Christopher v. Commissioner of Social Security, No. 2:2018cv00042 - 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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Christopher v. Commissioner of Social Security Doc. 16 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jan 29, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 SHIRLEY C., NO: 2:18-CV-42-FVS 8 Plaintiff, v. 9 10 COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 13 14 ECF Nos. 12, 13. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney Cory J. Brandt. Defendant is 16 represented by Special Assistant United States Attorney Jeffrey E. Staples. The 17 Court, 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 Shirley C. 1 (Plaintiff), filed for disability insurance benefits (DIB) 2 3 and supplemental security income on June 8, 2015, alleging an onset date of January 4 1, 2015. Tr. 289-91, 317. Benefits were denied initially, Tr. 163-66, 171-74, and 5 upon reconsideration, Tr. 182-98. Plaintiff appeared at a hearing before an 6 administrative law judge (ALJ) on October 26, 2016. Tr. 45-115. On December 21, 7 2016, the ALJ issued an unfavorable decision, Tr. 20-37, and on December 6, 2017, 8 the 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 1975 and was 41 years old at the time of the hearing. Tr. 15 289. She graduated from high school. Tr. 405. She has work experience as a bank 16 teller, retail cashier and cashier trainer, retail customer service provider, insurance 17 clerk, car rental clerk and detailer, and personal care attendant, Tr. 97-103. 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 Plaintiff testified that she has paroxysmal orthostatic tachycardia syndrome 2 (POTS) which causes her blood pressure to drop. Tr. 70. She gets nauseous, light- 3 headed, and hot, and alleges that she must use a wheelchair and cane because of it. 4 Tr. 70. She also has fibromyalgia. Tr. 71. She testified that POTS and fibromyalgia 5 cause her to be tired and exhausted. Tr. 71. She requires frequent breaks and 6 experiences memory loss. Tr. 71. She has bad days and better days. Tr. 78. On 7 bad days she has pain from head to toe, dizziness, nausea, and headaches. Tr. 84. 8 Due to her symptoms, she spends two to three days per week in bed. Tr. 85. She 9 has headaches 20 days a month, and 15 of those are severe headaches. Tr. 86. 10 11 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 12 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 13 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 14 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 15 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 16 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 17 citation omitted). Stated differently, substantial evidence equates to “more than a 18 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 19 In determining whether the standard has been satisfied, a reviewing court must 20 consider the entire record as a whole rather than searching for supporting evidence in 21 isolation. Id. 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 January 1, 2015, the alleged onset date. Tr. 22. At step two, the ALJ 14 found that Plaintiff has the following severe impairments: fibromyalgia, obesity, 15 migraines, depressive disorder, and anxiety disorder. Tr. 22. At step three, the ALJ 16 found that Plaintiff does not have an impairment or combination of impairments that 17 meets or medically equals the severity of a listed impairment. Tr. 24. 18 19 20 21 The ALJ then found that Plaintiff has the residual functional capacity to perform light work with the following additional limitations: she can only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; she can never climb ladders, ropes, or scaffolds; she should avoid all exposure to vibration and hazards, such as unprotected heights and moving mechanical parts; she can tolerate ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~7 1 2 3 exposure to no more than moderate noise; she is limited to simple, routine, and repetitive tasks with a reasoning level of 2 or less; and she would likely be absent from work 8 to 10 days per year. Tr. 28. 4 At step four, the ALJ found that Plaintiff is unable to perform any past 5 relevant work. Tr. 35. 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 electronics worker, mail clerk, and 9 housekeeping cleaner. Tr. 36. Therefore, at step five, the ALJ concluded that 10 Plaintiff has not been under a disability, as defined in the Social Security Act, from 11 January 1, 2015, through the date of the decision. Tr. 37. 12 13 ISSUES 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 complaints; 18 2. Whether the ALJ properly considered the medical opinion evidence; 19 and 20 3. 