Reyes v. Commissioner of Social Security, No. 4:2018cv05020 - Document 16 (E.D. Wash. 2019)
Court Description: ORDER DENYING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 13 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is CLOSED. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator)
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(“the ALJ and Commissioner offer little more than vague assertions that the 12 claimant’s allegations are inconsistent with the evidence of record”). Indeed, 13 general findings are an insufficient basis for a credibility finding. Holohan v. 14 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). The ALJ must state which 15 testimony is not credible and what evidence suggests the complaints are not credible. 16 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 17 Plaintiff testified that she has a hard time keeping a job because she is not fast 18 enough and she does not remember instructions. Tr. 42. Contrary to Plaintiff’s 19 argument that the ALJ was unspecific and vague, the ALJ identified the testimony 20 that was discredited and evidence undermining it. For example, the ALJ noted, 21 “[t]he November 2013 psychological evaluation reflected good cognitive abilities, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 15 1 which conflicts with the claimant’s report of ongoing difficulty with retaining 2 information. Tr. 23. Similarly, the ALJ stated, “[t]he claimant is alleging disability 3 based on mental health symptoms that she testified affect her pace and memory on 4 the job,” and went on to note evidence in the record undermining that claim. Tr. 23. 5 The ALJ observed, “[t]he claimant even reported that she was holding down 2 part- 6 time jobs as a server and dishwasher, which contradicts her claims of having 7 disabling problems with her abilities to maintain pace and remember information.” 8 Tr. 24. These findings are sufficiently specific to ensure the ALJ’s conclusions were 9 not general or arbitrary. 10 11 B. Opinion Evidence Plaintiff contends the ALJ improperly rejected the opinions of examining 12 psychologist Tae-Im Moon, Ph.D., and reviewing psychologist Renee Eisenhauer, 13 Ph.D., as well as GAF scores throughout the record. ECF No. 12 at 6-14. 14 There are three types of physicians: “(1) those who treat the claimant 15 (treating physicians); (2) those who examine but do not treat the claimant 16 (examining physicians); and (3) those who neither examine nor treat the claimant 17 but who review the claimant’s file (nonexamining or reviewing physicians).” 18 Holohan, 246 F.3d at 1201-02 (brackets omitted). “Generally, a treating 19 physician’s opinion carries more weight than an examining physician’s, and an 20 examining physician’s opinion carries more weight than a reviewing physician’s.” 21 Id. “In addition, the regulations give more weight to opinions that are explained ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 16 1 than to those that are not, and to the opinions of specialists concerning matters 2 relating to their specialty over that of nonspecialists.” Id. (citations omitted). 3 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 4 reject it only by offering “clear and convincing reasons that are supported by 5 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 6 “However, the ALJ need not accept the opinion of any physician, including a 7 treating physician, if that opinion is brief, conclusory and inadequately supported 8 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 9 (internal quotation marks and brackets omitted). “If a treating or examining 10 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only 11 reject it by providing specific and legitimate reasons that are supported by 12 substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). 13 1. 14 Dr. Moon examined Plaintiff and completed a DSHS Tae-Im Moon, Ph.D. 15 Psychological/Psychiatric Evaluation form in November 2013. Tr. 260-64. He 16 diagnosed attention deficit hyperactivity disorder predominantly inattentive type; 17 learning disorder NOS by history; and depressive disorder NOS. Tr. 262. He 18 assessed marked limitations, defined as very significant limitations on the ability to 19 perform one or more basic work activities, in four functional areas: the ability to 20 understand, remember and persist in tasks following detailed instructions; the ability 21 to perform activities within a schedule, maintain regular attendance, and be punctual ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 17 1 within customary tolerances without special supervision; the ability to communicate 2 and perform effectively in a work setting; and the ability to set realistic goals and 3 plan independently. Tr. 263. Dr. Moon also assessed moderate limitations in eight 4 functional areas. Tr. 262-63. 