Morris v. Commissioner of Social Security, No. 2:2018cv00029 - Document 18 (E.D. Wash. 2019)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF No. 16 and denying ECF No. 15 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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Morris v. Commissioner of Social Security Doc. 18 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON Jan 04, 2019 SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 11 12 JOHN M., No. 2:18-CV-0029-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 No. 15, 16. Attorney Christopher H. Dellert represents John M. (Plaintiff); Special 16 Assistant United States Attorney Sarah Moum represents the Commissioner of 17 Social Security (Defendant). The parties have consented to proceed before a 18 magistrate judge. ECF No. 6. After reviewing the administrative record and briefs 19 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 20 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 21 JURISDICTION 22 In July 2015, Plaintiff filed an application for a period of disability and 23 Disability Insurance Benefits, Tr. 218-224, and an application for Supplemental 24 Security Income benefits, Tr. 225-229. Plaintiff alleged a disability onset date of 25 December 16, 2014, Tr. 246, due to Anxiety Disorder, Diabetes, Thyroid Disorder, 26 High Blood Pressure, High Cholesterol, Back Problem, Knee Problem, Learning 27 Disability, and Stomach Problems, Tr. 250. Plaintiff’s applications were denied 28 initially and upon reconsideration. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Administrative Law Judge (ALJ) Jesse K. Shumway held a hearing on 2 October 25, 2016, Tr. 37-73, and issued an unfavorable decision on December 20, 3 2016, Tr. 18-31. The Appeals Council denied review on December 27, 2017. Tr. 4 1-6. The ALJ’s December 2016 decision thus became the final decision of the 5 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 6 405(g). Plaintiff filed this action for judicial review on January 24, 2018. ECF 7 No. 1, 4. STATEMENT OF FACTS 8 The facts of the case are set forth in the administrative hearing transcript, the 9 10 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 11 here. 12 Plaintiff was born on July 8, 1973, and was 41 years old on the alleged 13 disability onset date, December 16, 2014. Tr. 218. He completed high school in 14 1992. Tr. 251. 15 Plaintiff’s disability report indicates he stopped working because of his 16 conditions on December 15, 2014. Tr. 250-251. At the administrative hearing, 17 Plaintiff testified the main issues keeping him from being able to work are 18 back/side pain, mental anguish, and an inability to be around people. Tr. 58. 19 However, Plaintiff testified he worked full-time for four and a half weeks in 20 September 2015 and additionally applied for and received unemployment benefits 21 for three months during the relevant time period. Tr. 55-57. 22 Plaintiff stated he is not able to sit or stand for long periods of time and 23 could walk less than a block before needing to stop and rest. Tr. 59. He indicated 24 he has numbness and a feeling of “pins and needles” in his feet and stated it feels 25 like his feet are going to break every time he takes a step. Tr. 59. Plaintiff testified 26 he also has problems grasping and holding with his hands. Tr. 59. He indicated he 27 has constant numbness in his hands and shooting pain from the tips of his fingers 28 to his shoulders. Tr. 60. He further stated he avoided going out in public, had ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 difficulty with concentration, and had digestive issues which caused him to 2 frequently use the bathroom. Tr. 61-62. Plaintiff testified his wife helped him 3 dress nearly every day and helped him bathe. Tr. 61. 4 With respect to Plaintiff’s mental health, Marian F. Martin, Ph.D., testified 5 as a medical expert at the administrative hearing. Tr. 44-55. Dr. Martin noted 6 there were various diagnoses of depression throughout the record and Plaintiff had 7 been prescribed antidepressant medications. Tr. 44-45. Dr. Martin indicated there 8 were also reports diagnosing a generalized anxiety disorder and PTSD by history 9 and evidencing symptoms consistent with PTSD. Tr. 46. However, Dr. Martin 10 stated that because several of the records (at least three evaluators) suggested 11 Plaintiff was either overreporting or exaggerating symptoms and/or not putting 12 forth a reasonable effort on the exams, it was not possible to establish any 13 psychological diagnosis as a medically determinable impairment. Tr. 49. Dr. 14 Martin indicated that while there were mental health diagnoses in the record, the 15 providers were relying on Plaintiff’s self-reported symptoms, and Plaintiff’s self- 16 report was not credible. Tr. 49-50, 53-54. Nevertheless, assuming for the sake of 17 argument that there was a valid underlying medically determinable mental 18 impairment, Dr. Martin would limit Plaintiff to simple, routine, repetitive tasks (no 19 detailed or complex instructions); no high-pressure or fast paced (i.e. production 20 line) work; and minimal contact with the public. Tr. 54-55. 