Osier v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHELLY A. O.,1 No. 3:18-cv-02158-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, Social Security

Administration,

Defendant.

HERNÁNDEZ, District Judge:

Plaintiff brings this action for judicial review of the Commissioner’s final decision

denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social

Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last name of

the non-governmental party or parties in this case. Where applicable, this opinion uses the same

designation for non-governmental party’s immediate family members.

§ 1382(c)(3)). Because the Commissioner’s decision is free of legal error and supported by

substantial evidence in the record, the Court AFFIRMS the decision and DISMISSES this case.

BACKGROUND

Plaintiff was born on January 7, 1965 and was forty-seven years old on September 20,

2012, the date the application was filed. Tr. 614.2 Plaintiff has at least a high school education

and has no past relevant work Tr. 614. Plaintiff claims she is disabled based on conditions

including “generalized anxiety disorder (“GAD”), post-traumatic stress disorder (“PTSD”),

depressive disorder, borderline intellectual functioning (“BAF”), lumbago, chronic pain, and a

foot condition diagnosed as congenital pes planus, claw toe deformity, acquired hammer toes,

and Achilles tendinitis.” Tr. 597.

Plaintiff’s first application for benefits was denied initially on February 19, 2013, and

upon reconsideration on September 20, 2013. Tr. 594. A hearing was held before Administrative

Law Judge Jo Hoenninger on December 23, 2014. Tr. 36–72, 594. ALJ Hoenninger issued a

written decision on January 23, 2015, finding that Plaintiff was not disabled and therefore not

entitled to benefits. Tr. 18–30, 594. The Appeals Council declined review, rendering ALJ

Hoenninger’s decision the Commissioner’s final decision. Tr. 594. On June 10, 2016, Plaintiff

appealed that final decision to the United States District Court for the District of Oregon. Tr.

594. On May 4, 2017, the district court reversed the ALJ’s January 23, 2015 decision and

remanded the case for further proceedings. Tr. 594. The Appeals Council consolidated the case

with a second application for SSI benefits that Plaintiff had filed on June 9, 2016. Tr. 595.

A second hearing was held before Administrative Law Judge Jo Hoenninger on May 17,

2018. Tr. 625–48. On August 27, 2018, ALJ Hoenninger issued a written decision, again finding

that Plaintiff was not disabled. Tr. 594–615.

2 Citations to “Tr.” refer to the administrative trial record filed here as ECF No. 9.

SEQUENTIAL DISABILITY ANALYSIS

A claimant is disabled if she is unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which . . . has lasted or can

be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate

burden of proving disability. Id.

At step one, the Commissioner determines whether a claimant is engaged in “substantial

gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987);

20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the

claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S.

at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

At step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

At step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20

C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the

claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five,

the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at

141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden

and proves that the claimant is able to perform other work which exists in the national economy,

the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

THE ALJ’S DECISION

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since September 20, 2012, the application date. Tr. 597.

At step two, the ALJ determined that Plaintiff had the “following severe impairments:

generalized anxiety disorder (“GAD”), post-traumatic stress disorder (“PTSD”), depressive

disorder, borderline intellectual functioning (“BIF”), lumbago, chronic pain, and a foot condition

diagnosed as congenital pes planus, claw toe deformity, acquired hammer toes, and Achilles

tendinitis.” Tr. 597.

At step three, the ALJ determined that Plaintiff did not have any impairment or

combination of impairments that met or medically equaled the severity of one of the listed

impairments. Tr. 598–99.

Before proceeding to step four, the ALJ found that Plaintiff had the residual functional

capacity (“RFC”)

to perform light work . . . except as follows: She can stand and walk two hours

total in an eight-hour workday. She has no limitations on sitting. She needs a

sit/stand option at will. She can frequently climb ladders, ropes, and scaffolds,

stoop, kneel, crouch, and crawl. She can understand and remember simple

instructions. She has sufficient concentration, persistence, and pace to complete

simple, routine tasks in two-hour-increments for a normal workday and workweek

with normal breaks. She should have only occasional, brief, superficial

interactions with coworkers and the general public. She can accept supervision

delivered in a normative fashion. She should not be in a job that requires more

than occasional verbal communication. She may need to elevate her right foot six

inches above the floor twice a day for 15 to 20 minutes each time, with no

expectation that it would interfere with work.

Tr. 599.

