shows only relative improvement and lacks substantial evidence of 13 improvement. See ECF No. 15 at 8, 17. As discussed in detail supra, the record 14 supports the ALJ’s conclusion that Plaintiff’s physical symptoms and pain 15 improved with treatment. See, e.g., Tr. 527-29, 537-38. This substantial evidence, 16 coupled with Ms. Wheeler’s own finding that Plaintiff’s pain would improve with 17 weight loss, demonstrates inconsistency with her opinion that Plaintiff’s condition 18 would deteriorate with regular work and that Plaintiff would miss work. Tr. 725. 19 This was a germane reason to discredit the opinion. 20 2 ORDER - 38 1 Second, the ALJ found Ms. Wheeler’s opinion was inconsistent with 2 Plaintiff’s reported activities. Tr. 27. Inconsistency between an opinion and a 3 claimant’s daily activities constitutes a germane reason to reject the opinion. 4 Belcher v. Berryhill, 707 F. App’x 439 (9th Cir. 2017). As discussed supra, 5 Plaintiff’s daily activities, including attending community college classes, taking 6 care of her young child, driving, and attending multiple weekly meetings, were 7 reasonably deemed to be inconsistent with Ms. Wheeler’s assessment of Plaintiff’s 8 physical limitations. Consequently, this was a germane reason to discredit the 9 opinion. 10 Finally, the ALJ found Ms. Wheeler’s opinion was inconsistent with 11 Plaintiff’s “treatment history.” Tr. 27. To the extent that the ALJ found that the 12 opinion was inconsistent with the conservative nature of the treatment, that finding 13 would constitute harmless error for the same reason discussed supra – the 14 conservative treatment measures were recommended, in part because surgery was 15 not feasible due to Plaintiff’s weight. Any error would be harmless because the 16 ALJ provided other germane reasons to discount the opinion. See Carmickle, 533 17 F.3d at 1162-63; Molina, 674 F.3d at 1115. 18 C. Lay Opinion Evidence 19 Plaintiff also challenges the ALJ’s treatment of statements provided by Ms. 20 Boggess, Plaintiff’s mother. ECF No. 15 at 18; ECF No. 19 at 5-6. An ALJ must 2 ORDER - 39 1 consider the statements of lay witnesses in determining whether a claimant is 2 disabled. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 3 2006). Lay witness evidence cannot establish the existence of medically 4 determinable impairments, but lay witness evidence is “competent evidence” as to 5 “how an impairment affects [a claimant’s] ability to work.” Id.; 20 C.F.R. § 6 416.913; see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) 7 (“[F]riends and family members in a position to observe a claimant’s symptoms 8 and daily activities are competent to testify as to her condition.”). If lay witness 9 statements are rejected, the ALJ “must give reasons that are germane to each 10 witness.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill, 11 12 F.3d at 919). 12 Ms. Boggess completed two Third Party Function Reports (December 2015 13 and April 2016). Tr. 288-96; Tr. 317-25. In her first function report, Ms. Boggess 14 noted Plaintiff “deals with pain daily,” that her impairments have caused her to 15 stop doing “most if not all normal things” she used to do, that her abilities to 16 clean/cook, take care of her baby, shop/go outside are dependent on her pain level, 17 and that she “used to be a social butterfly,” but now suffers from “social phobia 18 and PTSD.” Tr. 289-96. In her second report, Ms. Boggess added that Plaintiff 19 cannot stand or sit for very long due to arthritis, making it difficult to work. Tr. 20 318. She also indicated that since Plaintiff obtained her driver’s license and a car, 2 ORDER - 40 1 she no longer spends much time with her. Tr. 318. The ALJ gave little weight to 2 Ms. Boggess’ reports. Tr. 27. 