Lamere v. Commissioner of Social Security, No. 2:2017cv00439 - Document 18 (E.D. Wash. 2019)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF No. 16 and denying ECF No. 14 Plaintiff's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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Lamere v. Commissioner of Social Security Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON UNITED STATES DISTRICT COURT Feb 1 EASTERN DISTRICT OF WASHINGTON 2 12, 2019 SEAN F. MCAVOY, CLERK 3 4 5 6 ANNIE L., No. 2:17-CV-0439-JTR Plaintiff, v. 7 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 11 12 BEFORE THE COURT are cross-motions for summary judgment. ECF 13 No. 14, 16. Attorney Dana C. Madsen represents Annie L. (Plaintiff); Special 14 Assistant United States Attorney Jeffrey E. Staples represents the Commissioner of 15 Social Security (Defendant). The parties have consented to proceed before a 16 magistrate judge. ECF No. 6. After reviewing the administrative record and briefs 17 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 18 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 19 JURISDICTION 20 On July 3, 2013, Plaintiff filed an application for Supplemental Security 21 Income (SSI), alleging disability since January 1, 2011, due to depression, anxiety 22 and Hepatitis C. Tr. 240, 265. Plaintiff’s application was denied initially and upon 23 reconsideration. 24 Administrative Law Judge (ALJ) Glenn G. Meyers held a hearing on 25 January 13, 2015. Tr. 38-48. ALJ Jesse K. Shumway held a supplemental hearing 26 on August 25, 2016, Tr. 49-82, and issued an unfavorable decision on September 27 7, 2016, Tr. 20-32. The Appeals Council denied review on November 3, 2017. Tr. 28 1-5. The ALJ’s September 2016 decision thus became the final decision of the ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 2 405(g). Plaintiff filed this action for judicial review on December 29, 2017. ECF 3 No. 1, 4. STATEMENT OF FACTS 4 The facts of the case are set forth in the administrative hearing transcript, the 5 6 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 7 here. 8 9 10 Plaintiff was born on July 7, 1979, and was 31 years old on the alleged onset date, January 1, 2011. Tr. 240. She completed the tenth grade in school; there is no indication she has earned a GED. Tr. 266. 11 Plaintiff’s disability report indicates she stopped working in 2006 because 12 she missed work due to being incarcerated. Tr. 265. She indicated she believed 13 her conditions became severe enough to prevent her from working on January 1, 14 2011. Tr. 265. Plaintiff testified at the August 2016 administrative hearing that 15 her conditions included depression, anxiety, fatigue, and poor memory. Tr. 76-78. 16 Plaintiff testified she lived in a home with her disabled husband and three 17 children, ages 18, eight and five, and was pregnant at the time of the August 2016 18 administrative hearing. Tr. 67-68. With respect to household responsibilities, 19 Plaintiff stated she did not do anything other than cook “every once in a while.” 20 Tr. 69, 76. However, she also indicated she was responsible for taking her children 21 to medical appointments. Tr. 69-70. 22 Plaintiff testified she had not had mental health treatment since April of 23 2015. Tr. 69. She explained she put herself on the back burner and had not gotten 24 around to accessing healthcare for her issues, despite a lack of financial barriers to 25 receiving such treatment. Tr. 70-71. Plaintiff admitted mental health treatment 26 had been helpful in the past, but also stated she did not see the point of it the 27 majority of the time. Tr. 72. Plaintiff further admitted there was a time when 28 prescribed medication helped with her symptoms, but she just chose to quit taking ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 the medication. Tr. 73, 75. She stated she had not been taking any medications 2 “for a while.” Tr. 74. 3 4 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 5 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 6 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 7 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 8 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 9 only if it is not supported by substantial evidence or if it is based on legal error. 