At step four, the ALJ determined that Plaintiff had no past relevant work. Tr. 614. At step

five, the ALJ relied on the testimony of a vocational expert to find there were jobs that existed in

significant numbers in the national economy that Plaintiff could perform. Tr. 614–15.

Accordingly, the ALJ concluded that Plaintiff was not disabled. Tr. 615.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings are based on legal error or are not supported by substantial evidence in

the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial

evidence means more than a mere scintilla but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal

quotation marks omitted). Courts consider the record as a whole, including both the evidence that

supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d

1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational

interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal

quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)

(“Where the evidence as a whole can support either a grant or a denial, [the court] may not

substitute [its] judgment for the ALJ’s.”) (internal quotation marks omitted).

DISCUSSION

Plaintiff raises two issues on appeal. She argues the ALJ erred by improperly rejecting

(1) her subjective symptom testimony and (2) certain medical opinion evidence.

I. Subjective Symptom Testimony

Plaintiff argues the ALJ improperly discounted her subjective symptom testimony. The

ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1

(Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal relationship

between the impairment and some level of symptoms, clear and convincing reasons are needed

to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v. Comm’r, 533

F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering,

“where the record includes objective medical evidence establishing that the claimant suffers from

an impairment that could reasonably produce the symptoms of which he complains, an adverse

credibility finding must be based on clear and convincing reasons” (quotation marks and citation

omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (the ALJ engages in a

two-step analysis for subjective symptom evaluation: First, the ALJ determines whether there is

“objective medical evidence of an underlying impairment which could reasonably be expected to

produce the pain or other symptoms alleged”; and second, “if the claimant has presented such

evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and

convincing reasons in order to reject the claimant’s testimony about the severity of the

symptoms.” (quotation marks and citations omitted)).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant’s testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discount the claimant’s testimony.”).

Here, the ALJ found that Plaintiff’s “medically determinable impairments could

reasonably be expected to cause some of the alleged symptoms” and did not identify evidence of

malingering. Tr. 600. However, the ALJ concluded that Plaintiff’s “statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely consistent with the

medical evidence and other evidence in the record.” Tr. 600. Plaintiff challenges these

conclusions to the extent they relate to her right foot and mental health.

a. Right Foot Testimony

The ALJ summarized Plaintiff’s testimony about her right foot as follows:

Since the first hearing, her foot condition, Achilles tendonitis in the right foot, had

worsened. She had swelling in her foot, and she needed to keep it elevated and

used ice on the foot on a regular basis. She would elevate her foot twice a day for

15 to 20 minutes. A brace helped “a little.” Since the first hearing, her anxiety had

worsened, related to her foot. She felt scared and worried about her foot. Her

medication was effective, and she did not have any side effects, although it made

her a little tired.

Tr. 600. The ALJ discounted this testimony, finding that Plaintiff received only conservative

treatment, Plaintiff had failed to follow recommended treatment, there were inconsistencies

between Plaintiff’s testimony and the medical record, and Plaintiff’s testimony was not

supported by the objective medical evidence.

i. Conservative Treatment

An ALJ may rely on evidence of conservative treatment to “discount a claimant’s

testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.

2007) (internal quotation marks omitted). However, no adverse credibility finding is warranted

where a claimant has a good reason for failing to pursue more aggressive treatment, see Orn v.

Astrue, 495 F.3d 625, 638 (9th Cir. 2007), or where “the record does not reflect that more

aggressive treatment options are appropriate or available,” Lapeirre-Gutt v. Astrue, 382 F. App’x

662, 662 (9th Cir. 2010) (a “claimant cannot be discredited for failing to pursue non-conservative

treatment options where none exist.”).

Plaintiff argues that while “treatment for [Plaintiff’s] right foot problems may be

considered conservative,” she received this treatment “due to a combination of her insurance not

approving other treatments, [Plaintiff’s] desire to avoid surgery if possible, and the lack of other

viable treatment options for her conditions.” Pl. Br. 10. While the Court fails to see the relevance

of Plaintiff’s “desire to avoid surgery,” the Court sees no reference to other viable treatment

options, and the record supports Plaintiff’s position that insurance would not cover more

aggressive options. See tr. 1175 (Plaintiff “[r]eports insurance won’t cover any other treatment

than the brace she is using); tr. 1254 (surgery would likely not be covered by OHP); tr. 1260

