Platt v. Kijakazi, No. 2:2020cv00415 - Document 16 (E.D. Wash. 2021)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 13 AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 14 . Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Platt v. Kijakazi Doc. 16 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1362 Page 1 of 27 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 TARA P., NO. 2:20-CV-0415-TOR Plaintiff, 8 v. 9 10 COMMISSIONER OF SOCIAL SECURITY, 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. 13, 14). The Court has reviewed the administrative record 15 and the parties’ completed briefing, and is fully informed. For the reasons 16 discussed below, the Court DENIES Plaintiff’s motion and GRANTS Defendant’s 17 motion. 18 JURISDICTION 19 The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 2:20-cv-00415-TOR 1 2 ECF No. 16 filed 10/08/21 PageID.1363 Page 2 of 27 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158–59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” 7 means relevant evidence that “a reasonable mind might accept as adequate to 8 support a conclusion.” Id. at 1159 (quotation and citation omitted). Stated 9 differently, substantial evidence equates to “more than a mere scintilla[,] but less 10 than a preponderance.” Id. (quotation and citation omitted). In determining 11 whether this standard has been satisfied, a reviewing court must consider the entire 12 record as a whole rather than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 19 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 20 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1364 Page 3 of 27 1 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 2 decision generally bears the burden of establishing that it was harmed. Shinseki v. 3 Sanders, 556 U.S. 396, 409–10 (2009). 4 5 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be unable “to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than 12 10 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 11 impairment must be “of such severity that [he or she] is not only unable to do [his 12 or her] previous work[,] but cannot, considering [his or her] age, education, and 13 work experience, engage in any other kind of substantial gainful work which exists 14 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 §§ 17 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). At step one, the Commissioner 18 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 19 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1365 Page 4 of 27 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(b), 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work 8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 9 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 10 11 however, the Commissioner must find that the claimant is not disabled. Id. At step three, the Commissioner compares the claimant’s impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 14 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 15 severe than one of the enumerated impairments, the Commissioner must find the 16 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 17 If the severity of the claimant’s impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant’s “residual functional capacity.” Residual functional capacity, defined 20 generally as the claimant’s ability to perform physical and mental work activities ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1366 Page 5 of 27 1 on a sustained basis despite his or her limitations (20 C.F.R. §§ 404.1545(a)(1), 2 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv), 6 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 7 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 8 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 9 analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 13 the Commissioner must also consider vocational factors such as the claimant’s age, 14 education and work experience. Id. If the claimant is capable of adjusting to other 15 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 16 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 17 work, the analysis concludes with a finding that the claimant is disabled and is 18 therefore entitled to benefits. Id. 19 20 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1367 Page 6 of 27 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant 3 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); 4 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 On March 6, 2018, Plaintiff filed an application for Title II disability 7 insurance benefits and Title XVI supplemental security income benefits, alleging 8 an onset date of May 3, 2014. Tr. 21. The application was initially denied and 9 denied again on reconsideration. Id. Plaintiff appeared at a hearing before an 10 administrative law judge, Judge Payne, on August 2, 2019. Id. Following Judge 11 Payne’s retirement, a supplemental hearing was held on January 28, 2020 before a 12 replacement administrative law judge, Judge Palachuck (hereafter, the “ALJ”). Tr. 13 21, 141. At the supplemental hearing, Plaintiff amended the alleged onset date to 14 January 6, 2017. Tr. 21, 110. The ALJ denied Plaintiff’s claim on February 14, 15 2020. Tr. 35. 