Loup v. Commissioner of Social Security, No. 2:2018cv00166 - Document 18 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 14 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)
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Loup v. Commissioner of Social Security Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 2 Apr 02, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 DANIELLE CHARLOTTE L., No. 2:18-CV-00166-JTR Plaintiff, 10 11 12 13 14 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 14, 16. Attorney Rosemary B. Schurman represents Danielle Charlotte L. 18 (Plaintiff); Special Assistant United States Attorney Jeffrey Eric Staples represents 19 the Commissioner of Social Security (Defendant). The parties have consented to 20 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 21 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 22 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 23 24 JURISDICTION On March 25, 2014, Plaintiff filed an application for Supplemental Security 25 Income benefits. Tr. 13, 175-83, 242. Plaintiff alleged a disability onset date of 26 June 28, 2009, Tr. 13, 57, 193, 197, due to Wrist, Arm, Elbow, Snapped Wrist Out, 27 Double-Jointed but Hyper Extended and Snapped, Could Not Get PT and Trouble 28 Using Arm, Constant Pain, Non-Epileptic Seizures – Diagnosis, Anxiety, ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Depression, ADHD, Eating Disorder, Referred to Emory Program, and Get 2 Overwhelmed Very Easily. Tr. 197. Plaintiff’s applications were denied initially 3 and upon reconsideration. Administrative Law Judge (ALJ) Caroline Siderius held a hearing on 4 5 December 20, 2016, Tr. 29-56, and issued an unfavorable decision on April 5, 6 2017. Tr. 13-23. The Appeals Council denied review on May 2, 2018. Tr. 1-6. 7 The ALJ’s April 5, 2017, decision thus became the final decision of the 8 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 9 405(g). Plaintiff filed this action for judicial review on May 22, 2018. ECF No. 1, 10 4. STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was born on June 28, 1992 and was 21 years old on the date the 16 application was filed, March 25, 2014. Tr. 57, 175. She has a high school 17 education. Tr. 44, 66. She testified that she was in 12th grade for three years 18 because she moved a lot, went to 16 different schools, and did not do well in 19 school. Tr. 44. However, she reported to a medical provider that she graduated at 20 age 19 due to moving around a lot. Tr. 296. She testified that she considered 21 going to college but did not go mainly because of her anxiety. Tr. 45. Plaintiff’s 22 only past employment was as a cashier at a craft store from October 2010 to 23 November 2010, and as a member of the cleaning crew at a stadium from 24 December 2010 to January 2011. Tr. 234. 25 Plaintiff testified that she never obtained her driver’s license because she did 26 not have the time when she was 16, and then she started having seizures. Tr. 45. 27 She testified that, although she did not go to a doctor for her seizures, she 28 understood that she could not risk other peoples’ lives by driving. Tr. 45. She ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 testified that she was thinking of getting a driver’s permit because she may be able 2 to get a license after six months without seizures. Tr. 45. 3 Plaintiff testified that she is unable to work because “pretty much 4 everything” she does causes physical pain, and she is terrified of people. Tr. 46. 5 Plaintiff testified that she generally has to get up and walk around about every 30 6 minutes when she is sitting. Tr. 47. She testified that her back, hips, and legs hurt 7 when she is standing. Tr. 47. She said that she usually gets into a laying down 8 position while watching television or cross-stitching. Tr. 47. She testified that she 9 has had anxiety since she was a teenager, but it became a lot worse when she was 10 18. Tr. 48. She testified that she does not do well with confrontation and gets 11 scared. Tr. 46. She testified that, although it had been recommended that she 12 receive mental health counseling, she had “been lazy about that,” but did call 13 someone about mental health counseling the week before the administrative 14 hearing. Tr. 45-46. 15 She testified that she wants to work because she thinks it would be better for 16 her to go out and do things, but she cannot think of anything she could do because 17 she is unable to sit or stand for very long, and unable to lift things. Tr. 46. 18 Plaintiff testified that she wanted to become a veterinarian tech and her dream job 19 was to work at a zoo, but she is unable to lift much so she “most likely can’t do 20 that.” Tr. 42. She has thought about working as a receptionist because she would 21 not have to lift anything, but she was not sure if she could sit long enough to do 22 that type of a job. Tr. 47. 