Diaz v. Commissioner of Social Security, No. 4:2018cv05172 - Document 14 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 12 DEFENDANT'S SUMMARY JUDGMENT MOTION AND DENYING 11 PLAINTIFF'S SUMMARY JUDGMENT MOTION. Case is closed. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Diaz v. Commissioner of Social Security Doc. 14 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Aug 05, 2019 4 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 ISAIAH D.1, No. Plaintiff, 8 v. 9 10 4:18-CV-05172-EFS COMMISSIONER OF SOCIAL SECURITY, 11 ORDER GRANTING DEFENDANT’S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION Defendant. 12 13 14 15 16 17 18 19 Before the Court are the parties’ cross motions for summary judgment, ECF Nos. 11 & 12. Plaintiff Isaiah D. appeals a denial of benefits by the Administrative Law Judge (ALJ).2 Plaintiff contends the ALJ: (1) did not provide germane reasons for rejecting the lay witness testimony of Plaintiff’s teachers Tina Gore and Mary Straub Walden; (2) failed to provide legally sufficient reasons for rejecting medical expert Nancy Winfrey, M.D. and state agency psychological consultants; (3) improperly rejected lay witness testimony of Plaintiff’s mother; and 20 21 1 22 23 2 To protect the privacy of social-security plaintiffs, the Court refers to them by first name and last initial. See LCivR 5.2(c). When quoting the Administrative Record in this order, the Court will substitute “Plaintiff” for any other identifier that was used. ECF No. 11. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 1 Dockets.Justia.com 1 (4) erroneously concluded that Plaintiff’s attention deficit hyperactivity disorder 2 (ADHD) and learning disorders did not equal a listed impairment.3 The 3 Commissioner of Social Security (Commissioner) asks the Court to affirm the ALJ’s 4 decision finding Plaintiff not disabled.4 5 After reviewing the record and relevant authority, the Court is fully informed. 6 For the reasons set forth below, the Court grants the Commissioner’s Motion for 7 Summary Judgment and denies Plaintiff’s Motion for Summary Judgment. I. 8 PROCEDURAL HISTORY5 9 Plaintiff was born January 14, 2000.6 On September 3, 2013, Plaintiff’s 10 mother protectively filed an application for supplemental security income (SSI) on 11 Plaintiff’s behalf, alleging a disability onset date of January 1, 2006.7 The application 12 was denied initially on February 3, 2014, and upon reconsideration.8 Plaintiff 13 requested a hearing on June 26, 2014.9 14 A hearing was held before ALJ Laura Valente in Kennewick, Washington on 15 April 22, 2016.10 However, one of the impartial medical experts decided at the 16 April 22 hearing that he did not have enough information to testify.11 Accordingly, 17 the ALJ continued the hearing.12 In the interim, the expert obtained additional 18 19 3 4 5 20 6 21 7 8 9 22 10 11 23 12 ECF No. 11 at 1. See generally ECF No. 12. The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, the parties’ briefs, and the underlying records. Administrative Record (AR) 35. AR 32. Id. Id. Id. Id. AR 32. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 2 1 medical evidence and updated school records.13 The ALJ also sent Plaintiff for a 2 psychodiagnostics evaluation, which was performed in June 2016.14 The 3 supplemental hearing occurred on November 1, 2016.15 4 In a decision dated April 20, 2017, the ALJ found Plaintiff’s severe 5 impairments included: adjustment disorder, learning disorder, and ADHD.16 The 6 ALJ found that Plaintiff’s impairments did not meet or equal a listing.17 The ALJ 7 went on to determine that Plaintiff did not have “marked limitation” in any major 8 functional areas.18 As such, the ALJ denied Plaintiff’s claims.19 9 On April 23, 2018, the Appeals Council denied Plaintiff’s request for review 10 and the ALJ’s decision became final.20 On October 31, 2018, Plaintiff filed this 11 lawsuit appealing the ALJ’s decision.21 The parties subsequently filed the instant 12 summary judgment motions.22 II. 13 THREE-STEP PROCESS FOR CHILD DISABILITY 14 A child under the age of 1823 is disabled within the meaning of the Social 15 Security Act “if that individual has a medically determinable physical or mental 16 impairment, which results in marked and severe functional limitations, and which 17 18 13 19 14 15 16 20 17 18 21 19 20 21 22 22 23 23 Id. Id. Id. AR 35. AR 36. AR 39–47. AR 47. AR 1. ECF No. 1. ECF Nos. 11 & 12. Although Plaintiff is currently over the age of 18, he was a minor during the relevant period in question. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 3 1 can be expected to result in death or which has lasted or can be expected to last for 2 a continuous period of not less than 12 months.”24 The regulations provide a three- 3 step process to determine whether a claimant satisfies this criterion.25 First, the 4 ALJ must determine whether the child is engaged in substantial gainful activity.26 5 Second, the ALJ considers whether the child has a “medically determinable 6 impairment that is severe,” which is defined as an impairment that causes “more 7 than minimal functional limitations.”27 Third, if the ALJ finds a severe impairment, 8 the ALJ must then consider whether the impairment either “medically equals” or 9 “functionally equals” a listed disability.28 10 At the third step, if the ALJ finds that the child’s impairment or combination 11 of impairments does not meet or medically equal a listing, the ALJ must still 12 determine whether the impairment or combination of impairments functionally 13 equals a listing.29 The ALJ’s functional equivalence assessment requires the ALJ to 14 evaluate the child’s functioning in six “domains.”30 These six domains are designed 15 “to capture all of what a child can or cannot do,” and are as follows: (1) (2) (3) (4) (5) (6) 16 17 18 Acquiring and using information; Attending and completing tasks; Interacting and relating with others; Moving about and manipulating objects; Caring for self; and Health and physical well-being.31 19 20 24 25 21 26 27 28 22 29 30 23 31 42 U.S.C. § 1382c(a)(3)(C)(i); see also 20 C.F.R. § 416.906. 20 C.F.R. § 416.924(a). 20 C.F.R. § 416.924(b). 20 C.F.R. § 416.924(c). 20 C.F.R. § 416.924(d). 20 C.F.R. § 416.926a(a). 20 C.F.R. § 416.926a(b)(1). 20 C.F.R. § 416.926a(b)(1)(i)–(vi). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 4 1 A child’s impairment will be deemed to functionally equal a listed 2 impairment if his condition results in “marked” limitations in at least two domains, 3 or an “extreme” limitation in at least one domain.32 A “marked limitation” is present 4 in a domain if the child’s impairment “interferes seriously with [his] ability to 5 independently initiate, sustain, or complete activities.”33 By contrast, an “extreme 6 limitation” is defined as a limitation that “interferes very seriously with [his] ability 7 to independently initiate, sustain, or complete activities.”34 III. 8 ALJ DECISION 9 At the first step in this case, the ALJ determined that Plaintiff has not 10 engaged in substantial gainful activity since applying for disability on 11 September 3, 2013.35 At the second step, the ALJ found that Plaintiff had the 12 “severe impairments” of adjustment disorder, learning disorder, and attention 13 deficit hyperactivity disorder (ADHD).36 At the third step, the ALJ found that 14 Plaintiff “does not have an impairment or combination of impairments that meets 15 or medically equals the severity” of a listed impairment in 20 C.F.R. Part 404, 16 Subpart P, Appendix 1.37 The ALJ reasoned that “[n]o physician of record opined 17 that [Plaintiff’s] impairments met or medically equaled any listing.”38 Further, the 18 ALJ found that Plaintiff’s “medically determinable impairments could reasonably 19 be expected to produce the alleged symptoms; however, the statements concerning 20 32 21 33 34 35 22 36 37 23 38 20 C.F.R. § 416.926a(d). 20 C.F.R. § 416.926a(e)(2)(i). 20 C.F.R. § 416.926a(e)(3)(i). AR 35. Id. AR 36. Id. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 5 1 the intensity, persistence and limiting effects of these symptoms are not entirely 2 consistent with the medical evidence and other evidence in the record[.]”39 3 In arriving at this conclusion, the ALJ gave great weight to non-treating 4 medical expert Joseph M. Steiner, Ph.D.40 The ALJ reasoned that Dr. Steiner was 5 the only medical source who had reviewed the entire record and his testimony was 6 impartial and well-reasoned.41 The ALJ assigned “some/partial” weight to treating 7 physician Dr. Glenn Ello and examining physician Nora K. Marks, Ph.D.42 8 The ALJ assigned “little” weight to state agency psychological consultants 9 Beth Fitterer and Grant Gilbert, Ph.D.43 The ALJ reasoned that their “assessment 10 of the evidence and domain ratings were in concert with” Dr. Steiner’s