(OHP denied referral for physical therapy and revisional arthroplasty “would mostly likely run

into the [same] approval issue”). Thus, the ALJ erred in erred in relying on conservative

treatment to reject Plaintiff’s testimony about her right foot.

ii. Failure to Follow a Recommended Treatment

An “ALJ may properly rely on ‘unexplained or inadequately explained failure to seek

treatment or to follow a prescribed course of treatment.’” Molina, 674 F.3d at 1113 (quoting

Tomasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)). Here, the ALJ found that Plaintiff

“did not wear her walking boot as recommended by her podiatrist, despite admitting that wearing

the boot helped her symptoms.” Tr. 606.3

3 The ALJ also referenced “poor medication adherence,” but the citation appears to relate to

Plaintiff’s mental health testimony. The Court will therefore address this reasoning below.

Plaintiff argues that she has “largely been compliant with treatment and any instances of

noncompliance have been temporary and with reasonable explanations.” Pl. Br. 12. Specifically,

with regard to the walking boot, Plaintiff reported difficulties wearing the device because it did

not fit well and caused hip and back pain. See tr. 1271 (wearing boot while walking caused

Plaintiff’s back to hurt); tr. 1159 (Plaintiff reported that brace hurt her foot); tr. 1277 (“Has been

wearing her boot, which is throwing off her back and hips.”); tr. 1290 (changed from XL to XS

brace). While the record does suggest that Plaintiff was initially provided with a poorly-fitted

brace, she eventually received a well-fitted brace. As the ALJ noted, the well-fitted brace, when

used, helped. Tr. 1175 (“client reports foot pain is relieved today, saying she put her brace on

properly today”); tr. 1290 (“Brace working out ok.’”). However, the Court sees no citation from

the ALJ or parties suggesting that Plaintiff failed to use the brace as recommended after

receiving one that fit well. Plaintiff’s arguments are therefore well taken, and the ALJ erred in

relying on Plaintiff’s alleged failure to follow recommended treatment.

iii. Inconsistencies with the Medical Record

An ALJ may rely on inconsistencies between a plaintiff’s testimony and the medical

record. Molina, 674 F.3d at 1112; Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)

(plaintiff’s testimony of weight fluctuation was inconsistent with the medical record). At the

hearing, Plaintiff testified that her foot “keeps swelling up continually, and [she’s] had to keep it

elevated and iced on a regular basis.” Tr. 632. When asked whether a doctor told her to elevate

her foot, she responded “Yes. Yes. A lot. Because just like another doctor, [Dr. Young] said that

I don’t want to keep swelling in my foot going too long.” Tr. 639.

The ALJ found that this testimony was inconsistent with the medical record:

Overall, the record shows that [Plaintiff’s] providers objectively noted only mild

or no swelling in the lower extremities. Also, the treatment record does not

contain any recommendation from any provider that she elevate her lower

extremities, that she ice her lower extremities, or that she reported doing so to her

providers.

Tr. 606 (citations omitted).

Plaintiff does not challenge that ALJ’s finding that the record reflects “only mild or no

swelling in the lower extremities.” Instead, Plaintiff argues only that “Dr. Stanley specifically

recommended that she continue icing her ankle” and Dr. Young opined that Plaintiff needed “to

elevate her legs six inches approximately 50 percent of a workday.” Pl. Br. 11.

The Court does not find these arguments persuasive. First, Plaintiff relies on the

following note from Dr. Stanley:

[Plaintiff’s] foot xray was normal, and her toe xray showed no evidence of

fracture. There was some mild arthritis in the toe. She should continue icing and

use the walking boot as needed if her foot or toe hurt, but she doesn't need to

buddy tape and can stop using walking boot if she wants.

Tr. 1072. Given the qualified nature of this note, and the fact that Plaintiff identifies no other

reference to icing, the Court cannot find that this single citation undermines the ALJ’s

conclusion that the record does support Plaintiff’s testimony that her foot was “swelling up

continuously” and needed to be iced regularly.