21 Whether the step five finding is legally sufficient. ECF No. 12 at 10. 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 17-18. 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 credible. Tr. 29. 15 First, the ALJ found the objective medical evidence does not fully support 16 the level of limitation claimed. Tr. 29, 33. An ALJ may not discredit a claimant’s 17 pain testimony and deny benefits solely because the degree of pain alleged is not 18 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 19 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. 20 Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the medical evidence is a 21 relevant factor in determining the severity of a claimant’s pain and its disabling ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~10 1 effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) 2 (2011). Minimal objective evidence is a factor which may be relied upon in 3 discrediting a claimant’s testimony, although it may not be the only factor. See 4 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 5 The ALJ discussed the objective medical evidence in detail. Tr. 29-35. In 6 addition to discussing office visit notes and other evidence in the medical record, 7 the ALJ noted the opinion of Steven Goldstein, M.D., the medical expert at the 8 hearing, whose opinion regarding Plaintiff’s physical limitations was given great 9 weight by the ALJ and is consistent with the RFC finding. Tr. 32-33, 52-65. 10 Additionally, the ALJ noted the opinions of Thomas Genthe, Ph.D., an examining 11 psychologist, and Nancy Winfrey, Ph.D., the psychological expert at the hearing. 12 Tr. 33-35, 65-67, 406-07. The opinions of Dr. Genthe and Dr. Winfrey were given 13 great weight by the ALJ, Tr. 34-35, and their opinions regarding Plaintiff’s mental 14 limitations are consistent with the RFC finding. The ALJ’s detailed discussion of 15 the record reasonably supports the ALJ’s conclusion that the objective evidence is 16 inconsistent with the level of limitation alleged. 17 Without citing any authority, Plaintiff asserts that the ALJ’s finding “is not 18 valid because the hallmark of the examination of a fibromyalgia patient is the lack 19 of objective findings in relation to the plethora of symptoms, except for painful 20 tender points, and perhaps, signs of deconditioning – both of which were 21 documented.” ECF No. 12 at 18 (citing Tr. 418, 551, 942). There is no question ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~11 1 that fibromyalgia is documented in the record – the ALJ found it is a severe 2 impairment at step two and included limitations attributable to fibromyalgia in the 3 RFC finding. Tr. 22, 28. Contrary to Plaintiff’s assertion, the ALJ reasonably 4 considered the objective evidence in evaluating the intensity, persistence and 5 limiting effects of Plaintiff’s fibromyalgia. In fact, Social Security Ruling 12-2p, 6 which addresses the evaluation of fibromyalgia in disability claims, provides, “[i]f 7 objective medical evidence does not substantiate the person’s statements about the 8 intensity, persistence, and functionally limiting effects of symptoms, we consider 9 all of the evidence in the case record.”2 Plaintiff does not identify any error in the 10 ALJ’s consideration of the objective evidence, and the Court concludes the ALJ 11 interpretation of the evidence was reasonable. 12 Second, the ALJ noted contradictions and inconsistencies in the record which 13 undermine Plaintiff’s allegations. Tr. 30-33. In evaluating a claimant’s symptom 14 claims, an ALJ may consider the consistency of an individual’s own statements 15 made in connection with the disability review process with any other existing 16 statements or conduct made under other circumstances. Smolen v. Chater, 80 F.3d 17 18 2 19 symptom claims. As of March 28, 2016, S.S.R. 96-7p was superseded by S.S.R. 20 16-3p. Notwithstanding, the consideration of objective evidence applies in 21 evaluating a claimant’s symptom complaints under S.S.R. 16-3p, as well. Social Security Ruling 12-2p references S.S.R. 96-7p regarding the evaluation of ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~12 1 1273, 1284 (9th Cir. 1996) (The ALJ may consider “ordinary techniques of 2 credibility evaluation,” such as reputation for lying, prior inconsistent statements 3 concerning symptoms, and other testimony that “appears less than candid.”); 4 Thomas, 278 F.3d at 958-59. The ALJ observed that Plaintiff missed greater than 5 half of her physical therapy appointments. Tr. 549. She told her physical therapist 6 that she wanted to be discharged from therapy because life stressors prevented her 7 from fully committing to therapy, Tr. 549, but the ALJ noted she inconsistently 8 testified that she missed physical therapy because of migraines and fibromyalgia 9 symptoms, suggesting a greater level of limitation than supported by the record. Tr. 10 30, 91. 