23 Plaintiff lives with her mother and her grandmother. Tr. 44. She testified 24 that she watches television, plays video games, and has one friend online. Tr. 40- 25 42. She also spends time painting and cross-stitching, although she testified that it 26 hurts to paint and cross-stitch. Tr. 40, 42-43; see Tr. 40 (“It does hurt, but it’s at 27 least productive”); Tr. 40 (“[cross-stitch] hurts while I’m doing it, but, you know, I 28 want to get it done by Christmas for my sister”); Tr. 43 (“it’s uncomfortable ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 painting for more than about 10, 20 minutes, but I still push through it when I do it, 2 so I mean I might be able to try an Internet program at a college to help with that”). 3 Plaintiff testified that she shovels snow from her driveway, although she “pretty 4 much sleep[s] the whole next day” because she is in so much pain. Tr. 40-41. She 5 testified that she goes shopping or to the grocery store with her mother or 6 grandmother. Tr. 47. She testified that she and her boyfriend would socialize “[a] 7 bit” with friends, but that was always a little difficult. Tr. 48. 8 9 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 10 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 11 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 12 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 13 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 14 only if it is not supported by substantial evidence or if it is based on legal error. 15 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 16 defined as being more than a mere scintilla, but less than a preponderance. Id. at 17 1098. Put another way, substantial evidence is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion. Richardson v. 19 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 20 rational interpretation, the Court may not substitute its judgment for that of the 21 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Soc. Sec. Admin., 169 22 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative 23 findings, or if conflicting evidence supports a finding of either disability or non- 24 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 25 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 26 substantial evidence will be set aside if the proper legal standards were not applied 27 in weighing the evidence and making the decision. Brawner v. Secretary of Health 28 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 2 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a), 4 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 5 four, the burden of proof rests upon the claimant to establish a prima facie case of 6 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 7 met once a claimant establishes that a physical or mental impairment prevents the 8 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 9 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 10 to step five, and the burden shifts to the Commissioner to show that the claimant 11 can perform other jobs present in significant numbers in the national economy. 12 Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If 13 a claimant cannot make an adjustment to other work in the national economy, a 14 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 15 16 17 18 19 ADMINISTRATIVE DECISION On April 5, 2017, 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 application date, March 25, 2014. Tr. 15. 20 At step two, the ALJ determined Plaintiff had the following severe 21 impairments: Ehler Danlos Syndrome (EDS), depression, and anxiety. Tr. 15. 22 At step three, the ALJ found Plaintiff did not have an impairment or 23 combination of impairments that meets or medically equals the severity of one of 24 the listed impairments. Tr. 17. 25 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 26 determined that she could perform light work, but with the following limitations: 27 she can lift 20 pounds occasionally and 10 pounds frequently; she can sit up to 28 eight hours a day, stand and walk up to six hours a day with the ability to change ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 position once an hour; she cannot climb ladders, ropes, or scaffolds, or work at 2 unprotected heights; she would need to avoid working with heavy machinery or 3 equipment; she could occasionally crawl; she could frequently but not constantly 4 handle, grasp, and grip with both hands; she is capable of superficial brief contact 5 with the general public and coworkers; she would work better with things rather 6 than people; she could do simple, routine, and repetitive tasks with only occasional 7 changes in work duties or in the work setting. Tr. 18. 