Kachel v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KELSIE K.,1

Plaintiff, Civ. No. 6:20-cv-01276-MC

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

(“Commissioner”) denying her application for supplemental security income (“SSI”) under Title

XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and

1383(c)(3).

Plaintiff alleges that the Administrative Law Judge (“ALJ”) erred by (1) improperly

rejecting Plaintiff’s subjective symptom testimony, and (2) improperly assessing the opinions of

agency consultants Dr. Friedburg and Dr. South. Because the Commissioner’s decision is based

on proper legal standards and supported by substantial evidence, the Commissioner’s decision is

AFFIRMED.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial

of the last name of the non-governmental party.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for SSI on August 17, 2017, alleging disability since December 1, 2015.

Tr. 67. Her claim was denied initially and upon reconsideration. Tr. 102, 109. Plaintiff

appeared before the Honorable Mark Triplett on June 28, 2019. Tr. 27–66. ALJ Triplett denied

Plaintiff’s claim on July 16, 2019. Tr. 10–23. Plaintiff sought review from the Appeals Council

and was denied, rendering the ALJ’s decision final. Pl.’s Br. at 2, ECF No. 21. Plaintiff now

seeks judicial review of the ALJ’s decision.

Plaintiff is 29 years old and was 24 on her alleged onset date. See Tr.22. Plaintiff has a

high school diploma and past relevant work experience as a retail cashier and a nursery school

attendant. Tr. 21. Plaintiff alleges disability from trauma/PTSD, depression, obstructive sleep

apnea, obesity, anxiety, and dorsalgia. Tr. 15.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on

proper legal standards and the legal findings are supported by substantial evidence in the record.

See 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004); Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). “Substantial evidence is ‘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.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.

2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether

substantial evidence exists, the court reviews the administrative record as a whole, weighing both

the evidence that supports and that which detracts from the ALJ’s conclusion. Davis v. Heckler,

868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.

1986)). “‘If the evidence can reasonably support either affirming or reversing,’ the reviewing

court ‘may not substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of

Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715,

720–21 (9th Cir. 1996)).

DISCUSSION

The Social Security Administration utilizes a five-step sequential evaluation to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden

of proof rests on the claimant for steps one through four, and on the Commissioner for step five.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d

1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that the

claimant can make an adjustment to other work existing in significant numbers in the national

economy after considering the claimant’s residual functional capacity (“RFC”), age, education,

and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this

burden, then the claimant is considered disabled. Id.

I. Subjective Symptom Testimony

Plaintiff contends the ALJ erred in discounting her subjective statements about her

mental limitations. To determine whether a claimant’s testimony about subjective pain or

symptoms is credible, an ALJ performs a two stage analysis. Trevizo v. Berryhill, 871 F.3d 664,

678 (9th Cir. 2017); 20 C.F.R. § 416.929. First, the claimant must produce objective medical

evidence of an underlying impairment that could reasonably be expected to produce the

symptoms alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090; 1102 (9th Cir. 2014);

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Second, absent affirmative evidence

that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for

discounting the claimant’s testimony regarding the severity of the symptoms. Trevizo, 871 F.3d

at 678; Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make

findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did

not arbitrarily discredit the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493

(9th Cir. 2015). The Ninth Circuit demands more than a summary of the medical evidence and

generic, high-level reasons why a claimant’s allegations conflict with that evidence. Lambert v.

Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). The Ninth Circuit “requires the ALJ to specifically

identify the testimony she or he finds not to be credible and . . . explain what evidence

undermines that testimony.” Id.; Brown-Hunter, 806 F.3d at 494.

Clear and convincing reasons for rejecting a claimant’s testimony “include conflicting

medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the

claimant’s testimony or between her testimony and her conduct, daily activities inconsistent with

the alleged symptoms, and testimony from physicians and third parties about the nature, severity

and effect of the symptoms” about which the claimant complains. Bowers v. Astrue, No. 11-cv-

583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti, 533 F.3d at 1040);

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013).

