Fuhrman v. Commissioner of Social Security, No. 1:2017cv03088 - Document 14 (E.D. Wash. 2018)
Court Description: ORDER DENYING 12 PLAINTIFF'S AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 13 . Signed by Judge Rosanna Malouf Peterson. (VR, Courtroom Deputy)
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Fuhrman v. Commissioner of Social Security Doc. 14 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 26, 2018 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 MEGAN FUHRMAN, NO: 1:17-CV-3088-RMP Plaintiff, 8 9 10 v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT, without oral argument, are cross-motions for 14 summary judgment from Plaintiff Megan Fuhrman, ECF No. 12, and the 15 Commissioner of Social Security (the “Commissioner”), ECF No. 13. Ms. Fuhrman 16 sought judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s denial 17 of her claim for Social Security disability insurance benefits. The Court has 18 reviewed the motions, the administrative record, and is fully informed. For the 19 reasons stated below, the Commissioner’s motion, ECF No. 13, is granted, and Ms. 20 Fuhrman’s motion is denied, resulting in a denial of benefits. 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 BACKGROUND 2 A. Ms. Fuhrman’s Claim for Benefits and Procedural History 3 Ms. Fuhrman applied for disability insurance benefits, under Title II of the 4 Social Security Act (“Act”), through an application filed on December 29, 2013. 5 Administrative Record (“AR”) 156–57.1 Ms. Fuhrman was 33 years old at the time 6 she applied for benefits. AR 71. She asserted that her recurrent bouts of major 7 depression and anxiety prevent her from engaging in full-time work. 8 B. November 12, 2015 Hearing Ms. Fuhrman was represented by attorney Chad Hatfield at her hearing before 9 10 Administrative Law Judge (“ALJ”) Laura Valente on November 12, 2015, in 11 Yakima, Washington. Ms. Fuhrman responded to questions from her attorney and 12 Judge Valente. A vocational expert, Kimberly Mullinax, also responded to 13 questions from Ms. Fuhrman’s attorney and the ALJ. 14 Ms. Fuhrman testified that she earned a bachelor’s degree in 2003. At the 15 time of the hearing, and for several years prior, Ms. Fuhrman lived with her parents. 16 Ms. Fuhrman asserted that her disability onset date was June 18, 2011, when she left 17 a job at a Costco call center due to her inability to cope with the acute anxiety and 18 depression that she felt while attempting to perform her work duties there. 19 Approximately six months after leaving her position at the call center, Ms. Fuhrman 20 21 1 The AR is filed at ECF No. 9. ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 began working as a teacher’s aide at the preschool. After completing a child 2 development associate’s certificate in August 2012, Ms. Fuhrman began working 3 part-time as a lead teacher at the church preschool during the school year. One 4 month before the administrative hearing in this matter, Ms. Fuhrman began teaching 5 full-time at the preschool. Ms. Fuhrman explained that, by the time of the hearing, 6 she had worked longer at the preschool than she had worked anywhere else in her 7 life, and she felt the best she has in her life. Ms. Fuhrman later explained that she 8 feels more comfortable working with children than with adults, and she has received 9 positive performance reviews throughout her time teaching at the preschool. 10 Ms. Fuhrman testified that her supervisors, who are members of the church’s 11 “Preschool Board,” are aware of her dyslexia and history of coping poorly with 12 stress and that she receives a variety of support to perform her work as a preschool 13 teacher, including proofreading assistance and support in interacting with some of 14 the preschoolers’ parents. Ms. Fuhrman further testified that she was experiencing 15 side effects from the medications she took to manage her depression and anxiety 16 symptoms. The side effects included mild hand tremors, compromised memory, and 17 insomnia. However, Ms. Fuhrman explained that she had not sought a modification 18 to her medications since 2010 because it had taken significant time and effort to find 19 a regimen that adequately managed her symptoms while not causing other side 20 effects. 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 2 3 C. ALJ’s Decision On December 22, 2015, the ALJ issued an unfavorable decision. AR 11–26. Applying the five-step evaluation process, Judge Valente found: 4 Step one: Ms. Fuhrman has not engaged in substantial gainful activity since 5 the alleged onset date of June 18, 2011. Ms. Fuhrman left her position at a 6 Costco call center in summer 2011. From January 2012 until May 2012, Ms. 7 Fuhrman worked 3.5 hours four days per week as a teacher’s aide at the 8 preschool run by the church she attends. In September 2012, Ms. Fuhrman 9 began working as a lead teacher at the preschool. For the 2012, 2013, and 10 2014 school years, Ms. Fuhrman taught one class, from 9:00 a.m. until 11:30 11 a.m. In September 2015, Ms. Fuhrman began teaching a second, afternoon 12 class from 12:30 to 3:00 p.m. three days per week. The ALJ noted that Ms. 13 Fuhrman’s counsel had advised that Ms. Fuhrman’s earnings were consistent 14 with substantial gainful activity beginning in October 2015 but had not 15 specified how much Ms. Fuhrman was earning, and the ALJ could not find 16 any documentation in the record to support a finding of substantial gainful 17 activity. 