Russell v Kijakazi, No. 1:2020cv03115 - Document 21 (E.D. Wash. 2021)

Court Description: ORDER GRANTING 18 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 19 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. This case is REVERSED and REMANDED to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). This file is CLOSED. Signed by Judge Mary K. Dimke. (CLP, Case Administrator)

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Russell v Kijakazi Doc. 21 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1925 Page 1 of 34 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Dec 28, 2021 SEAN F. MCAVOY, CLERK 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 AMBER R.,1 8 No. 1:20-cv-03115-MKD Plaintiff, 9 vs. 10 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL 11 SECURITY,2 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 18, 19 Defendant. 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 2 ORDER - 1 Dockets.Justia.com Case 1:20-cv-03115-MKD 1 ECF No. 21 filed 12/28/21 PageID.1926 Page 2 of 34 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 18, 19. The Court, having reviewed the administrative record and the parties’ 3 briefing, is fully informed. For the reasons discussed below, the Court grants 4 Plaintiff’s motion, ECF No. 18, and denies Defendant’s motion, ECF No. 19. 5 6 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 7 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 Case 1:20-cv-03115-MKD 1 ECF No. 21 filed 12/28/21 PageID.1927 Page 3 of 34 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), superseded on other grounds by 20 C.F.R. §§ 7 404.1502(a), 416.920(a). Further, a district court “may not reverse an ALJ’s 8 decision on account of an error that is harmless.” Id. An error is harmless “where 9 it is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 10 1115 (quotation and citation omitted). The party appealing the ALJ’s decision 11 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 12 556 U.S. 396, 409-10 (2009). 13 14 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 15 the meaning of the Social Security Act. First, the claimant must be “unable to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which 18 has lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 20 impairment must be “of such severity that he is not only unable to do his previous 2 ORDER - 3 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1928 Page 4 of 34 1 work[,] but cannot, considering his age, education, and work experience, engage in 2 any other kind of substantial gainful work which exists in the national economy.” 3 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 4 The Commissioner has established a five-step sequential analysis to 5 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 6 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 7 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 8 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(b), 416.920(b). 11 If the claimant is not engaged in substantial gainful activity, the analysis 12 proceeds to step two. At this step, the Commissioner considers the severity of the 13 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 14 claimant suffers from “any impairment or combination of impairments which 15 significantly limits [his or her] physical or mental ability to do basic work 16 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 17 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 18 however, the Commissioner must find that the claimant is not disabled. Id. 19 At step three, the Commissioner compares the claimant’s impairment to 20 severe impairments recognized by the Commissioner to be so severe as to preclude 2 ORDER - 4 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1929 Page 5 of 34 1 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 2 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 3 severe than one of the enumerated impairments, the Commissioner must find the 4 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 5 If the severity of the claimant’s impairment does not meet or exceed the 6 severity of the enumerated impairments, the Commissioner must pause to assess 7 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 8 defined generally as the claimant’s ability to perform physical and mental work 9 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 10 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 11 analysis. 12 At step four, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing work that he or she has performed in 14 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 15 If the claimant is capable of performing past relevant work, the Commissioner 16 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 17 If the claimant is incapable of performing such work, the analysis proceeds to step 18 five. 19 At step five, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing other work in the national economy. 2 ORDER - 5 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1930 Page 6 of 34 1 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 2 the Commissioner must also consider vocational factors such as the claimant’s age, 3 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 4 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 5 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 6 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 7 work, analysis concludes with a finding that the claimant is disabled and is 8 therefore entitled to benefits. Id. 9 The claimant bears the burden of proof at steps one through four above. 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 11 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 12 capable of performing other work; and 2) such work “exists in significant numbers 13 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 14 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 15 16 ALJ’S FINDINGS On October 4, 2016, Plaintiff applied for Title II disability insurance benefits 17 and on December 19, 2016, she applied for Title XVI supplemental security 18 income benefits, alleging a disability onset date of August 1, 2013 in both 19 applications. Tr. 15, 103, 208-25. The applications were denied initially and on 20 reconsideration. Tr. 128-30, 132-45. Plaintiff appeared before an administrative 2 ORDER - 6 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1931 Page 7 of 34 1 law judge (ALJ) on May 9, 2019. Tr. 40-94. On July 19, 2019, the ALJ denied 2 Plaintiff’s claim. Tr. 12-37. 