Cupp v. Saul, No. 2:2020cv00319 - Document 19 (E.D. Wash. 2021)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Plaintiff's Motion for Summary Judgment (ECF No. 14 ) is DENIED. Defendant's Motion for Summary Judgment (ECF No. 16 ) is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Cupp v. Saul Doc. 19 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1688 Page 1 of 21 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 KASSANDRA C., 7 NO. 2:20-CV-0319-TOR Plaintiff, 8 v. 9 COMMISSIONER OF SOCIAL SECURITY, 1 10 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 14, 16). Plaintiff is represented by Christopher H. Dellert. 15 Defendant is represented by Edmund Darcher. This matter was submitted for 16 17 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 18 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1689 Page 2 of 21 1 consideration without oral argument. The Court has reviewed the administrative 2 record and the parties’ completed briefing and is fully informed. For the reasons 3 discussed below, the Court DENIES Plaintiff’s motion and GRANTS Defendant’s 4 motion. 5 6 7 8 9 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited: the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 14 relevant evidence that “a reasonable mind might accept as adequate to support a 15 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 16 substantial evidence equates to “more than a mere scintilla[,] but less than a 17 preponderance.” Id. (quotation and citation omitted). In determining whether this 18 standard has been satisfied, a reviewing court must consider the entire record as a 19 whole rather than searching for supporting evidence in isolation. Id. 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 2:20-cv-00319-TOR 1 ECF No. 19 filed 08/02/21 PageID.1690 Page 3 of 21 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the Court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 7 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 8 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 9 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. 11 Sanders, 556 U.S. 396, 409-10 (2009). 12 13 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 14 the meaning of the Social Security Act. First, the claimant must be unable “to 15 engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than 12 18 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 19 impairment must be “of such severity that [he or she] is not only unable to do [his 20 or her] previous work[,] but cannot, considering [his or her] age, education, and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1691 Page 4 of 21 1 work experience, engage in any other kind of substantial gainful work which exists 2 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 6 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 7 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b). 9 If the claimant is not engaged in substantial gainful activities, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 12 “any impairment or combination of impairments which significantly limits [his or 13 her] physical or mental ability to do basic work activities,” the analysis proceeds to 14 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 15 this severity threshold, however, the Commissioner must find that the claimant is 16 not disabled. Id. 17 At step three, the Commissioner compares the claimant’s impairment to 18 several impairments recognized by the Commissioner to be so severe as to 19 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1692 Page 5 of 21 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 416.920(d). 3 If the severity of the claimant’s impairment does meet or exceed the severity 4 of the enumerated impairments, the Commissioner must pause to assess the 5 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations (20 C.F.R. § 8 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (“past relevant work”). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education and 19 work experience. Id. If the claimant is capable of adjusting to other work, the 20 Commissioner must find that the claimant is not disabled. 20 C.F.R. § ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1693 Page 6 of 21 1 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 2 analysis concludes with a finding that the claimant is disabled and is therefore 3 entitled to benefits. Id. 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 7 capable of performing other work; and (2) such work “exists in significant 8 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 9 700 F.3d 386, 389 (9th Cir. 2012). 