Baker v. Commissioner of Social Security, No. 1:2019cv03146 - Document 16 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 13 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)

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Baker v. Commissioner of Social Security Doc. 16 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1607 Page 1 of 20 1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 Jul 21, 2020 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 8 9 SHELENA B., 10 Plaintiff, 11 v. 12 13 14 15 No. 1:19-CV-03146-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 1 16 Defendant. 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 19 Nos. 13, 14. Attorney D. James Tree represents Shelena B. (Plaintiff); Special 20 Assistant United States Attorney L. Jamala Edwards represents the Commissioner 21 of Social Security (Defendant). The parties have consented to proceed before a 22 magistrate judge. ECF No. 7. After reviewing the administrative record and the 23 briefs filed by the parties, the Court DENIES Plaintiff’s Motion for Summary 24 25 1 Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). ORDER GRANTING DEFENDANT’S MOTION - 1 Dockets.Justia.com Case 1:19-cv-03146-JTR 1 ECF No. 16 filed 07/21/20 PageID.1608 Page 2 of 20 Judgment and GRANTS Defendant’s Motion for Summary Judgment. 2 JURISDICTION 3 Plaintiff filed an application for Supplemental Security Income (SSI) on 4 September 23, 2014, Tr. 91, alleging disability since May 30, 2014, Tr. 252, due to 5 equinus, plantar fasciitis, Baxter’s neuritis, carpal tunnel, attention deficit 6 hyperactive disorder (ADHD), personality disorder, and borderline intellectual 7 functioning, Tr. 326. The applications were denied initially and upon 8 reconsideration. Tr. 112-16, 118-20. Administrative Law Judge (ALJ) Moria 9 Ausems held a hearing on March 13, 2018 and heard testimony from Plaintiff and 10 vocational expert Fred Cutler. Tr. 37-65. The ALJ issued an unfavorable decision 11 on May 7, 2018 finding Plaintiff was not disabled from September 23, 2014 12 through the date of the decision. Tr. 15-27. The Appeals Council denied review 13 on May 1, 2019. Tr. 1-5. The ALJ’s May 7, 2018 decision became the final 14 decision of the Commissioner, which is appealable to the district court pursuant to 15 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for judicial review on June 16 26, 2019. ECF No. 1. STATEMENT OF FACTS 17 The facts of the case are set forth in the administrative hearing transcript, the 18 19 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 20 here. 21 Plaintiff was 27 years old at the date of application. Tr. 252. Plaintiff 22 completed her GED in 2002. Tr. 327. Her reported work history includes the jobs 23 of cashier, housekeeping, and laborer. Id. When applying for benefits Plaintiff 24 reported that she stopped working on May 30, 2014 because of her conditions Tr. 25 326. 26 27 28 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, ORDER GRANTING DEFENDANT’S MOTION - 2 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1609 Page 3 of 20 1 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 2 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 3 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 4 not supported by substantial evidence or if it is based on legal error. Tackett v. 5 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 6 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 7 another way, substantial evidence is such relevant evidence as a reasonable mind 8 might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 9 389, 401 (1971). If the evidence is susceptible to more than one rational 10 interpretation, the court may not substitute its judgment for that of the ALJ. 11 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 12 findings, or if conflicting evidence supports a finding of either disability or non- 13 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 14 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 15 evidence will be set aside if the proper legal standards were not applied in 16 weighing the evidence and making the decision. Brawner v. Secretary of Health 17 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 18 SEQUENTIAL EVALUATION PROCESS 19 The Commissioner has established a five-step sequential evaluation process 20 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 21 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 22 proof rests upon the claimant to establish a prima facie case of entitlement to 23 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 24 claimant establishes that physical or mental impairments prevent her from 25 engaging in her previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 26 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 27 shifts to the Commissioner to show (1) the claimant can make an adjustment to 28 other work, and (2) the claimant can perform specific jobs that exist in the national ORDER GRANTING DEFENDANT’S MOTION - 3 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1610 Page 4 of 20 1 economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th 2 Cir. 2004). If the claimant cannot make an adjustment to other work in the 3 national economy, she is found “disabled.” 