Ferrell v. Kijakazi, No. 2:2020cv00135 - Document 17 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. File Closed. Signed by Chief Judge Stanley A Bastian. (MRJ, Case Administrator)
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Ferrell v. Kijakazi Doc. 17 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1235 Page 1 of 22 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Aug 20, 2021 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 CRYSTAL F., NO: 2:20-CV-00135-FVS 8 Plaintiff, v. 9 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY, 1 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 13 and 14. This matter was submitted for consideration 15 without oral argument. The Plaintiff is represented by Attorney Dana C. Madsen. 16 The Defendant is represented by Special Assistant United States Attorney David J. 17 18 19 20 21 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further action need be taken to continue this suit. See 42 U.S.C. § 405(g). ORDER ~ 1 Dockets.Justia.com Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1236 Page 2 of 22 1 Burdett. The Court has reviewed the administrative record, the parties’ completed 2 briefing, and is fully informed. For the reasons discussed below, the Court 3 GRANTS Defendant’s Motion for Summary Judgment, ECF No. 14, and DENIES 4 Plaintiff’s Motion for Summary Judgment, ECF No. 13. 5 JURISDICTION Plaintiff Crystal F.2 filed for supplemental security income and disability 6 7 insurance benefits on May 13, 2013, alleging an onset date of December 23, 2014. 8 Tr. 210-17. Benefits were denied initially, Tr. 159-62, and upon reconsideration, 9 Tr. 165-69. A hearing before an administrative law judge (“ALJ”) was conducted 10 on January 21, 2016. Tr. 42-63. Plaintiff was represented by counsel and testified 11 at the hearing. Id. The ALJ denied benefits, Tr. 37-63, and the Appeals Council 12 denied review. Tr. 1. On September 28, 2018, the United States District Court for 13 the Eastern District of Washington granted Plaintiff’s Motion for Summary 14 Judgment, and remanded the case for further proceedings. Tr. 728-42. On 15 November 15, 2018, the Appeals Council vacated the ALJ’s finding, and remanded 16 for further administrative proceedings. Tr. 743-47. On April 24, 2019, Plaintiff 17 appeared for an additional hearing before the ALJ. Tr. 588-619. The ALJ denied 18 19 20 21 2 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial. ORDER ~ 2 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1237 Page 3 of 22 1 benefits, Tr. 549-87, and the Appeals Council denied review. Tr. 542-48. The 2 matter is now before this Court pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3). 3 BACKGROUND 4 The facts of the case are set forth in the administrative hearing and 5 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 6 Only the most pertinent facts are summarized here. 7 Plaintiff was 33 years old at the time of the second hearing. See Tr. 212. 8 She graduated from high school, and was in special education classes. Tr. 81. She 9 lives with her parents. Tr. 86. Plaintiff has work history as a grocery bagger and 10 garment sorter. Tr. 83-85, 94-95, 612. She testified she cannot work because she’s 11 “slow” and “can’t concentrate on anything.” Tr. 87. Plaintiff testified that she 12 struggles to interact with people because of her anxiety, and reports that she has the 13 “mental capacity of a 13-year-old.” Tr. 81-82. At the second hearing, Plaintiff 14 testified that her irritable bowel syndrome “causes [her] to not function half the 15 day,” because she has to go to the bathroom three to four times every morning. Tr. 16 604-05. She reported difficulties with short-term memory and concentration, as 17 well as difficulty sleeping even with medication. Tr. 606-07. Plaintiff testified 18 that she only leaves the house one or twice a week. Tr. 609. 19 20 21 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is ORDER ~ 3 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1238 Page 4 of 22 1 limited; the Commissioner’s decision will be disturbed “only if it is not supported 2 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 3 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 4 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 5 (quotation and citation omitted). Stated differently, substantial evidence equates to 6 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 7 citation omitted). In determining whether the standard has been satisfied, a 8 reviewing court must consider the entire record as a whole rather than searching 9 for supporting evidence in isolation. Id. 10 In reviewing a denial of benefits, a district court may not substitute its 11 judgment for that of the Commissioner. “The court will uphold the ALJ's 12 conclusion when the evidence is susceptible to more than one rational 13 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 14 2008). Further, a district court will not reverse an ALJ’s decision on account of an 15 error that is harmless. Id. An error is harmless where it is “inconsequential to the 16 [ALJ’s] ultimate nondisability determination.” Id. (quotation and citation omitted). 