Calixto v. Commissioner of Social Security, No. 2:2019cv00228 - Document 17 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 10 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. This file is CLOSED. Signed by Judge Rosanna Malouf Peterson. (LTR, Case Administrator)

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13 inconsequential to the ultimate nondisability determination”). Therefore, the Court 14 will not disturb the ALJ’s treatment of Plaintiff’s symptom statements. 15 2. Medical Opinions 16 Plaintiff argues that the ALJ failed to properly weigh the medical opinions 17 from Kirsten Nestler, M.D., Kayleen Islam-Zwart, Ph.D., Christopher Korsgaard, 18 M.S., F.N.P, and the non-examining medical experts. ECF No. 10 at 15-19. 19 If a treating or examining physician's opinion is uncontradicted, the ALJ 20 may reject it only by offering “clear and convincing reasons that are supported by 21 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 2:19-cv-00228-FVS ECF No. 17 filed 08/14/20 PageID.792 Page 13 of 18 1 Conversely, “[i]f a treating or examining doctor's opinion is contradicted by 2 another doctor's opinion, an ALJ may only reject it by providing specific and 3 legitimate reasons that are supported by substantial evidence.” Id. (citing Lester, 4 81 F.3d at 830-31). 5 A. 6 On May 21, 2017, Dr. Nestler completed a consultative examination of Kirsten Nestler, M.D. 7 Plaintiff. Tr. 560-64. Dr. Nestler diagnosed Plaintiff with unspecified personality 8 disorder, unspecified psychotic disorder, rule out bipolar disorder, PTSD by 9 history, unspecified anxiety disorder, and ADHD. Tr. 563. Dr. Nestler found 10 Plaintiff would have difficulty interacting with coworkers and the public, difficulty 11 maintaining regular attendance in the workplace, and difficulty dealing with the 12 usual stress encountered in the workplace. Tr. 564. Otherwise, Dr. Nestler opined 13 Plaintiff would not have difficulty in the remaining functional abilities she 14 addressed. Id. 15 The ALJ gave Dr. Nestler’s opinion some weight, finding that it was 16 internally inconsistent and finding that matters such as the abilities to maintain 17 attendance and complete a normal workweek were not susceptible to assessment in 18 a one-time exam. Tr. 23-24. Plaintiff failed to challenge the reasons the ALJ 19 provided for only assigning the opinion some weight. Plaintiff discussed the ALJ’s 20 finding that Dr. Nestler’s examination included some normal findings. ECF No. 21 10 at 17-18 citing Tr. 19. However, the ALJ’s discussion of Dr. Nestler’s normal ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 2:19-cv-00228-FVS ECF No. 17 filed 08/14/20 PageID.793 Page 14 of 18 1 findings were not applicable to the weight the ALJ assigned to the opinion several 2 pages later. Tr. 23-24. Because Plaintiff failed to challenge the ALJ’s treatment of 3 Dr. Nestler’s opinion, the Court will not consider this issue further. See Carmickle, 4 533 F.3d at 1161 n.2. 5 B. 6 On February 28, 2017, Dr. Islam-Zwart completed a Kayleen Islam-Zwart, Ph.D. 7 Psychological/Psychiatric Evaluation for the Washington Department of Social and 8 Health Services (DSHS). Tr. 630-38. She diagnosed Plaintiff with PTSD, bipolar 9 I disorder, attention deficit disorder, and unspecified personality disorder. Tr. 631. 10 She opined that Plaintiff had a marked limitation in the abilities to perform 11 activities within a schedule, maintain regular attendance, and be punctual within 12 customary tolerances without special supervision, to adapt to changes in a routine 13 work setting, and to complete a normal work day and work week without 14 interruptions from psychologically based symptoms. Id. She further opined that 15 Plaintiff had a moderate limitation in six additional basic work activities. Id. The 16 ALJ gave Dr. Islam-Zwart’s opinion little weight with the following explanation: 17 18 19 [I]t was based on a cursory exam with no significant testing, and what little objective findings were made were largely normal. Moreover, it was completed on a checkbox form with little explanation for her conclusions. Matters like the ability to maintain attendance and complete a normal work day/week are not susceptible to assessment in a one-time exam. 20 Tr. 24. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 2:19-cv-00228-FVS 1 ECF No. 17 filed 08/14/20 PageID.794 Page 15 of 18 The ALJ’s first reason for rejecting Dr. Islam-Zwart’s opinion, that it was 2 based on a cursory exam with no significant testing, is not supported by substantial 3 evidence. Dr. Islam-Zwart completed a clinical interview, a Mini-Mental Status 4 Exam, Trails Making Test, and the Fifteen Item Memory Test. Tr. 637. Therefore, 5 the ALJ’s finding that Dr. Islam-Zwart’s opinion was not based on any significant 6 testing is not supported by substantial evidence. 7 The ALJ’s second reason for rejecting Dr. Islam-Zwart’s opinion, that the 8 little objective findings made in her evaluation were largely normal, is specific and 9 legitimate. Inconsistency with the majority of objective evidence is a specific and 10 legitimate reason for rejecting physician’s opinions. Batson, 359 F.3d at 1195; see 11 also Lester, 81 F.3d at 831 (The ALJ may give weight to consulting opinions “only 12 insofar as they are supported by evidence in the case record.”). Plaintiff’s testing 13 revealed normal results. Tr. 637. Dr. Islam-Zwart performed the Mini-Mental 14 Status Exam and stated that Plaintiff “exhibited mental control within normal 15 limits.” Id. On the Trails Making Test, Plaintiff’s scores fell within normal limits. 