Taylor v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

ROBERT CODY T:! Case No. 3:20-cv-00310-AC

Plaintiff, OPINION AND ORDER

V.

ANDREW SAUL, COMMISSIONER

SOCIAL SECURITY,

Defendants,

ACOSTA, Magistrate Judge:

Plaintiff Robert Cody T. (‘Plaintiff’) filed this action under section 205(g) of the Social

Security Act (the “Act’) as amended, 42 U.S.C. § 405(g), to review the final decision of the

Commissioner of Social Security (the “Commissioner”) who denied him social security disability

insurance benefits (“Benefits”). The court finds the ALJ provided clear and convincing reasons

'In the interest of privacy, this Opinion uses only the first name and the initial of the last name of

the non-governmental party in this case.

PAGE 1 - OPINION AND ORDER

for discounting Plaintiffs testimony and lay testimony with respect to Plaintiff’s limitations, and

that he properly weighed the medical evidence. Accordingly, the Commissioner’s final decision is

supported by substantial evidence in the record and is affirmed.”

Procedural Background

On or about November 14, 2017, Plaintiff filed an application for Benefits alleging an onset

date of May 10, 2017. The application was denied initially, on reconsideration, and by

Administrative Law Judge Richard Geib (the “ALJ”) after a hearing. The Appeals Council denied

review and the ALJ’s decision became the final decision of the Commissioner.

Factual Background’

Plaintiff is fifty-one years old. He graduated from high school, completed two years of

college, and obtained training in radiographic technology science. His past relevant work

experience includes x-ray technician. Plaintiff has not been involved in a successful work attempt

since May 10, 2017. He alleges disability because of bipolar disorder, acute depressive disorder,

and cognitive limitations. Plaintiff meets the insured status requirements entitling him to Benefits

through December 31, 2022.

/////

/// 7/7

//// i]

*The parties have consented to jurisdiction by magistrate judge in accordance with 28 U.S.C.

§ 636(c)(1).

> Plaintiff asserts the ALJ erred by improperly rejecting medical records, evidence, and testimony

regarding symptoms and limitations relating to his mental health diagnoses, primarily a significant

impairment in his ability to interact with others. Consequently, the court will concentrate its

review on evidence relating primarily to this impairment.

PAGE 2 - OPINION AND ORDER

I. Testimony

A. Plaintiff

In the Function Report completed by Plaintiff on December 13, 2017 (“Report”), he

indicated he is: “unable to function at a high enough and consistent enough level of efficiency.

Unable to concentrate and maintain pace in completing tasks. Trouble interacting with others and

use of appropriate social behaviors.” (Tr. of Social Security Administrative R., ECF No. 14

(“Admin. R.”), at 226.) Plaintiff reported having difficulties with memory, completing tasks,

concentration, understanding, following instructions, and getting along with others. (Admin. R. at

231.) He can pay attention for only ten minutes at a time and follow only one instruction at a time.

(Admin. R. at 232.) Plaintiff stated he fails to read instructions in their entirety and then forgets

important parts, does not get along with authority figures, and was fired from most of his jobs for

his inability to get along with coworkers or inappropriate conversations. (Admin. R. at 232.) He

does not handle stress or changes in routine well and is always in fear of being fired or □

reprimanded. (Admin. R. at 232.)

Plaintiff noted he has difficulty sleeping due to insomnia and erratic sleep patterns, and

wakes anywhere between 4:00 a.m. to 11:00 a.m. (Admin. R. at 227.) Upon waking, he takes a

shower and makes hot oatmeal for breakfast. (Admin. R. at 227.) On an average day, he will

“listen to the news or music on the radio for a few hours, feed animals, household chores. Greet

son from school at 2:45, wife home at 5 pm. Wife prepares dinner, I clean when they do

homework, TV then bed or read if not able to sleep.” (Admin. R. at 227.) He enjoys reading and

raising houseplants, including bonsai, but never finishes books and the plants die because he

forgets to care for them. (Admin. R. at 230.)

PAGE 3 - OPINION AND ORDER

Plaintiff reported he has difficulty remembering to do certain things, needs daily reminders,

and his wife double checks everything he does, but represented he has no problem maintaining his

personal needs and grooming without any reminders, except when to take his medications and eat.

(Admin. R. at 227-28.) Plaintiff cares for the animals but his wife is primarily responsible for the

care of their son and his wife has total control of the family finances due to Plaintiff's “silly

impulse” purchases. (Admin. R. at 227, 230.)

Plaintiff ventures outside daily, preferably with his wife and son, and visits familiar places,

such as his father’s house, friends, and local restaurants without anxiety, but has difficulty

following directions to unfamiliar places and becomes frustrated with traffic resulting in road rage

and anxiety issues. (Admin. R. at 228, 230.) He constantly argues with different family members

and no longer socializes on Facebook due to too many arguments and misunderstandings. (Admin.

R. at 230-31.)

At the December 18, 2018 hearing (““Hearing), Plaintiff testified he worked two or three

days a week as an x-ray technician for Columbia Pain and Spine (“Columbia”) through May 2017.

(Admin. R. at 45-47.) He stated this was the first job he enjoyed, which made him paranoid he

would be fired. (Admin. R. at 47.) After losing this job, he worked two or three days for UPS

during the 2017 holiday season. (Admin. R. at 40-41.) He then “got tension sick” and felt “really,

really horrible” but still “called in every day” in the hope of qualifying for a bonus. (Admin. R. at

41.)

Plaintiff testified he has one-to-two days of chronic vomiting every other week, particularly

when he is stressed about doing something, such as participating in the Hearing or thinking about

going back to work, which he treats with marijuana without much relief. (Admin. R. at 48, 54.)

PAGE 4 - OPINION AND ORDER

He spends a lot of time fighting the thoughts in his head relating to his failures and wants to just

lay on the couch, do nothing, and sleep. (Admin. R. at 48-49.) He testified he is unable to

concentrate or sit in one place for more than five to ten minutes, does not read or watch television

or movies, and is annoyed when the television is on in the background. (Admin. R. at 53-54.)

Plaintiff described mood swings, during which he has difficulty focusing, and generally

leaves the house for a walk or for a drive with his wife to settle down. (Admin. R. at 49, 53.) He

has difficulty handling stressful situations and gets paranoid when he thinks someone does not like

him. (Admin. R. at 51-52.) Plaintiff drives as little as possible in the city to avoid issues with road

rage and frustration with traffic, but enjoys driving in the country. (Admin. R. at 52.) He is quick

to anger and has outbursts to the point of dysfunction because of his frustration, during which he

tries to do focused mediation or get out of the house and help friends with odd jobs to get his mind

on something else. (Admin. R. at 49-50.) His current medications provide some relief for his

anger limiting it to “little bursts.” (Admin. R. at 50.)

Plaintiff represented he had been stressed about finances and considered looking for work

in a job that requires little interaction with the public or coworkers until his wife discouraged him

with comments suggesting that if he takes another job, his “stress is going to go through the roof”

and he “will be barfing all the time.” (Admin. R. at 58.) Plaintiff later testified he was not sure he

would be able to drive to a job every day, and that his moods, anger, and difficulty handling

instructions and criticism would limit his ability to get along with coworkers and supervisors.

(Admin. R. at 59-60.) He explained most of his difficulties maintaining a job are due to his

personality and complaints from coworkers that he was too “abrupt” and “rude,” he now has zero

confidence, and any job “scares the hell out of me,” even those that allow him to work alone.