opinion, 11 “except they indicated ‘marked’ limitations in acquiring and using information and 12 ‘no’ limitations in caring for himself, ratings not consistent with the evidence of 13 record.”44 Further, the ALJ stated that the medical and school evidence was 14 inconsistent with these opinions, and the consultants did not consider evidence after 15 2014.45 Additionally, the ALJ assigned little weight to interrogatories completed by 16 Nancy Winfrey, Ph.D., because her opinions were not supported by objective testing 17 and “appeared to be more based on speculation than the evidence of record.”46 18 19 20 39 40 21 41 42 43 22 44 45 23 46 AR 37. Id. AR 37–38. AR 38. Id. Id. Id. AR 39. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 6 1 The ALJ also assigned little weight to Plaintiff’s middle school teachers Tina 2 Gore and Mary Straub Walden.47 The ALJ reasoned that Ms. Gore’s demarcation of 3 “extreme” and “marked” limitations in multiple domains “was wholly inconsistent” 4 with 5 unpersuasive.”48 Further, the ALJ reasoned that the domain ratings from both 6 Ms. Gore and Ms. Walden were “more severe than [Plaintiff’s] objective test results, 7 contradictory to his records and IEP reports, . . . and out of proportion to the 8 allegations of [Plaintiff] and his mother.”49 her own earlier assessment, which rendered “her questionnaires 9 Finally, the ALJ assigned little weight to Plaintiff’s mother, Sonia Portales.50 10 The ALJ reasoned that although Ms. Portales had observed Plaintiff on a regular 11 basis, she was not a medical professional and the limitations she alleged were “not 12 entirely consistent with clinical observations of medical professionals.”51 The ALJ 13 further stated that Ms. Portales’ allegations were “out of proportion to medical 14 source evidence, and [Plaintiff’s] own testimony.”52 IV. 15 STANDARD OF REVIEW 16 This Court will reverse an ALJ’s decision only if it was not supported by 17 substantial evidence in the record as a whole or if the ALJ applied the wrong legal 18 standard.53 Substantial evidence is “more than a mere scintilla but less than a 19 20 47 21 48 49 50 22 51 52 23 53 AR 38. Id. AR 38–39. AR 37. Id. Id. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 7 1 preponderance; it is such relevant evidence as a reasonable mind might accept as 2 adequate to support a conclusion.”54 It is the role of the ALJ, not this Court, to weigh conflicting evidence and make 3 4 credibility assessments. 5 interpretation, the Court may not substitute its judgment for that of the ALJ.55 The 6 Court will also uphold “such inferences and conclusions as the [ALJ] may reasonably 7 draw from the evidence.”56 However, if the ALJ applied an incorrect legal standard 8 in weighing the evidence and arriving at his decision, the Court will reverse unless 9 the error was harmless.57 V. 10 11 If the evidence supports more than one rational DISCUSSION A. The ALJ did not err in concluding that Plaintiff’s ADHD and learning 12 disorders do not functionally equal a listed impairment. 13 Plaintiff argues that the ALJ erroneously concluded that Plaintiff had “less 14 than marked” limitations in the domains of “acquiring and using information” and 15 “attending and completing tasks.”58 The ALJ concluded that Plaintiff had “less than 16 marked” limitations in all domains, thereby rendering him not disabled.59 17 The Court finds substantial evidence exists to support the ALJ’s conclusions. 18 “[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such 19 54 20 55 21 56 57 58 22 23 59 Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). See Molina, 674 F.3d at 1111. ECF No. 11 at 20. AR 40–47; 20 C.F.R. § 416.926a(d) (a child’s impairment will equal a listed impairment if his condition results in “marked” limitations in at least two domains or “extreme” limitations in at least one domain). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 8 1 evidentiary sufficiency is not high . . . It means—and means only—such relevant 2 evidence as a reasonable mind might accept as adequate to support a conclusion.”60 3 i. Acquiring and Using Information 4 In this domain, an ALJ assesses “how well [the claimant] acquire[s] or learn[s] 5 information, and how well [he] use[s] the information [he has] learned.”61 A claimant 6 may present limited functioning in acquiring and using information if he (1) does not 7 demonstrate understanding of words about space, time or size; (2) cannot rhyme 8 words or sounds in words; (3) has difficulty recalling important things he learned in 9 school yesterday; (4) has difficulty solving mathematics questions or computing 10 arithmetic answers; or (5) speaks only in short, simple sentences and has difficulty 11 explaining what he means.62 An adolescent who acquires and uses information in a 12 typical manner is generally able to demonstrate—among other factors—learning in 13 academic assignments; apply learning in daily situations without assistance (such 14 as going to the store, getting a book from the library, or using public transportation); 15 and apply knowledge in practical ways that will help in employment, such as 16 carrying out instructions.63 17 Plaintiff generally asserts that the ALJ erred because Plaintiff’s lay 18 witnesses, the state psychological consultants, and Dr. Winfrey concluded that 19 Plaintiff had “marked” limitations in this domain.64 However, as discussed infra, the 20 21 60 61 22 62 23 64 63 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted). 20 C.F.R. §416.926a(g). 20 C.F.R. § 416.926a(g)(3)(i)–(v). These factors are examples of limited functioning. Id. 20 C.F.R. § 416.926a(g)(2)(v); see also SSR 09-3p. ECF No. 11 at 20. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 9 1 ALJ properly afforded little weight to the opinions of these witnesses. Further, 2 substantial evidence supports the ALJ’s findings that Plaintiff has “less than 3 marked” limitations in acquiring and using information. Plaintiff’s treating 4 physician Dr. Glenn Ello opined that Plaintiff had “less then marked” limitations in 5 acquiring and using information, and that medication would enable Plaintiff to focus 6 better.65 Dr. Marks’ objective testing for intelligence and achievement showed 7 Plaintiff is able to follow and carry out instructions with repetition.66 Plaintiff’s IEP 8 form dated December 2014 supports Dr. Marks’ findings, stating that Plaintiff 9 “works hard and is eager to understand all of the instruction he is given.”67 The form 10 further states that Plaintiff “catches onto new academic skills quite well,” and he 11 retains “new material and skills” through significant repetition.68 12 Dr. Marks’ testing also showed Plaintiff had a full-scale IQ score in the low- 13 average range with some borderline range scores, which medical expert Dr. Joseph 14 Steiner opined did not reach the level of “marked” limitations.69 Although Plaintiff 15 believes Dr. Steiner relied “almost solely” on the intelligence testing, Dr. Steiner also 16 relied on Dr. Ello’s testimony and Plaintiff’s most recent school transcript, which 17 18 65 19 20 66 21 22 67 68 23 69 AR 511. Plaintiff contends that the ALJ erred by relying on Dr. Ello’s opinion to the extent it only assessed his disability from his ADHD. ECF No. 11 at 16–17. However, as discussed infra, substantial evidence in the record that also accounted for his learning and adjustment disorders supported Dr. Ello’s findings. See AR 521. Dr. Marks wrote that Plaintiff “may have difficulty if instructions become complicated and multistepped,” but he “should not have difficulty understanding problems with small step application in a routine setting.” Id. The ALJ noted that Dr. Marks did not assess the specific domains in her report and accounted for this when assigning weight to her findings. See AR 38. AR 407. Id. AR 91. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 10 1 reflected “A’s and B’s.”70 Further, Dr. Steiner was the only medical expert to review 2 the record in this case in its entirety.71 Therefore, Dr. Steiner reviewed the testing 3 and issued his conclusion in light of all other evidence in the record. 4 The record also reflects Plaintiff’s “less than marked” ability to apply learning 5 in daily situations without assistance.72 Plaintiff stated that he enjoys going to the 6 library and reading novels and comic books.73 He is comfortable finding what he 7 needs at the library and asking for help when he cannot.74 Further, Plaintiff stated 8 in the hearing that he could ride his bicycle around the neighborhood when it was 9 functional and believes he could use public transportation, although he stated he 10 generally goes places with his mother for fear of his safety.75 Additionally, Plaintiff’s 11 mother admitted that Plaintiff has no problems understanding the rules of baseball 