Dunning v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DIRK D.,1 No. 6:20-cv-1938-MO

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

MOSMAN, District Judge:

This matter comes before me on Plaintiff Dirk D.’s Complaint [ECF 1] against Defendant

Commissioner of the Social Security Administration. For the reasons given below, I AFFIRM

the Commissioner’s decision and DISMISS this case.

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

the nongovernmental party in this case.

PROCEDURAL BACKGROUND

On July 28, 2017, Plaintiff applied for Disability Insurance Benefits (“DIB”) under Title

II of the Social Security Act, alleging disability beginning February 16, 2017. Tr. 222-28. The

Social Security Administration (“SSA”) denied his claim initially and upon reconsideration. Tr.

157-61, 165-67. Plaintiff appeared and testified at a hearing held on September 10, 2019, before

Administrative Law Judge (ALJ) Cynthia Rosa. Tr. 91-128. On November 13, 2019, the ALJ

issued a decision finding that Plaintiff had not been under a disability at any time from the

alleged onset date through the date of the decision. Tr. 12-29. Plaintiff filed an appeal, and the

Appeals Council denied review. Tr. 1-7.

THE ALJ’S FINDINGS

At step one, the ALJ found that Plaintiff engaged in substantial gainful activity (SGA)

from February through July 2017, but not at any other time since the alleged onset date. Tr. 17.

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

bilateral conjunctivitis and uveitis, and ankylosing spondylitis. Tr. 17. At step three, the ALJ

found no impairment that met or equaled the severity of any impairment listed in 20 C.F.R. Part

404, Subpart P, Appendix 1. Tr. 18. The ALJ assessed Plaintiff’s residual functional capacity

(“RFC”) to:

perform medium work as defined in 20 CFR 404.1567(c) except: He can

frequently climb ramps and stairs, occasionally climb ropes, ladders, and

scaffolds; he can frequently stoop, occasionally crouch, crawl, and kneel; he can

do occasional overhead work bilaterally; he should avoid concentrated exposure

to hazards and to lighting above a normal, indoor office light level.

Tr. 18.

At step four, the ALJ determined that Plaintiff was able to perform past relevant work as

a chemical engineer/nuclear engineer. Tr. 23. Alternatively, at step five, the ALJ determined that

there are jobs that exist in significant numbers in the national economy that the claimant can

perform such as agricultural produce packer, industrial cleaner, and hospital cleaner. Tr. 25. The

ALJ therefore found Plaintiff not disabled. Tr. 25.

LEGAL STANDARD

Courts must uphold the ALJ’s decision if it “was supported by substantial evidence and

based on proper legal standards.” Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Substantial

evidence is “more than a mere scintilla,” and means only “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,

1150 (2019) (internal quotation marks omitted). When “evidence is susceptible of more than one

rational interpretation ... the ALJ’s conclusion ... must be upheld.” Burch v. Barnhart, 400 F.3d

676, 679 (9th Cir. 2005). Errors in the ALJ’s decision do not warrant reversal if they are

harmless. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).

DISCUSSION

Plaintiff raises four issues with the ALJ’s decision. Plaintiff argues the ALJ erred by (1)

erroneously discounting his symptom testimony, (2) erroneously discounting lay witness

testimony, (3) improperly rejecting relevant medical opinions, and (4) providing incomplete

hypotheticals to the vocational expert (VE) at step five. I address these issues in turn.

I. Subjective Symptom Testimony

The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL

5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom

evaluation. Molina v. Astrue, 674 F.3d 114, 1112 (9th Cir. 2012) (superseded on other grounds).

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.”

Id. (internal quotations omitted). 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.” Id.

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

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “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.”).

At the hearing, Plaintiff testified that he has a sensitivity to LED lights and had to retire

early from his job because the building he worked in had recently installed lights that caused eye

symptoms. Tr. 97. Plaintiff explained he has a limited ability to use computers because of the

light they emit. Tr. 98. He stated that the only treatment for Plaintiff’s eye condition is to avoid

exposure to LED, bright, or flickering lights. Tr. 99. Plaintiff described attending a political

gathering about once per month and traveling to Virginia twice a year. Tr. 100. He is able to

work in his garden in short spurts because of his physical limitations from back pain. Tr. 101.