8 At step four, the ALJ determined Plaintiff had no past relevant work. Tr. 22. 9 At step five, the ALJ determined that, considering Plaintiff’s age, education, 10 work experience, and RFC, and based on the testimony of the vocational expert 11 (VE), Plaintiff could perform other jobs present in significant numbers in the 12 national economy, including the light exertion level jobs of mail clerk, small parts 13 assembler, and office cleaner I. Tr. 22-23. The ALJ thus concluded that Plaintiff 14 had not been under a disability within the meaning of the Social Security Act since 15 March 25, 2014, the date the application was filed. Tr. 23. ISSUES 16 17 The question presented is whether substantial evidence supports the ALJ’s 18 decision denying benefits and, if so, whether that decision is based on proper legal 19 standards. Plaintiff contends the ALJ erred by (1) improperly finding that 20 Plaintiff’s seizure disorder was not severe at step two; (2) failing to properly 21 formulate an RFC that considered all of Plaintiff’s limitations, which the Court 22 construes as assigning error in considering and weighing the medical source 23 opinion evidence; and (3) failing to properly evaluate the vocational expert’s 24 testimony at step five. ECF No. 14 at 6, 10, 15. DISCUSSION1 25 26 27 28 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 A. Step Two 2 Plaintiff argues the ALJ erred at step two of the sequential evaluation 3 process by failing to identify her seizure disorder as a severe impairment. ECF No. 4 14 at 5-10. 5 Plaintiff has the burden of proving she has a severe impairment at step two 6 of the sequential evaluation process. 20 C.F.R. § 416.912. In order to meet this 7 burden, Plaintiff must furnish medical and other evidence to show her impairment 8 is severe. 20 C.F.R. § 416.912(a). The regulations provide that an impairment is 9 severe if it significantly limits a claimant’s ability to perform basic work activities. 10 20 C.F.R. § 416.920(c). “Basic work activities” are defined as the abilities and 11 aptitudes necessary to do most jobs. 20 C.F.R. § 416.922(b). 12 Step two is “a de minimis screening device [used] to dispose of groundless 13 claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an ALJ may 14 find that a claimant lacks a medically severe impairment or combination of 15 impairments only when this conclusion is “clearly established by medical 16 evidence.” SSR 85-28; see Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 17 Applying the normal standard of review to the requirements of step two, the Court 18 must determine whether the ALJ had substantial evidence to find that the medical 19 evidence clearly established that Plaintiff did not have a severe impairment. 20 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the deference 21 usually accorded to the Secretary’s application of regulations, numerous appellate 22 23 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 . . . - 7 1 courts have imposed a narrow construction upon the severity regulation applied 2 here.”); Webb, 433 F.3d at 687. 3 Here, the ALJ determined Plaintiff had the severe impairments of Ehler 4 Danlos syndrome, depression, and anxiety. Tr. 15. However, the ALJ concluded 5 that Plaintiff’s non-epileptic seizures were imposing no more than a minimal 6 limitation upon her ability to perform work-related activities and thus, her seizure 7 disorder was not a severe impairment. Tr. 17. Specifically, the ALJ noted that 8 Plaintiff’s EEGs were negative other than one non-epileptic event consistent with 9 pseudoseizures, and that Plaintiff’s reports of seizure activity varied from provider 10 to provider. Tr. 17 (citing Tr. 276, 295, 350, 357, 361). The ALJ indicated that 11 there was no evidence of witnessed seizures or documentation of more than one of 12 these seizures that would result in any work-related limitations, despite Plaintiff’s 13 statements that she had experienced these seizures since she was 14 years old. 2 Tr. 14 17. The ALJ also noted that Plaintiff reported fewer seizures with medication. Tr. 15 17 (citing Tr. 375). The ALJ reasonably concluded that this evidence showed 16 17 2 Plaintiff argues that the ALJ made a mistake by stating that there was no 18 evidence of witnessed seizures. ECF No. 14 at 8-9, Tr. 17. Plaintiff notes, and the 19 record shows, that Plaintiff’s roommate accompanied her to an appointment at 20 Columbia Medical Associates on May 7, 2013, where he reported that Plaintiff 21 may have had a seizure two days earlier. Tr. 257. Plaintiff contends “the ALJ’s 22 attempt to infer that the seizures are nonexistent is unsupported by the evidence.” 