Brock v. Saul, No. 2:2019cv00063 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER Denying 14 Plaintiff's Motion for Summary Judgment and Granting 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (PL, Case Administrator)
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Brock v. Saul Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Nov 18, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 DONALD, B., 1 No. 2:19-cv-00063-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 2 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 15 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No. 15 16 1 To protect the privacy of plaintiffs in social security cases, the undersigned 17 identifies them by only their first names and the initial of their last names. 18 2 Andrew M. Saul is now the Commissioner of the Social Security Administration. 19 Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs 20 the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). 2 ORDER - 1 Dockets.Justia.com 1 8. The Court, having reviewed the administrative record and the parties’ briefing, 2 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 3 motion, ECF No. 14, and grants Defendant’s motion, ECF No. 15. 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 ORDER - 2 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 16 “of such severity that he is not only unable to do his previous work[,] but cannot, 17 considering his age, education, and work experience, engage in any other kind of 18 substantial gainful work which exists in the national economy.” 42 U.S.C. § 19 1382c(a)(3)(B). 20 2 ORDER - 3 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 3 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 4 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 5 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 6 C.F.R. § 416.920(b). 7 If the claimant is not engaged in substantial gainful activity, the analysis 8 proceeds to step two. At this step, the Commissioner considers the severity of the 9 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 10 “any impairment or combination of impairments which significantly limits [his or 11 her] physical or mental ability to do basic work activities,” the analysis proceeds to 12 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 13 this severity threshold, however, the Commissioner must find that the claimant is 14 not disabled. 20 C.F.R. § 416.920(c). 15 At step three, the Commissioner compares the claimant’s impairment to 16 severe impairments recognized by the Commissioner to be so severe as to preclude 17 a person from engaging in substantial gainful activity. 20 C.F.R. § 18 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 19 enumerated impairments, the Commissioner must find the claimant disabled and 20 award benefits. 20 C.F.R. § 416.920(d). 2 ORDER - 4 1 If the severity of the claimant’s impairment does not meet or exceed the 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 6 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 7 At step four, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing work that he or she has performed in 9 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 10 capable of performing past relevant work, the Commissioner must find that the 11 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 12 performing such work, the analysis proceeds to step five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 16 must also consider vocational factors such as the claimant’s age, education and 17 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 18 adjusting to other work, the Commissioner must find that the claimant is not 19 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 20 2 ORDER - 5 1 other work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 8 700 F.3d 386, 389 (9th Cir. 2012). 9 10 ALJ’S FINDINGS On August 24, 2016, Plaintiff applied for Title XVI supplemental security 11 income benefits alleging a disability onset date of August 1, 2012. Tr. 163-73. 12 The application was denied initially, Tr. 93-96, and on reconsideration, Tr. 98-100. 13 Plaintiff appeared before an administrative law judge (ALJ) on December 6, 2017. 14 Tr. 29-65. On March 7, 2018, the ALJ denied Plaintiff’s claim. Tr. 12-28. 15 At step one of the sequential evaluation process, the ALJ found Plaintiff has 16 not engaged in substantial gainful activity since August 24, 2016. Tr. 17. At step 17 two, the ALJ found that Plaintiff has the following severe impairments: borderline 18 personality disorder with anxiety and morbid obesity. Tr. 17. 19 At step three, the ALJ found Plaintiff does not have an impairment or 20 combination of impairments that meets or medically equals the severity of a listed 2 ORDER - 6 1 impairment. Tr. 17-18. The ALJ then concluded that Plaintiff has the RFC to 2 perform a full range of work at all exertional levels with the following limitations: 3 4 5 6 [H]e can never climb ladders, ropes, or scaffolds; he should avoid all exposure to unprotected heights; he must have a low stress environment, defined as only occasional job related decision making and only occasional changes in the work setting; work that involves only occasional and superficial interaction with co-workers and the public, with no tandem tasks; and work that does not involve crowds. His work should also be isolated with only occasional supervision/interaction with supervisors. 