20 C.F.R. § 416.920(a)(4)(v). ADMINISTRATIVE DECISION 4 5 On May 7, 2018, the ALJ issued a decision finding Plaintiff was not disabled 6 as defined in the Social Security Act from September 23, 2014 through the date of 7 the decision. 8 9 10 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since September 23, 2014, the date of application. Tr. 17. At step two, the ALJ determined that Plaintiff had the following severe 11 impairments: obesity; bilateral carpal tunnel syndrome; intermittent plantar 12 fasciitis; acquired bilateral pes planus; borderline intellectual functioning; 13 adjustment disorder; major depressive disorder or bipolar disorder; posttraumatic 14 stress disorder; somatic symptom disorder; avoidant personality disorder; ADHD; 15 methamphetamine dependence; cannabis dependence; cocaine disorder; and 16 alcohol dependence. Tr. 17. 17 At step three, the ALJ found that Plaintiff did not have an impairment or 18 combination of impairments that met or medically equaled the severity of one of 19 the listed impairments. Tr. 19. 20 At step four, the ALJ assessed Plaintiff’s residual function capacity and 21 determined that she could perform a range of light work with the following 22 limitations: 23 24 25 26 27 28 The claimant is precluded from using ladders, ropes, or scaffolds. The claimant is unable to balance on uneven terrain. The claimant must avoid even moderate exposure to industrial vibration sustained through the hands. The claimant is precluded from exposure to unprotected heights, dangerous machinery, or commercial driving. The claimant is limited to frequent bilateral fingering. The claimant can complete simple, routine tasks that are predictable and repetitive in nature. The ORDER GRANTING DEFENDANT’S MOTION - 4 Case 1:19-cv-03146-JTR filed 07/21/20 PageID.1611 Page 5 of 20 claimant could not tolerate more than brief, superficial interaction with the public, or tolerate tandem tasks with coworkers. 1 2 3 ECF No. 16 Tr. 20-21. The ALJ found Plaintiff had no past relevant work. Tr. 25. 4 At step five, the ALJ determined that, considering Plaintiff’s age, education, 5 work experience and residual functional capacity, and based on the testimony of 6 the vocational expert, there were other jobs that exist in significant numbers in the 7 national economy Plaintiff could perform, including the jobs of housekeeper, 8 agricultural produce sorter, and bottling line attendant. Tr. 26. The ALJ concluded 9 Plaintiff was not under a disability within the meaning of the Social Security Act 10 from September 23, 2014, through the date of the ALJ’s decision. Tr. 27. ISSUES 11 12 The question presented is whether substantial evidence supports the ALJ’s 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff contends the ALJ erred by failing to properly weigh (1) the 15 medical opinions in the record, (2) a lay witness statement, and (3) Plaintiff’s 16 symptom statements. DISCUSSION 17 18 19 1. Medical Opinions Plaintiff argues that the ALJ failed to properly consider and weigh the 20 medical opinions expressed by Mark Duris, Ph.D., Thomas Genthe, Ph.D., and 21 Brooke Sjostrom, LMHC. ECF No. 13 at 13-18. 22 In weighing medical source opinions, the ALJ should distinguish between 23 three different types of physicians: (1) treating physicians, who actually treat the 24 claimant; (2) examining physicians, who examine but do not treat the claimant; 25 and, (3) nonexamining physicians who neither treat nor examine the claimant. 26 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 27 weight to the opinion of a treating physician than to the opinion of an examining 28 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ ORDER GRANTING DEFENDANT’S MOTION - 5 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1612 Page 6 of 20 1 should give more weight to the opinion of an examining physician than to the 2 opinion of a nonexamining physician. Id. 3 When an examining physician’s opinion is not contradicted by another 4 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 5 and when an examining physician’s opinion is contradicted by another physician, 6 the ALJ is only required to provide “specific and legitimate reasons” to reject the 7 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 8 met by the ALJ setting out a detailed and thorough summary of the facts and 9 conflicting clinical evidence, stating her interpretation thereof, and making 10 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 11 required to do more than offer her conclusions, she “must set forth [her] 12 interpretations and explain why they, rather than the doctors’, are correct.” 13 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 14 A. Mark Duris, Ph.D. 15 On June 24, 2014, Dr. Duris examined Plaintiff and provided an opinion to 16 the Washington State Department of Social and Health Services (DSHS) on a 17 Psychological/Psychiatric Evaluation form. Tr. 647-51. He diagnosed Plaintiff 18 with methamphetamine dependence in sustained partial remission, borderline 19 intellectual functioning, and personality disorder not otherwise specified. Tr. 649. 