Deborah Wallace obo Misty Dawn Colson v. Commissioner of Social Security, No. 1:2018cv03101 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF No. 15 ; denying ECF No. 14 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)
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Deborah Wallace obo Misty Dawn Colson v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Apr 09, 2019 SEAN F. MCAVOY, CLERK 4 Apr 09, 2019 5 SEAN F. MCAVOY, CLERK 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 10 11 12 13 14 15 16 17 DEBORAH WALLACE, o.b.o., MISTY C., deceased, Plaintiff, No. 1:18-CV-3101-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 18 19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 No. 14, 15. Attorney D. James Tree represents Plaintiff; Special Assistant United 21 States Attorney Leisa A. Wolf represents the Commissioner of Social Security 22 (Defendant). The parties have consented to proceed before a magistrate judge. 23 ECF No. 7. After reviewing the administrative record and briefs filed by the 24 parties, the Court GRANTS Defendant’s Motion for Summary Judgment and 25 DENIES Plaintiff’s Motion for Summary Judgment. 26 27 28 JURISDICTION In early 2014, Plaintiff filed applications for a period of disability, Disability Insurance Benefits (DIB), and Supplemental Security Income (SSI), alleging ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 disability since June 14, 2013, due to “mental health issues,” PTSD, and bipolar 2 disorder. Tr. 201, 205, 242. Plaintiff’s applications were denied initially and upon 3 reconsideration. Administrative Law Judge (ALJ) M.J. Adams held a hearing on March 2, 4 5 2017, Tr. 36-64, and issued an unfavorable decision on March 30, 2017, Tr. 15-25. 6 The Appeals Council denied review on April 13, 2018. Tr. 1-5. The ALJ’s March 7 2017 decision thus became the final decision of the Commissioner, which is 8 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 9 action for judicial review on June 15, 2018. ECF No. 1, 4. STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was born on August 20, 1975, and was 37 years old on the alleged 15 disability onset date, June 14, 2013. Tr. 201. She completed her GED in 1997. 16 Tr. 41, 243. Plaintiff’s disability report indicates she stopped working on June 14, 17 2013, because of her conditions. Tr. 242. Plaintiff testified at the administrative 18 hearing held on March 2, 2017, that she had been unable to cease her binging and 19 purging eating disorder (bulimia) which began at age 13. Tr. 52-53. She stated 20 bulimia caused her to have memory issues, Tr. 52, and made her physically weak, 21 Tr. 57. 22 Plaintiff testified she last worked in 2015, earning nearly $14,000 as a 23 housecleaner and by providing homecare services. Tr. 41-43. When asked why 24 she believed she was no longer able to do her past work, Plaintiff stated that every 25 time she finds a job, she sabotages it by talking herself out of it. Tr. 47. When 26 asked to elaborate, she indicated she was afraid she was not going to be able to 27 perform the job correctly. Tr. 49-50. Plaintiff testified she did not think she could 28 perform even a simple job with little public or supervisor contact because she ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 believed she would let herself and others down. Tr. 54-55. However, when asked 2 about a 2014 job offer, Plaintiff stated she believed she deserved a greater pay rate 3 than offered, but she also indicated she was fearful of working at night and of the 4 possibility she would start to drink again. Tr. 55-56. 5 The record reflects Plaintiff passed away unexpectedly in April 2017. ECF 6 No. 14 at 6. Pursuant to 20 C.F.R. § 404.503(b), if an individual who has been 7 underpaid dies, Social Security distributes underpayment to persons by order of 8 priority. This priority first flows to the surviving spouse, then to children, then to 9 parents, and lastly, to the legal representative of the deceased. Deborah Wallace, 10 Plaintiff’s mother, qualifies as the real party in interest in this action. 20 C.F.R. § 11 404.503(b). 12 13 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 14 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 15 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 16 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 17 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 18 only if it is not supported by substantial evidence or if it is based on legal error. 