Alderson v. Saul, No. 2:2019cv00349 - Document 18 (E.D. Wash. 2020)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 14 ) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 16 ). File closed. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)
Download PDF
<![CDATA[
Alderson v. Saul Doc. 18 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.844 Page 1 of 34 1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Jun 02, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 TATIANA A.,1 No. 2:19-cv-00349-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 16 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 16. The parties consented to proceed before a magistrate judge. ECF No. 15 7. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 2 ORDER - 1 Dockets.Justia.com Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.845 Page 2 of 34 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 14, and grants Defendant’s motion, ECF No. 15. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 5 6 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 reviewing court must consider the entire record as a whole rather than searching 16 for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 ORDER - 2 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.846 Page 3 of 34 1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 5 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 6 decision generally bears the burden of establishing that it was harmed. Shinseki v. 7 Sanders, 556 U.S. 396, 409-10 (2009). 8 9 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 1382c(a)(3)(B). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 2 ORDER - 3 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.847 Page 4 of 34 1 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 2 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 3 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 4 C.F.R. § 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 8 “any impairment or combination of impairments which significantly limits [his or 9 her] physical or mental ability to do basic work activities,” the analysis proceeds to 10 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 11 this severity threshold, however, the Commissioner must find that the claimant is 12 not disabled. 20 C.F.R. § 416.920(c). 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. § 16 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 17 enumerated impairments, the Commissioner must find the claimant disabled and 18 award benefits. 20 C.F.R. § 416.920(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess 2 ORDER - 4 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.848 Page 5 of 34 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 10 performing such work, the analysis proceeds to step five. 11 At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education and 15 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 16 adjusting to other work, the Commissioner must find that the claimant is not 17 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 18 other work, analysis concludes with a finding that the claimant is disabled and is 19 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 20 2 ORDER - 5 Case 2:19-cv-00349-MKD 1 ECF No. 18 filed 06/02/20 PageID.849 Page 6 of 34 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 4 capable of performing other work; and (2) such work “exists in significant 5 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 6 700 F.3d 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On June 23, 2016, Plaintiff applied for Title XVI supplemental security 9 income benefits alleging a disability onset date of June 1, 2016.2 Tr. 70, 231-32. 10 The application was denied initially, and on reconsideration. Tr. 102-10; Tr. 11411 20. Plaintiff appeared before an administrative law judge (ALJ) on May 14, 2018. 12 Tr. 39-69. On July 26, 2018, the ALJ denied Plaintiff’s claim. Tr. 12-35. 13 At step one of the sequential evaluation process, the ALJ found Plaintiff has 14 not engaged in substantial gainful activity since June 23, 2016. Tr. 17. At step 15 two, the ALJ found that Plaintiff has the following severe impairments: double 16 jointed hips; sacroiliac joint dysfunction; ligament tightness and muscle spasm; 17 bilateral pars interarticularis defects at L5 with only very subtle anterolisthesis of 18 19 2 At the hearing, Plaintiff agreed to amend her alleged onset date to June 23, 2016, 20 Tr. 46, however the ALJ’s decision refers to June 1, 2016 as the alleged onset date. 2 ORDER - 6 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.850 Page 7 of 34 1 L5 on S1; right knee patellofemoral syndrome; polyarthralgias; migraine 2 headaches; asthma; obstructive sleep apnea; chronic fatigue/pain; morbid obesity; 3 depression; and anxiety. Tr. 18. 4 At step three, the ALJ found Plaintiff does not have an impairment or 5 combination of impairments that meets or medically equals the severity of a listed 6 impairment. Tr. 19-21. The ALJ then concluded that Plaintiff has the RFC to 7 perform light work with the following limitations: 8 9 10 11 12 13 14 15 16 17 18 19 20 2 [Plaintiff] has the ability to lift and/or carry up to 20 pounds occasionally (up to 1/3 of [the] workday), and 10 pounds frequently (up to 2/3 of the workday). [Plaintiff] has the ability to sit up to 6 hours, and stand and/or walk up to 2 hours. [Plaintiff] has the unlimited ability to push and/or pull, other than as stated for lift carry, with left lower extremity limited to occasionally. Regarding postural abilities, [Plaintiff] has the ability to occasionally stoop (i.e., bend at the waist); frequently climb ramps or stairs, or balance, but should never kneel, crouch (i.e., bend at the knees), crawl or climb ladders, ropes or scaffolds. Regarding use of hands, [Plaintiff] has the unlimited ability to handle, finger or feel. [Plaintiff] has the unlimited ability to reach in all directions, including overhead. [Plaintiff] has the unlimited ability to see, hear and communicate. Regarding the environment, [Plaintiff] has