11 A second inconsistency identified by the ALJ is that although Plaintiff 12 requested and received a prescription for a quad cane, the record does not reflect she 13 was ever observed using the cane. Tr. 33. Similarly, she presented at the hearing in 14 a wheelchair, but the ALJ observed there is no prescription for a wheelchair or 15 mention of her use of a wheelchair in the record. Tr. 32-33. Plaintiff did not report 16 the use of assistive devices in her Function Reports. Tr. 32, 315, 356. 17 Another inconsistency identified by the ALJ is that Plaintiff initially testified 18 that her husband did the household shopping, but later testified that her husband is 19 functionally blind and also applied for disability, and that she actually goes shopping 20 once a month. Tr. 33, 73-76. Plaintiff’s husband reported that Plaintiff takes care 21 of him because, “I currently cannot read, wright [sic] cook, clean, drive,” and that ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~13 1 Plaintiff shops for groceries once a week. Tr. 33, 331, 333-34. These inconsistencies 2 were reasonably considered by the ALJ and this is a clear and convincing reason for 3 giving less weight to Plaintiff’s symptom allegations. 4 Third, the ALJ found Plaintiff’s alleged limitations are at times contradicted 5 by her own reports of activity. Tr. 33. It is reasonable for an ALJ to consider a 6 claimant’s activities which undermine claims of totally disabling pain in assessing a 7 claimant’s symptom complaints. See Rollins, 261 F.3d at 857. However, it is well- 8 established that a claimant need not “vegetate in a dark room” in order to be deemed 9 eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). 10 Notwithstanding, if a claimant can spend a substantial part of her day engaged in 11 pursuits involving the performance of physical functions that are transferable to a 12 work setting, a specific finding as to this fact may be sufficient to discredit an 13 allegation of disabling excess pain. Fair, 885 F.2d at 603. Furthermore, "[e]ven 14 where [Plaintiff’s daily] activities suggest some difficulty functioning, they may be 15 grounds for discrediting the claimant’s testimony to the extent that they contradict 16 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. 17 The ALJ noted that Plaintiff testified that she could do housework for 45 to 18 60 minutes on a good day and that she stays in bed often because of body pain and 19 headaches. Tr. 29, 82, 85-86. The ALJ also noted Plaintiff reported her condition 20 affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb 21 stairs, see, remember, complete tasks, concentrate, and understand. Tr. 29, 314. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~14 1 However, the ALJ found no restriction in Plaintiff’s activities of daily living since 2 she reported helping her disabled husband, crocheting, caring for dogs, preparing 3 simple meals, doing laundry, and shopping for groceries. Tr. 26, 310-12. She 4 reported to Dr. Genthe that she plays with her rabbits, crochets, and reads, and is 5 able to care for her own hygiene, prepare her own meals, shop for groceries, wash 6 dishes, do laundry, vacuum, and dust independently and in a reasonable amount of 7 time. Tr. 26, 405. The ALJ observed that in June 2015, Plaintiff reported dizziness 8 and faintness while cleaning the house and “repeatedly bending and standing, 9 picking things up off the [floor].” Tr. 32, 590. Her symptoms resolved quickly, and 10 the examining physician suggested that she may have experienced hypoglycemia 11 since the symptoms occurred several hours after eating a high carbohydrate meal. 12 Tr. 591-92. The ALJ concluded that the level of activity described was inconsistent 13 with Plaintiff’s allegations. Tr. 32. The ALJ also noted that Plaintiff’s ability to 14 care for her disabled husband contradicts her own alleged limitations. Tr. 33, 310, 15 331. 