affirming the ALJ’s finding that treating physicians’ 17 short-term excuse from work was not indicative of “claimant’s long-term 18 functioning”
How later courts described this case
- affirming the ALJ’s finding that treating physicians’ 17 short-term excuse from work was not indicative of “claimant’s long-term 18 functioning”
- requiring the ALJ to sufficiently 17 explain why it discounted claimant’s symptom claims
- “[W]hen the evidence is susceptible to more than one 16 rational interpretation” the court will not reverse the ALJ’s decision
- “Several courts, including this one, have recognized that disability 9 claimants should not be penalized for attempting to lead normal lives in the face of 10 their limitations.”
Written by the judges who cited it.
The opinion
1 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON
Aug 10, 2022
2
SEAN F. MCAVOY, CLERK
3
4
5 UNITED STATES DISTRICT COURT
6 EASTERN DISTRICT OF WASHINGTON
7 JEANETTE R.,1 No. 1:20-cv-03218-MKD
8 Plaintiff, ORDER DENYING
PLAINTIFF’S MOTION FOR
9 v. SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S
10 KILOLO KIJAKAZI, ACTING MOTION FOR SUMMARY
COMMISSIONER OF SOCIAL JUDGMENT
11 SECURITY,2
ECF Nos. 19, 20
12 Defendant.
13
14 1 To protect the privacy of plaintiffs in social security cases, the undersigned
15 identifies them by only their first names and the initial of their last names. See
16 LCivR 5.2(c).
17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9,
18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo
19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further
20 action need be taken to continue this suit. See 42 U.S.C. § 405(g).
2
1 Before the Court are the parties’ cross-motions for summary judgment. ECF
2 Nos. 19, 20. The Court, having reviewed the administrative record and the parties’
3 briefing, is fully informed. For the reasons discussed below, the Court denies
4 Plaintiff’s motion, ECF No. 19, and grants Defendant’s motion, ECF No. 20.
5 JURISDICTION
6 The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g);
7 1383(c)(3).
8 STANDARD OF REVIEW
9 A district court’s review of a final decision of the Commissioner of Social
10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is
11 limited; the Commissioner’s decision will be disturbed “only if it is not supported
12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,
13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a
14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159
15 (quotation and citation omitted). Stated differently, substantial evidence equates to
16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and
17 citation omitted). In determining whether the standard has been satisfied, a
18 reviewing court must consider the entire record as a whole rather than searching
19 for supporting evidence in isolation. Id.
20
2
1 In reviewing a denial of benefits, a district court may not substitute its
2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152,
3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one
4 rational interpretation, [the court] must uphold the ALJ’s findings if they are
5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674
6 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §§
7 404.1502(a), 416.902(a). Further, a district court “may not reverse an ALJ’s
8 decision on account of an error that is harmless.” Id. An error is harmless “where
9 it is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at
10 1115 (quotation and citation omitted). The party appealing the ALJ’s decision
11 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders,
12 556 U.S. 396, 409-10 (2009).
13 FIVE-STEP EVALUATION PROCESS
14 A claimant must satisfy two conditions to be considered “disabled” within
15 the meaning of the Social Security Act. First, the claimant must be “unable to
16 engage in any substantial gainful activity by reason of any medically determinable
17 physical or mental impairment which can be expected to result in death or which
18 has lasted or can be expected to last for a continuous period of not less than twelve
19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s
20 impairment must be “of such severity that he is not only unable to do his previous
2
1 work[,] but cannot, considering his age, education, and work experience, engage in
2 any other kind of substantial gainful work which exists in the national economy.”
3 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
4 The Commissioner has established a five-step sequential analysis to
5 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§
6 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner
7 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i),
8 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the
9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§
10 404.1520(b), 416.920(b).
11 If the claimant is not engaged in substantial gainful activity, the analysis
12 proceeds to step two. At this step, the Commissioner considers the severity of the
13 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the
14 claimant suffers from “any impairment or combination of impairments which
15 significantly limits [his or her] physical or mental ability to do basic work
16 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c),
17 416.920(c). If the claimant’s impairment does not satisfy this severity threshold,
18 however, the Commissioner must find that the claimant is not disabled. Id.
19 At step three, the Commissioner compares the claimant’s impairment to
20 severe impairments recognized by the Commissioner to be so severe as to preclude
2
1 a person from engaging in substantial gainful activity. 20 C.F.R. §§
2 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more
3 severe than one of the enumerated impairments, the Commissioner must find the
4 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d).
5 If the severity of the claimant’s impairment does not meet or exceed the
6 severity of the enumerated impairments, the Commissioner must pause to assess
7 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),
8 defined generally as the claimant’s ability to perform physical and mental work
9 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§
10 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the
11 analysis.
12 At step four, the Commissioner considers whether, in view of the claimant’s
13 RFC, the claimant is capable of performing work that he or she has performed in
14 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
15 If the claimant is capable of performing past relevant work, the Commissioner
16 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).
17 If the claimant is incapable of performing such work, the analysis proceeds to step
18 five.
19 At step five, the Commissioner considers whether, in view of the claimant’s
20 RFC, the claimant is capable of performing other work in the national economy.
2
1 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination,
2 the Commissioner must also consider vocational factors such as the claimant’s age,
3 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),
4 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the
5 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§
6 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other
7 work, the analysis concludes with a finding that the claimant is disabled and is
8 therefore entitled to benefits. Id.
9 The claimant bears the burden of proof at steps one through four above.
10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to
11 step five, the burden shifts to the Commissioner to establish that 1) the claimant is
12 capable of performing other work; and 2) such work “exists in significant numbers
13 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v.
14 Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
15 ALJ’S FINDINGS
16 On August 13, 2014, Plaintiff applied both for Title II disability insurance
17 benefits and Title XVI supplemental security income benefits alleging a disability
18
19
20
2
1 onset date of December 1, 2013.3 Tr. 66-67, 210-26, 1026. The applications were
2 denied initially and on reconsideration. Tr. 131-34, 143-54. Plaintiff appeared
3 before an administrative law judge (ALJ) on March 2, 2017. Tr. 44-65. On May
4 17, 2017, the ALJ denied Plaintiff’s claim. Tr. 15-40. Plaintiff appealed the
5 denial; the Appeals Council declined to review the decision, and this Court then
6 remanded the case. Tr. 1-6, 1143-53. Plaintiff appeared for a remand hearing on
7 July 13, 2020. Tr. 1075-1104. On August 4, 2020, the ALJ again denied
8 Plaintiff’s claim. Tr. 1023-50.
9 At step one of the sequential evaluation process, the ALJ found Plaintiff,
10 who met the insured status requirements through September 30, 2019, has not
11 engaged in substantial gainful activity since December 1, 2013. Tr. 1029. At step
12 two, the ALJ found that Plaintiff has the following severe impairments: spinal
13 impairment(s), dermatitis, carpal tunnel syndrome, fibromyalgia, migraine
14 headaches, mood disorder(s), anxiety disorder(s) (including PTSD), and
15 personality disorder(s). Id.