23 ECF No. 14 at 8-9. However, the ALJ stated that there was no evidence of 24 witnessed seizures or documentation of more than one of these seizures “that 25 would result in any work-related limitations.” Tr. 17. It does not appear that the 26 ALJ is attempting to infer that the seizures are nonexistent, but rather to state that 27 there is no evidence that her seizure disorder would result in any work-related 28 limitations. Tr. 17. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Plaintiff’s seizure disorder caused no more than a minimal limitation on Plaintiff’s 2 ability to perform basic work-related tasks. Tr. 16-17. 3 Plaintiff contends the evidence that satisfies her burden to prove a severe 4 impairment includes documentation of one pseudoseizure, a diagnosis of non- 5 epileptic seizures, and the prescription of an anti-seizure medication. ECF No. 14 6 at 7. However, a diagnosis alone does not establish the existence of a severe 7 impairment and Plaintiff fails to identify how her non-epileptic seizures had more 8 than a slight functional impact. See Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 9 1985); 20 C.F.R. § 416.921. Plaintiff also argues that no physician has ever 10 disputed the existence of her seizures or found that she is malingering. ECF No. 11 14 at 9. This argument is misplaced, as step two requires Plaintiff to present 12 medical and other evidence to show that her impairment is severe, rather than 13 simply point out that no one disputes the claimed impairment. 20 C.F.R. § 14 416.912(a). 15 Plaintiff asserts that her seizure disorder is a severe impairment because 16 Nurse Holstein opined that the combined effects of her seizure disorder, Ehler 17 Danlos syndrome, post-traumatic stress disorder, and depression with anxiety 18 would result in Plaintiff being absent from work five days a month, unable to 19 complete an eight-hour workday for five days a month, able to perform sustained 20 work activities for less than 50 percent of the time, and “off-task” more than 30 21 percent of the time. ECF No. 14 at 9-10. As discussed infra, the ALJ gave no 22 weight to this portion of Nurse Holstein’s opinion, noting that Nurse Holstein 23 stated the most significant clinical findings and objective signs were subjective. 24 Tr. 21, 336. The ALJ also determined that mental status examinations contained 25 minimal objective findings to support Nurse Holstein’s limitations. Tr. 21 (citing 26 342, 253, 268, 266, 263, 261, 284, 291, 293, 299-300, 307, 323, 327-28, 332, 363, 27 28 352, 359). Nurse Holstein’s opinion does not establish Plaintiff’s seizure disorder as a severe impairment. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 Even if the failure to list her seizure disorder as severe was error, the error 1 2 would be harmless because step two was resolved in Plaintiff’s favor, and Plaintiff 3 fails to identify any credited limitation associated with non-epileptic seizures that 4 was not considered by the ALJ and incorporated into the RFC at step four. See 5 Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Burch 6 v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). The ALJ’s step two finding is 7 legally sufficient. 8 B. 9 Medical Source Opinions Plaintiff argues that the ALJ’s RFC was based upon a legally deficient 10 assessment of the medical opinions. ECF No. 14 at 15. Specifically, Plaintiff 11 asserts the ALJ erred by rejecting without comment the treating nurse’s opinions 12 about the combined effect of physical and mental impairments, and instead relying 13 on the opinions of the nonexamining state agency physician and psychologist. 14 ECF No. 14 at 13-15. 15 In a disability proceeding, the courts distinguish among the opinions of three 16 types of acceptable medical sources: treating physicians, physicians who examine 17 but do not treat the claimant (examining physicians), and those who neither 18 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 19 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 20 than an examining physician’s opinion, and an examining physician’s opinion is 21 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 22 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. The Ninth Circuit has 23 held that “[t]he opinion of a nonexamining physician cannot by itself constitute 24 substantial evidence that justifies the rejection of the opinion of either an 25 examining physician or a treating physician.” Lester, 81 F.3d at 830; Pitzer v. 26 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (finding a nonexamining doctor’s 27 opinion “with nothing more” does not constitute substantial evidence). 