Cheshire v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RIENNE C.,1 No. 6:22-cv-01767-JR

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

RUSSO, Magistrate Judge:

Plaintiff Rienne C. brings this action for judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her application for Title XVI

Supplemental Security Income under the Social Security Act (“the Act”). All parties have

consented to allow a Magistrate Judge to enter final orders and judgement in this case in

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

the nongovernmental party in this case.

accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). ECF No. 20. For the reasons set forth

below, the Commissioner’s decision is affirmed, and this case is dismissed.

PROCEDURAL BACKGROUND

Born in January 1997, plaintiff alleges disability beginning August 28, 2018. Tr. 16, 186-

90. Plaintiff alleged disability due to “anxiety disorder, Post Traumatic Stress Disorder (PTSD),

depression, sensory disassociation disorder, unknown disorder that causes sweating in hands and

luxating patellas.” Tr. 202. Her application was denied initially and upon reconsideration. Tr. 91-

101, 107-25. On July 19, 2021, plaintiff appeared at an administrative hearing before

Administrative Law Judge (“ALJ”) Mark Triplett. Tr. 29-62. On August 17, 2021, the ALJ

issued a decision finding plaintiff not disabled. Tr. 13-28. After the Appeals Council denied her

request for review, plaintiff filed a complaint in this Court. Tr. 2-8.

THE ALJ’S FINDINGS

At step one of the five step sequential evaluation process, the ALJ found plaintiff had not

engaged in substantial gainful activity since September 21, 2018, the application date. Tr. 18. At

step two, the ALJ determined the following impairments were medically determinable and

severe: “anxiety, posttraumatic stress disorder (“PTSD”), and panic disorder with agoraphobia.”

Tr. 18. At step three, the ALJ found plaintiff’s impairments, either singly or in combination, did

not meet or equal the requirements of a listed impairment. Tr. 18.

Because plaintiff did not establish presumptive disability at step three, the ALJ continued

to evaluate how her impairments affected her ability to work. The ALJ resolved that plaintiff had

the residual function capacity (“RFC”) to perform a full range of work at all exertional levels

except:

she can perform simple, routine tasks. She can tolerate occasional contact with

coworkers and supervisors, but no contact with the general public. She cannot

engage in team-based work activity, or in work that requires close collaboration

with coworkers. She requires regular breaks at 2-hour intervals. She can tolerate

no more than occasional changes to work routines and processes.

Tr. 20.

At step four, the ALJ determined the claimant has no past relevant work. Tr. 22. At step

five, the ALJ found there were other jobs existing in significant numbers in the national economy

that plaintiff could perform such as cleaner/housekeeper, hospital cleaner, and window cleaner.

Tr. 23. The ALJ therefore found plaintiff not disabled from September 21, 2018, through the date

of decision. Tr. 24.

DISCUSSION

Plaintiff argues the ALJ committed two harmful errors. She contends the ALJ erred by

(1) discounting her testimony without a clear and convincing reason for doing so, and (2)

improperly evaluating Mike Myers, Ph.D.’s medical opinion. For the reasons that follow, the

Court finds the ALJ did not err, and affirms.

I. Symptom Testimony

Plaintiff contends the ALJ erred by discrediting her testimony about the extent of her

anxiety symptoms, agoraphobia, and sensory issues. Pl.’s Br., ECF No. 12 at 9-14. When a

claimant has medically documented impairments that could reasonably be expected to produce

some degree of the symptoms complained of, and the record contains no affirmative evidence of

malingering, “the ALJ can reject the claimant’s testimony about the severity of ... symptoms only

by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273,

1281 (9th Cir. 1996) (internal citation omitted). A general assertion the claimant is not credible is

insufficient; the ALJ must “state which ... testimony is not credible and what evidence suggests

the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The

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

ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750

(9th Cir. 1995) (internal citation omitted). In other words, the “clear and convincing” standard

requires an ALJ to “show [their] work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual’s

character” or propensity for truthfulness, and instead assesses whether the claimant’s subjective

symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2017 WL

5180304. If the ALJ’s finding regarding the claimant’s subjective symptom testimony is

“supported by substantial evidence in the record, [the court] may not engage in second-

guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).

