Carollo v Commissioner of Social Security, No. 4:2018cv05051 - Document 17 (E.D. Wash. 2019)

Court Description: ORDER Granting 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Carollo v Commissioner of Social Security Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON EASTERN DISTRICT OF WASHINGTON Jan 7 SEAN F. MCAVOY, CLERK 8 9 10 No. 4:18-CV-05051-JTR DEVIN C., ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 11 12 13 14 15 28, 2019 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 14, 15. Attorney D. James Tree represents Devin C. (Plaintiff); Special 19 Assistant United States Attorney L. Jamala Edwards represents the Commissioner 20 of Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 7. After reviewing the administrative record and briefs 22 filed by the parties, the Court GRANTS Defendant’s motion for summary 23 judgment and DENIES Plaintiff’s motion for summary judgment. 24 JURISDICTION 25 Plaintiff filed applications for Supplemental Security Income (SSI) and 26 Disability Insurance Benefits (DIB) on November 13, 2013, Tr. 202-03, alleging 27 disability since December 31, 2006, Tr. 390, 397, due to irritable bowel syndrome 28 (IBS), fatigue, menstrual pain, anxiety, and vitamin D3 deficiency, Tr. 431. The ORDER GRANTING DEFENDANT’S MOTION - 1 Dockets.Justia.com 1 applications were denied initially and upon reconsideration. Tr. 257-63, 266-76. 2 Administrative Law Judge (ALJ) Stewart Stallings held hearings on November 23, 3 2016 and June 1, 2017 and heard testimony from Plaintiff, psychological expert 4 Kent Layton, Psy.D., and vocational expert Fred Cutler. Tr. 156-201. The ALJ 5 issued an unfavorable decision on July 12, 2017. Tr. 16-29. The Appeals Council 6 denied review on January 26, 2018. Tr. 1-7. The ALJ’s July 12, 2017 decision 7 became the final decision of the Commissioner, which is appealable to the district 8 court pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for 9 judicial review on March 27, 2018. ECF No. 1, 4. STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was 25 years old at the alleged date of onset. Tr. 390. She 15 completed the twelfth grade in 2000. Tr. 431. Her reported work history includes 16 the jobs front desk clerk, customer service representative, and movie ticket and 17 concession salesperson. Tr. 432, 445. When applying for benefits Plaintiff 18 reported that she stopped working on December 31, 2006 because of her 19 conditions. Tr. 431. 20 21 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 24 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 25 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 26 not supported by substantial evidence or if it is based on legal error. Tackett v. 27 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 28 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put ORDER GRANTING DEFENDANT’S MOTION - 2 1 another way, substantial evidence is such relevant evidence as a reasonable mind 2 might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 3 389, 401 (1971). If the evidence is susceptible to more than one rational 4 interpretation, the court may not substitute its judgment for that of the ALJ. 5 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 6 findings, or if conflicting evidence supports a finding of either disability or non- 7 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 8 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 9 evidence will be set aside if the proper legal standards were not applied in 10 weighing the evidence and making the decision. Brawner v. Secretary of Health 11 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 12 13 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 14 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 15 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 16 through four, the burden of proof rests upon the claimant to establish a prima facie 17 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 18 burden is met once the claimant establishes that physical or mental impairments 19 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 20 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do her past relevant work, 21 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 22 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 23 which the claimant can perform exist in the national economy. Batson v. Comm’r 24 of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant 25 cannot make an adjustment to other work in the national economy, a finding of 26 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 27 28 ADMINISTRATIVE DECISION On July 12, 2017, the ALJ issued a decision finding Plaintiff was not ORDER GRANTING DEFENDANT’S MOTION - 3 1 disabled as defined in the Social Security Act from December 31, 2006 through the 2 date of the decision. 3 4 5 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since December 31, 2006, the amended date of onset. Tr. 19. At step two, the ALJ determined that Plaintiff had the following severe 6 impairments: chronic fatigue; abdominal pain with nausea; and anxiety. Tr. 19. 7 At step three, the ALJ found Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of one of 9 the listed impairments. Tr. 19-20. 