16
17
18 3 Plaintiff applied for Title II and Title XVI benefits on September 2, 2010, and
19 again applied for Title II benefits on June 19, 2012; both applications were initially
20 denied and not appealed. Tr. 69.
2
1 At step three, the ALJ found Plaintiff does not have an impairment or
2 combination of impairments that meets or medically equals the severity of a listed
3 impairment. Id. The ALJ then concluded that Plaintiff has the RFC to perform
4 light work with the following limitations:
5 [Plaintiff] can frequently climb ramps and stairs. She can
occasionally kneel, crouch, crawl, and climb ladders. She can
6 frequently handle and finger bilaterally. She should avoid
concentrated exposure to humidity, wetness, extreme temperatures,
7 pulmonary irritants, and hazards. She can understand, remember, and
carry out simple instructions. She can exercise simple workplace
8 judgment and can perform work that is learned on the job in less than
thirty days by short demonstration and practice or repetition. She can
9 respond appropriately to supervision and can have occasional
superficial interaction with coworkers. She can work in jobs that
10 require only occasional and superficial interaction or contact with the
general public. She can deal with occasional changes in the work
11 environment.
12 Tr. 1031.
13 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 1040.
14 At step five, the ALJ found that, considering Plaintiff’s age, education, work
15 experience, RFC, and testimony from the vocational expert, there were jobs that
16 existed in significant numbers in the national economy that Plaintiff could perform,
17 such as production assembler, electrical accessories assembler I, and routing clerk.
18 Tr. 1041. Therefore, the ALJ concluded Plaintiff was not under a disability, as
19 defined in the Social Security Act, from the alleged onset date of December 1,
20 2013, through the date of the decision. Tr. 1042.
2
1 Per 20 C.F.R. §§ 404.984, 416.1484 the ALJ’s decision following this
2 Court’s prior remand became the Commissioner’s final decision for purposes of
3 judicial review.
4 ISSUES
5 Plaintiff seeks judicial review of the Commissioner’s final decision denying
6 her disability insurance benefits under Title II and supplemental security income
7 benefits under Title XVI of the Social Security Act. Plaintiff raises the following
8 issues for review:
9 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims;
10 2. Whether the ALJ properly evaluated the medical opinion evidence; and
11 3. Whether the ALJ properly evaluated the lay opinion evidence.4
12 ECF No. 19 at 2.
13 DISCUSSION
14 A. Plaintiff’s Symptom Claims
15 Plaintiff faults the ALJ for failing to rely on reasons that were clear and
16 convincing in discrediting her symptom claims. ECF No. 19 at 3-12. An ALJ
17 engages in a two-step analysis to determine whether to discount a claimant’s
18
19 4 Plaintiff lists the medical opinion and lay opinion evidence issues as one issue;
20 however, the Court addresses the issues separately.
2
1 testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029, at *2.
2 “First, the ALJ must determine whether there is objective medical evidence of an
3 underlying impairment which could reasonably be expected to produce the pain or
4 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted).
5 “The claimant is not required to show that [the claimant’s] impairment could
6 reasonably be expected to cause the severity of the symptom [the claimant] has
7 alleged; [the claimant] need only show that it could reasonably have caused some
8 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
9 Second, “[i]f the claimant meets the first test and there is no evidence of
10 malingering, the ALJ can only reject the claimant’s testimony about the severity of
11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the
12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations
13 omitted). General findings are insufficient; rather, the ALJ must identify what
14 symptom claims are being discounted and what evidence undermines these claims.
15 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v.
16 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently
17 explain why it discounted claimant’s symptom claims)). “The clear and
18 convincing [evidence] standard is the most demanding required in Social Security
19 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v.
20 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
2
1 Factors to be considered in evaluating the intensity, persistence, and limiting
2 effects of a claimant’s symptoms include: 1) daily activities; 2) the location,
3 duration, frequency, and intensity of pain or other symptoms; 3) factors that
4 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and
5 side effects of any medication an individual takes or has taken to alleviate pain or
6 other symptoms; 5) treatment, other than medication, an individual receives or has
7 received for relief of pain or other symptoms; 6) any measures other than treatment
8 an individual uses or has used to relieve pain or other symptoms; and 7) any other
9 factors concerning an individual’s functional limitations and restrictions due to
10 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§
11 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in
12 an individual’s record,” to “determine how symptoms limit ability to perform
13 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2.
14 The ALJ found that Plaintiff’s medically determinable impairments could
15 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s
16 statements concerning the intensity, persistence, and limiting effects of her
17 symptoms were not entirely consistent with the evidence. Tr. 1032.
18 1. Work History
19 The ALJ found Plaintiff’s work history was inconsistent with Plaintiff’s
20 allegations. Tr. 1032-33. Working with an impairment supports a conclusion that
2
1 the impairment is not disabling. Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir.
2 1992); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)
3 (seeking work despite impairment supports inference that impairment is not
4 disabling). However, short-term work, which does not demonstrate the ability to
5 sustain substantial gainful employment, may be considered an unsuccessful work
6 attempt instead of substantial gainful activity. Gatliff v. Comm’r Soc. Sec. Admin.,
7 172 F.3d 690, 694 (9th Cir. 1999); see also Reddick v. Chater, 157 F.3d 715, 722
8 (9th Cir. 1998) (“Several courts, including this one, have recognized that disability
9 claimants should not be penalized for attempting to lead normal lives in the face of
10 their limitations.”).
11 The ALJ noted Plaintiff was able to sustain part-time work even during
12 periods when she had little to no treatment for her impairments. Tr. 1032.
13 Plaintiff was able to work part-time as a cashier from 2010 through December
14 2013, and as a part-time receptionist from January 2014 through May 2014. Tr.
15 1033. However, Plaintiff alleges her disability begin in December 2013. Tr. 1026.
16 In 2014, Plaintiff earned $2,626 from one employer and $2,322 from another,
17 totaling to $4,949. Tr. 1226. Plaintiff reported the most recent job ended due to
18 her uncontrolled mood swings but reported to another provider that the job ended
19 due to her pain. Tr. 1033 (citing Tr. 452, 476). The ALJ found Plaintiff’s ability
20 to work in a semi-skilled receptionist job that required some social interaction was
2
1 inconsistent with Plaintiff’s reported severe limitations. Tr. 1033. Plaintiff’s
2 ability to work well below the substantial gainful activity level for only five
3 months past her alleged onset date does not demonstrate any clear inconsistency,
4 although Plaintiff reported varying reasons for why the work ended. However, any
5 error in the ALJ’s consideration of Plaintiff’s work history is harmless as the ALJ
6 gave other supported reasons to reject Plaintiff’s claims, as discussed infra. See
7 Molina, 674 F.3d at 1115.
8 2. Lack of Treatment
9 The ALJ found Plaintiff’s lack of treatment was inconsistent with Plaintiff’s
10 allegations. Tr. 1032-33. An unexplained, or inadequately explained, failure to
11 seek treatment or follow a prescribed course of treatment may be considered when
12 evaluating the claimant’s subjective symptoms. Orn v. Astrue, 495 F.3d 625, 638
13 (9th Cir. 2007). And evidence of a claimant’s self-limitation and lack of
14 motivation to seek treatment are appropriate considerations in determining the
15 credibility of a claimant’s subjective symptom reports. Osenbrock v. Apfel, 240
16 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App’x 45, *3 (9th
17 Cir. 2009) (unpublished opinion) (considering why plaintiff was not seeking
18 treatment). When there is no evidence suggesting that the failure to seek or
19 participate in treatment is attributable to a mental impairment rather than a
20 personal preference, it is reasonable for the ALJ to conclude that the level or
2
1 frequency of treatment is inconsistent with the alleged severity of complaints.