16 As a threshold matter, the ALJ found Plaintiff would meet the insured status 17 requirements of the Social Security Act through December 31, 2019. Tr. 24. At 18 step one of the sequential evaluation analysis, the ALJ found Plaintiff had not 19 engaged in substantial gainful activity after January 6, 2017, the amended alleged 20 onset date. Id. At step two, the ALJ found Plaintiff had the following severe ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1368 Page 7 of 27 1 impairments: idiopathic intracranial hypertension (a.k.a. pseudotumor cerebri), 2 episodic migraines, nocturnal hypoxemia, obesity, episodic mild asthma, 3 depression, and ADHD. Tr. 25. At step three, the ALJ found Plaintiff did not have 4 an impairment or combination of impairments that meets or medically equals the 5 severity of a listed impairment. Id. The ALJ then found Plaintiff had a residual 6 functional capacity to perform light work with the following limitations: 7 8 9 10 11 12 [Plaintiff] can never climb ladders, ropes, or scaffolds; occasionally crawl; and frequently perform all other posturals. She would need to avoid concentrated exposure to extreme heat, respiratory irritants, hazards, bright lights, noxious fumes, and loud noises. From a psychological perspective, the claimant is capable of understanding, remembering and carrying out simple, routine repetitive tasks; and she can maintain concentration, persistence, and pace on those tasks. Tr. 26. At step four, the ALJ found Plaintiff was not capable of performing past 13 relevant work as a home attendant. Tr. 33. However, the ALJ made an alternative 14 finding at step-five after considering Plaintiff’s age, education, work experience, 15 RFC, and testimony from a vocational expert, concluding there were other jobs 16 that existed in significant numbers in the national economy that Plaintiff could 17 perform, including a production assembler with approximately 196,300 jobs 18 nationally, an agriculture sorter with approximately 13,000 jobs nationally, and an 19 electronics assembler with approximately 22,800 jobs nationally. Tr. 35. The ALJ 20 concluded Plaintiff was not under a disability, as defined in the Social Security ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1369 Page 8 of 27 1 Act, from May 3, 2014, the original alleged onset date, through February 14, 2020, 2 the date of the ALJ’s decision. Id. 3 Plaintiff again seeks judicial review of the Commissioner’s final decision. 4 See 20 C.F.R. §§ 404.981, 416.1481, 422.210. 5 ISSUES 6 1. Whether the ALJ properly evaluated the severity of Plaintiff’s impairments; 7 2. Whether the ALJ properly evaluated Plaintiff’s impairments under the enumerated listings; 8 9 3. Whether the ALJ properly evaluated Plaintiff’s subjective symptom testimony; 10 4. Whether the ALJ properly evaluated the medical opinion evidence; 11 5. Whether the ALJ conducted an adequate analysis in determining that Plaintiff could perform other jobs in the national economy. 12 13 ECF No. 13 at 7. 14 DISCUSSION 15 A. 16 Plaintiff contends the ALJ erred in failing to identify Plaintiff’s chronic Severity of Plaintiff’s Impairments 17 fatigue as a severe impairment. ECF No. 13 at 16. At step two of the sequential 18 process, the ALJ must determine whether a claimant suffers from a “severe” 19 impairment, i.e., one that significantly limits her physical or mental ability to do 20 basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). To show a severe ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1370 Page 9 of 27 1 impairment, the claimant must first prove the existence of a physical or mental 2 impairment by providing medical evidence consisting of signs, symptoms, and 3 laboratory findings; the claimant’s own statement of symptoms alone will not 4 suffice. 20 C.F.R. §§ 404.1521, 416.921. 5 An impairment may be found non-severe when “medical evidence 6 establishes only a slight abnormality or a combination of slight abnormalities 7 which would have no more than a minimal effect on an individual’s ability to work 8 . . . .” Social Security Ruling (SSR) 85-28, 1985 WL 56856, at *3. Similarly, an 9 impairment is not severe if it does not significantly limit a claimant’s physical or 10 mental ability to do basic work activities, which include walking, standing, sitting, 11 lifting, pushing, pulling, reaching, carrying, or handling; seeing, hearing, and 12 speaking; understanding, carrying out and remembering simple instructions; 13 responding appropriately to supervision, coworkers and usual work situations; and 14 dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1522, 416.922; 15 see also SSR 85-28. 