3 At step one of the sequential evaluation process, the ALJ found Plaintiff, 4 who met the insured status requirements through September 30, 2018, has not 5 engaged in substantial gainful activity since August 1, 2013. Tr. 18. At step two, 6 the ALJ found that Plaintiff has the following severe impairments: 7 pelvic/abdominal conditions including endometriosis and status-post multiple 8 surgeries; depressive disorder; anxiety disorder; substance use disorder; and a 9 bladder condition (characterized as interstitial cystitis). Id. 10 At step three, the ALJ found Plaintiff does not have an impairment or 11 combination of impairments that meets or medically equals the severity of a listed 12 impairment. Tr. 19. The ALJ then concluded that Plaintiff has the RFC to perform 13 light work with the following limitations: 14 15 16 [Plaintiff] is limited to frequent climbing of ramps and stairs; no climbing ladders, ropes, or scaffolds; occasional stooping; frequent kneeling, crouching and crawling; simple, routine tasks; in a routine work environment with simple work related decisions; and only superficial interaction with co-workers and public. 17 Tr. 21. 18 At step four, the ALJ found Plaintiff is unable to perform any of her past 19 relevant work. Tr. 28. At step five, the ALJ found that, considering Plaintiff’s 20 age, education, work experience, RFC, and testimony from the vocational expert, 2 ORDER - 7 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1932 Page 8 of 34 1 there were jobs that existed in significant numbers in the national economy that 2 Plaintiff could perform, such as labeler, merchandise marker, and 3 housekeeper/maid. Tr. 29. The ALJ further found that if the RFC were reduced to 4 sedentary work with the same non-exertional limitations, there were jobs that 5 existed in significant number in the national economy that Plaintiff could perform, 6 such as table worker, toy stuffer, and rubber roller grinder. Tr. 29. Therefore, the 7 ALJ concluded Plaintiff was not under a disability, as defined in the Social 8 Security Act, from the alleged onset date of August 1, 2013, through the date of the 9 decision. Tr. 30. 10 On June 10, 2020, the Appeals Council denied review of the ALJ’s decision, 11 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 12 of judicial review. See 42 U.S.C. § 1383(c)(3). 13 14 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 15 her disability insurance benefits under Title II and supplemental security income 16 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 17 issues for review: 18 1. Whether the ALJ conducted a proper step-three analysis; 19 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 20 3. Whether the ALJ properly evaluated the medical opinion evidence. 2 ORDER - 8 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1933 Page 9 of 34 1 ECF No. 18 at 2. 2 3 4 DISCUSSION A. Step Three Plaintiff contends the ALJ erred in failing to find Plaintiff’s impairments 5 meet or equal Listing 5.08. ECF No. 18 at 3-5. At step three, the ALJ must 6 determine if a claimant’s impairments meet or equal a listed impairment. 20 7 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 8 The Listing of Impairments “describes for each of the major body systems 9 impairments [which are considered] severe enough to prevent an individual from 10 doing any gainful activity, regardless of his or her age, education or work 11 experience.” 20 C.F.R. §§ 404.1525, 416.925. “Listed impairments are 12 purposefully set at a high level of severity because ‘the listings were designed to 13 operate as a presumption of disability that makes further inquiry unnecessary.’” 14 Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 15 493 U.S. 521, 532 (1990)). “Listed impairments set such strict standards because 16 they automatically end the five-step inquiry, before residual functional capacity is 17 even considered.” Kennedy, 738 F.3d at 1176. If a claimant meets the listed 18 criteria for disability, she will be found to be disabled. 20 C.F.R. §§ 19 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 20 2 ORDER - 9 Case 1:20-cv-03115-MKD 1 ECF No. 21 filed 12/28/21 PageID.1934 Page 10 of 34 “To meet a listed impairment, a claimant must establish that he or she meets 2 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 3 180 F.3d at 1099 (emphasis in original); 20 C.F.R. §§ 404.1525(d), 416.925(d). 4 “To equal a listed impairment, a claimant must establish symptoms, signs and 5 laboratory findings ‘at least equal in severity and duration’ to the characteristics of 6 a relevant listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original) 7 (quoting 20 C.F.R. § 404.1526(a)). “If a claimant suffers from multiple 8 impairments and none of them individually meets or equals a listed impairment, 9 the collective symptoms, signs and laboratory findings of all of the claimant’s 10 impairments will be evaluated to determine whether they meet or equal the 11 characteristics of any relevant listed impairment.” Id. However, “‘[m]edical 12 equivalence must be based on medical findings,” and “[a] generalized assertion of 13 functional problems is not enough to establish disability at step three.’” Id. at 1100 14 (quoting 20 C.F.R. § 404.1526(a)). 15 The claimant bears the burden of establishing her impairment (or 16 combination of impairments) meets or equals the criteria of a listed impairment. 17 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s 18 articulation of the reason(s) why the individual is or is not disabled at a later step in 19 the sequential evaluation process will provide rationale that is sufficient for a 20 subsequent reviewer or court to determine the basis for the finding about medical 2 ORDER - 10 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1935 Page 11 of 34 1 equivalence at step 3.” Social Security Ruling (SSR) 17-2P, 2017 WL 3928306, at 2 *4 (effective March 27, 2017). 