21 22 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 25 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 26 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 27 only if it is not supported by substantial evidence or if it is based on legal error. 28 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 defined as being more than a mere scintilla, but less than a preponderance. Id. at 2 1098. Put another way, substantial evidence is such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion. Richardson v. 4 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 5 rational interpretation, the Court may not substitute its judgment for that of the 6 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 7 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 8 administrative findings, or if conflicting evidence supports a finding of either 9 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 10 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 11 supported by substantial evidence will be set aside if the proper legal standards 12 were not applied in weighing the evidence and making the decision. Brawner v. 13 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 14 The Commissioner has established a five-step sequential evaluation process 15 16 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 17 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 18 four, the burden of proof rests upon the claimant to establish a prima facie case of 19 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 20 met once a claimant establishes that a physical or mental impairment prevents the 21 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 22 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 23 to step five, and the burden shifts to the Commissioner to show that the claimant 24 can perform other jobs present in significant numbers in the national economy. 25 Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). 26 If a claimant cannot make an adjustment to other work in the national economy, a 27 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 2 3 4 5 6 ADMINISTRATIVE DECISION On December 20, 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 activity since the alleged onset date, December 16, 2014. Tr. 20. At step two, the ALJ determined Plaintiff had the following severe 7 impairment: diabetes with peripheral neuropathy, fibromyalgia, and gastroparesis. 8 Tr. 21. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that meets or medically equals the severity of one of 11 the listed impairments. Tr. 23. 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 13 determined he could perform light exertion level work with the following 14 limitations: he can stand and/or walk four hours total in an eight-hour workday; he 15 needs ready access to a restroom throughout the workday; he is limited to frequent 16 handling, fingering, and feeling; he cannot climb ladders, ropes, or scaffolds and 17 can perform all other postural activities occasionally; he can have occasional 18 exposure to wetness and extreme cold and heat and can never have exposure to 19 vibration or hazards, such as unprotected heights and moving mechanical parts. 20 Tr. 24. 21 22 23 At step four, the ALJ determined Plaintiff was not able to perform his past relevant work. Tr. 28. At step five, the ALJ determined that, considering Plaintiff’s age, education, 24 work experience and RFC and based on the testimony of the vocational expert, 25 Plaintiff could perform other jobs present in significant numbers in the national 26 economy, including the light exertion level jobs of production assembler, 27 electronics worker, and cannery worker. Tr. 29-30. The ALJ alternatively found, 28 considering Plaintiff’s age, education, work experience and based on the testimony ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 of the vocational expert, that if Plaintiff was limited to sedentary work, with the 2 same non-exertional limitations noted in the RFC, as well as the addition of mental 3 limitations, including being limited to simple, routine and repetitive tasks with a 4 reasoning level of two or less, only occasional superficial contact with the public, 5 and no work at an assembly line pace, he would still be capable of performing jobs 6 that exist in significant numbers in the national economy, such as produce sorter, 7 order clerk, food and beverage, and bench hand. Tr. 30, 54-55. The ALJ thus 8 concluded Plaintiff was not under a disability within the meaning of the Social 9 Security Act at any time from December 16, 2014, through the date of the ALJ’s 10 decision, December 20, 2016. Tr. 30-31. ISSUES 11 The question presented is whether substantial evidence supports the ALJ’s 12 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff contends the ALJ erred (1) in his consideration of Plaintiff’s 15 mental impairments at step two and beyond; and (2) in his consideration of 16 Plaintiff’s subjective allegations. ECF No. 15 at 2, 3. DISCUSSION1 17 18 19 20 A. Plaintiff’s Symptom Testimony Plaintiff challenges the ALJ’s finding regarding Plaintiff’s subjective allegations. ECF No. 15 at 9-14. 