Hawks v. Saul, No. 1:2019cv03197 - 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. (TR, Case Administrator)
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Hawks v. Saul Doc. 16 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1118 Page 1 of 13 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 4 Aug 17, 2020 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 OLIVER H. No. 1:19-CV-03197-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 16 v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. 17 18 BEFORE THE COURT are cross-motions for summary judgment. ECF 19 Nos. 13, 14. Attorney D. James Tree represents Oliver H. (Plaintiff); Special 20 Assistant United States Attorney Lars J. Nelson represents the Commissioner of 21 Social Security (Defendant). The parties have consented to proceed before a 22 magistrate judge. ECF No. 6. After reviewing the administrative record and the 23 briefs filed by the parties, the Court DENIES Plaintiff’s Motion for Summary 24 Judgment and GRANTS Defendant’s Motion for Summary Judgment. 25 26 JURISDICTION Plaintiff filed an application for Childhood Disability Insurance Benefits 27 under Title II of the Social Security Disability Act on July 28, 2009, Tr. 73, 76, 95, 28 110, and an application for Supplemental Security Income (SSI) under Title XVI ORDER GRANTING DEFENDANT’S MOTION - 1 Dockets.Justia.com Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1119 Page 2 of 13 1 of the Social Security Act on April 14, 2016, Tr. 74, alleging disability since April 2 1, 2012, Tr. 75, 85, 222, due to asthma, depression, severe social anxiety, sleep 3 apnea, insomnia, thyroid problems, and high blood pressure, Tr. 222. The 4 applications were denied initially and upon reconsideration. Tr. 123-29, 133-46. 5 Administrative Law Judge (ALJ) Tom Morris held a hearing on December 8, 2017 6 and heard testimony from Plaintiff and vocational expert Kimberly Mullinax. Tr. 7 41-72. The ALJ issued an unfavorable decision on July 9, 2018 finding that 8 Plaintiff was not disabled prior to April 28, 2018, the date he attained age 22, and 9 that Plaintiff was not disabled since April 14, 2016, the date of the SSI application, 10 through the date of the ALJ decision. Tr. 15-27. The Appeals Council denied 11 review on June 28, 2019. Tr. 1-5. The ALJ’s July 9, 2018 decision became the 12 final decision of the Commissioner, which is appealable to the district court 13 pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for judicial 14 review on August 26, 2019. ECF No. 1. 15 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcript, the 16 17 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 18 here. 19 Plaintiff was 19 years old as of the April 14, 2016 application date. Tr. 74. 20 Plaintiff completed his GED in 2015 and was attending some college courses at the 21 time of his hearing. Tr. 49-50, 223. His only reported work was a part-time work- 22 study job as a dishwasher. Tr. 45-46. When applying for SSI benefits Plaintiff 23 reported that he believed his conditions became severe enough to keep him from 24 working as of April 1, 2012. Tr. 222. 25 26 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 27 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 28 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, ORDER GRANTING DEFENDANT’S MOTION - 2 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1120 Page 3 of 13 1 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 2 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 3 not supported by substantial evidence or if it is based on legal error. Tackett v. 4 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 5 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 6 another way, substantial evidence is such relevant evidence as a reasonable mind 7 might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 8 389, 401 (1971). If the evidence is susceptible to more than one rational 9 interpretation, the court may not substitute its judgment for that of the ALJ. 10 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 11 findings, or if conflicting evidence supports a finding of either disability or non- 12 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 13 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 14 evidence will be set aside if the proper legal standards were not applied in 15 weighing the evidence and making the decision. Brawner v. Secretary of Health 16 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 SEQUENTIAL EVALUATION PROCESS 18 The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 20 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 21 proof rests upon the claimant to establish a prima facie case of entitlement to 22 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 23 claimant establishes that physical or mental impairments prevent him from 24 engaging in his previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 25 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 26 shifts to the Commissioner to show (1) the claimant can make an adjustment to 27 other work, and (2) the claimant can perform specific jobs that exist in the national 28 economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th ORDER GRANTING DEFENDANT’S MOTION - 3 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1121 Page 4 of 13 1 Cir. 2004). If the claimant cannot make an adjustment to other work in the 2 national economy, he is found “disabled.” 