18 Step two: Ms. Fuhrman has the following severe impairments: affective 19 disorder, anxiety disorder, and a learning disorder. The ALJ found that, 20 although there were references to hand or wrist tendonitis in the record, the 21 claimant did not allege that a medical condition was the basis for her disability ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 in her application, and any hand or wrist issues were not severe impairments 2 for claimant. 3 Step three: Plaintiff’s impairments, or combination of impairments, do not 4 meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, 5 Subpart P, Appendix 1. 6 Residual Functional Capacity (“RFC”): The ALJ found that Ms. Fuhrman 7 has the RFC: 8 to perform a full range of work at all exertional levels but with the following nonexertional limitations: she has sufficient concentration to understand, remember and carry out complex tasks. The claimant can maintain concentration and pace for complex tasks in two-hour increments with usual and customary breaks throughout an eight-hour workday. She will require an additional five-minute break in addition to usual and customary breaks. The claimant can take this break at her workstation. She can work superficially and occasionally with the general public (superficial means she can greet the public and refer the public to others to resolve their demands and requests, but does not have to resolve those demands or requests herself). The claimant can interact occasionally with supervisors and with occasional interaction it is expected that she can respond appropriately to supervisor criticism. She can work with a small group of up to 10 coworkers and can respond to workplace changes as would be required for complex tasks. 9 10 11 12 13 14 15 16 AR 16. 17 The ALJ found that Plaintiff’s statements regarding the intensity, persistence, 18 and limiting effects of her mood and anxiety symptoms, as well as her 19 learning disorder, were not entirely credible. Ultimately, the ALJ relied on 20 Plaintiff’s positive performance of her preschool teaching duties to conclude 21 that “[t]reatment records do show her telling providers she could not handle ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 the stress of full time work, but aside from her own assertions there appears to 2 be little support for this.” AR 20. The ALJ continued: 3 Additionally, even if the claimant were unable to tolerate the stresses of a full time teaching job, there are many less stressful occupations that exist in the national economy. The claimant has not provided any convincing reason why she could not perform a full time job that entails less intensive public interaction than her prior job at Costco. 4 5 6 AR 20. 7 Step four: Ms. Fuhrman is able to perform past relevant work as a cook 8 helper and tallier, which would not require the performance of work-related 9 activities precluded by her RFC. 10 Step five: Ms. Fuhrman was not disabled for purposes of the Social Security 11 Act from June 17, 2011, through the date of the ALJ’s decision. 12 APPLICABLE LEGAL STANDARDS 13 A. Standard of Review 14 Congress has provided a limited scope of judicial review of a Commissioner’s 15 decision. 42 U.S.C. § 405(g). A court may set aside the Commissioner’s denial of 16 benefits only if the ALJ’s determination was based on legal error or not supported by 17 substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 18 42 U.S.C. § 405(g)). “The [Commissioner’s] determination that a claimant is not 19 disabled will be upheld if the findings of fact are supported by substantial evidence.” 20 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). 21 Substantial evidence is more than a mere scintilla, but less than a preponderance. ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975); McCallister v. 2 Sullivan, 888 F.2d 599, 601–02 (9th Cir. 1989). Substantial evidence “means such 3 evidence as a reasonable mind might accept as adequate to support a conclusion.” 4 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). “[S]uch 5 inferences and conclusions as the [Commissioner] may reasonably draw from the 6 evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 7 1965). On review, the court considers the record as a whole, not just the evidence 8 supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 9 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 10 It is the role of the trier of fact, not the reviewing court, to resolve conflicts in 11 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 12 interpretation, the court may not substitute its judgment for that of the 13 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 14 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 15 set aside if the proper legal standards were not applied in weighing the evidence and 16 making a decision. Brawner v. Sec’y of Health and Human Services, 839 F.2d 432, 17 433 (9th Cir. 1988). Thus, if there is substantial evidence to support the 18 administrative findings, or if there is conflicting evidence that will support a finding 19 of either disability or nondisability, the finding of the Commissioner is conclusive. 