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 In weighing the medical opinion evidence of record, the ALJ must make 2 findings setting forth specific, legitimate reasons for doing so that are based on 3 substantial evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th 4 Cir. 1989). The ALJ must also set forth the reasoning behind his or her decisions 5 in a way that allows for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 6 487, 492 (9th Cir. 2015) (finding a clear statement of the agency’s reasoning is 7 necessary because the Court can affirm the ALJ’s decision to deny benefits only on 8 the grounds invoked by the ALJ). “Although the ALJ’s analysis need not be 9 extensive, the ALJ must provide some reasoning in order for us to meaningfully 10 determine whether the ALJ’s conclusions were supported by substantial evidence.” 11 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). 12 The opinion of an acceptable medical source such as a physician or 13 psychologist is given more weight than that of an “other source.” 20 C.F.R. § 14 416.927. “Other sources” include nurse practitioners, physicians’ assistants, 15 therapists, teachers, social workers, spouses and other non-medical sources. 20 16 C.F.R. § 416.913(d) (2013).3 However, the ALJ is required to “consider 17 observations by non-medical sources as to how an impairment affects a claimant’s 18 ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Non- 19 medical testimony can never establish a diagnosis or disability absent 20 corroborating competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 21 1467 (9th Cir. 1996). An ALJ is obligated to give reasons germane to “other 22 source” testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915, 919 (9th 23 Cir. 1993). 24 25 26 3 Prior to March 27, 2017, the definition of a medical source, as well as the 27 requirement that an ALJ consider evidence from non-acceptable medical sources, 28 were located at 20 C.F.R. § 416.913(d). ORDER GRANTING DEFENDANT’S MOTION . . . - 11 State Reviewers – Dr. Hale and Dr. Nelson 1 1. 2 In October 2014, state agency medical consultant Dr. Hale and state agency 3 psychological consultant Dr. Nelson reviewed the record and opined Plaintiff was 4 capable of less than the full range of light exertion, including frequent handling, 5 fingering, and environmental limits, and was capable of a 40-hour work week with 6 work that was simple and routine with no more than superficial interaction with 7 supervisors, coworkers, and the general public. Tr. 21, 69-80. 8 9 The ALJ gave great weight to the opinions of both doctors. Tr. 21-22. The ALJ noted that state agency medical and psychological consultants are highly 10 qualified and experts in disability evaluation. Tr. 22. The ALJ stated that, 11 although records were received subsequent to their opinions, the only opinion 12 evidence was from Nurse Holstein, and the physical portion of her opinion, to 13 which the ALJ assigned some weight, generally agreed with that of Dr. Hale. Tr. 14 20-22. The ALJ stated that there were no other mental health treatment records to 15 contradict Dr. Nelson’s opinion, and Plaintiff’s mental status examinations were 16 not indicative of any significant cognitive or social problems. Tr. 22 (citing 352, 17 359, 363). 18 Plaintiff argues the ALJ should have credited the opinion of Plaintiff’s 19 treating nurse over the opinions of the reviewing doctors. However, as discussed 20 infra, the ALJ provided legally sufficient reasons for giving less weight to Nurse 21 Holstein and for giving more weight to the reviewing doctors’ opinions. Treating Nurse Practitioner – Nurse Holstein 22 2. 23 Nurse Holstein began treating Plaintiff in September 2016 and completed a 24 residual functional capacity statement after Plaintiff’s second visit in November 25 2016. Tr. 20 (citing Tr. 336-38). Nurse Holstein reported Plaintiff was limited to a 26 wide range of light exertion, with frequent lift and carry of up to 15 pounds and 27 occasional of 20 pounds or more. Tr. 20, 339. Plaintiff could climb ramps or 28 stairs, but not ladders, ropes, or scaffolds; could sit for about eight hours in an ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 eight-hour workday; and could stand and walk for about four hours in an eight- 2 hour workday for 30-60 minutes at one time. Tr. 20, 337-39. The ALJ assigned 3 some weight to the physical portion of Nurse Holstein’s opinion set forth in the 4 residual functional capacity statement. Tr. 20-21. 5 Nurse Holstein does not qualify as an acceptable medical source. 20 6 C.F.R. § 416.9024 (Acceptable medical sources are licensed physicians, licensed or 7 certified psychologists, licensed optometrists, licensed podiatrists, qualified 8 speech-language pathologists, licensed audiologists, licensed advanced practice 9 registered nurses, and licensed physician assistants). An ALJ is required to 10 consider evidence from non-acceptable medical sources. 