7 8 Tr. 18-19. 9 At step four, the ALJ found Plaintiff is unable to perform any past relevant 10 work. Tr. 23. At step five, the ALJ found that, considering Plaintiff’s age, 11 education, work experience, RFC, and testimony from the vocational expert, there 12 were jobs that existed in significant numbers in the national economy that Plaintiff 13 could perform, such as, field crop/farm worker, kitchen helper, and 14 housekeeper/cleaner. Tr. 24. Therefore, the ALJ concluded Plaintiff was not 15 under a disability, as defined in the Social Security Act, from the date of the 16 application though the date of the decision. Tr. 24. 17 On December 28, 2018, the Appeals Council denied review of the ALJ’s 18 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 19 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 20 2 ORDER - 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him supplemental security income benefits under Title XVI of the Social Security 4 Act. Plaintiff raises the following issues for review: 5 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 6 2. Whether the ALJ properly evaluated the medical opinion evidence. 7 ECF No. 14 at 13. 8 9 10 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 11 discrediting his symptom claims. ECF No. 14 at 13-15. An ALJ engages in a two12 step analysis to determine whether to discount a claimant’s testimony regarding 13 subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. “First, the ALJ must 14 determine whether there is objective medical evidence of an underlying 15 impairment which could reasonably be expected to produce the pain or other 16 symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). “The 17 claimant is not required to show that [the claimant’s] impairment could reasonably 18 be expected to cause the severity of the symptom [the claimant] has alleged; [the 19 claimant] need only show that it could reasonably have caused some degree of the 20 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 2 ORDER - 8 1 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of 3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 5 omitted). General findings are insufficient; rather, the ALJ must identify what 6 symptom claims are being discounted and what evidence undermines these claims. 7 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 8 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 9 explain why it discounted claimant’s symptom claims)). “The clear and 10 convincing [evidence] standard is the most demanding required in Social Security 11 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 12 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 13 Factors to be considered in evaluating the intensity, persistence, and limiting 14 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 15 duration, frequency, and intensity of pain or other symptoms; (3) factors that 16 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 17 side effects of any medication an individual takes or has taken to alleviate pain or 18 other symptoms; (5) treatment, other than medication, an individual receives or has 19 received for relief of pain or other symptoms; (6) any measures other than 20 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 2 ORDER - 9 1 any other factors concerning an individual’s functional limitations and restrictions 2 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. 3 §§ 416.929 (c). The ALJ is instructed to “consider all of the evidence in an 4 individual’s record,” “to determine how symptoms limit ability to perform work5 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 6 The ALJ found that Plaintiff’s medically determinable impairments could 7 cause Plaintiff’s alleged symptoms, but that Plaintiff’s statements concerning the 8 intensity, persistence, and limiting effects of his symptoms were not entirely 9 credible. Tr. 19. 10 1. Daily Activities 11 The ALJ found that Plaintiff’s claims of debilitating impairments were 12 inconsistent with his daily activities. Tr. 19. A claimant’s daily activities may 13 support an adverse credibility finding if (1) the claimant’s activities contradict [his] 14 other testimony, or (2) the claimant “is able to spend a substantial part of [his] day 15 engaged in pursuits involving performance of physical functions that are 16 transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 17 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). It is reasonable for an 18 ALJ to consider a claimant’s activities which undermine claims of totally disabling 19 pain in making the credibility determination. See Rollins v. Massanari, 261 F.3d 20 2 ORDER - 10 1 853, 857 (9th Cir. 2001). However, it is well-established that a claimant need not 2 be “utterly incapacitated” to be eligible for benefits. Fair, 885 F.2d at 603. 