16 Step two is “a de minimis screening device to dispose of groundless claims.” 17 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted). “Thus, 18 applying our normal standard of review to the requirements of step two, [the 19 Court] must determine whether the ALJ had substantial evidence to find that the 20 medical evidence clearly established that [Plaintiff] did not have a medically ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1371 Page 10 of 27 1 severe impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 2 683, 687 (9th Cir. 2005). 3 Plaintiff argues her “most debilitating symptoms . . . stem from chronic 4 fatigue,” which the ALJ did not recognized as a severe impairment. ECF No. 13 at 5 16. To support her argument, Plaintiff relies on physical therapy treatment notes, 6 the fact that she has a DSHS caregiver, and assessments conducted by Dr. 7 Hammerstrom. Id. at 16–17. Despite Plaintiff’s allegation to the contrary, the ALJ 8 directly assessed Plaintiff’s chronic fatigue and accounted for the condition in 9 Plaintiff’s residual functional capacity. Specifically, the ALJ noted the objective 10 medical evidence showed only minimal physical examination abnormalities. Tr. 11 29; see, e.g., Tr. 559, 657. Moreover, Plaintiff demonstrated improved strength 12 and activity tolerance after undergoing physical therapy. Tr. 28. Regarding 13 Plaintiff’s reported dependence upon her DSHS caregiver, the ALJ found 14 Plaintiff’s claims inconsistent with her own reports of volunteer work, attendance 15 at bible study, and trips to the grocery store, which all suggested greater physical 16 functioning that what was alleged. Tr. 29. 17 Finally, the ALJ dismissed Dr. Hammerstrom’s opinion regarding Plaintiff’s 18 physical limitations because the opinion was based on Plaintiff’s subjective report 19 of fatigue and was generally inconsistent with the totality of Plaintiff’s medical 20 records. Tr. 31. Specifically, the ALJ noted Dr. Hammerstrom’s assessment from ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1372 Page 11 of 27 1 2018 indicated greater limitations than a similar assessment from 2019. Compare 2 Tr. 901 with Tr. 1245. Additionally, Dr. Hammerstrom indicated his 2018 opinion 3 was not based on any medical findings but Plaintiff’s own subjective reports. See 4 Tr. 903. 5 Plaintiff has failed to identify any additional objective medical evidence that 6 demonstrates her fatigue was sufficiently severe to limit her ability to work. The 7 Court finds the ALJ’s dismissal of Plaintiff’s alleged chronic fatigue reasonable 8 and supported by substantial evidence. Even if the ALJ erred in dismissing this 9 particular limitation, the error was harmless because step two of the analysis was 10 resolved in Plaintiff’s favor and the ALJ accounted for Plaintiff’s physical 11 limitations when considering her residual functional capacity. See Tr. 26 (finding 12 Plaintiff capable of performing only light work). Burch, 400 F.3d at 682–83 (9th 13 Cir. 2005); see also Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 14 B. 15 Plaintiff argues the ALJ erred at step three by failing to consider Plaintiff’s 16 alleged migraine headaches under Listing 11.02B and SSR 19-4p. ECF No. 13 at 17 18. At step three, the ALJ first determines whether a claimant’s impairment meets 18 or equals an impairment in the Listing of Impairments (the “Listings”). See 20 19 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The Listings describe specific 20 impairments that are recognized as severe enough to prevent a person from Plaintiff’s Impairments Under the Listings ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1373 Page 12 of 27 1 engaging in substantial gainful activities. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. 2 Each impairment is described using characteristics established through “symptoms, 3 signs and laboratory findings.” Tackett, 180 F.3d at 1099. 4 To meet an impairment, a claimant must establish she meets each of the 5 characteristics of the listed impairment. Id. To equal an impairment, a claimant 6 must establish symptoms, signs, and laboratory findings “at least equal in severity 7 and duration” to the characteristics of the listed impairment, or, if a claimant’s 8 impairment is not listed, to the impairment “most like” the claimant’s own. Id. If 9 a claimant meets or equals one of the listed impairments, the claimant will be 10 considered disabled without further inquiry. See 20 C.F.R. §§ 404.1520(d), 11 416.920(d). 