20 C.F.R. § 416.927(f).5 11 An ALJ must give reasons “germane” to each source in order to discount evidence 12 from non-acceptable medical sources. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th 13 Cir. 2014). 14 Here, while the ALJ noted that the physical portion of Nurse Holstein’s 15 opinion was generally supported by the opinion of the state agency medical 16 consultant, the ALJ also highlighted some inconsistencies between Nurse 17 Holstein’s physical examination and other medical evidence in the record. Tr. 21. 18 Inconsistency with the medical evidence is a germane reason for rejecting lay 19 witness testimony. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 2005). The 20 ALJ stated that a physical examination done by Nurse Holstein on October 10, 21 2016 was notable for poor posture and poor strength, laxity in all joints with stress 22 testing, hypermobility in all joints, and low tone. Tr. 20-21 (citing Tr. 342-43). 23 However, the ALJ identified medical evidence in the record that supported a less 24 25 26 27 28 4 Prior to March 27, 2017, the definition of an acceptable medical source was located at 20 C.F.R. § 416.913. 5 Prior to March 27, 2017, the requirement that an ALJ consider evidence from non-acceptable medical sources was located at 20 C.F.R. § 416.913(d). ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 restrictive finding than Nurse Holstein opined. Tr. 21; see, e.g., Tr. 251-52, 282- 2 84, 290-91(Plaintiff’s physical exams showed no ongoing weakness or sensation 3 loss), Tr. 349 (hypermobility noted at her elbow, thumb, and pinky, and mild 4 scoliosis but normal sensation), Tr. 352 (good range of motion in Plaintiff’s hips, 5 no particular joint tenderness, normal sensation, intact motor function without 6 weakness, intact skin, slight laxity with ankles), Tr. 356 (no focal neurologic 7 deficits, normal sensation, reflexes, coordination, muscle strength and tone). This 8 was a germane reason to discredit Nurse Holstein’s opinions as to Plaintiff’s 9 physical limitations. 10 Nurse Holstein provided an opinion on more than Plaintiff’s physical 11 limitations. She also opined in the residual functional capacity statement from 12 November 2016 that stress would interfere with Plaintiff’s attention and 13 concentration for simple work tasks occasionally; Plaintiff would be limited from 14 loud noises and temperature extremes; would be expected to be off task more than 15 30% of a workday; would be unable to complete an eight-hour workday five days 16 or more per month; would perform a job eight hours per day, five days per week at 17 less than 50% efficiency; would need to lie down and/or recline during the day 18 three hours at one time due to stress; and needed to take unscheduled breaks three 19 times per week for one to two hours at a time. Tr. 21 (citing Tr. 336-38). The ALJ 20 accorded no weight to the non-physical portion of Nurse Holstein’s opinion set 21 forth in the residual functional capacity statement. Tr. 21. 22 23 24 First, the ALJ discredited this portion of the opinion due to Nurse Holstein’s admission that the most significant clinical findings and objective signs were subjective. Tr. 21. A physician’s opinion may be rejected if it is based on a 25 claimant’s subjective complaints which were properly discounted. Tonapetyan v. 26 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan, 169 F.3d at 602; Fair v. 27 28 Bowen, 885 F.2d 597, 605 (9th Cir. 1989). The ALJ found that Plaintiff’s medically determinable impairments could reasonably be expected to cause the ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 alleged symptoms, however, Plaintiff’s assertion of total disability under the Social 2 Security Act was not supported by the weight of the evidence. Tr. 19. Plaintiff 3 does not dispute the ALJ’s credibility determination. A review of Nurse Holstein’s 4 treatment notes shows the notes largely contain Plaintiff’s self-reports, and little to 5 no objective observation. Tr. 334-35. Further, Nurse Holstein reported in her 6 treatment notes on November 7, 2016 that “again, I do not know this [patient], but 7 will continue to follow up to ensure needs are being met.” Tr. 335. Because the 8 ALJ provided legally sufficient reasons to discredit Plaintiff’s symptom 9 complaints, Nurse Holstein’s reliance on Plaintiff’s subjective symptom 10 complaints was a germane reason to discredit Nurse Holstein’s opinion. 11 Second, the ALJ stated that mental status examinations contained in the 12 record showed minimal objective findings to support Nurse Holstein’s limitations. 