Plaintiff estimated he could sit for 15 to 30 minutes. Tr. 104. Plaintiff’s uveitis causes eye pain,

headaches, and tinnitus. Tr. 106. He has difficulty looking up or from side to side as a result of

his neck pain. Tr. 108. Plaintiff has trouble squatting. Tr. 109. He estimated he could stand for 30

minutes. He is unable to reach overhead with his right arm. Plaintiff can walk for a mile or two

and then must rest. Tr. 110. He does not drive at night. Tr. 112. He described taking a trip to

Montana on one occasion, but had to stop every 2 hours along the way. Tr. 113.

The ALJ found Plaintiff’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms and did not identify evidence of malingering. Tr. 20.

However, the ALJ concluded that Plaintiff’s statements concerning the intensity, persistence and

limiting effects of his conjunctivitis symptoms were not entirely consistent with the medical

evidence and other evidence in the record. Tr. 20. Specifically, the ALJ found Plaintiff’s

symptom allegations were inconsistent with his improvement with treatment (or subsequent

failure to follow treatment recommendations),2 and that Plaintiff’s daily activities conflicted with

his symptom allegations. Tr. 20.

A. Improvement with Treatment & Failure to Follow Treatment

An ALJ may reject a claimant’s symptom testimony if that testimony is contradicted by

evidence in the medical record. Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1161

(9th Cir. 2008). If the record shows a claimant’s symptoms have improved with treatment, that

improvement is “an important indicator of the intensity and persistence of ... symptoms.” 20

C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The Ninth Circuit has held that “evidence of medical

treatment successfully relieving symptoms can undermine a claim of disability.” Wellington v.

Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). Additionally, an ALJ may consider a claimant’s

2 Defendant also proffers the additional rationale that “Plaintiff’s complaints [of vision

impairments] did not line up with his medical records.” Def. Br., ECF No. 16 at 4. Although the

ALJ obliquely references the fact that “[t]he medical record does not support the severity of

claimant’s alleged limitations,” the ALJ did not point to any objective medical evidence that

clashed with Plaintiff’s testimony outside of his history of successful treatment. Tr. 20. The

Court is constrained to review only “the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d

871, 874 (9th Cir. 2003). Because the ALJ did not rely on conflict with objective medical

evidence as a reason to discount Plaintiff’s symptom testimony, the Court will not consider it on

review.

unexplained or inadequately explained failure to follow a prescribed course of treatment.

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). “[I]n order to get benefits, an

individual must follow treatment prescribed by his or her physician if the treatment can restore

the ability to work, unless the individual has an acceptable reason for failing to follow the

prescribed treatment.” Orn v. Astrue, 495 F.3d 625, 636-37 (9th Cir. 2007). Acceptable reasons

for failing to follow prescribed treatment include the treatment being contrary to the claimant’s

religion, the fact that similar treatment has been tried in the past with unsuccessful results, the

recommended treatment being of great magnitude or unusual nature, or that the treatment would

involve amputation of an extremity. 20 C.F.R. §§ 404.1530, 416.930.

The ALJ reasonably concluded that Plaintiff’s vision problems improved with treatment,

which undermined his hearing testimony. At the hearing, Plaintiff explained that, beginning in

early 2017, his conjunctivitis symptoms began to worsen. Tr. 97. He testified that he had to retire

early from his job because the building installed LED lights, and that he had limited ability to use

computers because of the light they emit. Tr. 98. He shared that “there’s no treatment available

for it,” and the only thing that works is to avoid exposure to LED, bright, or flickering lights. Tr.

99. The ALJ compared these allegations to Plaintiff’s medical history, however, and found it did

not match up with Plaintiff’s allegations. Tr. 23-24. For example, in February 2017, the month he

allegedly became disabled, Plaintiff told an ophthalmologist that “with the use of topical steroids

his symptoms abated.” Tr. 465. “He has used topical steroids for many years,” the doctor wrote,

“and when he has a flare up of uveitis the medication is quickly effective, by his estimate.” Tr.

465. While the doctor noted that a change in lighting might help, he added that when Plaintiff

had symptom recurrences, “they historically have been treated effectively.” Tr. 469.

Furthermore, even though medication improved Plaintiff’s vision issues, he declined to use it. Tr.