20 He opined that Plaintiff had marked limitations in the abilities to complete a 21 normal work day and work week without interruptions from psychologically based 22 symptoms and to set realistic goals and plan independently. Id. He also opined 23 that Plaintiff had moderate limitations in the abilities to communicate and perform 24 effectively in a work setting and to maintain appropriate behavior in a work 25 setting. Id. He rated the remaining basic work activities as none or mild. Id. He 26 stated that Plaintiff’s impairments would last nine to twelve months with available 27 treatment. Tr. 650. 28 The ALJ assigned different weight to different portions of the opinion. Tr. ORDER GRANTING DEFENDANT’S MOTION - 6 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1613 Page 7 of 20 1 23. First, the ALJ assigned partial weight to the no more than moderate limitations 2 in the areas of communicating and performing effectively and maintaining 3 appropriate behavior in a work setting stating the following: 4 5 6 7 8 9 While these opinions have been incorporated into the assessment of mental residual functional capacity in this decision to a significant degree, the longitudinal medical evidence and reviewed as a whole does not establish a degree of psychological abnormality that could reasonably be considered inconsistent with an ability to maintain basic appropriate behavior and effective functioning in a work setting involving simple routine tasks and minimal interaction with others. 10 Tr. 23. The ALJ then assigned no weight to the marked mental limitations in 11 completing a normal work day and work week and setting realistic goals and 12 planning independently stating the following: 13 14 15 16 17 18 19 20 21 These check-marked opinions in this record are not supported by the relatively benign mental status findings set forth in the narrative portion of his brief report and, therefore, suggest undue reliance upon subjective allegations rather than objective medical evidence. Moreover, the conclusions in this regard are contradicted by the stable mental status findings documented by other treating and examining medical sources of record and by the claimant’s independent performance of a wide range of activities of daily living. Tr. 23-24. Plaintiff argues that the ALJ failed to set forth any specific evidence that 22 contradicted or undermined Dr. Duris’ opinion. ECF No. 13 at 13. Plaintiff 23 correctly cites to Brown-Hunter v. Colvin, in asserting that while the ALJ is not 24 required to explain her decision with “ideal clarity,” she is required to “set forth the 25 reasoning behind its decisions in a way that allows for meaningful review.” 806 26 F.3d 487,492 (9th Cir. 2015). “A clear statement of the agency’s reasoning is 27 necessary because we can affirm the agency’s decision to deny benefits only on the 28 grounds invoked by the agency.” Id. ORDER GRANTING DEFENDANT’S MOTION - 7 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1614 Page 8 of 20 1 Here, the ALJ clearly stated how the opined limitations were either 2 incorporated or not in the residual functional capacity determination. First, the 3 ALJ identified the limitations in communicating and performing effectively and 4 maintaining appropriate behavior, and found that while the limitations were 5 present, they were not work preclusive and they were incorporated into the residual 6 functional capacity determination as such. Tr. 23. These limitations were opined 7 as moderate, which is defined on the form as “there are significant limits on the 8 ability to perform one or more basic work activity.” Tr. 649. The ALJ interpreted 9 this to be consistent with a limitation to simple routine tasks that are predictable 10 and repetitive in nature, and no more than brief, superficial interaction with the 11 public or tandem tasks with coworkers. Tr. 20-21. This is a reasonable 12 interpretation of the moderate limitations opined. Therefore, the Court will not 13 disturb the ALJ’s treatment of the opined moderate limitations. See Tackett, 180 14 F.3d at 1097 (If the evidence is susceptible to more than one rational interpretation, 15 the court may not substitute its judgment for that of the ALJ.). 16 Next, the ALJ rejected the opined marked limitations because they appeared 17 to be premised on Plaintiff’s self-reports. Tr. 23-24. A doctor’s opinion may be 18 discounted if it relies on a claimant’s unreliable self-report. Bayliss v. Barnhart, 19 427 F.3d 1211, 1217 (9th Cir. 2005); Tommasetti v. Astrue, 533 F.3d 1035, 1041 20 (9th Cir. 2008). But the ALJ must provide the basis for her conclusion that the 21 opinion was based on a claimant’s self-reports. Ghanim v. Colvin, 763 F.3d 1154, 22 1162 (9th Cir. 2014). Here, the ALJ found that the limitations “are not supported 23 by the relatively benign mental status findings set forth in the narrative portion of 24 his brief report and, therefore, suggest undue reliance upon subjective allegations 25 rather than objective medical evidence.” Tr. 24. Therefore, she provided the 26 required basis for her conclusion. The ALJ was accurate that the examination 27 showed rather benign findings, including a normal mental status examination. Tr. 28 650-51. Therefore, this reason is supported by substantial evidence and meets the ORDER GRANTING DEFENDANT’S MOTION - 8 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1615 Page 9 of 20 1 required specific and legitimate standard required to reject the opinion of a 2 contradicted 2 examining psychologist. 