19 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 20 defined as being more than a mere scintilla, but less than a preponderance. Id. at 21 1098. Put another way, substantial evidence is such relevant evidence as a 22 reasonable mind might accept as adequate to support a conclusion. Richardson v. 23 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 24 rational interpretation, the Court may not substitute its judgment for that of the 25 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 26 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 27 administrative findings, or if conflicting evidence supports a finding of either 28 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 2 supported by substantial evidence will be set aside if the proper legal standards 3 were not applied in weighing the evidence and making the decision. Brawner v. 4 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 5 6 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 7 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 8 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 9 four, the burden of proof rests upon the claimant to establish a prima facie case of 10 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 11 met once a claimant establishes that a physical or mental impairment prevents the 12 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 13 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 14 to step five, and the burden shifts to the Commissioner to show that the claimant 15 can perform other jobs present in significant numbers in the national economy. 16 Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). 17 If a claimant cannot make an adjustment to other work in the national economy, a 18 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 19 ADMINISTRATIVE DECISION 20 On March 30, 2017, the ALJ issued a decision finding Plaintiff was not 21 disabled as defined in the Social Security Act. 22 At step one, the ALJ found Plaintiff had engaged in substantial gainful 23 activity (SGA) for all of 2015, but also found there had been continuous 12-month 24 periods during which Plaintiff had not engaged in SGA throughout the relevant 25 time period. Tr. 18. 26 At step two, the ALJ determined Plaintiff had the following severe 27 impairments: depressive disorder, anxiety disorder, trauma-stress related anxiety 28 disorder, personality disorder, and eating disorder. Tr. 18. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 At step three, the ALJ found Plaintiff did not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of 3 the listed impairments. Tr. 18. 4 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 5 determined she could perform a full range of work at all exertional levels with the 6 following limitations: she can understand, remember and carry out simple 7 instructions; she can make judgments commensurate with the functions of 8 unskilled work, i.e., work which needs little or no judgment to do simple duties, 9 and the person can usually learn to do the job in 30 days where little specific 10 vocational preparation and judgment are needed; she can respond appropriately to 11 supervision, but should not be required to work in close coordination with 12 coworkers where teamwork is required; she can deal with occasional changes in 13 the work environment; and she can do work that does not require any contact with 14 the general public to perform the work tasks. Tr. 20. At step four, the ALJ determined Plaintiff was not able to perform her past 15 16 relevant work as a day worker/housekeeper; nurse assistant; bartender; or waitress, 17 bar. Tr. 23-24. At step five, the ALJ determined that based on the testimony of the 18 19 vocational expert, and considering Plaintiff’s age, education, work experience and 20 RFC, Plaintiff could perform other jobs present in significant numbers in the 21 national economy, including the jobs of industrial cleaner, kitchen helper, and 22 laundry worker. Tr. 24-25. The ALJ thus concluded Plaintiff was not under a 23 disability within the meaning of the Social Security Act at any time from April 3, 24 2014 (the day after determinations on Plaintiff’s prior applications for DIB and SSI 25 became administratively final, Tr. 15), through the date of the ALJ’s decision, 26 March 30, 2017. Tr. 25. 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends the ALJ erred in this case (1) at step one when 5 6 determining Plaintiff had performed Substantial Gainful Activity (SGA) in 2015; 7 (2) in rejecting Plaintiff’s symptom testimony; and (3) when weighing the medical 8 and lay witness opinion evidence. ECF No. 14 at 1. DISCUSSION1 9 10 11 A. Substantial Gainful Work Activity Plaintiff contends the ALJ reversibly erred by determining at step one of the 12 sequential evaluation process that Plaintiff had engaged in substantial gainful 13 activity (SGA) in 2015. ECF No. 14 at 6-8. 