17 The party appealing the ALJ’s decision generally bears the burden of establishing 18 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 19 20 21 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to ORDER ~ 4 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1239 Page 5 of 22 1 engage in any substantial gainful activity by reason of any medically determinable 2 physical or mental impairment which can be expected to result in death or which 3 has lasted or can be expected to last for a continuous period of not less than twelve 4 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 5 impairment must be “of such severity that he is not only unable to do his previous 6 work[,] but cannot, considering his age, education, and work experience, engage in 7 any other kind of substantial gainful work which exists in the national economy.” 8 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 9 The Commissioner has established a five-step sequential analysis to 10 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 11 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 12 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 13 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 14 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 15 404.1520(b), 416.920(b). 16 If the claimant is not engaged in substantial gainful activity, the analysis 17 proceeds to step two. At this step, the Commissioner considers the severity of the 18 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 19 claimant suffers from “any impairment or combination of impairments which 20 significantly limits [his or her] physical or mental ability to do basic work 21 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), ORDER ~ 5 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1240 Page 6 of 22 1 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 2 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 3 §§ 404.1520(c), 416.920(c). 4 At step three, the Commissioner compares the claimant’s impairment to 5 severe impairments recognized by the Commissioner to be so severe as to preclude 6 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 7 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 8 severe than one of the enumerated impairments, the Commissioner must find the 9 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 10 If the severity of the claimant’s impairment does not meet or exceed the 11 severity of the enumerated impairments, the Commissioner must pause to assess 12 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 13 defined generally as the claimant’s ability to perform physical and mental work 14 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 15 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 16 analysis. 17 At step four, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing work that he or she has performed in 19 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 20 If the claimant is capable of performing past relevant work, the Commissioner 21 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). ORDER ~ 6 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1241 Page 7 of 22 1 If the claimant is incapable of performing such work, the analysis proceeds to step 2 five. 3 At step five, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing other work in the national economy. 5 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 6 the Commissioner must also consider vocational factors such as the claimant’s age, 7 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 11 work, analysis concludes with a finding that the claimant is disabled and is 12 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 13 The claimant bears the burden of proof at steps one through four. Tackett v. 14 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, 15 the burden shifts to the Commissioner to establish that (1) the claimant is capable 16 of performing other work; and (2) such work “exists in significant numbers in the 17 national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue, 18 700 F.3d 386, 389 (9th Cir. 2012). 