Packer v. Commissioner of Social Security, No. 4:2018cv05006 - Document 18 (E.D. Wash. 2019)

Court Description: ORDER GRANTING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 12 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Senior Judge Robert H. Whaley. (AN, Courtroom Deputy)

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Packer v. Commissioner of Social Security Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Apr 01, 2019 2 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 KAYTE L. P., 8 Plaintiff, No. 4:18-CV-05006-RHW v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 10 11 12 13 14 15 16 17 18 19 20 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 12 & 16. Plaintiff brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C §§ 1381-1383f. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 I. JURISDICTION Plaintiff filed her application for Supplemental Security Income benefits on 3 April 14, 2014. AR 15, 144-59. Her alleged onset date of disability is January 1, 4 2012. Id. Plaintiff’s application was initially denied on June 28, 2014, AR 15, 74- 5 75, and on reconsideration on September 25, 2014, AR 15, 86-87. 6 A hearing with Administrative Law Judge (“ALJ”) Mary Gallagher Dilley 7 occurred on August 3, 2016. AR 15, 36-62. On February 24, 2017, the ALJ issued 8 a decision finding Plaintiff ineligible for disability benefits. AR 15-30. The 9 Appeals Council denied Plaintiff’s request for review on November 30, 2017, AR 10 11 4, making the ALJ’s ruling the “final decision” of the Commissioner. Plaintiff timely filed the present action challenging the denial of benefits, on 12 January 5, 2018. ECF No. 3. Accordingly, Plaintiff’s claims are properly before 13 this Court pursuant to 42 U.S.C. § 405(g). 14 15 II. SEQUENTIAL EVALUATION PROCESS The Social Security Act defines disability as the “inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or 18 can be expected to last for a continuous period of not less than twelve months.” 42 19 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 20 under a disability only if the claimant’s impairments are of such severity that the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 claimant is not only unable to do his previous work, but cannot, considering 2 claimant's age, education, and work experience, engage in any other substantial 3 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a claimant is disabled within the meaning of the Social 6 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 7 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 8 9 Step one inquires whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 10 activity is defined as significant physical or mental activities done or usually done 11 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 12 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 13 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 14 Step two asks whether the claimant has a severe impairment, or combination 15 of impairments, that significantly limits the claimant’s physical or mental ability to 16 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 17 impairment is one that has lasted or is expected to last for at least twelve months, 18 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 19 416.908-09. If the claimant does not have a severe impairment, or combination of 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 impairments, the disability claim is denied, and no further evaluative steps are 2 required. Otherwise, the evaluation proceeds to the third step. 3 Step three involves a determination of whether any of the claimant’s severe 4 impairments “meets or equals” one of the listed impairments acknowledged by the 5 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 6 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 7 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 8 equals one of the listed impairments, the claimant is per se disabled and qualifies 9 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 10 fourth step. 11 Step four examines whether the claimant’s residual functional capacity 12 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & 13 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 14 not entitled to disability benefits and the inquiry ends. Id. 15 Step five shifts the burden to the Commissioner to prove that the claimant is 16 able to perform other work in the national economy, taking into account the 17 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 18 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 19 burden, the Commissioner must establish that (1) the claimant is capable of 20 performing other work; and (2) such work exists in “significant Gallo in the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 2 676 F.3d 1203, 1206 (9th Cir. 2012). 3 4 III. STANDARD OF REVIEW A district court's review of a final decision of the Commissioner is governed 5 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 6 Commissioner's decision will be disturbed “only if it is not supported by 7 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 8 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 9 mere scintilla but less than a preponderance; it is such relevant evidence as a 10 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 11 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 12 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 13 whether the Commissioner’s findings are supported by substantial evidence, “a 14 reviewing court must consider the entire record as a whole and may not affirm 15 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 16 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 17 F.2d 498, 501 (9th Cir. 1989)). 