12 Plaintiff argues the ALJ failed to properly assess her migraines under Listing 13 11.02B. ECF No. 13 at 18. Listing 11.02 covers epilepsy, which is recognized by 14 the Social Security Administration as the most analogous impairment to headache 15 disorders, such as migraines. SSR 19-4p, 2019 WL 4169635, at *7. Paragraph B 16 of Listing 11.02 requires documentation with a detailed description of a typical 17 seizure (or equivalent for migraines), occurring at least once a week for at least 18 three consecutive months despite adherence to prescribed treatment. 20 C.F.R. Pt. 19 404, Subpt. P, App.1 § 11.02B. The policy interpretation regarding Listing 11.02B 20 includes additional factors an ALJ may consider when evaluating a claimant’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1374 Page 13 of 27 1 migraines, such as: whether there are detailed descriptions from an acceptable 2 medical source of the headache event (for example, premonitory symptoms, aura, 3 duration, intensity, and accompanying symptoms); the frequency of the headaches; 4 adherence to prescribed treatment and any side effects (for example, drowsiness, 5 confusion, or inattention caused by the medication); and whether the claimant 6 experiences any limitations in functioning (for example, the need for a dark and 7 quiet room, having to lie still, sleep disturbances, or other related limitations). SSR 8 19-4p, 2019 WL 4169635, at *7. 9 The considerations under Listing 11.02D are the same as 11.02B, but also 10 include whether the overall effects of the headache disorder result in limitations to: 11 physical functioning; understanding, remembering, or applying information; 12 interacting with others; concentrating, persisting, or maintaining pace; or adapting 13 or managing oneself. Id. 14 Here, the ALJ did not explicitly discuss Plaintiff’s migraines at step three 15 but nonetheless concluded the medical evidence did not document any listing-level 16 severity nor did the medical evidence identify any findings that would equal the 17 criteria for a listed impairment. Tr. 25. In reaching this conclusion, the ALJ 18 specifically considered Plaintiff’s conditions under Listings 11.02B and 3.03. Id. 19 While boilerplate findings are generally insufficient, an ALJ that makes a finding 20 elsewhere in her decision that would preclude a claimant from establishing step ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1375 Page 14 of 27 1 three does not err. Lewis v. Apfel, 236 F.3d 503, 512-13 (9th Cir. 2001) (citation 2 omitted). Here, the ALJ addressed Plaintiff’s migraines when considering 3 Plaintiff’s RFC at step four. Tr. 27–28. The ALJ ultimately concluded the medical 4 records did not reflect the level of impairment alleged by Plaintiff, thus, precluding 5 Plaintiff from establishing that the severity of her migraines met or equaled Listing 6 11.02. Tr. 27. 7 Plaintiff cites to the neurological evaluations conducted by Dr. Ramey and 8 her own hearing testimony to support her argument that her migraines meet or 9 equal Listing 11.02. ECF Nos. 13 at 18–19; 15 at 9–10. The ALJ acknowledged 10 Dr. Ramey’s diagnoses of chronic migraines but concluded Dr. Ramey’s findings 11 were unpersuasive because his opinion was based exclusively on Plaintiff’s own 12 symptom reports and because the remaining objective medical findings were 13 unremarkable. Tr. 29, 31. Plaintiff’s own interpretation of the record cannot 14 overturn the ALJ’s conclusions. “Where evidence is susceptible to more than one 15 rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch, 400 16 F.3d at 679 (citation omitted). 17 Plaintiff has failed to prove the ALJ erred when evaluating her migraines 18 under Listing 11.02. Moreover, the ALJ accounted for Plaintiff’s migraines at step 19 four when assessing Plaintiff’s RFC, concluding the alleged severity of the 20 impairment was not supported by the medical record. The Court finds the ALJ’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1376 Page 15 of 27 1 reasoning for rejecting equivalence under Listing 11.02 is reasonable and 2 supported by substantial evidence. 3 C. 4 Plaintiff alleges the ALJ erred in rejecting her subjective symptom testimony Plaintiff’s Subjective Symptom Testimony 5 regarding her migraine headaches. ECF No. 13 at 19. An ALJ engages in a two- 6 step analysis to determine whether a claimant’s subjective symptom testimony can 7 be reasonably accepted as consistent with the objective medical and other evidence 8 in the claimant’s record. SSR 16-3p, 2016 WL 1119029, at *2. “First, the ALJ 9 must determine whether there is ‘objective medical evidence of an underlying 10 impairment which could reasonably be expected to produce the pain or other 11 symptoms alleged.’” Molina, 674 F.3d at 1112 (quoting Vasquez v. Astrue, 572 12 F.3d 586, 591 (9th Cir. 2009)). “The claimant is not required to show that her 13 impairment ‘could reasonably be expected to cause the severity of the symptom 14 she has alleged; she need only show that it could reasonably have caused some 15 degree of the symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. 