19 ALJ’S FINDINGS 20 At step one, the ALJ found that Plaintiff has not engaged in substantial 21 gainful activity since December 23, 2012, the alleged onset date. Tr. 555. At step ORDER ~ 7 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1242 Page 8 of 22 1 two, the ALJ found that Plaintiff has the following severe impairments: borderline 2 intellectual functioning vs learning disorders; alcohol dependence/abuse, in self- 3 reported remission; ADHD; persistent depressive disorder; unspecified anxiety 4 disorder. Tr. 555. At step three, the ALJ found that Plaintiff does not have an 5 impairment or combination of impairments that meets or medically equals the 6 severity of a listed impairment. Tr. 564. The ALJ then found that Plaintiff has the 7 RFC 8 to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is able to understand, remember, and carryout simple, routine, and repetitive tasks/instructions; is able to maintain concentration, persistence and pace on simple, routine tasks for two-hour intervals between regularly scheduled breaks; predictable work environment with seldom changes; no fast paced production rate of pace; no judgment or decision making; no reading/writing as an essential function of the job; brief and superficial (defined as non-collaborative/no tandem tasks) interaction with coworkers, supervisors and the public; no crowds (defined as groups 34 people or more). 9 10 11 12 13 Tr. 566. At step four, the ALJ found that Plaintiff is unable to perform any past 14 relevant work. Tr. 575. At step five, the ALJ found that considering Plaintiff’s 15 age, education, work experience, and RFC, there are jobs that exist in significant 16 numbers in the national economy that Plaintiff can perform, including: 17 housekeeping cleaner and marker, price. Tr. 576. On that basis, the ALJ 18 concluded that Plaintiff has not been under a disability, as defined in the Social 19 Security Act, from December 23, 2012, through the date of the decision. Tr. 576. 20 /// 21 ORDER ~ 8 Case 2:20-cv-00135-FVS ECF No. 17 1 2 filed 08/20/21 PageID.1243 Page 9 of 22 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her disability insurance benefits under Title II of the Social Security Act and 4 supplemental security income benefits under Title XVI of the Social Security Act. 5 ECF No. 13. Plaintiff raises the following issues for this Court’s review: 6 1. Whether the ALJ properly considered Plaintiff’s symptom claims; and 7 2. Whether the ALJ properly considered the medical opinion evidence. 8 9 DISCUSSION A. Plaintiff’s Symptom Claims 10 An ALJ engages in a two-step analysis when evaluating a claimant’s 11 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 12 whether there is objective medical evidence of an underlying impairment which 13 could reasonably be expected to produce the pain or other symptoms alleged.” 14 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 15 required to show that his impairment could reasonably be expected to cause the 16 severity of the symptom he has alleged; he need only show that it could reasonably 17 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 18 (9th Cir. 2009) (internal quotation marks omitted). 19 Second, “[i]f the claimant meets the first test and there is no evidence of 20 malingering, the ALJ can only reject the claimant’s testimony about the severity of 21 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the ORDER ~ 9 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1244 Page 10 of 22 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 2 citations and quotations omitted). “General findings are insufficient; rather, the 3 ALJ must identify what testimony is not credible and what evidence undermines 4 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 5 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 6 must make a credibility determination with findings sufficiently specific to permit 7 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 8 testimony.”). “The clear and convincing [evidence] standard is the most 9 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 10 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 11 924 (9th Cir. 2002)). 12 Here, the ALJ found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms; however, 14 Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of 15 these symptoms are not entirely consistent with the medical evidence and other 16 evidence in the record” for several reasons. Tr. 567. 17 18 1. Daily Activities The ALJ found that Plaintiff’s “daily activities, while somewhat limited, are 19 consistent with the RFC outlined [by the ALJ].” Tr. 570. A claimant need not be 20 utterly incapacitated in order to be eligible for benefits. Fair, 885 F.2d at 603; see 21 also Orn, 495 F.3d at 639 (“the mere fact that a plaintiff has carried on certain ORDER ~ 10 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1245 Page 11 of 22 1 activities . . . does not in any way detract from her credibility as to her overall 2 disability.”). Regardless, even where daily activities “suggest some difficulty 3 functioning, they may be grounds for discrediting the [Plaintiff’s] testimony to the 4 extent that they contradict claims of a totally debilitating impairment.” Molina, 5 674 F.3d at 1113. 