3 Here, the ALJ found that Plaintiff’s impairments and combinations of 4 impairments did not meet or equal any listings. Tr. 19-20. The ALJ did not 5 specifically address Listing 5.08. Listing 5.08 is met when a Plaintiff demonstrates 6 “weight loss due to any digestive disorder despite continuing treatment as 7 prescribed, with BMI of less than 17.50 calculated on at least two evaluations at 8 least 60 days apart within a consecutive 6-month period.” 20 C.F.R. § 404, Subpt. 9 P, App. 1, § 5.08. Plaintiff contends she meets or equals Listing 5.08 because she 10 had a BMI of 17.5 or lower at multiple visits during the relevant adjudicative 11 period. ECF No. 18 at 4. Plaintiff had a BMI of 17.5 when she weighed 112 12 pounds. Tr. 454. Plaintiff cites to medical visits when Plaintiff weighed 112 13 pounds or less, and therefore had a BMI of 17.5 or lower, between January 24, 14 2014 through April 26, 2016. ECF No. 18 at 4. The November 14, 2014 and 15 January 20, 2015 visits satisfy the requirement that the evaluations be at least 60 16 days apart within a consecutive 60-month period. Tr. 348, 482. 17 However, Plaintiff does not cite to any evidence that demonstrates that she 18 had weight loss due to a digestive disorder, despite prescribed treatment. At the 19 visits where Plaintiff had a BMI of 17.5 or lower, she was seen for depression, 20 endometriosis, hypothyroidism, dyspareunia, migraines, back pain, and infertility. 2 ORDER - 11 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1936 Page 12 of 34 1 Tr. 329, 348, 359, 397, 419, 451, 454, 482, 484, 1291, 1672, 1684, 1697. Some of 2 the visits note Plaintiff had “no significant weight loss.” Tr. 451, 454. Plaintiff 3 argues that the evidence in May of 2016 onward demonstrates Plaintiff had a kink 4 in the sigmoid colon, and she had symptoms including constipation, nausea, and 5 other symptoms, and thus Plaintiff had a “manner of digestive disorder.” ECF No. 6 18 at 3-4 (citing Tr. 416, 508, 848). There are no opinions in the record that link 7 any digestive disorder symptoms to her weight loss, and the evidence cited to in 8 2016 through 2018 that shows improvement in Plaintiff’s symptoms and BMI does 9 not provide a causal explanation for her low BMI in 2014 through April 2016. 10 Further, the evidence Plaintiff relies on that documents Plaintiff treatment in April 11 2016 onward demonstrates that with treatment Plaintiff consistently had a BMI 12 above 17.5, which indicates that Plaintiff would not meet the listing. Tr. 441, 448, 13 451, 552, 555, 585, 659, 779, 861. Plaintiff has not met her burden in 14 demonstrating she meets Listing 5.08. 15 Plaintiff argues she equals the listing, because she had a low BMI and she 16 later had nausea, vomiting, and a sigmoid kink. ECF No. 20 at 2-3. Again, 17 Plaintiff does not demonstrate that she had weight loss due to any of these 18 symptoms. Plaintiff also does not demonstrate that she had weight loss despite 19 prescribed treatment. Plaintiff argues she was seen for pain medication and 20 underwent surgeries for her abdominal pain. Id. (citing Tr. 325, 341, 391, 427, 2 ORDER - 12 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1937 Page 13 of 34 1 471, 473). While Plaintiff took pain medication, there is no evidence the pain 2 medication nor surgery was treating any condition that caused her to lose weight. 3 Tr. 325, 342, 391, 427, 471, 473. Plaintiff has not met her burden in demonstrating 4 her impairments equaled Listing 5.08. Plaintiff is not entitled to remand on these 5 grounds. 6 7 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 8 convincing in discrediting her symptom claims. ECF No. 18 at 5-16. An ALJ 9 engages in a two-step analysis to determine whether to discount a claimant’s 10 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 11 “First, the ALJ must determine whether there is objective medical evidence of an 12 underlying impairment which could reasonably be expected to produce the pain or 13 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 14 “The claimant is not required to show that [the claimant’s] impairment could 15 reasonably be expected to cause the severity of the symptom [the claimant] has 16 alleged; [the claimant] need only show that it could reasonably have caused some 17 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 18 Second, “[i]f the claimant meets the first test and there is no evidence of 19 malingering, the ALJ can only reject the claimant’s testimony about the severity of 20 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 2 ORDER - 13 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1938 Page 14 of 34 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 2 omitted). General findings are insufficient; rather, the ALJ must identify what 3 symptom claims are being discounted and what evidence undermines these claims. 4 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 5 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 6 explain why it discounted claimant’s symptom claims)). “The clear and 7 convincing [evidence] standard is the most demanding required in Social Security 8 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 9 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 10 Factors to be considered in evaluating the intensity, persistence, and limiting 11 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 12 duration, frequency, and intensity of pain or other symptoms; 3) factors that 13 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 14 side effects of any medication an individual takes or has taken to alleviate pain or 15 other symptoms; 5) treatment, other than medication, an individual receives or has 16 received for relief of pain or other symptoms; 6) any measures other than treatment 17 an individual uses or has used to relieve pain or other symptoms; and 7) any other 18 factors concerning an individual’s functional limitations and restrictions due to 19 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 20 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 2 ORDER - 14 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1939 Page 15 of 34 1 an individual’s record,” to “determine how symptoms limit ability to perform 2 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 3 The ALJ found that Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 5 statements concerning the intensity, persistence, and limiting effects of her 6 symptoms were not entirely consistent with the evidence. Tr. 22. 