3 Here, the ALJ noted that Plaintiff “prepares meals, does household chores, 4 drives, shops, takes [his] son and wife to school and work, plays video games, 5 listens to music, watches television, and has reported being a stay at home dad.” 6 Tr. 19. He noted that Plaintiff indicated that recently he had been “playing his 7 guitar while watching television.” Tr. 18. The ALJ found these activities to be 8 inconsistent with Plaintiff’s allegations that he had “difficulty interacting and being 9 around people in general (with an almost paranoia element), dealing with stress 10 and difficulty focusing on more than one thing at a time.” Tr. 19. On balance, the 11 ALJ found that these activities, performed on a consistent basis, demonstrate that 12 Plaintiff “has more than just a minimal capacity to adapt to changes in his 13 environment or to demands not already part of [his] daily life,” and that he is able 14 to “be aware of normal hazards and take precautions, maintain his hygiene, and 15 make plans independent of others.” Tr. 18. 16 The ALJ did not base his finding of nondisability exclusively on Plaintiff’s 17 daily activities. Instead, the ALJ permissibly relied on this evidence, in part, to 18 reject Plaintiff’s contention that his reported symptoms of borderline personality 19 disorder, clinical depression, bipolar disorder, generalized anxiety order, and high 20 blood pressure (which included, for example, Tr. 202, difficulty dealing with any 2 ORDER - 11 1 stress or pressure, uncontrollable anger, and intense depression, Tr. 207, difficulty 2 focusing when agitated, making it impossible to remember, concentrate, 3 understand, follow instructions, and get along with others, Tr. 208, difficulty 4 handling stress and/or changes in routine, Tr. 43, agoraphobia, Tr. 49, nervousness, 5 paranoia, and panic attacks) substantially limit his functioning to the point of 6 “debilitat[ion].” Tr. 20; see Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 7 693 (9th Cir. 2009); Molina, 674 F.3d at 1113 (“[e]ven where [Plaintiff’s] 8 activities suggest some difficulty functioning, they may be grounds for discrediting 9 the claimant’s testimony to the extent that they contradict claims of a totally 10 debilitating impairment.”); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 11 (holding that the ALJ did not err in finding that the claimant’s ability to care for 12 her own personal needs, cook, clean, shop, interact with family, and manage her 13 finances suggested that the claimant “was quite functional” and undermined the 14 alleged severity of her impairments). As in Molina, Plaintiff’s daily activities are 15 relevant to the alleged degree of severity of his specific symptoms including 16 allegedly debilitating panic attacks, anxiety affecting his ability to engage with 17 others, and debilitating depression. Although the evidence of Plaintiff’s daily 18 activities could form the basis of an interpretation more favorable to Plaintiff, the 19 ALJ’s interpretation was rational, and the Court must uphold the ALJ’s decision 20 2 ORDER - 12 1 where the evidence is susceptible to more than one rational interpretation.” See 2 Burch, 400 F.3d at 680-81 (internal quotation marks and alterations omitted). 3 In addition, the ALJ found that the RFC would sufficiently accommodate 4 Plaintiff’s asserted limitations. Tr. 19. The RFC mandates a “low stress 5 environment,” with only occasional job-related decision making and changes in the 6 work setting. Tr. 18. It requires only occasional and superficial interaction with 7 co-workers and the public and prohibits Plaintiff from working with crowds. Tr. 8 19. It allows for only occasional supervision and interaction with supervisors, 9 ensuring that Plaintiff is relatively isolated from interacting with others at work. 10 Tr. 19. In these ways, the RFC addresses the complaints reported by Plaintiff by 11 reducing the likelihood of workplace stress or performance-based pressure, by 12 limiting workplace changes to allow for stability and routine, and by insulating 13 Plaintiff to a reasonable extent from interaction. As such, Plaintiff’s reported 14 limitations do not call for a more restrictive RFC than set forth by the ALJ. 15 2. Positive Response to Treatment 16 The ALJ found Plaintiff’s allegations were inconsistent with his record of 17 positive responses to treatment. Tr. 19. The effectiveness of medication and 18 treatment is a relevant factor in determining the severity of a claimant’s symptoms. 