10 11 12 13 14 15 16 17 18 19 20 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined she could perform a range of light work with the following limitations: She can occasionally lift or carry twenty pounds and frequently lift or carry ten pounds. She can stand or walk for six hours in an eight-hour workday and sit for six hours in an eight-hour workday. She can frequently climb ramps and stairs. She can occasionally climb ladders, ropes, or scaffolds. She can occasionally stoop. She can frequently crouch, kneel, or crawl. She should avoid anything more than occasionally use of dangerous moving machinery or exposure to unprotected heights. She should be limited to a low stress job, defined as not requiring the worker to cope with work related circumstances that could be dangerous to the worker or others. She should further be limited to routine and repetitive work type tasks, which could be complex in nature. 21 22 Tr. 21. The ALJ identified Plaintiff’s past relevant work as checker/cashier and 23 sales clerk and concluded that Plaintiff was able to perform this past relevant work. 24 Tr. 27. 25 As an alternative, the ALJ made a step five determination that, considering 26 Plaintiff’s age, education, work experience and residual functional capacity, and 27 based on the testimony of the vocational expert, there were other jobs that exist in 28 significant numbers in the national economy Plaintiff could perform, including the ORDER GRANTING DEFENDANT’S MOTION - 4 1 job of housekeeping, cleaner. Tr. 28. The ALJ concluded Plaintiff was not under a 2 disability within the meaning of the Social Security Act from December 31, 2006, 3 through the date of the ALJ’s decision. Tr. 28. ISSUES 4 The question presented is whether substantial evidence supports the ALJ’s 5 6 decision denying benefits and, if so, whether that decision is based on proper legal 7 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider 8 Plaintiff’s symptom statements and (2) failing to properly consider the medical 9 source opinions. DISCUSSION1 10 11 1. Plaintiff’s Symptom Statements 12 Plaintiff contests the ALJ’s determination that her symptom statements were 13 not entirely consistent with the medical evidence and other evidence in the record. 14 ECF No. 14 at 7-15. 15 It is generally the province of the ALJ to make determinations regarding the 16 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 17 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 18 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 19 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 20 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION - 5 1 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 2 rather the ALJ must identify what testimony is not credible and what evidence 3 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 4 The ALJ found Plaintiff’s statements concerning the intensity, persistence, 5 and limiting effects of her symptoms were not entirely consistent with the medical 6 evidence and other evidence of record. Tr. 22. The ALJ provided four reasons for 7 his determination: (1) the allegations were not consistent with the longitudinal 8 medical evidence of record; (2) the allegations were inconsistent with Plaintiff 9 seeking and receiving only conservative treatment; (3) Plaintiff made inconsistent 10 statements; and (4) the allegations were inconsistent with her reported activities of 11 daily living. Tr. 22-23. 12 A. 13 The ALJ’s first reason for finding Plaintiff’s statements unreliable, that 14 Plaintiff’s reported symptoms were not supported by medical evidence, is specific, 15 clear and convincing. 16 Medical Evidence Although it cannot serve as the sole ground for rejecting a claimant’s 17 statements, objective medical evidence is a “relevant factor in determining the 18 severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 19 F.3d 853, 857 (9th Cir. 2001). 20 The ALJ concluded that the “voluminous record contains few objective 21 signs or laboratory findings of impairment to support the alleged intensity, 22 frequency, or persistence of the claimant’s impairments.” Tr. 22. The ALJ noted 23 that Plaintiff had complained of abdominal pain without objective findings and 24 cited to a normal upper endoscopy, Tr. 637, reports of only intermittent problems 25 from nausea and reflex, Tr. 625, 635, and reports that treatment for strongyloidiasis 26 improved her symptoms, Tr. 609. Tr. 23. Additionally, Plaintiff alleged mental 27 impairments, but her counseling notes revealed “few issues related to ongoing 28 anxiety, with the majority of her complaints centered around living with her ORDER GRANTING DEFENDANT’S MOTION - 6 1 parents.” Tr. 24. Plaintiff’s briefing challenged the ALJ’s determination that her 2 counseling notes did not address anxiety but did not challenge the ALJ’s 3 determination that her abdominal pain was not supported by objective evidence. 