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 . . . - 6 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.” Lester v. Chater, 81 F.3d 821, 6 834 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must 7 identify what testimony is not credible and what evidence undermines the 8 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 9 918 (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 those 13 symptoms were not entirely consistent with the medical and other evidence of 14 record. Tr. 25. 15 As determined by the ALJ, the record reflects clear indications of 16 malingering and symptom exaggeration by Plaintiff. Tr. 21-23. An ALJ’s finding 17 of malingering is sufficient to support an adverse credibility determination under 18 Ninth Circuit jurisprudence. See Benton v. Barnhart, 331 F.3d 1030, 1040 (9th 19 Cir. 2003); see also LaGrand v. Commissioner Social Sec. Admin., 379 Fed. Appx. 20 555, 556 (9th Cir. 2010) (citing Benton for the proposition that “[t]he ALJ was 21 entitled to reject LaGrand’s testimony because there was evidence of 22 malingering”); Flores v. Commissioner of Social Security, 237 Fed. Appx. 251, 23 252-253 (9th Cir. 2007) (citing Benton for the proposition that “an ALJ may reject 24 a claimant’s subjective pain testimony if the record contains affirmative evidence 25 of malingering”); Robinson v. Astrue, 2011 WL 1261187 at *11 (D. Or. 2011) 26 (holding that evidence of malingering, by itself, is enough to discredit a claimant). 27 In July 2015, John Arnold, Ph.D., indicated Plaintiff exhibited questionable 28 effort on exam and assessed various rule out diagnoses, including malingering. Tr. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 21, 432. In September 2015, consultative examiner, Catherine MacLennan, Ph.D., 2 noted Plaintiff’s mini mental status exam was “consistent with either intentionally 3 poor performance or malingering.” Tr. 21, 439. Dr. MacLennan indicated 4 Plaintiff endorsed an unusually high number of problems, suggesting probable 5 exaggeration; was overly dramatic in his presentation; and did not appear credible. 6 Tr. 21, 440-441. In December 2015, Kathryn Olson, MS, MHP, noted Plaintiff 7 reported he was receiving mental health treatment because it was required by 8 DSHS in order to continue to receive monetary support in the interim of his 9 disability application. Tr. 22, 631. It was noted Plaintiff paid more attention to the 10 response to his responses than he did to the questions posed, indicative of 11 secondary gain associated with his ongoing disability application. Tr. 22, 632. 12 The ALJ appropriately considered Plaintiff’s symptom exaggeration, 13 malingering and secondary gain motivation in discounting Plaintiff’s subjective 14 complaints. 15 The ALJ also indicated Plaintiff’s alleged disabling physical symptoms were 16 rebutted by the medical evidence of record. Tr. 24. A lack of supporting objective 17 medical evidence is a factor which may be considered in evaluating an individual’s 18 credibility, provided it is not the sole factor. Bunnell v. Sullivan, 347 F.2d 341, 19 345 (9th Cir. 1991) (Once a claimant produces objective medical evidence of an 20 underlying impairment, an adjudicator may not reject the claimant’s subjective 21 complaints based solely on a lack of objective medical evidence to fully 22 corroborate the alleged severity of pain.); Robbins v. Soc. Sec. Admin., 466 F3d 23 880, 883 (9th Cir. 2006) (An ALJ may not make a negative credibility finding 24 “solely because” the claimant’s symptom testimony “is not substantiated 25 affirmatively by objective medical evidence.”). 26 Plaintiff testified he is not able to sit or stand for long periods of time and 27 could walk less than a block before needing to stop and rest, Tr. 59; he has 28 neuropathy in his hands, arms and feet and stated it feels like his feet are going to ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 break every time he steps, Tr. 59-60, he had digestive issues which caused him to 2 frequently use the bathroom, Tr. 61-62, and he needed his wife’s help with bathing 3 and dressing, Tr. 61. Tr. 24. However, treatment notes throughout the relevant 4 time period consistently indicate that Plaintiff was in no distress, Tr. 378, 384, 396, 5 445, 464, 509, 516, 705, 714, had either normal muscle strength or that his muscle 6 strength was four and a half out of five, Tr. 516, 705, 721, had normal reflexes and 7 normal range of motion, Tr. 378, 394, 705, and had normal coordination and gait, 8 Tr. 472, 673, 705. Tr. 25-28. Further inconsistent with Plaintiff’s alleged 9 disabling physical symptoms, state agency medical consultant Mark Magdaleno, 10 M.D., opined Plaintiff could perform medium exertion level work with some 11 postural and environmental limitations, Tr. 120-121, and treating source Shellie 12 Rabidou, PA-C, found Plaintiff capable of performing sedentary work, Tr. 409. 13 14 15 The objective medical evidence demonstrates Plaintiff was not as physically limited as he alleged. The ALJ also held that Plaintiff’s reported activities of daily living showed 16 greater functional abilities than as alleged by Plaintiff. Tr. 24-25. It is well- 17 established that the nature of daily activities may be considered when evaluating 18 credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ noted 19 Plaintiff reported he was able to do his own self-care, managed his medications 20 without assistance and took them as prescribed, tried to participate in regular 21 household chores, could make himself meals, and played video games. Tr. 25. 