10 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 11 defined as being more than a mere scintilla, but less than a preponderance. Id. at 12 1098. Put another way, substantial evidence is such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion. Richardson v. 14 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 15 rational interpretation, the Court may not substitute its judgment for that of the 16 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 17 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 18 administrative findings, or if conflicting evidence supports a finding of either 19 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 20 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 21 supported by substantial evidence will be set aside if the proper legal standards 22 were not applied in weighing the evidence and making the decision. Brawner v. 23 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 24 25 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 26 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 27 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 28 four, the burden of proof rests upon the claimant to establish a prima facie case of ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 2 met once a claimant establishes that a physical or mental impairment prevents the 3 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 4 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 5 to step five, and the burden shifts to the Commissioner to show that the claimant 6 can perform other jobs present in significant numbers in the national economy. 7 Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). 8 If a claimant cannot make an adjustment to other work in the national economy, a 9 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 10 11 12 13 ADMINISTRATIVE DECISION On September 7, 2016, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 14 activity since the disability application date, July 3, 2013. Tr. 22. At step two, the 15 ALJ determined Plaintiff had the following severe impairments: depression; 16 anxiety disorder, NOS; and personality disorder. Tr. 22. At step three, the ALJ 17 found Plaintiff did not have an impairment or combination of impairments that 18 meets or medically equals the severity of one of the listed impairments. Tr. 23. 19 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 20 determined she could perform a full range of work at all exertional levels but with 21 the following nonexertional limitations: she is limited to unskilled and semi- 22 skilled work; she can have only occasional, superficial contact with the public; and 23 she cannot perform work at a production rate pace. Tr. 24-25. 24 At step four, the ALJ determined Plaintiff was not capable of performing her 25 past relevant work as a taproom attendant. Tr. 30. At step five, the ALJ 26 determined that based on the testimony of the vocational expert, and considering 27 Plaintiff’s age, education, work experience and RFC, Plaintiff could perform other 28 jobs present in significant numbers in the national economy, including the jobs of ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 fish cleaner, dining room attendant, and kitchen helper. Tr. 30-31. The ALJ 2 additionally determined that if Plaintiff was further restricted to light exertion level 3 work with the same nonexertional limitations, she would still be able to perform 4 other jobs present in significant numbers in the national economy, including the 5 jobs of cleaner, housekeeping; sorter, agricultural produce; and marker, price. Tr. 6 31. The ALJ thus concluded Plaintiff was not under a disability within the 7 meaning of the Social Security Act at any time from the disability application date, 8 July 3, 2013, through the date of the ALJ’s decision, September 7, 2016. Tr. 32. ISSUES 9 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 frames the issues for the Court’s review as follows: A. Did the ALJ 13 14 improperly discredit Plaintiff’s symptom claims?; B. Did the ALJ fail to properly 15 consider and weigh the opinion evidence?; C. Were the errors harmless?; and D. 16 What is the proper remedy? ECF No. 14 at 8. DISCUSSION1 17 18 19 20 A. Plaintiff’s Symptom Testimony Plaintiff first contends the ALJ erred by improperly discrediting her symptom claims. ECF No. 14 at 9-11. 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 It is the province of the ALJ to make credibility determinations. Andrews, 2 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 3 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 4 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 5 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 6 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 7 “General findings are insufficient: rather the ALJ must identify what testimony is 8 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 9 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 10 In this case, the ALJ found Plaintiff’s medically determinable impairments 11 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 12 statements concerning the intensity, persistence and limiting effects of these 13 symptoms were not entirely consistent with the evidence of record. Tr. 26. 14 15 16 The ALJ first indicated the objective medical evidence of record did not support the level of limitation Plaintiff claimed. Tr. 26. A lack of supporting objective medical evidence is a factor which may be 17 considered in evaluating an individual’s credibility, provided it is not the sole 18 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991); Lingenfelter v. 19 Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (in determining credibility, the ALJ 20 may consider “whether the alleged symptoms are consistent with the medical 21 evidence”). 