Second, the Court does not agree that Dr. Young’s opinion contradicts the ALJ’s

conclusion that “the treatment record does not contain any recommendation from any provider

that she elevate her lower extremities, that she ice her lower extremities, or that she reported

doing so to her providers.” Plaintiff relies on Dr. Young’s physical capacity statement, filled out

at the request of Plaintiff’s attorney, in which Dr. Young opined that Plaintiff would need to

elevate her lower extremities for 50% of an eight-hour workday. See tr. 1182. Plaintiff does not,

however, cite any underlying treatment records related to this opinion. In other words, there is no

evidence that Dr. Young ever recommended, during the course of the treating relationship, that

Plaintiff elevate her lower extremities. Moreover, the ALJ afforded Dr. Young’s opinion little

weight, in part because it was “highly inconsistent with [Dr.] Young’s treatment records and the

KP [Kaiser Permanente] records as a whole.” Tr. 611. In particular, the ALJ noted that “[Dr.]

Young’s treatment notes and the KP records [] do not show that she advised the claimant to

elevate her legs, or even that the claimant reported she was elevating her legs. [Dr.] Young and

KP records do not show significant swelling or erythema, but only trace or mild edema.” Tr. 611

(citations omitted). Plaintiff does not challenge the ALJ’s decision to afford the opinion little

weight. Thus, the Court cannot find that the ALJ erred in finding Plaintiff’s testimony

inconsistent with the medical record.

iv. Objective Medical Evidence

An ALJ may consider objective medical evidence in evaluating a plaintiff’s subjective

symptom testimony, so long as the ALJ does not reject such testimony solely because it is

unsubstantiated by the objective medical evidence. 20 C.F.R. § 416.929(c); Rollins v. Massanari,

261 F.3d 853, 856, 857 (9th Cir. 2001) (“Once a claimant produces objective medical evidence

of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints based

solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain[;]

. . . . While subjective pain testimony cannot be rejected on the sole ground that it is not fully

corroborated by objective medical evidence, the medical evidence is still a relevant factor in

determining the severity of the claimant’s pain and its disabling effects.” (internal quotation and

brackets omitted)); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004)

(“Graphic and expansive” pain symptoms could not be explained on objective, physical basis by

claimant’s treating physician).

Here, the ALJ found that while Plaintiff had some reduced strength in her right leg,

the record reflects grossly normal neurologic exams with no weakness. On exam,

the claimant had intact sensation and normal natural tension tests. While her gait

was at times antalgic, the record reflects that at times it was also normal, and that

range of motion other than in the right ankle was also normal.

Tr. 602 (citations omitted).

While Plaintiff acknowledges again that these “findings might be ‘mild,’” she argues that

the records consistently document “tenderness and limited function of her right foot, consistent

with [Plaintiff’s] subjective statements that her foot is often painful and interferes with her

activities.” Pl. Br. 10.4 Even if the objective medical evidence does not necessarily contradict

Plaintiff’s complaints of pain and limited mobility, the Court cannot find that the ALJ erred in

concluding that it does not support those complaints either. In other words, Plaintiff does not

identify any non-mild objective findings, and the ALJ reasonably interpreted the objective

medical evidence in the record. As the ALJ provided other valid reasons for rejecting Plaintiff’s

subjective symptom testimony, the ALJ did not err in relying on objective medical evidence

related to Plaintiff’s right foot. Accordingly, the ALJ did not err in rejecting Plaintiff’s subjective

symptom testimony related to her right foot.

b. Mental Health Testimony

Plaintiff testified that she experienced anxiety, distraction, and frustration. Tr. 600. The

ALJ discounted this testimony, finding that Plaintiff “received very conservative treatment

consisting of medication management, which has been largely successful in controlling the

claimant’s symptoms. While the record shows she experienced exacerbation in her anxiety with

stressors including homelessness and harassment by a neighbor, the record shows that her

symptoms were generally well controlled and stable.” Tr. 602. The ALJ also pointed to poor

medication adherence, and noted that

4 She also testified, at the first hearing that she has trouble balancing and walking. Tr. 56.

the record shows she rarely complained of distraction, and providers only rarely

noted she was distractible. The only notation the claimant expressed frustration in

the file is from August 2016 when she expressed frustration that her new

residence was taking so long in giving her a move in date.