The question is not whether the ALJ’s rationale convinces the court, but whether the ALJ’s

rationale “is clear enough that it has the power to convince.” Smartt, 53 F.4th at 499.

Plaintiff testified at the hearing that she lives with her mother and brothers on six acres.

Tr. 36, 39. Her family helps comfort her when she needs it. Tr. 36. She attempted to work at a

couple of jobs, but one lasted only a couple of hours and the other lasted only a couple of days.

Tr. 38. She typically isolates at home. Tr. 39, 42. She has a hard time going into large stores; she

feels unsafe and vulnerable in large areas. Tr. 40. She experiences sensory overload in places

with a lot of noise and talking. Tr. 40. She has a fear of toilets. Tr. 40-41. She experiences

terrible nightmares about being trapped in bathrooms. Tr. 40. She stated that she is comfortable

going to medical appointments because it is where she “ought to be if [something] happens.” Tr.

41. She needs someone to accompany her outside the home. Tr. 41-42. She experiences panic

attacks, during which she feels “a horrible urge to get out” and to “run away from things.” Tr.

42-43. She experiences daily anxiety symptoms. Tr. 44. She typically spends her days sitting on

the couch and watching television with a weighted blanket. Tr. 44-45. She has stopped doing a

lot of hobbies because of anxiety. Tr. 45. She does not interact with anyone on a consistent basis

other than her boyfriend, brothers, and mother. Tr. 45. She struggles to leave her house or her

comfort zone. Tr. 60.

In written testimony, plaintiff reiterated many of these allegations. She reported waxing

and waning anxiety symptoms, agoraphobia, and sensory issues. Tr. 235. She reported very

minimal daily activities; she spends most of her time lying on the couch. Tr. 236, 268. She

requires a sleep aid due to nightmares. Tr. 236. She reported minimal maintenance of personal

hygiene; she “can go a month without bathing.” Tr. 237, 268. She needs reminders to brush her

teeth and bathe. Tr. 269. She has a fear of toilets/plumbing. Tr. 237. She described a fluctuating

capacity to perform household chores and “tak[e] care of [her]self.” Tr. 238, 267, 269. Her mom

is her “safety person.” Tr. 238. She does not engage in social activities. Tr. 240, 272. When she

does go out, her mother typically accompanies her. Tr. 238, 239, 270. She has “too many”

unusual behaviors or fears to explain. Tr. 241. She experiences somatic symptoms secondary to

anxiety. Tr. 275-77.

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

expected to cause the alleged symptoms and did not identify evidence of malingering. Tr. 21.

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

limiting effects of her symptoms were not entirely consistent with the medical evidence and

other evidence in the record. Tr. 21. Specifically, the ALJ found plaintiff’s symptom allegations

were inconsistent with objective medical evidence, plaintiff’s treatment history, and that

plaintiff’s daily activities conflicted with her symptom allegations. Tr. 21.

The ALJ reasonably discounted aspects of plaintiff’s allegations of disabling mental

health symptoms as inconsistent with the record. Conflict with objective medical evidence is a

sufficient basis for discounting a claimant’s testimony. Smartt, 53 F.4th at 498; 20 C.F.R. §

416.929(c)(2). At the hearing, plaintiff testified about daily anxiety, and a fear of interaction and

leaving the home. See, e.g., Tr. 39-45. The ALJ acknowledged plaintiff’s symptoms and included

several limitations in the RFC that accommodated for these mental health issues. For example,

he limited plaintiff to only occasional contact with coworkers and supervisors, no teams-based

work activity or work requiring close collaboration with coworkers, and no contact with the

general public. Tr. 20. The ALJ further concluded that plaintiff’s alleged limitations below this

level conflicted with objective medical evidence. In contrast to plaintiff’s allegations that her

mental health symptoms were fully disabling, the ALJ noted that plaintiff was cooperative,

engaged, “generally healthy appearing,” had normal speech and a logical thought process, and/or

had unimpaired concentration, memory, and judgment. Tr. 21, 407, 411, 500. Despite seeming

nervous at an appointment, plaintiff was fully oriented without any apparent thought disorder. Tr.

21, 411. Plaintiff had grossly normal memory and normal intellectual functioning. Tr. 19, 407,

500. These records all conflicted with plaintiff’s allegations of more significant limitations and

amount to substantial evidence supporting the ALJ’s decision to discount plaintiff’s testimony

about the severity of her mental health symptoms.