2 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental
3 health treatment is partly due to a claimant’s mental health condition, it may be
4 inappropriate to consider a claimant’s lack of mental health treatment when
5 evaluating the claimant’s failure to participate in treatment. Nguyen v. Chater, 100
6 F.3d 1462, 1465 (9th Cir. 1996).
7 The ALJ noted Plaintiff had a gap in mental health care from March 2013
8 through August 2014. Tr. 1033 (citing Tr.1675-76). Plaintiff again had a lapse in
9 mental health care from March 2015 through August 2015. Tr. 1035 (citing Tr.
10 969). She then had a lapse from March to June 2018. Tr. 1035 (citing Tr. 1452-
11 53). When she saw the medication prescriber again in July 2018, the provider
12 stated, “This provider noted quite clearly that her poor follow up is impeding her
13 [mental health] care, and that this provider was not comfortable prescribing
14 medications without follow up.” Tr. 1484. Plaintiff again had a lapse in care prior
15 to April 2019, when she went 10 months without seeking medication management.
16 Tr. 1035 (citing Tr. 1311). Treatment records document Plaintiff’s non-
17 compliance with taking prescribed mental health medications. Tr. 1035-36.
18 Plaintiff argues she had reasons for the non-compliance but does not offer
19 reasoning for why she did not consistently pursue other treatment. Plaintiff
20 discusses only the March 2013 through August 2014 gap. She argues her alleged
2
1 onset date is December 2013 and she returned to treatment by June 2014 when she
2 reported suicidal thoughts. ECF No. 19 at 4 (citing Tr. 453). However, Plaintiff
3 does not address the other gaps in treatment and does not offer any reasons for the
4 gaps.
5 Plaintiff also had no treatment for her reported pain symptoms, headaches,
6 and paresthesia from late 2016 through January 2018, and after re-establishing care
7 in January, she then did not return to care again until June 2018. Tr. 1034 (citing
8 Tr. 1797-99, 1805-12). Plaintiff argues her primary care provider was no longer
9 able to see her due to insurance issues beginning in November 2016; however,
10 Plaintiff does not offer an explanation as to why she sought no care from any
11 provider for her physical symptoms until January 2018. ECF No. 19 at 7-8. The
12 record indicates Plaintiff maintained insurance and only needed to find a new
13 provider. Tr. 943. This was a clear and convincing reason, supported by
14 substantial evidence, to reject Plaintiff’s symptom claims.
15 3. Inconsistent Objective Medical Evidence
16 The ALJ found the objective medical evidence was inconsistent with
17 Plaintiff’s symptom claims. Tr. 1033-36. An ALJ may not discredit a claimant’s
18 symptom testimony and deny benefits solely because the degree of the symptoms
19 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261
20 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir.
2
1 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400
2 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a
3 relevant factor, along with the medical source’s information about the claimant’s
4 pain or other symptoms, in determining the severity of a claimant’s symptoms and
5 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2),
6 416.929(c)(2).
7 First, the ALJ found Plaintiff’s mental health symptom complaints were not
8 as severe as alleged. Tr. 1033-36. The ALJ noted that Plaintiff had generally
9 normal psychological findings in treatment settings, while she had differing
10 presentation at appointments related to her seeking state assistance. Tr. 1034.
11 Plaintiff alleged she stopped working in 2014 due to psychological symptoms but
12 reported to a provider in 2014 that her psychological impairment was not
13 impacting her sense of wellbeing. Tr. 1033 (citing Tr. 476). While Plaintiff had
14 some abnormalities at some appointments, such as abnormal thoughts and fund of
15 knowledge, and poor memory and judgment, Tr. 1035 (citing Tr. 497-511, 966),
16 Plaintiff had generally normal mood, grooming, behavior, speech, affect, memory,
17 and eye contact at multiple appointments, Tr. 1035 (citing Tr. 497-511, 920-22,
18 958, 960-61, 967). Several medical records document that Plaintiff’s complaints
19 were incongruent with her presentation. Tr. 1035. She reported feeling tired while
20 appearing energetic at one appointment. Id. (citing Tr. 1452-53). At another
2
1 appointment, her affect was deemed incongruent with her reportedly tired mood.
2 Tr. 1035 (citing Tr. 920-22). Records in 2016 and 2017 note that Plaintiff’s
3 psychological complaints were incongruent with her normal affect, speech,
4 behavior, psychomotor activity, eye contact, attention, judgment, and thoughts. Tr.
5 1035 (citing Tr. 936-37, 943-44, 949-50, 1484-85).
6 Additionally, despite limited compliance with prescribed medication,
7 Plaintiff reported improvement each time she tried medication. Tr. 1035-36. In
8 February 2015, Plaintiff reported improvement with medication. Tr. 1035 (citing
9 Tr. 1705). In May 2016, Plaintiff reported improvement in her mood and
10 impulsive anger with medication. Tr. 1035 (citing Tr. 953-54). Plaintiff reported a
11 history of improvement with Lithium. Tr. 1035 (citing Tr. 1353). Plaintiff had
12 normal mood, affect, behavior, eye contact, speech, and motor activity after being
13 prescribed Abilify in 2019. Tr. 1036 (citing Tr. 2056).
14 The ALJ also found Plaintiff’s physical symptoms were not as severe as
15 alleged. Tr. 1033-35. While Plaintiff alleged she stopped working in 2014 due to
16 pain symptoms, the ALJ noted Plaintiff had generally normal physical
17 examinations during that time and she had improvement in her symptoms with
18 only conservative treatment. Tr. 1033. Plaintiff reported pain and numbness but
19 exhibited symmetric strength and no swelling. Id. (citing Tr. 476-77, 479-80, 482-
20 82). In June 2015, she had a normal examination despite ongoing complaints, and
2
1 later in 2015, she had generally normal exams except positive fibromyalgia tender
2 points. Tr. 1033 (citing Tr. 866-83, 887-89). Plaintiff had multiple generally
3 normal examinations through 2015 and 2016, during which she reported doing
4 well on Lyrica and she reported having no physical disability and normal activities
5 of daily living. Tr. 1033 (citing, e.g., Tr. 866, 869, 893-94). Plaintiff then had a
6 gap in treatment until January 2018, when she was told to use wrist braces, and
7 exercise, and when she returned in June 2018, she was again told to use braces,
8 exercise, and take over-the-counter medication. Tr. 1034 (citing Tr. 1797-1800,
9 1805-12). In January 2019, Plaintiff reported pain of nine out of 10, but she was
10 positive for tenderness in all 18 fibromyalgia points as well as two control sites.