4 ECF No. 14 at 14-15. The ALJ provided specific findings from the record to 5 support his conclusion that Plaintiff’s abdominal pain was not supported by 6 objective evidence. Tr. 23. As such, this reason in combination with the ALJ’s 7 finding of conservative treatment, meets the necessary standard to support the 8 ALJ’s determination. B. 9 Conservative Treatment The ALJ’s second reason for rejecting Plaintiff’s statements, that the 10 11 allegations were inconsistent with the conservative treatment she received, is 12 specific, clear and convincing. Conservative treatment can be “sufficient to discount a claimant’s testimony 13 14 regarding [the] severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 15 (9th Cir. 2007). Additionally, noncompliance with medical care or unexplained or 16 inadequately explained reasons for failing to seek medical treatment cast doubt on 17 a claimant’s subjective complaints. 20 C.F.R. §§ 404.1530, 416.930; Fair v. 18 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Specifically, the ALJ pointed to the 19 recommendation for a colonoscopy in 2009 which Plaintiff did not complete. Tr. 20 22. 21 On September 18, 2007, A. Clower, PA-C advised Plaintiff to have a 22 colonoscopy. Tr. 597. In January 2009, Dr. Maher stated that they would need to 23 discuss a colonoscopy and small bowel workup in the next visit, and finding that 24 she would have to have a colonoscopy at some point. Tr. 637, 639. On July 14, 25 2009, Dr. Maher stated that he “had anticipated colonoscopy previously due to a 26 brother with a large polyp but she had not been able to tolerate the prep and had to 27 cancel that and was waiting to reschedule.” Tr. 635. Dr. Maher then stated that if 28 Plaintiff “decides at a later date that she wants to do the colonoscopy, she will let ORDER GRANTING DEFENDANT’S MOTION - 7 1 us know and we will have to give her some sort of modified prep since she could 2 not tolerate the other one.” Tr. 636. By March 2011, Plaintiff told Dr. Rawlins she 3 had never had a colonoscopy. Tr. 655. By August of 2013, she told Dr. Walker 4 that she had still never had a colonoscopy. Tr. 739. At her intake for counseling in 5 May of 2014, Plaintiff told the counselor that she was “[s]upposed to do a 6 colonoscopy, but I keep getting too sick to do one.” Tr. 1031. 7 Plaintiff argues that this failure to complete treatment recommendations is 8 excused because the prep for the procedure was intolerable. ECF No. 14 at 9-10 9 citing S.S.R. 16-3p. However, this assertion is not supported by substantial 10 evidence. In January of 2009, Dr. Maher stated that “she should undergo 11 evaluation at a later date. Clearly she did not tolerate the prep earlier. We will 12 need to hold off until the symptoms settle down.” Tr. 639. In the next 13 appointment he stated that her symptoms “tend to be in the mid abdomen, 14 sometimes lower. For now we would hold off and see if symptoms settle down. If 15 they persist, a small bowel workup and colon evaluation needs to be pursued as 16 previously mentioned.” Tr. 637. The record shows that the symptoms persisted, 17 Tr. 689 (treated for abdominal pain on October 2, 2009); Tr. 669 (treated for 18 abdominal pain on February 5, 2010); Tr. 1215 (treated for abdominal pain at 19 Kadlec Clinic Gastroenterology in October of 2012), yet Plaintiff failed to 20 complete the necessary testing. Tr. 739 (August of 2013, stated she had never had 21 a colonoscopy); Tr. 1031 (In May of 2014, Plaintiff told the counselor that she was 22 “[s]upposed to do a colonoscopy, but I keep getting too sick to do one.”). Here, 23 the persistence of symptoms required the testing and there was an alternative prep 24 available had Plaintiff pursued treatment. There is no evidence that Plaintiff 25 pursued an alternative prep schedule for the procedure. As such, the ALJ was not 26 in error in his determination that the lack of a colonoscopy undermined the validity 27 of Plaintiff’s symptom statements. 28 /// ORDER GRANTING DEFENDANT’S MOTION - 8 1 C. 2 The ALJ’s third reason for finding Plaintiff’s statements unreliable, that she 3 made inconsistent statements about her ability to attend activities, is not supported 4 by substantial evidence. 5 Inconsistent Statements In determining a claimant’s credibility, the ALJ may consider “ordinary 6 techniques of credibility evaluation, such as the claimant’s reputation for lying, 7 prior inconsistent statements . . . and other testimony by the claimant that appears 8 less than candid.” Smolen, 80 F.3d at 1284. The ALJ concluded that Plaintiff’s 9 allegation at the second hearing that she would miss six or more days of work each 10 month was not consistent with her testimony that she had only one absence across 11 her last quarter of college classes. Tr. 23. 12 At the second hearing, Plaintiff testified that she had taken one college level 13 class at a time in both the Fall and Spring prior to her hearing. Tr. 170. She stated 14 that she had not missed any classes the quarter in which the hearing was held. Tr. 15 182. She then stated that she could not maintain an eight hour a day five days a 16 week schedule: 17 18 19 20 21 22 the class I was able to do because it was only one hour and I could take medications before it if I needed and have someone drive me. But, for eight hours, I would have to stop and take breaks to take medications, and, jobs don’t let you just take a break at any time you choose. And also if I would have a flare-up of symptoms and needed to be able to go take pills I’m in the middle of doing something I wouldn’t be able to do that. 23 Tr. 183. She then estimated that her symptoms would preclude her from an eight 24 hour a day, five days a week work schedule for six days or more a month. Tr. 185. 