The medical records the ALJ cited also show plaintiff’s mental health issues improved

with treatment, which was another clear and convincing reason to discount her symptom

testimony. If the record shows a claimant’s symptoms have improved with treatment, that

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

C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). For one, the ALJ noted that just before her alleged

disability date plaintiff reported that she was “doing well” and that she was “happy most of the

time.” Tr. 21, 366. And, just after filing her disability application, plaintiff described her anxiety

as improving but she still had some difficulty interacting with others. Tr. 21, 373. Plaintiff even

testified that her panic attacks could be mitigated by prescribed medication, that they would last

only “until I get a medicine.” Tr. 19, 43. This was all substantial evidence supporting the ALJ’s

conclusion that plaintiff’s mental health symptoms improved with treatment, and his decision to

discount her symptom allegations as a result.

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

inconsistent with her own statements about daily activities. Tr. 22. Activities of daily living can

form the basis for an ALJ to discount a claimant’s testimony in two ways: (1) as evidence a

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

the activities “contradict [a claimant’s] testimony.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007). The relevant regulations require an ALJ to consider a claimant’s daily activities when

evaluating subjective symptom statements. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). The

Ninth Circuit has even found such routine activities as playing video games, using public

transportation, and preparing meals to undercut a claimant’s testimony of disabling limitations.

Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021). A claimant need not be utterly

incapacitated to receive disability benefits, however, and sporadic completion of minimal

activities is insufficient to support a negative credibility finding. Vertigan v. Halter, 260 F.3d

1044, 1050 (9th Cir. 2001); see Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring

the level of activity to be inconsistent with the claimant’s alleged limitations to be relevant to her

or her credibility).

The ALJ reasonably found several of plaintiff’s reported daily activities conflicted with

her allegations about mental health symptoms. To discount a plaintiff’s testimony, and ALJ must

cite daily activities that “meet the threshold for transferable work skills” or “contradict [a

claimant’s] testimony.” Orn, 495 F.3d at 639. The ALJ reasonably identified evidence that

plaintiff could do more than she alleged at the hearing when deciding to partially discount her

symptom testimony. For example, the ALJ noted that plaintiff had been able to engage in and

succeed at taking an online course to qualify for an esthetician license and passed all necessary

testing to obtain her driver’s license. Tr. 22, 36, 47-48, 470. Plaintiff reported that she enjoyed

writing music, computers, art, and displaying art projects on her Instagram account. Tr. 22, 496.

While plaintiff asserted that she struggled to function outside her home, Tr. 39, the ALJ

considered that plaintiff reported she could go out with her family, spent a week at her

boyfriend’s home, and attended a concert in a large city over an hour’s drive from her home. Tr.

22, 450, 459, 478. Although plaintiff highlights other aspects of the record suggesting her daily

activities were limited (ECF No. 12 at 10-11), the ALJ reasonably concluded that “her

demonstrated ability to engage in such activity contradicts her assertion that she struggles to

function outside her home.” Tr. 22. Because the ALJ reasonably cited several activities that

conflict with plaintiff’s allegations about the limitations her mental health symptoms cause, this

was another clear and convincing reason for the ALJ to rely upon to discount her testimony.

Plaintiff urges the Court to adopt a different interpretation of the medical record but does

not undermine the substantial evidence supporting the ALJ’s decision. Specifically, plaintiff

argues the ALJ’s analysis fails to account for the waxing and waning nature of mental illness that

impacts her ability to function independently in public spaces. Pl. Reply at 2. Plaintiff argues that

the ALJ “selectively cited evidence,” but does not point to specific medical evidence the ALJ

failed to address. Pl. Reply at 2. As noted above the ALJ’s citations to the medical record were

sufficiently specific to “show [his] work,” and the citations directly contradicted aspects of

plaintiff’s testimony. Smartt, 53 F.4th 499. And contrary to plaintiff’s claim that the ALJ focused

on temporary improvement, the ALJ acknowledged the longitudinal record including plaintiff’s

reported symptoms. For instance, the ALJ considered that plaintiff was visibly anxious in

crowded or unfamiliar settings, but multiple treatment providers described her as cooperative,

open, and engaged within a clinical setting. Tr. 22. The ALJ accommodated these findings by