In some circumstances, an ALJ may reject subjective complaints where the claimant's

“statements at her hearing do not comport with objective medical evidence in her medical

record.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). However,

especially in the mental health context, an ALJ may not cherry-pick isolated instances of

favorable psychological symptoms when the record as a whole reflects long-standing

psychological disability. See Ghanim, 763 F.3d at 1164; see also Garrison v. Colvin, 759 F.3d

995, 1017 (9th Cir. 2014). Moreover, a lack of objective evidence may not be the sole basis for

rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th

Cir. 2001).

At her hearing, Plaintiff testified that she worked part-time at the Boys and Girls Club but

would call in at least once a week and tell them to find a replacement because her depression or

panic attacks kept her from being able to work. Tr. 38, 41. She testified that she worked at

Kmart for one-and-one-half years but often would leave early for no reason, or because the

environment stressed her out, a customer was unkind, or it was just too busy and she got anxious.

Tr. 40. Plaintiff also testified that she did not finish college due to her mental health conditions

despite getting accommodations. Tr. 41-42. Plaintiff testified that her mental health conditions

cause her to “freak out” in a job situation, even if she was just volunteering, because of the

pressure and worry that she would let people down. Tr. 55.

On her function report, Plaintiff noted that on her worst days she is unable to clean, do

laundry or wash dishes. Tr. 212. She reported that when she was depressed, it was “hard to find

joy or to want to do anything.” Tr. 213. Plaintiff noted that her mental illness affects her

memory (“hard to retain things”), completing tasks (“too anxious to complete”), concentration

(“anxious”), understanding (“get overwhelmed”), and following instructions (“too much

pressure, anxiety attack”). Tr. 214. Finally, she reported that she has panic attacks in stressful

situations or when confronted with changes in routine. Tr. 215.

The ALJ determined 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. 18. The ALJ discounted Plaintiff’s subjective complaints

because they conflicted with the objective medical evidence in her medical record. Tr. 19.

Specifically, the ALJ observed that “[c]onsistently throughout 2016 and 2017, her mental status

examinations were normal aside from a few times where she presented with constricted affect,

irritability, and distractibility.” Id. The ALJ noted that Plaintiff described developing new social

relationships and a strong social support network. Id. The ALJ noted that by 2018, Plaintiff was

having “more success trusting herself, reported employed coping strategies, and continued to

have normal mental status examinations.” Id. Finally, the ALJ found that in 2018-2019,

Plaintiff reported she was “doing really good” and her medical providers found that her anxiety,

depression, and PTSD were all stable, controlled, and without problems, or side effects. Id. As

for inconsistencies in other parts of the record, the ALJ noted that Plaintiff has never had any

problems getting along with family, friends, neighbors, or others. Id. The ALJ remarked that

Plaintiff plays video games, reads, writes, paints, shops in stores once a week, has the ability to

handle money, and spends time with others daily. Id.

An independent review of the record establishes that Plaintiff's subjective complaints are

not supported by the record. The earliest progress report in the record shows that Plaintiff

received treatment for anxiety and depression in September 2016 (Tr. 552) that continued

through October 2018. Tr. 778. During that time, Plaintiff attended therapy on a mostly weekly

basis. As reported by the ALJ, Plaintiff’s mental status examinations were more often normal

(Tr. 414, 420, 425, 453, 463, 496, 524, 537, 641, 773, 779, 782, 787, 792, 797, 871, 874, 885,

896, 920, 925, 950, 963) than indicative of anxiety (Tr. 410, 443, 776, 880, 893, 905, 908, 911,

914, 938, 942, 946, 959) and depression (Tr. 877, 890, 893, 899, 917, 930, 934, 938, 946, 959).

The medical records show that while Plaintiff had symptoms of depression and anxiety, the

symptoms did not cross the threshold of major depression or generalized anxiety. Tr. 415. The

record also shows that Plaintiff’s symptoms were well controlled with medications. Tr 415, 523.