5 Because Dr. Moon’s opinion was contradicted by the opinion of Dr. 6 Robinson, Tr. 67-68, the ALJ was required to provide specific and legitimate 7 reasons for rejecting Dr. Moon’s opinion. Bayliss, 427 F.3d at 1216. 8 9 The ALJ gave little weight to Dr. Moon’s opinion because Plaintiff does not have significant difficulty in the functional areas for which Dr. Moon assessed 10 marked limitations. Tr. 25. An ALJ may discount a medical source opinion to the 11 extent it conflicts with the claimant’s daily activities. Morgan, 169 F.3d at 601-02. 12 The ALJ observed that Plaintiff was taking classes, worked part-time, and cared for 13 her young daughter. Tr. 25-26. The ALJ also noted Plaintiff reported being able to 14 handle her own finances. Tr. 26, 168, 214. These activities reasonably contradict 15 the marked or “very significant” limitations assessed by Dr. Moon regarding 16 Plaintiff’s abilities to follow instructions, maintain attendance, communicate and 17 perform, and set goals and plan. 18 Plaintiff first argues that the ALJ’s finding is conclusory and “boilerplate.” 19 ECF No. 12 at 9. The finding is not boilerplate because the ALJ referred to the 20 record and specific findings inconsistent with Dr. Moon’s conclusions. Tr. 24-25. 21 Furthermore, the finding is not conclusory because the inconsistency between ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 18 1 Plaintiff’s activities and the limitations assessed by Dr. Moon is apparent. “As a 2 reviewing court, we are not deprived of our faculties for drawing specific and 3 legitimate inferences from the ALJ’s opinion. It is proper for us to read the 4 paragraph discussing [a doctor’s] findings and opinion, and draw inferences relevant 5 to [that doctor’s] findings and opinion, if those inferences are there to be drawn.” 6 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). The ALJ’s finding 7 regarding Dr. Moon’s opinion is sufficiently specific. 8 Plaintiff further argues that the ALJ “appears to overstate” Plaintiff’s 9 functioning. ECF No. 12 t 9. To the contrary, the ALJ cited Plaintiff’s own 10 testimony and reported activities in evaluating Dr. Moon’s opinion. Tr. 24-25. 11 Plaintiff asserts the ALJ’s conclusions are flawed because her testimony did not 12 establish how she is doing in her GED classes, ECF No. 12 at 10, notwithstanding 13 that Plaintiff’s counsel could have elicited such testimony. Furthermore, Plaintiff 14 contends, “the records shows that Plaintiff has been unsuccessful in obtaining her 15 GED,” characterizing it as “an ongoing struggle,” because she has been working 16 toward it since January 2014. ECF NO. 12 at 10. To the extent this could be a 17 reasonable characterization of the record, the ALJ’s finding that Plaintiff’s 18 attendance at GED classes contradicts Dr. Moon’s assessment is also reasonable. 19 When the evidence conflicts or is ambiguous, the ALJ is the arbiter. Magallanes, 20 881 F.2d at 751; see also Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir.1987) 21 (concluding the existence of a legally supportable alternative resolution of the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 19 1 evidence does not provide a sufficient basis for reversing an ALJ’s decision which 2 is supported by substantial evidence). 3 Plaintiff notes that her part-time position as a caregiver requires enrollment 4 in CNA classes which she testified she was unable to find at the time. ECF No. 12 5 at 10; Tr. 38-39. Plaintiff extrapolates that “it appears doubtful that she would 6 qualify for CNA training, let alone possess the aptitude for it if enrolled.” ECF 7 No. 12 at 10. This assertion is without basis in the record. The reasons for 8 Plaintiff’s departure from school in the ninth grade are not established in the 9 record, Tr. 261 (“she was pulled out of school but could not recall why”) and there 10 is no evidence supporting the conclusion that Plaintiff’s GED efforts are impeded 11 by any impairment. In fact, Plaintiff reported missing GED classes due to 12 appointments and full-time work. Tr. 494, 479. 