3 First, the ALJ rejected Ms. Boggess’ reports because she admitted that she 4 was unsure of Plaintiff’s daily activities and had “stopped spending much time 5 with her.” Tr. 27; see also Tr. 290, 318-25. An ALJ may reject the testimony of a 6 lay witness who does not observe the claimant’s functional capacity. Valentine, 7 574 F.3d at 694. Plaintiff failed to address or challenge this reason in her opening 8 brief, see ECF No. 15 at 18. On reply, Plaintiff addresses the ALJ’s finding for the 9 first time, arguing that Ms. Boggess adequately observed Plaintiff’s functional 10 capacity at the time of her first report and conceding that the she did have 11 knowledge of Plaintiff’s activities at the time of the second report. ECF No. 19 at 12 5-6. As such, Ms. Boggess’ lack of firsthand knowledge was a germane reason to 13 reject her reports. 14 Second, the ALJ found that Ms. Boggess’ statements “do not establish a 15 basis for a more restrictive RFC.” Tr. 27. Plaintiff contends that Ms. Boggess’ 16 statement, “arthritis alone makes it hard to work. Because you can’t stand or sit for 17 very long,” Tr. 318, demands a more restrictive RFC. ECF No. 15 at 18. Because 18 the ALJ provided a legally sufficient reason to discount Ms. Boggess’ reports, as 19 discussed above, the ALJ was not required to incorporate the statements within the 20 reports into the RFC. See Viles v. Colvin, No. 3:14-CV-0534-SI, 2015 WL 2 ORDER - 41 1 1393296, at *10 (D. Or. Mar. 25, 2015) (citing Osenbrock v. Apfel, 240 F.3d 1157, 2 1163-65 (9th Cir. 2001) (“Only limitations supported by substantial evidence must 3 be incorporated into the RFC.”); see also Archer v. Comm’r of Soc. Sec., No. 6:124 CV-00767-SI, 2013 WL 3353775, at *13 (D. Or. July 2, 2013), aff’d sub nom. 5 Archer v. Colvin, 618 F. App’x 343 (9th Cir. 2015) (noting that, because the court 6 rejected the plaintiff’s challenges to the ALJ’s treatment of her credibility, the 7 medical evidence, and the lay witness testimony, the plaintiff failed to establish 8 that the ALJ erroneously omitted any limitations from the RFC). Plaintiff has not 9 identified any error in the ALJ’s interpretation of the lay evidence. See Valentine, 10 574 F.3d at 694 (ALJ may reject lay testimony that essentially reproduces the 11 claimant’s discredited testimony). 12 D. Step-Five Analysis 13 Plaintiff argues that the ALJ erred at step five. ECF No. 15 at 18-21; ECF 14 No. 19 at 8-9. At step five of the sequential evaluation analysis, the burden shifts 15 to the Commissioner to establish that (1) the claimant is capable of performing 16 other work; and (2) such work “exists in significant numbers in the national 17 economy.” 20 C.F.R. §§ 416.960(c)(2); Beltran, 700 F.3d at 389. Here, based on 18 the testimony of the vocational expert (VE), the ALJ found Plaintiff would be able 19 to perform the following jobs: assembler, escort vehicle driver, and document 20 preparer. Tr. 28. 2 ORDER - 42 1 Plaintiff contends, and Defendant concedes, that a conflict exists between 2 the RFC’s restriction to “simple, repetitive tasks,” and a document preparer’s 3 required use of Level 3 Reasoning. ECF No. 15 at 18-19; ECF No. 18 at 15. The 4 Ninth Circuit has held that an apparent conflict exists between the RFC to perform 5 simple, repetitive tasks and the demands of Level 3 Reasoning. Zavalin, v. Colvin, 6 778 F.3d 842, 847 (9th Cir. 2015). “[W]hen there is an apparent conflict between 7 the vocational expert’s testimony and the DOT… the ALJ is required to reconcile 8 the inconsistency.” See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 9 (9th Cir. 2015) (citing Zavalin, 778 F.3d at 846). The ALJ has an affirmative duty 10 to “ask the expert to explain the conflict and ‘then determine whether the 11 vocational expert’s explanation for the conflict is reasonable’ before relying on the 12 expert’s testimony to reach a disability determination.” Rounds, 807 F.3d at 1003. 