22 While one does not need to be “utterly incapacitated” to be disabled, Fair, 885 23 F.2d at 603, it was proper for the ALJ to find Plaintiff’s reported activities were 24 inconsistent with his allegations of totally disabling symptoms and thus detracted 25 from his overall credibility. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 26 2012) (“Even where [a claimant’s daily] activities suggest some difficulty 27 functioning, they may be grounds for discrediting the claimant’s testimony to the 28 extent that they contradict claims of a totally debilitating impairment.”). ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 The ALJ additionally mentioned Plaintiff’s work activity after the alleged 2 onset date. The ability to perform work can be considered in assessing credibility. 3 Bray v. Comm’r Social Security Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) 4 (finding the ALJ properly discounted a claimant’s testimony because she recently 5 worked as a personal caregiver for two years and had since sought out other 6 employment). As indicated above, Plaintiff testified at the administrative hearing 7 that he had worked full-time for four and a half weeks in September 2015. Tr. 55- 8 56. The ALJ properly considered Plaintiff’s work activity after the alleged onset 9 date in assessing Plaintiff’s credibility. 10 The ALJ also noted Plaintiff received unemployment compensation benefits 11 subsequent to the alleged disability onset date. Tr. 25. A disability claimant’s 12 acceptance of unemployment benefits can constitute a valid reason in support of an 13 ALJ’s adverse credibility determination. Copeland v. Bowen, 861 F.2d 536, 542 14 (9th Cir. 1988) (upholding ALJ’s rejection of a claimant’s credibility where the 15 claimant had accepted unemployment insurance benefits “apparently considering 16 himself capable of work and holding himself out as available for work”); see also 17 Hasso v. Colvin, 617 Fed. Appx. 780, 781 (9th Cir. 2015) (upholding adverse 18 credibility determination based in part on the claimant’s “receipt of unemployment 19 benefits”). Here, Plaintiff filed for and received unemployment benefits after he 20 had stopped working, acknowledging at that time that he was ready, willing and 21 able to work. Tr. 57-58; see Wash. Rev. Code § 50.20.010(c)(ii) (indicating “an 22 individual must be ready, able, and willing, immediately to accept any suitable 23 work which may be offered to him or her and must be actively seeking work”). 24 Accordingly, Plaintiff’s acceptance of unemployment benefits while 25 simultaneously seeking Social Security benefits was a proper basis to discount 26 Plaintiff’s credibility. 27 28 The ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 3 determining whether the ALJ’s decision is supported by substantial evidence and 4 may not substitute its own judgment for that of the ALJ even if it might justifiably 5 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 6 reviewing the record, the Court finds that the ALJ provided clear and convincing 7 reasons, which are fully supported by the record, for discounting Plaintiff’s 8 subjective complaints. Accordingly, the ALJ did not err by finding Plaintiff’s 9 symptom allegations were not entirely credible in this case. 10 11 B. Step Two Plaintiff’s brief contends the ALJ erred at step two of the sequential 12 evaluation process by failing to find Plaintiff had a severe mental impairment. 13 ECF No. 15 at 3-8. 14 Plaintiff has the burden of proving he has a severe impairment at step two of 15 the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.912. 16 In order to meet this burden, Plaintiff must furnish medical and other evidence to 17 show his impairment is severe. 20 C.F.R. § 416.912(a). The regulations provide 18 that an impairment is severe if it significantly limits a claimant’s ability to perform 19 basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). “Basic work 20 activities” are defined as the abilities and aptitudes necessary to do most jobs. 20 21 C.F.R. §§ 404.1522(b), 416.922(b). 22 Step two is “a de minimis screening device [used] to dispose of groundless 23 claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an ALJ may 24 find that a claimant lacks a medically severe impairment or combination of 25 impairments only when this conclusion is “clearly established by medical 26 evidence.” S.S.R. 85-28; see Webb v. Barnhart, 433 F.3d 683, 686-687 (9th Cir. 27 2005). Applying the normal standard of review to the requirements of step two, 28 the Court must determine whether the ALJ had substantial evidence to find that the ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 medical evidence clearly established that Plaintiff did not have a severe 2 impairment. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the 3 deference usually accorded to the Secretary’s application of regulations, numerous 4 appellate courts have imposed a narrow construction upon the severity regulation 5 applied here.”); Webb, 433 F.3d at 687. 