no limitations regarding exposure to extreme cold, extreme heat or noise; should avoid concentrated exposure to wetness, humidity, vibration and hazards, such as dangerous machinery and unprotected heights; and should avoid even moderate exposure to fumes, odors, dust, gases or poor ventilation. Regarding mental abilities, [Plaintiff] has the ability to understand, remember or apply information that is simple, routine, and repetitive, commensurate with 1 to 3 step tasks. Regarding interaction with others, [Plaintiff] would work best in an environment in proximity to, but not close cooperation, with co-workers and supervisors, and should work in an environment away from the public. Regarding the ability to concentrate, persist or maintain pace, [Plaintiff] has the ability, with legally required breaks, to focus attention on work ORDER - 7 Case 2:19-cv-00349-MKD 1 2 3 4 ECF No. 18 filed 06/02/20 PageID.851 Page 8 of 34 activities and stay on task at a sustained rate; complete tasks in a timely manner; sustain an ordinary routine; regularly attend work; and work a full day without needing more than the allotted number or length of rest periods. Regarding the ability to adapt or manage, [Plaintiff] would work best in an environment that is routine and predictable, but does not have the ability to respond appropriately, distinguish between acceptable and unacceptable work performance; or be aware of normal hazards and take appropriate precautions. 5 Tr. 21-22. 6 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 31. At 7 step five, the ALJ found that, considering Plaintiff’s age, education, work 8 experience, RFC, and testimony from the vocational expert, there were jobs that 9 existed in significant numbers in the national economy that Plaintiff could perform, 10 such as small parts assembler, collator operator, and marker II. Tr. 29. Therefore, 11 the ALJ concluded Plaintiff was not under a disability, as defined in the Social 12 Security Act, from the date of the application through the date of the decision. Id. 13 On August 26, 2019, the Appeals Council denied review of the ALJ’s 14 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 15 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 16 ISSUES 17 Plaintiff seeks judicial review of the Commissioner’s final decision denying 18 her supplemental security income benefits under Title XVI of the Social Security 19 Act. Plaintiff raises the following issues for review: 20 1. Whether the ALJ properly evaluated the medical opinion evidence; 2 ORDER - 8 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.852 Page 9 of 34 1 2. Whether the ALJ conducted a proper step-three analysis; 2 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 3 4. Whether the ALJ properly developed the record. 4 ECF No. 14 at 2. 5 6 7 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ erred in considering the opinions of consultative 8 examiner Jenifer Schultz, Ph.D., non-examining medical expert Stephen Rubin, 9 Ph.D., and State agency medical consultants Michael Brown, Ph.D., and John 10 Gilbert, Ph.D. ECF No. 14 at 4-10. 11 There are three types of physicians: “(1) those who treat the claimant 12 (treating physicians); (2) those who examine but do not treat the claimant 13 (examining physicians); and (3) those who neither examine nor treat the claimant 14 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 15 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 16 Generally, a treating physician’s opinion carries more weight than an examining 17 physician’s, and an examining physician’s opinion carries more weight than a 18 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 19 to opinions that are explained than to those that are not, and to the opinions of 20 2 ORDER - 9 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.853 Page 10 of 34 1 specialists concerning matters relating to their specialty over that of 2 nonspecialists.” Id. (citations omitted). 3 If a treating or examining physician’s opinion is uncontradicted, the ALJ 4 may reject it only by offering “clear and convincing reasons that are supported by 5 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 6 “However, the ALJ need not accept the opinion of any physician, including a 7 treating physician, if that opinion is brief, conclusory and inadequately supported 8 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 9 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 10 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 11 may only reject it by providing specific and legitimate reasons that are supported 12 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 13 F.3d 821, 830-831 (9th Cir. 1995)). The opinion of a nonexamining physician may 14 serve as substantial evidence if it is supported by other independent evidence in the 15 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 16 1. Dr. Schultz 17 In September 2016, Dr. Schultz conducted a psychological consultative 18 examination and diagnosed Plaintiff with PTSD with panic attacks, and chronic, 19 moderate major depressive disorder. Tr. 553. Dr. Schultz opined Plaintiff has a 20 guarded prognosis, she is not capable of managing funds, she is capable of 2 ORDER - 10 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.854 Page 11 of 34 1 reasoning and understanding “to some degree” but appears to have some cognitive 2 difficulty, she has interpersonal challenges which would affect her ability to work 3 with others and be consistent in attendance to work, and her impaired 4 concentration impacts her ability to learn. Tr. 553-54. The ALJ gave Dr. Schultz’s 5 opinion little weight. Tr. 28. As Dr. Schultz’s opinion is contradicted by the 6 opinions of Dr. Brown, Tr. 80-81, and Dr. Gilbert, Tr. 96-98, the ALJ was required 7 to give specific and legitimate reasons, supported by substantial evidence, to reject 8 Dr. Schultz’s opinion. See Bayliss, 427 F.3d at 1216. 9 First, the ALJ found the opinion is overly reliant on Plaintiff’s self-report. 