13 Plaintiff additionally contends that she receives “considerable parenting 14 help” from her daughter’s grandmother. ECF No. 12 at 10. This is itself an 15 overstatement of the record. When asked how often the grandmother helps with 16 her daughter, Plaintiff testified that “[s]he’s willing to watch [my daughter] all the 17 time so pretty much all the time.” Tr. 48-49. It is reasonable to expect that if 18 Plaintiff is going to school and working part-time she would require assistance 19 with child care which does not reasonably suggest a functional limitation. Plaintiff 20 also asserts “deficits in parenting” exist based on a “CPS report made against her.” 21 ECF No. 12 at 10. Even if “parenting deficits” were established in the record, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 20 1 there is no evidence that they would be due to a mental health impairment or 2 functional limitation. 3 Lastly, Plaintiff argues the ALJ failed to address the moderate limitations 4 also assessed by Dr. Moon. ECF No. 12 at 11. While the ALJ found the marked 5 limitations assessed by Dr. Moon were inconsistent with Plaintiff’s activities, the 6 ALJ did not specifically mention the moderate limitations in rejecting Dr. Moon’s 7 opinion. Tr. 24. Notwithstanding, the ALJ noted Dr. Moon’s cognitive findings 8 were within normal limits and there were no issues with memory or concentration. 9 Tr. 25, 264. Similarly, the ALJ found the GAF score of 51-55 3 assessed by Dr. 10 Moon is inconsistent with her appearance, report of activities, and performance on 11 testing. Tr. 25. The ALJ gave little weight to Dr. Moon’s report. Tr. 25. Specific 12 language indicating the moderate limitations were also rejected is not required; the 13 court may draw reasonable inferences from the ALJ’s discussion of a physician’s 14 report. See Magallanes, 881 F.2d at 755. It is apparent that the ALJ rejected the 15 limitations assessed by Dr. Moon given the ALJ’s discussion of Dr. Moon’s 16 findings and the record overall. 17 18 19 3 20 in social, occupational or school functioning. DIAGNOSTIC AND STATISTICAL 21 MANUAL OF MENTAL DISORDERS, at 32 (Am. Psychiatric Ass’n 4th ed.) (1994). A GAF score of 51-60 indicates moderate symptoms or any moderate impairment ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 21 1 Additionally, Plaintiff argues the ALJ “substituted his opinion for that of a 2 trained psychologist.” ECF No. 12 at 11; ECF No. 14 at 4. It is improper for an 3 ALJ to act as his own medical expert and substitute his opinion for the opinion of a 4 medical doctor. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975). 5 Plaintiff’s argument overlooks the opinion John F. Robinson, Ph.D., a reviewing 6 psychologist whose opinion was given great weight by the ALJ, and who reviewed 7 Dr. Moon’s opinion and the CDIU report and found no severe impairment. Tr. 25, 8 67-68. The ALJ found Dr. Robinson’s opinion was supported by the treatment 9 record showing improvement with counseling and medication and by the level of 10 function required by Plaintiff’s activities. Tr. 25. The ALJ did not impermissibly 11 “play doctor” as the findings were based in part on Dr. Robinson’s opinion. Based 12 on the foregoing, the ALJ provided specific, legitimate reasons supported by 13 substantial evidence for giving little weight to Dr. Moon’s opinion. 14 2. 15 Plaintiff contends the ALJ erred by failing to properly consider Dr. Renee Eisenhauer, Ph.D. 16 Eisenhauer’s opinion. ECF No. 12 at 13-14. In April 2014, Dr. Eisenhauer 17 reviewed the record and identified the severe impairments of ADD/ADHD, learning 18 disorder, affective disorders, and anxiety disorders. Tr. 56. She assessed a marked 19 limitation in the ability to follow detailed instructions and nine moderate limitations. 20 Tr. 58-59. Dr. Eisenhauer opined that Plaintiff can follow, understand and execute 21 simple, routine tasks; can maintain concentration, persistence, and pace for simple, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 22 1 routine tasks; would do better in smaller groups of familiar people; and would likely 2 need some additional time to make adaptations to her routine and would benefit 3 from help with planning and goal setting. Tr. 58-59. The ALJ gave no weight to Dr. 4 Eisenhauer’s opinion. Tr. 25. 