6 In this case, the ALJ concluded Plaintiff had the severe impairments of 7 diabetes with peripheral neuropathy, fibromyalgia, and gastroparesis. Tr. 21. 8 However, the ALJ specifically found that despite diagnoses throughout the record 9 of major depressive disorder, generalized anxiety disorder, posttraumatic stress 10 disorder, borderline intellectual functioning and somatic symptoms disorder, 11 Plaintiff did not have a severe mental impairment. Tr. 21. 12 Although Plaintiff ultimately bears the burden of establishing his disability, 13 see Bowen, 482 U.S. at 146, the ALJ has an affirmative duty to supplement 14 Plaintiff’s medical record, to the extent it is incomplete, before rejecting his claim 15 of a severe mental impairment. See 20 C.F.R. § 404.1512; S.S.R. 96-5p. “In 16 Social Security cases the ALJ has a special duty to fully and fairly develop the 17 record and to assure that the claimant’s interests are considered.” Brown v. 18 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). The ALJ’s duty to supplement 19 Plaintiff’s record is triggered by ambiguous evidence, the ALJ’s own finding that 20 the record is inadequate or the ALJ’s reliance on an expert’s conclusion that the 21 evidence is ambiguous. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 22 2001). 23 Here, Dr. Martin testified as a medical expert at the administrative hearing 24 with respect to Plaintiff’s mental health, and noted there were various diagnoses of 25 mental impairments throughout the record and Plaintiff had been prescribed 26 antidepressant medications. Tr. 44-46. However, Dr. Martin stated that because 27 some of those reports suggested Plaintiff was either overreporting or exaggerating 28 symptoms and/or not putting forth a reasonable effort on the exams, it was not ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 possible to establish any psychological diagnosis as a medically determinable 2 impairment. Tr. 49. 3 After a careful review of the testimony of the medical expert and the record 4 as a whole, the Court finds the medical evidence pertaining to Plaintiff’s mental 5 condition was sufficiently ambiguous to trigger the ALJ’s duty to fully and fairly 6 develop the record. Moreover, the Court finds a review of the available medical 7 records demonstrates Plaintiff had mental issues sufficient to pass the de minimis 8 threshold of step two of the sequential evaluation process. See Smolen, 80 F.3d at 9 1290. The weight of the record evidence shows that Plaintiff’s claim of a severe 10 mental impairment was not “groundless.” Smolen, 80 F.3d at 1290; Webb, 433 11 F.3d at 688. The Court thus agrees with Plaintiff that the ALJ erred at step two of 12 the sequential evaluation process. 13 Nevertheless, perhaps realizing that Plaintiff’s allegations of mental 14 limitations were not entirely without merit, the ALJ asked the medical expert to 15 assume a valid underlying medically determinable mental impairment existed. Tr. 16 54. Given this assumption, Dr. Martin limited Plaintiff to simple, routine, 17 repetitive tasks (no detailed or complex instructions); no high-pressure or fast 18 paced (i.e. production line) work; and minimal contact with the public. Tr. 54-55. 19 The ALJ then asked a vocational expert a hypothetical that included Dr. Martin’s 20 mental restrictions based on assumed specific medically determinable mental 21 impairments, and the vocational expert opined work existed in significant numbers 22 in the national economy that such an individual could perform. Tr. 69-71. In the 23 ALJ’s decision, the ALJ alternatively determined, based on the testimony of the 24 vocational expert, and considering Plaintiff’s age, education, work experience, that 25 if Plaintiff had the mental limitations noted by Dr. Martin, coupled with the 26 limitations set forth in the RFC determination, he would still be capable of 27 performing jobs such as produce sorter; order clerk, food and beverage; and bench 28 hand, jobs that exist in significant numbers in the national economy. Tr. 30. ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 The Court finds that the ALJ’s alternate step five determination is supported 2 by substantial evidence and free of error. Accordingly, although the ALJ erred at 3 step two, it was harmless error. See Johnson v. Shalala, 60 F.3d 1428, 1436 n. 9 4 (9th Cir. 1995) (an error is harmless when the correction of that error would not 5 alter the result); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s 6 decision will not be reversed for errors that are harmless). 7 CONCLUSION 8 Having reviewed the record and the ALJ’s findings, the Court finds the 9 ALJ’s decision should be affirmed. Therefore, IT IS HEREBY ORDERED: 10 11 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 12 2. 13 The District Court Executive is directed to file this Order and provide a copy 14 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 15 and the file shall be CLOSED. 16 DATED January 4, 2019. 17 18 19 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 14

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