11 Tr. 1034 (citing Tr. 1748). Plaintiff reported ongoing severe pain but failed to
12 follow-up with physical therapy appointments. Tr. 1034 (citing Tr. 1714-15). At a
13 December 2019 examination, Plaintiff reported chronic pain but had normal gait,
14 reflexes, sensation, and range of motion. Tr. 1034 (citing Tr. 2011-12).
15 Several appointments documented inconsistencies between Plaintiff’s
16 reported symptoms and the objective findings. Tr. 1034. Plaintiff had normal
17 sensation at multiple appointments, and strength testing that was deemed
18 inconsistent with her presentation, sensation testing that did not follow a
19 dermatomal pattern, and fibromyalgia tender point testing that included Plaintiff
20 reporting tenderness in areas not associated with fibromyalgia. Id. (citing Tr.
2
1 2013-20, 2023, 2025-26). Plaintiff also had pain responses that were deemed
2 disproportionate. Tr. 1034 (citing Tr. 2081, 2084).
3 Plaintiff argues the ALJ erred because the normal findings are not
4 inconsistent with disabling fibromyalgia and fibromyalgia symptoms are not
5 expected to follow a dermatomal pattern. ECF No. 19 at 4-5. However, Plaintiff
6 offers no argument regarding her reported positive symptoms at control points, and
7 her carpal tunnel syndrome symptoms not following a dermatomal pattern. While
8 Plaintiff also argues the ALJ erred in considering that she was not in acute distress
9 at appointments, id., the ALJ reasonably found Plaintiff reporting a pain level of 15
10 on a 10-point scale was inconsistent with a lack of distress, Tr. 1034 (citing Tr.
11 1729-33, 1738). Plaintiff also argues the ALJ failed to consider evidence that
12 demonstrated more severe symptoms of carpal tunnel syndrome; however, the
13 Court may not reverse the ALJ’s decision based on Plaintiff’s disagreement with
14 the ALJ’s interpretation of the record. See Tommasetti v. Astrue, 533 F.3d 1035,
15 1038 (9th Cir. 2008) (“[W]hen the evidence is susceptible to more than one
16 rational interpretation” the court will not reverse the ALJ’s decision).
17 The ALJ reasonably found Plaintiff’s symptom claims were inconsistent
18 with the objective medical evidence. This was a clear and convincing reason,
19 along with the other reasons offered, to reject Plaintiff’s symptom claims.
20
2
1 4. Activities of Daily Living
2 The ALJ found Plaintiff’s activities of daily living were inconsistent with
3 her allegations. Tr. 1036. The ALJ may consider a claimant’s activities that
4 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a
5 substantial part of the day engaged in pursuits involving the performance of
6 exertional or non-exertional functions, the ALJ may find these activities
7 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina,
8 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to
9 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when
10 the claimant reports participation in everyday activities indicating capacities that
11 are transferable to a work setting” or when activities “contradict claims of a totally
12 debilitating impairment.” Molina, 674 F.3d at 1112-13.
13 The ALJ found Plaintiff’s activities were inconsistent with her allegations of
14 severe physical and psychological symptoms. Tr. 1036. Plaintiff has reported
15 being fully independent in her activities, including being able to handle housework,
16 clean her house daily, and shop. Id. (citing Tr. 497-511, 2060). Plaintiff has
17 reported normal activities of daily living at appointments. Tr. 1036 (citing Tr. 866,
18 869, 877, 881). Plaintiff has also reported being busy caring for two young
19 children while cleaning her home. Tr. 1036 (citing Tr. 1476, 1482). Plaintiff is
20 able to go on walks regularly and take children to the park. Tr. 1036 (citing Tr.
2
1 2060). In 2015, Plaintiff reported she was fully independent in her self-care and
2 living skills, including being able to handle housework, shop independently,
3 manage funds and bills, and drive. Tr. 500.
4 Plaintiff argues her symptoms wax and wane, and the ALJ failed to identify
5 inconsistencies between her periodic symptoms and periodic activities and the ALJ
6 did not identify specific childcare activities. ECF No. 19 at 11-12. Plaintiff also
7 argues her cleaning is a symptom of her obsessive-compulsive disorder, and a
8 hindrance to her ability to work. Id. However, the ALJ noted that Plaintiff is able
9 to clean her house every day, Tr. 1036 (citing Tr. 2060), which is inconsistent with
10 her reported physical inability to perform activities of daily living on a regular
11 basis. While the ALJ did not identify specific childcare activities beyond taking
12 the children to the park, Plaintiff was performing tasks like daily cleaning while
13 also providing part-time childcare to a one-year-old and three-year-old. Tr. 1036,
14 1476, 1482. Any error in failing to identify specifics of the childcare is harmless
15 as the ALJ identified other activities that were inconsistent with her allegations and
16 the ALJ gave other supported reasons to reject Plaintiff’s symptom claims. See
17 Molina, 674 F.3d at 1115. This was a clear and convincing reason, supported by
18 substantial evidence, to reject Plaintiff’s symptom claims. Plaintiff is not entitled
19 to remand on these grounds.
20
2
1 B. Medical Opinion Evidence
2 Plaintiff contends the ALJ erred in his consideration of the opinions of Jay
3 Toews, Ed.D.; Suzanne Damstedt, M.A.; Barbara MacKenzie, ARNP; Patrick
4 Waber, M.D.; and Eugene Kester, M.D. ECF No. 19 at 12-20.
5 There are three types of physicians: “(1) those who treat the claimant
6 (treating physicians); (2) those who examine but do not treat the claimant
7 (examining physicians); and (3) those who neither examine nor treat the claimant
8 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).”
9 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted).
10 Generally, a treating physician’s opinion carries more weight than an examining
11 physician’s, and an examining physician’s opinion carries more weight than a
12 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight
13 to opinions that are explained than to those that are not, and to the opinions of
14 specialists concerning matters relating to their specialty over that of
15 nonspecialists.” Id. (citations omitted).