16 Plaintiff argues the ALJ’s finding regarding daily activities is “not valid 17 because the activities cited by the ALJ do not show [Plaintiff] was able to perform 18 full time work.” ECF No. 12 at 18. Plaintiff cites activities of shopping once a 19 month, crocheting, and occasional household chores as activities that do not 20 demonstrate the ability to perform full-time work. ECF No. 12 at 18. However, 21 even if a claimant’s daily activities do not demonstrate a claimant can work, they ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~15 1 may undermine the claimant’s complaints if they suggest the severity of the 2 claimant’s limitations were exaggerated. See Molina, 674 F.3d at 1113; Valentine 3 v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). Plaintiff fails to 4 address the inconsistencies between Plaintiff’s activities and her allegations that 5 were noted by the ALJ. This is a clear and convincing reason supported by 6 substantial evidence for giving less weight to Plaintiff’s symptom claims. 7 B. 8 9 Medical Opinion Evidence Plaintiff contends the ALJ failed to properly consider the opinions of treating nurse practitioner Mariann Williams. ECF No. 12 at 12-16. 10 The opinion of an acceptable medical source, such as a physician or 11 psychologist, is given more weight than that of an “other source.” 20 C.F.R. §§ 12 404.1527, 416.927 (2012); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). 13 “Other sources” include nurse practitioners, physicians’ assistants, therapists, 14 teachers, social workers, spouses and other non-medical sources. 20 C.F.R. §§ 15 404.1513(d), 416.913(d) (2013). However, the ALJ is required to “consider 16 observations by non-medical sources as to how an impairment affects a claimant’s 17 ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Non- 18 medical testimony can never establish a diagnosis or disability absent corroborating 19 competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 20 1996). Pursuant to Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993), an ALJ is 21 obligated to give reasons germane to “other source” testimony before discounting it. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~16 1 Ms. Williams opined regarding Plaintiff’s functioning in January, April, and 2 October of 2016. Tr. 525-27, 885-86, 919. In January 2016, Ms. Williams 3 completed a Mental Medical Source Statement form and opined that Plaintiff is 4 severely limited, defined as the “inability to perform,” in six functional areas: the 5 ability to understand and remember detailed instructions; the ability to carry out 6 detailed instructions; the ability to maintain attention and concentration for extended 7 periods; the ability work in coordination with or proximity to others without being 8 distracted by them; the ability to complete a normal workday and workweek and 9 perform at a consistent pace without an unreasonable number and length of rest 10 periods; and the ability to set realistic goals or make plans independently of others. 11 Tr. 525-27. She also opined that Plaintiff is markedly limited in eight functional 12 areas. Tr. 525-27. Ms. Williams indicated that Plaintiff would miss four or days of 13 work per month. Tr. 528. 14 In April 2015, Ms. Williams completed a DSHS Physical Evaluation form and 15 indicated that fibromyalgia causes a marked, or “very significant,” interference in 16 her ability to perform work-related activities. Tr. 885. She opined that Plaintiff is 17 severely limited and unable to work. Tr. 886. 18 In October 2016, Ms. Williams wrote a letter describing Plaintiff’s condition. 19 Tr. 919. Ms. Williams indicated that in the year to year-and-a-half prior, Plaintiff’s 20 health had declined due to fibromyalgia, migraine headaches, and a syndrome 21 similar to paroxysmal orthostatic tachycardia syndrome which causes significant ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~17 1 fluctuations in Plaintiff’s blood pressure and ability to cognate. Tr. 919. Ms. 2 Williams noted that Plaintiff “spent the better part of last January through March in 3 bed and was unable to do much of anything.” Tr. 919. Ms. Williams opined that 4 Plaintiff is “no longer able to be gainfully employed,” although she could work up to 5 two hours per day averaged over a week. Tr. 919. 6 The ALJ gave little weight to Ms. Williams’ opinions. Tr. 26, 31-32, 34. As 7 a nurse practitioner, Ms. Williams is an “other source” under the regulations. 20 8 C.F.R. §§ 404.1513(d), 416.913(d) (2013). Thus, the ALJ was required to give 9 germane reasons for rejecting her opinions. See Dodrill, 12 F.3d at 919. 10 Plaintiff contends the ALJ rejected Ms. Williams’ opinions for three reasons. 11 ECF No. 12 at 12. In fact, the ALJ addressed the opinions individually and gave 12 reasons for rejecting each of them. Tr. 26, 21-32, 34. Thus, the Court addresses the 13 ALJ’s reasons for rejecting each opinion in turn. 14 First, regarding Ms. Williams’ January 2016 opinion regarding Plaintiff’s 15 mental limitations, the ALJ noted that Ms. Williams is not an acceptable medical 16 source and is not a mental health specialist. Tr. 26. As noted supra, the opinion of 17 an acceptable medical source, such as a physician or psychologist, is properly given 18 more weight than that of an “other source” like a nurse practitioner. 