7 1. Improvement with Treatment 8 The ALJ found Plaintiff’s symptom claims were inconsistent with her 9 improvement with treatment. Tr. 22-26. The effectiveness of treatment is a 10 relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. §§ 11 404.1529(c)(3), 416.929(c)(3) (2011); Warre v. Comm’r of Soc. Sec. Admin., 439 12 F.3d 1001, 1006 (9th Cir. 2006) (determining that conditions effectively controlled 13 with medication are not disabling for purposes of determining eligibility for 14 benefits); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (recognizing 15 that a favorable response to treatment can undermine a claimant’s complaints of 16 debilitating pain or other severe limitations). 17 The ALJ found Plaintiff had improvement in her symptoms with surgery and 18 medication. Tr. 22. Plaintiff reported improvement in her pain with gabapentin in 19 2015, though the improvement reportedly ended. Id. (citing Tr. 402-03). Plaintiff 20 had a good result from a surgery for her endometriosis in 2014, and she reported in 2 ORDER - 15 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1940 Page 16 of 34 1 2015 that her endometriosis was no longer causing pain. Tr. 22 (citing Tr. 348, 2 473-74). Plaintiff had no complications following surgery to remove her left ovary 3 in 2016, and around the same time, Plaintiff reported her pain and urinary 4 urgency/frequency had significantly improved with changes to her diet. Tr. 22 5 (citing Tr. 431). Plaintiff underwent another endometriosis excision and an 6 appendectomy in 2017. Tr. 23 (citing Tr. 508). Despite ongoing complaints of 7 pain, Plaintiff’s provider noted her endometriosis was essentially gone and the 8 cystoscopy and urodynamics procedures were normal. Tr. 23 (citing 562-63, 9 1041). Plaintiff described her pain as well-controlled in November 2017, with 70 10 percent pain relief with medication, and she reported good response to hydro11 distention in 2018. Tr. 23 (citing Tr. 574, 593, 846-47, 1059). In 2018, Plaintiff 12 reported improvement with treatment but stated the symptoms return before her 13 next appointment. Tr. 611. Regarding her mental health symptoms, Plaintiff’s 14 mood was noted as managed on medication, Plaintiff reported tolerating 15 Clonazepam, and she generally had normal mental status examinations. Tr. 26, 16 808, 811, 826, 1492. 17 Plaintiff contends the ALJ erred because although she had some 18 improvement in individual impairments with treatment, she had multiple 19 impairments that caused ongoing limitations despite treatment. ECF No. 18 at 5-6. 20 However, the ALJ reasonably found Plaintiff’s complaints are inconsistent with 2 ORDER - 16 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1941 Page 17 of 34 1 her improvement with treatment. Medical providers noted that the diagnostic 2 findings do not support Plaintiff’s reported level of pain and distress, Tr. 323, and 3 her endometriosis was found to be “essentially gone” after her surgery in 2017, Tr. 4 1035. Although Plaintiff continued to report pain symptoms, her provider noted in 5 2018 that there are likely underlying psychological factors that need to be treated. 6 Tr. 1791. Despite her complaints of ongoing abdominal pain, no distinct cause 7 was found in October 2018. Tr. 647. The reports of ongoing pain were often 8 associated with requests for pain medication, as discussed infra. 9 On this record, the ALJ reasonably concluded that Plaintiff’s impairments 10 when treated were not as limiting as Plaintiff claimed. This finding is supported by 11 substantial evidence and was a clear and convincing reason to discount Plaintiff’s 12 symptoms complaints. 13 2. Drug-Seeking Behavior 14 The ALJ found Plaintiff engaged in drug-seeking behavior. Tr. 24. Drug 15 seeking behavior can be a clear and convincing reason to discount a claimant’s 16 credibility. See Edlund, 253 F.3d at 1157 (holding that evidence of drug seeking 17 behavior undermines a claimant’s credibility); Gray v. Comm’r, of Soc. Sec., 365 18 F. App’x 60, 63 (9th Cir. 2010) (evidence of drug-seeking behavior is a valid 19 reason for finding a claimant not credible); Lewis v. Astrue, 238 F. App’x 300, 302 20 (9th Cir. 2007) (inconsistency with the medical evidence and drug-seeking 2 ORDER - 17 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1942 Page 18 of 34 1 behavior sufficient to discount credibility); Morton v. Astrue, 232 F. App’x 718, 2 719 (9th Cir. 2007) (drug-seeking behavior is a valid reason for questioning a 3 claimant’s credibility). 4 The ALJ found Plaintiff’s complaints of chronic pain were overshadowed by 5 the drug seeking behavior demonstrated in the record. Tr. 24. A medical provider 6 in 2011 noted they were concerned about Plaintiff’s narcotic use. Id. (citing Tr. 7 1052). Plaintiff was cautioned in October 2013 to use her pain medications 8 judiciously. Tr. 24 (citing Tr. 384). In March 2014, Plaintiff was diagnosed with 9 physiologic dependence on pain medication, and she was repeatedly advised in 10 2014 and 2015 that trying to conceive while using Oxycodone could put a fetus at 11 risk. Tr. 34 (citing Tr. 348, 366, 370). Plaintiff reported withdrawal symptoms in 12 July 2014 when she reported losing most of her medication in a toilet. Tr. 24 13 (citing Tr. 358). In October 2015, a provider stated Plaintiff’s pain may be an 14 addiction issue and tapering off opioids was discussed. Tr. 24 (citing Tr. 388). 15 Plaintiff’s requests for extra medication were denied on multiple occasions, and 16 she could not get her Oxycodone refilled in August 2018 due to her ongoing 17 marijuana use. Tr. 24-25 (citing Tr. 330, 76, 879). The ALJ also noted Plaintiff 18 was untruthful with providers or failed to follow medication instructions, including 19 failing to bring in a pill bottle for a pill count. Tr. 24-25 (citing Tr. 443-46). 