10 ALJ’S FINDINGS 11 On March 14, 2018, Plaintiff protectively filed an application for Title XVI 12 supplemental security income benefits, alleging a disability onset date of January 13 19, 2016. Tr. 279-285. The application was denied initially, Tr. 153-168, and on 14 reconsideration, Tr. 169-185. Plaintiff appeared at a hearing before an 15 administrative law judge (“ALJ”) on September 6, 2019. Tr. 86-125. At the 16 hearing, Plaintiff, through her representative, amended the alleged onset date to 17 March 14, 2018, the date the application was filed. Tr. 17. On September 30, 18 2019, the ALJ denied Plaintiff’s claim. Tr. 12-31. 19 20 At step one of the sequential evaluation analysis, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 14, 2018, the amended ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1694 Page 7 of 21 1 onset date and date for which the application was filed. Tr. 16. At step two, the 2 ALJ found Plaintiff had the following severe impairments: chronic pain syndrome, 3 osteoarthritis, and obesity. Tr. 18. At step three, the ALJ found that Plaintiff’s 4 impairments did not meet or medically equal the severity of a listed impairment. 5 Tr. 20. The ALJ then found that Plaintiff had the RFC to perform a range of light 6 work with the following limitations: 7 8 9 10 11 12 [Plaintiff] could lift no more than 20 pounds at a time occasionally and could lift or carry 10 pounds frequently. She could sit for 8 hours and could stand and walk 6 hours total, in any combination, in an 8hour workday with normal breaks. She could frequently balance, stoop, kneel, crouch, crawl, or climb ramps/stairs. She could never climb ladders or scaffolds. She could never be exposed to unprotected heights or hazardous machinery. Tr. 21. At step four, the ALJ found that Plaintiff is capable of performing past 13 relevant work as a Production Assembler and Assembler I, which do not require 14 the performance of work-related activities precluded by Plaintiff’s RFC. Tr. 25. 15 At step five, the ALJ alternatively found that, considering Plaintiff’s age, 16 education, work experience, RFC, and testimony from a vocational expert, there 17 were other jobs that existed in significant numbers in the national economy that 18 Plaintiff could perform, such as bench assembler, warehouse checker, garment 19 sorter, and mail clerk. Tr. 26-27. The ALJ concluded Plaintiff was not under a 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1695 Page 8 of 21 1 disability, as defined in the Social Security Act, from March 14, 2018 through 2 September 30, 2019, the date of the ALJ’s decision. Tr. 27. 3 On July 8, 2020, the Appeals Council denied review, Tr. 1-3, making the 4 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 5 See 42 U.S.C. § 1383(c)(3). 6 ISSUES 7 Plaintiff seeks judicial review of the Commissioner’s final decision denying 8 him supplemental security income benefits under Title XVI of the Social Security 9 Act. Plaintiff raises the following issues for this Court’s review: 10 11 12 13 14 15 16 17 18 19 20 1. Whether the ALJ properly evaluated Plaintiff’s medically determinable mental impairments; 2. Whether the ALJ’s opinion properly deviated from medical expert opinions; and 3. Whether the ALJ properly found Plaintiff performed past work at the substantially gainful activity level. ECF No. 14 at 2. DISCUSSION A. Medically Determinable Impairments Plaintiff contends the ALJ erred where he (1) failed to properly evaluate Plaintiff’s mental impairments, (2) failed to properly rate Plaintiff’s degree of ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1696 Page 9 of 21 1 mental dysfunction, (3) failed to support a finding that Plaintiff’s mental 2 limitations did not worsen since 2016, and (4) found that his determination would 3 not have altered at step five of the sequential evaluation with an alternative finding 4 and adoption of mental limitations. ECF No. 14 at 10. 5 At step two of the sequential evaluation process, the ALJ considers the 6 severity of the claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). Step two is 10 “a de minimis screening device [used] to dispose of groundless claims.” Smolen v. 11 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying our normal standard 12 of review to the requirements of step two, [the Court] must determine whether the 13 ALJ had substantial evidence to find that the medical evidence clearly established 14 that [Plaintiff] did not have a medically severe impairment or combination of 15 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 16 In evaluating a claimant’s mental impairments, an ALJ follows a special 17 two-step psychiatric review technique. 