Ogden v. Commissioner of Social Security, No. 2:2018cv00001 - Document 16 (E.D. Wash. 2019)
Court Description: ORDER DENYING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 13 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)
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Ogden v. Commissioner of Social Security Doc. 16 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 13, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 LAURIE JO O., NO: 2:18-CV-1-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 14 ECF Nos. 12, 13. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney Dana C. Madsen. Defendant is 16 represented by Special Assistant United States Attorney Alexis L. Toma. The Court, 17 having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 12, is 19 denied and Defendant’s Motion, ECF No. 13, is granted. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~1 Dockets.Justia.com 1 JURISDICTION Plaintiff Laurie Jo O. 1 (Plaintiff), filed for disability insurance benefits (DIB) 2 3 and supplemental security income on January 28, 2014, alleging an onset date of 4 March 15, 2013. Tr. 187-91, 195-98, 226. Benefits were denied initially, Tr. 127- 5 29, and upon reconsideration, Tr. 135-36. Plaintiff appeared at a hearing before an 6 administrative law judge (ALJ) on July 7, 2016. Tr. 56-100. On August 15, 2016, 7 the ALJ issued an unfavorable decision, Tr. 33-49, and on November 3, 2017, the 8 Appeals Council denied review. Tr. 1-5. The matter is now before this Court 9 pursuant to 42 U.S.C. § 405(g); 1383(c)(3). 10 BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts, 12 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 13 therefore only summarized here. 14 Plaintiff was born in 1960 and was 55 years old at the time of the hearing. Tr. 15 187, 195. She graduated from high school and has a bachelor’s degree in education. 16 Tr. 9, 67. She has work experience as a social worker, optometric assistant, property 17 manager, and energy assistance case aide. Tr. 67-74, 94. She testified she stopped 18 19 20 21 1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~2 1 working because she was unable to function due to anxiety and depression. Tr. 75. 2 She cannot drive because she cannot focus. Tr. 75. Her anxiety is overwhelming. 3 Tr. 75. She takes medications but they do not work. Tr. 75-76. She feels very 4 depressed and does not leave the house very often. Tr. 76. She has agoraphobia and 5 is afraid to be around a lot of people. Tr. 77. She does not sleep well so she 6 sometimes stays in bed all day. Tr. 81-82. She takes medications for her sleep issue 7 but it does not work well. Tr. 82. She gets migraines and has vertigo and acid 8 reflux. Tr. 88-90. 9 10 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 11 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 12 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 13 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 14 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 15 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 16 citation omitted). Stated differently, substantial evidence equates to “more than a 17 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 18 In determining whether the standard has been satisfied, a reviewing court must 19 consider the entire record as a whole rather than searching for supporting evidence in 20 isolation. Id. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~3 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 3 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 7 decision on account of an error that is harmless.” Id. An error is harmless “where it 8 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 9 (quotation and citation omitted). The party appealing the ALJ’s decision generally 10 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 11 396, 409-10 (2009). 12 FIVE-STEP EVALUATION PROCESS 13 A claimant must satisfy two conditions to be considered “disabled” within the 14 meaning of the Social Security Act. First, the claimant must be “unable to engage in 15 any substantial gainful activity by reason of any medically determinable physical or 16 mental impairment which can be expected to result in death or which has lasted or 17 can be expected to last for a continuous period of not less than twelve months.” 