22 The ALJ determined that although Plaintiff had a medically documented 23 history of depression, anxiety and personality disorder, the record did not support a 24 finding that these conditions prohibited Plaintiff from performing all work. Tr. 26. 25 The ALJ’s statement in this regard is supported by the evidence of record which 26 reflects largely unremarkable medical findings. See e.g. Tr. 391 (June 2013 27 examination record of John Arnold, Ph.D., observing all categories of mental 28 functioning, other than memory, mood and affect, were within normal limits), Tr. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 399 (May 2013 Frontier Behavioral Health progress note reflecting Plaintiff’s 2 mental status as unremarkable other than limited insight and judgment), Tr. 452, 3 456, 459, 461 (March, April, May, and October 2014 Community Health Center of 4 Snohomish County (CHC) notes indicating Plaintiff was properly oriented and 5 displayed appropriate mood and affect), Tr. 475, 478, 484 (January 2015 CHC 6 notes reflecting Plaintiff mental status as generally within normal limits). 7 Moreover, as indicated by the ALJ, Tr. 26, state agency reviewing psychological 8 consultants concluded on September 16, 2013, and December 17, 2013, that 9 Plaintiff’s mental impairments produced mild restrictions in activities of daily 10 living, mild difficulties in maintaining social functioning, moderate difficulties in 11 maintaining concentration, persistence or pace, and no episodes of 12 decompensation. Tr. 87-90, 98-101. They opined that Plaintiff retained the 13 capacity to understand and remember simple and complex instructions on a 14 consistent basis in a competitive work environment; was able to consistently 15 remember work locations and work-like procedures; could carry out simple and 16 some complex tasks; and was able to maintain concentration, persistence and pace 17 for up to two hours continuously, maintain adequate attendance and complete a 18 normal workday and workweek within normal tolerances of a competitive 19 workplace. Id. The examination of Plaintiff on September 11, 2014, by Dana 20 Harmon, Ph.D., was also largely unremarkable. Tr. 27, 536-538. Dr. Harmon 21 found only mild and moderate limitations on Plaintiff’s basic work activities and 22 concluded Plaintiff “should [be] able to return to work within six months or so, 23 with vocational rehabilitation efforts and a continued abstinence from drugs and 24 alcohol.” Tr. 533. Furthermore, medical expert Marian F. Martin, Ph.D., testified 25 at the August 2016 administrative hearing that Plaintiff’s mental impairments 26 produced no restrictions in activities of daily living, mild-to-moderate difficulties 27 in maintaining social functioning, mild-to-moderate difficulties in maintaining 28 concentration, persistence or pace, and no episodes of decompensation. Tr. 27, 60- ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 62. Dr. Martin opined Plaintiff was capable of performing simple, routine, 2 repetitive tasks and some semi-skilled detailed tasks; could get along with 3 coworkers and supervisors, but should have only superficial public contact; and 4 was limited to no production rate pace. Tr. 27, 63-65. As indicated by the ALJ, the objective medical evidence of record does not 5 6 support the disabling symptoms and limitations alleged by Plaintiff in this case. 7 Tr. 26-27. This was a proper basis for the ALJ to conclude Plaintiff was not 8 entirely credible. The ALJ next indicated the record reflected medication was helpful in 9 10 improving Plaintiff’s mental health symptoms. Tr. 26. The effectiveness of medication in alleviating symptoms is a relevant factor 11 12 to consider in evaluating the severity of a claimant’s claim. 20 C.F.R. § 13 416.929(c)(3)(iv); Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 600 14 (9th Cir. 1999) (an ALJ may properly rely on a report that a plaintiff’s mental 15 symptoms improved with the use of medication); Odle v. Heckler, 707 F.2d 439, 16 440 (9th Cir. 1983) (impairments controlled by treatment cannot be considered 17 disabling). Community Heath Association of Spokane (CHAS) medical notes reflect 18 19 that Plaintiff’s medications were helpful in improving her mood, Tr. 375 (Prozac 20 was helping), Tr. 377 (Prozac helping her mood), Tr. 379 (“clearly appreciated 21 benefit in mood and energy level” after taking Prozac for over a month). Tr. 26. 22 As indicated above, Plaintiff testified at the August 2016 administrative hearing 23 that prescribed medication had previously helped with her mental health 24 symptoms, but she simply chose to quit taking the medication and had not been 25 taking any prescribed medications “for a while.” Tr. 73-75. The foregoing evidence that Plaintiff’s mental health issues improved with 26 27 medication additionally supports the ALJ’s adverse credibility determination. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 2 3 The ALJ also described Plaintiff’s inconsistent reporting as detracting from her credibility. Tr. 26-28. In assessing the weight accorded to a claimant’s statements, an ALJ may 4 engage in ordinary techniques of credibility evaluation, such as considering a 5 claimant’s reputation for truthfulness and inconsistencies in a claimant’s 6 testimony. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Tonapetyan v. 7 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). When a claimant fails to be a reliable 8 historian, “this lack of candor carries over” to other portions of her testimony. 9 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 10 As noted by the ALJ, while Plaintiff alleged disabling social limitations, Tr. 11 280 (“I don’t want to talk to people at all”), Tr. 322 (“I don’t talk to people unless 12 forced”), Frontier Behavioral Health progress notes consistently describe Plaintiff 13 as functioning well from a social standpoint, Tr. 406 (Plaintiff’s “affect was bright 14 and engaging with others in group”), Tr. 409 (Plaintiff “encouraged other group 15 members to participate and talk, and she tried to initiate conversations within the 16 group appropriately”), Tr. 411, 413, 414, 415, 417, 418, 419, 422 (Plaintiff’s affect 17 was bright, pleasant, and engaging while interacting with others in group). Tr. 26. 18 Plaintiff reported she liked her group therapy sessions and enjoyed interacting with 19 group members. Tr. 28, 403, 409. The ALJ also indicated Plaintiff reported she 20 liked going to church, liked to talk to friends and family on the phone, had at least 21 once close friend, and talked to her sister on a daily basis. Tr. 28, 397, 399, 400. 22 Plaintiff’s allegations of social limitations are thus inconsistent with, and not 23 supported by, the evidence of record. 24 As further noted by the ALJ, although Plaintiff testified her husband and 25 oldest child handle all the household chores/childcare and she has virtually no 26 daily activities, Tr. 67-69, 76, Plaintiff’s function reports indicate daily activities of 27 child care; personal care; preparing meals; cleaning; doing the dishes, laundry and 28 vacuuming; shopping; attending church; and communicating with friends on ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 Facebook, Tr. 277-279, 318-321. Tr. 27. Therefore, Plaintiff’s testimony 2 regarding her daily activities was also inconsistent. 3 4 5 It was entirely proper for the ALJ to note the foregoing inconsistencies in finding Plaintiff’s subjective complaints less than fully credible in this case. The ALJ additionally indicated Plaintiff reported reasonably high- 6 functioning activities of daily living which showed greater functional abilities than 7 alleged. Tr. 27-28. 8 It is well-established that the nature of daily activities may be considered 9 when evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 10 While one does not need to be “utterly incapacitated” to be disabled, id., it was 11 proper for the ALJ to find Plaintiff’s reports of activities such as those previously 12 mentioned (child care; personal care; preparing meals; cleaning; doing the dishes, 13 laundry and vacuuming; shopping; attending church; and communicating with 14 friends on Facebook), as well as her ability to attend church, develop a relationship 15 and get married, live with family and get appropriate prenatal care, Tr. 28, were 16 inconsistent with the debilitating limitations she alleged2 and thus detracted from 17 her overall credibility. See Smith v. Comm’r Soc. Sec. Admin., 611 Fed. Appx. 18 897, 900 (9th Cir. 2015) (affirming the ALJ’s adverse credibility determination and 19 noting the ALJ found the claimant’s testimony was contradicted by “her own 20 description of helping with” the “care of children” and household chores); Rollins 21 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (affirming the ALJ’s adverse 22 credibility determination and noting that the claimant’s claim of disability was 23 undermined by testimony about her daily activities, such as “attending to the needs 24 25 2 Plaintiff alleges disability since 2011, due to depression, anxiety and 26 Hepatitis C, Tr. 265, and testified that, because she feels helpless, she is not able to 27 do anything other than the bare minimum with respect to household 28 responsibilities, Tr. 69-70, 76. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 of her two young children,” cooking, and shopping); see also Molina v. Astrue, 674 2 F.3d 1104, 1113 (9th Cir. 2012) (“Even where [a claimant’s daily] activities 3 suggest some difficulty functioning, they may be grounds for discrediting the 4 claimant’s testimony to the extent that they contradict claims of a totally 5 debilitating impairment.”). 6 7 8 9 The ALJ found Plaintiff’s infrequent mental health treatment also diminished her credibility. Tr. 28. In assessing a claimant’s credibility, an ALJ properly relies upon “‘unexplained or inadequately explained failure to seek treatment or to follow a 10 prescribed course of treatment.