20 C.F.R. § 416.920a. First, the ALJ must 18 determine whether there is a medically determinable impairment. 20 C.F.R. § 19 416.920a(b)(1). If the ALJ determines an impairment exists, the ALJ must rate the 20 degree of functional limitation resulting from the impairment in the following four ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1697 Page 10 of 21 1 broad functional categories: (1) understand, remember, or apply information; (2) 2 interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or 3 manage oneself. 20 C.F.R. § 416.920a(c)(3). If the ALJ rates the degree of 4 limitation as “none” or “mild,” the ALJ will generally conclude the impairment is 5 not severe. Id. As to the first step, the impairment must be shown by objective 6 medical evidence such as medically acceptable clinical or laboratory diagnostic 7 techniques; a claimant’s statement regarding symptoms, a diagnosis, or medical 8 opinion is insufficient to establish the existence of an impairment. 20 C.F.R. § 9 416.921. 10 First, the ALJ found that Plaintiff had no medically determinable mental 11 impairments. Tr. 19-20. The ALJ relied on Dr. Toews’ assessment of the relevant 12 period where he asserted that the medical record does not establish any medically 13 determinable mental impairment where Plaintiff made her own claims of mental 14 impairments without any record of formal assessments. Tr. 19; 20 C.F.R. § 15 416.921. While Plaintiff made various claims for mental diagnoses, Dr. Toews 16 found no significant objective evidence, either clinical or objective psychiatric 17 assessments, to indicate a basis for Plaintiff’s claimed diagnoses. Tr. 20. The ALJ 18 noted that Plaintiff’s self-reported questionnaires were not useful for diagnostic or 19 prescriptive purposes. Id. While Plaintiff reported PTSD, Plaintiff’s clinician and 20 adoptive mother stated there was no record or documentation of this. Id. While ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1698 Page 11 of 21 1 Plaintiff reported a history of dyslexia, the provider provided no documentation for 2 the diagnosis. Id. (citing Tr. 447-448). While Plaintiff reported a childhood 3 diagnosis of ADHD, Plaintiff’s adoptive mother reported that Plaintiff was never 4 tested for ADHD. Id. (citing 466-467, 444). Moreover, the ALJ also cited to a 5 July 2018 report from a mental health provider that Plaintiff had a history of 6 “making up medical information” so that it was difficult to tell whether Plaintiff 7 had a fixed psychosis or behavioral problem. Id. (citing Tr. 467, 489); Holohan v. 8 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Additionally, while a prior ALJ 9 decision found mental RFC limitations, the ALJ noted that during the relevant 10 period for this application beginning in 2018, Plaintiff’s mental status examination 11 was within normal limits, Plaintiff provided reports and assessments that indicated 12 her mental symptoms were generally stable while on medications, and Plaintiff 13 reported being clean and sober. Tr. 20 (citing Tr. 126-147, 153-167, 169-184, 473, 14 523-577). The ALJ’s finding was supported by substantial evidence in the record. 15 Plaintiff asserts there is objective medical evidence supporting the diagnoses 16 of anxiety disorder, depressive disorder, personality disorder, and bipolar disorder. 17 ECF No. 14 at 7. However, where evidence “is susceptible to more than one 18 rational interpretation, [the Court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina, 674 F.3d at 20 1111. Plaintiff also contends that the ALJ “should have proceeded with the special ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1699 Page 12 of 21 1 technique and rated the degree of Plaintiff’s limitations across the four broad 2 functional areas set out in 20 C.F.R. § 416.920a.” ECF No. 14 at 7. Because the 3 ALJ determined there were no medically determinable mental impairments, the 4 ALJ was not required to rate those limitations. 