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 20 1992). If the evidence in the record “is susceptible to more than one rational ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 interpretation, [the court] must uphold the ALJ's findings if they are supported by 2 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 3 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 4 2002) (if the “evidence is susceptible to more than one rational interpretation, one 5 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 6 a district court “may not reverse an ALJ's decision on account of an error that is 7 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 8 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 9 The burden of showing that an error is harmful generally falls upon the party 10 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 11 12 IV. STATEMENT OF FACTS The facts of the case are set forth in detail in the transcript of proceedings 13 and only briefly summarized here. Plaintiff was 21 years old on the date the 14 application was filed. AR 28. She has limited education. Id. Plaintiff is able to 15 communicate in English. Id. Plaintiff has no past relevant work. AR 28. 16 V. THE ALJ’S FINDINGS 17 The ALJ determined that Plaintiff has not been under a disability within the 18 meaning of the Act since January 14, 2014, the date the application was filed. AR 19 15, 30. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 At step one, the ALJ found that Plaintiff has not engaged in substantial 2 gainful activity since the filing of her application on April 14, 2014 (citing 20 3 C.F.R. § 416.971 et seq.). AR 17. 4 At step two, the ALJ found that Plaintiff has the following severe 5 impairments: obesity; MTHFR mutation; anxiety disorder; and fibromyalgia 6 (citing 20 C.F.R. § 416.920(c)). Id. 7 At step three, the ALJ found that Plaintiff does not have an impairment or 8 combination of impairments that met or medically equaled the severity of the listed 9 impairments in 20 C.F.R. § 404, Subpt. P, App. 1 (citing 20 C.F.R. §§§ 416. 10 11 920(d), 416.925 and 416.926). Id. At step four, the ALJ found that Plaintiff has the following residual 12 functional capacity: She can perform sedentary work as defined in 20 C.F.R. § 416. 13 967(b) except that she can lift/carry 10 pounds occasionally and less than 10 14 pounds frequently; stand/walk for three hours at a time in an eight-hour workday; 15 sit for six hours in an eight-hour workday; she can occasionally climb ladders, 16 ropes or scaffolds; she can frequently balance, stoop, kneel, crouch or crawl 17 perform simple routine tasks with no contact with the public and occasional 18 contact with coworkers. AR 20. 19 20 The ALJ determined that, through the date last insured, Plaintiff had no past relevant work. AR 28. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 At step five, the ALJ found that in light of Plaintiff’s age, education, work 2 experience, and residual functional capacity, there are jobs that exist in significant 3 numbers in the national economy that she can have perform. AR 29-30. These 4 include, assembler, escort vehicle driver, and document preparer. AR 29. 5 6 VI. ISSUES FOR REVIEW Plaintiff argues that the Commissioner’s decision is not free of legal error 7 and not supported by substantial evidence. Specifically, she argues the ALJ erred 8 by: (1) improperly discrediting Plaintiff’s subjective complaint testimony; (2) 9 improperly weighing the medical opinion evidence; (3) improperly discrediting lay 10 witness testimony; (4) failing to include severe impairments at step two; and (5) 11 erring at step five of the sequential evaluation. 12 13 14 VII. DISCUSSION A. The ALJ Properly Discounted Plaintiff’s Credibility. An ALJ engages in a two-step analysis to determine whether a claimant’s 15 testimony regarding subjective symptoms is credible. Tommasetti, 533 F.3d at 16 1039. First, the claimant must produce objective medical evidence of an underlying 17 impairment or impairments that could reasonably be expected to produce some 18 degree of the symptoms alleged. Id. Second, if the claimant meets this threshold, 19 and there is no affirmative evidence suggesting malingering, “the ALJ can reject 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 the claimant’s testimony about the severity of [her] symptoms only by offering 2 specific, clear, and convincing reasons for doing so.” Id. 3 In weighing a claimant's credibility, the ALJ may consider many factors, 4 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 5 reputation for lying, prior inconsistent statements concerning the symptoms, and 6 other testimony by the claimant that appears less than candid; (2) unexplained or 7 inadequately explained failure to seek treatment or to follow a prescribed course of 8 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 9 1284. When evidence reasonably supports either confirming or reversing the ALJ's 10 decision, the Court may not substitute its judgment for that of the ALJ. Tackett v. 11 Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically 12 determinable impairments could reasonably be expected to produce the symptoms 13 Plaintiff alleges; however, the ALJ determined that Plaintiff’s statements of 14 intensity, persistence, and limiting effects of the symptoms were not entirely 15 credible. AR 28. The ALJ provided multiple clear and convincing reasons for 16 discrediting Plaintiff’s subjective complaint testimony. AR 28-31. 