3 The ALJ also stated that these marked limitations were on a check-mark 4 form. Tr. 23. The Ninth Circuit has expressed a preference for narrative opinions 5 over opinions expressed on a check-the-box form. See Murray v. Heckler, 722 6 F.2d 499, 501 (9th Cir. 1983). However, check-the-box forms that do not stand 7 alone, but are supported by records should be “entitled to weight that an otherwise 8 unsupported and unexplained check-box form would not merit.” Garrison v. 9 Colvin, 759 F.3d 995, 1013 (9th Cir. 2014). Here, the ALJ simply commented that 10 the opinion was on a check-mark form, but did not conclude this was a reason to 11 reject the opinion. Therefore, this comment by the ALJ fails to meet the specific 12 and legitimate standard. 13 Additionally, the ALJ found that these marked limitations were inconsistent 14 with the other evidence in the record and Plaintiff’s reported activities. 15 Inconsistency with the majority of objective evidence is a specific and legitimate 16 reason for rejecting physician’s opinions, Batson, 359 F.3d at 1195, and a 17 claimant’s testimony about her daily activities may be seen as inconsistent with the 18 presence of a disabling condition, Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 19 1990). However, here the ALJ failed to set forth what evidence undermined the 20 opinion and what activities demonstrated Plaintiff was more capable than opined. 21 Therefore, these reasons also fall short of the specific and legitimate standard. 22 Since the ALJ provided at least one specific and legitimate reason for 23 rejecting the opined marked limitations, the Court will not disturb her treatment of 24 the opinion. See Tommasetti, 533 F.3d at 1038 (An error is harmless when “it is 25 clear from the record that the . . . error was inconsequential to the ultimate 26 27 28 2 The opined marked limitations are contradicted by the opinions of James Bailey, Ph.D., Tr. 86-88, and John F. Robinson, Ph.D., Tr. 102-03. ORDER GRANTING DEFENDANT’S MOTION - 9 Case 1:19-cv-03146-JTR 1 ECF No. 16 filed 07/21/20 PageID.1616 Page 10 of 20 nondisability determination.”). 2 B. Thomas Genthe, Ph.D. 3 On August 13, 2014, Dr. Genthe examined Plaintiff and completed a 4 Psychological/Psychiatric Evaluation for DSHS. Tr. 652-60. He diagnosed 5 Plaintiff with ADHD, methamphetamine use disorder in sustained remission, 6 cannabis use disorder in sustained remission, and alcohol use disorder in sustained 7 remission. Tr. 654. He opined that Plaintiff had a marked limitation in the 8 abilities to perform routine tasks without special supervision, to complete a normal 9 work day and work week without interruptions from psychologically based 10 symptoms, to maintain appropriate behavior in a work setting, and to set realistic 11 goals and plan independently. Tr. 654-55. He also opined that Plaintiff had a 12 moderate limitation in seven additional areas of basic work activity. Id. He 13 concluded the opinion as follows: 14 15 16 17 18 19 20 At this time, she is unlikely to function adequately in a work setting until her psychological symptoms have been managed more effectively. Given her response to treatment, and willing participation, a period of 4-6 months may likely be sufficient to address her treatment needs at least moderately well, and help her regain the necessary emotional functioning to resume fulltime work related activities. Tr. 655. Dr. Genthe examined Plaintiff a second time on June 6, 2017 and completed 21 a second Psychological/Psychiatric Evaluation form for DSHS on June 14, 2017. 22 Tr. 873-81. He opined Plaintiff had a severe limitation in the ability to adapt to 23 changes in a routine work setting and a marked limitation in the abilities to 24 understand, remember, and persist in tasks by following detailed instructions, to 25 perform activities within a schedule, maintain regular attendance, and be punctual 26 within customary tolerances without special supervision, to learn new tasks, to 27 maintain appropriate behavior in a work setting, and to complete a normal work 28 day and work week without interruptions from psychologically based symptoms. ORDER GRANTING DEFENDANT’S MOTION - 10 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1617 Page 11 of 20 1 Tr. 876-77. He opined that Plaintiff had a moderate limitation in the remaining 2 seven basic work activities. Id. He ended this opinion with the following 3 statement: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 At this time, [Plaintiff] is unlikely to function adequately in a work setting until her psychological symptoms have been managed more effectively. Given her response to treatment, and willing participation, a period of nine months may likely be sufficient to address her treatment needs at least moderately well, and help her regain the necessary emotional functioning to resume fulltime work related activities. Tr. 877. The ALJ stated that the 2014 opinion was “largely