In August 2017, Plaintiff reported that “things are pretty good” and reported the resolution of

depressive symptoms over the past month with her medication. Tr. 424. Similarly, in February

2017, she identified a reduction in her depression to 1/10 and anxiety to 2/10, although reported a

continuation of her PTSD symptoms, though they too were reduced. Tr. 500. In December

2017, Plaintiff reported that her PTSD, depressive symptoms, and anxiety were controlled. Tr.

640.

On her function report, Plaintiff reported her mental illness affected her memory,

concentration, understanding, and her ability to follow instructions and complete tasks. Tr. 214.

However, the medical records show Plaintiff had intact memory and no impairment with

attention or concentration, (Tr. 410, 414, 420, 425, 443, 453, 463,496, 524, 537, 641, 776, 779,

782, 787, 792, 797, 874, 877, 880, 885, 890, 893, 896, 902, 905, 908, 911, 914, 917, 920, 925,

934, 942, 946, 950, 955, 959, 963) except on three occasions where her memory was intact but

had limited long term memory (Tr. 726, 874, 877) and six occasions where her attention was

typical but distractable. Tr. 773, 871, 899, 920, 930, 938.

Because the ALJ provided “specific, clear and convincing reasons” for finding Plaintiff

less-than credible regarding the extent of her limitations, the ALJ did not err in discounting

Plaintiff’s testimony regarding those limitations.2 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009) (quoting Smolen v. Chater, 80 F.3d 1273,1282 (9th Cir. 1996)).

II. Medical Evidence

Plaintiff argues that the ALJ failed to evaluate properly the medical opinions of agency

consultants Drs. Friedburg and South. Specifically, Plaintiff contends the ALJ erred by not

2 The ALJ also noted that although Plaintiff submitted a function report, “she did not allege any problems with her

physical functioning. Rather, she reported working out, preparing meals, cleaning the home including changing the

litter box for her cat, doing arts and crafts, performing all personal care activities without issue, and going shopping

in stores.” Tr. 18. The lack of any physical limitations in her function report contrasted sharply with Plaintiff’s

testimony at the hearing. There, Plaintiff testified that back pain prevents Plaintiff from sitting or standing for more

than 30 minutes before needing time to lay down. Tr. 46, 54.

considering the consistency factor in determining the persuasiveness of the doctors’ opinions.

Pl.’s Br. at 5-7, ECF No. 21.

Because Plaintiff filed her application after March 27, 2017, revised regulations

regarding the evaluation of medical source opinions apply to her claim. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017)

(codified at 20 C.F.R. pts. 404 & 416)). The revised rules provide that the Social Security

Administration will evaluate medical opinions according to the following factors: supportability;

consistency; relationship with the claimant; specialization; and other factors such as the medical

source's familiarity with other evidence in the record or with disability program requirements.

20 C.F.R. § 416.920c(c)(1)-(5). “Supportability” and “consistency” are the most important

factors to be considered when evaluating the persuasiveness of medical opinions and, therefore,

the ALJ is required to explain how both factors were considered. See 20 C.F.R. §

404.1520c(b)(2). “Supportability means the extent to which a medical source supports the

medical opinion by explaining the ‘relevant . . . objective medical evidence.’” Woods v.

Kijakazi, 32 F.4th 785,791-92 (citing 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the

extent to which a medical opinion is ‘consistent . . . with the evidence from other medical

sources and nonmedical sources in the claim.’” Woods, 32 F.4th at 792 (citing 20 C.F.R. §

404.1520c(c)(2)).

The new regulations require the ALJ to articulate how persuasive the ALJ finds the

medical opinions and to explain how the ALJ considered the supportability and consistency

factors. 20 C.F.R. § 404.1520c(a), (b); 20 C.F.R § 416.920c(a),(b); see Tyrone W. v. Saul, No.

3:19-cv-01719-IM, 2020 WL 6363839, at *7 (D. Or. Oct. 28, 2020). Additionally, “[t]he ALJ

may but is not required to explain how other factors were considered, as appropriate, including

relationship with the claimant (length, purpose, and extent of treatment relationship; frequency of

examination); whether there is an examining relationship; specialization; and other factors, such

as familiarity with other evidence in the claim file or understanding of the Social Security

disability program's policies and evidentiary requirements.” Linda F. v. Comm'r Soc. Sec.