42 18 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must 19 be “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~4 1 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 2 423(d)(2)(A), 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to determine 4 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 5 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 6 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 7 engaged in “substantial gainful activity,” the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 12 claimant suffers from “any impairment or combination of impairments which 13 significantly limits [his or her] physical or mental ability to do basic work 14 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 15 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 16 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 17 §§ 404.1520(c), 416.920(c). 18 At step three, the Commissioner compares the claimant’s impairment to 19 severe impairments recognized by the Commissioner to be so severe as to preclude a 20 person from engaging in substantial gainful activity. 20 C.F.R. §§ 21 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~5 1 than one of the enumerated impairments, the Commissioner must find the claimant 2 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess the 5 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in the 12 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 13 claimant is capable of performing past relevant work, the Commissioner must find 14 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 15 claimant is incapable of performing such work, the analysis proceeds to step five. 16 At step five, the Commissioner should conclude whether, in view of the 17 claimant’s RFC, the claimant is capable of performing other work in the national 18 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this 19 determination, the Commissioner must also consider vocational factors such as the 20 claimant’s age, education and past work experience. 20 C.F.R. §§ 21 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~6 1 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 3 work, analysis concludes with a finding that the claimant is disabled and is therefore 4 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 8 capable of performing other work; and (2) such work “exists in significant numbers 9 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 10 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 ALJ’S FINDINGS 12 At step one, the ALJ found Plaintiff did not engage in substantial gainful 13 activity since March 15, 2013, the alleged onset date. Tr. 35. At step two, the ALJ 14 found that Plaintiff has the following severe impairments: anxiety and depression. 15 Tr. 36. At step three, the ALJ found that Plaintiff does not have an impairment or 16 combination of impairments that meets or medically equals the severity of a listed 17 impairment. Tr. 39-40. 18 The ALJ then found that Plaintiff has the residual functional capacity to 19 perform a full range of work at all exertional levels with the following nonexertional 20 limitations: 21 She is limited to unskilled and semi-skilled work; she is able to work in the presence of the public, but cannot be required to interact with ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~7 1 them; she needs a routine, predictable work environment that requires no more than simple decision-making; and she cannot perform at a production-rate pace. 2 3 Tr. 41. 4 At step four, the ALJ found that Plaintiff is unable to perform any past 5 relevant work. Tr. 47. After considering the testimony of a vocational expert and 6 Plaintiff’s age, education, work experience, and residual functional capacity, the 7 ALJ found there are other jobs that exist in significant numbers in the national 8 economy that Plaintiff could perform such as fish cleaner, dining room attendant, 9 laundry worker, and housekeeping cleaner. Tr. 47-48. Therefore, at step five, the 10 ALJ concluded that Plaintiff has not been under a disability, as defined in the Social 11 Security Act, from March 15, 2013, through the date of the decision. Tr. 48. 12 ISSUES 13 Plaintiff seeks judicial review of the Commissioner’s final decision denying 14 disability income benefits under Title II and supplemental security income under 15 Title XVI of the Social Security Act. ECF No. 12. Plaintiff raises the following 16 issues for review: 17 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 18 2. Whether the ALJ properly considered the medical opinion evidence. 19 ECF No. 12 at 9. 