Tr. 602 (citations omitted). Finally, the ALJ found that the objective medical evidence was

inconsistent with Plaintiff’s testimony. Tr. 605.

i. Objective Medical Evidence

Plaintiff first challenges the ALJ’s reliance on the objective medical evidence, which

documents normal findings “such as being pleasant and appropriately groomed, maintaining eye

contact, being oriented, having logical thought processes, and having a lack of psychosis,

delusions, disturbances, hallucinations, or suicidal ideation.” Pl. Br. 12. Plaintiff argues that

these findings do not contradict Plaintiff’s testimony that she “struggles with her attention and

memory, has chronic fatigue, low stress tolerance, and high anxiety with panic attacks, which all

make it difficult for her to maintain adequate persistence and completion of tasks.” Pl. Br. 12.

Without any explanation from the ALJ, the Court cannot see how these “normal findings” are

relevant to the mental health symptoms at issue here. The ALJ therefore erred in relying on this

objective medical evidence.

ii. Conservative and Effective Treatment

As stated above, an ALJ may rely on evidence that a plaintiff received only conservative

treatment. An ALJ may also rely on evidence of effective treatment. Orteza, 50 F.3d at 750;

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (Claimant’s testimony undermined by

the fact he responded well to conservative treatment). Here, the ALJ found that Plaintiff

“received very conservative treatment consisting of medication management, which has been

largely successful in controlling the claimant’s symptoms.” Tr. 602. The ALJ also noted that

“[w]hile the record shows she experienced exacerbation in her anxiety with stressors including

homelessness and harassment by a neighbor, the record shows that her symptoms were generally

well controlled and stable.” Tr. 602.

First, as to the conservative treatment, the ALJ found that Plaintiff “was not hospitalized

for any psychiatric treatment, she did not receive regular mental health counselling, and she

consistently denied suicidal ideation or any self-harming behavior.” Tr. 602–03.5 This district,

however, has repeatedly found that, in the context of mental health, “the ‘mere fact that a

claimant has not been admitted to a hospital on an inpatient basis’ does not mean that a claimant

received conservative treatment.” Jill C. v. Berryhill, No. 3:17-cv-01892, 2018 WL 6308728 (D.

Or. Dec. 3, 2018); Tammy L. O. v. Comm’r Soc. Sec. Admin., Case No. 3:17-cv-774-SI, 2018

WL 3090196, at *13 (D. Or. June 20, 2018); Sandberg v. Comm’r Soc. Sec. Admin., No. 3:14-cv-

00810-ST, 2015 WL 2449745 (D. Or. May 22, 2015).

Plaintiff also challenges the ALJ’s conclusion that she did not receive “regular mental

health counseling.” Specifically, Plaintiff’s attorney argues that Plaintiff “engaged in regular,

ongoing therapy and medication management for her mental health impairments.” Pl. Br. 13. In

support of this compound argument, she cites a string of page numbers (“Tr. 396-418, 424, 430-

433, 440-443, 445-450, 453-457, 482-490, 512-513, 533-535, 989-991, 1025-1056, 1079-1084,

1126-1131, 1135-1180, 1188-1197, 1271-1275, 1304-1308.”) but provides no parentheticals

explaining what, in particular, she wishes the Court to learn from these records. After reviewing

each citation, the Court finds they are largely irrelevant to the ALJ’s conclusion; while the ALJ

found that Plaintiff did not receive regular mental health counseling, the records primarily

document ongoing medication and case management. Indeed, the Court sees only three

documented counseling sessions. See tr. 1157, 1159, 1161. While there are a few additional—

5 The fact that Plaintiff “consistently denied suicidal ideation or any self-harming behavior” is

not relevant to whether Plaintiff received conservative treatment.

and vague—references to counseling scattered throughout this broad range of pages, see tr. 1040

(“now still seen in CEP for counseling”) and tr. 1304 (record noting that Plaintiff had a therapist

and psychiatrist through OHP), the Court cannot find, on these grounds, that the record does not

support the ALJ’s conclusion that Plaintiff did not receive regular mental health counseling.

Additionally, while Plaintiff argues that “[c]hanges in providers, which caused some

disruption in treatment, was largely due to changes in insurance or [] moving,” the Court finds

this argument highly speculative. While Plaintiff’s citations document changes to her insurance

and housing, the Court sees no statement in any record, or even from Plaintiff herself, that any

disruption in treatment “was largely due to changes in insurance or [] moving.” Plaintiff does not

argue that medication alone—let alone Plaintiff’s medication—is necessarily more than

conservative treatment. Thus, on this record, the Court cannot find that the ALJ erred in relying

on evidence of conservative treatment to discount Plaintiff’s mental health testimony.