17 1. The ALJ properly discredited Plaintiff’s subjective complaints due to inconsistencies with the medical evidence. 18 First, the ALJ also noted multiple inconsistencies with the medical evidence. 19 AR 22-23. This determination is supported by substantial evidence in the record. 20 An ALJ may discount a claimant’s subjective symptom testimony that is ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 contradicted by medical evidence. Carmickle, 533 F.3d at 1161. Inconsistency 2 between a claimant’s allegations and relevant medical evidence is a legally 3 sufficient reason to reject a claimant’s subjective testimony. Tonapetyan v. Halter, 4 242 F.3d 1144, 1148 (9th Cir. 2001). 5 a. The medical evidence does not support the level of physical impairment claimed by Plaintiff. 6 Plaintiff alleges completely disabling physical impairments that render her 7 incapable of performing work activities. AR 18-20. However, this allegation is 8 contradictory to the medical evidence in the record. For example, In March 2014, 9 upon examination, Plaintiff had normal findings but was found to be 10 “deconditioned.” AR 22, 401-02. Her range of motion, as well as her strength and 11 reflexes in major muscle groups were all within normal limits. Id. At an office visit 12 in July, again mostly normal findings, with the exception of obesity. AR 22, 39913 403. In February 2016, she had another normal consultative examination, with the 14 exception of subjective complaints regarding joint pain. AR 22, 396. And in March 15 2016, upon physical examination, Plaintiff had no abnormalities. AR 23, 476-77. 16 These benign findings suggest Plaintiff’s physical impairments are not as 17 debilitating as alleged. The Court “must uphold the ALJ's findings if they are 18 supported by inferences reasonably drawn from the record.” Molina, 674 F.3d 19 1104, 1111; see also Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to 20 more than one rational interpretation, one of which supports the ALJ’s decision, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 the conclusion must be upheld”). As such, the ALJ reasonably found that 2 Plaintiff’s allegations of debilitating physical limitations during the relevant time 3 period are inconsistent with the medical evidence. 4 b. The medical evidence does not support the level of mental impairment claimed by Plaintiff. 5 Plaintiff also alleges completely debilitating mental limitations. AR 18-20. 6 Again, the ALJ found Plaintiff’s subjective complaints in conflict with the 7 objective medical evidence. AR 20-22. For example, Plaintiff had a normal 8 psychiatric examination in September 2013. AR 23, 377. A psychiatric evaluation 9 in October 2013, produced mostly benign findings, including normal thought 10 process and content, orientation, perception, concentration, and fund of knowledge. 11 AR 23, 261. Further, Plaintiff presented to most psychological examinations in the 12 record with good hygiene, well-groomed, wearing appropriate clothing, and 13 showing good affect as well as good eye contact. AR 19, 294-296, 297-301, 341. 14 These benign findings suggest Plaintiff’s mental impairments are not as 15 debilitating as alleged. The Court “must uphold the ALJ's findings if they are 16 supported by inferences reasonably drawn from the record.” Molina, 674 F.3d 17 1104, 1111; see also Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to 18 more than one rational interpretation, one of which supports the ALJ’s decision, 19 the conclusion must be upheld”). As such, the ALJ reasonably found that 20 Plaintiff’s allegations of debilitating limitations during the relevant time period are ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 inconsistent with the medical evidence. As such, the ALJ reasonably found that 2 Plaintiff’s allegations of debilitating mental limitations during the relevant time 3 period are inconsistent with the medical evidence. 4 2. The ALJ properly discredited Plaintiff’s subjective complaints due to her activities of daily living. 5 Next, the ALJ found that Plaintiff’s allegations of completely disabling 6 limitations were belied by her actual level of activity. AR 19. Activities 7 inconsistent with the alleged symptoms are proper grounds for questioning the 8 credibility of an individual’s subjective allegations. Molina, 674 F.3d at 1113 9 (“[e]ven where those activities suggest some difficulty functioning, they may be 10 grounds for discrediting the claimant’s testimony to the extent that they contradict 11 claims of a totally debilitating impairment”); see also Rollins v. Massanari, 261 12 F.3d 853, 857 (9th Cir. 2001). 13 The ALJ noted that several of Plaintiff’s activities of daily living during the 14 relevant time period do not correlate to the level of impairment she asserts. AR 21. 15 These activities include performing house work such as vacuuming, washing 16 dishes, washing laundry, and cleaning her room. AR 21, 184. She could manage 17 her personal finances, take classes through the American High School Home 18 School program, AR 19, 258, and enjoyed playing “role playing games,” reading, 19 playing card games, walking in parks, swimming, drawing and painting, baking, 20 playing tennis and using a computer. AR 19, 183-84, 491. Thus, the ALJ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 reasonably found that Plaintiff’s daily activities throughout the relevant time 2 period contradict her allegations of total disability. 