13 Here, the VE testified Plaintiff could work as a document preparer (requiring 14 Level 3 Reasoning), even though the RFC mandated simple, repetitive task work. 15 Tr. 21, 67. The ALJ did not expressly inquire or comment on the conflict between 16 the job and the RFC. Accordingly, the ALJ erred by failing to recognize and 17 adequately reconcile the conflict. See Wyatt v. Berryhill, No. 18 317CV05214RSMDWC, 2017 WL 6888857, at *2 (W.D. Wash. Dec. 22, 2017), 19 report and recommendation adopted, No. 3:17-CV-05214-RSM, 2018 WL 369697 20 (W.D. Wash. Jan. 11, 2018) (an ALJ errs if she does not ask the VE to explain how 2 ORDER - 43 1 a claimant limited to simple, routine tasks can nevertheless perform occupations 2 requiring Level 3 Reasoning). Nonetheless, the Court may not reverse an ALJ’s 3 decision on account of an error that is harmless. Molina, 674 F.3d at 1111. 4 Harmless error “exists when it is clear from the record that ‘the ALJ’s error was 5 inconsequential to the ultimate nondisability determination.’” See Simpson v. 6 Berryhill, 717 F. App’x 670, 673 (9th Cir. 2017). In this case, the ALJ also found 7 Plaintiff could perform the occupations of assembler (Level 1 Reasoning) and 8 escort vehicle driver (Level 2 Reasoning). Tr. 28. The number of jobs available 9 on the national economy for assembler (250,000 jobs) and escort vehicle driver 10 (200,000 jobs) are significant. Although the ALJ erred on the occupation of 11 document preparer, this error was harmless. See Molina, 674 F.3d at 1115 (error is 12 harmless if it does “not alter the ALJ’s decision”). 13 Next, Plaintiff argues the ALJ lacked substantial evidence to support her 14 finding that Plaintiff could work as an assembler based on the VE’s testimony. 15 ECF No. 15. At 19; ECF No. 19 at 8. Specifically, Plaintiff contends the VE 16 inaccurately represented the number of jobs available for an assembler (250,000 17 jobs) by providing the number for the entire OES group (containing 1,500 titles), 18 rather than for the individual job title. ECF No. 15 at 19-20. A VE’s recognized 19 expertise provides the necessary foundation for his or her testimony,” see Wright v. 20 Colvin, No. CV 12-1893-SP, 2014 WL 5456044, at *3 (C.D. Cal. Oct. 27, 2014), 2 ORDER - 44 1 aff’d sub nom. Wright v. Berryhill, 692 F. App’x 496 (9th Cir. 2017) (citing 2 Bayliss, 427 F.3d at 1218), and itself constitutes substantial evidence. Id. (citing 3 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.1995) (“[T]he ALJ was within his 4 rights to rely solely on the vocational expert’s testimony.”)). However, where the 5 VE testimony is fundamentally flawed, remand is appropriate. See, e.g., Farias v. 6 Colvin, 519 Fed. Appx. 439, 440 (9th Cir. 2013) (remand required where VE 7 provided employment data for a different occupation than the one he opined 8 claimant could perform). Here, in response to the ALJ’s hypothetical person with 9 the same RFC as Plaintiff, the VE testified that such a person would be able to 10 perform the job of an assembler, for which there are “approximately 250,000 [jobs] 11 in the nation, 5,000 in the state of Washington.” Tr. 67. On cross-examination, 12 Plaintiff’s counsel asked the VE for the source of her numbers.4 Tr. 71. The VE 13 testified she “reviewed multiple sources, including the Bureau of Labor Statistics, 14 the Occupational Employment Quarterly and U.S. Publishing,” and the “U.S. 15 Census.” Tr. 71. She testified she compares numbers “based on those” sources 16 and that she identifies jobs and conducts labor market surveys for job analyses 17 18 4 19 20 2 Although a VE is not required to testify as to his or her methodology, Plaintiff raised it at the hearing. See Wright, 2014 WL 5456044, at *5. ORDER - 45 1 also.” Tr. 71. She testified that she is familiar with the numbers. Tr. 71. 