PAGE 5 - OPINION AND ORDER

(Admin. R. at 70-71, 76-78.) He assists his wife in selling antiques at the “Expo” once a year,

holding occasional garage sales, and picking out items to be resold on eBay, but would not

characterize these activities a “career.” (Admin. R. at 55-56.)

B. Plaintiff's Wife

In a letter included in Plaintiffs disability report apparently filed in December 2017,

Plaintiff's wife, Nancy Jo T. (“Nancy”), reported Plaintiff lost his job at OHSU in 2006, and was

unsuccessful at his next fifteen jobs, due to his inability to “interact with others in a normal way,”

and she believed the “the stress of looking for, keeping and continually getting let go from work

has played a major part in his decline” during the previous two years. (Admin. R. at 210.) She

stated many medical professionals with whom Plaintiff worked recognized his difficulties

maintaining concentration and cognitive difficulties, and commented Plaintiff was recently

diagnosed with bipolar disorder. (Admin. R. at 210.) Nancy explained:

Rob is unable to return to work, it is absolutely debilitating for him to think of

returning to his field as he knows he is unable and it is unsafe at this point to perform

the duties required. Rob is unable to live and function independently, he is unable

to manage his medications, he is unable to manage money and bills, Rob struggles

with time and perspective, Rob is unable to travel to and from familiar places

without getting lost. Rob[’]s disability does not allow him to function with daily

activities or work.

(Admin. R. at 210.)

In a December 21, 2017 third-party function report, Nancy reported “Rob cannot

concentrate well enough to complete tasks. Rob[’]s manic and depressive states make him very

unpredictable. Rob[’]s erratic sleep patterns make schedules difficult.” (Admin. R. at 234.) Nancy

stated Plaintiff “pisses” someone off every couple of weeks but, with her assistance, can work it

out and move on, and she will not allow Plaintiff to use Facebook due to daily problems. (Admin.

PAGE 6 - OPINION AND ORDER

R. at 238.) She noted Plaintiff had difficulty with memory, concentration, understanding,

completing tasks, following instructions, and getting along with others. (Admin. R. at 239.) Nancy

explained she occasionally has difficulty getting Plaintiff's his attention, he can work on something

for only ten to fifteen minutes, and he does not follow written or oral instructions, work with

authorities or coworkers, or handle stress or changes in routine, very well. (Admin. R. at 239-30.)

Nancy represented Plaintiff “putters” and picks up at home while waiting for her and their

son to get home, cares for the animals, and is a good companion for their son. (Admin. R. at 235.)

Nancy manages the family finances because Plaintiff has always struggled with money and math.

(Admin. R. at 237.) She allows Plaintiff to order something only a couple times a year but feels

comfortable with him handling the cash she allots to him. (Admin. R. at 237.) Nancy noted

Plaintiff enjoys music and houseplants but reported he let their houseplants die on two occasions

in the last five years. (Admin. R. at 238.) He visits his father and friends weekly and, when in the

mood, will eat meals out or go to a movie. (Admin. R. at 238.)

At the Hearing, Nancy testified Plaintiff had difficulty managing money, interacting with

people, following directions, and being told what to do. (Admin. R. at 62.) She indicated he has

small angry reactions to things daily and that once a week he will have a more intense “blowup”

involving yelling, generally in response to Nancy requesting he do things a different way. (Admin

R. at 62-63.) She witnessed Plaintiff gradually experience increasing difficulties performing his

job as an x-ray technician and come home exhausted due to his effort to “keep things together.”

(Admin. R. at 63-64.) She acknowledged Plaintiff worked two days for UPS during the holidays

as a driver’s helper, but indicated he started vomiting and never returned. (Admin. R. at 64.)

Nancy explained Plaintiff likes to keep busy “fiddling” with things, assists her selling things on

PAGE 7 - OPINION AND ORDER

eBay, and enjoys shopping garage sales and working with plants, primarily bonsai, which he has

sold on occasion. (Admin. R. at 65-67.) She commented that Plaintiff has difficulty in large social

settings, such as family gatherings of more than thirty members of Nancy’s family, and he elects

to not attend the event or leaves early. (Admin. R. at 68.)

C. Plaintiff's Mother-in-Law

In a letter dated December 4, 2018, Plaintiff's mother-in-law, Carolee, reported Plaintiff

always struggled with “some of the characteristics that I see now but to a far lesser degree in the

early years.” (Admin. R. at 266.) She described bouts of depression, paranoia, anger, and lack of

self-confidence, all of which have “taken a toll on our family members.” (Admin. R. at 266.)

Carolee represented Plaintiff “seems to completely ‘lose’ it and will rant and rave,” but “he seems

to do best when he is at home without a lot of outside stimuli.” (Admin. R. at 266.)

D. Plaintiff's Manager □

In a November 6, 2018 letter, Pam Blanchard, Plaintiffs manager at Columbia

(“Blanchard”), explained Plaintiff worked for Columbia as a “three day per week X-tray tech”

from July 28, 2015, through May 16, 2017. (Admin. R. at 268.) Blanchard praised Plaintiffs

early work but noted “during the last months of his employment, we noticed [Plaintiff] had a hard

time focusing on his job, grew impatient with other staff members at times, and appeared to be

struggling with keeping up with his work.” (Admin. R. at 268.) She discussed these issues with

Plaintiff, observing he “could easily be overwhelmed by his obligations, which would cause him

to freeze up rather than tackle a task.” (Admin. R. at 268.) Blanchard described one instance

where Plaintiff “became very irritated” when he lost his badge, speaking harshly to the head nurse

in the presence of a patient, yelling at staff, and throwing things around the procedure room.

PAGE 8 - OPINION AND ORDER

(Admin. R. at 268.) Her attempts to reason with or calm Plaintiff were unsuccessful. (Admin. R.

at 268.) Blanchard asked Plaintiff to leave the clinic at that time and subsequently informed

Plaintiff he was terminated. (Admin. R. at 269.)

Il. Medical Evidence

A. Treating Physicians

1. Karen E. Inaba, M.S., P.M.H.N.P.

Plaintiff began treatment with Karen E. Inaba, M.S., P.M.H.N.P. (“Inaba”) in early 2017.

(Admin. R. at 462.) Inaba eventually diagnosed Plaintiff with bipolar disorder, which she

described to be “in partial remission” on more than one occasion, as well as attention-deficit

hyperactivity disorder (“ADHD”), cannabis induced anxiety disorder, depressive disorder, and

intermittent explosive disorder, and treated Plaintiff regularly from January 6, 2017, to August 18,

2017, for moderate manic or depressive episodes. * (Admin. R. at 412-417.) Inaba encouraged

Plaintiff to decrease or stop cannabis and alcohol use and Plaintiff indicated he “notice[d] less

depression and concentration difficulties with reducing cannabis.” (Admin. R. at 426-29.)

On May 17, 2017, Plaintiff reported he lost his job the previous day because “his mood

swings were too great” and he “scares the customers.” (Admin. R. at 441.) In July and August

2017, Plaintiff reported stable mood and great sleep with no bad mood swings, and represented he

was still occasionally working on-call X-ray jobs. (Admin. R. at 426-28.) He also reported he

was doing home repairs and yard work in June and July 2017, and “almost [felt] good enough to

return to work in the fall.” (Admin. R. at 428.) During a June 1, 2017 telephone call to discuss

4 Dawn L. Edwards, Ph. D., provided psychotherapy in conjunction with Inaba’s care and

medication management. (Admin. R. at 413-414, 430.)

PAGE 9 - OPINION AND ORDER

medications, Plaintiff informed a nurse his mood was better, he had no racing thoughts or difficulty

concentrating, felt more focused, and was sleeping well and able to deal with his minimal anxiety.