20 / / / 21 / / / ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~8 1 2 DISCUSSION A. Symptom Claims 3 Plaintiff contends the ALJ improperly rejected her symptom claims. ECF 4 No. 12 at 10-11. An ALJ engages in a two-step analysis to determine whether a 5 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 6 ALJ must determine whether there is objective medical evidence of an underlying 7 impairment which could reasonably be expected to produce the pain or other 8 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 9 “The claimant is not required to show that her impairment could reasonably be 10 expected to cause the severity of the symptom she has alleged; she need only show 11 that it could reasonably have caused some degree of the symptom.” Vasquez v. 12 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 13 Second, “[i]f the claimant meets the first test and there is no evidence of 14 malingering, the ALJ can only reject the claimant’s testimony about the severity of 15 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 16 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 17 citations and quotations omitted). “General findings are insufficient; rather, the 18 ALJ must identify what testimony is not credible and what evidence undermines 19 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 20 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he 21 ALJ must make a credibility determination with findings sufficiently specific to ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~9 1 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 2 testimony.”). “The clear and convincing [evidence] standard is the most 3 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 4 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 5 924 (9th Cir. 2002)). 6 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 7 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 8 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 9 daily living activities; (4) the claimant’s work record; and (5) testimony from 10 physicians or third parties concerning the nature, severity, and effect of the 11 claimant’s condition. Thomas, 278 F.3d at 958-59. 12 This Court finds that the ALJ provided specific, clear, and convincing 13 reasons for finding Plaintiff’s statements concerning the intensity, persistence, and 14 limiting effects of her symptoms not consistent with the medical and other 15 evidence in the record. Tr. 42. 16 First, the ALJ found there are significant gaps in Plaintiff’s treatment history 17 which undermine Plaintiff’s allegations regarding the severity of her symptoms, 18 and that Plaintiff’s treatment has been routine and conservative in nature. Tr. 43. 19 The ALJ is permitted to consider a claimant’s lack of treatment in evaluating her 20 symptom complaints. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 21 Additionally, the type, dosage, effectiveness and side effects of medication taken ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~10 1 to alleviate pain or other symptoms as well as the medical treatment received to 2 relieve pain or other symptoms are relevant factors in evaluating the intensity and 3 persistence of symptoms. 20 C.F.R. §§ 416.929(c)(3)(iv), 416.929(c)(3)(v) (2011). 4 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 5 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 6 750–51 (9th Cir. 2007). The ALJ observed that although Plaintiff testified she 7 had continuous medical coverage and access to care during the period at issue, Tr. 8 86, the record reflects significant gaps in Plaintiff’s treatment history. Tr. 43. The 9 record includes notes from six appointments with her treating provider in 2014 at 10 which depression and anxiety were discussed, but no other complaints of mental 11 health issues until one month before the hearing in June 2016. Tr. 43, 287, 290, 12 319, 322, 325, 338, 408. The ALJ also noted that Plaintiff’s treatment has been 13 routine and conservative, consisting of prescriptions for psychiatric medications on 14 only five occasions over the course of the record. Tr. 43, 287, 292, 326, 340, 409. 15 Plaintiff cites Nguyen v. Chater which provides that it may be inappropriate 16 to consider a claimant’s lack of mental health treatment in evaluating her symptom 17 complaints. ECF No. 12 at 10 (citing 100 F.3d 1462, 1465 (9th Cir. 1996)). 18 However, when there is no evidence suggesting a failure to seek treatment is 19 attributable to a mental impairment rather than personal preference, it is reasonable 20 for the ALJ to conclude that the level or frequency of treatment is inconsistent with 21 the level of complaints. Molina, 674 F.3d at 1113-14. Here, the ALJ noted ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~11 1 Plaintiff testified she did not seek mental health treatment from specialists because 2 she felt “uncomfortable” facing her problems in counseling. Tr. 43, 84-86. The 3 ALJ determined that Plaintiff’s reason for failing to seek mental health treatment is 4 unpersuasive and concluded her failure to seek significant treatment undermines 5 her allegations of disabling symptoms. Tr. 43. Thus, the ALJ properly considered 6 and made inferences from Plaintiff=s relatively mild treatment of symptoms and 7 lack of treatment, and this is a clear and convincing reason for giving less weight 8 to Plaintiff’s symptom claims. 