reiterated in his 2017 assessment,” and gave the opinions partial weight stating the following: Although Dr. Genthe’s [sic] indicated the claimant was markedly limited in multiple areas, he conceded lack of treatment was a major factor, and opined the claimant’s impairments would not be of such severity if she were properly treated, subsiding as quickly as four months. This is generally consistent with the claimant’s own indication treatment improved her symptoms, and is reasonably consistent with overall moderate limitations when treated. Tr. 24. Generally, the fact that a condition can be remedied by medication is a 21 legitimate reason for discrediting an opinion. Warre v. Comm’r of Soc. Sec. 22 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Failure to follow a course of 23 treatment may be excused, however, if the claimant’s noncompliance is 24 attributable to her mental illness, Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 25 2012). Plaintiff argues that the ALJ ignored Dr. Genthe’s opinion that she was 26 unlikely to follow through with treatment due to her poor insight and 27 understanding about her condition. ECF No. 13 at 16-17. However, Dr. Genthe 28 does not appear to attribute Plaintiff’s lack of treatment to poor insight and ORDER GRANTING DEFENDANT’S MOTION - 11 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1618 Page 12 of 20 1 understanding at her first evaluation: “Her insight about her clinical issues and 2 treatment options was assessed as fair,” Tr. 656. By the second evaluation, Dr. 3 Genthe found that Plaintiff’s level of understanding about the factors contributing 4 to her illness was poor, her level of understanding of her need for treatment was 5 poor, and the potential that she would be treatment compliant was fair to poor. Tr. 6 880. Despite this statement, Dr. Genthe found Plaintiff’s prognosis as fair and 7 opined that a period of nine months may be sufficient to address her treatment 8 needs and allow her to resume fulltime work. Tr. 877. Therefore, the ALJ’s 9 conclusion that the opined limitations would improve with treatment is a 10 reasonable interpretation of the evidence. The Court will not disturb the ALJ’s 11 treatment of Dr. Genthe’s opinions. Tackett, 180 F.3d at 1097 (If the evidence is 12 susceptible to more than one rational interpretation, the court may not substitute its 13 judgment for that of the ALJ). 14 C. Brooke Sjostrom, LMHC 15 The record includes a Psychological/Psychiatric Evaluation form authorizing 16 Brooke Sjostrom, LMHC to release Plaintiff’s records and indicating that an 17 evaluation was performed on September 22, 2015. Tr. 864-72. The form includes 18 an opinion stating that Plaintiff had a marked limitation in the abilities to set 19 realistic goals and plan independently and a moderate limitation in the abilities to 20 understand, remember, and persist in tasks by following detailed instructions, to 21 communicate and perform effectively in a work setting, to maintain appropriate 22 behavior in a work setting, and to complete a normal work day and work week 23 without interruptions from psychologically based symptoms. Tr. 868. The opinion 24 concluded with the following statement: 25 26 27 28 At this time, symptoms do not appear severe enough that they would preclude [Plaintiff] from being able to participate in an entry-level employment setting. However, it is recommended that in addition to counseling, she be referred for psychotropic medication management ORDER GRANTING DEFENDANT’S MOTION - 12 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1619 Page 13 of 20 of mood and ADHD symptoms as they could potentially interfere with her reliability and ability to attend to the duties and responsibilities of a job. 1 2 3 4 Tr. 869. This form required the explaining professional’s signature and includes a 5 signature by Brooke Sjostrom and Dr. Genthe. Tr. 869. The ALJ attributed the opinion to Brooke Sjostrom and gave it “considerable 6 7 weight” finding it “is supportive of the assigned residual functional capacity.” Tr. 8 24. Plaintiff argues that while Brooke Sjostrom’s opinion does not preclude entry- 9 level employment, the ALJ overlooked her opinion that Plaintiff’s ability to 10 maintain employment was compromised citing to her statement recommending 11 Plaintiff “be referred for psychotropic medication management of mood and 12 ADHD symptoms as they could potentially interfere with her reliability and ability 13 to attend to the duties and responsibilities of a job.” ECF No. 13 at 17 citing Tr. 14 869. Plaintiff’s argument amounts to a different interpretation of the statement. If 15 16 the evidence is susceptible to more than one rational interpretation, the court may 17 not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097. The 18 ALJ read Brooke Sjostrom’s statement to be that Plaintiff could perform work with 19 some potential difficulties, which is consistent with the residual functional capacity 20 determination in the ALJ’s decision. Tr. 24. Plaintiff argues that the statement 21 amounts to a finding that while Plaintiff could obtain a job, her impairments 22 prevented her from sustaining or maintaining such employment. ECF No. 13 at 23 17. Both are reasonable interpretations of the opinion. Therefore, the Court will 24 not disturb the ALJ’s determination. 