20 C.F.R. § 416.920a(b)(1). Even 5 where Plaintiff had a “colorable claim of mental impairment,” the Court concludes 6 that the ALJ did not make any harmful error where Plaintiff conceded at step three 7 that mental impairments were not severe and where the ALJ nonetheless accounted 8 for Plaintiff’s mental impairments in a hypothetical RFC and found there was at 9 least one job in the national economy she could perform. Tr. 21, 124; see Keyser 10 11 v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 726-727 (9th Cir. 2011). In the alternative, the ALJ found that even if the RFC included Plaintiff’s 12 alleged mental limitations, there would be work she could perform in the national 13 economy per the vocational expert’s testimony. Tr. 20. Plaintiff asserts that the 14 vocational expert’s testimony that Plaintiff could perform the occupations of 15 warehouse checker, garment sorter, and mail clerk with a restriction to simple 1 to 16 3 step tasks is contrary to the information contained in the Dictionary of 17 Occupational Titles (DOT). ECF No. 14 at 8. “When there is an apparent conflict 18 between the vocational expert’s testimony and the DOT – for example, expert 19 testimony that a claimant can perform an occupation involving DOT requirements 20 that appear more than the claimant can handle – the ALJ is required to reconcile ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1700 Page 13 of 21 1 the inconsistency.” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (internal 2 citation omitted). Dr. Anderson opined that Plaintiff “can understand, remember, 3 and carry out 1-3 step simple, repetitive routine work instructions and tasks; can 4 perform low stress level work. She can sustain a typical work day/week within 5 ordinary workplace expectations.” Tr. 181. The ALJ found that the vocational 6 expert’s testimony was consistent with the information in the DOT and that “[n]o 7 evidence has been submitted indicating that the vocational expert testimony 8 differed in any meaningful way from the information available in the DOT or the 9 SCO.” Tr. 26. The vocational expert testified that if the mental limitations were 10 incorporated into the RFC, the job of bench assembler would be precluded but 11 Plaintiff would nonetheless be able to perform other jobs like warehouse checker 12 and garment sorter. Tr. 122-123; DOT 222.687-010; DOT 222.687-014. 13 Plaintiff’s citation to Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1003 (9th Cir. 14 2015), is distinguishable where a restriction to 2 step tasks conflicted with a 15 reasoning level of 2. Here, Plaintiff was not restricted to 2 step tasks. There is no 16 apparent conflict between the DOT and the vocational expert’s testimony that 17 Plaintiff could perform the occupations of warehouse checker and garment sorter 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1701 Page 14 of 21 1 under the hypothetical incorporation of Plaintiff’s mental limitations. Therefore, 2 the ALJ’s alternative finding was supported by substantial evidence. 3 The Court finds any error harmless. Step two was resolved in Plaintiff’s 4 favor, and the ALJ considered the alleged mental limitations in the RFC and found 5 other jobs in the national economy that could be performed if such limitations were 6 included; either way, Plaintiff would still not be found disabled at step five of the 7 sequential evaluation. Tr. 20; see Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 8 1050, 1055 (9th Cir. 2006); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 9 Therefore, any error in not finding that Plaintiff had no medically determinable 10 11 12 mental impairment was harmless. B. Medical Opinion Evidence Plaintiff challenges the ALJ’s partial departure from the medical opinions of 13 Dr. J.D. Fitterer, M.D. and Dr. Donna LaVallie, D.O. ECF No. 14 at 10-13. The 14 Court notes that Plaintiff does not challenge the ALJ’s findings regarding the other 15 medical opinion evidence of Dr. Gary Gaffield, D.O., Dr. Jay Toews, Ed.D., Dr. 16 Robert Smiley, M.D., Dr. Christmas Covell, Ph.D., and Dr. Jon Anderson, Ph.D. 17 See ECF No. 14. 18 As an initial matter, for claims filed on or after March 27, 2017, new 19 regulations apply that change the framework for how an ALJ must evaluate 20 medical opinion evidence. 20 C.F.R. § 416.920c(c); see also Revisions to Rules ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1702 Page 15 of 21 1 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 2 5844-01 (Jan. 18, 2017). The ALJ applied the new regulations because Plaintiff 3 filed her Title XVI claim after March 27, 2017. See Tr. 17, 24. 4 Under the new regulations, the ALJ will no longer “give any specific 5 evidentiary weight … to any medical opinion(s).” Revisions to Rules, 2017 WL 6 168819, 82 Fed. Reg. 5844-01, 5867-68. Instead, an ALJ must consider and 7 evaluate the persuasiveness of all medical opinions or prior administrative medical 8 findings from medical sources. 