19 20 C.F.R. § 416.929(c)(3); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 20 1001, 1006 (9th Cir. 2006) (conditions effectively controlled with medication are 2 ORDER - 13 1 not disabling for purposes of determining eligibility for benefits) (internal citations 2 omitted); see also Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a 3 favorable response to treatment can undermine a claimant’s complaints of 4 debilitating pain or other severe limitations). In his opening brief, Plaintiff failed 5 to present argument on this reason, thus, waiving any challenge. See ECF No. 14 6 at 13-15; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th 7 Cir. 2008) (determining Court may decline to address on the merits issues not 8 argued with specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the 9 Court may not consider on appeal issues not “specifically and distinctly argued” in 10 the party’s opening brief). However, the Court conducted an independent review 11 of the ALJ’s decision and determines the reason is supported by substantial 12 evidence in the record. 13 The ALJ noted that “after finally beginning treatment in August 2016, 14 [Plaintiff] has continued to be noted to be doing well and improving.” Tr. 19 15 (citing Tr. 293-347, 357-404, 418-62). The record contains numerous reports 16 indicating improvement of Plaintiff’s mental impairments with treatment. See Tr. 17 298 (Plaintiff reports doing “fairly well overall,” is able to accomplish tasks, has 18 increased focus, experiences more transient and less severe self-harm thoughts, and 19 has some anxiety which “appears to be situational;” “meds are helping, depression 20 and anxiety don’t last as long”); Tr. 358 (describes helpfulness of anxiety diary; 2 ORDER - 14 1 describes being able to hold a conversation with stranger using learned 2 techniques); Tr. 420 (reports that duration and intensity of depression and anxiety 3 has changed, that he is more frequently able to successfully go out in public, and 4 that his anger is “much more under [his] control now”); Tr. 426 (reports ability to 5 stay out in a public setting on eight of the last nine days); Tr. 432 (reports spending 6 10 hours outside the house last week); Tr. 437 (reports ability to remain in a public 7 space for four hours on July 4th and reduced “overall emotion misery”); Tr. 439 8 (Plaintiff reports he is progressing). 9 In reply, Plaintiff argues that the records indicate regression rather than 10 improvement, pointing to reports noting that an increased dosage of medication 11 was prescribed, self-reported increased hypervigilance and anxiety, and self12 reported increased depression. See ECF No. 16 at 5-7 (citing Tr. 361-63, 375-77, 13 387-89, 419-21, 427-30, 449-52). However, even acknowledging the presence of 14 these reports, the ALJ reasonably interpreted the record as a whole as 15 demonstrating improvement of symptoms with treatment. Where the ALJ’s 16 interpretation of the record is reasonable as it is here, it should not be second17 guessed. Rollins, 261 F.3d at 857. This was a clear and convincing and 18 unchallenged reason to find Plaintiff’s symptom claims less credible. 19 20 2 ORDER - 15 1 3. Inconsistency with Objective Medical Evidence 2 The ALJ found that Plaintiff’s assertions regarding the magnitude of his 3 suicidal thoughts at the hearing were inconsistent with the treatment notes in the 4 record. Tr. 19. An ALJ may not discredit a claimant’s symptom testimony and 5 deny benefits solely because the degree of the symptoms alleged is not supported 6 by objective medical evidence. Rollins, 261 F.3d at 857; Bunnell v. Sullivan, 947 7 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601. The medical evidence is a 8 relevant factor in determining the severity of a claimant’s pain and its disabling 9 effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 416.929(c)(2). Minimal objective 10 evidence is a factor which may be relied upon in discrediting a claimant’s 11 testimony, although it may not be the only factor. See Burch, 400 F.3d at 680. 12 At the hearing, Plaintiff described having suicidal thoughts “everyday all the 13 time,” but explained that the thoughts do not go to the level of intention. Tr. 50. 14 The ALJ found that Plaintiff’s assertions were “undermined by his treatment notes, 15 which show that he was doing well and benefitting from treatment.” Tr. 19. 16 Plaintiff merely repeats the finding of the ALJ but does not otherwise refute it. 17 ECF No. 14 at 14. The record is replete with reports concerning Plaintiff’s 18 suicidal/homicidal/self-injurious thoughts and behavior or lack thereof; reports 19 consistently state Plaintiff “denies any plan or intent to harm self of others.” See 20 e.g., Tr. 297, 304, 306, 309, 312, 316. However, other reports document suicidal 2 ORDER - 16 1 ideation and homicidal ideation. Tr. 300 (Plaintiff has a passive without plan or 2 intentful suicidal ideation); Tr. 313 (Plaintiff reports he has “constant thoughts of 3 suicide,” but does not have “plans or intent” to carry out those thoughts); Tr. 330 4 (Plaintiff states that he has tried to kill himself “more times than I can count”); Tr. 5 376 (Plaintiff reports homicidal ideation regarding an eight-year-old neighbor). 6 The ambiguity in the record is furthered by Plaintiff’s documented unwillingness 7 to disclose suicidal/homicidal thoughts to his doctors. Tr. 366-67, 372-75. 