14 “The concept of substantial gainful activity involves the amount of 15 compensation and the substantiality and gainfulness of the activity itself.” Keyes v. 16 Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990). In this regard, substantial gainful 17 activity is work activity that is both substantial and gainful: 18 19 20 (a) Substantial work activity. Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before. 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (June 21, 2018), the Supreme Court held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 6 2 (b) Gainful work activity. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized. 3 20 C.F.R. § 404.1572(a)-(b). “If your duties require use of your experience, skills, 4 supervision and responsibilities, or contribute substantially to the operation of a 5 business, this tends to show that you have the ability to work at the substantial 6 gainful activity level.” 20 C.F.R. § 404.1573(a). Moreover, “there is a 7 presumption of substantial gainful employment if the applicant earns over the 8 amount specified in the guidelines.” Keyes, 894 F.2d at 1056. However, “[t]he 9 claimant may rebut a presumption based on earnings with evidence of his inability 1 10 to be self-employed or to perform the job well, without special assistance, or for 11 only brief periods of time.” Id. (citing Anderson v. Heckler, 726 F.2d 455, 456 12 (8th Cir. 1984)). “In considering whether the presumption is rebutted, the factors 13 to be considered include the responsibilities and skills required to perform the 14 work, the amount of time the individual spends working, the quality of the 15 individual’s work, special working conditions, and for individuals who are self- 16 employed, the value of their work to the business.” Corrao v. Shalala, 20 F.3d 17 943, 948 (9th Cir. 1994); see also Katz v. Secretary of Health & Human Services, 18 972 F.2d 290, 293 (9th Cir. 1992) (“The earnings presumption can be rebutted. 19 Factors to be considered in addition to the amount earned include the time spent 20 working, quality of a person’s performance, special working conditions, and the 21 possibility of self-employment.”). “There are cases in which although the claimant 22 is currently earning a decent wage, he really is permanently disabled from 23 engaging in gainful activity. Maybe his boss feels desperately sorry for him and is 24 retaining him on the payroll even though he is incapable of working. That act of 25 charity ought not be punished by denying the employee benefits and thus placing 26 pressure on the employer to retain an unproductive employee indefinitely.” Jones 27 v. Shalala, 21 F.3d 191, 192 (7th Cir. 1994); see also Corrao, 20 F.3d at 948 28 (“While it is clear that Corrao’s ‘income’ establishes a presumption that he is ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 engaged in SGA, these guidelines are only a presumption and do not relieve an 2 ALJ of the duty to develop the record fully and fairly.”). 3 While Plaintiff contends her job as a home health care aide was an 4 unsuccessful work attempt, the bulk of Plaintiff’s 2015 earnings were from self- 5 employment which would have resulted in earnings below the SGA level, and the 6 statements of lay witnesses evince accommodations in Plaintiff’s work, ECF No. 7 14 at 6-8; ECF No. 16 at 1-2, Plaintiff testified she worked all of 2015, she earned 8 nearly $14,000 as a housecleaner and by providing homecare services in 2015, and 9 she did not report any type of special help or accommodations for performing this 10 work, Tr. 41-44; see Burkhalter v. Schweiker, 711 F.2d 841, 843 (8th Cir. 1983) 11 (finding an impaired woman who was able to work competently as a house cleaner 12 five hours per day without special help was engaged in substantial gainful activity). 13 It thus appears the ALJ did not err by finding Plaintiff performed SGA in 2015. Nevertheless, the ALJ found there had also been continuous 12-month 14 15 periods during which Plaintiff had not engaged in SGA throughout the relevant 16 time period, Tr. 18, proceeded with the sequential evaluation process, and 17 continued to make findings through step five of the sequential evaluation process. 18 Consequently, the Court finds that any error with respect to the ALJ’s step one 19 finding is harmless. See Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 20 1995) (an error is harmless when the correction of that error would not alter the 21 result). An ALJ’s decision will not be reversed for errors that are harmless. Burch 22 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing Curry v. Sullivan, 925 F.2d 23 1127, 1131 (9th Cir. 1991). 