(Admin. R. at 432-33.) Plaintiff failed to show up for an appointment with Inaba on October 16,

2017. (Admin. R. at 420.)

On January 30, 2018, Plaintiff again reported stable mood and great sleep but stated he had

chronic anxiety triggered by working and social anxiety when he did not work. (Admin. R. at

499.) Inaba suggested Plaintiff transfer treatment to the Mental Health Clinic with the goal of

managing his moods, coping with his bipolar illness, and limiting his self-deprecation. (Admin.

R. at 500, 535.) Plaintiff agreed and did not seek further treatment from Inaba. (Admin. R. at

500.)

Inaba completed a mental impairment questionnaire on October 24, 2018, at the request of

Plaintiff's counsel. (Admin. R. at 582-586.) Inaba failed to respond to questions about Plaintiffs

treatment, response, medications, medication side effects, current mental status, and prognosis,

consistently noting she had not seen Plaintiff since January 2018 and was unable to comment on

his current mental impairments. (Admin. R. at 582.) She reported she had diagnosed Plaintiff

with bipolar I disorder; major depressive disorder, recurrent; cannabis use disorder; substance-

induced mood disorder; alcohol use disorder, reported in remission; ADHD combined type;

intermittent explosive disorder; and relationship problems with spouse. (Admin. R. at 582.) She

represented Plaintiff had issues with stress tolerance, particularly stress resulting from such work

demands as completing tasks; interacting with and handling instructions and criticism from

supervisors; remaining a work a full day; and getting to work regularly. (Admin. R. at 582

PAGE 10 - OPINION AND ORDER

Inaba indicated Plaintiff's signs and symptoms included impairment in impulse control;

mood disturbance; substance dependence; emotional withdrawal or isolation; bipolar syndrome

with a history of episodic periods manifested by the full symptomatic picture of both manic and

depressive syndromes; and easy distractibility. (Admin. R. at 583.) She believed Plaintiff retained

unlimited, or very good, ability to remember work-like procedures; understand, remember and

carry out very short and simple or detailed instructions; maintain attention for a two-hour segment;

sustain an ordinary routine without special supervision; work in coordination with or proximity to

others without being unduly distracted; perform at a consistent pace without an unreasonable

number and length of rest periods; accept instructions and respond appropriately to criticism from

supervisors; interact appropriately with the general public; maintain socially appropriate behavior;

and respond appropriately to changes in routine work settings. (Admin. R. at 584.) Additionally,

Inaba indicated Plaintiff had limited but satisfactory ability to maintain regular attendance and be

punctual within customary, usual strict tolerances; complete a normal workday and workweek

without interruptions from psychologically based symptoms; get along with co-workers or peers

without unduly distracting them or exhibiting behavioral extremes; and deal with normal stress.

(Admin. R. at 584.) Finally, she opined Plaintiff's impairments or treatments would cause him to

be absent from work more than two days per month. (Admin. R. at 585.)

2. Susan E. Hoffman M.S.N., P.M.H.N.P.

With his transfer to the Mental Health Clinic, Susan E. Hoffman M.S.N., P.M.H.N.P.

(“Hoffman”), became Plaintiffs primary health care provider. (Admin. R. 582.) After the Mental

Health Clinic attempted to contact Plaintiff numerous times by letter inviting him to enroll in a

“Managing Your Moods Group,” Hoffman met with Plaintiff for the first time on May 10, 2018.

PAGE 11 - OPINION AND ORDER

(Admin. R. at 569-76.) Plaintiff reported he felt “pretty damn content,” believed his current

medications were working, and said that his daily cannabis use calmed him, stopped his “racing

thoughts,” and prevented him from getting “edgy.” (Admin. R. at 569.) He explained that since

his “melt-down” when he lost his job, he learned his limits and how to avoid stressful situations,

calm himself when he gets angry or anxious, and disengage himself from stressful situations.

(Admin. R. at 569.) He also stated he was taking a mood management course and found it helpful,

but it appears from the record Plaintiff failed to attend the class on more than one occasion.

(Admin. R. at 552, 556, 570.)

At their next meeting on August 28, 2018, Plaintiff reported to Hoffman he was “better

overall,” his medications were “doing what they are supposed to do: slow things down, improve

function and improve sleep,” and his rapid thoughts and mood swings had decreased. (Admin. R.

at 544.) He continued to experience some paranoia and depressive mood swings, but the

depression was not constant, and he limited his driving to avoid road rage. (Admin. R. at 544-45.)

Plaintiff indicated he had frequent “trauma memories” and “completely lost control” six times the

previous year, throwing things and breaking stuff. (Admin. R. at 544-45.) Hoffman described

Plaintiff as “calm, euthymic, polite, cooperative” with normal movements and speech, and linear

thoughts. (Admin. R. at 544-45.) Plaintiff requested a new provider on October 16,2018. (Admin.

R. at 608.)

3. Erick H. Turner, M.D.

On November 26, 2018, Plaintiff initiated treatment with Erick H. Turner, M.D. (“Dr.

Turner”), who had treated Plaintiff briefly “for a few months in early 2013 after which he was lost

to follow-up.” (Admin. R. at 608-09, 657, 662, 673.) Plaintiff reported “mood swings and

PAGE 12 - OPINION AND ORDER

cognitive issues .. . [that] have come around in the last couple of years.” (Admin. R. at 672.) He

indicated he is “assaulted by negative memories remembering interpersonal failures” shortly after

waking and “[t]hese kind of thoughts prevent him from doing anything that require[s] much

cognitive effort at all, so he copes by engaging in activities that require very little effort, such as

cleaning the dishes.” (Admin. R. at 672.) Plaintiff indicated he had lost over thirty jobs and “given

up the idea of going back to work.” (Admin. R. at 672.) He stated he no longer drives because he

gets confused easily and then gets frustrated. (Admin. R. at 672.) He used Uber for a while but

was “cut off’ by the company after his “interpersonal problems and moodiness got in the way”

and he “got very angry and abusive with an Uber driver.” (Admin. R. at 672.) Plaintiff reported

the “anxiety medication” prescribed by Inaba “was very helpful in allowing him to be able to go

out to social events.” (Admin. R. at 674.)

Dr. Turner described Plaintiffs eye contact to be initially evasive with later improvement

to “fair to good” and his affect to be slightly irritable but within reasonable limits throughout the

session. (Admin. R. at 676.) He opined a diagnosis was “unclear at this time;” identified anxiety

disorder, chronic mood disorder, nausea, vomiting, and trichotillomania (hair-pulling disorder), as

Plaintiffs active health problems needing management; expressed concern when Plaintiff and his

wife “used terms ‘bipolar’ and ‘manic episode’ several times during[the] meeting, as if there was

no question about this diagnosis;” and recommended they stick with “objectively demonstrable

symptoms and avoid diagnostic labels.” (Admin. R. at 662, 672, 676.) He added haloperidol to

Plaintiff's medication regimen, and referred Plaintiff for psychological testing, with a focus on

moodiness, impulse control, and interpersonal difficulties, as well as various classes for distress

PAGE 13 - OPINION AND ORDER

tolerance, anger management, interpersonal effectiveness, and emotional regulations. (Admin. R.

at 676-77.)