8 Based on the record, the ALJ’s conclusion that the treatment notes were 9 inconsistent with Plaintiff’s testimony regarding suicidal ideation is not supported 10 by substantial evidence. Nevertheless, this error is harmless where, as discussed 11 supra, the ALJ lists additional reasons, supported by substantial evidence, for 12 discrediting Plaintiff’s symptom complaints. See Carmickle, 533 F.3d at 1162-63; 13 Molina, 674 F.3d at 1115 (“[S]everal of our cases have held that an ALJ’s error 14 was harmless where the ALJ provided one or more invalid reasons for disbelieving 15 a claimant’s testimony, but also provided valid reasons that were supported by the 16 record.”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 17 2004) (holding that any error the ALJ committed in asserting one impermissible 18 reason for claimant’s lack of credibility did not negate the validity of the ALJ’s 19 ultimate conclusion that the claimant’s testimony was not credible). 20 2 ORDER - 17 1 Here, the ALJ provided clear and convincing reasons supported by 2 substantial evidence to discount Plaintiff’s symptom complaints. 3 4 B. Medical Opinion Evidence Plaintiff contends the ALJ improperly weighed the medical opinions of 5 Dennis Dyck, Ph.D., Nancy Winfrey, Ph.D., Joe Anderson, Ph.D., Michael Regets, 6 Ph.D., and Howard Platter, M.D. ECF No. 14 at 16-17. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 but who review the claimant’s file (nonexamining or reviewing physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 12 “Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s, and an examining physician’s opinion carries more weight than a 14 reviewing physician’s.” Id. “In addition, the regulations give more weight to 15 opinions that are explained than to those that are not, and to the opinions of 16 specialists concerning matters relating to their specialty over that of 17 nonspecialists.” Id. (citations omitted). 18 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 19 reject it only by offering “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 2 ORDER - 18 1 “However, the ALJ need not accept the opinion of any physician, including a 2 treating physician, if that opinion is brief, conclusory and inadequately supported 3 by clinical findings.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 4 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 5 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 6 may only reject it by providing specific and legitimate reasons that are supported 7 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8308 31). 9 10 1. Dr. Dyck On December 9, 2016, Dr. Dyck conducted a consultative mental evaluation 11 after reviewing Frontier Behavioral Health progress notes from August 1, 2015 12 through October 4, 2016, and a Community Health Associates of Spokane 13 encounter note dated July 27, 2016. Tr. 288-95. Dr. Dyck diagnosed Plaintiff with 14 Borderline Personality Disorder and noted that Plaintiff has “long standing 15 problems in regulating his emotions and limited social skills.” Tr. 291. In terms of 16 functional abilities, Dr. Dyck found “claimant has some impairment in his ability 17 to reason and understand,” mild impairments in concentration and persistence, 18 moderate impairments in his abilities to interact with co-workers and the public 19 and to maintain regular attendance in the workplace, and marked impairments in 20 2 ORDER - 19 1 his abilities to complete a normal day or work week without interruption from 2 symptoms and to deal with the usual stresses of the workplace. Tr. 291. 3 The ALJ gave partial weight to Dr. Dyck’s opinion. Tr. 22. As Dr. Dyck’s 4 opinion was contradicted by Dr. Winfrey’s opinion, the ALJ was required to 5 provide specific and legitimate reasons for rejecting Dr. Dyck’s opinion. Bayliss, 6 427 F.3d at 1216. 7 First, the ALJ found Dr. Dyck’s opinion was “not supported by his 8 unremarkable examination with the claimant.” Tr. 22. A medical opinion may be 9 rejected if it is unsupported by medical findings, Bray, 554 F.3d at 1228; Batson, 10 359 F.3d at 1195; Thomas, 278 F.3d at 957; Tonapetyan v. Halter, 242 F.3d 1144, 11 1149 (9th Cir. 2001); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992), or 12 by the physician’s own treatment notes. Connett v. Barnhart, 340 F.3d 871, 875 13 (9th Cir. 2003). Plaintiff failed to challenge this issue in his opening brief and thus 14 waived any challenge to the ALJ’s finding. See Carmickle, 533 F.3d at 1161 n.2. 15 However, the Court conducted an independent review of the ALJ’s decision and 16 finds that this was a specific and legitimate reason to reject the opinion. 17 Dr. Dyck’s examination notes indicate Plaintiff’s general appearance was 18 normal, he was reasonably well groomed, there was no evidence of psychomotor 19 agitation or retardation, he was cooperative, he had normal speech and goal20 oriented thought processing, he was well-oriented, he had a good memory and fund 2 ORDER - 20 1 of knowledge, he “generally had little difficulty in following the conversation,” 2 and he is aware of his emotional dysregulation problems and is learning coping 3 skills and benefitting from treatment. Tr. 290-91. These examination notes, 4 coupled with the relatively mild limitations identified by Dr. Dyck (i.e., mild 5 impairment in concentrating based on concentration test and moderate impairment 6 in working with others), were reasonably interpreted to be inconsistent with Dr. 7 Dyck’s conclusion that Plaintiff would have moderate to marked impairments in 8 his ability to regularly attend work, complete a normal workday, and deal with the 9 usual stress of working with or being around others. Accordingly, the ALJ’s 10 finding constitutes a specific and legitimate reason to give only partial weight to 11 Dr. Dyck’s opinion. 