25 2. 26 27 28 Lay Witness Statements Plaintiff argues that the ALJ failed to properly weigh the evidence submitted from her former foster parent. On November 3, 2014, Plaintiff’s former foster parent completed a third ORDER GRANTING DEFENDANT’S MOTION - 13 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1620 Page 14 of 20 1 party function report stating that he spent about ten hours a week with Plaintiff and 2 had adopted three of her children. Tr. 341. The report includes statements 3 referencing Plaintiff’s difficulty with her moods and these moods affecting her 4 personal care, her ability to concentrate, her ability to complete tasks, and her 5 ability to get along with others. Tr. 341-48. The ALJ gave the third party function 6 report only partial weight for two reasons: (1) “the close relationships between 7 these people and the claimant, and the possibility that the reports were influenced 8 in favor of the claimant by a desire to help the claimant cannot be entirely 9 ignored”; and (2) “the claimant’s abilities, as demonstrated by her activities of 10 daily life and physical examination findings, do not show a greater limitation than 11 assigned.” Tr. 22. 12 “[F]riends and family members in a position to observe a claimant’s 13 symptoms and daily activities are competent to testify as to her condition.” Dodrill 14 v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). Lay witness testimony is 15 “competent evidence” as to “how an impairment affects [a claimant’s] ability to 16 work.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006). To 17 reject evidence from a lay witness, the ALJ “must give reasons that are germane to 18 each witness.” Dodrill, 12 F.3d at 919. 19 Plaintiff challenges the ALJ’s first reason for rejecting the statements, that 20 the veracity of the lay witness is undermined by his close relationship to Plaintiff, 21 by arguing that the ALJ failed to set forth any evidence that the former foster 22 parent was anything “but objective in his observations.” ECF No. 13 at 19. The 23 Ninth Circuit has found that a close relationship with and a desire to help a 24 claimant is a proper basis for rejecting lay whiteness testimony. Greger v. 25 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). This is in contrast to the Ninth 26 Circuit finding that “[t]he fact that a lay witness is a family member cannot be a 27 ground for rejecting his or her testimony.” Smolen v. Chater, 80 F.3d 1273 (9th 28 Cir. 1996). Courts have distinguished between these cases by finding that a close ORDER GRANTING DEFENDANT’S MOTION - 14 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1621 Page 15 of 20 1 relationship cannot be the sole reason a lay witness’s statements are rejected. See 2 Rolland v. Colvin, Case No. 2:15-cv-103-RMP, 2006 WL 1180198 (E.D. Wash. 3 March 25, 2016). 4 Here, the ALJ provided a second reason for rejecting the witness statements, 5 that “the claimant’s abilities, as demonstrated by her activities of daily life and 6 physical examination findings, do not show a greater limitation than assigned.” Tr. 7 22. Plaintiff failed to challenge this reason. ECF Nos. 13, 15. Therefore, the 8 Court is not required to address the issue further. See Carmickle v. Comm’r., Soc. 9 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). The Ninth Circuit explained 10 the necessity for providing specific argument: 11 The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. Particularly on appeal, we have held firm against considering arguments that are not briefed. But the term “brief” in the appellate context does not mean opaque nor is it an exercise in issue spotting. However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their argument in order to do so. It is no accident that the Federal Rules of Appellate Procedure require the opening brief to contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). We require contentions to be accompanied by reasons. 12 13 14 15 16 17 18 19 20 21 Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003)3. 22 Moreover, the Ninth Circuit has repeatedly admonished that the court will not 23 “manufacture arguments for an appellant” and therefore will not consider claims 24 that were not actually argued in appellant’s opening brief. Greenwood v. Fed. 25 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Without finding that rejecting 26 27 28 3 Under the current version of the Federal Rules of Appellate Procedure, the appropriate citation would be to FED. R. APP. P. 28(a)(8)(A). ORDER GRANTING DEFENDANT’S MOTION - 15 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1622 Page 16 of 20 1 the statements because of the close relationship between Plaintiff and the witness 2 constituted an error, the Court finds that by failing to challenge the second reason 3 Plaintiff effectively waived the issue. 