3 The ALJ is the trier of fact, and “[t]he trier of fact and not the reviewing 4 court must resolve conflicts in the evidence, and if the evidence can support either 5 outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 6 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). . The Court “must uphold the ALJ's 7 findings if they are supported by inferences reasonably drawn from the record.” 8 Molina, 674 F.3d 1104, 1111; see also Thomas, 278 F.3d 947, 954 (if the 9 “evidence is susceptible to more than one rational interpretation, one of which 10 supports the ALJ’s decision, the conclusion must be upheld”). The record supports 11 the ALJ’s determination that Plaintiff’s conditions are not as limiting as she 12 alleges. 13 3. The ALJ properly discredited Plaintiff’s subjective complaints due to inconsistency with treatment. 14 In addition to the above reasons, the ALJ found that Plaintiff’s allegations of 15 disabling limitations are inconsistent with the level of treatment she sought during 16 the relevant time period. AR 24-25. A claimant’s statements may be less credible 17 when treatment is inconsistent with the level of complaints or a claimant is not 18 following treatment prescribed without good reason. Molina, 674 F.3d at 1114. 19 “Unexplained, or inadequately explained, failure to seek treatment … can cast 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 doubt on the sincerity of [a] claimant’s pain testimony.” Fair v. Bowen, 885 F.2d 2 597, 603 (9th Cir. 1989). 3 The ALJ pointed to multiple instances of Plaintiff’s success with treatment. 4 AR 24-25. For example, in June 2016, Plaintiff reported no depression or sleep 5 disturbances. AR 24, 443. She also had good judgment and mood, and normal 6 memory. Id. In October 2013, and August 2016, Plaintiff reported that she was not 7 taking psychiatric medications. AR 24-25, 257, 485. The ALJ also pointed to 8 Plaintiff’s noncompliance with certain treatments including failure to attend 9 physical therapy and an inability to maintain a gluten-free diet. AR 23, 442, 496. 10 The record supports the ALJ’s determination that Plaintiff’s conditions are 11 not as limiting as she alleges. When the ALJ presents a reasonable interpretation 12 that is supported by the evidence, it is not the role of the courts to second-guess it. 13 Rollins, 261 F.3d at 857. The Court “must uphold the ALJ's findings if they are 14 supported by inferences reasonably drawn from the record.” Molina, 674 F.3d 15 1104, 1111; see also Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to 16 more than one rational interpretation, one of which supports the ALJ’s decision, 17 the conclusion must be upheld”). Here, the ALJ provided multiple reasons that are 18 substantially supported by the record to explain the adverse credibility finding. The 19 Court does not find the ALJ erred when discounting Plaintiff’s credibility because 20 the ALJ properly provided multiple clear and convincing reasons for doing so. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2 3 B. The ALJ Properly weighed the medical opinions. 1. Legal standard. The Ninth Circuit has distinguished between three classes of medical 4 providers in defining the weight to be given to their opinions: (1) treating 5 providers, those who actually treat the claimant; (2) examining providers, those 6 who examine but do not treat the claimant; and (3) non-examining providers, those 7 who neither treat nor examine the claimant. Lester, 81 F.3d at 830 (as amended). 8 A treating provider’s opinion is given the most weight, followed by an examining 9 provider, and finally a non-examining provider. Id. at 830-31. In the absence of a 10 contrary opinion, a treating or examining provider’s opinion may not be rejected 11 unless “clear and convincing” reasons are provided. Id. at 830. If a treating or 12 examining provider’s opinion is contradicted, it may only be discounted for 13 “specific and legitimate reasons that are supported by substantial evidence in the 14 record.” Id. at 830-31. 15 The ALJ may meet the specific and legitimate standard by “setting out a 16 detailed and thorough summary of the facts and conflicting clinical evidence, 17 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 18 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 19 provider’s opinion on a psychological impairment, the ALJ must offer more than 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 his or his own conclusions and explain why he or she, as opposed to the provider, 2 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 3 Additionally, “other sources” for opinions include nurse practitioners, 4 physicians' assistants, therapists, teachers, social workers, spouses, and other non- 5 medical sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is required to 6 “consider observations by non-medical sources as to how an impairment affects a 7 claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987). 8 Non-medical testimony can never establish a diagnosis or disability absent 9 corroborating competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 10 (9th Cir.1996). An ALJ is obligated to give reasons germane to “other source” 11 testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). 