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 11 Cir. 2008) (quoting Smolen, 80 F.3d at 1284); Fair, 885 F.2d at 603. “[I]f the 12 frequency or extent of the treatment sought by an individual is not comparable with 13 the degree of the individual’s subjective complaints, or if the individual fails to 14 follow prescribed treatment that might improve symptoms, we may find the 15 alleged intensity and persistence of an individual’s symptoms are inconsistent with 16 the overall evidence of record.” SSR 16-3p. An “unexplained, or inadequately 17 explained, failure to seek treatment may be the basis for an adverse credibility 18 finding unless one of a ‘number of good reasons for not doing so’ applies.” Orn v. 19 Astrue, 495 F.3d 625, 638 (9th Cir. 2007). 20 As noted by the ALJ, Plaintiff received limited mental health treatment 21 during the relevant time period in this case, and, as determined by the ALJ, 22 Plaintiff provided no good explanation for this lack of mental health treatment, Tr. 23 70-71 (Plaintiff explained she put herself on the back burner and had simply not 24 gotten around to accessing healthcare for her issues, despite a lack of financial 25 barriers to receiving such treatment). Tr. 28. 26 The Court finds the ALJ did not err by relying, in part, upon Plaintiff’s 27 minimal mental health treatment in concluding Plaintiff’s subjective complaints 28 were less than fully credible. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 The ALJ additionally mentioned Plaintiff’s “minimal work history.” Tr. 28. 1 2 The Ninth Circuit has held that “poor work history” or a showing of “little 3 propensity to work” during one’s lifetime may be considered as a factor which 4 negatively affects a claimant’s credibility. Thomas, 278 F.3d at 959. The ALJ 5 indicated Plaintiff’s limited work history (she had not worked at all since 2008, 6 five years before she submitted her application for disability benefits) called into 7 question whether it was Plaintiff’s medical impairments or other factors (see Tr. 8 388 (childcare and transportation issues)) that caused her to seek disability. Tr. 28. 9 Given the record supports the ALJ’s finding in this regard (limited work history), it 10 was proper for the ALJ to note Plaintiff’s “minimal work history” when assessing 11 her credibility in this case. The ALJ is responsible for reviewing the evidence and resolving conflicts or 12 13 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 15 evidence. Richardson v. Perales, 402 U.S. 389, 400 (1971). The Court has a 16 limited role in determining whether the ALJ’s decision is supported by substantial 17 evidence and may not substitute its own judgment for that of the ALJ even if it 18 might justifiably have reached a different result upon de novo review. 42 U.S.C. § 19 405(g). After reviewing the record, the Court finds that the ALJ provided clear 20 and convincing reasons, which are fully supported by the record, for discounting 21 Plaintiff’s subjective complaints. Accordingly, the ALJ did not err by finding 22 Plaintiff’s allegations were not entirely credible in this case. 23 B. Medical Source Opinions Plaintiff next argues the ALJ erred by failing to accord weight to the marked 24 25 mental health limitations assessed by John Arnold, Ph.D., and by not finding the 26 “moderate” mental limitations observed by Dana Harmon, Ph.D., were work- 27 preclusive. ECF No. 14 at 11-15. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 In a disability proceeding, the courts distinguish among the opinions of three 2 types of acceptable medical sources: treating physicians, physicians who examine 3 but do not treat the claimant (examining physicians) and those who neither 4 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 5 F.3d 821, 830 (9th Cir. 1996). An examining physician’s opinion is given more 6 weight than that of a nonexamining physician. Benecke v. Barnhart, 379 F.3d 587, 7 592 (9th Cir. 2004); Lester, 81 F.3d at 830. In weighing the medical opinion 8 evidence of record, the ALJ must make findings setting forth specific, legitimate 9 reasons for doing so that are based on substantial evidence in the record. 10 Magallanes, 881 F.2d at 751. Moreover, the ALJ is required to set forth the 11 reasoning behind his or her decisions in a way that allows for meaningful review. 12 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (finding a clear 13 statement of the agency’s reasoning is necessary because the Court can affirm the 14 ALJ’s decision to deny benefits only on the grounds invoked by the ALJ). 15 “Although the ALJ’s analysis need not be extensive, the ALJ must provide some 16 reasoning in order for us to meaningfully determine whether the ALJ’s conclusions 17 were supported by substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 18 775 F.3d 1090, 1103 (9th Cir. 2014). 