20 C.F.R. §§ 19 404.1527, 416.927 (2012). Further, the opinion of a specialist in the relevant field is 20 entitled to greater weight than that of a nonspecialist. Molina, 674 F.3d at 1112 21 (citing Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (“[T]he ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~18 1 regulations give more weight to . . . the opinions of specialists concerning matters 2 relating to their specialty over that of nonspecialists.”); Smolen, 80 F.3d at 1285 3 (holding that the ALJ should have given greater weight to a physician with the 4 expertise that was most relevant to the patient's allegedly disabling condition)). 5 The ALJ found that Ms. Williams’ January 2016 opinion “directly contradicts 6 the opinions of two acceptable medical sources, Dr. Genthe and the psychological 7 expert at the hearing [Dr. Winfrey].” Tr. 34. Dr. Genthe diagnosed only mild 8 depressive and anxiety disorder and assessed mild or no limitations, and Dr. Winfrey 9 diagnosed unspecified depressive and anxiety disorders and assessed limitations of 10 simple instructions and simple, routine, repetitive work. Tr. 26, 34, 66-67, 406-07. 11 Both opinions by these specialists were given great weight by the ALJ, Tr. 34-35, 12 and clearly contradict Ms. Williams’ opinion that Plaintiff has marked and severe 13 limitations in numerous functional areas. This is a germane reason for rejecting the 14 opinion.3 15 16 17 18 19 20 21 3 Plaintiff’s argument that Ms. Williams’ opinions are entitled to controlling weight because she is a treating source misunderstands the applicability of S.S.R. 96-2p (rescinded effective March 27, 2017) and the weight applicable to non-acceptable medical source opinions at the time of the ALJ’s decision. ECF No. 12 at 13-14. As the Ruling states, an opinion must, among other requirements, be “not inconsistent” with other substantial evidence in the record. S.S.R. 96-2p at *2. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~19 1 Second, the ALJ gave little weight to Ms. Williams’ April 22, 2016 opinion. 2 Tr. 31. The ALJ found Ms. Williams’ opinion conflicted with the findings of Dr. 3 Flavin, the treating physician in Ms. Williams’ office. Tr. 31. One week before Ms. 4 Williams opined that fibromyalgia is severely limited and unable to work, Plaintiff 5 reported to Dr. Flavin that a change in her anti-depressant had helped her 6 fibromyalgia symptoms. Tr. 31, 717. Dr. Flavin stated that, “[o]verall symptoms 7 seem to be quite stable on Cymbalta and Gabapentin.” Tr. 718. The ALJ also noted 8 that on May 1, 2016, just over a week after Ms. Williams’ April 22 opinion, Ms. 9 Williams indicated Plaintiff had no problems with memory and she was able to sit in 10 a chair and crochet. Tr. 732. Additionally, the ALJ noted that while Ms. Williams 11 is a treating provider, she is not an acceptable medical source, and that the findings 12 of Dr. Flavin, who is an acceptable medical source, “are never as extreme as Ms. 13 Williams’” throughout the record. Tr. 31. These reasons are germane and 14 supported by substantial evidence. 15 Plaintiff notes that Dr. Flavin’s statement that Plaintiff’s symptoms were 16 “stable” does not mean that her symptoms were resolved. ECF No. 12 at 13. The 17 ALJ did not assert that Dr. Flavin opined that Plaintiff had zero symptoms, only that 18 19 The ALJ adequately demonstrated Ms. Williams’ opinions are inconsistent with 20 other evidence in the record, including the opinions of Dr. Winfrey and Dr. 21 Genthe. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~20 1 Dr. Flavin characterized her symptoms more mildly than Ms. Williams. Indeed, on 2 April 15, 2015, Plaintiff reported to Dr. Flavin that she was feeling better after a 3 medication adjustment, despite ongoing pain and fatigue. Tr. 717. She thought 4 medication was “definitely helping and she likes being on it and she feels like this is 5 working well.” Tr. 717. On exam, Dr. Flavin found Plaintiff in no acute distress 6 with no evidence of active synovitis, no focal deficits, and no skin rashes. Tr. 718. 7 Dr. Flavin recommended additional medication adjustments and to follow up in six 8 months or sooner with any new or concerning symptoms. Tr. 718. 