16 If a treating or examining physician’s opinion is uncontradicted, the ALJ
17 may reject it only by offering “clear and convincing reasons that are supported by
18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
19 “However, the ALJ need not accept the opinion of any physician, including a
20 treating physician, if that opinion is brief, conclusory and inadequately supported
2
1 by clinical findings.” Bray, 554 F.3d at 1228 (internal quotation marks and
2 brackets omitted). “If a treating or examining doctor’s opinion is contradicted by
3 another doctor’s opinion, an ALJ may only reject it by providing specific and
4 legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at
5 1216 (citing Lester, 81 F.3d at 830-31). The opinion of a nonexamining physician
6 may serve as substantial evidence if it is supported by other independent evidence
7 in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
8 “Only physicians and certain other qualified specialists are considered
9 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original);
10 see 20 C.F.R. §§ 404.1513, 416.913 (2013).5 However, an ALJ is required to
11 consider evidence from non-acceptable medical sources, such as therapists. 20
12 C.F.R. §§ 404.1513(d), 416.913(d) (2013).6 An ALJ may reject the opinion of a
13
14 5 The regulation that defines acceptable medical sources is found at 20 C.F.R. §§
15 404.1502, 416.902 for claims filed after March 27, 2017. The Court applies the
16 regulation in effect at the time the claim was filed.
17 6 The regulation that requires an ALJ’s consider opinions from non-acceptable
18 medical sources is found at 20 C.F.R. §§ 404.1502c, 416.920c for claims filed after
19 March 27, 2017. The Court applies the regulation in effect at the time the claim
20 was filed.
2
1 non-acceptable medical source by giving reasons germane to the opinion. Ghanim,
2 763 F.3d at 1161.
3 1. Dr. Toews
4 On February 2, 2015, Dr. Toews examined Plaintiff and rendered an opinion
5 on her functioning. Tr. 497-511. Dr. Toews diagnosed Plaintiff with dysthymic
6 disorder, provisional; anxiety disorder, not otherwise specified (NOS), with panic
7 disorder, obsessive-compulsive, generalized anxiety, and PTSD features;
8 personality disorder NOS, with avoidant, dependent, and borderline features; and a
9 rule out diagnosis of cognitive disorder, NOS. Tr. 503. Dr. Toews stated
10 Plaintiff’s WAIS-IV Full Scale IQ is 75, placing Plaintiff in the borderline range.
11 Tr. 501. Dr. Toews opined Plaintiff’s scores indicate a very poor ability to process
12 and utilize more complex information; she would be a poor fit in occupations
13 involving verbal skills for interacting, judging, and decision making; her relatively
14 low verbal intellectual abilities and very low working memory would contribute to
15 difficulty in interpersonal and social interactions; she can understand and follow
16 simple two-step tasks; she can sustain attention but her psychological symptoms
17 would cause a moderate effect overall on her workplace functioning; she would
18 have moderate limitations in relating to coworkers, and making routine
19 judgments/decisions in the work place; she has moderate to marked limitations in
20 interacting with coworkers/supervisors; she has marked limitations with detailed
2
1 instructions; and she has marked to extreme limitations in interacting with the
2 general public. Tr. 501-03. As Dr. Toews’ opinion was contradicted by the
3 opinions of Dr. Kester and Dr. Haney, Tr. 74-75, 101-03, the ALJ was required to
4 give specific and legitimate reasons to reject Dr. Toews’ opinion. See Bayliss, 427
5 F.3d at 1216. The ALJ gave Dr. Toews’ opinion minimal weight, although he
6 credited the portion of the opinion addressing Plaintiff’s ability to sustain attention
7 on simple tasks and have limited contact with the public and coworkers. Tr. 1038.
8 First, the ALJ found Dr. Toews’ opinion was inconsistent with the objective
9 medical evidence. Id. A medical opinion may be rejected if it is unsupported by
10 medical findings. Bray, 554 F.3d at 1228; Batson v. Comm’r of Soc. Sec. Admin.,
11 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas, 278 F.3d at 957; Tonapetyan v.
12 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney v. Sullivan, 981 F.2d 1016,
13 1019 (9th Cir. 1992). An ALJ may discredit physicians’ opinions that are
14 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, an
15 ALJ is not obliged to credit medical opinions that are unsupported by the medical
16 source’s own data and/or contradicted by the opinions of other examining medical
17 sources. Tommasetti, 533 F.3d at 1041. The ALJ noted that Dr. Toews assessed
18 Plaintiff with good grooming, normal behavior, eye contact, speech, and affect,
19 although she had abnormal fund of knowledge, thoughts, memory, and judgment.
20 Tr. 1038. The ALJ also found Plaintiff’s presentation at Dr. Toews’ examination
2
1 differed from her generally normal attention, judgment, and thoughts that she
2 presented with at multiple other appointments. Id. (citing, e.g., Tr. 920-22, 936-37,
3 943-44).
4 The ALJ specifically noted Dr. Toews’ opinion that Plaintiff has social
5 functioning limitations was not supported by objective evidence, Tr. 1038, and
6 Plaintiff argues the opinion was supported by Plaintiff’s imprecise and
7 disorganized speech, need for clarification/examples, flighty thoughts and
8 hypomanic tendencies, ECF No. 19 at 14 (citing Tr. 501). However, Plaintiff was
9 pleasant, cooperative, animated, and gestured appropriately, related well and
10 interacted appropriately, with good eye contact and normal mood, speech rate and
11 volume. Tr. 500-01. While Plaintiff offers an alternative interpretation of the
12 evidence, the Court may not reverse the ALJ’s decision based on Plaintiff’s
13 disagreement with the ALJ’s interpretation of the record. See Tommasetti, 533
14 F.3d at 1038 (“[W]hen the evidence is susceptible to more than one rational
15 interpretation” the court will not reverse the ALJ’s decision). This was a specific
16 and legitimate reason to reject Dr. Toews’ opinion.
17 Second, the ALJ found Dr. Toews’ opinion was inconsistent with the record
18 as a whole. Tr. 1038. An ALJ may discredit physicians’ opinions that are
19 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, the
20 extent to which a medical source is “familiar with the other information in [the
2
1 claimant’s] case record” is relevant in assessing the weight of that source’s medical
2 opinion. See 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). The ALJ found Dr.
3 Toews’ opinion was inconsistent with Plaintiff’s work history, activities, and
4 longitudinal treatment records. Tr. 1038. As discussed supra, Plaintiff’s ability to
5 work prior to the alleged onset date, and below substantial gainful activity level
6 after the alleged onset date, is not clearly inconsistent with disabling limitations.
7 However, the ALJ reasonably found Plaintiff’s activities, including her ability to
8 independently handle her personal care, household chores, and provide childcare
9 for two young children, were inconsistent with Dr. Toews’ opinion.
10 Additionally, the ALJ reasonably found Plaintiff’s longitudinal treatment
11 record, which documents normal attention, judgment, memory, and thoughts, as
12 well as lapses in treatment and compliance with medication, was inconsistent with
13 Dr. Toews’ opinion. Tr. 920-22, 936-37, 943-44, 949-50, 958, 1038. While
14 Plaintiff again offers an alternative interpretation of the evidence and points to
15 evidence of abnormal findings in the record, including impaired insight/judgment,
16 tangential and circumstantial thoughts, ECF No. 19 at 14-15, the ALJ’s
17 interpretation of the evidence is reasonable. While there are abnormalities in the
18 record, there are also numerous visits with normal findings, including normal
19 orientation, thoughts, memory, and insight/judgment. Tr. 1314-15, 1408, 1412,
20
2
1 1453, 1504, 1587, 1812. This was a specific and legitimate reason to reject Dr.