16 Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). 17 Second, “[i]f the claimant meets the first test and there is no evidence of 18 malingering, the ALJ can only reject the claimant’s testimony about the severity of 19 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 20 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1377 Page 16 of 27 1 omitted). General findings are insufficient; rather, the ALJ must identify what 2 symptom claims are being discounted and what evidence undermines these claims. 3 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 4 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 5 explain why he or she discounted claimant’s symptom claims). “The clear and 6 convincing [evidence] standard is the most demanding required in Social Security 7 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 8 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 9 The ALJ is instructed to “consider all of the evidence in an individual’s 10 record,” “to determine how symptoms limit ability to perform work-related 11 activities.” SSR 16-3p, 2016 WL 1119029, at *2. When evaluating the intensity, 12 persistence, and limiting effects of a claimant’s symptoms, the following factors 13 should be considered: (1) daily activities; (2) the location, duration, frequency, and 14 intensity of pain or other symptoms; (3) factors that precipitate and aggravate the 15 symptoms; (4) the type, dosage, effectiveness, and side effects of any medication 16 an individual takes or has taken to alleviate pain or other symptoms; (5) treatment, 17 other than medication, an individual receives or has received for relief of pain or 18 other symptoms; (6) any measures other than treatment an individual uses or has 19 used to relieve pain or other symptoms; and (7) any other factors concerning an 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1378 Page 17 of 27 1 individual’s functional limitations and restrictions due to pain or other symptoms. 2 Id. at *7–8; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 3 Here, the ALJ found Plaintiff’s impairments could reasonably be expected to 4 cause the alleged symptoms; however, Plaintiff’s statements concerning the 5 intensity, persistence, and limiting effects of those symptoms were not entirely 6 consistent with the evidence. Tr. 27. While Plaintiff only challenges the ALJ’s 7 findings with regard to frequency and severity (ECF No. 13 at 20), the ALJ 8 considered several of the factors described above, including frequency and 9 intensity, to support her conclusion. 10 To illustrate, Plaintiff testified that she is almost completely dependent upon 11 a DSHS caregiver for daily activities; however, the ALJ found that Plaintiff 12 reported engaging in numerous daily activities on her own. Tr. 29. For example, 13 Plaintiff reported she is able to make salads, soups, sandwiches, and quick meals. 14 Tr. 459. She is able to clean, do laundry, and make her bed. Id. She is also able 15 to leave her house on her own to go grocery shopping, clothing and shoe shopping, 16 and to attend church and bible study. Tr. 460–61. Plaintiff reported volunteering 17 at a women’s crisis shelter and at Recovery Café three times per week. Tr. 1158, 18 1112. Finally, Plaintiff alleged she could not shower daily, but reported to care 19 providers that she bathed regularly, brushed her teeth, combed her hair, and 20 changed her clothes as needed. Tr. 575. The ALJ concluded Plaintiff’s ability to ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1379 Page 18 of 27 1 engage in daily activities indicated greater physical functioning than Plaintiff 2 claimed to retain. Tr. 29. While the Ninth Circuit has cautioned against reliance 3 on “certain daily activities, such as grocery shopping, driving a car, or limited 4 walking for exercise” to discount a plaintiff’s symptom allegations, the ALJ here 5 considered other factors and found additional reasons for discrediting Plaintiff’s 6 subjective symptom testimony. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 7 2001). 8 Regarding the duration, frequency, and intensity of Plaintiff’s alleged 9 chronic migraines, the ALJ found the longitudinal medical record did not support 10 Plaintiff’s claims. Tr. 29. Generally, Plaintiff’s neurological examinations 11 revealed unremarkable findings, including cranial nerves, gait, and station. Tr. 12 621. Despite claiming multiple headaches per week, Plaintiff only attended routine 13 follow-up visits every six months and reported her headaches decreased with 14 nocturnal oxygen. Tr. 28–29. 