20 Plaintiff reported she may need to seek help for her pain pill dependence but did 2 ORDER - 18 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1943 Page 19 of 34 1 not seek treatment. Tr. 25 (citing Tr. 1493). In June and July 2017, Plaintiff 2 sought emergency care and left when she could not get narcotics. Tr. 25 (citing Tr. 3 1592, 1604). Plaintiff was argumentative with staff when denied opiates. Tr. 25 4 (citing Tr. 647-49, 1790-95). Plaintiff also declined other forms of treatment for 5 her pain, and instead repeatedly requested opiate medication. Tr. 25 (citing Tr. 6 1399). Medical providers have documented their concern regarding Plaintiff’s 7 behaviors. See Tr. 1399. 8 Plaintiff argues the ALJ erred because there is not sufficient evidence of 9 drug seeking to completely discount Plaintiff’s allegations and contends some of 10 the records cited to by the ALJ do not demonstrate drug seeking. ECF No. 18 at 11 10-13. Plaintiff also argues her husband has never been documented as drug12 seeking, and her husband repeatedly requested pain medication for her and stated 13 she may commit suicide without the medication, which supports Plaintiff’s 14 argument the medication was necessary. ECF No. 18 at 13 (citing Tr. 1603-04, 15 1794). However, the ALJ cited to multiple incidences where providers believed 16 Plaintiff was drug-seeking. There is also evidence of Plaintiff’s husband’s 17 inappropriate behavior related to his requests for medication for Plaintiff. Tr. 1523 18 (husband was belligerent on the phone and hung up on staff); Tr. 1636-37 19 (husband demanded medication and yelled at staff); Tr. 1603, 1792 (husband 20 cursed at staff and upset at denial of medication); Tr. 1581 (husband yelled at staff 2 ORDER - 19 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1944 Page 20 of 34 1 regarding pain medication). Providers have documented Plaintiff giving evasive, 2 inconsistent answers, becoming tearful, disrespectful, and angry when she is not 3 given pain medication, refusing non-opiate medication, leaving against medical 4 advice when she was denied pain medication, and having tachycardia and 5 tongue/jaw tremors that were concerning indications of opiate dependence. Tr. 6 649-51, 1591, 1792. 7 On this record, the ALJ reasonably found there is evidence of Plaintiff drug- 8 seeking. This was a clear and convincing reason, supported by substantial 9 evidence, to reject Plaintiff’s symptom claims. 10 3. Lack of Treatment 11 The ALJ found Plaintiff’s symptom claims were inconsistent with Plaintiff’s 12 lack of treatment. Tr. 25-26. An unexplained, or inadequately explained, failure to 13 seek treatment or follow a prescribed course of treatment may be considered when 14 evaluating the claimant’s subjective symptoms. Orn v. Astrue, 495 F.3d 625, 638 15 (9th Cir. 2007). And evidence of a claimant’s self-limitation and lack of 16 motivation to seek treatment are appropriate considerations in determining the 17 credibility of a claimant’s subjective symptom reports. Osenbrock v. Apfel, 240 18 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App’x 45, *3 (9th 19 Cir. 2009) (unpublished opinion) (considering why plaintiff was not seeking 20 treatment). When there is no evidence suggesting that the failure to seek or 2 ORDER - 20 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1945 Page 21 of 34 1 participate in treatment is attributable to a mental impairment rather than a 2 personal preference, it is reasonable for the ALJ to conclude that the level or 3 frequency of treatment is inconsistent with the alleged severity of complaints. 4 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental 5 health treatment is partly due to a claimant’s mental health condition, it may be 6 inappropriate to consider a claimant’s lack of mental health treatment when 7 evaluating the claimant’s failure to participate in treatment. Nguyen v. Chater, 100 8 F.3d 1462, 1465 (9th Cir. 1996). 9 While Plaintiff alleges disability in part due to her mental health conditions, 10 the ALJ found Plaintiff’s allegations were inconsistent with Plaintiff’s lack of 11 ongoing mental health treatment. Tr. 25-26. Plaintiff participated in mental health 12 services prior to her alleged onset date, but the services ended prior to the relevant 13 time period; she was repeatedly encouraged to seek mental health treatment in 14 2015, but Plaintiff did not re-establish mental health care until May 2017. Id., Tr. 15 1469. Plaintiff was seen from May through July 2017, when she was told her case 16 was going to be closed due to her lack of contact. Tr. 26 (citing Tr. 1544). 17 Plaintiff again saw a mental health provider in 2018, but Plaintiff terminated 18 services after five months of counseling at the clinic, when the clinic would not 19 prescribe more pain medication. Tr. 885. Plaintiff argues she sought treatment 20 because her mental health conditions were managed through her primary care 2 ORDER - 21 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1946 Page 22 of 34 1 providers, and her mental health was primarily impacted by her chronic pain, thus 2 pain treatment was her focus. ECF No. 18 at 9. Plaintiff does not offer any 3 explanations for why she did not seek mental health treatment for several years 4 despite recommendations to do so, and why she terminated services in 2017. 5 Plaintiff does not contend her mental health symptoms interfered with her ability to 6 seek services. The ALJ’s finding that Plaintiff’s allegations were inconsistent with 7 her lack of treatment is a clear and convincing reason, supported by substantial 8 evidence, to reject Plaintiff’s claims. 9 10 4. Inconsistent Objective Medical Evidence The ALJ found Plaintiff’s symptom claims were inconsistent with the 11 objective medical evidence. Tr. 22-26. An ALJ may not discredit a claimant’s 12 symptom testimony and deny benefits solely because the degree of the symptoms 13 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 14 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 15 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 680. 