B. Examining Physician

In December 2018, Brent E. Fuller, Ph.D. (“Dr. Fuller”), evaluated Plaintiff through

RBANS (Repeatable Battery for the Assessment of Neuropsychological Symptoms), MMPI, and

NAB Memory Module testing. (Admin. R. at 708.) Plaintiff “indicated that he was feeling much

better” and Dr. Fuller noted Plaintiff was “chatty, shared his experience, was able to sit for testing,

and was pleasant.” (Admin. R. at 706.) Dr. Fuller summarized the various test results as follows:

1. MMPI

“Overall, his profile suggests that he is often quite obsessively worried [about] the future,

himself, and things around him. He has strong depressive features which are characterized by poor

self-esteem, self-hatred and inability to work with others. He also has significant anger expression

such that he harms his interpersonal relationships, friendships, and work interactions.” (Admin.

R. at 710.)

2. RBANS

“The total score was in the BORDERLINE range indicating that his overall functioning

contains some significant deficits. He functions at a lower level than his peers and that he may

have problems with working, going to school and having normal relationships. The areas of

spatial/constructional and memory contributed to the low score.” (Admin. R. at 711.) Specifically,

Plaintiff scored in the extremely low range in the ability “to perceive special relations and to

reconstruct visual diagrams from memory;” borderline range in the “ability to remember

information that was presented sometime prior;” low average range in the “ability to remember

PAGE 14 - OPINION AND ORDER

information that was presented sometime prior” and “remember[] lists of words that were

presented three times;” and average in the “ability to process language, produce speech, and name

objects.” (Admin. R. at 710-11.)

3. NAB-Memory Module

“The score he obtained on this comprehensive memory evaluation was considered

MILDLY IMPAIRED and corresponds to the 6"" percentile of men of his age. The veteran has the

most impairment in verbal learning including list learning and story memory. He had better scores

in non-verbal learning (shapes). His most impaired area was in the practical daily living memory

where committing addresses, medication instructions and other information was very difficult for

him.” (Admin. R. at 711.)

Dr. Fuller then found no evidence of bipolar disorder and diagnosed Plaintiff with: “Major

Depression, Generalized Anxiety Disorder and Personality Features. The latter Cluster B features

are characterized by problems with authority figures, rages, difficulty with interpersonal

relationships (Antisocial); and poor self-concept, uncontrolled emotionality, impulsive

(Borderline).” (Admin. R. at 711.) With respect to cognitive limitations, Dr. Fuller concluded:

His cognitive profile is overall at the Borderline level of cognitive impairment. He

has deficits across neuropsychological areas of memory, attention and spatial

relations. The etiology of this is unknown at this time, but it is clear that a

neurocognitive disorder exists that prevents him from being effective in work

settings, home activities and personal concerns. Some of this deficit may cause his

anger and frustration given that he cannot remember the information that he needs

to function at an age-appropriate level.

(Admin. R. at 711-12.)

\\\\\

PAGE 15 - OPINION AND ORDER

C. Reviewing Physicians

Sergiy Barsukov, Psy.D. (“Dr. Barsukov”), reviewed Plaintiff's medical records and on

January 17, 2018, opined Plaintiff suffered from non-severe affective/mood disorders with

secondary psychoactive substance dependence disorders. (Admin. R. at 81, 85.) Dr. Barsukov

acknowledged Plaintiffs reported symptoms of limitations in understanding, memory, sustained

concentration, and persistence, found these symptoms to be “partially consistent” with medical

evidence, and reported mild limitations in Plaintiff's ability to understand, remember, or apply

information; interact with others; concentrate, persist, or maintain pace; and adapt or manage

himself. (Admin. R. at 86-87.) Dr. Barsukov concluded Plaintiffs impairments do “not

significantly limit physical or mental abilities to do basic work activities” and found Plaintiff not

disabled. (Admin. R. at 86-87.)

Irmgard E. Friedburg, Ph. D. (“Dr. Friedburg’’), another reviewing physician, generally

agreed with Dr. Barsukov’s diagnosis but considered Plaintiff's depressive, bipolar, or related

disorder to be “severe” in a report dated March 9, 2018. (Admin. R. at 95.) Dr. Friedburg believed

Plaintiffs reported symptoms were not consistent with medical evidence and found Plaintiff had

no difficulty understanding, remembering, and applying information or adapting and managing

himself. (Admin. R. at 95-96.) Dr. Friedburg considered Plaintiff moderately limited in his ability

to interact with others but noted the absence of evidence on limitations in his ability to ask simple

questions or request assistance; accept instruction and respond appropriately to criticism from

supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral

extremes; or maintain socially appropriate behavior and adhere to basic standards of neatness and

PAGE 16 - OPINION AND ORDER

cleanliness. (Admin. R. at 98.) On March 16, 2018, Susan E. Moner, M.D. (“Dr. Moner”),

affirmed the initial determination of Dr. Barsukov that Plaintiff is not disabled. (Admin. R. at 89.)

Ul. Vocational Evidence

Jennifer A. Swatez, M.S., VE, impartial vocational expert (“Swatez’), appeared at the

Hearing and classified Plaintiff's past relevant work of x-ray technologist as light work with an

SVP skill level of seven. (Admin. R. at 69, 270.) The ALJ asked Swatez if a hypothetical

individual of Plaintiffs age, education, and work experience able to perform work at all exertional

levels but limited to simple, routine tasks with additional restrictions of no contact with the general

public and only occasional superficial contact with coworkers and supervisors could perform

Plaintiff's past work. (Admin. R. at 73.) Swatez testified such an individual would not be able to

perform Plaintiff’s past work as an x-ray technologist but could perform the jobs of auto feed

scanner, cleaner II, and gardener/yard worker. (Admin. R. at 73-74.) When the ALJ further limited

the hypothetical individual to someone who was off task twenty percent of the workday and absent

two or more days a month, Swatez stated such individual would not be able to perform any jobs in

the national economy. (Admin. R. 74.) In response to a question from Plaintiff's counsel, Swatez

testified the individual would be unemployable if they were “unable to respond appropriately to

supervisors consistently when they did have contact, such that they were argumentative or volatile

or walked off the job.” (Admin. R. at 75.) Swatez also confirmed the listed jobs all required

workers to maintain a standard work schedule, including a morning and afternoon break and a

lunch break. (Admin. R. at 75.)

\\V\A

\\VA\\

PAGE 17 - OPINION AND ORDER

IV. ALJ Decision

The ALJ found Plaintiff suffered from the severe impairments of “Depressive Disorder,

Personality Disorder, and Neurocognitive Disorder” and non-severe impairments of “cannabis

abuse and ischemic heart disease” and determined Plaintiff had not engaged in substantial gainful

activity since the alleged onset date of May 10, 2017. (Admin. R. at 15-16.) While conceding

Plaintiff's impairments limited his ability to perform basic work activities, the ALJ found such

impairments did not meet or equal the severity of any listed impairment. (Admin. R. at 15-16.)

As a result of his impairments, the ALJ considered Plaintiff capable of performing a full range of

work at all exertional levels but limited to only simple, routine tasks, no contact with the general

public, and only occasional, superficial contact with coworkers and supervisors. (Admin. R at 17.)

The ALJ deemed Plaintiff incapable of performing his past relevant work as an x-ray technician

but able to perform the jobs of auto detailer, cleaner II, and gardener/yard worker despite the

identified non-exertional limitations. (Admin. R. at 26-27.) Consequently, he found Plaintiff not

disabled from May 10, 2017, through the date of the March 4, 2019 decision. (Admin. R. at 27.)

The ALJ found Plaintiffs “medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the claimant’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 for the reasons explained in this decision.”

(Admin. R. at 18.) The ALJ discounted Plaintiffs testimony on the limiting effects of his

“debilitating symptoms” finding the “are not entirely consistent with the medical evidence.”