12 Second, the ALJ discounted Dr. Dyck’s opinions as being based on 13 Plaintiff’s unreliable symptom complaints. Tr. 22. A physician’s opinion may be 14 rejected if it is too heavily based on a claimant’s properly discounted complaints. 15 Tonapetyan, 242 F.3d at 1149. While Dr. Dyck was able to examine Plaintiff, the 16 ALJ found that his functional assessment and ultimate opinions were founded on 17 Plaintiff’s self-reports, rather than on personal observations during the exam and/or 18 objective evidence. Tr. 22. Dr. Dyck’s prognosis and functional assessment 19 appear to corroborate this, particularly where his own examination notes were 20 relatively unremarkable, as discussed supra. For example, in stating that Plaintiff 2 ORDER - 21 1 will need reminders to complete tasks, Dr. Dyck writes, “claimant does describe 2 [sic] his ability to follow through on tasks in his home but will require reminders to 3 do so.” Tr. 291. Dr. Dyck refers to Plaintiff’s self-report that his mood regulation 4 problems caused “significant interpersonal challenges in his personal life and prior 5 work environments,” to conclude that such mood symptoms would result in a 6 moderate to marked impairment in his ability to maintain regular attendance at 7 work. Tr. 291. While Plaintiff may disagree with the ALJ’s interpretation of the 8 evidence, the ALJ’s determination that Dr. Dyck’s findings were based on 9 Plaintiff’s properly discredited self-reports was reasonable and supported by 10 substantial evidence. The ALJ’s finding constitutes a specific and legitimate 11 reason to give only partial weight to Dr. Dyck’s assessment. 12 Third, the ALJ found that Dr. Dyck’s extreme limitations were inconsistent 13 with Plaintiff’s daily activities. Tr. 22. An ALJ may discount a medical source 14 opinion to the extent it conflicts with the claimant’s daily activities. Morgan v. 15 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). Specifically, 16 the ALJ concluded that Dr. Dyck’s opinion that Plaintiff had a marked impairment 17 in his ability to complete a normal day/work week without interruptions from his 18 symptoms was inconsistent with “claimant’s reported activities of daily living.” 19 Tr. 22. The ALJ noted that Plaintiff reported driving his wife and son to work and 20 school regularly and completing daily chores. Tr. 22; see Tr. 203, 211-17. The 2 ORDER - 22 1 ALJ’s determination that Dr. Dyck’s finding of a marked impairment was 2 inconsistent with Plaintiff’s reported daily activities is supported by substantial 3 evidence and constitutes a specific and legitimate reason to reject the finding. 4 2. Dr. Winfrey 5 Dr. Winfrey reviewed Plaintiff’s medical records and served as an impartial 6 medical expert at Plaintiff’s hearing on December 6, 2017. See Tr. 29-65. Dr. 7 Winfrey testified that Plaintiff’s records indicated two diagnoses, borderline 8 personality disorder and major depressive disorder, however, she determined that 9 there was not “enough symptomatology to confirm,” the major depressive disorder 10 diagnosis as a severe impairment. Tr. 22. Dr. Winfrey opined the following 11 limitations: moderate limitation in interacting with others; mild limitations in 12 concentrating, persisting, or maintaining pace; and moderate limitation for 13 adapting/managing self. Tr. 22. As to Plaintiff’s functional abilities, Dr. Winfrey 14 noted he should not have constant supervision or interaction with supervisors, that 15 he should not engage in teamwork or tandem tasks with coworkers, that he should 16 not work in settings involving crowds or a dense number of people in the same 17 space, and that he should only work in a low stress environment. Tr. 22. 18 Ultimately, Dr. Winfrey concluded that Plaintiff was not limited regarding skill 19 level of employment. Tr. 22. 20 2 ORDER - 23 1 The ALJ gave significant weight to Dr. Winfrey’s testimony. Tr. 22. 2 Generally, an ALJ should accord more weight to the opinion of an examining 3 physician than to that of a nonexamining physician. See Andrews v. Shalala, 53 4 F.3d 1035, 1040-41 (9th Cir. 1995). However, an ALJ may credit the opinion of a 5 nonexamining expert who testifies at the hearing and is subject to cross6 examination. Id. at 1042 (citing Torres v. Sec’y of H.H.S., 870 F.2d 742, 744 (1st 7 Cir. 1989)). The opinion of a nonexamining physician may serve as substantial 8 evidence if it is supported by other evidence in the record and is consistent with it. 9 Id. at 1041. Plaintiff’s argument in his opening brief consists of the following, 10 “[t]he ALJ has committed reversible error … by giving ‘significant weight’ to the 11 testimony of the non-examining non-treating doctor that testified as a ME at the 12 hearing. As noted, the ME erroneously thought that [Plaintiff] went to college.” 