16 However, the objective medical evidence is a relevant factor, along with the 17 medical source’s information about the claimant’s pain or other symptoms, in 18 determining the severity of a claimant’s symptoms and their disabling effects. 19 Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). 20 2 ORDER - 22 Case 1:20-cv-03115-MKD 1 ECF No. 21 filed 12/28/21 PageID.1947 Page 23 of 34 First, the ALJ found Plaintiff’s pain allegations were inconsistent with the 2 objective medical evidence. Tr. 22-26. The records demonstrate some 3 improvement with treatment, as discussed supra. Tr. 22-23. A 2016 cystoscopy 4 was normal. Tr. 23 (citing Tr. 419). In August 2017, Plaintiff reported ongoing 5 pain, but the medical records note Plaintiff’s endometriosis was essentially gone. 6 Tr. 23 (citing Tr. 1035). Plaintiff’s cystoscopy and urodynamics procedures were 7 also normal. Tr. 23 (citing Tr. 14F, 1041). Despite her complaints of disabling 8 pain, Plaintiff generally had normal strength, range of motion, and gait, although 9 she reported tenderness. Tr. 24, 448, 1409, 1141, 1597, 448, 599, 605, 1062. At 10 multiple visits where Plaintiff reported high levels of pain, there were few 11 abnormal findings on examination. Tr. 24 (citing Tr. 800-6). While Plaintiff 12 offers an alternative interpretation of the evidence, the Court may not reverse the 13 ALJ’s decision based on Plaintiff’s disagreement with the ALJ’s interpretation of 14 the record. See Tommasetti, 533 F.3d at 1038 (“[W]hen the evidence is susceptible 15 to more than one rational interpretation” the court will not reverse the ALJ’s 16 decision). 17 Second, the ALJ found Plaintiff’s allegation that she has flare-ups that 18 would cause absenteeism due to a need to lie down was inconsistent with the 19 evidence. Tr. 26. The ALJ noted Plaintiff did not frequently miss, cancel, or 20 reschedule appointments. Id. Plaintiff argues her ability to attend an appointment 2 ORDER - 23 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1948 Page 24 of 34 1 for one to two hours every month is not inconsistent with an inability to maintain 2 full-time attendance at work, ECF No. 18 at 9, however Plaintiff does not point to 3 any evidence of her need to lie down. 4 Third, the ALJ found Plaintiff’s claims of disabling limitations were 5 inconsistent with her efforts to have a baby during the relevant period. Tr. 26. The 6 ALJ does not set forth an analysis as to how Plaintiff’s desire to have a baby is 7 inconsistent with her allegations. Any err in finding Plaintiff’s claims were 8 inconsistent with her efforts to get pregnant is harmless as the ALJ gave other 9 supported reasons to reject Plaintiff’s allegations. See Molina, 674 F.3d at 1115. 10 On this record, the ALJ reasonably concluded that Plaintiff’s symptom 11 claims were inconsistent with the objective medical evidence. This finding is 12 supported by substantial evidence and was a clear and convincing reason, along 13 with the other reasons offered, to discount Plaintiff’s symptom complaints. 14 15 C. Medical Opinion Evidence Plaintiff contends the ALJ erred in rejecting the opinions of Derek 16 Leinenbach, M.D.; Joan Harding, M.D.; Myrna Palasi, M.D.; and Jenny Rainey17 Gibson, LMFT. ECF No. 18 at 16-21. 18 There are three types of physicians: “(1) those who treat the claimant 19 (treating physicians); (2) those who examine but do not treat the claimant 20 (examining physicians); and (3) those who neither examine nor treat the claimant 2 ORDER - 24 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1949 Page 25 of 34 1 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 2 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 3 Generally, a treating physician’s opinion carries more weight than an examining 4 physician’s, and an examining physician’s opinion carries more weight than a 5 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 6 to opinions that are explained than to those that are not, and to the opinions of 7 specialists concerning matters relating to their specialty over that of 8 nonspecialists.” Id. (citations omitted). 9 If a treating or examining physician’s opinion is uncontradicted, the ALJ 10 may reject it only by offering “clear and convincing reasons that are supported by 11 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 12 “However, the ALJ need not accept the opinion of any physician, including a 13 treating physician, if that opinion is brief, conclusory and inadequately supported 14 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 15 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 16 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 17 may only reject it by providing specific and legitimate reasons that are supported 18 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 83019 31). The opinion of a nonexamining physician may serve as substantial evidence if 20 2 ORDER - 25 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1950 Page 26 of 34 1 it is supported by other independent evidence in the record. Andrews v. Shalala, 2 53 F.3d 1035, 1041 (9th Cir. 1995). 3 “Only physicians and certain other qualified specialists are considered 4 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original); 5 see 20 C.F.R. § 416.902 (2011)3 (citing to 20 C.F.R. § 416.913(a)) (acceptable 6 medical sources are licensed physicians, licensed or certified psychologists, 7 licensed optometrists, licensed podiatrists, and qualified speech-language 8 pathologists)). However, an ALJ is required to consider evidence from non9 acceptable medical sources, such as therapists. 20 C.F.R. § 416.927(f). An ALJ 10 may reject the opinion of a non-acceptable medical source by giving reasons 11 germane to the opinion. Ghanim, 763 F.3d at 1161. 12 1. Dr. Leinenbach 13 On January 24, 2019, Dr. Leinenbach, a reviewing source, reviewed some of 14 Plaintiff’s medical records and rendered an opinion on Plaintiff’s functioning. Tr. 15 16 3 This section was amended in 2017, effective March 27, 2017, and in 2018, 17 effective October 15, 2018. See 20 C.F.R. § 416.902. Plaintiff filed his/her claim 18 before March 27, 2017, and the Court applies the regulation in effect at the time 19 Plaintiff’s claim was filed. See 20 C.F.R. § 416.902 (noting changes apply only for 20 claims filed on or after March 27, 2017). 