5 Because Dr. Eisenhauer’s opinion was contradicted by the opinion of Dr. 6 Robinson, Tr. 67-68, the ALJ was required to provide specific and legitimate 7 reasons for rejecting Dr. Eisenhauer’s opinion. Bayliss, 427 F.3d at 1216. 8 The ALJ rejected Dr. Eisenhauer’s opinion because it is inconsistent with 9 Plaintiff’s activities, course of treatment, and the contents of the CDIU report, 10 which were all reasonably interpreted by the ALJ as discussed supra. Tr. 25. 11 Plaintiff contends the ALJ’s finding is improperly conclusive and boilerplate. ECF 12 No. 12 at 13. However, the ALJ discussed the basis for each of these reasons 13 elsewhere in the decision, and the ALJ need not explicitly re-discuss Dr. 14 Eisenhauer’s report in the context of these reasons. See Lewis v. Apfel, 236 F.3d 15 503, 512-13 (9th Cir. 2001). All reasons discussed by the ALJ constitute “grounds 16 invoked by the agency,” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), or 17 “reasons the ALJ assert[ed],” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 18 2003). Additionally, the ALJ credited the opinion of Dr. Robinson which 19 contradicts Dr. Eisenhauer’s findings and concludes there is no severe impairment. 20 Tr. 25, 67-68. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 23 1 Plaintiff does not allege any other error or otherwise discuss the ALJ’s 2 consideration of Dr. Eisenhauer’s opinion. See Carmickle v. Comm’r of Soc. Sec. 3 Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2007) (noting the court may decline to 4 address issues not argued with specificity). The ALJ’s reasons for giving no 5 weight to Dr. Eisenhauer’s opinion are specific, legitimate, and supported by 6 substantial evidence. 7 3. 8 Plaintiff contends the ALJ committed legal error by rejecting numerous GAF 9 scores indicating serious impairment “across the longitudinal record.” ECF No. 12 GAF Scores 10 at 12. Clinicians use a GAF to rate the psychological, social, and occupational 11 functioning of a patient. The scale does not evaluate impairments caused by 12 psychological or environmental factors. Morgan, 169 F.3d at 598. The 13 Commissioner has explicitly disavowed use of GAF scores as indicators of 14 disability. “The GAF scale . . . does not have a direct correlation to the severity 15 requirements in our mental disorder listing.” 65 Fed. Reg. 50746-01, 50765 (August 16 21, 2000). Moreover, the GAF scale is no longer included in the DSM–V. 17 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (Am. Psychiatric 18 Ass’n 5th ed.) (2013). 19 The ALJ gave little weight to the GAF scores in records from Catholic Family 20 Services from September 2014 to June 2016, consisting primarily of therapy 21 progress notes. Tr. 26, 472-520. The ALJ noted the GAF scores tended to be lower ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 24 1 assessments of functioning than Plaintiff’s activities indicated. Tr. 26. For 2 example, the ALJ noted that in September 2014 Dr. Nand assessed a GAF score of 3 50, indicating a “serious impairment” in functioning,4 yet Plaintiff reported “feeling 4 good” and was working two jobs at that time. Tr. 477. Similarly, in December 5 2014 a GAF score of 45 was assessed but Plaintiff was “doing well” and was “very 6 happy,” felt no depression, and was looking for work. Tr. 474. Again, in January 7 2016, as GAF score of 45 was assessed despite Plaintiff’s report that she was doing 8 well and had “no problems.” Tr. 26. Plaintiff contends that “even during times of 9 decreased symptoms of depression and anxiety, she is unable to maintain even part- 10 time work due to learning disorder and ADD/ADHD, which results in visible 11 deficits in concentration and focus.” ECF No. 12 at 12 (citing Tr. 305, 312, 464, 12 513). This assertion is not supported by the records cited by Plaintiff, which 13 indicates that she left one job voluntarily and another at least in part due to a conflict 14 in her schedule. Tr. 464, 513. The ALJ reasonably rejected the GAF scores 15 assessed in light of Plaintiff’s actual functioning. 