25 The ALJ concluded that Plaintiff’s statement that her symptoms would result in 26 missing work six or more days a month was inconsistent with her testimony that 27 she had missed only one class in the quarter the hearing was held. Tr. 23. 28 First, the ALJ misrepresented the record. Plaintiff testified that she had not ORDER GRANTING DEFENDANT’S MOTION - 9 1 missed any of her classes. Tr. 182. Second, the ALJ’s conclusion that Plaintiff’s 2 statements were inconsistent when she provided an explanation regarding why she 3 could attend her one hour class, but not attend work, is not supported by substantial 4 evidence. Therefore, it cannot meet the specific, clear and convincing standard. 5 D. Activities of Daily Living 6 The ALJ’s fourth reason for rejecting Plaintiff’s statements, that her reported 7 activities cast doubt on her alleged limitations, is not specific, clear, and 8 convincing. 9 A claimant’s daily activities may support an adverse credibility finding if (1) 10 the claimant’s activities contradict her other testimony, or (2) “the claimant is able 11 to spend a substantial part of [her] day engaged in pursuits involving performance 12 of physical functions that are transferable to a work setting.” Orn v. Astrue, 495 13 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603). “The ALJ must make 14 ‘specific findings relating to [the daily] activities’ and their transferability to 15 conclude that a claimant’s daily activities warrant an adverse credibility 16 determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 17 2005)). A claimant need not be “utterly incapacitated” to be eligible for benefits. 18 Fair, 885 F.2d at 603. 19 Here, the ALJ indicated that Plaintiff’s reported activities were inconsistent 20 with her other testimony. The ALJ found that Plaintiff “has alleged a busy life 21 with errands, chores, and college level classes. At the second hearing, she did not 22 indicate that these activities left her especially fatigued.” Tr. 23. However, the 23 ALJ’s determination is not supported by substantial evidence. At the second 24 hearing, Plaintiff testified that she had taken one college level class at a time in 25 both the Fall and Spring prior to her hearing. Tr. 170. She testified that following 26 her class she takes naps through the afternoon, reads for her class, studies, and does 27 some grocery shopping. Tr. 174. Despite her anxiety, she has been able to attend 28 class. Id. Here, Plaintiff’s testimony that she needed to nap following her classes ORDER GRANTING DEFENDANT’S MOTION - 10 1 is in direct conflict with the ALJ’s representation of her testimony. Therefore this 2 reason is not supported by substantial evidence. While not all the reasons for discounting Plaintiff’s testimony was supported 3 4 by substantial evidence, the ALJ provided at least some specific, clear and 5 convincing reasons. See Carmickle, 533 F.3d at 1163 (upholding an adverse 6 credibility finding where the ALJ provided four reasons to discredit the claimant, 7 two of which were invalid); Batson, 359 F.3d at 1197 (affirming a credibility 8 finding where one of several reasons was unsupported by the record); Tommasetti 9 v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless when “it is 10 clear from the record that the . . . error was inconsequential to the ultimate 11 nondisability determination”). 12 2. 13 14 Medical Source Opinions Plaintiff contests the weight the ALJ assigned to the medical source opinions in the file. ECF No. 14 at 15-21. 15 In weighing medical source opinions, the ALJ should distinguish between 16 three different types of physicians: (1) treating physicians, who actually treat the 17 claimant; (2) examining physicians, who examine but do not treat the claimant; 18 and, (3) nonexamining physicians who neither treat nor examine the claimant. 19 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 20 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at 21 631. Likewise, the ALJ should give more weight to the opinion of an examining 22 physician than to the opinion of a nonexamining physician. Id. 23 When a treating physician’s opinion is not contradicted by another 24 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 25 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 26 physician’s opinion is contradicted by another physician, the ALJ is only required 27 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 28 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining ORDER GRANTING DEFENDANT’S MOTION - 11 1 physician’s opinion is not contradicted by another physician, the ALJ may reject 2 the opinion only for “clear and convincing” reasons, and when an examining 3 physician’s opinion is contradicted by another physician, the ALJ is only required 4 to provide “specific and legitimate reasons” to reject the opinion. Lester, 81 F.3d 5 at 830-31. 