20 Sprague v. Bowen, 812 F.2d 1226, 1229–30 (9th Cir. 1987). 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 B. Definition of Disability 2 The Social Security Act defines “disability” as the “inability to engage in any 3 substantial gainful activity by reason of any medically determinable physical or 4 mental impairment which can be expected to result in death or which has lasted or 5 can be expected to last for a continuous period of not less than 12 months.” 42 6 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a benefits 7 claimant shall be determined to be under a disability only if her impairments are of 8 such severity that the claimant is not only unable to do her previous work but cannot, 9 considering her age, education, and work experiences, engage in any other 10 substantial gainful work which exists in the national economy. 42 U.S.C. 11 §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both 12 medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 13 (9th Cir. 2001). 14 C. Sequential Process 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 17 determines if she is engaged in substantial gainful activities. If the claimant is 18 engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 19 404.1520(a)(4)(i), 416.920(a)(4)(i). 20 If the claimant is not engaged in substantial gainful activities, the decision 21 maker proceeds to step two and determines whether the claimant has a medically ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 2 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 3 of impairments, the disability claim is denied. 4 If the impairment is severe, the evaluation proceeds to the third step, which 5 compares the claimant’s impairment with a number of listed impairments 6 acknowledged by the Commissioner to be so severe as to preclude any gainful 7 activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 C.F.R. 8 § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 9 impairments, the claimant is conclusively presumed to be disabled. 10 If the impairment is not one conclusively presumed to be disabling, the 11 evaluation proceeds to the fourth step, which determines whether the impairment 12 prevents the claimant from performing work she has performed in the past. If the 13 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. 14 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s RFC 15 assessment is considered. 16 If the claimant cannot perform this work, the fifth and final step in the process 17 determines whether the claimant is able to perform other work in the national 18 economy in view of her residual functional capacity and age, education, and past 19 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); see also Bowen 20 v. Yuckert, 482 U.S. 137 (1987). 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 The initial burden of proof rests upon the claimant to establish a prima facie 2 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 3 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 4 is met once the claimant establishes that a physical or mental impairment prevents 5 her from engaging in her previous occupation. The burden then shifts, at step five, 6 to the Commissioner to show that (1) the claimant can perform other substantial 7 gainful activity, and (2) a “significant number of jobs exist in the national economy” 8 that the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 ISSUES ON APPEAL 10 11 1. Did the ALJ erroneously discount the opinions of Ms. Fuhrman’s medical providers and the state agency psychological consultants? 12 2. Did the ALJ erroneously reject Ms. Fuhrman’s subjective complaints? 13 3. Did the ALJ conduct an adequate analysis leading to the conclusion that Ms. 14 15 16 17 18 19 Fuhrman could perform her past relevant work as a cook helper and tallier? 4. At step five, did the ALJ meet her obligations in determining whether Ms. Fuhrman can perform another job? DISCUSSION Treatment of opinions of Ms. Furhman’s medical providers and other nonexamining state agency psychological consultants 20 Ms. Fuhrman argues that the ALJ improperly rejected the opinions of her 21 treatment providers, nurse practitioner Theresa Hicks, and physician’s assistant ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Shannon Neer, as well as two state agency psychological consultants, Michael 2 Brown, Ph.D, and Thomas Clifford, Ph.D. 3 With respect to medical opinions, an ALJ must accord more weight to a 4 treating physician’s opinion than an examining physician’s, and an examining 5 physician’s opinion carries more weight than a non-examining, reviewing, or 6 consulting physician’s opinion. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 7 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ must articulate 8 “specific and legitimate” reasons to reject the opinion of a consultative acceptable 9 medical source. 