10 Tr. 31. A medical opinion may be rejected by the ALJ if it was inadequately 11 supported by medical findings and based too heavily on the claimant’s properly 12 discounted complaints. Bray, 554 F.3d at 1228; Tonapetyan v. Halter, 242 F.3d 13 1144, 1149 (9th Cir. 2001). The ALJ noted Dr. Schultz opined Plaintiff has some 14 cognitive difficulties based on Plaintiff’s self-report of having previously had an 15 individualized education plan, though Dr. Schultz did not review Plaintiff’s 16 educational records. Tr. 31. Dr. Schultz also opined Plaintiff has social 17 limitations, and in the paragraph explaining Plaintiff’s social limitations, Dr. 18 Schultz noted Plaintiff reported interpersonal challenges and a history of not 19 having friends. Tr. 554. Dr. Schultz did not cite to any objective evidence of 20 2 ORDER - 11 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.855 Page 12 of 34 1 either cognitive or social limitations. This was a specific and legitimate reason to 2 reject Dr. Schultz’s opinion. 3 Second, the ALJ found Dr. Schultz’s opinion is internally inconsistent. Tr. 4 31. Relevant factors to evaluating any medical opinion include the amount of 5 relevant evidence that supports the opinion, the quality of the explanation provided 6 in the opinion, and the consistency of the medical opinion with the record as a 7 whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 8 495 F.3d 625, 631 (9th Cir. 2007). Moreover, a physician’s opinion may be 9 rejected if it is unsupported by the physician’s treatment notes. See Connett v. 10 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). The ALJ noted that while Dr. 11 Schultz opined Plaintiff had impaired concentration, Plaintiff performed 12 concentration tasks reasonably well on examination. Tr. 31. Plaintiff could not 13 perform serial sevens and made an error on serial threes. Tr. 552. However, she 14 spelled “world” correctly backward and forward and was able to follow a three15 step command. Id. Here, Plaintiff’s performance on the mental status examination 16 does not demonstrate she is more restricted than already accounted for in the RFC. 17 On examination, Plaintiff had a flat affect and reported not feeling anything, had 18 abnormal abstract thinking, and could not complete serial threes or serial sevens 19 correctly, but spelled “world” correctly forward and backward, followed a three20 step command, she was cooperative, and had good grooming, normal speech, 2 ORDER - 12 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.856 Page 13 of 34 1 orientation, memory, fund of knowledge. Tr. 552-53. The ALJ accounted for the 2 limitations demonstrated in the examination by limiting Plaintiff to a routine and 3 predictable environment that does not require her to independently evaluate her 4 work performance or deal with hazards. See Tr. 21-22. Moreover, while Plaintiff 5 demonstrated some abnormal results on testing, any error in finding Dr. Schultz’s 6 opinion was internally inconsistent is harmless because the ALJ gave other specific 7 and legitimate reasons, supported by substantial evidence, to reject the opinion. 8 See Molina, 674 F.3d at 1115 9 Third, the ALJ found Dr. Schutz’s opinion is inconsistent with the 10 longitudinal record. Tr. 31. An ALJ may discredit physicians’ opinions that are 11 unsupported by the record as a whole. Batson v. Comm’r of Soc. Sec. Admin., 359 12 F.3d 1190, 1195 (9th Cir. 2004). The ALJ found Dr. Schultz’s opinion was 13 inconsistent with the record as a whole, particularly Plaintiff’s lack of mental 14 health treatment. Tr. 31. Plaintiff argues she has received mental health treatment 15 since June 2015 onward. ECF No. 14 at 9. However, while Plaintiff has had 16 instances when she received counseling or medication management for a period of 17 time, Plaintiff has had longer periods when she did not receive treatment. 18 In June 2015, Plaintiff was seen for a single visit during which she reported 19 depression and anxiety and she was started on sertraline. Tr. 24, 371. In August 20 2016, Plaintiff was seen in the emergency department where she reported anxiety, 2 ORDER - 13 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.857 Page 14 of 34 1 Tr. 519, and she was seen by her primary care physician, to whom she reported she 2 had anxiety; Plaintiff was prescribed Buspirone but declined a counseling referral, 3 Tr. 24 (citing Tr. 531). Later that month, Plaintiff reported her mood swings were 4 worsening, Tr. 525, and Plaintiff then was seen for an initial mental health 5 assessment, Tr. 25 (citing Tr. 536). Plaintiff’s mental health records show she only 6 received mental health counseling from August 2016 through October 2016. Tr. 7 564-92. In July 2017, Plaintiff’s primary care provider started her on Paxil, and 8 the next month Plaintiff reported Paxil was working well for her symptoms. Tr. 26 9 (citing Tr. 711). In November 2017, Plaintiff reported she had weaned herself off 10 her medications and reported her depression was stable. Tr. 26 (citing Tr. 506). 11 The next month, she was seen in the emergency department for a suicide attempt 12 after a breakup. Tr. 26 (citing Tr. 629). She was then seen for follow-up 13 appointments during which she was started on medication, Tr. 26 (citing Tr. 697, 14 699), and Plaintiff was encouraged to follow-up on the referral to Frontier 15 Behavioral Health, Tr. 26 (citing Tr. 692), but there is no indication Plaintiff ever 16 pursued the referral. Plaintiff also reported improvement in her symptoms with 17 medication, Tr. 27 (citing Tr. 519-24, 704). The ALJ’s conclusion that the 18 longitudinal record did not support Dr. Schultz’s opinions is supported by 19 substantial evidence in the record, and constitutes a specific and legitimate reason 20 to reject Dr. Schultz’s opinion. The ALJ did not err in evaluating the opinion. 