19 1. Dr. Arnold 20 On June 21, 2013, Dr. Arnold filled out a Psychological/Psychiatric 21 Evaluation form and checked boxes indicating Plaintiff was markedly impaired in 22 five categories of basic work activities. Tr. 387-391. It was noted that Plaintiff 23 had been clean and sober for nine months but relapsed on alcohol and 24 methamphetamine four months prior to the evaluation and relapsed again four 25 weeks prior to the evaluation. Tr. 387. Plaintiff reported she would like to work, 26 but a lack of daycare and transportation was a barrier to employment. Tr. 388. Dr. 27 Arnold opined that while Plaintiff was presently not capable of working, looking 28 for work or training to work, she did not appear to be permanently disabled. Id. ORDER GRANTING DEFENDANT’S MOTION . . . - 13 The ALJ assigned “little weight” to the marked limitations assessed by Dr. 1 2 Arnold on the form report. Tr. 29. The ALJ indicated the report was cursory; 3 internally inconsistent; inconsistent with the assessments of Dr. Martin, Dr. 4 Harmon and the state agency medical consultants; inconsistent with the largely 5 benign mental status findings documented in the record; and inconsistent with 6 Plaintiff’s admitted daily activities. Tr. 29. The ALJ also noted the exam occurred 7 slightly outside the adjudicative period and it was evident Plaintiff was still using 8 substances at the time of the evaluation. Tr. 29. 9 The Court agrees that the report of Dr. Arnold slightly predates the relevant 10 time period3 in this matter. Evidence from outside of the relevant time period can 11 be deemed useful as background information; however, it is irrelevant to the extent 12 that it does not address Plaintiff’s medical status during the relevant period at issue 13 in this action. See Fair, 885 F.2d at 600. The Court finds the ALJ correctly determined that the marked limitations 14 15 assessed by Dr. Arnold on the check-box form are internally inconsistent with Dr. 16 Arnold’s mental status exam findings. See Tommasetti, 533 F.3d at 1041 (holding 17 that the existence of internal inconsistencies within a physician’s opinion 18 constitutes a specific and legitimate reason for the ALJ to reject that physician’s 19 opinion concerning the claimant’s functional limitations). Dr. Arnold’s mental 20 status exam reflected that all categories of mental functioning, other than memory, 21 mood and affect, were within normal limits. Tr. 391. Dr. Arnold’s assessed 22 marked limitations were thus inconsistent with his own essentially normal 23 examination findings. 24 /// 25 26 3 Plaintiff is ineligible for SSI disability benefits for any month including and 27 preceding July 2013, the month she filed her SSI disability application. 20 C.F.R. 28 § 416.330, 416.335; SSR 83-20. ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 The marked limitations are also inconsistent with the largely unremarkable 2 medical findings documented throughout the record. See e.g. Tr. 399 (May 2013 3 Frontier Behavioral Health progress note reflecting Plaintiff’s mental status as 4 unremarkable other than limited insight and judgment), Tr. 452, 456, 459, 461 5 (March, April, May, and October 2014 Community Health Center of Snohomish 6 County (CHC) notes indicating Plaintiff was properly oriented and displayed 7 appropriate mood and affect), Tr. 475, 478, 484 (January 2015 CHC notes 8 reflecting Plaintiff mental status as generally within normal limits). Moreover, the 9 marked limitations are unsupported by the findings of other medical professionals 10 of record: the state agency reviewing psychological consultants opined that 11 Plaintiff retained the capacity to understand and remember simple and complex 12 instructions on a consistent basis in a competitive work environment; was able to 13 consistently remember work locations and work-like procedures; could carry out 14 simple and some complex tasks; and was able to maintain concentration, 15 persistence and pace for up to two hours continuously, maintain adequate 16 attendance and complete a normal workday and workweek within normal 17 tolerances of a competitive workplace, Tr. 87-90, 98-101; Dr. Harmon found only 18 mild and moderate limitations on Plaintiff’s basic work activities and concluded 19 Plaintiff “should [be] able to return to work within six months or so, with 20 vocational rehabilitation efforts and a continued abstinence from drugs and 21 alcohol,” Tr. 531-552; and medical expert Martin found Plaintiff was capable of 22 performing simple, routine, repetitive tasks and some semi-skilled detailed tasks; 23 could get along with coworkers and supervisors, but should have only superficial 24 public contact; and was limited to no production rate pace, Tr. 63-65. 25 Finally, with respect to Plaintiff’s daily activities, Plaintiff’s ability to care 26 for her children, complete daily tasks, attend her appointments, go to church, drive, 27 go shopping, and participate in group sessions, was also inconsistent with Dr. 28 Arnold’s assessed marked limitations. ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 Based on the foregoing, the Court finds the marked psychological limitations 2 assessed on the check-box portion of Dr. Arnold’s report are entirely unsupported 3 and inconsistent with the weight of the record evidence. The ALJ provided 4 specific and legitimate reasons, supported by substantial evidence, for according 5 little weight to the check-box opinions of Dr. Arnold. 6 2. Dr. Harmon 7 On September 11, 2014, Dr. Harmon performed a psychological/psychiatric 8 evaluation of Plaintiff. Tr. 531-552. Dr. Harmon opined that Plaintiff had 9 moderate mental limitations in her ability to perform activities within a schedule, 10 maintain regular attendance and be punctual within customary tolerances without 11 special supervision; communicate and perform effectively in a work setting; 12 complete a normal work day and work week without interruptions from 13 psychologically based symptoms; and set realistic goals and plan independently. 4 14 Tr. 533. Dr. Harmon concluded that Plaintiff’s limitations were expected to last 15 16 4 This opinion is in accord with the assessments completed by the state 17 agency medical consultants, Tr. 87-90, 98-101 (finding Plaintiff retained the 18 capacity to understand and remember simple and complex instructions on a 19 consistent basis in a competitive work environment; was able to consistently 20 remember work locations and work-like procedures; could carry out simple and 21 some complex tasks; and was able to maintain concentration, persistence and pace 22 for up to two hours continuously, maintain adequate attendance and complete a 23 normal workday and workweek within normal tolerances of a competitive 24 workplace), and the testimony of medical expert Martin, Tr. 63-65 (finding 25 Plaintiff was capable of performing simple, routine, repetitive tasks and some 26 semi-skilled detailed tasks; could get along with coworkers and supervisors, but 27 should have only superficial public contact; and was limited to no production rate 28 pace). ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 only six months,5 finding Plaintiff should be able to return to work within six 2 months with vocational rehabilitation efforts and a continued abstinence from 3 drugs and alcohol. Tr. 533. 4 The ALJ accorded Dr. Harmon’s opinions “great weight,” and accounted for 5 the moderate limitations assessed by Dr. Harmon by finding Plaintiff limited to 6 unskilled and semi-skilled work with only occasional, superficial contact with the 7 public and no work at a production rate pace. Tr. 24-25. This finding is supported 8 by the weight of the record evidence. 9 While Plaintiff contends that the moderate limitations from Dr. Harmon’s 10 report would signify Plaintiff was “limited a third of the day,” Tr. 81, there is no 11 basis for that contention in the form or the report, Tr. 29. The Court finds that the 12 assessment of moderate limitations simply show that the medical professional 13 acknowledged Plaintiff’s capacity was impaired in those areas of functioning. Dr. 14 Harmon’s opinion regarding Plaintiff’s actual mental functional capacity is 15 reflected in the narrative sections of the report. The narrative report indicates Dr. 16 Harmon’s opinion that Plaintiff did not appear appropriate for SSI/SSDI 17 facilitation and would be able to return to work within six months with vocational 18 rehabilitation and continued abstinence from drugs and alcohol. Tr. 533. 19 It is the responsibility of the ALJ to determine credibility, resolve conflicts 20 in medical testimony and resolve ambiguities, Saelee v. Chater, 94 F.3d 520, 522 21 (9th Cir. 1996), and this Court may not substitute its own judgment for that of the 22 ALJ, 42 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings 23 24 5 The assessed limitations would thus not meet the duration requirements of 25 the Social Security Act (one year). See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) 26 (an individual shall be considered disabled if she has an impairment which can be 27 expected to result in death or which has lasted or can be expected to last for a 28 continuous period of not less than 12 months). ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 justifying a decision, and those findings are supported by substantial evidence in 2 the record, this Court’s role is not to second-guess that decision. Fair, 885 F.2d at 3 604. 4 Having reviewed the ALJ’s evaluation of the medical evidence, the Court 5 finds the ALJ’s interpretation was based on substantial evidence, and the ALJ 6 supported his findings with specific and legitimate reasoning. 7 CONCLUSION 8 Having reviewed the record and the ALJ’s findings, the Court finds the 9 10 11 12 ALJ’s decision is supported by substantial evidence and free of legal error. Accordingly, IT IS ORDERED: 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 13 2. 14 The District Court Executive is directed to file this Order and provide a copy 15 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 16 and the file shall be CLOSED. 17 DATED February 12, 2019. 18 19 20 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 18
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