12 13 2. Examining Physician, Jan Kouzes, Ed.D. In May 2012, Dr. Kouzes opined that Plaintiff was markedly impaired in her 14 ability to communicate and perform effectively in a work setting; perform 15 activities within a schedule; set realistic goals; maintain appropriate behavior; and 16 complete a normal workday without interruptions. AR 27, 270-301. Dr. Kouzes 17 provided a nearly identical opinion in November 2012. AR 27, 299. 18 The ALJ did not completely reject Dr. Kouzes opinion, but afforded the 19 opinion only little weight. AR 23, 27. The ALJ provided multiple valid reasons 20 supported by the record for discounting this opinion. First, Dr. Kouzes opinions ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 were based only on those two examinations. AR 27. Dr. Kouzes did not review 2 Plaintiff’s medical records or personal history, thus, her opinion was cabined to 3 those two interactions with Plaintiff. Id. 4 The ALJ also noted that Dr. Kouzes’ findings were not consistent with 5 Plaintiff’s examinations. AR 27. Both mental status examinations were within 6 normal limits, with the exception of Plaintiff’s mood, effect, and subjective 7 complaints. AR 27, 271-71, 300-01. An ALJ may discount a medical opinion that 8 is not consistent with the doctor’s recorded observations. Bayliss, 427 F.3d at 9 1216. 10 Next, the ALJ noted that Dr. Kouzes opinions were based largely on 11 Plaintiff’s subjective complaints. Id. An ALJ may discount even a treating 12 provider’s opinion if it is based largely on the claimant’s self-reports, and the ALJ 13 finds the claimant not credible. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 14 2014). 15 When the ALJ presents a reasonable interpretation that is supported by the 16 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 17 857. The Court “must uphold the ALJ's findings if they are supported by inferences 18 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 19 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 20 rational interpretation, one of which supports the ALJ’s decision, the conclusion ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 must be upheld”). Thus, the Court finds the ALJ did not err in her consideration of 2 Dr. Kouzes’ opinion. 3 3. Examining physician, Tae-Im Moon, Ph.D. 4 Dr. Moon is an examining doctor who completed evaluations for the 5 Department of Social Health Services (“DSHS”) in October 2013. AR 27, 257-61. 6 Dr. Moon opined that Plaintiff had significant limitation in her ability to perform 7 activities within a schedule, maintain regular attendance, communicate and 8 perform effectively in a work setting, complete a normal work day, and set realistic 9 goals. AR 27, 257-61. He further indicated that Plaintiff was mildly limited in 10 following simple instructions. Id. All of Dr. Moon’s findings were based on a 11 single examination with Plaintiff. Id. 12 The ALJ did not reject Dr. Moon’s opinion but did afford the opinion less 13 weight. AR 27. The ALJ provided multiple valid reasons supported by the record 14 for discounting this opinion. Id. For example, Dr. Moon’s examination was based 15 on one examination, during which Plaintiff presented unremarkable findings. AR 16 27, 257-61. The ALJ also noted that Dr. Moon’s opinion was not consistent with 17 his own findings during the examination. AR 27, 260-61. An ALJ may discount a 18 medical opinion that is not consistent with the doctor’s recorded observations. 19 Bayliss, 427 F.3d at 1216. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 The ALJ further notes that Dr. Moon’s findings were not consistent with 2 other objective medical evidence in the record. AR 27. For instance, although Dr. 3 Moon opined Plaintiff’s memory was not within normal limits, however, such 4 findings were not consistent with other exams. AR 27, 413-15, 469-74. Further, 5 Dr. Moon found marked limitation in Plaintiff’s ability to communicate. AR 27, 6 257-61. This opinion was conflicting with that of Dr. Darlington, who found only 7 mild limitations with regard to Plaintiff’s speech, tone, rate, and stream of thought. 8 AR 27, 413. An ALJ may reject a doctor’s opinion when it is inconsistent with 9 other evidence in the record. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 10 F.3d 595, 600 (9th Cir. 1999). 11 When the ALJ presents a reasonable interpretation that is supported by the 12 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 13 857. The Court “must uphold the ALJ’s findings if they are supported by 14 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111; see also 15 Thomas, 278 F.3d at 954 (if the “evidence is susceptible to more than one rational 16 interpretation, one of which supports the ALJ’s decision, the conclusion must be 17 upheld”). Thus, the Court finds the ALJ did not err in her consideration of Dr. 18 Moon’s opinion. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 4. DHDS physicians, Faulder Colby, Ph.D. and Aaron Burdge, A.R.N.P. 2 On behalf of the DSHS, Dr. Colby and Dr. Burdge reviewed Plaintiff’s 3 DSHS evaluations. Although the ALJ did not specifically discuss the doctor’s 4 opinions, she did discuss the content of the opinions. In October 2013, and March 5 of 2014, Dr. Colby and Dr. Burdge reviewed the opinions of Dr. Moon and Dr. 6 Hipolito, which were discussed by the ALJ, AR 24, 27, 263, and assigned less 7 weight. AR 263-67, 287-89. As such, the ALJ did not err by not directly discussing 8 Dr. Colby’s and Dr. Burdge’s opinion. 