24 B. 25 26 27 28 Plaintiff’s Symptom Testimony Plaintiff next challenges the ALJ’s rejection of Plaintiff’s symptom testimony. ECF No. 14 at 8-14. It is the province of the ALJ to make credibility determinations. Andrews, 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 2 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 3 testimony must be “specific, clear and convincing.” Lester v. Chater, 81 F.3d 821, 4 834 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must 5 identify what testimony is not credible and what evidence undermines the 6 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 7 918 (9th Cir. 1993). 8 In this case, the ALJ found Plaintiff’s medically determinable impairments 9 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 10 statements concerning the intensity, persistence and limiting effects of those 11 symptoms were not entirely consistent with the medical and other evidence of 12 record. Tr. 21. 13 The ALJ first determined Plaintiff’s allegations of disabling mental 14 impairments were not substantiated by the objective medical evidence. Tr. 21. A 15 lack of supporting objective medical evidence is a factor which may be considered 16 in evaluating an individual’s credibility, provided it is not the sole factor. Bunnell 17 v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991) (Once a claimant produces objective 18 medical evidence of an underlying impairment, an adjudicator may not reject the 19 claimant’s subjective complaints based solely on a lack of objective medical 20 evidence to fully corroborate the alleged severity of pain.); Robbins v. Soc. Sec. 21 Admin., 466 F3d 880, 883 (9th Cir. 2006) (An ALJ may not make a negative 22 credibility finding “solely because” the claimant’s symptom testimony “is not 23 substantiated affirmatively by objective medical evidence.”). 24 Plaintiff contends that although the record does not establish a pattern of 25 continuous disability, it shows she sometimes had improved symptoms and other 26 times had worse symptoms. ECF No. 14 at 13. However, as indicated by the ALJ, 27 her mental functionality on medical exam, Tr. 445 (report of Shane Anderson, 28 Pharm. D.), was good: she dressed casually and appropriately; she did not exhibit ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 any abnormal motor activity; she spoke normally, in a goal-directed manner; she 2 was not delusional and did not report hallucinations; she had a full range of affect 3 and was both pleasant and appropriate; she did not express suicidal or homicidal 4 ideation; her memory and intellectual functioning were not impaired; and her 5 insight and judgment were fair. Tr. 21. The ALJ also noted the weight of the 6 medical evidence reflected Plaintiff was alert, oriented, and had an appropriate 7 mood/affect, intact memory and/or no medication side-effects. Tr. 21, 684, 882, 8 937-938, 1204, 1245, 1251, 1258, 1264, 1270. It was further noted that in May 9 2016 Plaintiff continued to work toward controlling triggers for her bulimia, which 10 11 12 13 14 15 occasionally fared up. Tr. 20, 1246. As concluded by the ALJ, the objective medical evidence demonstrates Plaintiff was not as mentally limited as she alleged in this case. Second, the ALJ noted inconsistencies within the record that detracted from Plaintiff’s reliability regarding her impairments. Tr. 21-22. In determining credibility, an ALJ may engage in ordinary techniques of 16 credibility evaluation, such as considering claimant’s reputation for truthfulness 17 and inconsistencies in claimant’s testimony. Burch, 400 F.3d at 680; Tonapetyan 18 v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). When a claimant fails to be a 19 reliable historian, “this lack of candor carries over” to other portions of her 20 testimony. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 21 The ALJ determined that Plaintiff’s allegation of disabling mental conditions 22 was inconsistent with her ability to work throughout 2015. Tr. 21-22. The ability 23 to perform even part-time work can be considered in assessing a claimant’s 24 credibility. Bray v. Comm’r Social Security Admin., 554 F.3d 1219, 1227 (9th Cir. 25 2009) (finding the ALJ properly discounted the claimant’s testimony because she 26 recently worked as a personal caregiver for two years and had since sought out 27 other employment). It is undisputed Plaintiff worked at least part-time as a 28 housecleaner and provider of homecare services throughout 2015. Tr. 41-44. The ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 ALJ properly considered the foregoing inconsistency in discounting Plaintiff’s 2 subjective complaints. 