20 C.F.R. § 416.920c(a)-(b). The factors for 9 evaluating the persuasiveness of medical opinions and prior administrative medical 10 findings include supportability, consistency, relationship with the claimant, 11 specialization, and “other factors that tend to support or contradict a medical 12 opinion or prior administrative medical finding” including but not limited to 13 “evidence showing a medical source has familiarity with the other evidence in the 14 claim or an understanding of our disability program’s policies and evidentiary 15 requirements.” 20 C.F.R. § 416.920c(c)(1)-(5). 16 The ALJ is required to explain how the most important factors, 17 supportability and consistency, were considered. 20 C.F.R. § 416.920c(b)(2). 18 These factors are explained as follows: 19 20 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 2:20-cv-00319-TOR 1 ECF No. 19 filed 08/02/21 PageID.1703 Page 16 of 21 more persuasive the medical opinions or prior administrative medical finding(s) will be. 2 3 4 5 6 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 20 C.F.R. § 416.920c(c)(1)-(2). The ALJ may, but is not required to, explain how “the other most persuasive 7 factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 8 § 416.920c(c)(b)(2). However, where two or more medical opinions or prior 9 administrative findings “about the same issue are both equally well-supported … 10 and consistent with the record … but are not exactly the same,” the ALJ is required 11 to explain how “the most persuasive factors” were considered. 20 C.F.R. 12 § 416.920c(c)(b)(2). 13 The Ninth Circuit currently requires the ALJ to provide “clear and 14 convincing” reasons for rejecting the uncontradicted opinion of either a treating or 15 examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a 16 treating or examining physician’s opinion is contradicted, the Ninth Circuit held 17 the medical opinion can only “be rejected for specific and legitimate reasons that 18 are supported by substantial evidence in the record.” Id. at 830-31 (internal 19 citation omitted). At this time, the Ninth Circuit has not addressed whether these 20 standards still apply when analyzing medical opinions under the new regulations. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1704 Page 17 of 21 1 For purposes of the present case, the Court finds that resolution of this issue is 2 unnecessary. See Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at 3 *3 (C.D. Cal. June 29, 2020) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X 4 Internet Services, 545 U.S. 967, 981-82 (2005) (“[T]he Court is mindful that it 5 must defer to the new regulations, even where they conflict with prior judicial 6 precedent, unless the prior judicial construction ‘follows from unambiguous terms 7 of the statute and thus leaves no room for agency discretion.’”)). 8 1. Dr. Fitterer and Dr. LaVallie 9 The ALJ found the opinions of state agency medical consultants Drs. Fitterer 10 and LaVallie somewhat persuasive. Tr. 24. The ALJ noted that their opinions 11 were based on a review of the medical record at the time of the consultation. Id. 12 However, in contrast, the ALJ explained that Dr. Smiley based his opinion on the 13 entire medical record, including more recent medical evidence, including 14 documentation of consistent treatment at a pain center that occurred following the 15 assessments of Dr. Fitterer and Dr. LaVallie where treatment was effective, as 16 explained earlier in the ALJ’s opinion. Id. The ALJ noted the pain center records 17 “consistently reported improvements in overall functioning and ability to perform 18 household responsibilities and activities of daily living to her satisfaction with 19 medication” including a 5/5 strength in the bilateral upper and lower extremities. 20 Tr. 23 (citing Tr. 447-465, 578-621). Therefore, the ALJ found Dr. Smiley’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1705 Page 18 of 21 1 opinion more supported by and consistent with the entire medical record because 2 Dr. Smiley reviewed the entire medical record, including more recent medical 3 evidence. 20 C.F.R. § 416.920c(c)(1)-(2). 4 Plaintiff argues that the ALJ “did not address or specifically discount the 5 medical consultants’ assessment of fingering and feeling limitations arising from 6 Plaintiff’s history of carpel tunnel syndrome and carpel tunnel release surgery.” 