6 In support of this finding, the ALJ cited Plaintiff’s ongoing reports of 7 “relatively good functional activities,” including maintaining a savings and 8 checking account; doing household chores such as vacuuming, mopping, cleaning 9 bathrooms, and doing dishes; attending to personal care; watching TV; surfing the 10 internet; playing video games; sewing; walking her dog; reading; preparing simple 11 lists and following a small shopping list; and archery. Tr. 570 (citing Tr. 329, 335, 12 375, 384, 449, 994, 1063, 1076, 1107 (“activities of daily living are within normal 13 limits”). The ALJ also specifically found inconsistencies between Plaintiff’s 14 testimony and her reported activities. For example, Plaintiff testified that she is 15 afraid to leave her house and only goes out 1-2 times a week, but records indicate 16 that Plaintiff walked her dog on a regular basis, went to the grocery store with her 17 mom, and “reported she had recently lost 10 pounds playing pok-e-mon go.” Tr. 18 570 (citing Tr. 994, 1076). The ALJ concluded that these activities show “at least 19 some ability to function in social/public settings,” and “pok-e-mon go requires the 20 player to walk around town/explore in order to catch critters, and [Plaintiff’s] 21 ability to play this game is inconsistent with an individual who is afraid to leave ORDER ~ 11 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1246 Page 12 of 22 1 her house due to anxiety and other issues.” In addition, the ALJ found Plaintiff’s 2 “hobbies including reading, comics, and playing video games, which [the ALJ] 3 notes is consistent with an ability to perform at least simple, routine tasks.” Tr. 4 570. 5 Plaintiff generally argues that the ALJ’s reliance on these types of activities 6 was not a clear and convincing reason to discount her symptom claims. ECF No. 7 13 at 14-15; Fair, 885 F.2d at 603 (claimant need not be “utterly incapacitated to 8 be eligible for benefits”). In her reply brief, Plaintiff further contends that (1) 9 “[e]ven though [Plaintiff] reported doing these activities, the record does not 10 indicate how proficient she is in performing these activities”; (2) several of 11 Plaintiff’s reports of activities “predated her application” for benefits; and (3) the 12 ALJ is improperly “speculating as to the type of activity [Plaintiff] engaged in 13 when playing Pokemon Go.” ECF No. 15 at 3-5. However, it was reasonable for 14 the ALJ to conclude that Plaintiff’s documented activities, including playing 15 walking and caring for her dog, reading, playing video games 4-5 hours a day, 16 researching on the computer, and caring for the household, was inconsistent with 17 her allegations of entirely debilitating functional limitations, and consistent with 18 the assessed RFC limitation to simple, routine tasks. Molina, 674 F.3d at 1113 19 (Plaintiff’s activities may be grounds for discrediting Plaintiff’s testimony to the 20 extent that they contradict claims of a totally debilitating impairment); Tommasetti, 21 533 F.3d at 1040 (ALJ may draw inferences logically flowing from evidence). ORDER ~ 12 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1247 Page 13 of 22 1 Moreover, even assuming, arguendo, that the ALJ erred in making this finding, 2 any error is harmless because, as discussed herein, the ALJ’s ultimate rejection of 3 Plaintiff’s symptom claims was supported by substantial evidence. See Carmickle 4 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 5 6 2. Improvement Next, the ALJ found that treatment records show Plaintiff’s anxiety, 7 depression, and ADHD were “generally well-controlled with medication.” Tr. 8 567-68. A favorable response to treatment can undermine a claimant's complaints 9 of debilitating pain or other severe limitations. See Tommasetti v. Astrue, 533 F.3d 10 1035, 1040 (9th Cir. 2008); see Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 11 1001, 1006 (9th Cir. 2006) (Conditions effectively controlled with medication are 12 not disabling for purposes of determining eligibility for benefits). In support of 13 this finding, the ALJ cites Dr. Gwinn’s treating provider notes from 2013 to 2016 14 that include reports that Plaintiff “was doing well, her mood was good, and she 15 appeared relaxed and not anxious on examination.” Tr. 567-68; Tr. 347-48, 354, 16 390, 415-16, 1053-55, 1058, 1061. In addition, the ALJ cited Plaintiff’s 2017 17 report that she was “doing fine, mood good” on Sertraline; February 2018 report 18 that she “feels this is getting better with proper medication”; May 2018 reports that 19 her anxiety was controlled and she was “stable on current treatment”; and provider 20 reports in July 2018 that Plaintiff’s anxiety and depression were improving with 21 medication. Tr. 568 (citing Tr. 390, 1029, 1032, 1049, 1084, 1121). Finally, as to ORDER ~ 13 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1248 Page 14 of 22 1 her ADHD, records from across the relevant adjudicatory period indicate that 2 Plaintiff was doing well on her medication, her focus and concentration were 3 improved with medication, and by 2018 records documented Plaintiff’s ADHD as 4 “stable and controlled.” Tr. 568 (citing Tr. 354 (noting she has been on the same 5 dose for 5-7 years), 394 (“doing well” on a low dose of ADHD medication), 1033, 6 1049-51, 1055, 1061). 