20 C.F.R. § 404.1520(a)(4)(v). 3 4 ADMINISTRATIVE DECISION On July 9, 2018, the ALJ issued a decision finding Plaintiff was not disabled 5 as defined in the Social Security Act prior to April 28, 2018 and was not disabled 6 from April 14, 2016 through the date of the decision. 7 8 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since April 1, 2012, the alleged onset date. Tr. 17. 9 At step two, the ALJ determined that Plaintiff had the following severe 10 impairments prior to attaining the age of 22: obesity; affective disorders; and 11 anxiety disorders. Tr. 18. 12 At step three, the ALJ found that prior to attaining age 22, Plaintiff did not 13 have an impairment or combination of impairments that met or medically equaled 14 the severity of one of the listed impairments. Tr. 18. 15 At step four, the ALJ assessed Plaintiff’s residual functional capacity and 16 determined that he could perform a range of work at all exertional levels with the 17 following limitations: he can maintain concentration, persistence and pace in a consistent manner to sustain a normal workday/workweek with customary breaks and lunch. There should be superficial contact with coworkers and supervisor outside of their managerial responsibility. There can be superficial contact with the general public. There should be an emphasis on occupations/duties dealing with things/objects rather than people. He may be off task up to 10% over the course of an 8-hour workday. He is not able to perform at a production rate pace (e.g., assembly line work as where the pace is mechanically controlled) but can perform goal oriented work or where the worker has more control over the pace; and he may have 6 unexcused absences over the course of a year. 18 19 20 21 22 23 24 25 26 27 28 Tr. 19-20. The ALJ found Plaintiff had no past relevant work. Tr. 25. At step five, the ALJ determined that, considering Plaintiff’s age, education, ORDER GRANTING DEFENDANT’S MOTION - 4 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1122 Page 5 of 13 1 work experience and residual functional capacity, and based on the testimony of 2 the vocational expert, there were other jobs that exist in significant numbers in the 3 national economy Plaintiff could perform, including the jobs of industrial cleaner, 4 laundry worker II, and cleaner II. Tr. 26. The ALJ concluded Plaintiff was not 5 under a disability within the meaning of the Social Security Act prior to Plaintiff 6 attaining age 22 on April 28, 2018 and was not under a disability within the 7 meaning of the Social Security Act since April 14, 2016, the date of his SSI 8 application. Tr. 26. 9 ISSUES The question presented is whether substantial evidence supports the ALJ’s 10 11 decision denying benefits and, if so, whether that decision is based on proper legal 12 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the 13 medical opinions in the record, (2) failing to properly weigh Plaintiff’s symptom 14 statements, and (3) failing to properly weigh the statements from Plaintiff’s 15 mother. 16 17 18 DISCUSSION 1. Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 19 opinions from his treating providers Scott Herford, M.Ed. and Jamie Walker, 20 ARNP. ECF No. 13 at 5-15. 21 Under Federal Regulations, there are two kinds of medical providers: 22 acceptable medical sources and non-acceptable medical sources. Acceptable 23 medical sources include licensed physicians and psychologists. 20 C.F.R. §§ 24 404.1502(a); 416.902(a). In this case, Nurse Practitioners, such as Nurse Walker, 25 are not considered acceptable medical sources. Id. Mr. Herford is also not an 26 acceptable medical source. 20 C.F.R. §§ 404.1502(a),(d); 416.902(a),(d). When 27 weighing opinions from non-acceptable medical sources, the ALJ is only required 28 to provide germane reasons to reject such opinions. Molina v. Astrue, 674 F.3d ORDER GRANTING DEFENDANT’S MOTION - 5 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1123 Page 6 of 13 1 1104, 1111 (9th Cir. 2012). The Ninth Circuit has criticized applying this lesser 2 standard to nurse practitioners, stating “regulations provide an out-dated view that 3 consider a nurse practitioner as an ‘other source.’” Popa v. Berryhill, 872 F.3d 4 901, 907 (9th Cir. 2017) (citing Molina, 674 F.3d at 1111). On March 27, 2017, 5 the regulations were amended to reflect this view and included nurse practitioners 6 in the list of providers considered acceptable medical sources. 20 C.F.R. §§ 7 404.1502(a); 416.902(a). However, this change only applies to applications filed 8 with the Social Security Administration on or after March 27, 2017. 20 C.F.R. §§ 9 404.1502(a)(7); 416.902(a)(7). Plaintiff’s applications were filed in 2009 and 10 2016. Therefore, this Court is required to apply the “out-dated view” and treat the 11 opinion of Nurse Walker as an “other source.” Popa, 872 F.3d at 907. 