9 Second, the ALJ found Plaintiff’s own reports to providers do not support 10 her disability allegations. Tr. 43. To be found disabled, a claimant must be 11 unable to engage in any substantial gainful activity due to an impairment which 12 “can be expected to result in death or which has lasted or can be expected to last 13 for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1509, 14 416.909; see also Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012). The ALJ 15 noted Plaintiff complained to her treating physician of psychological symptoms 16 regularly for six to eight months in 2014, but after 2014 psychological complaints 17 are recorded only sporadically. Tr. 43, 287-328, 338-401, 407-10. The ALJ 18 observed Plaintiff’s complaints are episodic, “and it is not even clear from her own 19 reports that her impairment has lasted twelve consecutive months.” Tr. 43. The 20 ALJ reasonably found that Plaintiff’s sporadic symptom complaints to her treating 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~12 1 provider undermine her allegations of disabling limitations. Tr. 43. This is a clear 2 and convincing reason supported by substantial evidence. 3 Third, the ALJ found Plaintiff’s statements to her providers varied from her 4 testimony at the hearing. Tr. 43-44. In evaluating a claimant’s symptom claims, 5 an ALJ may consider the consistency of an individual’s own statements made in 6 connection with the disability review process with any other existing statements or 7 conduct made under other circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 8 (9th Cir. 1996); Thomas, 278 F.3d at 958-59. The ALJ noted five examples of 9 inconsistencies between Plaintiff’s testimony and the record, Tr. 43-44, but 10 Plaintiff does not discuss the examples or address the ALJ’s reasoning. ECF No. 11 12 at 10-11. For example, Plaintiff testified she does not go out often due to 12 agoraphobia, Tr. 77, but she has never been diagnosed with agoraphobia and, in 13 fact, Dr. Arnold diagnosed her with panic disorder without agoraphobia. Tr. 43, 14 330. The Court concludes the examples cited by the ALJ are based on a 15 reasonable interpretation of the evidence and are supported by the record. This is a 16 clear and convincing reason supported by substantial evidence. 17 Fourth, the ALJ found Plaintiff’s work history undermines her allegations. 18 Tr. 43-44. The claimant’s work record is an appropriate consideration in weighing 19 the claimant’s symptom complaints. Thomas, 278 F.3d at 958-59; 20 C.F.R. §§ 20 404.1529(c)(3), 416.929(c)(3) (2011). The ALJ noted Plaintiff’s work history is 21 sporadic before the alleged onset date and concluded the allegation that her ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~13 1 unemployment is due to medical impairments is therefore questionable.2 Tr. 44, 2 213, 216-17. Similarly, the ALJ noted that Plaintiff testified she stopped working 3 because she was unable to get to work because her anxiety and depression 4 prevented her from driving, Tr. 74-75, but she did not complain of difficulty 5 driving to her treating physician during the period at issue. Tr. 44, 287-328, 338- 6 401, 407-10; see also Tr. 333 (counseling note indicates that “anxiety affects her 7 ability and desire to drive on her own where a distance is required”). 8 Without citing any authority or her earnings record, Plaintiff characterizes 9 her work history as “rather robust” but makes no argument regarding the ALJ’s 10 finding. ECF No. 12 at 11. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 11 F.3d 1155, 1161 n.2 (9th Cir. 2007) (declining to address issues not argued with 12 specificity). Although Plaintiff may characterize the evidence differently, the 13 ALJ’s finding is supported by the record. The existence of a legally supportable 14 alternative resolution of the evidence does not provide a sufficient basis for 15 reversing an ALJ’s decision that is supported by substantial evidence. Sprague v. 16 Bowen, 812 F.2d 1226, 1229 (9th Cir.1987). Thus, this is a clear and convincing 17 18 2 19 earnings sufficient to presumptively qualify as substantial gainful activity. Tr. 212; 20 see Monthly Substantial Gainful Activity Amounts By Disability Type chart, 21 available at https://www.ssa.gov/oact/cola/sga.html. Between 2004 and 2013, Plaintiff had only three years with average monthly ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~14 1 reason supported by substantial evidence for giving less weight to Plaintiff’s 2 symptom claims. 