2 ORDER - 14 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.858 Page 15 of 34 1 2. Dr. Rubin 2 In May 2018, Dr. Rubin, a non-examining medical expert, testified at 3 Plaintiff’s hearing regarding Plaintiff’s functioning. Tr. 48-53. Dr. Rubin found 4 Plaintiff has a depressive disorder and anxiety disorder. Tr. 50. Dr. Rubin opined 5 Plaintiff could not perform complex tasks that require a lot of training, memory 6 and capacity well; she could not handle a lot of stress or fast-paced work well; she 7 should have limited contact with the public; and she should try to work in a routine 8 slow-paced environment. Tr. 51. When asked if he agreed with Dr. Schultz’s 9 opinion that Plaintiff may have issues working with others and consistently 10 attending work, Dr. Rubin stated Plaintiff may have issues with attendance, which 11 may be related to motivation, but Dr. Schultz was guessing there might be some 12 issues with Plaintiff attending work as well. Tr. 51. He stated he thinks Plaintiff 13 should try to work. Tr. 52. He also opined Plaintiff has “some” concentration 14 limitations. Tr. 53. The ALJ gave Dr. Rubin’s opinion great weight. Tr. 28. As 15 Dr. Rubin is a non-examining source, the ALJ must consider the opinion and 16 whether it is consistent with other independent evidence in the record. See 20 17 C.F.R. § 416.927(b),(c)(1); Tonapetyan, 242 F.3d at 1149; Lester, 81 F.3d at 83018 31. 19 Plaintiff argues the ALJ improperly rejected Dr. Rubin’s opinion because 20 she gave the opinion less than full weight, did not incorporate all of the limitations 2 ORDER - 15 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.859 Page 16 of 34 1 into the RFC, and did not provide an explanation for the rejection. ECF No. 14 at 2 6. Plaintiff contends Dr. Rubin gave a disabling opinion, as he opined Plaintiff 3 might have consistency issues with work attendance, and the vocational expert 4 testified that an individual who misses work more than once per month is not 5 competitively employable. Id. However, Plaintiff’s argument is inconsistent with 6 the record. 7 Dr. Rubin opined Plaintiff may have some motivation issues with working, 8 and stated he agreed Plaintiff might have attendance issues but also stated Dr. 9 Schultz was guessing Plaintiff “might” have difficulty consistently showing up for 10 work. Tr. 51-52. Dr. Rubin further stated Plaintiff should try to work, and he 11 thinks she could succeed at simple work with limited public contact. Id. When 12 asked to quantify Plaintiff’s limitations such as with a percentage, Dr. Rubin 13 declined. Tr. 53. As such, Dr. Rubin did not give an opinion as to how frequently 14 Plaintiff would consistently miss work, if at all, nor did he opine that any of 15 Plaintiff’s limitations would be work preclusive. In fact, he opined Plaintiff should 16 work. As the ALJ incorporated Dr. Rubin’s opinion into the RFC, the ALJ did not 17 error in considering Dr. Rubin’s opinion. 18 3. Dr. Brown and Dr. Gilbert 19 In September 2016, Dr. Brown, a State agency psychological consultant, 20 found Plaintiff has an affective disorder and an anxiety disorder. Tr. 77. Dr. 2 ORDER - 16 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.860 Page 17 of 34 1 Brown opined Plaintiff had no more than moderate limitations in any area of 2 functioning. Tr. 80-81. Dr. Brown stated, “[Plaintiff] retains the ability to engage 3 in at least two hours of work activity of an eight hour workday,” she should avoid 4 working with the general public, and she is capable of adapting to simple changes. 5 Tr. 81. 6 In November 2016, Dr. Gilbert, a State agency psychological consultant, 7 also opined Plaintiff has no more than moderate limitations, Tr. 96-97, and opined 8 Plaintiff “would have occasional difficulties in maintaining attention, 9 concentration, pace & persistence” when symptomatic, but Plaintiff “remains 10 capable of simple tasks,” she has reasonable concentration, persistence and pace, 11 can attend work within customary tolerances, work within a routine and complete a 12 normal workday/workweek; she is capable of work with limited social interactions 13 away from the general public and she may have occasional difficulty accepting 14 criticism or appropriately dealing with coworker conflict, but she can accept 15 instructions and maintain adequate hygiene; and she remains capable of adapting 16 within a work environment. Tr. 97-98. The ALJ gave Dr. Brown’s and Dr. 17 Gilbert’s opinions great weight. Tr. 28. As Dr. Brown and Dr. Gilbert are non18 examining sources, the ALJ must consider the opinions and whether they are 19 consistent with other independent evidence in the record. See 20 C.F.R. § 20 416.927(b),(c)(1); Tonapetyan, 242 F.3d at 1149; Lester, 81 F.3d at 830-31. 2 ORDER - 17 Case 2:19-cv-00349-MKD 1 ECF No. 18 filed 06/02/20 PageID.861 Page 18 of 34 Plaintiff argues the ALJ improperly rejected Dr. Brown’s and Dr. Gilbert’s 2 opinions because she gave the opinions less than full weight, did not incorporate 3 all of the limitations into the RFC, and did not provide an explanation for the 4 rejection. ECF No. 14 at 6. Plaintiff contends Dr. Brown gave a disabling 5 opinion, as he opined Plaintiff can perform work activities for at least two hours 6 per day, which Plaintiff argues is equivalent to opining Plaintiff can only work 7 part-time, which would be a disabling limitation. Id. at 5. However, Plaintiff’s 8 argument is inconsistent with the evidence because Dr. Brown stated Plaintiff is 9 capable of performing “at least” two hours of activities, he found Plaintiff had no 10 more than moderate limitations, Tr. 80-81, and found Plaintiff is not disabled, Tr. 11 83. After reviewing the initial evidence and determination, Dr. Gilbert opined 12 Plaintiff was capable of completing a normal workday and workweek. Tr. 97. As 13 such, the ALJ incorporated Dr. Brown’s opinion into the RFC and did not error in 14 her consideration of the opinion. 