12 On September 20, 2016, Mr. Hereford completed a Mental Source 13 Statement, and opined that Plaintiff had three marked limitations in basic work 14 functions and four moderate limitations in basic work functions. Tr. 676-78. He 15 further opined that Plaintiff would be off task 21-30% of a 40-hour week schedule. 16 Tr. 678. He opined that Plaintiff would likely miss four or more days a month 17 when attempting to work a 40-hour work schedule. Id. He stated that this 18 reflected the opinion of Plaintiff’s treatment team which included at least one M.D. 19 or Ph.D. Id. The ALJ gave the opinion little weight for three reasons: (1) it was 20 not consistent with the longitudinal record; (2) Mr. Hereford provided no 21 explanation for his opinion; and (3) Plaintiff was stable with medication 22 compliance. Tr. 24. 23 The ALJ’s first reason for rejecting the opinion, that it was not consistent 24 with the longitudinal record, is germane. The ALJ found that the record showed 25 progressive improvement in depression and anxiety, that Plaintiff traveled to Cuba, 26 and that he had a girlfriend that he took out to restaurants and movies. Tr. 24. 27 Inconsistency with the medical evidence is a germane reason to reject an opinion. 28 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Additionally, an ORDER GRANTING DEFENDANT’S MOTION - 6 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1124 Page 7 of 13 1 opinion’s inconsistency with a claimant’s daily activities meets the germane 2 standard. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163-64 (9th 3 Cir. 2008); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Plaintiff challenges 4 the ALJ’s interpretation of the evidence that the medical records showed 5 progressive improvement in depression and anxiety. ECF No. 13 at 10-11. 6 However, he did not challenge the ALJ’s finding that his activities were also 7 inconsistent with the opinion. In May of 2017, Plaintiff reported that he had spent 8 his spring break in Cuba. Tr. 728. He testified that he dated someone for three 9 months and took her to restaurants, movie theaters, and parks. Tr. 57. The ability 10 to perform these activities during the relevant time period is inconsistent with the 11 opinion of a marked and three moderate limitations in social interaction. Tr. 677. 12 Therefore, regardless of Plaintiff’s challenge to the medical records, the fact that 13 the longitudinal record demonstrates functional abilities that exceed the opined 14 limitations, the ALJ’s rationale meets the germane standard. 15 The ALJ’s second reason for rejecting the opinion, that Mr. Hereford 16 provided no explanation for the opinion, is germane. An opinion cannot be 17 rejected merely because it was expressed as answers to a check-off questionnaire. 18 Popa, 872 F.3d at 907. However, “the ALJ may permissibly reject check-off 19 reports that do not contain any explanation of the bases of their conclusions.” 20 Molina, 674 F.3d at 1111. Here, Mr. Hereford was given the opportunity to 21 provide an explanation on the final page of the form, and he left the section blank. 22 Tr. 679. Therefore, the ALJ’s reason meets the germane standard. 23 The ALJ’s third reason for rejecting the opinion, that Plaintiff was stable 24 when compliant with medication aside from situational stressors, is germane. As 25 discussed above, inconsistency with the medical evidence is a germane reason to 26 discount an opinion. See Bayliss, 427 F.3d at 1218. Here, the ALJ concluded that 27 the improvement in symptoms was not consistent with Mr. Hereford’s opinion. Tr. 28 24. Plaintiff argues that he did not experience such improvement. ECF No. 13 at ORDER GRANTING DEFENDANT’S MOTION - 7 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1125 Page 8 of 13 1 13. However, the ALJ provided a summary of the evidence and provided citations 2 to the record demonstrating that Plaintiff reported reduced symptoms with 3 treatment. Tr. 22-23. While Plaintiff challenges this finding with further citations 4 to the record, the Court will not disturb the ALJ’s determination where there is 5 evidence to support both interpretations of the evidence. Tackett, 180 F.3d at 1097 6 (If the evidence is susceptible to more than one rational interpretation, the court 7 may not substitute its judgment for that of the ALJ). 8 9 On September 11, 2017, Nurse Walker and Mr. Hereford completed a Mental Source Statement opining that Plaintiff had a marked limitation in one of 10 the basic work functions and had a moderate limitation in ten of the basic work 11 functions. Tr. 752-54. They found that Plaintiff would be off task 12-20% of a 40- 12 hour work week schedule and would likely miss four or more days per month 13 while attempting a 40-hour work schedule. Tr. 754. They opined that Plaintiff’s B 14 Criteria of the 12.00 Listings included a moderate rating in Plaintiff’s 15 understanding, remembering, and applying information. Tr. 754. They further 16 opined that Plaintiff met the C Criteria of the 12.00 Listings. Tr. 754. They 17 confirmed this was the opinion of the treatment team and there was at least one 18 M.D. or Ph.D. on the treatment team. Id. The ALJ gave this opinion little weight 19 because it was inconsistent with corresponding treatment notes, mental status 20 exams, and Plaintiff’s activities. Tr. 24. 