3 B. 4 Medical Opinion Evidence Plaintiff contends the ALJ failed to properly consider the opinions of 5 examining psychologist John Arnold, Ph.D., and treating physician, Charles Hough, 6 M.D. ECF No. 12 at 12-17. 7 There are three types of physicians: “(1) those who treat the claimant (treating 8 physicians); (2) those who examine but do not treat the claimant (examining 9 physicians); and (3) those who neither examine nor treat the claimant but who 10 review the claimant’s file (nonexamining or reviewing physicians).” Holohan v. 11 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). “Generally, 12 a treating physician’s opinion carries more weight than an examining physician’s, 13 and an examining physician’s opinion carries more weight than a reviewing 14 physician’s.” Id. “In addition, the regulations give more weight to opinions that are 15 explained than to those that are not, and to the opinions of specialists concerning 16 matters relating to their specialty over that of nonspecialists.” Id. (citations omitted). 17 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 18 reject it only by offering “clear and convincing reasons that are supported by 19 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 “However, the ALJ need not accept the opinion of any physician, including a 21 treating physician, if that opinion is brief, conclusory and inadequately supported by ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~15 1 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 2 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s 3 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 4 providing specific and legitimate reasons that are supported by substantial 5 evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). 6 1. John Arnold, Ph.D. 7 In May 2015, Dr. Arnold completed a DSHS Psychological/Psychiatric 8 Evaluation form. Tr. 329-32. He diagnosed persistent depressive disorder and panic 9 disorder without agoraphobia. Tr. 330. Dr. Arnold opined that Plaintiff could 10 understand, remember and persist in tasks by following short and simple 11 instructions, but assessed moderate limitations in seven functional areas and marked 12 limitations in five functional areas: the ability to perform activities within a 13 schedule, maintain regular attendance, and be punctual within customary tolerances; 14 the ability to adapt to changes in a routine work setting; the ability to be aware of 15 normal hazards and take appropriate precautions; the ability to maintain appropriate 16 behavior in a work setting; and the ability to complete a normal work day and work 17 week without interruptions from psychologically based symptoms. Tr. 331. 18 The ALJ gave significant weight to Dr. Arnold’s opinion that Plaintiff can 19 follow very short and simple instructions because it is mostly consistent with the 20 record showing no problems in that area. Tr. 45. However, the ALJ gave little 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~16 1 weight to the remainder of Dr. Arnold’s opinion regarding Plaintiff’s limitations. 2 Tr. 45-46. 3 Because Dr. Arnold’s opinion was contradicted by the opinion of the medical 4 expert, Nancy Winfrey, Ph.D., Tr. 59-66, the ALJ was required to provide specific 5 and legitimate reasons for rejecting Dr. Arnold’s opinion. Bayliss, 427 F.3d at 1216. 6 First, the ALJ found Dr. Arnold’s opinion is not supported by or consistent 7 with the longitudinal record. Tr. 45. An ALJ may discredit a treating physician’s 8 opinion which is unsupported by the record as a whole or by objective medical 9 findings. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 10 2004). The ALJ observed, for example, that Dr. Arnold’s assessment of a marked 11 limitation in the ability to be aware of hazards and take appropriate precautions is 12 not supported by any treatment notes. Tr. 45. The ALJ noted that the records of 13 treating physician Dr. Hough indicate no difficulty in this area and no treatment for 14 any issues resulting from a lapse in awareness or precautions regarding hazards. 15 Tr. 45, 287-328, 338-401, 407-10. Plaintiff contends this finding “lacks any 16 rational basis because treatment records do not span a time during which [Plaintiff] 17 was working and therefore exposed to workplace hazards that would result in 18 treatment.” ECF No. 12 at 13. However, the marked limitation assessed by Dr. 19 Arnold involves “normal hazards,” not necessarily workplace hazards. Tr. 331. 