3 The ALJ also determined that Plaintiff had been advised to become more, as 4 opposed to less, active. Tr. 22. The record cited by the ALJ indicates merely that 5 Plaintiff “will continue to attend AA meetings on a regular basis and find a 6 sponsor.” Tr. 653. The Court is not convinced this citation exhibits an 7 inconsistency as there is no connection to any specific statement of Plaintiff, nor is 8 it clear the medical record undermines Plaintiff’s specific assertions of disabling 9 symptoms. However, given the ALJ’s other reasons for finding Plaintiff less than 10 fully credible, supra, the Court finds this error harmless. See Carmickle, 533 F.3d 11 1160, 1163 (9th Cir. 2008) (upholding adverse credibility finding where ALJ 12 provided four reasons to discredit claimant, two of which were invalid); Batson v. 13 Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (affirming 14 credibility finding where one of several reasons was unsupported by the record). The ALJ is responsible for reviewing the evidence and resolving conflicts or 15 16 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 17 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 18 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 19 determining whether the ALJ’s decision is supported by substantial evidence and 20 may not substitute its own judgment for that of the ALJ even if it might justifiably 21 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 22 reviewing the record, the Court finds that the ALJ provided clear and convincing 23 reasons, which are fully supported by the record, for finding Plaintiff’s symptom 24 allegations were not entirely credible in this case. 25 C. 26 Lay Witness Statements Plaintiff further contends the ALJ erred by rejecting the testimony of lay 27 witnesses Adrianna Shadlon, Bruce Smith and Matthew Walkenhauer. ECF No. 28 14 at 18-20; ECF No. 16 at 7. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 “In determining whether a claimant is disabled, an ALJ must consider lay 2 witness testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 3 F.3d 1050, 1053 (9th Cir. 2006). Lay witness testimony regarding a claimant’s 4 symptoms or how an impairment affects her ability to work is competent evidence. 5 Id. In rejecting lay testimony, the ALJ need not “discuss every witness’s testimony 6 on an individualized, witness-by-witness basis. Rather, if the ALJ gives germane 7 reasons for rejecting testimony by one witness, the ALJ need only point to those 8 reasons when rejecting similar testimony by a different witness.” Molina v. Astrue, 9 674 F.3d 1104, 1114 (9th Cir. 2012). An ALJ errs by failing to “explain her 10 reasons for disregarding . . . lay witness testimony, either individually or in the 11 aggregate.” Id. at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 12 1996)). This error may be harmless “where the testimony is similar to other 13 testimony that the ALJ validly discounted, or where the testimony is contradicted 14 by more reliable medical evidence that the ALJ credited.” Id. at 1118-1119. 15 Additionally, “an ALJ’s failure to comment upon lay witness testimony is harmless 16 where ‘the same evidence that the ALJ referred to in discrediting [the claimant’s] 17 claims also discredits [the lay witness’s] claims.’” Id. at 1122 (quoting Buckner v. 18 Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). 19 The ALJ mentioned the third-party statements of Adrianna Shadlon, Bruce 20 Smith and Matthew Walkenhauer indicated Plaintiff was anxious, depressed and 21 distracted. Tr. 21. It is thus clear the ALJ considered the limitations discussed in 22 the statements of Ms. Shadlon, Mr. Smith and Mr. Walkenhauer. Tr. 334-336. 23 The ALJ specifically accorded “partial weight” to all three opinions and found they 24 evidenced the most Plaintiff could do was a reduced range of unskilled work with 25 limited social contact/interaction. Tr. 22. 26 Since the ALJ ultimately determined Plaintiff was not capable of performing 27 her past relevant work as a caretaker or housekeeper, the statements of the lay 28 witnesses which describe Plaintiff’s difficulty performing this work do not ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 demonstrate Plaintiff is limited to a greater extent than that found by the ALJ in 2 this case. Tr. 23-24. Moreover, the lay witnesses’ statements were not expressly 3 rejected by the ALJ, Tr. 22; therefore, the ALJ was not required to provide an 4 explanation for his consideration of their statements. The Court thus finds the ALJ 5 did not err with regard to the lay witnesses’ statements in this case. 6 D. Opinion Testimony Plaintiff asserts the ALJ erred by rejecting the opinions of “other sources” 7 8 Shane Anderson, Marc Shellenberg and Carole Robinson and instead according 9 greater weight to acceptable medical sources Thomas Clifford, Ph.D., and John F. 10 Robinson, Ph.D. ECF No. 14 at 15-18. In a disability proceeding, the courts distinguish among the opinions of three 11 12 types of acceptable medical sources: treating physicians, physicians who examine 13 but do not treat the claimant (examining physicians) and those who neither 14 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 15 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 16 than an examining physician’s opinion, and an examining physician’s opinion is 17 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 18 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. In weighing the medical 19 opinion evidence of record, the ALJ must make findings setting forth specific, 20 legitimate reasons for doing so that are based on substantial evidence in the record. 