13 ECF No. 14 at 17. Because Plaintiff failed to develop this argument with any 14 specificity, it is waived. See Carmickle, 533 F.3d at 1161 n.2 (9th Cir. 2008) 15 (determining Court may decline to address on the merits issues not argued with 16 specificity); Kang, 154 F.3d at 1000 (the Court may not consider on appeal issues 17 not “specifically and distinctly argued” in the party’s opening brief). The Court 18 has independently reviewed the issue and concludes that the ALJ’s decision was 19 sufficiently supported. 20 2 ORDER - 24 1 Dr. Winfrey testified at the hearing and was subject to cross examination by 2 Plaintiff’s counsel. Tr. 22. The ALJ provided several reasons for giving more 3 weight Dr. Winfrey’s opinions. Tr. 22. First, the ALJ noted that Dr. Winfrey had 4 considerable expertise and familiarity with Social Security disability evaluation 5 criteria. Tr. 22. Because, the ALJ may consider a medical provider’s familiarity 6 with “disability programs and their evidentiary requirements” when evaluating a 7 medical opinion, Orn, 495 F.3d at 631, this was a permissible reason to credit Dr. 8 Winfrey’s testimony. Second, the ALJ noted that Dr. Winfrey had the “entire 9 record for review.” Tr. 22. The extent to which a medical source is “familiar with 10 the other information in [the claimant’s] case record” is relevant in assessing the 11 weight of that source’s medical opinion. See 20 C.F.R. § 416.927(c)(6). Dr. 12 Winfrey testified to having reviewed all relevant medical records before reaching 13 her opinion. 3 14 15 16 3 In comparison, Dr. Dyck reported that he reviewed “Frontier Behavioral Health 17 progress notes inclusive of 8/1/15 through 10/4/16,” and only one examination 18 note from CHAS dated 7/27/16. Tr. 288. CHAS saw Plaintiff from 7/27/2016 19 through 7/25/2017. See Tr. 279-87, 348-55, 405-17. 20 2 ORDER - 25 1 On reply, Plaintiff argues that Dr. Winfrey did not testify that “she had a 2 high level of understanding of Social Security disability programs,” and that “ just 3 because [a] regulation states that the agency’s medical and psychological 4 consultants are highly qualified…does not mean that they are aware of the extent 5 of a disability claimant’s medical condition and psychological condition.” ECF 6 No. 16 at 9-10. However, Dr. Winfrey testified that she reviewed Plaintiff’s 7 medical records in full, Tr. 33, and demonstrated knowledge of the record 8 throughout her testimony. Tr. 34-42. Moreover, Plaintiff did not object to having 9 Dr. Winfrey testify as a medical expert at the hearing or otherwise question her 10 qualifications, Tr. 34, which are documented in the record. Tr. 463-65 (licensure, 11 education, and professional activities). Based on Dr. Winfrey’s familiarity with 12 the record and qualifications, the ALJ afforded significant weight to her opinion. 13 Finally, the ALJ found that Dr. Winfrey’s assessment of Plaintiff’s 14 limitations was substantially supported by and consistent with the record. Tr. 22. 15 An ALJ may choose to give more weight to an opinion that is more consistent with 16 the evidence in the record. 20 C.F.R. § 416.927(c)(4) (“[T]he more consistent an 17 opinion is with the record as a whole, the more weight we will give to that 18 opinion.”); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). Relevant 19 factors when evaluating a medical opinion include the amount of relevant evidence 20 that supports the opinion, the quality of the explanation provided in the opinion, 2 ORDER - 26 1 and the consistency of the medical opinion with the record as a whole. 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631; 3 20 C.F.R. § 416.927(c)(6) (assessing the extent to which a medical source is 4 “familiar with the other information in [the claimant’s] case record”). 5 Dr. Winfrey’s assessment of Plaintiff’s limitations accounted for particular 6 limitations (interacting with others, concentrating, persisting, or maintaining pace, 7 and adapting and managing oneself), explained the source of those limitations 8 (borderline personality disorder, anxiety around crowds, anger management and 9 homicidal ideation), explained the functional limitations resulting from those 10 limitations (need for limited supervision, inability to work closely with co-workers, 11 public, or in crowds, need for a low stress work environment), and concluded that 12 Plaintiff could do any level of work so long as it was in a low stress environment. 