9 Based on the foregoing, it was reasonable for the ALJ to conclude that Dr. 10 Flavin’s office visit notes do not reflect disabling symptoms or limitations, which 11 contrasts with Ms. Williams’ opinion one week later that Plaintiff is severely limited 12 and unable to work. It is the ALJ’s duty to resolve conflicts and ambiguity in the 13 medical and non-medical evidence. See Morgan v. Comm’r of Soc. Sec. Admin., 169 14 F.3d 595, 599-600 (9th Cir. 1999). The court must uphold the ALJ=s decision where 15 the evidence is susceptible to more than one rational interpretation. Magallanes v. 16 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Thus, the ALJ reasonably found that Dr. 17 Flavin’s notes and Plaintiff’s self-report on April 15 conflict with Ms. Williams’ 18 April 22 opinion that Plaintiff is disabled. 19 Third, the ALJ gave little weight to Ms. Williams’ October 2016 opinion 20 letter. Tr. 32. The ALJ noted Ms. Williams’ statement of unemployability is an 21 opinion on an issue reserved to the Commissioner. The ALJ is responsible for ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~21 1 determining whether a claimant meets the statutory definition of disability, not a 2 medical provider. Social Security Ruling 96-5p. A medical source that a claimant is 3 “disabled” or “unable to work” does not require the ALJ to determine the claimant 4 meets the definition of disability. 20 CFR §§ 404.1527(d)(1); 416.927(d)(1) (2012). 5 This is a germane reason for rejecting the opinion letter. 6 Additionally, the ALJ found the assessment of Plaintiff’s functional capacity 7 is inconsistent with the longitudinal record. Tr. 32. Inconsistency with medical 8 evidence is a germane reason for rejecting lay witness evidence. Bayliss v. 9 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 10 (9th Cir. 2001); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). The ALJ 11 observed that Ms. Williams is not an acceptable medical source, that none of the 12 physicians in Ms. Williams’ office opined that Plaintiff is unable to work, and in fact 13 no acceptable medical source in the record stated Plaintiff could not work. Tr. 32. 14 See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). These reasons are all 15 germane reasons for giving little weight to Ms. Williams’ opinions. 16 C. 17 Step Five Plaintiff argues the ALJ erred at step five because the vocational expert’s 18 opinion that jobs exist in significant numbers in the national economy that a person 19 with Plaintiff’s RFC can do was based on an incomplete hypothetical. ECF No. 12 20 at 19-20. The ALJ’s hypothetical must be based on medical assumptions 21 supported by substantial evidence in the record which reflect all of a claimant’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~22 1 limitations. Osenbrook v. Apfel, 240 F.3D 1157, 1165 (9th Cir. 2001). The 2 hypothetical should be “accurate, detailed, and supported by the medical record.” 3 Tackett, 180 F.3d at 1101. The ALJ is not bound to accept as true the restrictions 4 presented in a hypothetical question propounded by a claimant’s counsel. 5 Osenbrook, 240 F.3d at 1164; Magallanes, 881 F.2d at 756-57; Martinez v. 6 Heckler, 807 F.2d 771, 773 (9th Cir. 1986). The ALJ is free to accept or reject 7 these restrictions as long as they are supported by substantial evidence, even when 8 there is conflicting medical evidence. Magallanes, 881 F.2d at 756-57. 9 Plaintiff contends the ALJ’s hypothetical to the vocational expert “failed to 10 account for the limitations set forth by Nurse Williams.” ECF No. 12 at 19. As 11 discussed supra, the ALJ’s reasons for rejecting the three opinions of Ms. Williams 12 are germane and supported by substantial evidence. The ALJ therefore properly 13 excluded those findings from the RFC and hypothetical to the vocational expert. 14 The hypothetical contained the limitations the ALJ found credible and supported by 15 substantial evidence in the record. The ALJ’s reliance on testimony the VE gave in 16 response to the hypothetical was therefore proper. See id.; Bayliss, 427 F. 3d at 17 1217-18. 18 CONCLUSION 19 Having reviewed the record and the ALJ’s findings, this Court concludes the 20 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 21 Accordingly, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~23 1 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 2 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 3 4 GRANTED. IT IS SO ORDERED. The District Court Clerk is directed to enter this 5 Order and provide copies to counsel. Judgment shall be entered for Defendant and 6 the file shall be CLOSED. 7 DATED January 29, 2019. 8 9 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~24
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