3. Plaintiff’s Symptom Statements 4 5 6 7 Plaintiff contests the ALJ’s determination that Plaintiff’s symptom statements were unreliable. ECF Nos. 13 at 9-12, 15. It is generally the province of the ALJ to make determinations regarding the 8 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 9 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 10 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 11 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 12 and convincing.” Smolen, 80 F.3d at 1281; Lester, 81 F.3d at 834. “General 13 findings are insufficient: rather the ALJ must identify what testimony is not 14 credible and what evidence undermines the claimant’s complaints.” Lester, 81 15 F.3d at 834. 16 The ALJ found Plaintiff’s “statements concerning the intensity, persistence, 17 and limiting effects of these symptoms are not entirely consistent with the medical 18 evidence and other evidence in the record for the reasons explained in this 19 decision.” Tr. 22. The ALJ then provided the following four reasons for rejecting 20 Plaintiff’s symptom statements: (1) Plaintiff’s “level of activity is minimally 21 limited, and cannot be reconciled with the considerable severity alleged”; (2) 22 Plaintiff’s “significant history of noncompliance with treatment recommendations” 23 suggests Plaintiff’s limitations are less than alleged; (3) there was evidence 24 Plaintiff had over-reported symptoms or malingered; and (4) the reported severity 25 was not supported by the objective physical evidence. Tr. 22-23. 26 The ALJ’s first reason for rejecting Plaintiff’s symptom statements, that 27 Plaintiff’s level of activity was inconsistent with her reported severity of 28 symptoms, is not specific, clear and convincing. A claimant’s daily activities may ORDER GRANTING DEFENDANT’S MOTION - 16 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1623 Page 17 of 20 1 support rejecting her symptom statements if (1) the claimant’s activities contradict 2 her other testimony, or (2) “the claimant is able to spend a substantial part of [her] 3 day engaged in pursuits involving performance of physical functions that are 4 transferable to a work setting.” Orn, 495 F.3d at 639 (citing Fair v. Bowen, 885 5 F.2d 597, 603 (9th Cir. 1989)). “The ALJ must make ‘specific findings relating to 6 [the daily] activities’ and their transferability to conclude that a claimant’s daily 7 activities warrant an adverse credibility determination.” Id. (quoting Burch v. 8 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). A claimant need not be “utterly 9 incapacitated” to be eligible for benefits. Fair, 885 F.2d at 603. 10 Here, the ALJ found that Plaintiff’s reported level of activity was minimally 11 limited and “cannot be reconciled with the considerable severity alleged. Many of 12 the activities the claimant performs are similar to activities performed in a variety 13 of occupations.” Tr. 22. The ALJ cited Plaintiff’s activities of providing childcare 14 for her infant, performing self-care, prepping meals, performing household chores, 15 driving, leaving her home, and shopping. Id. While the ALJ concluded that these 16 activities are similar to those performed in several occupations, she did not address 17 the frequency Plaintiff performed these activities when compared to the frequency 18 they would be required in a work setting. This is insufficient to meet the specific, 19 clear and convincing standard. Garrison, 759 F.3d at 1016 (“We have repeatedly 20 warned that ALJs must be especially cautious in concluding that daily activities are 21 inconsistent with testimony about pain, because impairments that would 22 unquestionably preclude work and all the pressures of a workplace environment 23 will often be consistent with doing more than merely resting in bed all day.”) 24 The ALJ’s second reason for rejecting Plaintiff’s symptom statements, that 25 Plaintiff’s noncompliance with treatment was inconsistent with her reported 26 severity of symptoms, is specific, clear and convincing. Noncompliance with 27 medical care or unexplained or inadequately explained reasons for failing to seek 28 medical treatment cast doubt on a claimant’s subjective complaints. 20 C.F.R. § ORDER GRANTING DEFENDANT’S MOTION - 17 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1624 Page 18 of 20 1 416.930; Fair, 885 F.2d at 603; Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) 2 (finding the ALJ’s decision to reject the claimant’s subjective pain testimony was 3 supported by the fact that claimant was not taking pain medication). The ALJ 4 provided multiple locations in the record demonstrating Plaintiff failed to take 5 medications and follow through with treatment and found that Plaintiff “has not 6 put forth full effort in retaining or recouping functional capacity,” and “this 7 evidence suggest the claimant’s limitations are less than alleged, as one would 8 expect strict compliance with medical directives given the alleged severity of 9 symptoms.” Tr. 22. 10 First, Plaintiff argues that the ALJ was required to consider her reasons for 11 noncompliance. ECF No. 13 at 10-11. However, Plaintiff did not present any 12 reason for noncompliance to the ALJ. In fact, at the hearing, she testified that “I 13 have done my work trying to help myself.” Tr. 56. In her briefing, she points to a 14 single treatment note stating that Plaintiff “did not tolerate oral prednisone well,” 15 but it did not state that was a reason she refused a steroid injection. Tr. 669. 