20 21 More importantly, as noted by Defendant, the ALJ’s point is that Dr. Hough never expressed concern about Plaintiff’s ability to take precautions or avoid ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~17 1 hazards. ECF No. 13 at 12. Therefore, it reasonably follows that there is no basis 2 for a marked limitation in that area. Without citing any authority, Plaintiff asserts 3 that Dr. Arnold’s finding that her memory was not within normal limits during the 4 mental status exam “bears a more logical relationship to an accurate measurement 5 of her ability in this regard.” ECF No. 12 at 13. Plaintiff’s argument fails because 6 it is speculative and without basis in the record. 7 Another example noted by the ALJ is that the marked limitation assessed by 8 Dr. Arnold regarding the ability to adapt to changes in routine is contradicted by 9 numerous personal changes Plaintiff underwent over the course of the record, 10 including meeting and becoming engaged to her fiancé and her testimony that her 11 son lived with her for a time. Tr. 45-46, 77-78, 83, 335, 408. Plaintiff contends 12 these changes in her personal routine have “little to do with her ability to adapt to 13 changes in a competitive work environment,” and observed that the medical expert 14 opined that Plaintiff should not have a high-stress or time-pressured job. ECF No. 15 12 at 14 (citing Tr. 45, 64). However, a marked limitation in the ability to adapt to 16 changes in routine, as defined on the DSHS form completed by Dr. Arnold, means 17 a “very significant limitation” in the ability adapt to changes. Tr. 331. The ALJ 18 reasonably concluded this is at odds with various events indicating Plaintiff can 19 adapt to changes in her personal life. 20 Furthermore, to the extent she is not able to adapt to change, the ALJ 21 credited Dr. Winfrey’s opinion and limited the RFC finding to routine, predictable ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~18 1 work environment that requires no more than simple decision-making, and no 2 production-rate pace work. Tr. 41, 64. Thus, the ALJ did not find Plaintiff has no 3 limitation in this area, but reasonably determined that the marked limitation 4 assessed by Dr. Arnold is excessive. 5 Second, the ALJ found Dr. Arnold’s opinion is inconsistent with his own 6 exam findings. Tr. 46. A discrepancy between a provider’s clinical notes and 7 observations and the provider’s functional assessment is a sufficient reason for not 8 relying on the doctor’s opinion. Bayliss, 427 F.3d at 1216. The ALJ observed that 9 although Dr. Arnold opined Plaintiff has a marked limitation in maintaining 10 appropriate behavior, he found Plaintiff to be cooperative with normal thought 11 processes and content, normal orientation and perception, normal ability for 12 abstract thought, and with fair insight and judgment. 3 Tr. 46, 331-32. The ALJ 13 14 15 16 17 18 19 20 21 3 Plaintiff notes the ALJ stated the mental status exam findings indicated a normal fund of knowledge, when in fact the box for that finding is checked to indicate the finding was not within normal limits. ECF No. 12 at 14; Tr. 46, 332. Notwithstanding, the minimal notes for the fund of knowledge category indicate no apparent abnormalities since “News: Mariners doing OK” and “Border states: ID/Ore” were appropriate responses. Tr. 332. To the extent the ALJ misstated Dr. Arnold’s conclusion on this issue, any error is harmless. Harmless error occurs when an error is inconsequential to the ultimate nondisability determination. See ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~19 1 also noted that Dr. Arnold assessed a GAF score of 57 indicating moderate 2 impairment, 4 but indicated Plaintiff does not need a protective payee, suggesting 3 that she can manage her own money. Tr. 46, 331. Dr. Arnold assessed Plaintiff as 4 markedly or moderately limited in every functional category but one, yet 5 recommended Plaintiff participate in vocational rehabilitation services, suggesting 6 the ability to work is not foreclosed. Tr. 46, 331. The ALJ reasonably concluded 7 these internal inconsistencies undermine Dr. Arnold’s findings. 8 9 Plaintiff argues the ALJ should not have evaluated the GAF score assessed by Dr. Arnold because elsewhere in the decision, the ALJ explained that GAF scores 10 11 12 13 14 15 16 17 18 19 20 21 Carmickle, 533 F.3d at 1162; Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Batson, 359 F.3d at 1195-97. It is also noted that the ALJ omitted from the litany of normal mental status exam findings that Plaintiff’s concentration was within normal limits. Tr. 332. 4 Clinicians use a GAF to rate the psychological, social, and occupational functioning of a patient. The scale does not evaluate impairments caused by psychological or environmental factors. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 598 (9th Cir. 1999). A GAF score of 51-60 indicates moderate symptoms or any moderate impairment in social, occupational or school functioning. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, at 32 (Am. Psychiatric Ass’n 4th ed.) (1994). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~20 1 are unreliable indicators of disability. ECF No. 12 at 15 (citing Tr. 45). Plaintiff 2 misses the point. The issue is that Dr. Arnold’s assessments of Plaintiff’s ability are 3 inconsistent, as evidenced in part by the contrast between the assessment of a lower 4 GAF score alongside statements of greater abilities. This inconsistency undermines 5 the reliability of Dr. Arnold’s opinion overall, regardless of whether the GAF score 6 is valid. Plaintiff further argues the DSHS form “required” the assessment of a GAF 7 score, even though GAF scores are not indicators of disability or current protocol 8 under the DSM-V. 5 This argument is unpersuasive, as Dr. Arnold left the box 9 asking for the “Basis for GIF rating” blank, opting not to explain the basis for his 10 assessment even though it was also “required” by the form. Tr. 331. Additionally, 11 even if assessing a GAF score was “required,” the inconsistency between the GAF 12 score and other abilities mentioned in Dr. Arnold’s assessment remains. 13 Third, the ALJ found Dr. Arnold relied heavily on Plaintiff’s subjective 14 reports. Tr. 46. A physician’s opinion may be rejected if it is based on a claimant’s 15 16 5 17 disability. AThe GAF scale . . . does not have a direct correlation to the severity 18 requirements in our mental disorder listing.@ 65 Fed. Reg. 50746-01, 50765 19 (August 21, 2000). Moreover, the GAF scale is no longer included in the DSM–V. 20 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (Am. Psychiatric 21 Ass’n 5th ed.) (2013). The Commissioner has explicitly disavowed use of GAF scores as indicators of ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~21 1 subjective complaints which were properly discounted. Tonapetyan v. Halter, 242 2 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 3 595, 599 (9th Cir. 1999); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 4 However, when an opinion is not more heavily based on a patient’s self-reports than 5 on clinical observations, there is no evidentiary basis for rejecting the opinion. 6 Ghanim, 763 F.3d at 1162; Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199-1200 7 (9th Cir. 2008). The ALJ noted Dr. Arnold did not have the opportunity to review 8 any treatment notes before issuing his check-box opinion based on a single 9 examination. Tr. 46. An ALJ may permissibly reject check-box reports that do not 10 contain any explanation of the bases for their conclusions. Crane v. Shalala, 76 F.3d 11 251, 253 (9th Cir. 1996). Plaintiff contends the ALJ “does not consider” Dr. 12 Arnold’s observations, testing and findings, ECF No. 12 at 16, but as discussed 13 supra, the ALJ reasonably determined the level of limitations assessed by Dr. 14 Arnold are not supported by or are inconsistent with his observations and findings. 15 Fourth, the ALJ noted the medical expert, Dr. Winfrey, opined that the 16 limitations assessed by Dr. Arnold are disproportionate to the contents of his report. 17 Tr. 46. The opinion of an examining or treating physician may be rejected based in 18 part on the testimony of a non-examining medical advisor when other reasons to 19 reject the opinions of examining and treating physicians exist independent of the 20 non-examining doctor=s opinion. Lester, 81 F.3d at 831 (citing Magallanes v. 21 Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989)); Roberts v. Shalala, 66 F.3d 179 (9th ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~22 1 Cir. 1995) (affirming rejection of examining psychologist’s functional assessment 2 which conflicted with his own written report and test results). The opinion of a 3 nonexamining physician may serve as substantial evidence if it is supported by other 4 evidence in the record and is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 5 1041 (9th Cir. 1995). Dr. Winfrey testified that she relied on the description and 6 interview information recorded by Dr. Arnold, but that she found his ratings 7 disproportionate or incongruent with Plaintiff’s actual functioning. Tr. 65-66. Dr. 8 Winfrey cited other evidence in the record supporting her opinion, Tr. 59-63, and the 9 ALJ gave other specific, legitimate reasons supported by substantial evidence for 10 rejecting most of the limitations assessed by Dr. Arnold. Thus, this is an 11 appropriate basis for giving little weight to Dr. Arnold’s opinion. 