6 The specific and legitimate standard can be met by the ALJ setting out a 7 detailed and thorough summary of the facts and conflicting clinical evidence, 8 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 9 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer his 10 conclusions, he “must set forth his interpretations and explain why they, rather 11 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 12 1988). 13 A. 14 Dr. Karlson completed a Physical Functional Evaluation form for the Katie Karlson, M.D. 15 Washington Department of Social and Health Services (DSHS) on March 20, 16 2014. Tr. 991-93. She listed Plaintiff’s chief complaints as chronic fatigue, 17 methylenetetrahdrofolate reductase (MTHRF) mutation, IBS, anxiety, abdominal 18 pain/epigastric pain, multiple allergies, and gastroparesis. Tr. 991. She opined that 19 Plaintiff’s chronic fatigue resulted in moderate to marked limitations in the abilities 20 to stand, walk, lift, carry, handle, push, pull, reach, and stoop. Tr. 992. The 21 Abdominal Pain/Epigastric Pain resulted in a marked to severe limitation in the 22 abilities to sit at times, stand, walk, lift, carry, handle, push, pull, reach, stoop, and 23 crouch. Id. The IBS resulted in marked limitations in the same basic work 24 activities. The painful menstrual periods resulted in marked to severe limitations 25 in the same basic work activities. Id. The anxiety resulted in a moderate to 26 marked limitation in the abilities to see, hear, and communicate. Id. Dr. Karlson 27 opined that Plaintiff was unable to meet the demands of sedentary work and 28 estimated that this limitation would persist with available medical treatment for ORDER GRANTING DEFENDANT’S MOTION - 12 1 2 fourteen months. Tr. 993. On February 2, 2016, Dr. Karlson completed another Physical Functional 3 Evaluation form for DSHS. Tr. 1421-23. She provided the same limitations 4 regarding Plaintiff’s impairments and their resulting limitations on the basic work 5 activities as in the March 20, 2014 evaluation, except she added that chronic 6 fatigue would result in moderate to marked limitations in crouching. Tr. 1422. 7 She again opined that Plaintiff was unable to meet the demands of sedentary work 8 and estimated that this limitation would persist with available medical treatment 9 for twelve months. Tr. 1423. 10 On May 30, 2017, Dr. Karlson completed a third Physical Functional 11 Evaluation form for DSHS. Tr. 1575-77. She provided the same limitations 12 regarding Plaintiff’s impairments and their resulting limitations on the basic work 13 activities as in the February 2, 2016 evaluation. Tr. 1576. She again opined that 14 Plaintiff was unable to meet the demands of sedentary work and estimated this 15 limitation on work activities would persist with available medical treatment for 16 twelve months. Tr. 1577. 17 The ALJ gave these opinions only partial weight for two reasons: (1) the 18 opinions were not supported by Dr. Karlson’s observations and likely based on 19 Plaintiff’s self-reports; and (2) the opinions were inconsistent with the longitudinal 20 medical evidence. Tr. 25. 21 The ALJ’s first reason for providing little weight to Dr. Karlson’s opinions, 22 that they were inconsistent with her observations and based on Plaintiff’s self- 23 reports, is legally sufficient. The Ninth Circuit has found that inconsistencies 24 between the opinion and the physician’s observations is a clear and convincing 25 reason to reject the opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 26 2005). When discussing the March 20, 2014 opinion, the ALJ concluded that it 27 “was not supported by her examination notes from that same day, in which she 28 reported that the claimant “has no concerns” (Ex. 12F, p.5).” Tr. 25. This is ORDER GRANTING DEFENDANT’S MOTION - 13 1 consistent with the record. Attached to the DSHS form were the treatment notes 2 from the evaluation in which Dr. Karlson states “Patient is here to have paperwork 3 from DSHS filled out. Patient states the paperwork is for medical benefits like 4 cash while being sick. Patient has no concerns.” Tr. 994. Plaintiff reported no 5 symptoms besides nausea and abdominal pain with some improvement and 6 decreased concentration. Tr. 995. The physical examination only showed slight 7 tenderness throughout the abdomen and a normal mood and affect, but Plaintiff 8 was anxious and talkative. Id. Her last gastrointestinal workup showed some 9 gastroparesis which was treated with an instruction to eat smaller meals. Tr. 995- 10 6. Additionally, it was noted that while she was diagnosed with multiple allergies, 11 testing showed no allergies. Tr. 996. 