2 Toews’ opinion.
3 Third, the ALJ gave more weight to the State agency opinions than he gave
4 to Dr. Toews’ opinion. Tr. 1038. Generally, an ALJ should accord more weight to
5 the opinion of an examining physician than to that of a non-examining physician.
6 See Andrews, 53 F.3d at 1040-41. However, the opinion of a nonexamining
7 physician may serve as substantial evidence if it is “supported by other evidence in
8 the record and [is] consistent with it.” Id. at 1041. The ALJ found the State
9 agency opinions were more consistent with the record as a whole. Tr. 1038. The
10 State agency consultants, Dr. Kester and Dr. Haney, opined Plaintiff is capable of
11 understanding and remembering simple routine tasks, she can attend to and persist
12 on simple tasks with occasional decreased efficiency due to symptoms, and she is
13 capable of superficial contact with the general public and coworkers. Tr. 85-86,
14 102-03. The ALJ gave Dr. Kester and Dr. Haney’s opinions significant weight.
15 Tr. 1039. The ALJ found the opinions were consistent with Plaintiff’s work
16 history, activities, treatment records and examinations. Tr. 1039-40. As the ALJ
17 considered whether the State agency opinions were supported by and consistent
18 with the other evidence, the ALJ reasonably gave more weight to Dr. Kester and
19 Dr. Haney’s opinions than he gave to Dr. Toews’ opinion. This was a specific and
20 legitimate reason, supported by substantial evidence, to reject Dr. Toews’ opinion.
2
1 2. Ms. Damstedt
2 On January 23, 2017, Ms. Damstedt, a treating counselor, rendered an
3 opinion on Plaintiff’s functioning. Tr. 972-74. Ms. Damstedt opined Plaintiff has
4 mild limitations in her ability to perform activities within a schedule, maintain
5 regular attendance, and be punctual within customary tolerances, and accept
6 instructions and respond appropriately to criticism from supervisors; moderate
7 limitations in her ability to complete a normal workday/workweek without
8 interruptions from psychologically based symptoms and to perform at a consistent
9 pace without an unreasonable number and length of rest periods, and maintain
10 attention and concentration for extended periods; and Plaintiff otherwise is not
11 significantly limited in the remaining areas of functioning. Tr. 972-73. Regarding
12 the “B” criteria, she opined Plaintiff has no limitations in maintaining social
13 functioning, mild limitations in activities of daily living, and moderate limitations
14 in maintaining concentration, persistence, or pace, and she opined Plaintiff meets
15 the “C” criteria. Tr. 974. She further opined Plaintiff would be off-task 12 to 20
16 percent of the time and would miss four or more days per month if she tried to
17 work full-time. Id. As Ms. Damstedt is not an acceptable medical source, the ALJ
18 was required to give germane reasons to reject Ms. Damstedt’s opinion. See
19 Ghanim, 763 F.3d at 1161. The ALJ gave Ms. Damstedt’s opinion minimal
20 weight, except to the degree it is consistent with no to mild limitations. Tr. 1039.
2
1 First, the ALJ found Ms. Damstedt’s opinion was inconsistent with the
2 longitudinal record. Id. An ALJ may discredit physicians’ opinions that are
3 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, the
4 extent to which a medical source is “familiar with the other information in [the
5 claimant’s] case record” is relevant in assessing the weight of that source’s medical
6 opinion. See 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). The ALJ found Ms.
7 Damstedt’s opinion was inconsistent with Plaintiff’s work history, activities,
8 treatment records and longitudinal examinations. Tr. 1039. As discussed supra,
9 the ALJ’s finding that Plaintiff’s activities and treatment record as a whole are
10 inconsistent with disabling limitations is reasonable.
11 Second, the ALJ found Ms. Damstedt’s opinion lacked any basis for her
12 opinions. Tr. 1039. The Social Security regulations “give more weight to opinions
13 that are explained than to those that are not.” Holohan, 246 F.3d at 1202. “[T]he
14 ALJ need not accept the opinion of any physician, including a treating physician, if
15 that opinion is brief, conclusory and inadequately supported by clinical findings.”
16 Bray, 554 F.3d at 1228. However, the fact that an opinion is in the form of a
17 check-box questionnaire is not a proper basis to reject an opinion that is supported
18 by treatment records. See Garrison, 759 F.3d at 1014 n.17.
19 Ms. Damstedt’s opinion consists only of a checked box form and does not
20 contain any explanation. Tr. 972-75. Plaintiff argues Ms. Damstedt’s treatment
2
1 records supported her opinion and points to records showing that Plaintiff reported
2 thoughts of death/suicide on a single occasion and exhibited depressive and manic
3 symptoms on two occasions. ECF No. 19 at 15-16 (citing Tr. 939, 942, 946). Ms.
4 Damstedt’s records document observations of abnormal mood and speech, and
5 Plaintiff’s reported thoughts of suicide/death, impaired sleep, irritability,
6 tearfulness, and impaired concentration. Tr. 939, 942, 946. The appointments
7 focused on Plaintiff’s issues with her boyfriend at the time, and Ms. Damstedt
8 noted that Plaintiff’s lack of progress was likely in part due to the situational issue.
9 Tr. 939-42. Ms. Damstedt’s records contain a repeated paragraph regarding
10 Plaintiff’s self-reported symptoms but contain minimal objective evidence of
11 limitations or symptoms. For example, at a June 2016 appointment, the repeated
12 paragraph discusses self-reported symptoms, and a PHQ-9 score is discussed but
13 no objective evidence is documented. Tr. 952. In July 2016, Plaintiff reported
14 impaired sleep and pain, and there are no notes of objective evidence of symptoms
15 or limitations. Tr. 948. While Ms. Damstedt opined Plaintiff would miss four or
16 more days per month of work, Tr. 974, 1039, there is not documentation of
17 observed symptoms or limitations that explain why Plaintiff would miss four or
18 more days per month of work. The ALJ reasonably found Ms. Damstedt’s opinion
19 lacked a supporting explanation.
20
2
1 Third, the ALJ found Ms. Damstedt’s opinion was internally inconsistent.
2 Tr. 1039. Relevant factors to evaluating any medical opinion include the amount
3 of relevant evidence that supports the opinion, the quality of the explanation
4 provided in the opinion, and the consistency of the medical opinion with the record
5 as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495
6 F.3d at 631. Moreover, a physician’s opinion may be rejected if it is unsupported
7 by the physician’s treatment notes. See Connett v. Barnhart, 340 F.3d 871, 875
8 (9th Cir. 2003). The ALJ found Ms. Damstedt’s opinion internally inconsistent
9 because while she opined Plaintiff has no more than moderate limitations, with
10 most areas of functioning being rated no to mild limitations, Ms. Damstedt opined
11 Plaintiff would miss four or more days per month and would be off-task up to 20
12 percent of the time. Tr. 971-74. The ALJ reasonably found the opinion was
13 internally inconsistent.