20. In March 2017, Plaintiff’s provider offered “potential treatment to prevent [his] flares if they

are particularly bothersome,” including clinical trials. Tr. 495. He declined treatment for, light

sensitivity, however, telling one provider that “[h]e is not interested in any medications, such as

Lamictal for photophobia or triptan for headaches.” Tr. 528, 530. Instead, Plaintiff told the

Agency he used “plant materials, herbs, vitamins & minerals” to deal with his conditions. Tr.

272, 318. The improvement Plaintiff experienced with treatment, and his refusal to entertain

further medical treatment at the suggestion of his doctors, provided a clear and convincing

reason, supported by substantial evidence for the ALJ to discount Plaintiff’s symptom testimony

about his difficulty with LED lighting.

B. Daily Activities

The ALJ also discounted Plaintiff’s subjective symptom testimony because it was

inconsistent with his daily activities. Tr. 23. Activities of daily living can form the basis for an

ALJ to discount a claimant’s testimony in two ways: (1) as evidence a claimant can work if the

activities “meet the threshold for transferable work skills,” or (2) where the activities “contradict

[a claimant’s] testimony.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The relevant

regulations require an ALJ to consider a claimant’s daily activities when evaluating subjective

symptom statements. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). The Ninth Circuit has

even found such routine activities as playing video games, using public transportation, and

preparing meals to undercut a claimant’s testimony of disabling limitations. Ahearn v. Saul, 988

F.3d 1111, 1117 (9th Cir. 2021). The ALJ found Plaintiff’s ability to carry on with many normal

activities of daily life like attending the theater, shopping, and going out with friends undermined

his testimony about light sensitivity. Tr. 20.

The ALJ reasonably concluded that several of Plaintiff’s daily activities conflicted with

his testimony about vision symptoms. To discount a Plaintiff’s testimony, and ALJ must cite

daily activities that “meet the threshold for transferable work skills” or “contradict [a claimant’s]

testimony.” Orn, 495 F.3d at 639. The ALJ contrasted Plaintiff’s ability to “attend[] the theater,

shop in stores for groceries, and go[] out to eat with friends” with his testimony about otherwise

needing to avoid exposure to LED, bright, or flickering lights. Tr. 99. The ALJ made specific

references to the record when juxtaposing these activities--which likely expose Plaintiff to the

kinds of light he professes to avoid--with Plaintiff’s hearing testimony. Tr. 20 (citing Tr. 102,

269-70). The ALJ also noted that, for several months after his alleged disability onset date,

Plaintiff worked in an office that had LED lighting. Tr. 97. The ALJ found Plaintiff’s ability to

tolerate that lighting for several months undermined his allegations about needing to completely

avoid it. Tr. 20. In sum, this was another clear and convincing reason for the ALJ to rely upon to

discount Plaintiff’s testimony about visual impairments.

II. Lay Witness Testimony

“Lay testimony as to a claimant’s symptoms is competent evidence that the Secretary

must take into account.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citation

omitted); 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) (“In evaluating the intensity and

persistence of your symptoms, we consider all of the available evidence from your medical

sources and nonmedical sources about how your symptoms affect you.”). Under the 2017

regulations, the ALJ is not “required to articulate how [they] considered evidence from

nonmedical sources” using the same criteria required for the evaluation of medical sources. 20

C.F.R. §§ 404.1520c(d), 416.920c(d).

The ALJ must give reasons “germane to the witness” when discounting the testimony of

lay witnesses. Valentine, 574 F.3d at 694. But the ALJ is not required “to discuss every witness’s

testimony on an individualized, witness-by-witness basis.” Molina, 674 F.3d at 1114, superseded

on other grounds by 20 C.F.R. § 404.1502(a). If the ALJ gives valid germane reasons for

rejecting testimony from one witness, the ALJ may refer only to those reasons when rejecting

similar testimony by a different witness. Id. Additionally, where “lay witness testimony does not

describe any limitations not already described by the claimant, and the ALJ’s well-supported

reasons for rejecting the claimant’s testimony apply equally well to the lay witness testimony,”

any error by the ALJ in failing to discuss the lay testimony is harmless. Id. at 1117, 1122

Eight of Plaintiff’s friends and former co-workers submitted questionnaires or letters

describing Plaintiff’s difficulty with his vision and being exposed to LED lighting. Tr. 359-92.