9 5. DDS physician, Bruce Eather, Ph.d. and DDS physician, Dan Donohue, Ph.d. 10 11 The ALJ assigned partial weight to the opinions of state agency 12 psychological consultants, Dr. Eather and Dr. Donohue. AR 28. In June and 13 September of 2014, respectively, Dr. Donohue and Dr. Eather opined the Plaintiff 14 was moderately limited in her ability to maintain attention and concentration, in 15 ability to perform activities within a schedule, and in ability to complete a normal 16 workday or workweek without interruption. AR 28, 67-72, 80-85. Neither doctor 17 personally examined Plaintiff, but both supported their opinions with citations to 18 the record. 19 20 The ALJ gave only partial weight to the opinions based on a lack of support for their limitations on Plaintiff’s interaction with supervisors as Plaintiff has stated ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 that she has no difficulties with authority figures. AR 28, 188. An ALJ may reject 2 a doctor’s opinion when it is inconsistent with other evidence in the record. See 3 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 4 Further, an ALJ may properly reject an opinion that provides restrictions that 5 appear inconsistent with the claimant’s level of activity. Rollins, 261 F.3d at 856. 6 When the ALJ presents a reasonable interpretation that is supported by the 7 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 8 857. The Court “must uphold the ALJ’s findings if they are supported by 9 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111; see also 10 Thomas, 278 F.3d at 954 (if the “evidence is susceptible to more than one rational 11 interpretation, one of which supports the ALJ’s decision, the conclusion must be 12 upheld”). Thus, the Court finds the ALJ did not err in her consideration of Dr. 13 Eather’s and Dr. Donahue’s opinions. 14 15 6. Examining physician, Erin Darlington, Ph.D. In February 2016, Dr. Darlington opined that Plaintiff had significant 16 limitations in her ability to perform activities within a schedule and complete a 17 workday without interruptions, 26-27, 413, limited in her ability to adapt to 18 changes and maintain appropriate behavior in a workplace. 19 20 The ALJ assigned partial weight to Dr. Darlington’s opinion. The ALJ discounted Dr. Darlington’s opinion because it was not consistent with the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 objective findings during the exam. AR 26-27. An ALJ may discount a medical 2 opinion that is not consistent with the doctor’s recorded observations. Bayliss, 427 3 F.3d at 1216. 4 Further, the ALJ noted that Dr. Darlington’s findings were based largely on 5 Plaintiff’s subjective complaints, which the ALJ discredited. AR 26-27. An ALJ 6 may discount even a treating provider’s opinion if it is based largely on the 7 claimant’s self-reports, and the ALJ finds the claimant not credible. Ghanim, 763 8 F.3d at 1162. 9 When the ALJ presents a reasonable interpretation that is supported by the 10 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 11 857. The Court “must uphold the ALJ’s findings if they are supported by 12 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111; see also 13 Thomas, 278 F.3d at 954 (if the “evidence is susceptible to more than one rational 14 interpretation, one of which supports the ALJ’s decision, the conclusion must be 15 upheld”). Thus, the Court finds the ALJ did not err in her consideration of Dr. 16 Darlington’s opinion. 17 18 19 7. Treating physician, Hazel Gavino, M.D. In July 2016, Dr. Gavino submitted two medical source statements, eleven days apart. Dr. Gavino’s two statements were vastly different and inconsistent. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 A discrepancy between a doctor’s recorded observations and opinions is a clear 2 and convincing reason for not relying on the doctor’s opinion. Bayliss, 427 F.3d at 3 1216. As such, the ALJ assigned little weight to the opinions of Dr. Gavino. AR 4 25. An ALJ may reject a doctor’s opinion when it is inconsistent with other 5 evidence in the record. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 6 595, 600 (9th Cir. 1999). 7 When the ALJ presents a reasonable interpretation that is supported by the 8 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 9 857. The Court “must uphold the ALJ’s findings if they are supported by 10 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111; see also 11 Thomas, 278 F.3d at 954 (if the “evidence is susceptible to more than one rational 12 interpretation, one of which supports the ALJ’s decision, the conclusion must be 13 upheld”). Thus, the Court finds the ALJ did not err in her consideration of Dr. 14 Gavino’s opinions. 15 16 8. Treating physician Lindsey Bell, N.D. The ALJ assigned little weight to Plaintiff’s naturopathic doctor Lindsey 17 Bell. AR 24. In July 2016, Ms. Bell indicated that Plaintiff’s condition would 18 deteriorate if she were to work on a regular basis. AR 25, 428-430. Ms. Bell also 19 opined that Plaintiff had several tender points, anxiety in public places, and was 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 incapable of lifting a maximum of 10 pounds. Id. However, many of Ms. Bell’s 2 findings are unsupported by explanations of any kind. AR 25. 3 The ALJ determined Ms. Bell’s opinion should be assigned little weight 4 because Ms. Bell is not an acceptable medical source for establishing impairments, 5 it was largely speculative and provided an inadequate basis, it was contrary to 6 other findings in the record. An ALJ need not accept the opinion of a doctor if that 7 opinion is brief, conclusory, and inadequately supported by clinical findings. 