21 The ALJ’s first reason for rejecting the opinion, that it was inconsistent with 22 corresponding treatment notes and mental status exams, meets the germane 23 standard. Inconsistency with the medical evidence is a germane reason to reject an 24 opinion. Bayliss, 427 F.3d at 1218. 25 The mental status exams completed by [Walker and Hereford] consistently 26 showed intact memory and cognition. Tr. 24. The mental residual functional 27 capacity opinion prepared by the same evaluators found Plaintiff was not 28 significantly limited in his ability to understand and remember very short and ORDER GRANTING DEFENDANT’S MOTION - 8 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1126 Page 9 of 13 1 simple instructions, was mildly limited in the ability to remember locations and 2 work-like procedures, and was moderately limited in the ability to understand and 3 remember detailed instructions. Tr. 752. Plaintiff argues that these limitations are 4 not necessarily inconsistent with “intact memory and cognition.” ECF No. 13 at 5 14. 6 It is not unreasonable for the ALJ to determine that intact “memory and 7 cognition” is inconsistent with a moderate limitation in remembering detailed 8 instructions in the mental residual functional capacity opinion. Therefore, the 9 Court will not disturb the ALJ’s rejection of this opinion. See Tackett, 180 F.3d at 10 1097 (If the evidence is susceptible to more than one rational interpretation, the 11 court may not substitute its judgment for that of the ALJ). 12 As well, “normal memory and cognition” can reasonably be viewed as 13 inconsistent with the opined moderate limitation in understanding, remembering, 14 or applying information when addressing the B Criteria of the 12.00 Listings, See 15 Tr. 754. This reason meets the germane standard, and the Court will not disturb 16 the ALJ’s treatment of this opinion. 17 The ALJ’s second reason for rejecting the opinion, that it was inconsistent 18 with Plaintiff’s activities, is germane. Inconsistency with a claimant’s daily 19 activities meets the germane standard. Carmickle, 533 F.3d at 1163-64; Lewis, 236 20 F.3d at 512. The ALJ found that Plaintiff’s demonstrated abilities to work part- 21 time as a dishwasher with a coworker and to travel to Cuba were inconsistent with 22 the marked limitations opined. Tr. 24. At the hearing, Plaintiff testified that he 23 had started a work-study job washing dishes and was hoping to acquire additional 24 hours in the coming quarter. Tr. 45-47. In May of 2017, he reported that he had 25 spent his spring break in Cuba. Tr. 728. This second reason is supported by 26 substantial evidence and meets the germane standard. The Court will not disturb 27 the ALJ’s treatment of the 2017 opinion by Mr. Hereford and Nurse Walker. 28 /// ORDER GRANTING DEFENDANT’S MOTION - 9 Case 1:19-cv-03197-JTR 1 2 3 4 2. ECF No. 16 filed 08/17/20 PageID.1127 Page 10 of 13 Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that Plaintiff’s symptom statements were unreliable. ECF No. 13 at 16-19. It is generally the province of the ALJ to make determinations regarding the 5 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 6 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 7 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 8 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 9 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 10 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 11 rather the ALJ must identify what testimony is not credible and what evidence 12 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 13 The ALJ found Plaintiff’s “statements concerning the intensity, persistence, 14 and limiting effects of these symptoms are not entirely consistent with the medical 15 evidence and other evidence in the record for the reasons explained in this 16 decision.” Tr. 21. Specifically, the ALJ found that Plaintiff’s mental health 17 complaints were out of proportion to the objective medical evidence and his 18 activities of daily living. Tr. 21-23. 19 The ALJ’s first reason for rejecting Plaintiff’s symptom statements, that they 20 were out of proportion to the objective medical evidence, is specific, clear and 21 convincing. Objective medical evidence is a “relevant factor in determining the 22 severity of the claimant’s pain and its disabling effects,” but it cannot serve as the 23 only reason for rejecting a claimant’s credibility. Rollins v. Massanari, 261 F.3d 24 853, 857 (9th Cir. 2001). Here, the ALJ found that Plaintiff’s mental health 25 complaints were out of proportion to the objective medical evidence of record 26 showing progressive improvement in symptoms. Tr. 21-23. The ALJ provided 27 specific citations to the record including treatment notes showing improvement. 28 Id. Plaintiff argues that these citations do not accurately represent the record as a ORDER GRANTING DEFENDANT’S MOTION - 10 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1128 Page 11 of 13 1 whole. ECF No. 13 at 16-17. However, the evidence of improvement as set forth 2 by the ALJ is inconsistent with his reported severity of symptoms. Tr. 22-24. 