16 / / / 17 / / / 18 19 4 20 social, occupation, or school functioning. DIAGNOSTIC AND STATISTICAL MANUAL 21 OF MENTAL DISORDERS, at A GAF score of 41-50 indicates serious symptoms or any serious impairment in 32 (Am. Psychiatric Ass’n 4th ed.) (1994). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 25 1 C. Step Two 2 Plaintiff contends the ALJ improperly rejected her impairments at step two 3 and therefore failed to complete the sequential process. ECF No. 12 at 14-16. At 4 step two of the sequential process, the ALJ must determine whether Plaintiff 5 suffers from a “severe” impairment, i.e., one that significantly limits his or her 6 physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). To 7 satisfy step two’s requirement of a severe impairment, the claimant must prove the 8 existence of a physical or mental impairment by providing medical evidence 9 consisting of signs, symptoms, and laboratory findings; the claimant’s own 10 statement of symptoms alone will not suffice. 20 C.F.R. § 416.908 (1991). “Step 11 two is merely a threshold determination meant to screen out weak claims. It is not 12 meant to identify the impairments that should be taken into account when 13 determining the RFC.” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) 14 (citation omitted). The fact that a medically determinable condition exists does not 15 automatically mean the symptoms are “severe” or “disabling” as defined by the 16 Social Security regulations. See e.g. Edlund, 253 F.3d at 1159-60; Fair, 885 F.2d 17 at 603; Key v. Heckler, 754 F.2d 1545, 1549050 (9th Cir. 1985). 18 The ALJ found that Plaintiff has the medically determinable impairments of 19 ADD/ADHD, learning disorder, and affective disorder, but has no severe 20 impairment. Tr. 22. Plaintiff again contends the ALJ “appeared to conflate” the 21 analysis and “relied on invalid boilerplate language.” ECF No. 12 at 15. This ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 26 1 contention is without merit as the ALJ specifically considered the evidence in 2 considering the “B criteria” for evaluating mental impairments. Tr. 26. The 3 regulations provide that a “special technique” is used in evaluating the severity of 4 mental impairments. 20 C.F.R. § 416.920a (2011). Once a medically 5 determinable impairment is established, the ALJ rates the degree of limitation 6 resulting from the impairment in four functional areas (the “B criteria” of the 7 listings) based on the relevant evidence. 20 C.F.R. § 416.920a(b)-(c). The ALJ 8 discussed the evidence and cited the record in evaluating the four functional areas 9 and therefore did not rely on boilerplate language or a conflated analysis. Tr. 26. 10 Based on the record, the ALJ found Plaintiff has only mild limitations in three of 11 the four functional areas, and pursuant to the regulations, Plaintiff’s limitations are 12 nonsevere. Tr. 26; 20 C.F.R. 416.920a(d)(1). 13 Plaintiff cites records noting symptoms of her medically determinable 14 impairments, ECF No. 12 at 15, but Plaintiff has not established any functional 15 limitations resulting from those impairments based on the record. As discussed 16 supra, the ALJ reasonably evaluated the record and made legally sufficient 17 findings based on substantial evidence in rejecting the opinions of Dr. Moon and 18 Dr. Eisenhauer, and properly credited the opinion of Dr. Robinson which supports 19 the step two determination. Further, Plaintiff does not acknowledge or address the 20 basis for the ALJ’s findings regarding the B criteria, and thus fails to identify any 21 error in those findings. ECF No. 12 at 15-16. For these reasons, the ALJ’s step ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 27 1 two finding is supported by substantial evidence and there was no need to continue 2 the sequential evaluation. 3 CONCLUSION 4 Having reviewed the record and the ALJ’s findings, this Court concludes the 5 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 6 Accordingly, 7 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 8 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 9 10 GRANTED. IT IS SO ORDERED. The District Court Clerk is directed to enter this 11 Order and provide copies to counsel. Judgment shall be entered for Defendant and 12 the file shall be CLOSED. 13 DATED March 14, 2019. 14 15 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~ 28
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