14 Lastly, the ALJ gave more weight to the State agency opinions than he gave
15 to Ms. Damstedt’s opinion. Tr. 1039. The opinion of a nonexamining physician
16 may serve as substantial evidence if it is “supported by other evidence in the record
17 and [is] consistent with it.” Andrews, 53 F.3d at 1041. As discussed supra, the
18 ALJ reasonably found the State agency opinions were consistent with and
19 supported by the longitudinal record.
20
2
1 3. Ms. MacKenzie
2 On September 18, 2015, Ms. MacKenzie, a treating nurse practitioner,
3 rendered an opinion on Plaintiff’s functioning. Tr. 523-25. Ms. MacKenzie
4 opined Plaintiff has mild limitations in her ability to remember locations and work-
5 like procedures, understand and remember very short and simple instructions,
6 understand and remember detailed instructions, carry out very short simple
7 instructions, ask simple questions or request assistance, be aware of normal
8 hazards and take appropriate precautions, and set realistic goals or make plans
9 independently of others; moderate limitations in her ability to carry out detailed
10 instructions, perform activities within a schedule, maintain regular attendance and
11 be punctual within customary tolerances, make simple work-related decisions,
12 accept instructions and respond appropriately to criticism from supervisors, get
13 along with coworkers or peers without distracting them or exhibiting behavioral
14 extremes, maintain socially appropriate behavior and adhere to basic standards of
15 neatness and cleanliness, respond appropriately to changes in the work setting; and
16 marked limitations in her ability to sustain an ordinary routine without special
17 supervision, maintain attention and concentration for extended periods, work in
18 coordination with or proximity to others without being distracted by them,
19 complete a normal workday/workweek without interruptions from psychologically
20 based symptoms and perform at a consistent pace without an unreasonable number
2
1 and length of rest periods, and interact appropriately with the general public. Tr.
2 523-24. She further opined Plaintiff has moderate to marked limitations in all
3 three “B” criteria, Plaintiff meets the “C” criteria, Plaintiff would be off task more
4 than 30 percent of the time and would miss four or more days per month if she
5 worked full-time. Tr. 525. As Ms. MacKenzie is not an acceptable medical
6 source, the ALJ was required to give germane reasons to reject Ms. MacKenzie’s
7 opinion. See Ghanim, 763 F.3d at 1161. The ALJ gave Ms. MacKenzie’s opinion
8 minimal weight. Tr. 1039.
9 First, the ALJ found Ms. MacKenzie’s opinion lacked an objective basis. Id.
10 The Social Security regulations “give more weight to opinions that are explained
11 than to those that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not
12 accept the opinion of any physician, including a treating physician, if that opinion
13 is brief, conclusory and inadequately supported by clinical findings.” Bray, 554
14 F.3d at 1228. Like Ms. Damstedt’s opinion, Ms. MacKenzie’s opinion consists
15 only of checkboxes without any supporting explanation. Tr. 523-26. Plaintiff
16 argues Ms. MacKenzie’s opinion is supported by her treatment records but cites
17 only to evidence that she treated Plaintiff and does not set forth any argument as to
18 how the records demonstrate an objective basis for the disabling opinion. ECF No.
19 19 at 17. The records cited to by Plaintiff are other provider’s medical records,
20 who note that Plaintiff was seeing Ms. MacKenzie. Tr. 465, 645, 648. While
2
1 Disability Determination Services requested Ms. MacKenzie’s records, they were
2 not received. Tr. 143. There does not appear to be any medical records signed by
3 Ms. MacKenzie in the record. The ALJ reasonably found Ms. MacKenzie’s
4 opinion did not have an objective basis.
5 Second, the ALJ found Ms. MacKenzie’s opinion was inconsistent with the
6 longitudinal record. Tr. 1039. An ALJ may discredit physicians’ opinions that are
7 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, the
8 extent to which a medical source is “familiar with the other information in [the
9 claimant’s] case record” is relevant in assessing the weight of that source’s medical
10 opinion. See 20 C.F.R. § 416.927(c)(6). Ms. MacKenzie opined Plaintiff has
11 multiple marked limitations, would miss four or more days per month of work, and
12 would be off task more than 30 percent of the time. Tr. 523-25. However, this is
13 inconsistent with multiple other medical opinions, and the visits discussed by the
14 ALJ that contain many largely normal mental findings. As discussed supra, the
15 ALJ reasonably found the longitudinal record is inconsistent with disabling
16 limitations.
17 Third, the ALJ gave more weight to the State agency opinions than he gave
18 to Ms. MacKenzie’s opinion. Tr. 1039. The opinion of a nonexamining physician
19 may serve as substantial evidence if it is “supported by other evidence in the record
20 and [is] consistent with it.” Andrews, 53 F.3d at 1041. As discussed supra, the
2
1 ALJ reasonably considered the State agency opinions and found they are consistent
2 with and supported by the longitudinal record.
3 4. Dr. Waber
4 On March 13, 2014, Dr. Waber, a treating provider, rendered an opinion on
5 Plaintiff’s functioning. Tr. 485. Dr. Waber stated he was keeping Plaintiff off
6 work until at least April 12, due to her “significant issues with pain, weakness.”
7 Id. As Dr. Waber’s opinion was contradicted by the opinions of Dr. Kester and Dr.
8 Haney, Tr. 74-75, 101-03, the ALJ was required to give specific and legitimate
9 reasons to reject Dr. Waber’s opinion. See Bayliss, 427 F.3d at 1216. The ALJ
10 gave Dr. Waber’s opinion minimal weight. Tr. 1040.
11 First, the ALJ found Dr. Waber’s opinion was a temporary limitation. Id.
12 Temporary limitations are not enough to meet the durational requirement for a
13 finding of disability. 20 C.F.R. § 416.905(a) (requiring a claimant’s impairment to
14 be expected to last for a continuous period of not less than twelve months); 42
15 U.S.C. § 423(d)(1)(A) (same); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d
16 1155, 1165 (9th Cir. 2008) (affirming the ALJ’s finding that treating physicians’
17 short-term excuse from work was not indicative of “claimant’s long-term
18 functioning”). Dr. Waber’s opinion indicated Plaintiff should be off work for at
19 least one month. Tr. 485. At the next appointment in May 2014, there is no
20 mention of an ongoing inability to work, thus there is no evidence Dr. Waber
2
1 extended his opinion that Plaintiff should not work past April 12, 2014. Tr. 480-
2 81. Plaintiff argues Dr. Waber did not alter or rescind his opinion and therefore the
3 opinion was not temporary and thus meets the duration requirement. ECF No. 19
4 at 18. However, the ALJ’s finding that Dr. Waber’s opinion was temporary was a
5 reasonable conclusion supported by substantial evidence, given a lack of any
6 further discussion in the records of Plaintiff being unable to work.