3 Where there is evidence that supports both the ALJ’s determination and Plaintiff’s 4 assertion, the Court will not disturb the ALJ’s determination. Tackett, 180 F.3d at 5 1097 (If the evidence is susceptible to more than one rational interpretation, the 6 court may not substitute its judgment for that of the ALJ). Furthermore, the ALJ’s 7 second reason meets the specific, clear and convincing standard. See infra. Even 8 if the ALJ erred in his reliance on the objective medical evidence, any potential 9 error resulting from the ALJ’s consideration of the medical evidence would be 10 considered harmless. See Carmickle, 533 F.3d at 1163 (upholding an adverse 11 credibility finding where the ALJ provided four reasons to discredit the claimant, 12 two of which were invalid); Batson, 359 F.3d at 1197 (affirming a credibility 13 finding where one of several reasons was unsupported by the record); Tommasetti 14 v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless when “it is 15 clear from the record that the . . . error was inconsequential to the ultimate 16 nondisability determination”). 17 The ALJ’s second reason for rejecting Plaintiff’s symptom statements, that 18 they were inconsistent with Plaintiff’s activities of daily living, is specific, clear 19 and convincing. A claimant’s daily activities may support an adverse credibility 20 finding if (1) the claimant’s activities contradict his other testimony, or (2) “the 21 claimant is able to spend a substantial part of his day engaged in pursuits involving 22 performance of physical functions that are transferable to a work setting.” Orn v. 23 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 24 (9th Cir. 1989)). A claimant need not be “utterly incapacitated” to be eligible for 25 benefits. Fair, 885 F.2d at 603. 26 The ALJ found that the following activities were inconsistent with his 27 assertion that he suffered from totally disabling social functioning: (1) Plaintiff met 28 a girl online and proceeded to date her including going to local restaurants, movies, ORDER GRANTING DEFENDANT’S MOTION - 11 Case 1:19-cv-03197-JTR ECF No. 16 filed 08/17/20 PageID.1129 Page 12 of 13 1 and parks; (2) Plaintiff traveled to Cuba during the relevant time period, which 2 likely required him to be on a plane and in the airport with more than 10 people; 3 (3) Plaintiff was the president of a costume club that met regularly; and (4) he 4 drove to work and to a friend’s house the day before the hearing. Tr. 23. The ALJ 5 was accurate that these activities were inconsistent with the limitations Plaintiff 6 reported in social functioning, including his reported problems with crowds and 7 that he had to leave if a restaurant was packed. Tr. 20. Therefore, this meets the 8 specific, clear and convincing standard. 9 3. 10 11 12 Plaintiff’s Mother Plaintiff challenges the ALJ’s treatment of the evidence presented by Plaintiff’s mother. ECF No. 13 at 19-21. Plaintiff’s mother completed a Third-Party Function Report on May 19, 13 2016 detailing her observations of Plaintiff’s symptoms and limitations. Tr. 235- 14 42. She repeatedly referred to Plaintiff’s social anxiety and stated that it affected 15 his abilities to complete tasks, follow instructions, get along with others, and 16 handle stress. Tr. 240-41. 17 Lay witness testimony is “competent evidence” as to “how an impairment 18 affects [a claimant’s] ability to work.” Stout v. Comm’r, Soc. Sec. Admin., 454 19 F.3d 1050 (9th Cir. 2006); 20 C.F.R. §§ 404.1527(f); 416.927(f); see also Dodrill 20 v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (“[F]riends and family members in 21 a position to observe a claimant’s symptoms and daily activities are competent to 22 testify as to her condition.”). An ALJ must give “germane” reasons to discount 23 evidence from “other sources.” Dodrill, 12 F.3d at 919. The ALJ found that the 24 Function Report was “not completely consistent with the record.” Tr. 25. The 25 ALJ determined that her statements regarding Plaintiff’s severe social anxiety were 26 inconsistent with meeting a girlfriend online and dating for several months and 27 serving as vice president of a costume club. Id. As addressed above, these 28 reported activities are inconsistent with the severe social anxiety alleged ORDER GRANTING DEFENDANT’S MOTION - 12 Case 1:19-cv-03197-JTR 1 ECF No. 16 filed 08/17/20 PageID.1130 Page 13 of 13 throughout the record. Therefore, the Court will not disturb the ALJ’s decision. 2 CONCLUSION 3 Having reviewed the record and the ALJ’s findings, the Court finds the 4 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 5 Accordingly, IT IS ORDERED: 6 7 1. Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 8 2. 9 The District Court Executive is directed to file this Order and provide a copy 10 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 11 and the file shall be CLOSED. 12 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. DATED August 17, 2020. 13 14 15 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION - 13
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