10 However, under the regulations that apply to Ms. Fuhrman’s claim, as it was 11 filed before March 27, 2017, neither a nurse practitioner nor a physician’s assistant 12 is an “acceptable medical source” for purposes of according controlling weight to his 13 or her opinion. 20 C.F.R. §§ 404.1527, 416.913(a). While an ALJ must consider 14 and evaluate all medical evidence, along with the remaining record, the ALJ may 15 reject the opinions of nurse practitioners, physician’s assistants, and mental health 16 therapists for “germane reasons,” rather than the higher standard of “specific and 17 legitimate reasons” applied to the opinions of acceptable medical sources. 20 C.F.R. 18 § 404.1513(a) (version in effect prior to Jan. 18, 2017). 19 In determining Ms. Fuhrman’s RFC, the ALJ assigned “some weight” to the 20 opinion of a psychiatrist, Jamie Simmons, M.D., who treated Ms. Fuhrman around 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 the time of Ms. Fuhrman’s transition away from the call center position. AR 21. Dr. 2 Simmons noted in a June 2, 2011 report: 3 4 5 6 7 The patient states that she has been having panic attacks that are severe enough that she has to leave work. She works in the call center at Costco. She is afraid that she won’t answer the phone right, she is afraid that will [sic] be yelled at or cursed at. She doesn’t feel that she can remain in the work environment. . . . I agree that for one of Megheans [sic] temperament working Call Center is not the best choice. I would like to see Meghan work at finding another job that suited her and work through the panic attacks rather than go on disability. Meghan agrees that she is capable of working, just not at then [sic] high a stress of a job where people are yelling and cussing at her all the time. 8 AR 275. In follow-up visits to Dr. Simmons, Ms. Fuhrman reported doing well and 9 having no complaints after managing her symptoms with medication; Ms. Fuhrman 10 stopped seeing Dr. Simmons in approximately mid-2013. 11 Theresa Hicks, ARNP 12 Judge Valente accorded little weight to the opinion of Ms. Fuhrman’s long13 time therapist, Nurse Hicks, who provided a written statement on behalf of Ms. 14 Fuhrman on February 5, 2014. Nurse Hicks reported that, since Ms. Fuhrman 15 became her patient in 2002, Ms. Fuhrman had left five jobs due to major depressive 16 episodes, Ms. Fuhrman required months to recover from each episode. Nurse Hicks 17 also opined that Ms. Furhman “should remain a part-time employee to keep the level 18 of stress where she can handle it without going into another Major Depressive 19 Episode requiring leaving work and possible hospitalization.” AR 285. Nurse Hicks 20 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 speculated that, more probably than not, Ms. Fuhrman would miss four or more days 2 of work per month if she were working a 40-hour per week schedule. 3 In assigning little weight to Nurse Hicks’ opinion, Judge Valente noted that 4 the nurse practitioner “did not cite any objective signs in support of the degree of 5 limitation she opined, which is not supported by the treatment records including 6 those from Ms. Hicks.” AR 23. Apart from Nurse Hicks’ bare assertion, the 7 medical and other records do not corroborate that Ms. Fuhrman left more than the 8 Costco job because of mental health symptoms related to the work environment. 9 Nor does the record contain anything to indicate that Ms. Fuhrman has shown up 10 late for work or missed an inordinate amount of work for mental health reasons. 11 Rather, the record indicates that Ms. Fuhrman’s job performance since leaving the 12 call center position and beginning work at the preschool has been very good. Apart 13 from the records documenting Ms. Fuhrman’s struggle with working at the call 14 center, there is no evidence to support that working has resulted in a deterioration of 15 Ms. Fuhrman’s condition. Therefore, the ALJ’s reasons for rejecting Nurse Hicks’ 16 opinion as to Ms. Fuhrman’s ability to work full-time are germane. 17 Shannon Neer, PA 18 Ms. Neer wrote that it was her medical opinion that “Ms. Fuhrman’s health 19 and future well-being are absolutely dependent on her being able to remain in her 20 current profession as a teacher without concern that she would one day be unable to 21 continue due to a change in her SSI case plan.” AR 374. The ALJ assigned no ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 weight to Ms. Neer’s opinion, finding “[t]he claimant is not receiving SSI and her 2 preference to work as a teacher part time rather than in some other full time 3 occupation does not provide a basis for awarding disability benefits.” AR 23. The 4 ALJ’s reasons for rejecting Ms. Neer’s testimony also were germane. Ms. Neer’s 5 opinion was based on the false premise that Ms. Fuhrman was already receiving SSI 6 benefits, and Ms. Neer’s conclusory statement that Ms. Fuhrman’s health depended 7 on her remaining in her profession and working part-time was undermined by 8 substantial evidence in the record that Ms. Fuhrman had not relapsed since she 9 recovered from the stress of working at the call center facility and had successfully 10 taken on a progressively greater role at the preschool. 