limiting plaintiff to only occasional contact with coworkers and supervisors but no team-based

activity or work that required close collaboration with coworkers but no contact with the general

public. Tr. 20. Next, the ALJ accounted for plaintiff’s struggles with stress, changes in routine,

and her allegations that her symptoms affected her concentration and pace, Tr. 19, 272-73, by

limiting her to simple and routine tasks, no more than occasional changes to work routines and

process, and regular breaks every two hours. Tr. 20. Thus, contrary to plaintiff’s claim, the ALJ

did not cherry pick the record. See Wesselius v. Kijakazi, 2021 WL 4948928 at *1 (9th Cir. 2021)

(While “[i]t is error for an ALJ to pick out a few isolated instances of improvement,” the ALJ’s

findings were supported by a “broad set of mental status exams covering the entire relevant time

period.”) (internal citations and quotations omitted). Considering the whole medical record, the

ALJ accounted for plaintiff’s mental impairments while also identifying substantial evidence to

discount plaintiff’s allegations of debilitating symptoms and limitations.

Ultimately, plaintiff’s arguments are an effort to have this Court re-weigh the evidence,

which is beyond the scope of review. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“We

may not reweigh the evidence or substitute our judgment for that of the ALJ.”). Even when there

are two reasonable interpretations—plaintiff’s and the ALJ’s—the ALJ’s interpretation must

prevail. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to

more than one rational interpretation, it is the [Commissioner’s] conclusion that must be

upheld.”). Against that backdrop, even though plaintiff clearly interprets the evidence differently,

she has not (and cannot) establish error by simply advancing a different interpretation of the

medical evidence. The ALJ adequately considered the evidence that supported plaintiff’s

allegations, identified medical evidence that conflicted with plaintiff’s testimony about the extent

and frequency of her mental health limitations, and reasonably discounted those allegations in

the written opinion. See Tr. 22.

II. Medical Opinion Evidence

Plaintiff also argues that the ALJ did not properly consider the medical opinion of Dr.

Michael Myers, Ph.D. Pl. Br, ECF No. 12 at 5-9. For claims filed on or after March 27, 2017,

ALJs are no longer required to give deference to any medical opinion, including treating source

opinions. 20 C.F.R. § 404.1520c. Instead, the agency considers several factors. 20 C.F.R. §

404.1520c(a). These are: supportability, consistency, relationship to the claimant, specialization,

and “other factors.” 20 C.F.R. § 404.1520c(c)(1)-(5). The “most important” factors in the

evaluation process are supportability and consistency. 20 C.F.R. § 404.1520c(b)(2).

Under this framework, the ALJ must “articulate ... how persuasive [they] find all of the

medical opinions” from each doctor or other source. 20 C.F.R. § 404.1520c(b)(2). In doing so,

the ALJ is required to explain how supportability and consistency were considered and may

explain how the other factors were considered. 20 C.F.R § 404.1520c(b)(2). When two or more

medical opinions or prior administrative findings “about the same issue are both equally well-

supported ... and consistent with the record ... but are not exactly the same,” the ALJ is required

to explain how the other factors were considered. 20 C.F.R. § 404.1520c(b)(3). “Even under the

new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported

or inconsistent without providing an explanation supported by substantial evidence.” Woods v.

Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).

In June 2021, Dr. Myers reported in a written statement that he had been treating plaintiff

since May 2019 in weekly psychotherapy sessions. Tr. 701. Plaintiff’s diagnoses included

agoraphobia with panic disorder, PTSD, and rule-out autism spectrum disorder. Tr. 701. Dr.

Myers noted that plaintiff met the criteria for specific (isolated) phobias and chronic PTSD with

some features of Asperger’s syndrome. Tr. 702. He opined that although plaintiff could meet

some of the requirements of working with the public, coworkers, and supervisors, she could not

maintain consistency because of her panic disorder. Tr. 702. He also opined that plaintiff might

be able to meet some of the requirements of full-time work, however, her attendance would be

unpredictable due to panic attacks and PTSD triggering. Tr. 702.