12 2. Charles Hough, M.D. 13 Plaintiff contends the ALJ improperly rejected the opinion of Dr. Hough, a 14 15 treating physician. ECF No. 12 at 16-17. Dr. Hough prepared an undated letter indicating he had reviewed Dr. Arnold’s 16 opinion and agreed with his assessment. Tr. 405. Dr. Hough opined, “I do not 17 believe [Plaintiff] is capable of gainful employment due to her mental illness.” Tr. 18 405. He indicated anxiety and depression cause difficulty with concentration, 19 learning new tasks, adaptability, and following through with commands. Tr. 405. 20 The ALJ gave little weight to Dr. Hough’s opinion. Tr. 46. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~23 1 Because Dr. Hough’s opinion was contradicted by the opinion of the medical 2 expert, Nancy Winfrey, Ph.D., Tr. 59-66, the ALJ was required to provide specific 3 and legitimate reasons for rejecting Dr. Hough’s opinion. Bayliss, 427 F.3d at 1216. 4 First, the ALJ found Dr. Hough’s opinion is not consistent with or supported 5 by the longitudinal evidence of record, including Dr. Hough’s own treatment notes. 6 Tr. 46. The consistency of a medical opinion with the record as a whole is a relevant 7 factor in evaluating a medical opinion. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 8 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A physician’s 9 opinion may also be rejected if it is unsupported by treatment notes. See Connett v. 10 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). For example, the ALJ noted Dr. 11 Hough agreed with the marked limitation assessed by Dr. Arnold regarding 12 Plaintiff’s ability to behave appropriately in a work setting, but Dr. Hough’s 13 treatment notes do not indicate any social functioning symptoms which would 14 support a marked limitation. Tr. 46, 287-328, 338-401, 407-10. Plaintiff faults the 15 ALJ for making “vague references” to Dr. Hough’s records, but the ALJ cannot cite 16 a nonexistent record, and Plaintiff identifies no records contradicting the ALJ’s 17 conclusion or supporting the opinions of Dr. Hough and Dr. Arnold. Plaintiff also 18 contends the ALJ “does not explain the finding of inconsistency with the record in 19 general,” ECF No. 12 at 16. Dr. Hough adopted Dr. Arnold’s opinion, so the ALJ’s 20 legally sufficient explanation for rejecting Dr. Arnold’s applies equally to Dr. 21 Hough’s opinion. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~24 1 Second, the ALJ found Dr. Hough’s opinion is conclusory, contains very 2 little explanation, and is undated. Tr. 46. A medical opinion may be rejected by 3 the ALJ if it is conclusory, contains inconsistencies, or is inadequately supported. 4 Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. The quality of the explanation 5 provided in the opinion is a relevant factor in evaluating a medical opinion. 6 Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. The ALJ’s characterization 7 of Dr. Hough’s opinion as conclusory is reasonable. Plaintiff does not address or 8 contest this reason and any argument is therefore waived. Bray, 554 F.3d at 1226 9 n.7 (noting an argument not made in the opening brief is deemed waived). This is 10 11 a specific, legitimate reason supported by substantial evidence. The ALJ also noted that Dr. Hough’s recommended that Plaintiff obtain a 12 mental health consultation and that Plaintiff failed to pursue mental health 13 treatment. Tr. 46; see also ECF No. 12 at 17; ECF No. 13 at 15. As discussed 14 supra, an ALJ may discredit a claimant’s symptom complaints if the claimant fails 15 to show good reason for failing to follow treatment recommendations. Smolen, 80 16 F.3d at 1284. However, the fact that a claimant fails to pursue treatment is not 17 directly relevant to the weight of a medical provider’s opinion. See 20 C.F.R. §§ 18 404.1527(c), 416.927(c) (2012). Nonetheless, the ALJ cited specific, legitimate 19 reasons supported by substantial evidence for giving little weight to Dr. Hough’s 20 opinion. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~25 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, this Court concludes the 3 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 4 Accordingly, 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 7 8 9 10 11 GRANTED. IT IS SO ORDERED. The District Court Clerk is directed to enter this Order and provide copies to counsel. Judgment shall be entered for Defendant and the file shall be CLOSED. DATED March 13, 2019. 12 13 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~26
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