(Admin. R. at 22.) The ALJ explained Plaintiff's statements about the limiting effects of his

symptoms were not supported by recent psychiatric examinations that “revealed normal

PAGE 18 - OPINION AND ORDER

movements, normal speech, linear thought, no auditory/visual hallucinations, no overt delusions,

and calm/euthymic/polite/cooperative affect.” (Admin. R. at 22.) The ALJ also noted Plaintiff's

conservative treatment, lack of hospitalization, and improvement with appropriate treatment were

inconsistent with Plaintiffs description of his limitations. (Admin. R. at 22.) Finally, the ALJ

relied on evidence of Plaintiff's ability to perform “some work” and his reported work activities

in discounting Plaintiff's testimony concerning the severity of his symptoms. (Admin. R. at 23.)

The ALJ also discounted testimony offered by Plaintiff's spouse, mother-in-law, and

manager on the limiting effects of Plaintiff's impairments and his current abilities. (Admin. R. at

25.) He found the testimony not entirely credible due to the witnesses’ close relationship with

Plaintiff and as inconsistent with the opinions, medical evidence, and objective evidence. (Admin.

R. at 25.)

The ALJ concluded the medical opinions offered by the state agency consultants with

respect to Plaintiff's mental impairments were persuasive based on the consultants’ thorough

review of the medical records; consistency with, and support from, such medical records; results

of objective medical testing; and evidence Plaintiffs condition improved with treatment. (Admin.

R. at 24-25.) He found Dr. Fuller’s opinion “unpersuasive to the conclusion that the claimant is

disabled and unable to work.” (Admin. R. at 24.) The ALJ noted Dr. Fuller “appear[red] to

overestimate the effects of claimant’s severe impairments” and failed to provide “an adequate

function-by-function analysis for the purposes of Social Security disability evaluation.” (Admin.

R. at 24.) The ALJ also determined Inaba’s opinion was unpersuasive based on inconsistencies in

her opinions, a lack of support in the medical record, and repeated statements “she is unable to

comment on the claimant’s current status.” (Admin. R. at 24.) The ALJ considered Inaba’s

PAGE 19 - OPINION AND ORDER

opinion Plaintiff “would miss more than two days of work” contradictory to her conclusion

Plaintiff “would have unlimited or very good mental abilities and aptitudes.” (Admin R. at 24.)

Moreover, the ALJ noted Inaba represented the “claimant would have limited, but satisfactory

ability to maintain regular attendance and be punctual within customary, usual strict tolerances;

complete a normal workday and workweek without interruptions from psychologically based

symptoms; get[] along with co-workers or peers without unduly distracting them or exhibit

behavioral extremes; and deal[] with normal work stress.” (Admin. R. at 24.)

Standard of Review

The Act provides for payment of Benefits to people who have contributed to the Social

Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)

(2019). The burden of proof to establish a disability rests upon the claimant. Gomez v. Chater,

74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996). To meet this burden, the claimant

must demonstrate an inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to cause death or to

last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). An individual

will be determined disabled only if there are physical or mental impairments of such severity that

the individual is not only unable to do previous work but cannot, considering his or her age,

education, and work experience, engage in any other kind of substantial gainful work which exists

in the national economy. 42 U.S.C. § 423(d)(2) (A) (2019).

The Commissioner has established a five-step sequential evaluation process for

determining if a person is eligible for Benefits. 20 C.F.R. § 404.1520 (2019); Lester v. Chater, 81

F.3d 821, 828 n.5 (9th Cir. 1995), First, the Commissioner determines whether the claimant is

PAGE 20 - OPINION AND ORDER

engaged in “substantial gainful activity.” If the claimant is engaged in such activity, Benefits are

denied. Otherwise, the Commissioner proceeds to step two and determines whether the claimant

has a medically severe impairment or combination of impairments. A severe impairment is one

“which significantly limits [the claimant’s] physical or mental ability to do basic work activities.”

20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of

impairments, Benefits are denied.

If the impairment is severe, the Commissioner proceeds to the third step to determine

whether the impairment is equivalent to one of the specifically listed impairments that the

Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.P.R. §

404.1520(d). If the impairment meets or equals one of the listed impairments, the claimant is

conclusively presumed to be disabled. If the impairment is not one that is presumed to be

disabling, the Commissioner proceeds to the fourth step to determine whether the impairment

prevents the claimant from performing work which the claimant has performed in the past. If the

claimant is able to perform work which he or she has performed in the past, a finding of “not

disabled” is made and Benefits are denied. 20 C.F.R. § 404.1520(e).

If the claimant is unable to do work performed in the past, the Commissioner proceeds to

the fifth and final step to determine if the claimant can perform other work in the national economy

considering his or her age, education, and work experience. The burden shifts to the Commissioner

to show what gainful work activities are within the claimant’s capabilities. Distasio v. Shalala, 47

F.3d 348, 349 (9th Cir. 1995), The claimant is entitled to Benefits only if he or she is not able to

perform other work. 20 C.F.R. § 404.1520(f).

\\\\\

PAGE 21 - OPINION AND ORDER

When an individual seeks Benefits because of disability, judicial review of the

Commissioner’s decision is guided by the standards set forth in 42 U.S.C. § 405(g). The reviewing

court must affirm the Commissioner’s decision if the Commissioner applied proper legal standards

and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson

v. Comm 'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence”

means “more than a mere scintilla, but less than a preponderance.” Robbins v. Soc. Sec. Admin.,

466 F.3d 880, 882 (9th Cir. 2006). It is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” 7'ylifzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993),

The reviewing court may not substitute its judgment for that of the Commissioner.

Robbins, 466 F.3d at 882; Hdlund vy. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Thus, where

the evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion must be

upheld, even where the evidence can support either affirming or reversing the ALJ’s conclusion.

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The ALJ is responsible for determining

credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v.

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In determining a claimant’s residual functioning

capacity, an ALJ must consider all relevant evidence in the record, including, inter alia, medical

records, lay evidence, and “the effects of symptoms, including pain, that are reasonably attributed

to a medically determinable impairment.” Robbins, 466 F.3d at 883, citing SSR 96-8p, 1996 WL

374184, at *5; 20 C.F.R. §§ 404.1545(a)(3) (2019); Smolen v. Chater, 80 F.3d 1273, 1281 (9th

Cir.1996). The reviewing court must consider the entire record as a whole weighing both the

evidence that supports and detracts from the Commissioner’s conclusion and may not affirm

simply by isolating a specific quantum of supporting evidence. Lingenfelter v. Astrue, 504 F.3d

PAGE 22 - OPINION AND ORDER

1028, 1035 (9th Cir. 2007). However, a reviewing court may not affirm the Commissioner on a

ground upon which the Commissioner did not rely. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

2007); see also Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citing

SEC y. Chenery Corp., 332 U.S. 194, 196 (1947)).

Discussion

Plaintiff asserts the ALJ erred by failing to properly weigh the medical opinions or assess

lay testimony, provide clear and convincing reasons for rejecting Plaintiffs testimony, and include

all limitations supported by the record in his residual functional capacity assessment. Plaintiff asks

the court to enter an order reversing the Commissioner’s final decision and remand the matter for

an award of benefits or, alternatively, for additional evidence and findings. The Commissioner

contends the ALJ properly considered the evidence in accordance with the terms of the Act and

related regulations, and the decision should be affirmed.