Dr. Myers assessed no limitation in plaintiff’s ability to understand, remember, and carry

out simple instructions. Tr. 704. He did not know about her ability to make judgments on simple

work-related decisions, understand and remember complex instructions, carry out complex

instructions, or make judgments on complex work-related decisions. Tr. 704. He wrote, “I have

no data to base this judgment upon. She has no previous work experience.” Tr. 704. He assessed

that plaintiff’s ability to interact appropriately with supervisors, coworkers, and the public and to

respond to changes in the routine work setting was “potentially” affected by her impairments. Tr.

704. He assessed mild to moderate limitation in her ability to interact appropriately with the

public. Tr. 704. He assessed moderate limitation in her ability to interact appropriately with

supervisors and coworkers. Tr. 704. He assessed marked limitation in her ability to respond

appropriately to usual work situations and changes in a routine work setting. Tr. 704. He

explained, “[a]nxiety & panic attacks are random, manageable one day, not the next.” Tr. 705.

He opined that the limitations assessed had been present since childhood. Tr. 705. He concluded

that plaintiff could “probably” manage benefits in her own best interest. Tr. 706. He opined that

she would be off task at least 15% of the workday due to anxiety and panic attacks.

The ALJ adequately discussed the strength of the evidence underlying Dr. Myers’

opinion in the record when finding it “not fully persuasive.” Tr. 22. The supportability factor

requires ALJs to consider the persuasiveness of a medical opinion based on how “relevant the

objective medical evidence and supporting explanations presented by a medical source are to

support her or her medical opinion.” 20 C.F.R. § 404.1520c(c)(1). The ALJ discounted Dr.

Myers’ opinion because it was equivocal and lacked sufficient supporting objective medical

evidence to be fully persuasive. The ALJ first emphasized that Dr. Myers performed only one

mental status examination in May 2019, which found plaintiff “nervous,” but fully oriented, with

no apparent thought disorder, and her concentration, memory, and judgment were not impaired.

Tr. 21, 411. The ALJ further noted that Dr. Myers’ other opinions were based largely on

plaintiff’s self-reports, which the ALJ properly found overstated her limitations. See Tommasetti,

533 F.3d at 1041 (“An ALJ may reject a [ ] physician's opinion if it is based to a large extent on a

claimant's self-reports that have been properly discounted[.]”). Finally, the ALJ discounted Dr.

Myers’ opinion because it was equivocal. Tr. 22. For example, Dr, Myers predicted that plaintiff

would “probably” miss work more than four days per month and indicated that he lacked data to

make a judgment on plaintiff’s ability to carry out more complex tasks. Tr. 22, 701-07. In all, the

ALJ reasonably found Dr. Meyer’s medical opinion was poorly supported by explanation and

objective medical evidence.

The ALJ also adequately considered the inconsistency of Dr. Myers’ limitations with the

overall medical record. The consistency factor requires the ALJ to assess medical opinions’

alignment with “evidence from other medical sources and nonmedical sources in the claim.” 20

C.F.R. § 404.1520c(c)(2). The ALJ reasonably found several aspects of Dr. Myers’ opinion

inconsistent with the record, and therefore unpersuasive. Tr. 22. For example, the ALJ explained

that Dr. Myers’ opinion was inconsistent with plaintiff’s ability to perform activities of daily

living like attending a concert in a large city over an hour’s drive from home, getting her driver’s

license, going out with her family, and spending a week at her boyfriend’s home . Tr. 22, 450,

459, 478. Finally, the ALJ noted that Dr. Myers’ opinions were inconsistent with other

persuasive medical opinions in the record. For example, the ALJ considered the opinions of State

agency consultants J. McWilliams, Ph.D., and Ben Kessler, Psy.D., who found her far less

limited that Dr. Myers. Tr. 64-75, 77-90. Plaintiff did not challenge the ALJ’s evaluation of these

medical opinions and therefore forfeited any challenges to their persuasiveness. See Carmickle,

533 F.3d at 1161 n.2 (citation omitted). In sum, the ALJ adequately considered these objective

findings, and reasonably concluded they were inconsistent with several of the limitations in Dr.

Myers’ opinion.

CONCLUSION

For the reasons given above, the Commissioner’s decision is affirmed, and this case is

dismissed.

IT IS SO ORDERED.

DATED this 18th day of November, 2024.

_/_s_/ _J_o_li_e_ A__. _R_u_s_so____________________

Jolie A. Russo

United States Magistrate Judge