2 ORDER - 26 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1951 Page 27 of 34 1 796-97. Dr. Leinenbach opined Plaintiff is limited to a light RFC, but she has 2 marked attendance limitations, and moderate postural limitations. Tr. 796. The 3 ALJ did not address Dr. Leinenbach’s opinion. As Dr. Leinenbach is a non4 examining source, the ALJ must consider the opinion and whether it is consistent 5 with other independent evidence in the record. See 20 C.F.R. §§ 6 404.1527(b),(c)(1), 416.927(b),(c)(1); Tonapetyan v. Halter, 242 F.3d 1144, 1149 7 (9th Cir. 2001); Lester, 81 F.3d at 830-31. 8 Defendant argues the ALJ did not error by failing to address Dr. 9 Leinenbach’s opinion because the opinion did not contain any probative evidence, 10 and further any error in the rejection of Dr. Leinenbach’s opinion was harmless, 11 because the ALJ gave supported reasons to reject Dr. Palasi and Dr. Harding’s 12 opinions, and the same reasoning applies to Dr. Leinenbach’s opinion. ECF No. 13 19 at 15-17. However, the ALJ did not offer any analysis of Dr. Leinenbach’s 14 opinion, and the ALJ did not consider the consistency of Dr. Leinenbach’s opinion 15 with the other opinions, and thus the Court cannot conclude the ALJ would have 16 rejected Dr. Leinenbach’s opinion for the same reasons she rejected the other 17 opinions. See Orn, 495 F.3d at 630 (The Court will “review only the reasons 18 provided by the ALJ in the disability determination and may not affirm the ALJ on 19 a ground upon which he did not rely.”). Further, Dr. Leinenbach’s opinion 20 includes a marked limitation, and thus cannot be found harmless. 2 ORDER - 27 Case 1:20-cv-03115-MKD 1 ECF No. 21 filed 12/28/21 PageID.1952 Page 28 of 34 On remand, the ALJ is instructed to consider Dr. Leinenbach’s opinion and 2 incorporate the limitation into the RFC or set forth an analysis of the consistency 3 of the opinion with the other evidence. 4 2. Dr. Harding 5 On June 5, 2018, Dr. Harding, a treating provider, opined Plaintiff was 6 limited to sedentary work. Tr. 567. The ALJ gave Dr. Harding’s opinion little 7 weight. Tr. 27. As Dr. Harding’s opinion is contradicted by the opinion of Dr. 8 Koukol, Tr. 109-11, the ALJ was required to give specific and legitimate reasons, 9 supported by substantial evidence, to reject Dr. Harding’s opinion. See Bayliss, 10 427 F.3d at 1216. As the case is being remanded for the ALJ to consider Dr. 11 Leinenbach’s opinion, the ALJ is also instructed to reconsider Dr. Harding’s 12 opinion. 13 3. Dr. Palasi 14 On October 30, 2016, Dr. Palasi reviewed a medical report and rendered an 15 opinion on Plaintiff’s functioning. Tr. 784. Dr. Palasi opined Plaintiff is not 16 capable of even sedentary work due to her endometriosis. Id. The ALJ gave Dr. 17 Palasi’s opinion little weight. Tr. 27. As Dr. Palasi is a non-examining source, the 18 ALJ must consider the opinion and whether it is consistent with other independent 19 evidence in the record. See 20 C.F.R. §§ 404.1527(b),(c)(1), 416.927(b),(c)(1); 20 Tonapetyan, 242 F.3d at 1149; Lester, 81 F.3d at 830-31. As the case is being 2 ORDER - 28 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1953 Page 29 of 34 1 remanded for the ALJ to reconsider Dr. Leinenbach’s opinion, the ALJ is also 2 instructed to reconsider Dr. Palasi’s opinion. 3 4. Ms. Rainey-Gibson 4 On May 17, 2018, Ms. Rainey-Gibson, a treating therapist, opined Plaintiff 5 has mild limitations in her ability to carry out very short and simple instructions; 6 moderate limitations in her ability to remember instructions and work-like 7 procedures, sustain ordinary routines, and maintain socially appropriate behavior 8 and adhere to basic standards of neatness; marked limitations in her ability to 9 understand/remember very short and simple instructions, understand/remember 10 detailed instructions, carry out detailed instructions, maintain 11 attention/concentration for extended periods, perform activities within a schedule 12 and maintain attendance, work in coordination or in close proximity to others 13 without being distracted by them, make simple work-related decisions, interact 14 appropriately with the general public, ask simple questions or request assistance, 15 accept instructions and respond appropriately to criticism from supervisors, get 16 along with coworkers or peers without distracting them, respond appropriately to 17 changes in the work setting, be aware of normal hazards and take appropriate 18 precautions, travel to unfamiliar places or take public transportation, and set 19 realistic goals or make plans independently of others; and an extreme limitation in 20 her ability to complete a normal workday/workweek. Tr. 564-66. The ALJ found 2 ORDER - 29 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1954 Page 30 of 34 1 Ms. Rainey-Gibson’s opinion was not supported. Tr. 27. As Ms. Rainey-Gibson 2 is not an acceptable medical source, the ALJ was required to give germane reasons 3 to reject the opinion. See Ghanim, 763 F.3d at 1161. 4 First, the ALJ found Ms. Rainey-Gibson provided no explanations for the 5 marked and extreme ratings. Id. The Social Security regulations “give more 6 weight to opinions that are explained than to those that are not.” Holohan, 246 7 F.3d at 1202. “[T]he ALJ need not accept the opinion of any physician, including 8 a treating physician, if that opinion is brief, conclusory and inadequately supported 9 by clinical findings.” Bray, 554 at 1228. Ms. Rainey-Gibson’s opinion is a 10 checkbox form and does not contain any explanation nor citation to records to 11 support her opinion. Tr. 564-66. “Although the treating physician’s opinions were 12 in the form of check-box questionnaires, that is not a proper basis for rejecting an 13 opinion supported by treatment notes.” See Garrison, 759 F.3d at 1014 n. 17. 