I. Plaintiff's Testimony

Plaintiff argues the ALJ erred by failing to identify specific, clear, and convincing reasons

supported by substantial evidence in the record to discount his subjective symptom testimony. To

determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an

ALJ must perform two stages of analysis. 7revizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017);

20 C.F.R. § 416.929 (2019). The first stage is a threshold test in which the claimant must produce

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

produce the symptoms alleged. Molina v. Astrue. 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti

v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, absent affirmative evidence

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

PAGE 23 - OPINION AND ORDER

the claimant’s testimony regarding the severity of the symptoms. Carmickle y. Comm □□ Soc. Sec.

Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.

2007). The ALJ must make sufficiently specific findings to permit the reviewing court to conclude

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

487, 493 (9th Cir. 2015), Factors the ALJ may consider when making such credibility

determinations include the objective medical evidence, the claimant’s treatment history, the

claimant’s daily activities, and inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d 1154,

1163 (9th Cir, 2013); Tommasetti, 533 F.3d at 1039.

“Credibility determinations are the province of the ALJ” and the court may not “second-

guess” the ALJ’s determination if they have made specific findings that are supported by

substantial evidence in the record. Fairy. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The overall

credibility decision may be upheld even if not all of the ALJ's reasons for rejecting a claimant's

testimony are upheld. Batson, 359 F.3d at 1197. An ALJ needs only one valid reason for rejecting

a claimant’s subjective testimony with respect to symptoms and resulting limitations. See Batson vy.

’r of the Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ’s decision to discredit

symptom testimony may be upheld where specific justification not upheld if ALJ provided other valid

rationale).

The ALJ found Plaintiffs “medically determinable impairments could reasonably be

expected to cause the alleged symptoms” and did not identify any evidence to establish Plaintiff

was malingering. (Admin. R. at 18.) Consequently, the ALJ was required to offer clear and

convincing reasons for rejecting Plaintiffs testimony with respect to the limitations supported by

objective evidence. To meet this standard, “[t]he ALJ must specify what testimony is not credible

and identify the evidence that undermines the claimant’s complaints — ‘[g]eneral findings are

PAGE 24 - OPINION AND ORDER

insufficient.’” Burch vy. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005), (quoting Reddick y, Chater,

157 F.3d 715.722 (9th Cir. 1998)); Bunnell v. Sullivan, 947 F.2d 341. 346 (9th Cir. 1991) (en

banc.) (“[A] reviewing court should not be forced to speculate as to the grounds for an

adjudicator’s rejection of a claimant’s allegations of disabling pain.”)

The ALJ stated “the claimant’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 for the reasons explained in this decision.” (Admin. R. at 18). The Ninth

Circuit has expressly held a boilerplate statement such as this, without more, “falls short of meeting

the ALJ’s responsibility to provide ‘a discussion of the evidence’ and ‘the reason or reasons upon

which’ his adverse determination is based.” 7reichler v. SSA, 775 F.3d 1090, 1103 (9th Cir. 2014)

(quoting 42 U.S.C. § 405(b)(1)); Brown-Hunter, 806 F.3d at 493 (ALJ’s finding that limitations

identified by claimant were less serious than alleged based on unspecified claimant testimony and

a summary of medical evidence insufficient to meet clear and convincing standard). Here,

however, the ALJ engaged in additional discussion of the evidence and reasons for discounting

Plaintiffs testimony, specifically identifying inconsistent treatment records, conservative and

successful treatment, and Plaintiffs reported activities of daily living, including some work activities,

as additional grounds for discounting Plaintiff's testimony.

At the outset, the court notes Plaintiff testified the primary reason he is unable to maintain

employment is his personality disorders and resulting inability to deal with supervisors, coworkers, or

the public. Plaintiff argues the ALJ erred in finding Plaintiff unable to work due to his mental

limitations and failing to accept, or adequately consider, Plaintiffs inability to work with others.

However, the ALJ expressly acknowledged Plaintiffs difficulties with interpersonal relationships by

limiting him to only occasional superficial contact with coworkers and supervisors and no contact with

PAGE 25 - OPINION AND ORDER

the general public in his residual functional capacity analysis.> Consequently, the court is not

convinced the ALJ rejected Plaintiff's testimony with respect to his personality disorder and resulting

difficulty dealing with others. However, to the extent the ALJ did reject Plaintiffs testimony on these

issues, he provided at least one relevant and appropriate justification adequately supported by the

record.

A. Inconsistent with Reported Daily Activities

The ALJ found Plaintiff's description of his daily activities to be inconsistent with his

testimony regarding his limitations. An ALJ may use a claimant’s daily activities to reject his

subjective symptom testimony on either of two grounds: (1) if the reported activities contradict the

claimant’s other testimony; or (2) if the activities meet the threshold for transferable work skills.

Orn vy. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ was justified in discrediting Plaintiff s

subjective testimony as contradictory of limitations resulting from his mental impairments.

The ALJ found the record revealed Plaintiff retained the ability to care for his personal

hygiene, prepare meals, do laundry, wash the dishes, care for the animals, shop, drive, use a

computer, care for houseplants, read, snowboard, walk in a three level-home, and enjoy his yard

and large pool. (Admin. R. at 23.) These activities related primarily to Plaintiffs ability to engage

in physical work and do not provide a valid reason for rejecting Plaintiff's testimony with respect

to his inability to interact with others.° Consequently, to the extent these daily activities relate

solely to Plaintiff's ability to engage in physical work, the ALJ improperly relied on them to

discount Plaintiffs reported difficulties interacting with others. However, the ALJ offered other

Additionally, the ALJ accounted for Plaintiffs cognitive limitations by restricting him to simple,

routine tasks.

° Plaintiff does not dispute he retains the ability to engage in a full range of work at all exertional

26 - OPINION AND ORDER

activities described by Plaintiff which he found to be inconsistent with Plaintiffs representation

he had difficulty working with coworkers, authority figures, or the general public. For example,

Plaintiff's reported activity of shopping, which necessarily involves interaction with others, could

be viewed as inconsistent with Plaintiff's reported inability to work due to his inability to properly

engage with others. Moreover, the ALJ relied on Plaintiff's testimony regarding his participation

in selling and/or buying things at the Expo, farmers’ markets and garage sales, all of which

necessarily involve some interaction with other vendors and the public, generally in a crowded,

chaotic situation, in finding Plaintiff was not as limited as he suggested.

The ALJ specifically identified daily activities which he believed were inconsistent, at least

to some degree, with Plaintiff's testimony regarding the limitations resulting from his mental

impairments which he claims prevent him from working. While one could view Plaintiff's reports

of his daily living activities as somewhat consistent with the limitations he describes, the evidence

also supports a finding to the contrary. The ALJ is responsible for determining credibility and

where evidence exists to support the ALJ’s finding, the court may not substitute its own judgment

or second guess the ALJ. The court finds the ALJ properly discounted Plaintiffs testimony on his

inability interact with others as inconsistent with his description of his activities of daily living.

B. Inconsistent with Medical Records

The ALJ also discounted Plaintiff's testimony based, in part, on medical evidence he

considered inconsistent with the claimed severity of Plaintiffs limitations. As explained above,

the ALJ may engage in ordinary techniques of assessing a witness’s credibility “such as weighing

inconsistent statements regarding symptoms by the claimant.” Smolen, 80 F.3d 1284. Thus, it is

not legally impermissible to give a claimant’s testimony reduced weight because that testimony

contradicts the objective medical evidence in the record. /d. However, the ALJ may not “make a

negative credibility finding ‘solely because’ the claimant’s symptom testimony ‘is not

substantiated affirmatively by objective medical evidence.’” Stockwell v. Colvin, No. 3:13-cv—

01220-HZ, 2014 WL 6064446, at *3 (D. Or. Nov. 11, 2014).