8 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject a 9 doctor’s opinion when it is inconsistent with other evidence in the record. See 10 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 11 As Ms. Bell provided no explanation for the opined limitations, this is a valid 12 reason for assigning the opinion little weight. 13 When the ALJ presents a reasonable interpretation that is supported by the 14 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 15 857. The Court “must uphold the ALJ’s findings if they are supported by 16 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111; see also 17 Thomas, 278 F.3d at 954 (if the “evidence is susceptible to more than one rational 18 interpretation, one of which supports the ALJ’s decision, the conclusion must be 19 upheld”). Thus, the Court finds the ALJ did not err in her consideration of Ms. 20 Bell’s opinions. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 2 C. The ALJ Properly weighed the lay witness testimony. The opinion testimony of Plaintiff’s mother, Kelin Packer, falls under the 3 category of “other sources.” “Other sources” for opinions include nurse 4 practitioners, physicians' assistants, therapists, teachers, social workers, spouses, 5 and other non-medical sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is 6 required to “consider observations by non-medical sources as to how an 7 impairment affects a claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 8 1232 (9th Cir.1987). Non-medical testimony can never establish a diagnosis or 9 disability absent corroborating competent medical evidence. Nguyen v. Chater, 100 10 F.3d 1462, 1467 (9th Cir.1996). An ALJ is obligated to give reasons germane to 11 “other source” testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th 12 Cir.1993). 13 In July 2016, Plaintiff’s mother prepared a statement in support of the 14 disability claim. AR 22, 236-37. Ms. Packer stated that Plaintiff had been in 15 counseling since 2001, and that Plaintiff experienced severe side effects from 16 medication including night terrors, seizures and sleeplessness. Id. However, Ms. 17 Packer indicated that severe side effects subsided once Plaintiff began seeing a 18 doctor who focused on more “natural stuff.” Id. She also provided anecdotal 19 evidence of one of Plaintiff’s panic attacks that she witnessed. Id. The ALJ 20 assigned partial weight to Ms. Packer’s statement because she lacked the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 objectivity of a medically-trained professional. AR 25. However, the ALJ did note 2 that her statement was consistent with Plaintiff’s allegations and provided 3 background information on Plaintiff’s treatment prior to the alleged disability 4 period. 5 Ms. Packer’s statement is based largely on Plaintiff’s subjective complaints, 6 that were properly discredited, rather than objective medical evidence. AR 34. An 7 ALJ may discount even a treating provider’s opinion if it is based largely on the 8 claimant’s self-reports, and the ALJ finds the claimant not credible. Ghanim, 763 9 F.3d at 1162. The Court finds the ALJ properly provided germane reasons for 10 rejecting Ms. Packer’s statement. 11 D. The ALJ Did Not Err at Step Two of the Sequential Evaluation Process. 12 Plaintiff contends that the ALJ erred by failing to find that she had several 13 additional severe impairments at step two of the five-step sequential evaluation 14 process. ECF No. 12 at 15-16. 15 At step two in the five-step sequential evaluation for Social Security cases, 16 the ALJ must determine whether a claimant has a medically severe impairment or 17 combination of impairments. An impairment is found to be not severe “when 18 medical evidence establishes only a slight abnormality or a combination of slight 19 abnormalities which would have no more than a minimal effect on an individual’s 20 ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (quoting ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 SSR 85-28). Step two is generally “a de minimis screening device [used] to 2 dispose of groundless claims.” Webb v. Barnhart, 433 F. 683, 687 (9th Cir. 2005) 3 (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996)). 4 Under step two, an impairment is not severe if it does not significantly limit 5 a claimant’s ability to perform basic work activities. Edlund v. Massanari, 253 6 F.3d 1152, 1159 (9th Cir. 2001) (citing 20 C.F.R. § 404.1521(a)(b)). A diagnosis 7 from an “acceptable medical source,” such as a licensed physician or certified 8 psychologist, is necessary to establish a medically determinable impairment. 20 9 C.F.R. § 404.1513(d). Importantly however, a diagnosis itself does not equate to a 10 finding of severity. Edlund, 253 F.3d at 1159-60 (plaintiff has the burden of 11 proving this impairment or their symptoms affect her ability to perform basic work 12 activities); see also Mcleod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). An 13 alleged impairment must result from anatomical, physiological, or psychological 14 abnormalities that can be shown by medically acceptable clinical and laboratory 15 diagnostic techniques and must be established by medical evidence not only by a 16 plaintiff’s statements regarding her symptoms. 20 C.F.R. §§ 404.1508, 416.908. 