13 Tr. 21. Inconsistency with the medical evidence is a germane reason for rejecting 14 lay witness testimony. See Bayliss, 427 F.3d at 1218. The ALJ cited numerous 15 examples of inconsistencies between Nurse Holstein’s opinion and the medical 16 evidence. Tr. 21; see, e.g., Tr. 253 (not anxious or fidgety), Tr. 268 (appeared 17 nervous and fidgety, but was alert and oriented), Tr. 266 (appeared slightly 18 anxious, but within normal limits), Tr. 263 (seemed nervous, anxious), Tr. 261 19 (Plaintiff reports medication is finally “kicking in” and she feels much improved 20 with depression and anxiety), Tr. 284 (alert and oriented, no unusual anxiety or 21 evidence of depression), Tr. 291 (good eye contact, normal speech, appropriate 22 affect, logical, dressed appropriately with good hygiene), Tr. 293 (self-perception 23 is realistic, thought processes logical, content unremarkable, no suicidal or 24 homicidal ideation), Tr. 299-300 (appropriate appearance, unremarkable behavior, 25 unremarkable psychomotor behaviors, appropriate speech and affect, euthymic 26 mood, intact memory, clear consciousness, average intellect, cooperative, good 27 reasoning, impulse control, judgment, and insight, logical thought processes), Tr. 28 307 (alert and oriented, no unusual anxiety or evidence of depression, good eye ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 contact, affect appropriate, logical, dressed appropriately with good hygiene, 2 interacting well with significant other, behavior “very comfortable”), Tr. 323 (alert 3 and oriented, no unusual anxiety or evidence of depression, pleasant, cooperative, 4 good eye contact, appropriate affect), Tr. 327-28 (oriented, cooperative, 5 appropriate speech, euthymic mood, intact memory, average intellect, fair 6 reasoning, impulse control, judgment, insight), Tr. 332 (cooperative, good eye 7 contact, judgment and insight good, no acute distress, despite reporting significant 8 PTSD symptoms), Tr. 363 (alert and oriented, good fluency, comprehension, 9 concentration, memory, and knowledge), Tr. 352, 359 (alert and cooperative, 10 normal mood and affect, normal attention span and concentration). This was a 11 germane reason to discredit Nurse Holstein’s opinion. 12 Third, the ALJ noted that Nurse Holstein’s own mental status examination 13 was normal. Tr. 21 (citing Tr. 334-35). An ALJ may reject opinions that are 14 internally inconsistent. Nguyen, 100 F.3d at 1464. An ALJ is not obligated to 15 credit medical opinions that are unsupported by the medical source’s own data 16 and/or contradicted by the opinions of other examining medical sources. 17 Tommasetti, 533 F.3d at 1041. A review of Nurse Holstein’s treatment notes from 18 Plaintiff’s mental status examination reveal that Plaintiff was “pleasant, polite, 19 thought content without suicidal ideation, delusions, alert, oriented, cognitive 20 function intact, cooperative with exam, good eye contact, judgment, and insight 21 impaired in regards to her declining to address PTSD.” Tr. 335. Nurse Holstein 22 also reported that Plaintiff’s thought process was logical and goal directed. Tr. 23 335. The inconsistencies between her opinion and her own treatment notes was a 24 25 germane reason to discredit Nurse Holstein’s opinion. Having reviewed the ALJ’s evaluation of the medical evidence, the Court 26 finds the ALJ’s interpretation was based on substantial evidence, and the ALJ 27 properly supported the findings with germane reasons. 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 2 3 4 C. Step Five Plaintiff challenges the ALJ’s evaluation of the vocational expert’s testimony at step five. ECF No. 14 at 15-17. At step five of the sequential evaluation analysis, the burden shifts to the 5 Commissioner to establish that 1) the claimant can perform other work, and 2) 6 such work “exists in significant numbers in the national economy.” 20 C.F.R. § 7 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). In assessing 8 whether there is work available, the ALJ must rely on complete hypotheticals 9 posed to a vocational expert. Nguyen, 100 F.3d at 1467. The ALJ’s hypothetical 10 must be based on medical assumptions supported by substantial evidence in the 11 record that reflects all of the claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 12 1157, 1165 (9th Cir. 2001). The hypothetical should be “accurate, detailed, and 13 supported by the medical record.” Tackett, 180 F.3d at 1101. 