13 See Tr. 22, 35-42. These limitations and their sources are consistent with the 14 record as a whole; the record shows limitations due to Plaintiff’s mental 15 impairments while also demonstrating Plaintiff can interact with others in smaller 16 groups, see e.g., Tr. 294 (Plaintiff states “he really likes” his anger management 17 class because he met other individuals dealing with similar struggles), that Plaintiff 18 can focus on and complete tasks in the right environment, Tr. 33, 296 (completed 19 AA in general studies, Bachelor degree in psychology, and Master’s degree in 20 organizational psychology); Tr. 194 (worked at Integrated Personnel for nine 2 ORDER - 27 1 months); Tr. 293-347, 356-404, 418-62 (routinely completed homework for 2 treatment including cognitive coping worksheets and diary cards); Tr. 202-17, 291 3 (performs daily activities including driving son and wife to school and work, 4 feeding and caring for pets, and household chores, and engages in hobbies 5 including playing videogames, writing science fiction, building models, 6 communicating with friends online, and playing bass guitar), and that Plaintiff 7 benefits from treatment, as discussed supra. 8 Plaintiff argues that Dr. Winfrey’s testimony is not consistent with the 9 record and points out erroneous facts and impressions relied upon by Dr. Winfrey. 10 ECF No. 16 at 2-3. For example, Plaintiff asserts that Dr. Winfrey’s assessment 11 was based on misimpressions that Plaintiff attended college in person, that Plaintiff 12 did not have severe depression, and that Plaintiff “does activities outside of his 13 home with his son.” ECF No. 16 at 2-3. Except to the extent Plaintiff argues these 14 misimpressions impacted Dr. Winfrey’s view of Dr. Dyck’s credibility, he does not 15 explain how they impact the limitations Dr. Winfrey identified. Plaintiff further 16 argues that the treatment records are at odds with Dr. Winfrey’s opinion and 17 highlights several records that he asserts indicate worsening symptoms. ECF No. 18 16 at 2-3. The record does contain self-reports indicating increased symptoms at 19 times: depression (Tr. 303, 393, 425); desire to engage in self-harm (Tr. 309, 386); 20 hypervigilance/anxiety (Tr. 376, 397, 418). However, the ALJ discredited 2 ORDER - 28 1 Plaintiff’s subjective symptom testimony for clear and convincing reasons, as 2 discussed supra. Moreover, the Court may not reverse the ALJ’s decision based 3 on Plaintiff’s disagreement with the ALJ’s interpretation of the record. See 4 Tommasetti, 533 F.3d at 1038. 5 The ALJ identified specific and legitimate reasons supported by substantial 6 evidence for crediting Dr. Winfrey’s opinion. 7 3. Remaining Nonexamining Doctors 8 The ALJ gave partial weight to the opinions of State agency psychological 9 consultants Jon Anderson, Ph.D. and Michael Regets, Ph.D., and to medical 10 examiner Howard Platter, M.D. Tr. 21. Each doctor determined that Plaintiff did 11 not have disabling impairments. See Tr. 66-77, 79-81. In particular, Dr. Anderson 12 and Dr. Regets found that Plaintiff’s alleged mental impairments did not equate to 13 a disability. Tr. 70, 87. Dr. Platter found that Plaintiff did not have a severe 14 medical impairment. Tr. 84. In giving partial weight to the opinions, the ALJ 15 reasoned the assessments “continued to be an accurate reflection of the claimant’s 16 record and functional capacity,” and were supported by Plaintiff’s daily activities, 17 ability to adapt, and independence. Tr. 21. 18 Plaintiff summarily asserts that the opinions of the nonexamining doctors are 19 “not consistent with the treatment records at Frontier Behavioral Health and there 20 is no evidence of any significant improvement,” in Plaintiff’s symptoms. ECF No. 2 ORDER - 29 1 16 at 7-8. Despite Plaintiff’s belief that “the ALJ committed reversible error by 2 giving partial weight to the opinion of the State Agency psychological 3 consultants,” he does not provide any substantive argument or explanation for this 4 Court to review. See ECF No. 14 at 16-17. Accordingly, any challenge to those 5 findings is waived. See Carmickle, 533 F.3d at 1161 n.2 (determining Court may 6 decline to address on the merits issues not argued with specificity); Kang, 154 F.3d 7 at 1000 (the Court may not consider on appeal issues not “specifically and 8 distinctly argued” in the party’s opening brief); McPherson v. Kelsey, 125 F.3d 9 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, 10 unaccompanied by some effort at developed argumentation, are deemed waived. It 11 is not sufficient for a party to mention a possible argument in a most skeletal way, 12 leaving the court to ... put flesh on its bones.”). 13 14 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 15 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 16 Accordingly, IT IS HEREBY ORDERED: 17 1. The District Court Executive is directed to substitute Andrew M. Saul as 18 the Defendant and update the docket sheet. 19 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 20 2 ORDER - 30 1 3. Defendant’s Motion for Summary Judgment, ECF No. 15, is 2 GRANTED. 3 4. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 4 The District Court Executive is directed to file this Order, provide copies to 5 counsel, and CLOSE THE FILE. 6 DATED November 18, 2019. 7 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 31
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