The ALJ specifically noted “recent psychiatric examination revealed normal movements,

normal speech, linear thought, no auditory/visual hallucinations, no overt delusions, and

clam/euthymic/polite/cooperative affect.” (Admin. R. at 22.) The ALJ’s citations to the record do

not entirely support his statement. For example, the ALJ cites to emergency deantiant records

that describe Plaintiff as “alert, anxious, ill-appearing” in addition to “cooperative” with an

“appropriate mood and affect.” (Admin. R. at 297-298 (1F/12-13).) Other identified records

merely commented Plaintiff's “mood and affect were positive” or he was “alert, in not distress,

not toxic.” (Admin. R. at 452 (2F/59), 617 (6F/31).) Some do not reference Plaintiff's mental

limitations at all. (Admin. R. at 421, 468 (2F/14, 55), 617 (6F/31).) Most of the observations

found in the quoted description of Plaintiff's mental appearance/abilities were made by Hoffman

in treatment notes memorializing her two interactions with Plaintiff. (Admin. R. at 545, 571

(4F/30,55).)

Plaintiff's ability to interact appropriately with a medical professional during a relatively

short examination is not inherently inconsistent with Plaintiffs testimony he has difficulty dealing

with others in an ongoing work setting. As a result, Plaintiffs testimony regarding the severity of

his mental limitations is not inconsistent with the medical records and clinical findings cited by

the ALJ. Consequently, the ALJ erred in relying on such medical evidence as a reason for

discounting Plaintiff’s testimony.

\\\\\

PAGE 28 - OPINION AND ORDER

C. Conservative Treatment

The ALJ also discounted Plaintiffs testimony based on treatment he described as

“conservative” primarily because ‘the medical record revealed no evidence of hospitalizations or

admissions.” (Admin. R. at 22.) Evidence of conservative treatment “is sufficient to discount a

claimant’s testimony regarding the severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751

(9th Cir. 2007).

The record reveals Plaintiff consistently sought treatment for his physical and mental

symptoms, including some visits to the emergency room, which resulted in psychiatric counseling,

medications, and classes. The absence of hospitalizations or other admissions does not mean

Plaintiff did not seek appropriate treatment or that the treatment provided was unduly conservative.

Shelly A. O. v. Comin’r, Soc. Sec. Admin., No. 3:18-cv-02158-HZ, 2020 WL 3868504, at *7 (D.

Or. July 8, 2020) (citations omitted) (“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.’”); Tammy L. O.

vy. Comm 'r, Soc. Sec. Admin., Case No. 3:17-cv-774-SI, 2018 WL 3090196, at *13 (D. Or. June

20, 2018) (‘The Court refuses to find that the mere fact that a claimant has not been admitted to a

hospital on an inpatient basis means that the claimant has received only ‘conservative

treatment.’”). Many individuals with mental impairments that affect their ability to interact with

others are not hospitalized or admitted to a mental institution for intensive treatment. The ALJ

erred in by relying on conservative treatment to discount Plaintiffs treatment.

\\\A\

PAGE 29 - OPINION AND ORDER

D. Improvement with Treatment

Finally, the ALJ noted the “medical record revealed the claimant’s condition improved

with appropriate treatment” and identified Plaintiff's numerous reports of improvement through

medication and counseling. (Admin. R. at. 22-23.) Plaintiff reported his treatment, primarily

medication, eliminated or reduced problems with racing or negative thoughts, paranoia,

unexpected mood swings, and anger, as well as improved his sleep and function. (Admin. R. at.

436, 452, 569.) He indicated his medications were “doing what they are supposed to be doing,”

and described himself to be “pretty damn content” and “feeling much better.” (Admin. R. at. 544,

569, 706.) Evidence of medical treatment successfully relieving symptoms can undermine a claim

of disability. Wellington vy. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (citing 20 C.F.R. §

404.1520a(c)(1)). Plaintiffs reports of improvement are inconsistent with his symptom testimony

indicating his condition had not improved, and maybe even worsened, since he was last employed.

The ALJ did not err in discounting Plaintiff's testimony based on his reported improvement with

treatment.

Il. Lay Witness Testimony

Plaintiff argues the ALJ erred in his assessment of statements from Nancy, Carolee, and

Blanchard because he failed to “provide germane reasons, supported by the record, to justify

finding their statements to be unpersuasive.” (PI.’s Opening Brief, ECF No. 15 (Pl.’s Brief”), at

17.) Lay-witness testimony regarding a claimant’s symptoms is competent evidence the ALJ must

consider unless he “expressly determines to disregard such testimony and gives reasons germane

to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The ALJ’s

reasons for rejecting lay-witness testimony must also be “specific.” Stout v. Comm'r, Soc. Sec.

PAGE 30 - OPINION AND ORDER

Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). Germane reasons for discrediting a lay-witness’s

testimony include inconsistency with the medical evidence and testimony that “generally

repeat[s]” the properly discredited testimony of a claimant. Bayliss v. Barnhart, 427 F.3d 1211,

1218 (9th Cir. 2005). See also Williams v. Astrue, 493 F. App’x 866 (9th Cir. 2012). The ALJ is

not required, however, “to discuss every witness’s testimony on a[n] individualized, witness-by-

witness basis. Rather, if the ALJ gives germane reasons for rejecting testimony by one witness,

the ALJ need only point to those reasons when rejecting similar testimony by a different witness.”

Molina y. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). “Although the ALJ must consider evidence

from nonmedical sources pursuant to § 404.1520c(d) of the amended regulations, the ALJ is ‘not

required to articulate how [he] consider[s] evidence from nonmedical sources’ and he does not

have to use the same criteria as required for medical sources. The amended regulations, however,

do not eliminate the need for the ALJ to articulate his assessment of the lay-witness statements.”

Tanya L. L. v. Comm’r of Soc. Sec., No, 3:20-CV-00078-BR, 2021 WL 981492, at *7 (D. Or. Mar.

16, 2021).

The ALJ provided the requisite justification to discount the lay-witness testimony. The

ALJ expressly found the lay testimony to be inconsistent with, or not supported by, “the

preponderance of the opinions and medical evidence in the case.” (Admin. R. at 25.) This is an

appropriate justification supported by the evidence. Bayliss, 427 F.3d at 1218 (It is appropriate to

reject the testimony of a lay witness where it is inconsistent with medical evidence.) Furthermore,

the ALJ questioned the lay witnesses’ ability to be completely honest based on the natural tendency

for family and friends to agree with and adopt limitations identified by the Plaintiff and noted the

limitations described by the lay witnesses are inconsistent with other evidence in the record, which

PAGE 31 - OPINION AND ORDER

suggests a greater level of functioning. The testimony offered by the lay witnesses on the limiting

effect of Plaintiff's impairments are substantially similar to that Plaintiff provided. The court has

found the ALJ did not err in discounting Plaintiffs testimony and those reasons apply equally to

Nancy, Carolee, and Blanchard.

Ul. Medical Testimony

Plaintiff contends the “ALJ erred because he failed to properly weigh the medical opinions

per the regulations and failed to provide the supported reasoning to discount the examining

physician opinion.” (PI.’s Brief at 4.) He specifically complains that the ALJ found unpersuasive

Dr. Fuller’s “conclusion that Plaintiff was disabled and unable to work.”’ (Pl.’s Brief at 5.)