12 The ALJ went on to conclude that based on these inconsistencies between 13 the opinion and the treatment notes, Dr. Karlson’s limitations appear to be based 14 on Plaintiff’s reports: “In fact a review of her notes reveals that her proposed 15 limitations were generally based on the claimant’s own complaints rather than any 16 objective findings.” Tr. 25. A doctor’s opinion may be discounted if it relies on a 17 claimant’s unreliable self-report. Bayliss, 427 F.3d at 1217; Tommasetti, 533 F.3d 18 at 1041 (finding that the reason met at least the lesser standard of specific and 19 legitimate). However, the ALJ must provide the basis for his conclusion that the 20 opinion was based on a claimant’s self-reports. Ghanim v. Colvin, 763 F.3d 1154, 21 1162 (9th Cir. 2014). Here, the ALJ’s conclusion that Dr. Karlson’s opinion was 22 inconsistent with her observations is the rationale cited for concluding that the 23 opinion was based on Plaintiff’s self-reports instead of objective evidence. Tr. 25. 24 Therefore, the requirement in Ghanim has been met. Additionally, the ALJ is 25 accurate that when reviewing the treatment record, the opinion is influenced by 26 Plaintiff’s reports: 27 28 Has had past egd and work-up with GI and at one time was told she had a component of gastroparesis and should eat smaller frequent meals; ORDER GRANTING DEFENDANT’S MOTION - 14 1 2 3 4 5 she has made dietary changes, but still has issues with pain which she feels are severely limiting in the work environment, making it difficult to bend or stand for long periods of time - - encouraged her to continue dietary changes and if worsens follow up with GI. Tr. 995-96. Additionally, the ALJ found that “Dr. Karlson’s remaining treatment notes 6 are similarly bereft of objective findings and generally demonstrate only 7 conservative treatment and medical management.” Tr. 25. The ALJ noted that in 8 comparing the 2014 and the 2017 opinions it becomes apparent that despite the 9 severe level of limitations opined, Dr. Karlson’s recommended treatment remains 10 the same. Id. On the 2014 evaluation, Dr. Karlson recommended regular follow 11 ups, vitamins, regular sleep, counseling, relaxation, and dietary changes. Tr. 993. 12 On the 2017 evaluation, she recommended medications, counseling, vitamins, and 13 regular follow-ups. Tr. 1577. 14 The ALJ’s first reason for giving only partial weight to Dr. Karlson’s 15 opinions is legally sufficient and supported by substantial evidence. Therefore, the 16 Court will not disturb the weight the ALJ assigned to his opinion. 17 The ALJ’s second reason for giving only partial weight to Dr. Karlson’s 18 opinion, that it was inconsistent with the longitudinal medical evidence of record, 19 is not legally sufficient. The ALJ stated that Dr. Karlson’s opinions were 20 “inconsistent with the remaining medical evidence of record, which does not 21 document a level of fatigue or abdominal pain that would preclude light or even 22 sedentary work.” Tr. 25. He additionally stated that he “would expect to see some 23 greater variation of treatment, or the pursuit of treatment beyond conservative 24 care.” Id. Inconsistency with the majority of objective evidence is a specific and 25 legitimate reason for rejecting physician’s opinions. Batson, 359 F.3d at 1195. 26 Regardless, the ALJ failed to provide what evidence outside of Dr. Karlson’s 27 records were inconsistent with the opinions. Tr. 25. The ALJ’s failure to 28 specifically address which objective evidence undermined Dr. Karlson’s opinion ORDER GRANTING DEFENDANT’S MOTION - 15 1 was an error. Embrey, 849 F.2d t 421-22 (The ALJ is required to do more than 2 offer his conclusions, he “must set forth his interpretations and explain why they, 3 rather than the doctors’, are correct.”). However, this would be considered 4 harmless error because the ALJ provided another legally sufficient reason to give 5 the opinion less weight. See Tommasetti, 533 F.3d at 1038 (An error is harmless 6 when “it is clear from the record that the . . . error was inconsequential to the 7 ultimate nondisability determination.”). 8 B. Neil Rawlins, M.D. 9 On November 22, 2016, Dr. Rawlins wrote a letter stating that Plaintiff was 10 not able to function due to her abdominal pain “during the best times very well and 11 it is worse during her menstrual period.” Tr. 1424. He went on to state that “This 12 continues to continue (sic.) to severely limit her ability to function in society. We 13 have treated with conservative medical treatments which have helped some but still 14 makes it difficult to hold a job or function with normal activities of daily life.” Id. On July 12, 2013, Dr. Rawlins had also stated that “Patient has had 15 16 significant fatigue. We have tried several things to see if we can improve the 17 fatigue however she [is] still not able to work a full day.” Tr. 1294. 18 The ALJ gave only partial weight to the 2016 opinion and little weight to the 19 2013 statement for four reasons: (1) the opinions were on an issue reserved for the 20 Commissioner; (2) Dr. Rawlins failed to support the opinions; (3) Dr. Rawlins 21 failed to discuss any specific functional limitations, and (4) the opinions were 22 inconsistent with the remaining medical evidence of record. Tr. 26. Additionally, 23 the ALJ rejected Dr. Rawlins’ 2013 statement because he was an 24 obstetrician/gynecologist (OBGYN) and fatigue was outside his area of expertise. 