16 Id. On the Fifteen Item Memory Test, Plaintiff recalled 15 out of the 15 items. Id. 17 Therefore, the ALJ is accurate in finding that Plaintiff’s testing showed normal 18 results. 19 The ALJ’s third reason for rejecting Dr. Islam-Zwart’s opinion, that it was 20 on a check-box form, is specific and legitimate. The Ninth Circuit has stated a 21 preference for individualized medical opinions over check-box reports. See ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 2:19-cv-00228-FVS ECF No. 17 filed 08/14/20 PageID.795 Page 16 of 18 1 Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). However, check-the-box 2 forms that do not stand alone, but are supported by records, should be “entitled to 3 weight that an otherwise unsupported and unexplained check-box form would not 4 merit.” Garrison, 759 F.3d at 1013. Here, Dr. Islam-Zwart’s evaluation is 5 included with the check-box form, but this evaluation demonstrated normal results 6 on testing and little explanation for the severity of limitations opinions. Tr. 637. 7 Therefore, this meets the specific and legitimate standard. 8 C. 9 Plaintiff was treated by Mr. Korsgaard beginning in May of 2017 for her 10 mental health impairments, and his treatment reports are in the record. Tr. 565- 11 620. Plaintiff argues that the ALJ erred by not giving these treatment records great 12 weight. ECF No. 10 at 19. 13 Christopher Korsgaard, M.S., F.N.P The ALJ is required to evaluate and weigh every medical opinion in the 14 record. 20 C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c). A medical opinion is 15 defined as “statements from acceptable medical sources that reflect judgments 16 about the nature and severity of your impairment(s), including your symptoms, 17 diagnosis and prognosis, what you can still do despite impairment(s), and your 18 physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). 19 Mr. Korsgaard’s treatment notes are not medical opinions as defined in 20 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Therefore, the ALJ was not required to 21 weigh them or provide reasons for not adopting his opinions. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 2:19-cv-00228-FVS ECF No. 17 filed 08/14/20 PageID.796 Page 17 of 18 1 D. 2 Plaintiff argues that ALJ erred by crediting the opinions of non-examining, 3 non-treating doctors. ECF No. 10 at 19. The non-examining, non-treating doctor 4 Plaintiff specifically discusses in her briefing is Colette Vallette, Ph.D. Id. at 17. Non-examining Medical Experts 5 Dr. Vallette testified at the June 15, 2018 hearing. Tr. 40-47. She opined 6 that Plaintiff had bipolar disorder and ADHD. Tr. 40. She provided an opinion 7 regarding the B Criteria addressed in steps two and three. Tr. 41-42. She did not 8 provide an opinion regarding Plaintiff’s RFC, but did state that she relied on Dr. 9 Nestler’s and Dr. Islam-Zwart’s normal test results. Tr. 45. In regard to Dr. 10 Nestler’s opinion, she stated “it seems like Dr. Nestler took - - put too much weight 11 on what the claimant said and doesn’t put a lot of weight on what is actually 12 observed, because her mental status is normal.” Id. In regard to Dr. Islam-Zwart’s 13 opinion, she stated that Dr. Islam-Zwart’s finding is “totally inconsistent with a 14 normal mental status,” but the portion that Dr. Islam-Zwart’s opinion that Dr. 15 Valette is discussing is inaudible in the transcript. Id. The ALJ stated that he 16 found “her testimony persuasive,” and gave it “great weight.” Tr. 23. 17 Here, Plaintiff has not succeeded in successfully challenging the ALJ’s 18 treatment of the opinions of the examining doctors, Dr. Nestler, Dr. Islam-Zwart, 19 and Mr. Korsgaard. Therefore, the Court will not disturb the ALJ’s treatment of 20 Dr. Valette’s testimony. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 2:19-cv-00228-FVS ECF No. 17 1 2 filed 08/14/20 PageID.797 Page 18 of 18 CONCLUSION A reviewing court should not substitute its assessment of the evidence for 3 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must 4 defer to an ALJ’s assessment so long as it is supported by substantial evidence. 42 5 U.S.C. § 405(g). As discussed in detail above, Plaintiff failed to adequately 6 challenge the ALJ’s treatment of her symptom statements and the ALJ did not err 7 in his treatment of the opinions. After review, the court finds the ALJ’s decision is 8 supported by substantial evidence and free of harmful legal error. 9 ACCORDINGLY, IT IS HEREBY ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 12 13 GRANTED. The District Court Executive is hereby directed to enter this Order and 14 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE 15 the file. 16 DATED August 14, 2020. 17 18 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 19 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18

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