7 Plaintiff argues, without specific citation to the medical evidence, that it was 8 “error for an ALJ to pick out a few isolated instances of improvement or a period 9 of months or years and then to treat them as a basis for concluding [Plaintiff] is 10 capable of working.” ECF No. 13 at 16 (citing Garrison v. Colvin, 759 F.3d 995, 11 1017-18 (9th Cir. 2014) (noting that treatment notes “must also be interpreted with 12 an awareness that improved functioning while being treated and while limiting 13 environmental stressors does not always mean that a claimant can function 14 effectively in a workplace.”). However, as noted elsewhere in the ALJ’s decision, 15 objective testing is “largely inconsistent” with Plaintiff’s allegations of total 16 disability, including ongoing normal mental status examinations. See Tr. 568 17 (citing Tr. Tr. 330, 340, 390, 399, 421, 448, 489, 994, 1006, 1067, 1072, 1077-78, 18 1082, 1086, 1095, 1107, 1114-15, 1132). Plaintiff fails to offer specific evidence 19 from the record to support the argument that the effectiveness of Plaintiff’s 20 medication was “isolated” or “sporadic”; nor did the ALJ made any specific 21 findings that the effectiveness of treatment showed that Plaintiff could work fullORDER ~ 14 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1249 Page 15 of 22 1 time. Rather, the ALJ reasonably concluded that, despite evidence that could be 2 considered favorable to Plaintiff, longitudinal evidence of effective treatment of 3 Plaintiff’s claimed mental impairments was inconsistent with her allegations of 4 incapacitating limitations. See Burch, 400 F.3d at 679 (where evidence is 5 susceptible to more than one interpretation, the ALJ’s conclusion must be upheld). 6 This was a clear and convincing reason to discredit Plaintiff’s symptom claims. 7 8 9 3. Additional Reasons As noted by Defendant, Plaintiff failed to challenge all of the ALJ’s reasons for rejecting Plaintiff’s symptom claims in her opening brief, and has therefore 10 waived her opportunity to challenge those reasons. ECF No. 14 at 4. The Court 11 may decline to address issues not raised with specificity in Plaintiff’s opening 12 brief. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 13 2008); see also Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may 14 not consider on appeal issues not “specifically and distinctly argued” in the party’s 15 opening brief). Despite Plaintiff’s waiver, the Court will briefly review the 16 additional reasons arguably given by the ALJ to discount Plaintiff’s symptom 17 claims. 18 First, the ALJ found that the objective medical evidence does not fully 19 support the level of limitation claimed by Plaintiff. Tr. 567-69. An ALJ may not 20 discredit a claimant’s pain testimony and deny benefits solely because the degree 21 of pain alleged is not supported by objective medical evidence. Rollins v. ORDER ~ 15 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1250 Page 16 of 22 1 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 2 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). 3 However, the medical evidence is a relevant factor in determining the severity of a 4 claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 5 404.1529(c)(2). Here, the ALJ acknowledged that Plaintiff has “demonstrated 6 significant cognitive deficits on mental status examination”; however, the ALJ also 7 set out the medical evidence contradicting Plaintiff’s claims of disabling 8 limitations. Tr. 568. For example, the ALJ noted a “significant variability in test 9 scores, which is largely inconsistent with [Plaintiff’s] allegations of total 10 disability.” Tr. 568 (citing Tr. 318-19, 330, 340, 463, 466-67 (noting “significant 11 discrepancy” in scores), 985-86, 1006, 1015-16, 1024). In addition, the ALJ found 12 Plaintiff has “consistently scored within the normal range on the Mini Mental 13 Status Examination,” demonstrating good registration, attention and calculation, 14 recall, language, orientation, ability to follow simple commands, attention span, 15 concentration, recent and remote memory, orientation, and fund of knowledge. Tr. 16 568-69 (citing Tr. 330, 340, 390, 399, 421, 448, 489, 994, 1006 (scoring 28 out of 17 30 possible points), 1067, 1072, 1077-78, 1082, 1086, 1095, 1107, 1114-15, 1132). 18 Finally, the ALJ acknowledged that examinations have shown mild to moderate 19 cognitive deficits, but noted these impairments were accommodated in the assessed 20 RFC. Tr. 569. 