12 and is able to learn new things on a daily basis.76 13 Plaintiff’s remaining arguments lack merit. Plaintiff asserts that the ALJ 14 disregarded the Woodcock Johnson-III77 test results demonstrating Plaintiff’s skills 15 in comparison to his age group, as well as the modifications he received in his IEP 16 program.78 However, the ALJ specifically cited to the records containing the 17 70 18 71 72 19 73 20 74 75 21 76 77 22 23 78 See AR 91–92; see also AR 359 (transcript dated March 3, 2016). See AR 37. See SSR 09-3 (an adolescent between ages 12 and 18 may demonstrate typical acquisition and use of information through daily application of skills, to include going to the store, using public transportation, or acquiring a book from the library). AR 120. Id. AR 109–10. AR 97. Although Plaintiff uses the term “objective testing,” ECF No. 11 at 20, he discusses these results as being the “Woodcock-Johnson III” results earlier in the pleading and cites to the same page numbers. See, e.g., id. at 7. The Court accordingly assumes that Plaintiff is referring to those test results here. ECF No. 11 at 20. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 11 1 Woodcock Johnson-III test results when assessing the six domains, including 2 acquiring and using information.79 Additionally, the ALJ need not discuss all 3 evidence presented to her, only evidence that she is rejecting.80 Here, the ALJ did 4 not reject the records. 5 Finally, the ALJ accounted for the assistance Plaintiff received in his IEP by 6 noting that he received “passing grades with the assistance of IEP (resource 7 room/class and tutoring).”81 In sum, substantial evidence exists to support the ALJ’s 8 conclusion that Plaintiff has “less than marked” limitations in acquiring and using 9 information. 10 ii. Attending and Completing Tasks 11 In assessing this domain, the ALJ reviews how well Plaintiff is able to “focus 12 and maintain . . . attention, and . . . begin, carry through, and finish” activities.82 An 13 adolescent should be capable of—among other things—paying attention to longer 14 presentations and discussions, maintain concentration when reading text books, and 15 maintain attention on tasks for extended periods of time.83 A child who is limited in 16 this domain may be easily distracted, slow to focus on or complete activities of 17 interest to the child, get frustrated when giving up on tasks, or require extra 18 supervision.84 19 20 21 79 80 81 22 82 83 23 84 AR 40 (citing 9F and 12F). Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984). AR 40. 20 C.F.R. § 416.926a(h). 20 C.F.R. § 416.926a(h)(2)(v); SSR 09-4p. See 20 C.F.R. § 416.926a(h)(3). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 12 1 Substantial evidence exists to support the ALJ’s finding that Plaintiff has 2 “less than marked” limitations in attending and completing tasks. Dr. Ello, who 3 treats Plaintiff for ADHD, remarked that Plaintiff has “less than marked” 4 limitations in attending and completing tasks.85 Dr. Steiner also opined that Plaintiff 5 had “less than marked limitations,” stating that Plaintiff exhibits good effort on tests 6 and takes medication that helps significantly with his focus.86 Dr. Steiner also stated 7 Plaintiff’s processing speed score in Dr. Marks’ testing showed low-average 8 functioning in concentration, which Dr. Steiner opined indicated “less than marked” 9 limitations.87 10 Plaintiff’s testimony also reflects an ability to concentrate on tasks of 11 interest.88 Plaintiff enjoys watching videos and reading lifestyle blogs on the internet 12 and can do so for an extended period.89 As stated previously, Plaintiff also enjoys 13 reading novels and comic books at the library.90 He generally uses his study hour at 14 school appropriately by doing his homework, and states that he is rarely distracted 15 during that time.91 Further, Plaintiff’s school records show good concentration in his 16 courses, with one teacher remarking that “[Plaintiff] is an extremely hard worker 17 which accounts for his high grade. He simply does not settle for mediocre work.”92 18 19 20 85 86 21 87 88 89 22 90 23 92 91 AR 511. AR 92. AR 92–93; see also AR 516. See 20 C.F.R. § 416.92a(h)(3)(ii). AR 112–13. AR 120. AR 114 (noting his being distracted during the study hour is an “exception”). AR 388. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 13 1 Plaintiff also stated that he was able to finish projects that he was interested 2 in, although he could become frustrated if he did not finish.93 He testified that if he 3 became frustrated about not finishing a project, he would “normally just drop 4 everything and try to forget it” and “go back to it the next day.”94 At home, Plaintiff 5 states that although his mother may have to remind him about some tasks, he is 6 good about regular grooming habits without needing reminders.95 Substantial 7 evidence from medical expert opinions and Plaintiff’s testimony exist to support the 8 ALJ’s finding that Plaintiff has “less than marked” limitations in attending and 9 completing tasks. 10 B. The ALJ did not improperly reject the opinions provided by lay 11 witnesses Sonia Portales, Tina Gore, and Mary Straub Walden. 12 Teachers and family members are not acceptable medical sources.96 They are 13 therefore considered “other” sources or “lay witnesses.” “Lay testimony as to a 14 claimant's symptoms or how an impairment affects the claimant's ability to work is 15 competent evidence that the ALJ must take into account.”97 The ALJ may not 16 disregard competent lay witness testimony without comment and therefore must 17 give specific, germane reasons for disregarding the testimony.98 Inconsistency with 18 medical evidence is a germane reason.99 Further, an ALJ may accept parts of lay 19 witness testimony that he feels are “consistent with the record of [Plaintiff’s] 20 93 21 94 95 96 22 97 98 23 99 AR 113–14; see also AR 118. AR 118. AR 115. 20 C.F.R. §§ 404.1502(a), 404.1513(a). Molina, 674 F.3d at 1114. Id.; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 14 1 activities and the objective evidence in the record,” and may “reject portions of [lay 2 witness] testimony that do not meet this standard.”100 The ALJ may also reject a lay 3 witness opinion that contains an internal conflict.101 4 i. Sonia Portales 5 The ALJ provided several germane reasons to assign little weight to Ms. 6 Portales’ testimony. The ALJ rejected her testimony because it was “not entirely 7 consistent with clinical observations of medical professionals,” and because it was 8 “out of proportion to medical source evidence, and the claimant’s own testimony.”102 9 Further, the ALJ reasoned that Plaintiff’s care providers and school professionals 10 “did not express concerns of the extent alleged.”103 These inconsistencies are 11 germane reasons to reject lay witness testimony.104 12 The ALJ’s reasoning is supported by substantial evidence in the record. The 13 ALJ cited multiple instances where Ms. Portales’ testimony conflicted with the 14 evidence in the record, including Plaintiff’s own testimony and school records. For 15 example, the ALJ noted that Ms. Portales stated Plaintiff had limitations with his 16 ability to read and understand books and comic books, making new friends, and 17 generally get along well with adults.105 However, Plaintiff testified that he enjoyed 18 19 100 20 101 102 21 22 103 23 105 104 Id. See Molina, 674 F.3d at 1112. AR 37. Plaintiff takes issue with the ALJ’s statement that Ms. Portales is “not a medical professional.” See ECF No. 11 at 19; AR 37. However, the ALJ offered several other germane reasons for discounting Ms. Portales’ testimony. See AR 37. Accordingly, the ALJ’s statement that Ms. Portales was not a medical professional does not undermine the ALJ’s analysis. AR 37. See Bayliss, 427 F.3d at 1218. AR 37; 301–02. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 15 1 going to the library to read novels and comic books,106 and his school records indicate 2 he has several friends and a sense of humor.107 He participates in the drama club 3 and “Buddy Club,” which assists students with disabilities,108 and is perceived as 4 polite and cooperative by adults.109 Apart from these examples, the ALJ detailed 5 many other inconsistencies with Ms. Portales’ testimony throughout the ALJ’s 6 assessment of Plaintiff’s six domains.110 Because the ALJ provided germane reasons 7 supported by substantial evidence, the ALJ appropriately discounted Ms. Portales’ 8 testimony. ii. Tina Gore and Mary Straub Walden 9 10 The ALJ presented specific and germane reasons for affording little weight to 11 Ms. Gore’s and Ms. Walden’s testimony. The ALJ noted that Ms. Gore and 12 Ms. Walden’s assessments were more severe than Plaintiff’s objective test results by 13 Dr. Marks, “contradictory to his school records and IEP reports, and out of proportion 14 to the allegations of [Plaintiff] and his mother.”111 All noted inconsistencies with the 15 record are germane reasons to reject lay witness testimony.112 16 Substantial evidence exists to support the ALJ’s reasons. Ms. Gore and 17 Ms. Walden opined that Plaintiff had “extreme” and “marked” limitations 18 respectively in acquiring and using information and attending and completing 19 20 106 21 107 108 109 22 110 111 23 112 AR 120. See, e.g., AR 374, 393. See, e.g., AR 374, 393, 515. See, e.g., AR 374, 519. See AR 39–47. AR 38–39. Bayliss, 427 F.3d at 1218. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 16 1 tasks.113 However, as analyzed supra, substantial evidence existed to support the 2 ALJ’s finding that Plaintiff had “less than marked” limitations in these areas. 3 Accordingly, the ALJ did not err in rejecting Ms. Gore and Ms. Walden’s testimony. 4 C. The ALJ properly rejected the opinions of Nancy Winfrey, Ph.D. and 5 state agency psychological consultants. 6 i. Dr. Winfrey 7 The ALJ properly discounted the opinion of consulting clinical psychologist 8 Dr. Winfrey. A treating or examining physician is generally afforded greater 9 deference than a non-treating and non-examining physician.114 Further, “[t]he 10 Commissioner may reject the opinion of a non-examining physician by reference to 11 specific evidence in the medical record.”115 12 Dr. Winfrey was neither a treating nor examining physician, therefore her 13 opinion is not entitled to great deference.116 Additionally, the ALJ referred to specific 14 evidence in the medical record to reject Dr. Winfrey’s opinion. 117 The ALJ stated that 15 Dr. Winfrey’s opinion that Plaintiff had “marked” limitations in acquiring and using 16 information was “not supported by the objective testing” conducted by Dr. Marks.118 17 In so doing, the ALJ specifically cited Dr. Marks’ testing within the record.119 18 19 20 113 114 21 22 115 116 117 118 23 119 AR 373, 376. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citations omitted). See Lester, 81 F.3d at 830–31. See also AR 636 (answering “no” to whether she had “ever personally examined [Plaintiff]”). Sousa, 143 F.3d at 1244; see AR 39. AR 39. Id. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 17 1 Finally, “an ALJ need not accept the opinion of a doctor if that opinion is brief, 2 conclusory, and inadequately supported by clinical findings.”120 Dr. Winfrey’s 3 allegation that Plaintiff may have “undiagnosed dyslexia and/or borderline verbal 4 functioning” did not contain any supporting facts or analysis.121 The ALJ therefore 5 properly rejected this portion of Dr. Winfrey’s testimony.122 6 ii. State Agency Psychological Consultants 7 State agency medical and psychological consultants are “highly qualified 8 medical sources who are also experts in the evaluation of medical issues in disability 9 claims under the Act.”123 ALJs must consider their opinions and “articulate how they 10 considered them in the decision.”124 To reject the opinion of a non-examining 11 physician, the ALJ must refer to “specific evidence in the medical record.”125 12 However, the ALJ need not repeat the specific evidence in multiple parts of the 13 opinion, so long as “the agency’s path [of analysis] may reasonably be discerned.”126 14 15 16 120 121 17 122 18 19 20 21 123 22 124 23 126 125 Bayliss, 261 F.3d at 1216 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). AR 643. Plaintiff asserts that the ALJ failed to consider Woodcock-Johnson III test results when discounting Dr. Winfrey’s opinion that Plaintiff had “marked” limitations in acquiring and using information, seemingly alleging they are at odds with Dr. Marks’ testing. See ECF No. 11 at 14– 15. However, Dr. Steiner testified that the “other tests in the record” that assessed “areas of concentration and intelligence” were consistent with the “less-than-marked” results of Dr. Marks’ objective testing. AR 94–95. And, as discussed supra, the ALJ cited the records containing these tests when assessing Plaintiff’s functioning in the six domains. See, e.g., AR 39, 40, 43. Further, “in interpreting the evidence and developing the record, an ALJ does not need to discuss every piece of evidence.” Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citations and internal quotations omitted). Accordingly, the ALJ did not improperly disregard the WoodcockJohnson III testing when assigning little weight to Dr. Winfrey’s opinion. SSR 17-2p. Id. Sousa, 143 F.3d at 1244. Molina, 674 F.3d at 1121 (internal quotations omitted). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 18 1 The ALJ referred to specific evidence in the medical record to discount the 2 opinions of the state agency consultants. The ALJ noted that the consultants’ 3 determinations were completed in 2014, and that “[a]dditional evidence received in 4 the course of developing this case for review justifies different conclusions” than 5 provided by the consultants.127 Although the ALJ did not specify the “additional 6 evidence” within the same paragraph, the Court may easily discern from the ALJ’s 7 decision the evidence upon which she relied.128 For example, the objective medical 8 testing by Dr. Marks was completed in June 2016,129 treating physician Dr. Ello’s 9 assessment was taken in April 2016,130 and Plaintiff’s transcript in 2015 and 2016 10 reflected passing grades, including A’s and B’s.131 As the ALJ specifically noted in 11 her decision and as discussed supra, these pieces of evidence and Dr. Steiner’s 12 interpretations all conflicted with the consultants’ conclusions that Plaintiff had 13 “marked” limitations in his ability to acquire and use information.132 Because the 14 ALJ specified reasons supported by substantial evidence, the ALJ did not err in 15 rejecting the state agency consultants’ opinions. 16 iii. Harmless Error 17 As the Commissioner notes, even if the ALJ did err in assigning weight to 18 Dr. Winfrey or the consultants, the error would have been harmless. “ALJ errors in 19 social security cases are harmless if they are inconsequential to the ultimate 20 21 127 128 129 22 130 131 23 132 AR 38. See Molina, 674 F.3d at 1121. AR 514. AR 513. AR 359. See AR 38. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 19 1 nondisability determination[.]”133 Even if the ALJ had assigned significant weight to 2 the opinions of Dr. Winfrey and the state agency doctors, the opinions would not 3 have changed the ALJ’s conclusion of non-disability. To find a child disabled the ALJ 4 must find the child has “marked” limitations in two domains or “extreme” limitation 5 in one.134 The opinions by Dr. Winfrey and the state agency physicians only afforded 6 Plaintiff “marked” limitation in one domain—acquiring and using information—and 7 no “extreme” limitations. 135 Thus, even if the ALJ had afforded great weight to the 8 opinions, the opinions would not have warranted a finding of disabled.136 Any error 9 in the ALJ’s assignment of weight for Dr. Winfrey and the state agency consultants 10 is therefore harmless. VI. 11 CONCLUSION 12 Having reviewed the ALJ’s findings and the record as a whole, the Court 13 concludes that the ALJ did not err in determining that Plaintiff’s impairments did 14 not equal a listing, rejecting lay witness testimony, or rejecting non-treating and 15 non-examining consultant testimony. 16 Accordingly, IT IS HEREBY ORDERED: 17 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 18 19 133 134 20 135 21 136 22 23 Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (internal quotations omitted). 20 C.F.R. § 416.926a(d). See AR 133 (state agency doctor Beth Fitterer); 143 (state agency doctor Grant Gilbert); 640 (Nancy Winfrey). Plaintiff asserts that the Commissioner’s argument stating the same is meritless because the ALJ improperly rejected the testimony of Plaintiff’s teachers. ECF No. 13 at 3–4. He argues that the testimony from the teachers combined with the state agency opinions and interrogatories from Dr. Winfrey would have supported a finding of disabled. Id. However, as analyzed supra, the ALJ properly discounted the opinions of Plaintiff’s teachers, who were the only witnesses that indicated a “marked” limitation in a domain other than acquiring and using information. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 20 1 2. The Commissioner’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 2 3 3. The Clerk’s Office is to enter JUDGMENT in favor of Defendant. 4 4. The case shall be CLOSED. 5 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order, enter 6 7 Judgment for the Plaintiff, provide copies to all counsel, and close the file. DATED this 5th day of August 2019. 8 9 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 21
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