7 Second, the ALJ found Dr. Waber’s opinion lacked objective support and
8 therefore relied too heavily on Plaintiff’s self-report. Tr. 1040. The Social
9 Security regulations “give more weight to opinions that are explained than to those
10 that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not accept the opinion
11 of any physician, including a treating physician, if that opinion is brief, conclusory
12 and inadequately supported by clinical findings.” Bray, 554 F.3d at 1228. The
13 Ninth Circuit in Ghanim contemplated that medical sources rely on self-reports to
14 varying degrees and held that an ALJ may reject a medical source’s opinion as
15 based on unreliable self-reports only when the medical source relied “more heavily
16 on a patient’s self-reports than on clinical observations.” Ghanim, 763 F.3d at
17 1162. The ALJ noted that Dr. Weber’s examinations leading up to the time of his
18 opinion had been unremarkable except Plaintiff’s self-reported symptoms. Tr.
19 1040. In March 2014, Plaintiff reported chronic pain and tingling numbness, but
20 on examination, Plaintiff had normal symmetrical strength, and normal active
2
1 range of motion, with subjective tingling/numbness. Tr. 482-83, 488. The ALJ
2 reasonably found Dr. Waber relied on Plaintiff’s unreliable self-report in forming
3 in his opinion.
4 Third, the ALJ gave more weight to the State agency opinions than he did to
5 Dr. Waber’s opinion. Tr. 1040. Other cases have upheld the rejection of an
6 examining or treating physician based in part on the testimony of a non-examining
7 medical advisor when other reasons to reject the opinions of examining and
8 treating physicians exist independent of the non-examining doctor’s opinion.
9 Lester, 81 F.3d at 831. As the ALJ gave other supported reasons to reject Dr.
10 Waber’s opinion, the ALJ reasonably gave more weight to the State agency
11 opinions than he gave to Dr. Waber’s opinion.
12 5. Dr. Kester
13 On February 4, 2015, Dr. Kester, a State agency psychological consultant,
14 rendered an opinion on Plaintiff’s functioning. Tr. 74-75. Dr. Kester opined
15 Plaintiff has moderate limitations in her ability to understand and remember
16 detailed instructions but is capable of understanding and remembering simple,
17 routine tasks; she is moderately limited in her ability to carry out detailed
18 instructions, maintain attention/concentration for extended periods, and complete a
19 normal workday/workweek without interruptions from psychologically based
20 symptoms and perform at a consistent pace without an unreasonable number and
2
1 length of rest periods, but she is able to attend to and persist on simple tasks with
2 occasional decreased efficiency due to symptoms; she is moderately limited in her
3 ability to interact with the general public, but is capable of superficial contact with
4 the general public and coworkers; and she otherwise is not significantly limited in
5 the remaining areas of functioning. Id. The ALJ gave Dr. Kester’s opinion
6 significant weight but gave more weight to the opinion of State agency consultant
7 Dr. Haney. Tr. 1039.
8 Plaintiff contends the ALJ erred in crediting Dr. Kester’s opinion but failing
9 to incorporate the limitation that Plaintiff would occasionally have decreased
10 efficiency due to symptoms. ECF No. 19 at 19. Plaintiff argues the limitation is
11 disabling, because occasional is defined as up to one-third of the time and being
12 off-task more than 10 percent of the time results in unemployability. Id. However,
13 the definition cited to by Plaintiff defines occasional as “up to” one-third of the
14 time, meaning Plaintiff would have decreased efficiency one-third of the time or
15 less, and Dr. Kester did not indicate the decreased efficiency would prevent
16 Plaintiff from working. Tr. 73-74. Rather, Dr. Kester opined Plaintiff was still
17 capable of performing simple routine tasks. Tr. 74. Further, as Dr. Kester’s
18 opinion resulted in a finding Plaintiff is not disabled, it is clear this was not a
19 disabling opinion by the Agency’s standards. Tr. 77. Plaintiff has not
20
2
1 demonstrated the ALJ harmfully erred in his analysis of Dr. Kester’s opinion.
2 Plaintiff is not entitled to remand on these grounds.
3 C. Lay Opinion Evidence
4 Plaintiff contends the ALJ erred in his consideration of the opinions of
5 Debbie Clark, Barbara Kennedy, Betty Lai, Robert Kennedy, Janelle Zink, Taylor
6 Gardenshire, and Ruby R. ECF No. 19 at 20-21.
7 An ALJ must consider the statement of lay witnesses in determining whether
8 a claimant is disabled. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1053
9 (9th Cir. 2006). Lay witness evidence cannot establish the existence of medically
10 determinable impairments, but lay witness evidence is “competent evidence” as to
11 “how an impairment affects [a claimant’s] ability to work.” Id.; 20 C.F.R. §§
12 404.1513, 416.913; see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir.
13 1993) (“[F]riends and family members in a position to observe a claimant’s
14 symptoms and daily activities are competent to testify as to her condition.”). If a
15 lay witness statement is rejected, the ALJ “‘must give reasons that are germane to
16 each witness.’” Nguyen, 100 F.3d at 1467 (citing Dodrill, 12 F.3d at 919).
17 As these lay statements contain similar statements to Plaintiff’s symptom
18 testimony, and the ALJ properly discredited Plaintiff’s symptom testimony for
19 several clear and convincing reasons, the ALJ needed only point to the same
20 reasons to discredit this lay testimony. See Molina, 674 F.3d at 1114; Valentine v.
2
1 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Further, the ALJ
2 was not required to give an individualized discussion of each witness’ statement in
3 order to properly reject it. See Molina, 674 F.3d at 1114. Like Plaintiff’s
4 statements, the ALJ found the lay statements were inconsistent with the
5 longitudinal record, including her activities and treatment record. Tr. 1037-38.
6 The ALJ also noted some of the opinions were rendered two years before the
7 relevant time period and found the State agency opinions were more consistent the
8 evidence than the lay opinions. Id. The ALJ reasonably rejected the lay opinion
9 evidence. Plaintiff is not entitled to remand on these grounds.
10 CONCLUSION
11 Having reviewed the record and the ALJ’s findings, the Court concludes the
12 ALJ’s decision is supported by substantial evidence and free of harmful legal error.
13 Accordingly, IT IS HEREBY ORDERED:
14 1. The District Court Executive is directed to substitute Kilolo Kijakazi as
15 Defendant and update the docket sheet.
16 2. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED.
17 3. Defendant’s Motion for Summary Judgment, ECF No. 20, is
18 GRANTED.
19 4. The Clerk’s Office shall enter JUDGMENT in favor of Defendant.
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1 The District Court Executive is directed to file this Order, provide copies to
2 counsel, and CLOSE THE FILE.
3 DATED August 10, 2022.
4 s/Mary K. Dimke
MARY K. DIMKE
5 UNITED STATES DISTRICT JUDGE
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