17 In total, Plaintiff alleges that the ALJ failed to incorporate 19 severe 18 impairments in her step two determination including but not limited to, red and 19 watery eyes, stuffy nose, vitamin B deficiency, vitamin D deficiency, social 20 phobia, and headaches. Plaintiff’s one-page argument on the matter is little more ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 than list of impairments and citations to the record. Thus, the ALJ did not err in not 2 finding migraines to be a severe impairment at step two. Absent proof of 3 limitations affecting Plaintiff’s ability to perform basic work activities an 4 impairment is not considered severe. Edlund, 253 F.3d at 1159-60 (plaintiff has the 5 burden of proving this impairment or their symptoms affect her ability to perform 6 basic work activities); see also Mcleod v. Astrue, 640 F.3d 881, 885 (9th Cir. 7 2011). Thus, the ALJ did not err in not finding this to be a severe impairment at 8 step two. 9 Furthermore, because Plaintiff was found to have at least one severe 10 impairment, this case was not resolved at step two. Thus, any error in the ALJ’s 11 finding at step two is harmless, if all impairments, severe and non-severe, were 12 considered in the determination Plaintiff’s residual functional capacity. See Lewis 13 v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding that a failure to consider an 14 impairment in step two is harmless error where the ALJ includes the limitations of 15 that impairment in the determination of the residual functional capacity). While 16 Plaintiff argues that the ALJ erred by failing to find additional impairments severe 17 at step two, Plaintiff does not describe any additional limitations that were not 18 included by the ALJ in assessing her residual functional capacity. Here, the ALJ 19 specifically noted that she considered all symptoms in assessing the residual 20 functional capacity. AR 22 (emphasis added). The ALJ accounted for Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 1 symptoms when limiting her to a limited form of sedentary work, including 2 additional limitations in moving and bending, and additional limitations in physical 3 functioning, mental functioning, following directions, and contact with other 4 people. AR 21-22. Accordingly, the Court finds the ALJ did not err in the step two 5 analysis, and if any error did occur it was harmless. 6 E. The ALJ Did Not Err at Step Five of the Sequential Evaluation Process. 7 Plaintiff briefly argues that the resulting step five finding did not account for 8 all of her limitations. The Court disagrees. Step five shifts the burden to the 9 Commissioner to prove that the claimant is able to perform other work available in 10 significant numbers in the national economy, taking into account the claimant’s 11 age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 404.1520(g), 12 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this burden, the 13 Commissioner must establish that (1) the claimant is capable of performing other 14 work; and (2) such work exists in “significant numbers in the national economy.” 15 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran, 676 F.3d at 1206. If the 16 limitations are non-exertional and not covered by the grids, a vocational expert is 17 required to identify jobs that match the abilities of the claimant, given [his] 18 limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 19 20 Plaintiff argues that the hypothetical the ALJ provided to the vocational expert based on Plaintiff’s assessed residual functional capacity was incomplete ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29 1 because it did not specifically address every limitation suggested by Plaintiff. 2 However, the ALJ noted that she considered all symptoms in assessing the residual 3 functional capacity. AR 20 (emphasis added). The Court will uphold the ALJ’s 4 findings when a claimant attempts to restate the argument that the residual 5 functional capacity finding did not account for all limitations. Stubbs-Danielson v. 6 Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). 7 The ALJ’s determination is supported by the opinions of the medical 8 sources. An alleged impairment must result from anatomical, physiological, or 9 psychological abnormalities that can be shown by medically acceptable clinical 10 and laboratory diagnostic techniques and must be established by medical evidence 11 not only by a plaintiff’s statements regarding her symptoms. 20 C.F.R. §§ 12 404.1508, 416.908. 13 Here, the ALJ's residual functional capacity findings properly incorporated 14 the limitations identified by medical and other sources. Thus, the ALJ properly 15 assessed Plaintiff’s severe impairments, limitations, and residual functional 16 capacity. The ALJ properly framed the hypothetical question addressed to the 17 vocational expert and, the vocational expert identified jobs in the national economy 18 that exist in significant numbers that match the abilities of Plaintiff, given her 19 limitations. Thus, the Court finds the ALJ did not err at step five of the sequential 20 evaluation process. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 30 1 VIII. CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is supported by substantial evidence and is free from legal error. 4 Accordingly, IT IS ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 7 GRANTED. 8 3. Judgment shall be entered in favor of Defendant and the file shall be 9 CLOSED. 10 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 11 forward copies to counsel and close the file. 12 13 14 DATED this 1st day of April, 2019. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 31

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