Admin., No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020).

The ALJ’s discussion regarding Dr. Friedburg’s and Dr. South’s opinions consists of two

paragraphs:

As for the opinion evidence, the State agency’s initial psychological consultant,

Irmgard Friedburg, PhD., and Susan South, PsyD., found the claimant could

perform simple tasks and follow simple instructions, and could have occasional

contact with the public. Dr. South added that the claimant could adapt to simple

routine changes in the workplace and could have no more than occasional, casual

contact with others. They based their opinions on evidence of anxiety and

depression somewhat controlled with medication, constricted affect, normal

memory, normal concentration, and motor function with agitation.

The undersigned finds the opinion of Dr. Friedburg and Dr. South persuasive.

The limitation to simple tasks is supported by some sporadic findings of

distractibility and preoccupations, indicating the claimant has an impaired ability

to focus on more complex tasks. The limitation to occasional interaction with

coworkers and the public is supported by her occasional irritability and her

occasional avoidant eye contact. At the same time, there is no evidence to support

a limitation to simple changes in the workplace, as she has repeatedly presented

with appropriate and neat appearance, never had hygiene issues, had intact insight

and judgment, and successfully employed new coping skills and techniques to

manage her symptoms. Likewise, self-reports of her ability to get along with

authority figures, in combination with the evidence of cooperative and pleasant

attitude toward her providers, shows that the claimant’s ability to work with

supervisors is intact.

Tr. 19-20 (citations omitted.)

Plaintiff’s argument that the ALJ erred by not explicitly using the word “consistent” in

the above paragraphs is meritless. When viewed in the proper context, it is clear to this Court

that the ALJ viewed the two opinions with respect to their consistency with the rest of the record.

Earlier in the decision, the ALJ pointed to medical records indicating Plaintiff had an intact and

normal memory. Tr. 16. The ALJ also pointed to evidence in the record indicating that Plaintiff

achieved more than marginal adjustment. Tr. 17. Additionally, in the paragraph directly

preceding the ALJ’s discussion of the opinions of Doctor Friedburg and Doctor South, the ALJ

noted:

Turning to the medical record, the claimant has been engaged in treatment for

anxiety and depressive symptoms since 2016. Consistently throughout 2016 and

2017, her mental status examinations were normal aside from a few times where

she presented with constricted affect, irritability, and distractibility. The claimant

described developing new social relationships and developing a “strong social

support network.” By 2018, the claimant was having more success trusting

herself, reported employing coping strategies, and continued to have normal

mental status examinations. She reported “doing really good” and her providers

found that her anxiety, depression, and PTSD were all stable, controlled, and

without problems or side effects throughout 2018 and 2019.

Tr. 19 (citations omitted).

As noted above, “[c]onsistency means the extent to which a medical opinion is

‘consistent . . . with the evidence from other medical sources and nonmedical sources in the

claim.’” Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(c)(2)). The ALJ gave weight to

the opinions by specifically pointing to evidence in the record consistent with the opinions.

Additionally, the ALJ found additional restrictions were not justified because such restrictions

lacked support in the medical record. The ALJ need not recite “magic words” in crediting or

rejecting a medical opinion. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“As a

reviewing court, we are not deprived of our faculties for drawing specific and legitimate

inferences from the ALJ’s opinion.”). Because the ALJ clearly viewed the opinions in light of

their support from the record as a whole, the fact that the ALJ did not explicitly find the opinions

were “consistent” with the medical records is meaningless.

In discussing the persuasiveness of the agency doctors’ opinions, the ALJ articulated the

ways

CONCLUSION

The ALJ’s decision is free of legal error and supported by substantial evidence.

The Commissioner’s final decision is therefore AFFIRMED.

IT IS SO ORDERED.

DATED this 5th day of December, 2022.

/s/ Michael McShane

Michael J. McShane

United States District Judge