15 Relatedly, the dosage and efficacy of the medication used to treat Plaintiff’s 16 migraines was also considered by the ALJ. Tr. 29. The record indicates Plaintiff’s 17 migraines were well controlled with medication; it was only when Plaintiff reduced 18 the medication or did not have access to the medication that her headaches 19 worsened. Tr. 27–28. Plaintiff also reported feeling better with the addition of 20 supplemental oxygen. Tr. 28. “Impairments that can be controlled effectively ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1380 Page 19 of 27 1 with medication are not disabling.” Warre v. Comm’r, 439 F.3d 1001, 1006 (9th 2 Cir. 2006) (citations omitted). 3 It is the ALJ’s duty to resolve conflicts in the record, and where the ALJ 4 arrives at a rational conclusion that is supported by the record, the ALJ’s decision 5 must stand. Andrews, 53 F.3d at 1039; Rollins v. Massanari, 261 F.3d 853, 857 6 (9th Cir. 2001). Plaintiff’s reliance on her own testimony and the evaluation of a 7 single medical provider cannot overcome the ALJ’s rational interpretation of the 8 record. The ALJ provided clear and convincing reasons supported by substantial 9 evidence in the record to discount Plaintiff’s subjective symptom testimony. 10 D. 11 Plaintiff argues the ALJ erred by failing to properly evaluate the medical Medical Opinion Evidence 12 opinions of Dr. Douglas C. Hammerstrom, MD, and Dr. David Ramey, MD. ECF 13 No. 13 at 9–16. As an initial matter, for claims filed on or after March 27, 2017, 14 new regulations apply that change the framework for how an ALJ must evaluate 15 medical opinion evidence. 20 C.F.R. §§ 404.1520c, 416.920c; see also Revisions 16 to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. 17 Reg. 5844-01 (Jan. 18, 2017). The ALJ applied the new regulations because 18 Plaintiff filed her Title II and XVI claims after March 27, 2017. See Tr. 21. 19 Under the new regulations, the ALJ will no longer “give any specific 20 evidentiary weight . . . to any medical opinion(s).” Revisions to Rules, 2017 WL ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1381 Page 20 of 27 1 168819, 82 Fed. Reg. 5844-01, 5867–68. Instead, an ALJ must consider and 2 evaluate the persuasiveness of all medical opinions or prior administrative medical 3 findings from medical sources. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b). 4 The factors for evaluating the persuasiveness of medical opinions and prior 5 administrative medical findings include supportability, consistency, relationship 6 with the claimant, specialization, and “other factors that tend to support or 7 contradict a medical opinion or prior administrative medical finding” including but 8 not limited to “evidence showing a medical source has familiarity with the other 9 evidence in the claim or an understanding of our disability program’s policies and 10 evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 11 The ALJ is required to explain how the most important factors, 12 supportability and consistency, were considered. 20 C.F.R. §§ 404.1520c(b)(2), 13 416.920c(b)(2). These factors are explained as follows: 14 15 16 17 18 (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 more persuasive the medical opinions or prior administrative medical finding(s) will be. (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. 19 20 20 C.F.R. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 Case 2:20-cv-00415-TOR 1 ECF No. 16 filed 10/08/21 PageID.1382 Page 21 of 27 The ALJ may, but is not required to, explain how “the other most persuasive 2 factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. §§ 3 404.1520c(b)(2); 416.920c(b)(2). However, where two or more medical opinions 4 or prior administrative findings “about the same issue are both equally well- 5 supported . . . and consistent with the record . . . but are not exactly the same,” the 6 ALJ is required to explain how “the most persuasive factors” were considered. 20 7 C.F.R. §§ 404.1520c(b)(2) 416.920c(b)(2). 8 The parties dispute whether Ninth Circuit law that predates the new 9 regulations applies. ECF Nos. 14 at 10; 15 at 1. The Ninth Circuit currently 10 requires the ALJ to provide “clear and convincing” reasons for rejecting the 11 uncontradicted opinion of either a treating or examining physician. Lester v. 12 Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a treating or examining 13 physician’s opinion is contradicted, the Ninth Circuit has held the medical opinion 14 can only “be rejected for specific and legitimate reasons that are supported by 15 substantial evidence in the record.” Id. at 830–31 (internal citation omitted). 