These statements all directly tracked Plaintiff’s testimony about difficulty with bright or

flickering lights, and headaches or other symptoms that Plaintiff suffers as a result. Tr. 359-92.

The ALJ provided specific, germane reasons to discount the lay witness testimony, which

mirrored Plaintiff’s own. Where lay witness testimony does not describe any limitations not

already described by the claimant, “the ALJ’s well-supported reasons for rejecting the claimant’s

testimony apply equally well to the lay witness testimony.” Molina, 674 F.3d at 1122. Here, the

ALJ repeated the clear and convincing reasons for discounting Plaintiff’s self-reports, discussed

above, when considering the similar statements from Plaintiff’s friends. Tr. 23. These were

sufficiently specific, germane reasons for discounting this testimony, and the ALJ’s decision to

do so was supported by substantial evidence in the record.

III. Medical Opinion Evidence

For disability claims filed on or after March 27, 2017, the ALJ no longer “weighs”

medical opinions but instead determines which are most “persuasive.” 20 C.F.R. §§

404.1520c(a). The 2017 regulations eliminated the hierarchy of medical opinions and state that

the agency does not defer to any particular medical opinions, even those from treating sources.

Id.; see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security

regulations are clearly irreconcilable with our caselaw according special deference to the

opinions of treating and examining physicians on account of their relationship with the

claimant.”). Under the 2017 regulations, the ALJ primarily considers the “supportability” and

“consistency” of the opinions in determining whether an opinion is persuasive. 20 C.F.R. §

404.1520c(c). Supportability is determined by whether the medical source presents explanations

and objective medical evidence to support their opinions. Id. § 404.1520c(c)(1). Consistency is

determined by how consistent the opinion is with evidence from other medical and nonmedical

sources. Id. § 404.1520c(c)(2).

An ALJ may also consider a medical source’s relationship with the claimant by looking

at factors such as the length, purpose, or extent of the treatment relationship, the frequency of the

claimant’s examinations, and whether there is an examining relationship. Id. § 404.1520c(c)(3).

An ALJ is not, however, required to explain how she considered those secondary medical factors

unless she finds that two or more medical opinions about the same issue are equally well-

supported and consistent with the record but not identical. Id. § 404.1520c(b)(2-3).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the

medical opinions” and “explain how [they] considered the supportability and consistency

factors.” Id. § 404.1520c(b). The court must, moreover, continue to consider whether the ALJ’s

analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); Woods, 32 F.4th at 792

(“Even under the new regulations, an ALJ cannot reject an examining or treating doctor’s

opinion as unsupported or inconsistent without providing an explanation supported by substantial

evidence.”). Id.

A. Dr. Collin Blattner

On October 21, 2017, Dr. Collin Blattner examined Plaintiff and gave his opinion that

Plaintiff had ankylosing spondylitis, history of Reiters disease, acute LED light sensitivity, and

history of uveitis. Dr. Blattner opined Plaintiff had “significant documentation that he will need

to be removed from environments with LED, fluorescent lights, and bright lights due to his

condition.” Tr. 524. Dr. Blattner opined that Plaintiff also had evidence of severe range of

motion loss in his neck. Dr. Blattner opined Plaintiff could stand for 10 to 15 minutes at a time,

walk 1 to 2 miles at a time, and sit without limitation. Plaintiff could not look up due to his

severe range of motion deficit in his neck. Tr. 524. Dr. Blattner opined Plaintiff should avoid any

environment with LED, fluorescent lights, and bright lights. Tr. 524.

The ALJ found Dr. Blattner’s opinion to be “mostly persuasive,” but rejected the

limitation to standing for 10 to 15 minutes, the limitation on looking up, and opinion about the

extent of Plaintiff’s light sensitivity. The ALJ stated that this was because Plaintiff testified that

he could walk for 1 to 2 miles at a time and because Plaintiff testified that he could occasionally

help with political gatherings involving standing and holding a sign. The ALJ then cited

Plaintiff’s ability to travel to Virginia a couple of times a year, go to the theater with friends, and

do yoga. The ALJ also asserted the doctor based his opinion on Plaintiff’s subjective complaints

rather than objective medical evidence because there was no testing to show Plaintiff’s response

to various types of lighting. Tr. 21.