15 Next, Plaintiff argues Dr. Gilbert’s opinion was disabling because he opined 16 Plaintiff would have occasional difficulties with concentration, persistence and 17 pace when symptomatic and she would have occasional difficulties accepting 18 criticism. ECF No. 14 at 5. Plaintiff argues the opinion is consistent with finding 19 Plaintiff would have the difficulties up to one-third of day, which would be 20 disabling due to the vocational expert’s testimony that an individual can only be 2 ORDER - 18 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.862 Page 19 of 34 1 off-task ten percent of the day. Id. at 6. This argument is also inconsistent with 2 the evidence. While Dr. Gilbert opined Plaintiff would have occasional difficulties 3 with concentration, persistence and pace, he clarified such difficulties would only 4 occur while Plaintiff is symptomatic and gave no indication how frequently 5 Plaintiff is expected to be symptomatic. Tr. 97. However, Dr. Gilbert opined 6 Plaintiff is capable of sustaining competitive employment, indicating the 7 occasional difficulties would not rise to the level to prevent employment. Id. 8 Where evidence is subject to more than one rational interpretation, the ALJ’s 9 conclusion will be upheld. Burch, 400 F.3d at 679. As such, the ALJ properly 10 incorporated Dr. Gilbert’s opinion into the RFC and did not error in considering 11 the opinion. 12 13 B. Step-Three Plaintiff contends the ALJ erred in finding Plaintiff’s migraine headaches do 14 not equal Listing 11.02. ECF No. 14 at 10-12. At step three, the ALJ must 15 determine if a claimant’s impairments meet or equal a listed impairment. 20 16 C.F.R. § 416.920(a)(4)(iii). The Listing of Impairments “describes each of the 17 major body systems impairments [which are considered] severe enough to prevent 18 an individual from doing any gainful activity, regardless of his or her age, 19 education or work experience.” 20 C.F.R. § 416.925. “Listed impairments are 20 purposefully set at a high level of severity because ‘the listings were designed to 2 ORDER - 19 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.863 Page 20 of 34 1 operate as a presumption of disability that makes further inquiry unnecessary.’ ” 2 Kennedy v. Colvin, 758 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 3 493 U.S. 521, 532 (1990)). “Listed impairments set such strict standards because 4 they automatically end the five-step inquiry, before residual functional capacity is 5 even considered.” Kennedy, 758 F.3d at 1176. If a claimant meets the listed 6 criteria for disability, she will be found to be disabled. 20 C.F.R. § 7 416.920(a)(4)(iii). 8 “To meet a listed impairment, a claimant must establish that he or she meets 9 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 10 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 416.925(d). “To equal a 11 listed impairment, a claimant must establish symptoms, signs and laboratory 12 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 13 listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 14 20 C.F.R. § 404.1526(a)); 20 C.F.R. § 416.926(a). “If a claimant suffers from 15 multiple impairments and none of them individually meets or equals a listed 16 impairment, the collective symptoms, signs and laboratory findings of all of the 17 claimant’s impairments will be evaluated to determine whether they meet or equal 18 the characteristics of any relevant listed impairment.” Tackett, 180 F.3d at 1099. 19 However, “ ‘[m]edical equivalence must be based on medical findings,’ ” and 20 “ ‘[a] generalized assertion of functional problems is not enough to establish 2 ORDER - 20 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.864 Page 21 of 34 1 disability at step three.’ ” Id. at 1100 (quoting 20 C.F.R. § 404.1526(a)); 20 C.F.R. 2 § 416.926(a). 3 The claimant bears the burden of establishing her impairment (or 4 combination of impairments) meets or equals the criteria of a listed impairments. 5 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s 6 articulation of the reason(s) why the individual is or is not disabled at a later step in 7 the sequential evaluation process will provide rationale that is sufficient for a 8 subsequent reviewer or court to determine the basis for the finding about medical 9 equivalence at step 3.” Social Security Ruling (SSR) 17-2P, 2017 WL 3928306, at 10 *4 (effective March 27, 2017). 11 Here, the ALJ concluded that Plaintiff’s impairments and combinations of 12 impairments did not meet or equal any listings. Tr. 19. The ALJ stated Plaintiff’s 13 impairments did not meet or equal “Listing 11.00 (Neurological)” although 11.00 14 is not a listing but rather a category of listings. Id. The ALJ provided an 15 explanation as to why Plaintiff’s impairments did not meet or equal the other 16 relevant listings but did not provide an explanation as to why Plaintiff’s 17 impairments do not meet or equal a neurological listing, including Listing 11.02. 18 Id. 19 While Listing 11.02 addresses seizures, it is the most closely analogous 20 listing for migraines. HALLEX DI 24505.015(B)(7)(B) (Ex. 2). Listing 11.02 2 ORDER - 21 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.865 Page 22 of 34 1 requires migraine headaches be “documented by detailed description of a typical 2 [migraine headache], including all associated phenomena.” 20 C.F.R. Pt. 404, 3 Subpt. P, App. 1, Listing 11.02. To be of equal severity and duration, Listing 4 11.02B requires the migraines occur at least once a week for at least three 5 consecutive months, despite compliance with treatment. Id. 6 Plaintiff has not met her burden in demonstrating her migraines are equal in 7 severity to Listing 11.02. Plaintiff alleges she has had headaches on an almost 8 daily basis. ECF No. 14 at 10 (citing Tr. 289, 536). However, Plaintiff cites to her 9 Disability Report and a counseling appointment where Plaintiff self-reported daily 10 migraines. At the counseling appointment, Plaintiff did not report taking any 11 medications for her migraines. Tr. 536. Similarly, in the Disability Report, 12 Plaintiff did not report any treatment for her migraines. Tr. 291-93. Plaintiff also 13 cites to other records in support of the argument she had chronic headaches from 14 August 2016 through December 2016, but the documents are either based entirely 15 on Plaintiff’s self-report during periods she was not seeking treatment for her 16 headaches, Tr. 270 (Plaintiff’s headache questionnaire); Tr. 289, 299 (Plaintiff’s 17 Disability Reports); or medical records from periods when Plaintiff was not 18 seeking care for her headaches and was not taking medications for the reported 19 headaches, Tr. 536, 544, 565, 647. 