As to the efficacy of treatment, Plaintiff argues that while she may have been “stable,”

she continued to report ongoing attention, communication, and anxiety symptoms. First, the

Court fails to see how Plaintiff’s allegations regarding ongoing attention and communication

symptoms are relevant to the ALJ’s finding that her anxiety symptoms were generally well

controlled and stable. Second, while the Court sees frequent references to anxiety, the Court

agrees with the ALJ that this anxiety was often mild and generally well controlled. Tr. 489

(“Some mild improvement in mood, though residual anxiety, rumination, largely 2/2 regrets

from substance use hx. Good tolerability and benefit via Celexa and Vistaril”); tr. 521 (“patient

indicates that they are not feeling down, depressed, or hopeless”); tr. 522 (“no depression,

anxiety, or agitation”); tr. 1050 (Plaintiff is “future and wellness oriented today reporting a

remission of symptoms. She reports no problems with serotonergenic symptoms or any increase

in [] sleepiness with the doxepin”); tr. 1053 (Plaintiff “has a stable euthymic mood. She is doing

well and making progress in life . . . [m]edications are well tolerated without side effects,”

mindfulness and positive thinking suggested as a way to cope with anxiety); tr. 1126 (Plaintiff

“reports doing well”); tr. 1129 (“Functioning well but feels stressed and has anxiety that goes up

and down in response to all the tasks she has to accomplish. Denies depression or SI[.]”).

Significantly, even Plaintiff’s own citations confirm that Plaintiff’s anxiety was the result

of temporary situational stressors and sufficiently controlled by a stable medication regimen. See,

e.g., tr. 487 (Plaintiff experienced situational stressors but reported that mental health and

medications were ok); tr. 500–01 (Plaintiff reported “heightened anxiety due to attempted

assault”); tr. 1129 (Plaintiff “feels stressed and has anxiety that goes up and down in response to

all the tasks she has to accomplish”), tr. 1131 (Plaintiff “appears to be doing well and remaining

functional despite a lot of stressors. She was at times anxious and distractible today, but this

seems to me to be within normal limits given the amount of things she has to do right now.”), tr.

1150 (Plaintiff reported an anxious mood and ongoing harassment), tr. 1152 (Plaintiff “has

responded well to medications over the last year and her symptoms are quite stable when she

feels safe and her external stressors are low), tr. 1163 (“Anxiety under ok control although it was

better when she was on venlafaxine.”), tr. 1169 (“She is feeling stressed out and ‘overwhelmed

by anxiety’ after her podiatrist told her that there is nothing to be done about her foot . . . she

suggested that she might try to do some more painting and perhaps some more meditation to also

help her deal with her anxiety”), tr. 1175 (Plaintiff “feels pain causes her anxiety and with pain

control she will not need venlafaxine”), tr. 1176 (“continue effective medication regimen to

manage symptoms”), tr. 1195 (Plaintiff reported “feeling increased anxiety” and wanted “small

dose of a benzo to help calm her;” PA agreed to order a few tablets of benzo “if attorney feels

taking a benzo would be helpful.”). In sum, the ALJ did not err in relying on evidence that, while

Plaintiff’s anxiety was sometimes exacerbated by situational stressors, her mental health

symptoms were generally well controlled and stable. See Menchaca v. Comm’r Soc. Sec. Admin.,

No. 6:15-cv-01470-HZ, 2016 WL 8677320, at *7 (D. Or. Oct. 7, 2016) (finding that the ALJ’s

determination that the plaintiff’s symptoms were sometimes caused by situational stressors was

reasonable and a legitimate reason to discount the plaintiff’s credibility); Chesler v. Colvin, 649

F. App'x 631, 632 (9th Cir. 2016) (finding “the record supports the ALJ’s conclusion that [the

plaintiff’s] mental health symptoms were situational, and so unlikely to persist once [the

plaintiff’s] circumstances improved”).

iii. Failure to Follow Recommended Treatment

As stated above, an ALJ may rely on an unexplained failure to follow a prescribed course

of treatment. Here, the ALJ noted that Plaintiff displayed “poor medication adherence.” Tr. 606.

Plaintiff does not dispute that the record shows some instances of poor medication adherence.

See tr. 482 (“Continues to have sporadic med adherence.”), tr. 485 (“Self d-c/d MH meds,

reasons unclear, would like to restart”). Instead, Plaintiff speculates that “her temporary struggle

with medication compliance was at the beginning of her treatment when they were trying

different medications and when she was adjusting to having a medication regimen.” Pl. Br. 11.