16 Second, Plaintiff argues that the ALJ should not have rejected her symptom 17 statements regarding her mental health due to a lack of treatment. ECF No. 13 at 18 11 citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (it is a 19 “questionable practice to chastise one with a mental impairment for the exercise of 20 poor judgment in seeking rehabilitation.”). Regardless, this does not negate 21 Plaintiff’s unexplained reasons for failing to follow through with treating her 22 reported physical symptoms, especially those causing pain. Therefore, Plaintiff’s 23 failure to follow prescribed treatment is a specific, clear and convincing reason to 24 reject her physical symptom statements. 25 The ALJ’s third reason for rejecting Plaintiff’s symptom statements, that 26 there was evidence she had over-reported her symptoms or malingered, is specific, 27 clear and convincing. A finding that plaintiff engages in exaggeration is a valid 28 reason to reject a claimant’s allegations of severity of symptoms. See Tonapetyan ORDER GRANTING DEFENDANT’S MOTION - 18 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1625 Page 19 of 20 1 v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). A September 29, 2016 evaluation 2 included personality tests that “raise[d] concerns about over-reporting and possible 3 malingering.” Tr. 827. The ALJ cited the 2014 evaluation by Dr. Genthe, which 4 included a Personality Assessment Inventory that indicated a possibility “that the 5 clinical scales may overrepresent or exaggerate the actual degree of 6 psychopathology,” and that Plaintiff “tended to endorse items that present an 7 unfavorable impression or represent extremely bizarre and unlikely symptoms.” 8 Tr. 658. Additionally, the ALJ cited an April 1, 2010 evaluation by Dr. Genthe in 9 which he stated that “[f]rom the get go, [Plaintiff] had a poor attitude, making 10 grimaces when asked to complete some paperwork. She was overall uncooperative 11 and argumentative. She would not clearly answer questions, provide support for 12 claims she made, or question the need for some of the questions asked.” Tr. 501. 13 Dr. Genthe thought that Plaintiff may have been under the influence of something 14 and refused to provide a diagnosis. Id. While the ALJ did not make a finding of 15 malingering, which requires affirmative evidence, Smolen, 80 F.3d at 1283-84, she 16 provided multiple citations to the record demonstrating that Plaintiff was over- 17 reporting in her personality testing. Therefore, the ALJ’s reason is supported by 18 substantial evidence and meets the specific, clear and convincing standard. 19 The ALJ’s fourth reason for rejecting Plaintiff’s symptom statements, that 20 the objective physical evidence did not support the reported severity of symptoms, 21 is specific, clear and convincing. Objective medical evidence is a “relevant factor 22 in determining the severity of the claimant’s pain and its disabling effects,” but it 23 cannot serve as the only reason for rejecting a claimant’s credibility. Rollins v. 24 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Specifically, the ALJ relied upon 25 Plaintiff’s normal nerve conduction studies as undermining her complaints of hand 26 and wrist pain. Tr. 23 citing Tr. 669. Additionally, the ALJ found that despite 27 complaints of foot pain, Plaintiff’s gait was normal in the record. Id. citing Tr. 28 499, 670, 836, 845, 1178, 1204. The ALJ acknowledged that the normal gait ORDER GRANTING DEFENDANT’S MOTION - 19 Case 1:19-cv-03146-JTR ECF No. 16 filed 07/21/20 PageID.1626 Page 20 of 20 1 observations were not universal throughout the record, but they did call into 2 question Plaintiff’s testimony regarding the persistence of her symptoms. Tr. 23. 3 Here, the ALJ provided specific citations to the record that undermined Plaintiff’s 4 reported severity and persistence of symptoms. Therefore, this reason meets the 5 specific, clear and convincing standard. 6 In conclusion, the ALJ provided specific, clear and convincing reasons to 7 support her determination that Plaintiff’s symptom statements were unreliable. See 8 Carmickle, 533 F.3d at 1163 (upholding an adverse credibility finding where the 9 ALJ provided four reasons to discredit the claimant, two of which were invalid); 10 Batson, 359 F.3d at 1197 (affirming a credibility finding where one of several 11 reasons was unsupported by the record); Tommasetti, 533 F.3d at 1038 (an error is 12 harmless when “it is clear from the record that the . . . error was inconsequential to 13 the ultimate nondisability determination”). 14 CONCLUSION 15 Having reviewed the record and the ALJ’s findings, the Court finds the 16 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 17 Accordingly, IT IS ORDERED: 18 19 1. Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 20 2. 21 The District Court Executive is directed to file this Order and provide a copy 22 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 23 and the file shall be CLOSED. 24 25 26 27 DATED July 21, 2020. _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING DEFENDANT’S MOTION - 20

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