21 Magallanes, 881 F.2d at 751. Moreover, the ALJ is required to set forth the 22 reasoning behind its decisions in a way that allows for meaningful review. Brown- 23 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (finding a clear statement of 24 the agency’s reasoning is necessary because the Court can affirm the ALJ’s 25 decision to deny benefits only on the grounds invoked by the ALJ). “Although the 26 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in 27 order for us to meaningfully determine whether the ALJ’s conclusions were 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 supported by substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 2 F.3d 1090, 1103 (9th Cir. 2014). 3 The opinion of an acceptable medical source is generally given more weight 4 than evidence provided by an “other source.”2 20 C.F.R. §§ 404.1527, 416.927; 5 Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). Pursuant to Dodrill, 12 6 F.3d at 915, an ALJ is obligated to provide germane reasons for discounting “other 7 source” statements. Shane Anderson, Pharm.D., an “other source,” filled out a “WorkFirst 8 9 Documentation Request Form for Medical or Disability Condition” on April 25, 10 2014. Tr. 435-437. Pharmacist Anderson checked boxes indicating Plaintiff’s 11 condition3 limited her ability to work to only one to 10 hours per week. Tr. 435. 12 He indicated the basis for his opinion was Plaintiff “reports low energy, difficulty 13 with concentration, anxiety in social situations which is secondary to her PTSD.” 14 Tr. 435. Case Manager Marc Shellenberger, an “other source,” also completed a 15 16 “WorkFirst Documentation Request Form for Medical or Disability Condition” on 17 September 2, 2014. Tr. 438-442. Mr. Shellenberger likewise checked boxes 18 indicating Plaintiff’s condition restricted her ability to work to one to 10 hours per 19 /// 20 21 2 Evidence from “other sources” is any information or statements from a non- 22 medical source about any issue raised by the claimant in the case. 20 C.F.R. § 23 404.1513(a)(4). 24 3 However, Mr. Anderson concluded Plaintiff’s condition was not permanent 25 and was expected to last for only six months. Tr. 436; see 42 U.S.C. §§ 26 423(d)(1)(A), 1382c(a)(3)(A) (an individual shall be considered disabled if she has 27 an impairment which can be expected to result in death or which has lasted or can 28 be expected to last for a continuous period of not less than 12 months). ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 week.4 Tr. 438. In support of his opinion in this regard, Mr. Shellenberger wrote 2 that Plaintiff “reports continued generalized anxiety” and that “mood instability 3 has not responded favorably to medications.” Tr. 438. Finally, on May 16, 2016, other source Carole Robinson completed a 4 5 “WorkFirst Documentation Request Form for Medical or Disability Condition” 6 and found Plaintiff’s condition resulted in an inability to work. Tr. 1076-1078. 7 Ms. Robinson noted the basis for this conclusion as Plaintiff “reports poor 8 memory retention and following written employability plan.” Tr. 1076. The ALJ accorded the foregoing check-box opinions little weight. Tr. 23. 9 10 The ALJ determined the opinions lacked adequate explanation and were reliant 11 upon Plaintiff’s non-credible subjective allegations. Tr. 22-23. Although the Ninth Circuit recently stated in a footnote that there is no 12 13 authority that a “check-the-box” form is any less reliable than any other medical 14 form, Trevizo v. Berryhill, 871 F.3d 664, 677 n. 4 (9th Cir. 2017), the Ninth Circuit 15 has consistently held that individual medical opinions are preferred over check-box 16 reports, Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Murray v. Heckler, 17 722 F.2d 499, 501 (9th Cir. 1983); Holohan v. Massanari, 246 F.3d 1195, 1202 18 (9th Cir. 2001) (holding “the regulations give more weight to opinions that are 19 explained than to those that are not”). An ALJ’s rejection of a check-box report 20 that does not contain an explanation of the bases for the conclusions made is 21 permissible. Crane, 76 F.3d at 253; Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 22 1986) (an ALJ need not accept a physician’s opinion which is “brief and 23 /// 24 25 4 Just one month prior, on August 6, 2014, Mr. Shellenberger filed out a 26 “WorkFirst Documentation Request Form for Medical or Disability Condition” 27 and opined Plaintiff’s condition limited her ability to work to 21 to 30 hours per 28 week. Tr. 1081-1084. ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 conclusionary in form with little in the way of clinical findings to support [its] 2 conclusion”). Here, the “WorkFirst Documentation Request Form for Medical or 3 4 Disability Condition” check-box form reports provide little explanation in support 5 of the significant limitations assessed. As noted by the ALJ, what little support 6 offered on the form reports indicates the other sources relied to a great extent on 7 Plaintiff’s subjective reporting. Tr. 23 (“Misty reports,” “Misty says,” “[c]lient 8 reports”). Since, as determined above, Plaintiff was properly found by the ALJ to 9 be not entirely credible in this case, the ALJ appropriately accorded little weight to 10 medical reports based primarily on subjective complaints. See Tonapetyan, 242 11 F.3d at 1149 (a physician’s opinion premised primarily on a claimant’s subjective 12 complaints may be discounted where the record supports the ALJ’s discounting of 13 the claimant’s credibility); Morgan, 169 F.3d at 602 (the opinion of a physician 14 premised to a large extent on a claimant’s own account of symptoms and 15 limitations may be disregarded where they have been properly discounted). 16 The ALJ provided germane reasons for according little weight to the 17 significant limitations assessed on the check-box form reports of other sources 18 Anderson, Shellenberg and Robinson. State agency medical professional Thomas Clifford, Ph.D., evaluated 19 20 Plaintiff’s mental residual functional capacity on April 1, 2015. Tr. 92-96. On 21 May 1, 2015, state agency reviewer John F. Robinson also considered Plaintiff’s 22 condition. Tr. 114-118. These nonexamining medical professionals determined 23 Plaintiff could perform work activity on a consistent basis that involved routine, 24 simple instructions/tasks with limited social contact/interaction. Id. The ALJ accorded “significant weight” to the state agency opinions, finding 25 26 their opinions were consistent with the weight of the medical evidence and 27 Plaintiff’s documented ability to work throughout 2015. Tr. 22. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 Plaintiff contends the ALJ failed to provide sufficient reasons for “giving the 2 most weight” to the nonexamining medical professionals. ECF No. 14 at 15. 3 When a nontreating source’s opinion contradicts that of a treating physician, but it 4 is not based on independent clinical findings, the opinion of the treating physician 5 may be rejected only if the ALJ gives specific, legitimate reasons for doing so that 6 are based on substantial evidence in the record. Andrews, 53 F.3d at 1041; 7 Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) (applying test where ALJ 8 relied on contradictory opinion of nonexamining medical advisor). Here, there is 9 no acceptable treating physician opinion that contradicts the assessments of the 10 state agency reviewers. Moreover, there is no requirement that the ALJ provide 11 “sufficient reasons” for according weight to a medical professional, rather the 12 Court reviews whether the ALJ has failed to provide legally sufficient reasons for 13 rejecting evidence. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The 14 Court notes that, other than the significant restrictions indicated in the other source 15 check-box reports, there has been no medical evidence provided that conflicts with 16 the opinions of the state agency reviewers. Accordingly, Plaintiff’s argument with 17 respect to the state agency reviewing medical professionals is without merit. 18 Based on the foregoing, the Court finds that the ALJ did not err by failing to 19 find greater limitations than as assessed in the RFC determination. The ALJ’s 20 residual functional capacity assessment is supported by the weight of the record 21 evidence and free of error. 22 CONCLUSION 23 Having reviewed the record and the ALJ’s findings, the Court finds the 24 ALJ’s decision is supported by substantial evidence and free of legal error. 25 Accordingly, IT IS ORDERED: 26 27 28 1. Defendant’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 3 and the file shall be CLOSED. 4 DATED April 9, 2019. 5 6 7 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 18
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