The Court has reviewed Plaintiff’s citations and sees no statement in the record from Plaintiff or

her doctors to this effect. The ALJ did not therefore err in relying on evidence of a failure to

follow recommended treatment.

iv. Inconsistencies with the Medical Record

As stated above, an ALJ may rely on inconsistencies between a plaintiff’s

testimony and the medical record. Here, the ALJ found that Plaintiff

provided very dramatic testimony at the hearing, which is not borne out by the

record. For example, the claimant testified to experiencing disabling fatigue.

However, the treatment record shows this as an infrequent complaint. The

claimant testified that she experienced significant distraction and secondary

frustration. However, the record shows she rarely complained of distraction, and

providers only rarely noted she was distractible. The only notation the claimant

expressed frustration in the file is from August 2016 when she expressed

frustration that her new residence was taking so long in giving her a move in date.

The record does not show any regular complaints of feeling frustrated.

Tr. 606 (citations omitted). Plaintiff does not address this point, appearing to argue only that

“[t]he overall record shows that even when considered stable, [Plaintiff] has ongoing attention,

communication, and anxiety symptoms.” Pl. Br. 13. Again, while this may be true, only citations

to “attention” are arguably relevant to the ALJ’s findings regarding Plaintiff’s inconsistent

testimony about her fatigue, distraction, and frustration. Moreover, the fact that Plaintiff may

have experienced some symptoms does not mean the ALJ erred in finding that the level of

impairment testified to at trial was inconsistent with the medical records. Indeed, in reviewing

Plaintiff’s citations,6 the Court sees only a few references to attention, concentration, or

distraction. Some of those citations suggest some level of impairment. See tr. 475 (some

difficulty concentrating); tr. 570 (trouble refocusing and shifting her attention); tr. 1150

(attention distracted); tr. 1196 (impaired attention); tr. 1275 (reported trouble concentrating).

Others, however, do not. See tr. 1223 (adequate attention/concentration); tr. 1176 (while other

boxes documenting “cognitive symptoms” checked, box for impaired attention left blank). On

this record, the Court cannot find that the ALJ erred in finding that Plaintiff “rarely complained

of distraction, and providers only rarely noted she was distractible.” Thus, the Court cannot find

6 As discussed above, Plaintiff’s method of providing string citations, without explanation, for

compound assertions of fact is decidedly unhelpful to the Court. See, e.g., Pl. Br. 13 (“[Plaintiff]

has ongoing attention, communication, and anxiety symptoms. (Tr. 472, 474-476, 487, 500-501,

518, 567-570, 989, 1053, 1129-1131, 1150, 1152, 1163-1164, 1169, 1175-1176, 1195-1196,

1219, 1223, 1272, 1274-1275, 1326-1328.)”).

that the ALJ erred in relying on inconsistencies between Plaintiff’s testimony and the medical

record.

In sum, the ALJ provided multiple clear and convincing reasons, supported by substantial

evidence in the record, for rejecting Plaintiff’s subjective symptom testimony.

II. Medical Opinion Evidence

Plaintiff also argues the ALJ improperly rejected the opinion of Dr. Causeya, an

examining physician. Social security law recognizes three types of physicians: (1) treating, (2)

examining, and (3) nonexamining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

Generally, more weight is given to the opinion of a treating physician than to the opinion of

those who do not actually treat the claimant. Id.; 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-

(2). More weight is also given to an examining physician than to a nonexamining physician.

Garrison, 759 F.3d at 1012.

If a physician’s opinion is not contradicted by another doctor, the ALJ may reject it only

for “clear and convincing” reasons supported by substantial evidence in the record. Ghanim, 763

F.3d at 1160–61. Even if a physician’s opinion is contradicted by another doctor, the ALJ may

not reject the opinion without providing “specific and legitimate reasons” which are supported

by substantial evidence in the record. Id. at 1161; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th

Cir. 2005). Here, the parties agree that the ALJ was required to provide specific and legitimate

reasons to reject Dr. Causeya’s opinion.