16 At this time, the Ninth Circuit has not addressed whether these standards still 17 apply when analyzing medical opinions under the new regulations. For purposes 18 of the present case, the Court finds that resolution of this issue is unnecessary. See 19 Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 20 29, 2020) (“[T]he Court is mindful that it must defer to the new regulations, even ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1383 Page 22 of 27 1 where they conflict with prior judicial precedent, unless the prior judicial 2 construction ‘follows from unambiguous terms of the statute and thus leaves no 3 room for agency discretion.’”) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X 4 Internet Services, 545 U.S. 967, 981–82 (2005)). 5 6 1. Dr. Douglas C. Hammerstrom, MD Plaintiff argues the ALJ improperly discredited Dr. Hammerstrom’s opinion 7 regarding the severity of Plaintiff’s alleged chronic fatigue. ECF No. 13 at 11. 8 The ALJ found Dr. Hammerstrom’s opinions from May 2018 and December 2019 9 internally inconsistent and inconsistent with the record as a whole. Tr. 31. For 10 example, in May 2018, Dr. Hammerstrom opined that Plaintiff’s fatigue would 11 limit her to sitting only 4 hours and walking only 30–60 minutes in an 8-hour day. 12 Tr. 901. However, in December 2019, Dr. Hammerstrom opined that Plaintiff was 13 able to sit for up to 4 to 6 hours and able to stand and walk for up to 4 hours in an 14 8-hour day. Tr. 1245. Also in the December 2019 report, Dr. Hammerstrom 15 indicated Plaintiff’s reaching abilities, including overhead, were limited to 10% or 16 less in an 8-hour day, but then indicated in the same report that Plaintiff had no 17 upper extremity limitations. Tr. 1246. Dr. Hammerstrom’s opinions were also 18 inconsistent with the medical record as a whole, which reflected generally 19 unremarkable findings. See, e.g., Tr. 841, 915, 1064, 1073, 1184. 20 Additionally, the ALJ concluded that Dr. Hammerstrom’s May 2018 and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1384 Page 23 of 27 1 December 2019 opinions were not well supported because they were based 2 primarily on Plaintiff’s own subjective reports. Tr. 31. Specifically, the ALJ 3 referred to Dr. Hammerstrom’s response to the question regarding the medical 4 findings used to support his opinion, to which he answered “None, this is 5 subjective.” Tr. 903. Accordingly, the ALJ concluded Dr. Hammerstrom’s 6 opinions were unpersuasive because they were inconsistent with his own findings 7 and the record as a whole, and because they were unsupported by any objective 8 medical findings. Tr. 31. The ALJ’s finding is consistent with Ninth Circuit law 9 that a medical opinion may be rejected by the ALJ if it is brief, conclusory, or 10 inadequately supported. Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1228 11 (9th Cir. 2009). The ALJ’s conclusion is also supported by substantial evidence. 12 13 2. Dr. David Ramey, MD Plaintiff argues the ALJ erred in rejecting the medical opinion of Dr. Ramey. 14 ECF No. 13 at 12. The ALJ found Dr. Ramey’s assessment of Plaintiff’s alleged 15 migraines unpersuasive because it was unsupported by objective medical evidence 16 and was inconsistent with Dr. Ramey’s own treatment records and the medical 17 records as a whole. Tr. 31. To illustrate, Dr. Ramey completed a Medical Source 18 Statement regarding Plaintiff’s ability to work while experiencing a migraine 19 headache. Tr. 1147–48. Dr. Ramey opined that Plaintiff would not be able to 20 perform any work while experiencing a migraine headache and that her symptoms ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1385 Page 24 of 27 1 would be severe enough to frequently interfere with her attention and 2 concentration; he did not provide any additional information to support his 3 contention. Tr. 1148. In fact, the section of the form that requests an explanation 4 for the basis of the opinion is entirely blank. Id. Therefore, the ALJ concluded Dr. 5 Ramey’s opinion was unsupported by objective medical evidence. Tr. 31. 6 Relatedly, Dr. Ramey’s opinion was inconsistent with his own treatment 7 records, which revealed generally normal brain imaging and unremarkable exam 8 findings. See, e.g., Tr. 839, 910, 1064, 1184. Notably, Dr. Ramey’s notes also 9 included reports that Plaintiff’s headache symptoms improved with medication and 10 supplemental oxygen. Tr. 1185. Where the ALJ’s interpretation of the record is 11 reasonable, as it is here, it should not be second-guessed. Rollins, 261 F.3d at 857. 12 Likewise, it is the ALJ’s responsibility to resolve conflicts in the medical 13 evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Where 14 evidence is susceptible to more than one rational interpretation, it is the ALJ’s 15 conclusion that must be upheld.” Burch, 400 F.3d at 679 (citation omitted). 