14 Plaintiff does not present any argument that Ms. Rainey-Gibson’s opinion is 15 supported by her treatment notes. ECF No. 18 at 19-21. As discussed infra, Ms. 16 Rainey-Gibson’s opinion is inconsistent with the treatment records. This was a 17 germane to reject Ms. Rainey-Gibson’s opinion. 18 Second, the ALJ found Ms. Rainey-Gibson’s opinion was inconsistent with 19 the objective evidence. Tr. 27. A medical opinion may be rejected if it is 20 unsupported by medical findings. Bray, 554 F.3d at 1228; Batson, 359 F.3d at 2 ORDER - 30 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1955 Page 31 of 34 1 1195; Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1149; Matney, 981 F.2d 2 at 1019. Moreover, an ALJ is not obliged to credit medical opinions that are 3 unsupported by the medical source’s own data and/or contradicted by the opinions 4 of other examining medical sources. Tommasetti, 533 F.3d at 1041. While Ms. 5 Rainey-Gibson opined Plaintiff had multiple marked limitations, such as a marked 6 limitation in understanding/remembering very short and simple instructions, the 7 ALJ found the opinion was inconsistent with the medical records that demonstrate 8 Plaintiff repeatedly had a normal memory. Tr. 27. Ms. Rainey-Gibson’s records 9 contain generally normal mental status examinations, including normal, memory, 10 thoughts, intelligence, and concentration, with occasional abnormalities such as an 11 anxious or depressed mood. Tr. 27, 880, 888, 897, 971, 980, 1002, 1007. This 12 was a germane reason to reject Ms. Rainey-Gibson’s opinion. 13 Third, the ALJ found Ms. Rainey-Gibson’s opinion was inconsistent with 14 Plaintiff’s activities of daily living. Tr. 27. An ALJ may discount a medical 15 source opinion to the extent it conflicts with the claimant’s daily activities. 16 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). 17 Additionally, the ability to care for young children without help has been 18 considered an activity that may undermine claims of totally disabling pain. 19 Rollins, 261 F.3d at 857. However, an ALJ must make specific findings before 20 relying on childcare as an activity inconsistent with disabling limitations. Trevizo 2 ORDER - 31 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1956 Page 32 of 34 1 v. Berryhill, 871 F.3d 664, 675-76 (9th Cir. 2017). The ALJ found Ms. Rainey2 Gibson’s opinion that Plaintiff had marked limitations in several areas of 3 functioning, including concentration and social interaction, was inconsistent with 4 Plaintiff’s ability to provide childcare for a friend’s infant, and help care for her 5 father after he had a stroke. Tr. 27. However, the ALJ did not make any findings 6 regarding the extent of care provided. While the ALJ erred in rejecting the opinion 7 as inconsistent with Plaintiff’s activities, the error is harmless as the ALJ gave 8 other supported reasons to reject the opinion. See Molina, 674 F.3d at 1115. The 9 ALJ did not error in rejecting Ms. Rainey-Gibson’s opinion. 10 11 D. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 12 ECF No. 18 at 21. 13 “The decision whether to remand a case for additional evidence, or simply to 14 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 15 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 16 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 17 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 18 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 19 proper course, except in rare circumstances, is to remand to the agency for 20 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 2 ORDER - 32 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1957 Page 33 of 34 1 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 2 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 3 discretion for a district court not to remand for an award of benefits” when three 4 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 5 credit-as-true rule, where (1) the record has been fully developed and further 6 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 7 to provide legally sufficient reasons for rejecting evidence, whether claimant 8 testimony or medical opinion; and (3) if the improperly discredited evidence were 9 credited as true, the ALJ would be required to find the claimant disabled on 10 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 11 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 12 the Court will not remand for immediate payment of benefits if “the record as a 13 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 14 F.3d at 1021. 15 Plaintiff urges remand for immediate benefits based on the arguments that 16 Plaintiff’s impairments meet a listing, and the ALJ erred in rejecting the medical 17 opinions and Plaintiff’s symptom claims. ECF No. 18 at 21. However, the Court 18 finds Plaintiff did not meet her burden in demonstrating her impairments meet or 19 equal a listing, and the ALJ gave clear and convincing reasons to reject Plaintiff’s 20 symptom claims, as discussed supra. While the ALJ erred in rejecting Dr. 2 ORDER - 33 Case 1:20-cv-03115-MKD ECF No. 21 filed 12/28/21 PageID.1958 Page 34 of 34 1 Harding’s opinion, remand for further proceedings is necessary to resolve conflicts 2 in the record, including conflicts between the medical opinions. As such, the case 3 is remanded for further proceedings consistent with this Order. 4 5 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 6 ALJ’s decision is not supported by substantial evidence and is not free of harmful 7 legal error. Accordingly, IT IS HEREBY ORDERED: 8 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 9 Defendant and update the docket sheet. 10 2. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 11 3. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 12 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 13 REVERSING and REMANDING the matter to the Commissioner of Social 14 Security for further proceedings consistent with this recommendation pursuant to 15 sentence four of 42 U.S.C. § 405(g). 16 The District Court Executive is directed to file this Order, provide copies to 17 counsel, and CLOSE THE FILE. 18 DATED December 28, 2021. 19 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 20 2 ORDER - 34

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