20 2 ORDER - 22 Case 2:19-cv-00349-MKD 1 ECF No. 18 filed 06/02/20 PageID.866 Page 23 of 34 While migraines are occasionally listed in Plaintiff’s past medical history or 2 problem list, Tr. 453, 565, there are minimal discussions of her migraine headaches 3 in the treatment records. Medical records indicate Plaintiff consistently reported 4 not experiencing headaches. Tr. 392, 456, 499, 629, 633. Plaintiff reported at her 5 physical consultative examination that she went to an emergency room once 6 approximately 18 months prior to the examination due to her headaches and did 7 not report any further treatment. Tr. 544. The examiner diagnosed Plaintiff with a 8 “history of headaches consistent with muscle tension headaches” and stated the 9 prognosis was “good.” Tr. 547. At an appointment for her sleep issues, Plaintiff 10 reported “occasional headaches.” Tr. 647. There is no objective evidence that 11 Plaintiff has experienced weekly headaches, nor that Plaintiff has had any 12 treatment for her headaches. As such, Plaintiff has not met her burden in 13 demonstrating she equals Listing 11.02 and any error in the ALJ’s analysis at step 14 three would be harmless. See Molina, 674 F.3d at 1115. 15 16 C. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 17 convincing in discrediting her symptom claims. ECF No. 14 at 13-21. An ALJ 18 engages in a two-step analysis to determine whether to discount a claimant’s 19 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 20 “First, the ALJ must determine whether there is objective medical evidence of an 2 ORDER - 23 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.867 Page 24 of 34 1 underlying impairment which could reasonably be expected to produce the pain or 2 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 3 “The claimant is not required to show that [the claimant’s] impairment could 4 reasonably be expected to cause the severity of the symptom [the claimant] has 5 alleged; [the claimant] need only show that it could reasonably have caused some 6 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 7 Second, “[i]f the claimant meets the first test and there is no evidence of 8 malingering, the ALJ can only reject the claimant’s testimony about the severity of 9 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 10 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 11 omitted). General findings are insufficient; rather, the ALJ must identify what 12 symptom claims are being discounted and what evidence undermines these claims. 13 Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 14 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 15 symptom claims)). “The clear and convincing [evidence] standard is the most 16 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 17 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 18 924 (9th Cir. 2002)). 19 Factors to be considered in evaluating the intensity, persistence, and limiting 20 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 2 ORDER - 24 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.868 Page 25 of 34 1 duration, frequency, and intensity of pain or other symptoms; 3) factors that 2 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 3 side effects of any medication an individual takes or has taken to alleviate pain or 4 other symptoms; 5) treatment, other than medication, an individual receives or has 5 received for relief of pain or other symptoms; 6) any measures other than treatment 6 an individual uses or has used to relieve pain or other symptoms; and 7) any other 7 factors concerning an individual’s functional limitations and restrictions due to 8 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 9 416.929 (c). The ALJ is instructed to “consider all of the evidence in an 10 individual’s record,” to “determine how symptoms limit ability to perform work11 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 12 The ALJ found that Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 14 statements concerning the intensity, persistence, and limiting effects of her 15 symptoms were not entirely consistent with the evidence. Tr. 22, 26. 16 1. Inconsistent Objective Evidence 17 The ALJ found Plaintiff’s symptom claims are inconsistent with the 18 objective evidence. Tr. 26. An ALJ may not discredit a claimant’s symptom 19 testimony and deny benefits solely because the degree of the symptoms alleged is 20 not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 2 ORDER - 25 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.869 Page 26 of 34 1 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 2 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 680. 3 However, the objective medical evidence is a relevant factor, along with the 4 medical source’s information about the claimant’s pain or other symptoms, in 5 determining the severity of a claimant’s symptoms and their disabling effects. 6 Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2). 7 The ALJ noted that while Plaintiff alleges difficulty moving due to hip pain, 8 the objective evidence is inconsistent with her allegation. Tr. 26. Imaging of 9 Plaintiff’s hip showed no fracture, dislocation, subluxation or abnormal joint 10 spacing. Id. (citing Tr. 691). Plaintiff’s physical examinations were also generally 11 normal. Tr. 26 (citing Tr. 545-47, 614-44). Plaintiff argues the objective evidence 12 is consistent with her reported symptoms and limitations. ECF No. 14 at 15. 