7 ECF No. 14 at 13. However, the ALJ considered and cited to Plaintiff’s carpal 8 tunnel surgery in evaluating other medical opinions. Tr. 18-19, 25. The ALJ noted 9 that Dr. Smiley testified while Plaintiff “has a history of bilateral carpal tunnel 10 syndrome and trigger fingers… these issues were treated with successful bilateral 11 carpal tunnel release/middle and ring finger trigger release surgeries in 2014.” Tr. 12 19 (citing Tr. 413, 416, 693, 700). Additionally, the ALJ noted that Dr. Gaffield 13 found no manipulative limitations in a May 2018 examination. Tr. 25. While the 14 ALJ did not specifically address the carpal tunnel syndrome and subsequent 15 surgery as a basis for departing from Drs. Fitterer and Lavallie’s opinions, the 16 Court may infer that the ALJ found it inconsistent with the record where the ALJ 17 considered and cited to the lack of manipulative limitations in the other medical 18 opinion evidence. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1706 Page 19 of 21 1 Therefore, the ALJ’s partial departure from the opinions of Dr. Fitterer and Dr. 2 LaVallie is supported by substantial evidence in the record. 3 4 5 6 C. Substantially Gainful Employment Plaintiff challenges the ALJ’s finding that Plaintiff’s past work constituted substantial gainful activity. ECF No. 14 at 13-15. At step four, the ALJ determines whether a claimant can still perform past 7 relevant work. 20 C.F.R. § 416.920(A)(4)(iv). If not, the ALJ must then 8 determine at step five whether the claimant can adjust to other work. 20 C.F.R. § 9 416.920(A)(4)(v). Past relevant work must be performed (1) within the past 15 10 years, (2) at a substantially gainful level, and (3) long enough to learn to do the job. 11 20 C.F.R. § 416.960(b)(1). If the earnings are below the presumptive level of 12 substantially gainful employment for a given year, evidence that a claimant’s work 13 was comparable to that of an unimpaired person in the same occupation may still 14 serve as evidence of being engaged in substantially gainful activity. 20 C.F.R. § 15 416.974(b)(3)(ii)(A), 16 The ALJ determined at step four that Plaintiff was not disabled because she 17 could perform past relevant work as a product assembler and assembler I. TR. 25- 18 26. The ALJ found that Plaintiff performed both positions within the last 15 years 19 at a substantially gainful level and long enough to learn the positions. Tr. 25. 20 Plaintiff primarily disputes that Plaintiff actually worked at a substantially gainful ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 Case 2:20-cv-00319-TOR ECF No. 19 filed 08/02/21 PageID.1707 Page 20 of 21 1 level in either position. ECF No. 14. Plaintiff’s work history report as cited by the 2 ALJ and vocational expert, shows that she made $400 per week in both positions in 3 the years 2007-2008. Tr. 331, 337-338. However, Plaintiff asserts that her actual 4 earnings in those positions were below the required level; in one job, she was fired 5 after two weeks for drinking on the job. ECF No. 14 at 14; see Tr. 337. At the 6 very least, there is a discrepancy in the documents between Plaintiff’s reported 7 work history and actual earnings that the ALJ failed to develop or explain. Tr. 25; 8 see Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). However, the ALJ 9 relied on the vocational expert’s testimony to find that Plaintiff’s work was 10 comparable to an unimpaired person when she was working. Tr. 25-26, 118-119; 11 20 C.F.R. § 416.974(b)(3)(ii)(A). The ALJ’s finding is supported by substantial 12 evidence. 13 Even if the ALJ erred at step four, such error is harmless if the ALJ finds 14 work that a claimant is able to perform at step five. Tommasetti v. Astrue, 533 15 F.3d 1035, 1042 (9th Cir. 2008). As discussed supra, the ALJ found a person with 16 Plaintiff’s RFC capable of performing occupations in the national economy, 17 including under the hypothetical of mental limitations. Tr. 26-27. This is 18 consistent with the prior ALJ’s determination that Plaintiff could perform jobs at 19 step five despite Plaintiff’s mental health limitations. Tr. 21, 72-76, 140; Lester v. 20 Chater, 81 F.3d 821, 827 (9th Cir. 1995). Therefore, the ALJ’s error at step four, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 Case 2:20-cv-00319-TOR 1 ECF No. 19 filed 08/02/21 PageID.1708 Page 21 of 21 if any, was harmless. 2 CONCLUSION 3 Having reviewed the record and the ALJ’s findings, the Court concludes the 4 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 5 ACCORDINGLY, IT IS HEREBY ORDERED: 6 1. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. 7 2. Defendant’s Motion for Summary Judgment (ECF No. 16) is 8 9 10 11 GRANTED. The District Court Executive is directed to enter this Order, enter judgment accordingly, furnish copies to counsel, and CLOSE the file. DATED August 2, 2021. 12 13 THOMAS O. RICE United States District Judge 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21

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