25 Id. 26 The ALJ’s first reason for assigning the opinions only partial weight, that 27 they were on an issue reserved for the Commissioner, is legally sufficient. The 28 regulations have stated that medical source opinion on issues reserved for the ORDER GRANTING DEFENDANT’S MOTION - 16 1 Commissioner are not medical opinions and are not due any special significance. 2 20 C.F.R. §§ 404.1529(d), 416.927(d). Opinions that a claimant is disabled is an 3 issue reserved for the Commissioner: “A statement by a medical source that you 4 are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you 5 are disabled.” 20 C.F.R. §§ 404.1529(d)(1), 416.927(d)(1). To the extent that Dr. 6 Rawlins’ statements reflect an opinion that Plaintiff is disabled or unable to work 7 as a conclusion, the ALJ’s rejection of them is supported by his assertion that they 8 are opinions reserved for the Commissioner and, therefore, fail to be medical 9 source opinions. 10 Plaintiff asserts that these statements are not conclusive opinions on an issue 11 reserved for the Commissioner, but are instead a functional opinion that Plaintiff 12 would be unable to sustain work as defined by the Commissioner. EFC No. 14 at 13 19. The Ninth Circuit found that statements addressing a Plaintiff’s ability to 14 sustain work activity is not rejected by 20 C.F.R. §§ 404.1527(d), 416.27(d). See 15 Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (a treating physician’s 16 statement that the claimant would be “unlikely” to work full time was not a 17 conclusory statement like those described in 20 C.F.R. §§ 404.1527(d), 416.27(d) 18 because it was an assessment based on objective medical evidence of the 19 claimant’s likelihood of being able to sustain full time work.). To the extent that 20 Dr. Rawlins’ statements are addressing Plaintiff’s ability to sustain work and not 21 just a conclusion that she cannot work, the ALJ provided his second, third, and 22 fourth reasons for assigning the opinions less weight. 23 The ALJ’s second and third reasons for assigning the opinions less weight, 24 that Dr. Rawlins failed to support the opinions and failed to provide any functional 25 limitations, are legally sufficient. An ALJ can reject a treating physician’s opinion 26 that is conclusory, brief, and unsupported by the record as a whole. Thomas v. 27 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Batson, 359 F.3d at 1195. The 2016 28 letter speaks to an inability to function due to pain, “She is not able to function due ORDER GRANTING DEFENDANT’S MOTION - 17 1 to this pain,” “continue to severely limit her ability to function in society,” and 2 “[m]akes it difficult to hold a job or function with normal activities of daily life.” 3 Tr. 1424. However, the inability to function lacks specificity and Dr. Rawlins fails 4 to tie this vague inability to function to any objective finding that supports the 5 opinion. Id. As such, finding these opinions conclusory and brief without a 6 discussion of supporting evidence is sufficient to assign them less weight. 7 The ALJ’s fourth reason for assigning only partial weight to the opinions, 8 that they were inconsistent with the remaining medical evidence of record, is not 9 legally sufficient. The ALJ concluded that opinions were “not consistent with the 10 remaining medical evidence of record, which does not demonstrate a complete 11 inability to perform work.” Tr. 26. As discussed above, opinions that are 12 unsupported by the record as a whole can be rejected by the ALJ. Thomas, 278 13 F.3d at 957; Batson, 359 F.3d at 1195. However, the ALJ is required to state with 14 some specificity what evidence is inconsistent with the opinion. Embrey, 849 F.2d 15 t 421-22 (The ALJ is required to do more than offer his conclusions, he “must set 16 forth his interpretations and explain why they, rather than the doctors’, are 17 correct.”). Therefore, the ALJ’s failure to set forth what medical evidence was 18 inconsistent with the opinions renders this reason insufficient to support giving the 19 opinions less weight. However, this would be considered harmless error because 20 the ALJ provided another legally sufficient reason to give the opinions less weight. 21 See Tommasettie, 533 F.3d at 1038 (An error is harmless when “it is clear from the 22 record that the . . . error was inconsequential to the ultimate nondisability 23 determination.”). 24 The ALJ also found that Dr. Rawlins’ 2013 statement that Plaintiff could not 25 “work a full day” due to her fatigue was due less weight because Dr. Rawlins is an 26 OBGYN and fatigue was outside his area of expertise. Tr. 26. This is not a legally 27 sufficient reason to reject the statement. While the ALJ is to consider factors such 28 as a physician’s specialty when weighing an opinion, 20 C.F.R. §§ 404.1527(c), ORDER GRANTING DEFENDANT’S MOTION - 18 1 416.927(c), the Social Security Ruling (S.S.R.) on chronic fatigue syndrome states 2 that evidence to establish the syndrome as a medical determinable impairment 3 must come from a licensed medical or osteopathic doctor. S.S.R. 14-1p. The 4 S.S.R. specifically speaks to the fact that chronic fatigue syndrome is a manifest 5 collection of specific symptoms and is not assigned to a specific body system that 6 would correlate to a definitive medical test or a medical specialist. Id. Therefore, 7 Dr. Rawlins’ status as an OBGYN does not negate his opinion on that reason 8 alone. However, this would be considered harmless error because the ALJ 9 provided another legally sufficient reason to give the opinions less weight. See 10 Tommasetti, 533 F.3d at 1038 (An error is harmless when “it is clear from the 11 record that the . . . error was inconsequential to the ultimate nondisability 12 determination.”). 