11 Drs. Clifford and Brown 12 These state agency consultants did not examine Ms. Fuhrman, but instead 13 reviewed her records and completed mental residual functional capacity 14 assessments. Both concluded that Ms. Fuhrman is capable of performing simple as 15 well as some complex tasks and could interact appropriately with a supervisor and a 16 small group of co-workers and could interact infrequently and superficially with the 17 general public. Both also concluded that Ms. Fuhrman would work best in a stable, 18 low-pressure setting. The ALJ gave these assessments “some weight” and rejected 19 the conclusion that Ms. Fuhrman would “work best” in a stable, low-pressure 20 setting. AR 22, 79, and 93. The ALJ’s reason for giving the consultants’ ultimate 21 conclusion less weight was germane: the relevant inquiry is not what work ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 environment is ideal for a claimant. Rather, the inquiry in determining an 2 individual’s RFC is the maximum level of work or degree of exertion that a person 3 is capable of performing. See SSR 96-8, 1996 SSR LEXIS 5, 1996 WL 374184 (Jul. 4 2, 1996) (“RFC is the individual’s maximum remaining ability to do sustained work 5 activities in an ordinary work setting on a regular and continuing basis.”). 6 Therefore, the portion of the consultants’ opinions that the ALJ rejected did not 7 apply to the requisite determination of Ms. Fuhrman’s maximum remaining ability 8 to do sustained work activities. 9 10 Treatment of Ms. Fuhrman’s subjective complaints An ALJ must provide “‘specific, cogent reasons’” for disbelieving a 11 claimant’s complaints. Lester, 81 F.3d at 834 (quoting Rashad v. Sullivan, 903 F.2d 12 1229, 1231 (9th Cir. 1990)). The ALJ undertakes a two-step analysis in deciding 13 whether to admit a claimant’s subjective symptom testimony. Lingenfelter v. Astrue, 14 504 F.3d 1028, 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1281 (9th 15 Cir. 1996). Under the first step, the ALJ must find the claimant has produced 16 objective medical evidence of an underlying “impairment,” and that the impairment, 17 or combination of impairments, could reasonably be expected to cause “some degree 18 of the symptom.” Lingenfelter, 504 F.3d at 1036. Where an ALJ finds no evidence 19 of malingering, the ALJ may “‘reject the claimant’s testimony about the severity of 20 her symptoms only by offering specific, clear and convincing reasons for doing so’” 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Brown-Hunter v. Colvin, 806 F.3d 487, 492–92 (9th Cir. 2015) (quoting Lingefelter, 2 504 F.3d at 1036). 3 A credibility determination is appropriately in the province of the ALJ, and it 4 is not the reviewing court’s role to disturb that determination unless it appears that 5 the ALJ arbitrarily discredited the claimant’s testimony. Orteza v. Shalala, 50 F.3d 6 748, 750 (9th Cir. 1995). Among the factors that an ALJ may consider when 7 determining credibility are the claimant’s daily activities, inadequately explained 8 failure to follow a prescribed course of treatment, and the claimant’s work record. 9 See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 10 In this matter the ALJ found that Ms. Fuhrman’s statements concerning the 11 intensity, persistence and limiting effects of the symptoms related to her medically 12 determinable impairments of depression and anxiety were “not entirely credible.” 13 AR 18. The ALJ did not conclude that Ms. Fuhrman was malingering. 14 The Court finds that the ALJ’s decision provided one or more clear and 15 convincing reasons for finding that Ms. Fuhrman’s assertion that she could not 16 handle the stress of full-time work was less than fully credible. Namely, the ALJ 17 relied on substantial evidence in the record in determining that Plaintiff’s depression 18 and anxiety-related symptoms “markedly” improved with treatment after she left her 19 call center position. AR 19. 20 21 Substantial evidence in the record also supports that Plaintiff’s condition was stable and well-managed by medication, without Plaintiff seeking any changes to her ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 medication regimen, for approximately three years before the hearing. “Impairments 2 that can be controlled effectively with medication are not disabling for the purpose 3 of determining eligibility for [disability] benefits.” Warre v. Comm'r of Soc. Sec. 4 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The record also supports that Ms. 5 Fuhrman was taking on progressively more duties and hours at work and did not 6 miss any work due to her mental health issues. Therefore, the ALJ was justified in 7 determining that Ms. Fuhrman’s assertions to providers and at the hearing that she 8 could not handle the stress of full time work were not entirely reliable. 