13 However, the ALJ reasonably found the objective evidence as a whole does not 14 support Plaintiff’s allegations of disabling limitations due to her hip pain. Further, 15 as discussed supra, the objective evidence also does not support Plaintiff’s 16 allegations of daily headaches. While Plaintiff alleges ongoing limitations due to 17 mental health symptoms, Plaintiff did not routinely seek mental health treatment, 18 and reported improvement with mental health medications before choosing to 19 wean herself off the medication. Tr. 26 (citing Tr. 704, 706). Plaintiff argues the 20 ALJ erred in finding her allegations of concentration issues inconsistent with Dr. 2 ORDER - 26 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.870 Page 27 of 34 1 Schultz’s examination, as the examination demonstrated abnormal findings. ECF 2 No. 14 at 18. While Plaintiff demonstrated some impairment in concentration on 3 testing, such as errors in serial sevens, she was able to spell “world” correctly 4 forward and backward and she was able to follow three-step instructions. Tr. 552. 5 On this record, the ALJ reasonably concluded that the objective medical 6 evidence is not consistent with Plaintiff’s complaints of disabling symptoms. This 7 finding is supported by substantial evidence and was a clear and convincing 8 reason, coupled with the other reasons offered, to discount Plaintiff’s symptoms 9 complaints 10 2. Activities of Daily Living 11 The ALJ found Plaintiff’s symptom claims are inconsistent with her 12 activities of daily living. Tr. 26-27. The ALJ may consider a claimant’s activities 13 that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can 14 spend a substantial part of the day engaged in pursuits involving the performance 15 of exertional or non-exertional functions, the ALJ may find these activities 16 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 17 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 18 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 19 the claimant reports participation in everyday activities indicating capacities that 20 are transferable to a work setting” or when activities “contradict claims of a totally 2 ORDER - 27 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.871 Page 28 of 34 1 debilitating impairment.” Molina, 674 F.3d at 1112-13. The ability to care for 2 others without help has been considered an activity that may undermine claims of 3 totally disabling pain. Rollins, 261 F.3d at 857. However, if the care activities are 4 to serve as a basis for the ALJ to discredit the Plaintiff’s symptom claims, the 5 record must identify the nature, scope, and duration of the care involved and this 6 care must be “hands on” rather than a “one-off” care activity. Trevizo v. Berryhill, 7 871 F.3d 664, 675-76 (9th Cir. 2017). 8 The ALJ noted Plaintiff was able to climb a flight of stairs at her home, 9 drive for 60 to 90 minutes before needing a break to stretch, she could perform 10 household chores, and care for multiple animals. Tr. 27 (citing Tr. 545). Plaintiff 11 also reported being able to handle her personal care without assistance and lifting 12 and carrying at least 50 pounds as that is the weight of the animal food she carries. 13 Tr. 545. Plaintiff stated she spends most of her day caring for a dog, six rabbits, 14 and four cats. Id. The ALJ also noted Plaintiff was engaged, able to use social 15 media, and frequently attended medical appointments. Tr. 27. Plaintiff further 16 reported spending her days taking her mother’s fiancé to his appointments and 17 providing care for her infant brother. Tr. 556. Plaintiff argues her activities were 18 not inconsistent with her claims, as she later moved to a trailer with no stairs, 19 rarely left her home, and had low motivation to complete tasks. ECF No. 19-20. 20 However, the ALJ reasonably found Plaintiff’s activities, including driving for up 2 ORDER - 28 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.872 Page 29 of 34 1 to 90 minutes at a time and caring for 11 animals, were inconsistent with a claim of 2 disabling limitations. This was a clear and convincing reason, supported by 3 substantial evidence, to reject Plaintiff’s symptom claims. 4 3. Lack of Treatment 5 The ALJ found Plaintiff’s symptom claims are inconsistent with her lack of 6 treatment. Tr. 27. An unexplained, or inadequately explained, failure to seek 7 treatment or follow a prescribed course of treatment may be considered when 8 evaluating the claimant’s subjective symptoms. Orn, 495 F.3d at 638. Evidence of 9 a claimant’s self-limitation and lack of motivation to seek treatment are appropriate 10 considerations in determining the credibility of a claimant’s subjective symptom 11 reports. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. 12 Astrue, 312 F. App’x 45, *3 (9th Cir. 2009) (unpublished opinion) (considering 13 why plaintiff was not seeking treatment). When there is no evidence suggesting 14 that the failure to seek or participate in treatment is attributable to a mental 15 impairment rather than a personal preference, it is reasonable for the ALJ to 16 conclude that the level or frequency of treatment is inconsistent with the alleged 17 severity of complaints. Molina, 674 F.3d at 1113-14. But when the evidence 18 suggests lack of mental health treatment is partly due to a claimant’s mental health 19 condition, it may be inappropriate to consider a claimant’s lack of mental health 20 2 ORDER - 29 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.873 Page 30 of 34 1 treatment when evaluating the claimant’s failure to participate in treatment. 2 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). 