13 Plaintiff further asserts that the ALJ failed to consider the factors addressed 14 in 20 C.F.R. §§ 404.1527(c), 416.927(c), and that such a failure is a reversible 15 error. ECF No. 14 at 19-20 (citing Trevizo v. Berryhill, 862 F.3d 987, 998 (9th Cir. 16 2017). The Ninth Circuit has recently held that a failure to address the factors set 17 forth in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6) “constitutes reversible 18 legal error.” Trevizo, 871 F.3d at 676. These factors include the length of 19 treatment relationship, the nature and extent of the treatment relationship, whether 20 the physician provides support for the opinion, the consistency of the opinion with 21 the medical evidence of record, the physician’s specialization, and other factors. 22 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). However, the reasons 23 provided by the ALJ for assigning the opinions only partial weight demonstrates 24 that the ALJ considered these factors. See Tr. 26 (assigning less weight to the 25 opinions based on the lack of support for the opinion, the lack of consistency of the 26 opinion with the medical evidence of the record, and a lack of specialty on the part 27 of Dr. Rawlins). As such, Plaintiff’s assertion is insufficient to support remanding 28 the case. ORDER GRANTING DEFENDANT’S MOTION - 19 1 C. Psychological Opinions 2 Plaintiff argues that the ALJ failed to properly weigh the psychological 3 opinions in the record. ECF No. 14 at 21. Her briefing asserts that four specific 4 errors: (1) the ALJ failed to consider that Dr. Karlson was the only medical source 5 to consider the combined effects of Plaintiff’s physical and psychological 6 impairments, (2) the ALJ failed to discuss the presence of a somatic symptom 7 disorder that was found by Dr. Marks, (3) the ALJ failed to consider the complex 8 relationship between Plaintiff’s physical and psychological impairments, and (4) 9 the ALJ erred in rejecting Dr. Moon’s opinions of significant limitations in 10 11 attendance. Id. All four reported errors were asserted in a single paragraph in the last page 12 of Plaintiff’s initial briefing and provide little to no argument regarding the issues. 13 In his decision, the ALJ did assign little weight to the opinions of Dr. Moon and 14 Dr. Marks in favor of the opinion of examining psychologist Dr. Genthe citing 15 both opinions as inconsistent with the evaluations performed by each psychologist. 16 Tr. 26. As discussed above, inconsistencies between the opinion and the 17 psychologist’s observations is a clear and convincing reason to reject the opinion. 18 Bayliss, 427 F.3d at 1216. However, considering Plaintiff failed to articulate these 19 20 21 22 23 24 25 26 27 28 arguments beyond a mere assertion, the Court will not consider them in more detail. See Carmickle, 533 F.3d at 1161 n.2. The Ninth Circuit explained the necessity for providing specific argument: The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. Particularly on appeal, we have held firm against considering arguments that are not briefed. But the term “brief” in the appellate context does not mean opaque nor is it an exercise in issue spotting. However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their argument in order to do so. It is no accident that the Federal Rules of Appellate Procedure require the opening brief to contain the ORDER GRANTING DEFENDANT’S MOTION - 20 1 2 3 “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). We require contentions to be accompanied by reasons. 4 Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).2 5 Moreover, the Ninth Circuit has repeatedly admonished that the court will not 6 “manufacture arguments for an appellant” and therefore will not consider claims 7 that were not actually argued in appellant’s opening brief. Greenwood v. Fed. 8 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Because Plaintiff failed to 9 provide adequate briefing, the court declines to consider this issue. 10 CONCLUSION 11 Having reviewed the record and the ALJ’s findings, the Court finds the 12 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 13 Accordingly, IT IS ORDERED: 14 15 1. Defendant’s Motion for Summary Judgment, ECF No. 15, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 16 2. 17 The District Court Executive is directed to file this Order and provide a copy 18 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 19 and the file shall be CLOSED. 20 DATED January 28, 2019. 21 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2 Under the current version of the Federal Rules of Appellate Procedure, the appropriate citation would be to FED. R. APP. P. 28(a)(8)(A). ORDER GRANTING DEFENDANT’S MOTION - 21

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