The ALJ sufficiently considered both the supportability and consistency of Dr. Blattner’s

opinion. The supportability factor looks to the relevant objective medical evidence—that is,

clinical signs and diagnostic findings, see 20 C.F.R. §§ 404.1502(c), (f), (g)—and the supporting

explanations a medical source provides for their opinions. 20 C.F.R. § 404.1520c(c)(1). “An ALJ

is not required to take medical opinions at face value, but may take into account the quality of

the explanation” when evaluating a medical opinion. Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir.

2020). The consistency factor requires an ALJ to evaluate an opinion’s persuasiveness in relation

to its consistency with evidence from other sources. 20 C.F.R. §§ 404.1520c(c)(2),

416.920c(c)(2); Woods, 32 F.4th at 792. In terms of supportability, the ALJ noted that despite

Dr. Blattner’s statement that Plaintiff could not be under LED lights, Dr. Blattner did not

perform any testing that supported that theory. Tr. 21. In fact, Plaintiff’s eye testing was

unremarkable and Dr. Blattner merely noted that light seemed to bother him. Tr. 518. Plaintiff

counters that other doctors’ findings support Dr. Blattner’s conclusion that Plaintiff should avoid

exposure to LED lighting. Pl. Reply, ECF No. 17 at 3-4. But as the ALJ noted, these other

medical opinions were unpersuasive, lacked support from objective medical evidence, and

Plaintiff does not challenge the ALJ’s conclusion that these other medical reports were

unfounded. See Tr. 21-22. Moreover, in terms of consistency, the ALJ found Dr. Blattner’s

statements about Plaintiff being able to stand for only 10 to 15 minutes and not being able to

look up conflicted with evidence showing that that Plaintiff could walk up to 9 miles a day,

traveled out of state, went to the theater, did yoga, and went to political gatherings. Tr. 99-100,

110, 270. Plaintiff argues this evidence does not undermine Dr. Blattner’s conclusions about

physical limitations. Pl. Reply, ECF No. 17 at 3-4. But these arguments are an effort to have the

Court assign its own weight to the evidence, and adopt a competing inference from it, which is

beyond the scope of review. Ahearn, 988 F.3d at 1115 (“We may not reweigh the evidence or

substitute our judgment for that of the ALJ.”). Because the ALJ reasonably considered the

supportability and consistency of Dr. Blattner’s opinion about Plaintiff’s difficulty with LED

lighting, and the ALJ’s conclusion and inferences were supported by substantial evidence, the

Court will not disturb the ALJ’s finding that those limited aspects of Dr. Blattner’s opinion were

unpersuasive.

IV. Step Five

Plaintiff also argues the ALJ committed an independent error at step five by failing to

include the vision limitations expressed in Plaintiff’s testimony, lay witness testimony, and Dr.

Blattner’s opinion in her hypotheticals to the VE. Pl. Br., ECF No. 15 at 12-13. As discussed

above, however, the ALJ reasonably discounted Plaintiff’s and lay witness testimony about the

extent of his light sensitivity. Tr. 23. The ALJ also reasonably evaluated the supportability and

consistency of Dr. Blattner’s opinion about Plaintiff’s vision. Tr. 23. This step five argument

merely rehashes Plaintiff’s prior arguments and therefore fails for the reasons previously

articulated. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008) (rejecting a

step five argument that “simply restates” arguments about medical evidence and testimony);

Hairston v. Saul, 827 Fed. App'x 772, 773 (9th Cir. 2020) (summarily rejecting claimant's

arguments that RFC and step-five findings were unsupported by substantial evidence as

“derivative of her preceding arguments addressed and rejected above.”); see also Embrey v.

Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (acknowledging there is no requirement that testimony

for which the ALJ has provided specific and legitimate reasons to discount be included in the

hypothetical given the VE). Because Plaintiff’s step five argument adds nothing new, the Court

finds the ALJ did not err at step five either.

CONCLUSION

For the reasons given above, I AFFIRM the Commissioner’s decision and DISMISS this

case.

IT IS SO ORDERED.

DATED: __ 1/31/2024

Wuchal U) Wleaman

MICHAEL W. MOSMAN

United States District Judge

OPINION & ORDER