3 The ALJ found that while Plaintiff alleges disabling mental health 4 symptoms, she has received very limited mental health treatment. Tr. 26. The 5 ALJ considered Plaintiff’s explanation that she lacked insurance and transportation 6 for a period for time, but the ALJ noted Plaintiff routinely sought treatment for her 7 physical treatments and therefore found Plaintiff’s explanation regarding her lack 8 of mental health treatment was not valid. Plaintiff argues she sought counseling 9 and mental health medication, but as discussed supra, while Plaintiff has had 10 instances when she received counseling or medication management for a period of 11 time, Plaintiff has had longer periods when she did not receive treatment. Plaintiff 12 further argues she avoided counseling to avoid thinking about her history of abuse, 13 however the records indicate Plaintiff was able to overcome her avoidance to 14 complete assignments when she did attend counseling. Tr. 583. On this record, 15 the ALJ reasonably concluded that Plaintiff’s lack of treatment is not consistent 16 with Plaintiff’s complaints of disabling symptoms. This finding is supported by 17 substantial evidence and was a clear and convincing reason to discount Plaintiff’s 18 symptoms complaints 19 Plaintiff contends the ALJ erred by not including limitations in the RFC that 20 account for Plaintiff’s migraine triggers and symptoms. ECF No. 14 at 12-13. As 2 ORDER - 30 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.874 Page 31 of 34 1 the ALJ gave clear and convincing to reject Plaintiff’s symptom complaints, and 2 there was no objective evidence to support Plaintiff’s reported frequency or 3 severity of headaches, as discussed supra, the ALJ did not error in crafting an RFC 4 that does not include limitations to account for Plaintiff’s reported limitations due 5 to her headaches. Plaintiff is not entitled to remand on these grounds. 6 7 D. Record Development Plaintiff contends the ALJ erred in failing to order a psychological 8 consultative examination. ECF No. 14 at 21. The ALJ has an independent duty to 9 fully and fairly develop a record in order to make a fair determination as to 10 disability, even where, as here, the claimant is represented by counsel. Celaya v. 11 Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); see also Tonapetyan, 242 F.3d at 12 1150; Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996). “Ambiguous evidence, 13 or the ALJ’s own finding that the record is inadequate to allow for proper 14 evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an appropriate 15 inquiry.’” See Tonapetyan, 242 F.3d at 1150 (quoting Smolen, 80 F.3d at 1288). 16 “An ALJ is not required to order every medical evaluation that could 17 conceivably shed light on a claimant’s condition, but rather just those that would 18 resolve ambiguities or inadequacies in the record.” Lloyd v. Astrue, No. C-1119 4902-EMC, 2013 WL 503389, at *5 (N.D. Cal. Feb. 8, 2013) (citing Mayes v. 20 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)). Plaintiff’s disagreement with 2 ORDER - 31 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.875 Page 32 of 34 1 the ALJ’s conclusions does not make the record ambiguous or inadequate. See 2 Leitner v. Comm’r Soc. Sec., 361 F. App’x 876, 877 (9th Cir. 2010) (the “claimant 3 bears the burden” of establishing that symptoms interfere with his or her ability to 4 “perform basic work activities,” and the ALJ, on that record, could make such a 5 determination) (citations omitted). 6 Plaintiff last attended a psychological consultative examination in 7 September 2016. Tr. 550-54. At the December 2018 hearing, Dr. Rubin opined a 8 more current psychological consultative examination would be helpful in 9 determining Plaintiff’s present functioning. Tr. 50. Plaintiff’s counsel requested 10 the ALJ order a psychological consultative examination. Tr. 68. The ALJ denied 11 the request, stating there was sufficient evidence in the record to make a 12 determination that Plaintiff is not disabled and that Plaintiff should seek full-time 13 employment. Tr. 68. 14 The last full mental status examination in the record is from December 15 2017, when Plaintiff presented with an abnormal mental status after a suicide 16 attempt. Tr. 630. Plaintiff’s mother reported the events were based solely on a 17 recent breakup. Tr. 630-31. At a follow-up appointment, Plaintiff had a flat affect, 18 poor eye contact and visible self-inflicted wounds on her wrist. Tr. 699. Plaintiff’s 19 additional appointments through 2017 and the beginning of 2018 do not contain 20 mental status examinations though they also do not contain any objective evidence 2 ORDER - 32 Case 2:19-cv-00349-MKD ECF No. 18 filed 06/02/20 PageID.876 Page 33 of 34 1 of abnormal mental health findings. Tr. 686-96. In January 2018, Plaintiff reported 2 her depression was not optimally controlled and she increased her medication on 3 her own. Tr. 690. In February 2018, Plaintiff reported improvement with her 4 medication increase though still not optimally controlled symptoms, but the 5 provider noted it had only been two weeks since the medication increase. Tr. 686, 6 688. Plaintiff was encouraged multiple times to follow through with her referral 7 for psychiatric care, Tr. 688, 692, and there is no evidence she did so. 8 While Plaintiff argues the record was inadequate to make a determination 9 and a consultative examination was necessary, the ALJ found there was sufficient 10 evidence on which to make a decision. Plaintiff does not set forth an argument that 11 the evidence is ambiguous. Although the last consultative examination took place 12 over a year prior to the hearing, and Plaintiff’s most recent mental status 13 examination was abnormal, the records demonstrate improvement since the last 14 examination. As discussed supra, Plaintiff reported improvement with medication 15 and she did not follow-up on a psychiatric referral despite multiple reminders to do 16 so. The ALJ also had the opinions of the medical consultants and the medical 17 expert on which to base her opinion. ECF No. 15 at 19 (citing Tr. 46-54, 80-82, 18 96-98). As such, the ALJ did not error in declining to order a psychological 19 consultative examination. Plaintiff is not entitled to remand on these grounds. 20 2 ORDER - 33 Case 2:19-cv-00349-MKD ECF No. 18 1 2 filed 06/02/20 PageID.877 Page 34 of 34 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 3 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 7 GRANTED. 8 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 9 The District Court Executive is directed to file this Order, provide copies to 10 counsel, and CLOSE THE FILE. 11 DATED June 2, 2020. 12 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 2 ORDER - 34
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