14 “In some disability claims, the medical facts lead to an assessment of RFC 15 which is compatible with the performance of either sedentary or light work except 16 that the person must alternate between periods of sitting and standing.” SSR 83- 17 12, 1983 WL 31253, at *4. “In cases of unusual limitation of ability to sit or stand, 18 a [vocational specialist] should be consulted to clarify the implications for the 19 occupational base.” Id. Additionally, “[w]hen there is an apparent unresolved 20 conflict between [vocational expert] or [vocational specialist] evidence and the 21 DOT, the adjudicator must elicit a reasonable explanation for the conflict before 22 relying on the [vocational expert] or [vocational specialist].” SSR 00-4p, 2000 WL 23 1898704, at *2. However, where the DOT is “silent on whether the jobs in 24 question allow for a sit/stand option,” there is no conflict with a vocational expert’s 25 testimony that a claimant can perform a job with a sit/stand option. Dewey v. 26 Colvin, 650 F. App’x 512, 514 (9th Cir. 2016) (unpublished); see also Meyer v. 27 Astrue, No. CV 12-89-M-DLC-JCL, 2013 WL 1615893, at *7-*8 (D. Mont. Feb. 28 22, 2013) (SSR 00-4p satisfied where DOT did not address sit/stand option and ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 ALJ consulted vocational expert about limitation of claimant’s ability to sit or 2 stand pursuant to SSR 83-12). 3 Here, Plaintiff asserts the ALJ erred by failing to resolve a conflict between 4 the vocational expert’s testimony and the DOT. ECF No. 14 at 15. Specifically, 5 Plaintiff argues the ALJ’s determination that Plaintiff can perform modified light 6 work is not supported by substantial evidence based upon Plaintiff’s need to 7 change positions once an hour. ECF No. 14 at 15-16; Tr. 18. The ALJ consulted 8 the vocational expert, who testified that an individual with Plaintiff’s RFC would 9 be capable of performing the jobs of mail clerk, small parts assembler, and office 10 cleaner I. Tr. 51. The DOT is silent as to whether the three jobs identified by the 11 vocational expert allow for a sit/stand option. DOT 222.687-022, Routing Clerk, 12 1991 WL 672133; DOT 706.684-022, Assembler, Small Products I, 1991 WL 13 679050; DOT 323.687-014, Cleaner, Housekeeping, 1991 WL 672783. Therefore, 14 there was no conflict for the ALJ to resolve. The ALJ satisfied SSR 83-12 by 15 seeking the testimony of a vocational expert. SSR 83-12, 1983 WL 31253, at *4. 16 Even if there had been an apparent conflict, the vocational expert testified 17 based on her professional experience, stating that her testimony about each 18 identified job was “based on [her] experience in assisting and observing 19 individuals, actually doing this job.” Tr. 51-54. She testified that the mail clerk 20 position selected for Plaintiff allowed employees the “opportunity to sit, stand, and 21 move around, while they’re performing this job,” resolving any apparent conflict 22 with Plaintiff’s need to change positions once an hour. Tr. 51. The ALJ did not 23 err by relying on the vocational expert’s testimony at step five. 24 Plaintiff also argues that the ALJ erred by failing to ask the vocational expert 25 if her testimony was consistent with the DOT. ECF No. 14 at 15; SSR 00-4p, 2000 26 WL 1898704. SSR 00-4p imposes on the ALJ “an affirmative responsibility to ask 27 about any possible conflict between that [vocational expert] or [vocational 28 specialist] evidence and information provided in the DOT.” SSR 00-4p, 2000 WL ORDER GRANTING DEFENDANT’S MOTION . . . - 18 1 1898704, at *4. Here, although the ALJ stated in the decision, “Pursuant to SSR 2 00-4p, the undersigned has determined that the vocational expert’s testimony is 3 consistent with the information contained in the [DOT],” a review of the vocational 4 expert’s testimony reveals that the ALJ failed to affirmatively ask the expert 5 whether there was a conflict. Tr. 23, 49-55. The ALJ erred by failing to ask the 6 vocational expert if her testimony was consistent with the DOT. 7 An ALJ’s error is harmless where it is “inconsequential to the ultimate 8 nondisability determination.” Stout, 454 F.3d at 1055. Although the ALJ erred in 9 failing to ask the vocational expert whether her testimony was consistent with the 10 DOT, the error was harmless. Plaintiff’s ability to perform the duties of mail clerk 11 (695,000 jobs available in the U.S.), small parts assembler (241,000 jobs available 12 in the U.S), and office cleaner I (434,000 jobs available in the U.S.) is sufficient to 13 establish that Plaintiff can perform work which exists in significant numbers in the 14 national economy. Tr. 51. 15 CONCLUSION 16 Having reviewed the record and the ALJ’s findings, the Court finds the 17 ALJ’s decision should be affirmed. Therefore, IT IS HEREBY ORDERED: 18 19 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 20 2. 21 The District Court Executive is directed to file this Order and provide a copy 22 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 23 and the file shall be CLOSED. 24 25 IT IS SO ORDERED. DATED April 2, 2019. 26 27 28 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE ORDER GRANTING DEFENDANT’S MOTION . . . - 19
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