The ALJ gave Dr. Causeya’s opinion “little weight.” Tr. 611. Specifically, the ALJ found

that

there is no evidence she reviewed any records after 2013, while records from

2014 show the claimant’s mental health improved significantly with stable

housing and medication management. Additionally, Dr. Causeya’s opinions are

largely equivocal, as evidenced by her use of the terms “may,” “could,” and “it

was possible.” Moreover, Dr. Causeya did not offer a function-by-function

analysis of the claimant's maximum functional capacity. Her opinion the claimant

was unable to obtain or maintain gainful employment is conclusory and is not a

medical source statement, but a statement on an issue reserved to the

Commissioner of Social Security.

Tr. 611.

First, Plaintiff argues that whether Dr. Causeya reviewed the 2014 records is irrelevant,

and the 2014 records do not, in fact, document significant improvement. The Court does not

agree. While Plaintiff cites two records from 2014 showing that Plaintiff continued to present

with a depressed/anxious mood, tr. 482, tr. 1000 (“positive for depression,” but also presented

with a “normal mood and affect.”), other records support the ALJ’s conclusion, tr. 491 (“no

depression, anxiety, or agitation” on mental status exam), tr. 521 (“patient indicates they have

interested and pleasure in doing things;” “they are not feeling down, depressed, or hopeless”), tr.

999 (“Experiences depression occasionally. When she is feeling down she likes to paint.”).

“Where the evidence is susceptible to more than one rational interpretation, the ALJ’s decision

must be affirmed.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quotation omitted).

Second, Plaintiff challenges the ALJ’s finding that “Dr. Causeya’s opinions are largely

equivocal, as evidenced by her use of the terms ‘may,’ ‘could,’ and ‘it was possible.’” Plaintiff

argues that

[w]hile there are some instances in the 14 pages of her opinion in which Dr.

Causeya used terms such as “may,” “could,” and “possible,” she provided a

detailed assessment of [Plaintiff’s] limitations and included a functional capacity

assessment that provided specific limitations in each area of mental functioning.

Thus, the inclusion of a few less precise limitations does not undermine her

overall opinion.

Pl. Br. 18 (citation omitted). The Court agrees.

An ALJ is not required to incorporate limitations phrased equivocally into the residual

functional capacity. Valentine, 574 F.3d at 691–92; see also Griffith v. Colvin, No. 3:13-cv-

00585-HZ, 2014 WL 1303102, *5, n.3 (D. Or. Mar. 30, 2014) (doctor’s statements that claimant

may have difficulty completing work without interference from her mental impairments did not

represent work-related limitations of function that needed to be reflected in the residual

functional capacity). Here, however, while Dr. Causeya certainly made some equivocal and

speculative statements within the narrative section of her evaluation—for example, that Plaintiff

“may have some difficulty interacting with men in the work environment”—she also provided a

detailed and non-equivocal functional capacity assessment. See tr. 564–76. This is not, therefore,

a situation in which the ALJ may disregard a medical report because it does “not show how [a

claimant’s] symptoms translate into specific functional deficits which preclude work activity.”

Morgan, 169 F.3d at 601. Thus, while the ALJ may have been able to discount certain equivocal

statements, the Court cannot find that this is a specific and legitimate reason to reject the whole

of Dr. Causerya’s opinion.7

Finally, while Plaintiff concedes that Dr. Causeya’s statement that Plaintiff is unable to

obtain or maintain gainful employment is an issue reserved for the Commissioner, she argues

that this is not, alone, a valid reason to reject other parts of the opinion that do not speak to issues

reserved for the Commissioner. The Court agrees.

While the ALJ erred in part, this error was harmless. Because the ALJ provided one

specific and legitimate reason to afford Dr. Causeya’s opinion little weight, the Court upholds

the ALJ’s decision. See Carmickle v. Comm’r Soc. Sec Admin., 533 F.3d 1155 (9th Cir. 2009)

(finding error harmless when the ALJ provided alterative reasons that were supported by

substantial evidence and the error did not negate the validity of the ALJ’s ultimate conclusion).

7 Because Dr. Causeya completed this functional capacity assessment, the ALJ also clearly erred

in concluding that “Dr. Causeya did not offer a function-by-function analysis of the claimant’s

maximum functional capacity.” Defendant does not argue this point.

CONCLUSION

The decision of the Commissioner is affirmed.

IT IS SO ORDERED.

Dated: _________J_u_l_y_ 8_,_ _2_0_2_0_______________.

MARCO A. HERNÁNDEZ

United States District Judge