16 Consequently, it was reasonable for the ALJ to find that Dr. Ramey’s opinion was 17 unpersuasive because it was inconsistent and unsupported with other objective 18 medical evidence in the record. The Court finds the ALJ’s finding was supported 19 by substantial evidence. 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1386 Page 25 of 27 1 E. 2 Plaintiff alleges the ALJ erred at step five in determining there were other Step Five Analysis 3 jobs available in the national economy that Plaintiff could perform with her 4 limitations. ECF No. 13 at 20. At step four, the ALJ determines whether a 5 claimant can still perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 6 416.920(a)(4)(iv). If a claimant cannot perform her past relevant work, at step five 7 the ALJ must show there are a significant number of jobs in the national economy 8 the claimant is able to perform. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 9 1999); 20 C.F.R. §§ 404.1520(d)–(e), 416.920(d)–(e). To do so, the ALJ may 10 employ the testimony of a vocational expert. Tackett, 180 F.3d at 1100– 11 01; Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000). The ALJ’s findings 12 will be upheld if the weight of medical evidence in the record supports the 13 hypothetical posed by the ALJ. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 14 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). The vocational 15 expert’s testimony will qualify as substantial evidence if it is reliable. Embrey v. 16 Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 17 Here, the ALJ concluded Plaintiff did not retain a residual functional 18 capacity to perform her past relevant work as a home attendant. Tr. 33. The 19 finding was based on the testimony of a vocational expert. Tr. 34. Thus, the ALJ 20 moved to step five of the analysis to determine whether there were any other jobs ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1387 Page 26 of 27 1 available in the national economy that Plaintiff could perform. Id. After 2 considering Plaintiff’s age, education, work experience, and residual functional 3 capacity, the ALJ determined there were significant numbers of alternative jobs in 4 the national economy that Plaintiff could perform. Id. Specifically, the ALJ 5 identified the following jobs: production assembler, with 196,300 jobs available; 6 agriculture sorter, with 13,000 jobs available; and electronics assembler, with 7 22,800 jobs available. Tr. 35. 8 9 The ALJ arrived at this conclusion based on the following hypothetical: an individual who is able to engage in light work, frequent postural, occasional 10 crawling, but never able to climb ladders, ropes, or scaffolds; must avoid 11 concentrated exposure to extreme heat, respiratory irritants and hazards, bright 12 lights, noxious fumes and loud noises; limited to simple routine, repetitive tasks; 13 able to understand, remember, and carry out those tasks; and able to maintain 14 concentration, persistence, and pace. Tr. 167. Plaintiff argues the hypothetical 15 should have included additional limitations, particularly unpredictable absences 16 due to chronic pain from migraines and fatigue, or an inability to stay on task more 17 than 15% of the time. ECF No. 13 at 21. 18 Plaintiff’s argument is unpersuasive. The ALJ properly dismissed the 19 alleged severity of Plaintiff’s migraines and chronic fatigue because her allegations 20 were not supported by objective medical evidence and because they were ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 Case 2:20-cv-00415-TOR ECF No. 16 filed 10/08/21 PageID.1388 Page 27 of 27 1 inconsistent with relatively benign exam findings. Tr. 26–33. Plaintiff simply 2 disagrees with the ALJ’s interpretation of the record. As previously noted, where 3 the ALJ’s interpretation of the record is reasonable, as it is here, it should not be 4 second-guessed. Rollins, 261 F.3d at 857. The Court finds the ALJ’s conclusion 5 that Plaintiff is able to perform alternative jobs available in the national economy is 6 supported by substantial evidence. 7 CONCLUSION 8 Having reviewed the record and the ALJ’s findings, this Court concludes 9 that the ALJ’s decision is supported by substantial evidence and free of harmful 10 legal error. 11 ACCORDINGLY, IT IS HEREBY ORDERED: 12 1. Plaintiffs Motion for Summary Judgment (ECF No. 13) is DENIED. 13 2. Defendant’s Motion for Summary Judgment (ECF No. 14) is 14 15 16 17 GRANTED. The District Court Executive is directed to enter this Order and Judgment accordingly, furnish copies to counsel, and close the file. DATED October 8, 2021. 18 19 THOMAS O. RICE United States District Judge 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27

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