Plaintiff filed his application for Benefits on November 14, 2017. “For claims filed on or

after March 27, 2017, Federal Regulation 20 C.F.R. 416.920c governs how an ALJ must evaluate

medical opinion evidence.” 7yrone W. v. Saul, No. 3:19-cv-01719-IM, 2020 WL 6363839, at * 6

(D. Or. Oct. 28, 2020) (citing Revisions to Rules Regarding the Evaluation of Medical Evidence

(“Revisions to Rules”), 2017 WL 168818, 82 Fed. Reg. 5844, at *5867-68 (Jan. 18, 2017)); see

also Linda F. v. Saul, No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020)

(“Because plaintiff filed her applications after March 27, 2017, new regulations apply to the ALJ’s

evaluation of medical opinion evidence.”), The new regulations provide the Commissioner “will

not defer or give any specific evidentiary weight, including controlling weight, to any medical

opinion(s)..., including those from your medical sources.” See 20 C.F.R. § 404.1520c(a) (2020).

7 Plaintiff does not challenge the ALJ’s finding as unpersuasive Inaba’s opinion Plaintiff's

impairments would cause him to be absent from work more than two days per month. (Pl.’s Brief

at 5 n.1.)

PAGE 32 - OPINION AND ORDER

Instead, the Commissioner must consider all medical opinions and “evaluate the persuasiveness”

of such opinions using the factors specified in the regulations. 20 C.F.R. § 404.1520c(b) (2020).

Those factors include “supportability,” “consistency,” “relationship with the claimant,”

“specialization,” and “other factors.” 20 C.F.R. § 404.1520c(a). The factors of “supportability”

and “consistency” are “the most important factors” in the evaluation process. 20 C.F.R. □□□

404,.1520c(a), 404.1520c(b)(2).

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.” 20

C.F.R. §§ 404.1520c(b). The ALJ is not required to explain how he or she considered the

secondary factors unless he or she finds that two or more medical opinions about the same issue

are equally well-supported and consistent with the record but not identical. 20 C.F.R. §§

404.1520c(b)(3). The court must, however, continue to consider whether the ALJ’s analysis has

the support of substantial evidence. See 42 U.S.C. § 405(g); see also Hammock, 879 F.2d 498, 501

(9th Cir. 1989),

The ALJ found Dr. Fuller’s opinion “unpersuasive to the conclusion that the claimant is

disabled and unable to work” because Dr. Fuller failed to provide a function-by-function analysis

relevant to disability evaluation and overestimated Plaintiff's limitations based on Plaintiff's

ability to perform some work. (Admin. R. at 24.) Dr. Fuller did not expressly conclude Plaintiff

was disabled but did believe “a neurocognitive disorder exists that prevents [Plaintiff] from being

effective in work settings, home activities and personal concerns.” (Admin. R. at 711-12.)

Dr. Fuller’s broad statement that Plaintiffs disorder prevents him from being effective in

work settings is too general to be persuasive. He does not identify which functional limitations

PAGE 33 - OPINION AND ORDER

are problematic in a work setting or in which work settings Plaintiff would have difficulties. Dr.

Fuller’s testing revealed Plaintiff had poor inability to work with others and significant anger

expression that limited his ability to have successful relationships. Based on the test results, Dr.

Fuller described. Plaintiff as antisocial, characterized by problems with authority figures and

difficulties with interpersonal relationships. However, Dr. Fuller did not opine on Plaintiff's

ability to perform in work settings with minimal interaction with coworkers and no interaction

with the general public, nor did he identify the extent to which Plaintiff's antisocial behavior

limited his ability to work when compared to other identified issues, such as memory, attention,

and spatial relationships. Accordingly, Dr. Fuller’s statement Plaintiff may not be effective in

work settings is not adequately explained to the degree necessary to be helpful to the ALJ in

determining disability.

Moreover, to the extent Dr. Fuller opined Plaintiff was disabled, he ventured beyond his

expertise as a medical provider and into the expertise of the ALJ. The new rules expressly provide

statements that a claimant is disabled or unable to work are reserved to the Commissioner and are

“inherently neither valuable nor persuasive to the issue of whether you are disabled” under the

Act. 20 C.F.R. § 404.1520b(c)(3) (2020). The ALJ properly rejected as unpersuasive Dr. Fuller’s

opinion of Plaintiff as “disabled” for the purposes of the Act. The absence of evidence from Dr.

Fuller on the degree to which Plaintiff's mental impairments affect his ability to perform specific

mental demands of work activities, such as responding appropriately to supervision, co-workers,

or the public, limits the supportability and consistency of the remainder of his opinion.

Finally, the ALJ noted the limitations identified by Dr. Fuller are not consistent with other

evidence in the record, particularly Plaintiff's reports of daily activity evidencing his willingness

PAGE 34 - OPINION AND ORDER

and ability to interact with crowds and other vendors at the Expo, farmers’ markets, and garage

sales. Additionally, the limitations are contradicted by Inaba’s conclusion Plaintiff retained

“unlimited or very good” ability to accept instructions and respond appropriately to criticism from

supervisors, work in coordination and get along with others, interact appropriately with the general

public, and maintain socially appropriate behavior. The ALJ offered appropriate reasons for

rejecting Dr. Fuller’s opinion as unpersuasive which are supported by the record.

The ALJ’s findings as persuasive the reviewing physician’s opinions on Plaintiff's mental

limitations are similarly appropriate and supported by the record. The reviewing physicians found

Plaintiff only mildly to moderately limited in his ability to interact with others. These findings are

supported by Inaba’s conclusions and consistent with the medical record, take into account

Plaintiff's consistent reports of improvement with treatment, and are consistent with evidence of

Plaintiff's functional level. The court finds the ALJ properly weighed the medical evidence and

did not err by finding Dr. Fuller’s opinion unpersuasive or in relying on the reviewing physician’s

opinions.

IV. Residual Functional Capacity

Plaintiff argues the ALJ improperly assessed his residual functional capacity and thus erred

at step five. Plaintiff claims the ALJ should have acknowledged Plaintiffs significant impairment

in his ability to interact with others and found him disabled in accordance with SSR 81-15. (Pl.’s

Brief at 22.)

The “residual functional capacity is the most [a claimant] can still do despite [his]

limitations,” 20 C.F.R. § 404.1545(a)(1). The ALJ found Plaintiff capable of a full range of work

at all exertional levels but limited Plaintiff to simple, routine tasks, no contact with the general

PAGE 35 - OPINION AND ORDER

public, and only occasional superficial conduct with coworkers and supervisors. The ALJ

expressly acknowledged Plaintiff's impairment in his ability to interact with others by prohibiting

contact with the public and allowing only occasional, superficial conduct with coworkers.

Prior to determining Plaintiff's residual functional capacity, the ALJ properly discounted

Plaintiffs testimony and rejected lay testimony describing the extent to which Plaintiff's mental

impairments limited his ability to interact with others. Additionally, he provided appropriate

justification for finding Dr. Fuller’s opinion unpersuasive. The ALJ’s residual functional capacity

finding and hypothetical included limitations which the record supported and, consequently, □□□ .

proper. Because he posed a hypothetical question to the vocational expert that incorporated a

proper residual functional capacity assessment, the vocational expert’s testimony is substantial

evidence for the ALJ’s step five finding, and that finding is affirmed.

Conclusion

The Commissioner’s findings on Plaintiffs disabilities, considering the record as a whole,

are supported by substantial evidence. The decision of the Commissioner is AFFIRMED.

DATED this ZX BA day of June, 2021.

Sf Jf.

JOHN V. ACOSTA

United States Magistrate Judge

PAGE 36 - OPINION AND ORDER