21 ORDER ~ 16 Case 2:20-cv-00135-FVS 1 ECF No. 17 filed 08/20/21 PageID.1251 Page 17 of 22 In her reply brief, Plaintiff cites several treatment notes observing abnormal 2 speech, constricted affect, depressed and anxious mood, “retarded psychomotor 3 activity,” and fair judgment. ECF No. 15 at 6-7, 12 (citing Tr. 984, 1082, 1086, 4 1090). Plaintiff also notes that her treating provider, Dr. Douglas R. Gwinn, 5 assessed marked limitations in multiple “work-related activities.” However, the 6 Court notes that Plaintiff does not challenge the ALJ’s rejection of Dr. Gwinn’s 7 opinion in her opening brief. Moreover, regardless of evidence that could be 8 considered favorable to Plaintiff, it was reasonable for the ALJ to find the severity 9 of Plaintiff’s symptom claims was inconsistent with objective findings from the 10 longitudinal record. Tr. 567-69. “[W]here evidence is susceptible to more than 11 one rational interpretation, it is the [Commissioner’s] conclusion that must be 12 upheld.” Burch, 400 F.3d at 679. 13 Second, the ALJ found that Plaintiff’s statements “were not entirely 14 consistent with the record as a whole”; and specifically, Plaintiff “has made 15 inconsistent statements regarding her history, symptoms and limitations.” Tr. 569. 16 These inconsistencies, unchallenged by Plaintiff in her briefing, include: a report of 17 past trauma followed by subsequent ongoing denials of past trauma; reported 18 history of suicide attempts on some occasions, but specifically denying suicide 19 attempts on “many” other occasions and a denial of suicide attempts by Plaintiff’s 20 mother; a report of severe panic attacks three times a week in 2018, followed by a 21 report two weeks later that her anxiety was well-controlled on medication; reports ORDER ~ 17 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1252 Page 18 of 22 1 of difficulty sleeping “not fully supported by the record” showing consistent 2 reports that she generally slept well and denied sleep disturbance; and Plaintiff’s 3 allegations at the hearing that IBS caused her to be “unable to function half the day 4 is inconsistent with the objective medical record and her reports to providers” that 5 her IBS was well-controlled. Tr. 569 (citing Tr. 328, 367, 389, 414, 441, 448, 450, 6 487, 491, 494, 520, 529, 983, 994, 1004, 1011, 1029-32, 1049, 1053, 1058, 1061, 7 1066, 1069, 1073, 1076, 1095, 1107, 1125, 1128, 1132). In addition, the ALJ 8 noted that Plaintiff’s “ability to speak her mind clearly, advocate for certain 9 conditions and request very specific medications is not fully consistent with an 10 individual truly suffering from the severe degree of cognitive limitations alleged by 11 [Plaintiff].” Tr. 569, 1124, 1096. Based on the foregoing, in evaluating the 12 severity of Plaintiff’s symptoms, the ALJ properly considered inconsistencies in 13 Plaintiff’s statements, and between her testimony and her conduct. See Thomas, 14 278 F.3d at 958-59; Tommasetti, 533 F.3d at 1039 (prior inconsistent statements 15 may be considered). This was a clear, convincing, and unchallenged reason for the 16 ALJ to discount Plaintiff’s symptom claims. 17 Finally, the ALJ found that Plaintiff was “only seeking treatment for 18 secondary gain purposes and not because she actually needed help with her mental 19 health issues, which is inconsistent with her underlying claims of disability.” Tr. 20 570. In support of this finding, the ALJ cited continuing evidence that Plaintiff’s 21 stated treatment goal was to obtain benefits, and on at least one occasion she was ORDER ~ 18 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1253 Page 19 of 22 1 unable to identify an overarching treatment goal aside from “to get financially 2 stable.” Tr. 569-70 (citing Tr. 1076 (Plaintiff and her mother explained they were 3 “here for disability purposes”), 1080 (Plaintiff had “difficulty identifying an 4 overarching [treatment] goal other than to get financially stable”), 1093 (noting 5 that Plaintiff sought treatment “because she got a letter from DSHS that she needed 6 to have mental health assessment in order to continue to receive benefits”)). It was 7 proper for the ALJ to consider evidence that Plaintiff was motivated by secondary 8 gain in evaluating her symptom claims. See Matney on Behalf of Matney v. 9 Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). 