2 Plaintiff’s counsel then asked for the VE’s methodology for arriving at the 3 numbers, and the VE explained: “I review all of the DOT titles associated with that 4 OES group and pull them out based on whether or not the position currently still 5 exists given the date of the DOT. I evaluate the physical demands and erode the 6 numbers based on that.” Tr. 72. The VE’s explanation that she reviewed multiple 7 sources, her testimony regarding her familiarity with whittling down the numbers 8 from the OES group, and her clear account of the methodology used provided no 9 reason for the ALJ to question the reliability of the number of jobs she deduced. 10 Plaintiff failed to present a fundamental flaw requiring a remand on this issue. 11 Finally, Plaintiff argues that based on the above alleged errors, the VE’s 12 testimony is altogether unreliable and that the ALJ failed to meet her burden of 13 establishing the existence of substantial numbers of jobs. ECF No. 15 at 20; ECF 14 No. 19 at 9. As discussed above, while Plaintiff showed error, albeit harmless, in 15 regard to the document preparer position, Plaintiff did not establish error regarding 16 the assembler position, for which the VE found 250,000 jobs nationally and 5,000 17 jobs in Washington. Tr. 67. This position alone establishes employment “exists in 18 significant numbers in the national economy.” 20 C.F.R. §§ 416.960(c)(2); 19 Beltran, 700 F.3d at 389; Guitierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 20 (9th Cir. 2014) (finding 25,000 in the national economy to be a sufficiently 2 ORDER - 46 1 significant number). Moreover, Plaintiff’s argument that the VE inaccurately 2 estimated the number of jobs available for the escort vehicle driver position based 3 on a lower estimate Plaintiff derived from Job Browser Pro, ECF No. 15 at 20-21, 4 is unavailing. Courts have consistently rejected such lay assessment of the raw 5 vocational data derived from Job Browser Pro, and have found that such evidence 6 does not undermine the reliability of a vocational expert’s opinion. See, e.g., 7 Sarah Amanda E. v. Saul, No. 1:18-CV-03173-FVS, 2019 WL 7817086, at *9 8 (E.D. Wash. Sept. 30, 2019) (noting cases that rejected arguments that Job Browser 9 Pro data undermined vocational expert’s testimony); Ruth Kay A. v. Comm’r of 10 Soc. Sec., No. 1:18-CV-3240-TOR, 2019 WL 7817084, at *7 (E.D. Wash. Sept. 3, 11 2019) (offer of data derived from Job Browser Pro does not undermine the 12 vocational expert’s testimony); Colbert v. Berryhill, 2018 WL 1187549, at *5 13 (C.D. Cal. Mar. 7, 2018) (concluding the ALJ properly relied on vocational expert 14 testimony regarding job numbers where claimant argued that the expert’s numbers 15 were inflated based on Job Browser Pro estimates; noting that Job Browser Pro is 16 not a source listed in 20 C.F.R. §§ 404.1566(d), 416.966(d), and the data therefrom 17 served only to show that evidence can be interpreted in different ways); Cardone v. 18 Colvin, 2014 WL 1516537, at *5 (C.D. Cal. Apr. 14, 2014) (“[P]laintiff’s lay 19 assessment of raw vocational data derived from Job Browser Pro does not 20 undermine the reliability of the [vocational expert’s] opinion.”). The ALJ met her 2 ORDER - 47 1 burden by establishing employment “exists in significant numbers in the national 2 economy.” 20 C.F.R. §§ 416.960(c)(2); Beltran, 700 F.3d at 389. Therefore, the 3 Court will not disturb the ALJ’s step five determination. 4 5 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 6 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. The District Court Executive is directed to substitute Andrew M. Saul as 9 the Defendant and update the docket sheet. 10 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 11 3. Defendant’s Motion for Summary Judgment, ECF No. 18, is 12 GRANTED. 13 4. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 14 The District Court Executive is directed to file this Order, provide copies to 15 counsel, and CLOSE THE FILE. 16 DATED March 6, 2020. 17 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 18 19 20 2 ORDER - 48
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