9 10 11 Legal sufficiency of ALJ’s consideration of Plaintiff’s ability to do her previous work In determining a claimant’s RFC, the ALJ must consider all relevant evidence 12 in the case record to assess the claimant’s limitations and restrictions from the 13 medically determinable impairment and determine the individual’s ability to do 14 work-related activities. SSR 96-8p, 1996 SSR LEXIS 5, 1996 WL 374184 (July 2, 15 1996). 16 The ALJ specifically determined that there was not enough evidence in the 17 record to support that Plaintiff engaged in substantial gainful activity as a preschool 18 teacher. Therefore, Judge Valente looked farther back in Plaintiff’s employment 19 record to her relatively short-term work as a tallier and cook helper. As the Court 20 already found, substantial evidence in the record supported the ALJ’s determination 21 of Ms. Fuhrman’s RFC, which included an ability to perform a full range of work at ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 all exertional levels, with several nonexertional, mental limitations that restrict her 2 ability to maintain concentration and pace and interact with others. The ALJ 3 incorporated those limitations into the hypothetical that she posed to the vocational 4 expert, who testified that an individual coping with such restrictions could work as a 5 cook helper and tallier. Therefore, the Court finds no error on this basis. 6 7 8 9 Legal sufficiency of ALJ’s determination that Plaintiff could adjust to other full-time work than she has performed in the past After determining the Ms. Fuhrman retains the ability to perform two of her previous jobs, the ALJ posed questions to the vocational expert regarding what jobs 10 a hypothetical claimant with Ms. Fuhrman’s RFC could perform in the national 11 economy. The vocational expert testified that a hypothetical claimant with the same 12 restrictions and capabilities could work as an industrial cleaner, kitchen helper, and 13 laundry worker II. AR 58–59. As the Government argues, Ms. Fuhrman’s 14 assignment of error to the ALJ in determining the other work that Ms. Fuhrman 15 could perform merely were reassertions of Plaintiff’s contention that the RFC was 16 flawed. Having found that the ALJ relied on substantial evidence in the record in 17 determining the extent of Ms. Fuhrman’s limitations, the Court finds that the ALJ 18 appropriately relied on the vocational expert’s testimony in finding that Ms. 19 Fuhrman could successfully adjust to other work that exists in significant numbers in 20 the national economy. 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 2 CONCLUSION Ms. Fuhrman argues on appeal that “[s]ince the alleged onset date, [she] has 3 been unable to sustain competitive employment on a regular and continuing basis 4 due to a combination of impairments, including anxiety, depression, learning 5 disorder, and wrist tendonitis.” ECF No. 12 at 3. While the record supports that Ms. 6 Fuhrman has struggled since at least 2002 with clinical depression and anxiety, she 7 also has remained in the same, part-time employment, since September 2012 and has 8 successfully taken on progressively more responsibilities and work hours without 9 any apparent setbacks. In addition, while the Court recognizes that the work 10 environment is particularly supportive to Ms. Fuhrman, the Court does not identify 11 significant accommodations that would not be available to anyone in the lead teacher 12 position, regardless of abilities and limitations. 13 Of course, Ms. Fuhrman may decide to continue to work part-time or full-time 14 as a preschool teacher at the church that she attends, as that endeavor provides a 15 particularly supportive environment with minor adjustments to the job duties and 16 conditions, capitalizes on her skillset, and ensures an opportunity to work with 17 children. However, that decision does not establish that Ms. Fuhrman is unable to 18 participate in “any substantial gainful work.” See 42 U.S.C. § 423(d)(2)(A). The 19 ALJ who heard Ms. Fuhrman’s claim for benefits at the agency level conducted a 20 thorough “individualized, functional inquiry into the effect of medical problems on a 21 person’s ability to work.” See Sullivan v. Zebley, 493 U.S. 521, 528 (1990). Judge ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 Valente’s conclusion that Ms. Fuhrman is capable of working full-time at a number 2 of jobs available in the national economy, whether or not she so chooses, is 3 supported by substantial evidence in the record. The denial of benefits was not 4 based on legal error. Therefore, reversal or remand is not warranted on any of the 5 grounds that Ms. Fuhrman raises, and judgment shall be entered for the 6 Commissioner, accordingly. 7 IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 10 GRANTED. 11 3. 12 IT IS SO ORDERED. The District Court Clerk is directed to enter this Judgment shall be entered for Defendant. 13 Order, enter Judgment as outlined above, provide copies to counsel, and close the 14 case. 15 DATED March 26, 2018. 16 17 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 18 19 20 21 ORDER DENYING PLAINTIFF’S AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20
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