10 11 12 13 The Court concludes that the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff’s symptom claims. B. Medical Opinions There are three types of physicians: “(1) those who treat the claimant 14 (treating physicians); (2) those who examine but do not treat the claimant 15 (examining physicians); and (3) those who neither examine nor treat the claimant 16 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 17 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 18 Generally, a treating physician's opinion carries more weight than an examining 19 physician's, and an examining physician's opinion carries more weight than a 20 reviewing physician's. Id. If a treating or examining physician's opinion is 21 uncontradicted, the ALJ may reject it only by offering “clear and convincing ORDER ~ 19 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1254 Page 20 of 22 1 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 2 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 3 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 4 providing specific and legitimate reasons that are supported by substantial 5 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 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, 554 F.3d at 1228 (quotation and citation omitted). 9 The entirety of Plaintiff’s argument regarding the medical opinion evidence 10 in her opening brief, consisting of less than one page, is that the ALJ improperly 11 relied on the opinion of non-examining, non-treating doctors, as opposed to 12 Plaintiff’s examining and treating providers. ECF No. 13 at 16-17. Plaintiff is 13 correct that the opinion of a non-examining medical advisor cannot, by itself, 14 constitute substantial evidence that justifies the rejection of an examining or 15 treating physician. ECF No. 13 at 16 (citing Morgan v. Comm’r of Soc. Sec. 16 Admin., 169 F.3d 595, 600 (9th Cir. 1999)). However, where, as here, the treating 17 or examining physician's opinion is contradicted by medical evidence, the opinion 18 may still be rejected if the ALJ provides specific and legitimate reasons supported 19 by substantial evidence in the record. See Andrews v. Shalala, 53 F.3d 1035, 1041 20 (9th Cir.1995). As noted by Defendant, the ALJ offered several additional reasons 21 for rejecting the opinions of the treating and examining providers listed by Plaintiff ORDER ~ 20 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1255 Page 21 of 22 1 in her brief. Moreover, Plaintiff entirely failed to challenge any of the ALJ’s 2 reasons for rejecting the opinions of Douglas R. Gwinn, M.D., W. Scott Mabee, 3 Ph.D., Brian R. Campbell, Ph.D., Debra D. Brown, Ph.D., Kayleen Islam-Zwart, 4 Ph.D.,3 and has therefore waived her opportunity to challenge those reasons. See 5 also Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not consider 6 on appeal issues not “specifically and distinctly argued” in the party’s opening 7 brief). As noted by Defendant, Plaintiff also failed to raise any challenge to the 8 ALJ’s re-consideration of the testimony of Nancy Winfrey, Ph.D., the medical 9 expert in the previous hearing, pursuant to the remand order of the District Court. 10 11 12 13 14 15 16 17 18 19 20 21 3 In her opening brief, Plaintiff listed “examining providers,” without any further argument, which included Jennifer Van Wey, Psy.D., John F. McRae, Ph.D., and Robby C. Riddle, Lt Col, USAF, MC, FS, ECF No. 13 at 17. However, as noted by the ALJ, these opinions were 6-7 years before the alleged onset date of disability and “therefore not pertinent.” Tr. 572. In addition, Plaintiff lists treating providers Betty L. Vicena, LISCW and Ronald L. Eastman, MED LMHC; but the record only includes treatment notes from these providers, as opposed to medical opinions that assessed specific functional limitations. Regardless, as noted supra, the Court declines to address the ALJ’s consideration of these medical opinions and records, as they are not challenged with specificity by Plaintiff. See Carmickle, 533 F.3d at 1161 n.2. ORDER ~ 21 Case 2:20-cv-00135-FVS ECF No. 17 filed 08/20/21 PageID.1256 Page 22 of 22 1 Based on the foregoing, the Court declines to address the ALJ’s consideration of 2 the medical opinion evidence because it was not raised with specificity in 3 Plaintiff’s opening brief. See Carmickle, 533 F.3d at 1161 n.2. 4 5 CONCLUSION A reviewing court should not substitute its assessment of the evidence for 6 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must 7 defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42 8 U.S.C. § 405(g). As discussed in detail above, the ALJ provided clear and 9 convincing reasons to discount Plaintiff’s symptom claims, and Plaintiff waived 10 her opportunity to challenge the medical opinion evidence. After review, the Court 11 finds the ALJ’s decision is supported by substantial evidence and free of harmful 12 legal error. 13 ACCORDINGLY, IT IS HEREBY ORDERED: 14 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 15 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 16 17 GRANTED. The District Court Executive is hereby directed to enter this Order and 18 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE 19 the file. 20 DATED August 20, 2021. 21 ORDER ~ 22 Stanley A. Bastian Chief United States District Judge
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