Robles v. Kijakazi, No. 1:2020cv03218 - Document 22 (E.D. Wash. 2022)

Court Description: ORDER DENYING 19 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 20 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. File is closed. Signed by Judge Mary K. Dimke. (BM, Case Administrator)

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Robles v. Kijakazi Doc. 22 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2223 Page 1 of 42 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Aug 10, 2022 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JEANETTE R., 1 8 Plaintiff, 9 10 11 No. 1:20-cv-03218-MKD v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, 2 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 19, 20 12 Defendant. 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 2 ORDER - 1 Dockets.Justia.com Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2224 Page 2 of 42 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 19, 20. The Court, having reviewed the administrative record and the parties’ 3 briefing, is fully informed. For the reasons discussed below, the Court denies 4 Plaintiff’s motion, ECF No. 19, and grants Defendant’s motion, ECF No. 20. 5 6 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 7 1383(c)(3). 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 15 (quotation and citation omitted). Stated differently, substantial evidence equates to 16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 17 citation omitted). In determining whether the standard has been satisfied, a 18 reviewing court must consider the entire record as a whole rather than searching 19 for supporting evidence in isolation. Id. 20 2 ORDER - 2 Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2225 Page 3 of 42 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §§ 7 404.1502(a), 416.902(a). Further, a district court “may not reverse an ALJ’s 8 decision on account of an error that is harmless.” Id. An error is harmless “where 9 it is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 10 1115 (quotation and citation omitted). The party appealing the ALJ’s decision 11 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 12 556 U.S. 396, 409-10 (2009). 13 14 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 15 the meaning of the Social Security Act. First, the claimant must be “unable to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which 18 has lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 20 impairment must be “of such severity that he is not only unable to do his previous 2 ORDER - 3 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2226 Page 4 of 42 1 work[,] but cannot, considering his age, education, and work experience, engage in 2 any other kind of substantial gainful work which exists in the national economy.” 3 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 4 The Commissioner has established a five-step sequential analysis to 5 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 6 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 7 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 8 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(b), 416.920(b). 11 If the claimant is not engaged in substantial gainful activity, the analysis 12 proceeds to step two. At this step, the Commissioner considers the severity of the 13 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 14 claimant suffers from “any impairment or combination of impairments which 15 significantly limits [his or her] physical or mental ability to do basic work 16 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 17 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 18 however, the Commissioner must find that the claimant is not disabled. Id. 19 At step three, the Commissioner compares the claimant’s impairment to 20 severe impairments recognized by the Commissioner to be so severe as to preclude 2 ORDER - 4 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2227 Page 5 of 42 1 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 2 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 3 severe than one of the enumerated impairments, the Commissioner must find the 4 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 5 If the severity of the claimant’s impairment does not meet or exceed the 6 severity of the enumerated impairments, the Commissioner must pause to assess 7 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 8 defined generally as the claimant’s ability to perform physical and mental work 9 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 10 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 11 analysis. 12 At step four, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing work that he or she has performed in 14 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 15 If the claimant is capable of performing past relevant work, the Commissioner 16 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 17 If the claimant is incapable of performing such work, the analysis proceeds to step 18 five. 19 At step five, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing other work in the national economy. 2 ORDER - 5 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2228 Page 6 of 42 1 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 2 the Commissioner must also consider vocational factors such as the claimant’s age, 3 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 4 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 5 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 6 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 7 work, the analysis concludes with a finding that the claimant is disabled and is 8 therefore entitled to benefits. Id. 9 The claimant bears the burden of proof at steps one through four above. 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 11 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 12 capable of performing other work; and 2) such work “exists in significant numbers 13 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 14 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 15 16 ALJ’S FINDINGS On August 13, 2014, Plaintiff applied both for Title II disability insurance 17 benefits and Title XVI supplemental security income benefits alleging a disability 18 19 20 2 ORDER - 6 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2229 Page 7 of 42 1 onset date of December 1, 2013.3 Tr. 66-67, 210-26, 1026. The applications were 2 denied initially and on reconsideration. Tr. 131-34, 143-54. Plaintiff appeared 3 before an administrative law judge (ALJ) on March 2, 2017. Tr. 44-65. On May 4 17, 2017, the ALJ denied Plaintiff’s claim. Tr. 15-40. Plaintiff appealed the 5 denial; the Appeals Council declined to review the decision, and this Court then 6 remanded the case. Tr. 1-6, 1143-53. Plaintiff appeared for a remand hearing on 7 July 13, 2020. Tr. 1075-1104. On August 4, 2020, the ALJ again denied 8 Plaintiff’s claim. Tr. 1023-50. 9 At step one of the sequential evaluation process, the ALJ found Plaintiff, 10 who met the insured status requirements through September 30, 2019, has not 11 engaged in substantial gainful activity since December 1, 2013. Tr. 1029. At step 12 two, the ALJ found that Plaintiff has the following severe impairments: spinal 13 impairment(s), dermatitis, carpal tunnel syndrome, fibromyalgia, migraine 14 headaches, mood disorder(s), anxiety disorder(s) (including PTSD), and 15 personality disorder(s). Id. 16 17 18 3 Plaintiff applied for Title II and Title XVI benefits on September 2, 2010, and 19 again applied for Title II benefits on June 19, 2012; both applications were initially 20 denied and not appealed. Tr. 69. 2 ORDER - 7 Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2230 Page 8 of 42 At step three, the ALJ found Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of a listed 3 impairment. Id. The ALJ then concluded that Plaintiff has the RFC to perform 4 light work with the following limitations: 5 6 7 8 9 10 11 [Plaintiff] can frequently climb ramps and stairs. She can occasionally kneel, crouch, crawl, and climb ladders. She can frequently handle and finger bilaterally. She should avoid concentrated exposure to humidity, wetness, extreme temperatures, pulmonary irritants, and hazards. She can understand, remember, and carry out simple instructions. She can exercise simple workplace judgment and can perform work that is learned on the job in less than thirty days by short demonstration and practice or repetition. She can respond appropriately to supervision and can have occasional superficial interaction with coworkers. She can work in jobs that require only occasional and superficial interaction or contact with the general public. She can deal with occasional changes in the work environment. 12 Tr. 1031. 13 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 1040. 14 At step five, the ALJ found that, considering Plaintiff’s age, education, work 15 experience, RFC, and testimony from the vocational expert, there were jobs that 16 existed in significant numbers in the national economy that Plaintiff could perform, 17 such as production assembler, electrical accessories assembler I, and routing clerk. 18 Tr. 1041. Therefore, the ALJ concluded Plaintiff was not under a disability, as 19 defined in the Social Security Act, from the alleged onset date of December 1, 20 2013, through the date of the decision. Tr. 1042. 2 ORDER - 8 Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2231 Page 9 of 42 Per 20 C.F.R. §§ 404.984, 416.1484 the ALJ’s decision following this 2 Court’s prior remand became the Commissioner’s final decision for purposes of 3 judicial review. 4 ISSUES 5 Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her disability insurance benefits under Title II and supplemental security income 7 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 8 issues for review: 9 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 10 2. Whether the ALJ properly evaluated the medical opinion evidence; and 11 3. Whether the ALJ properly evaluated the lay opinion evidence.4 12 ECF No. 19 at 2. 13 DISCUSSION 14 A. Plaintiff’s Symptom Claims 15 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 16 convincing in discrediting her symptom claims. ECF No. 19 at 3-12. An ALJ 17 engages in a two-step analysis to determine whether to discount a claimant’s 18 19 4 Plaintiff lists the medical opinion and lay opinion evidence issues as one issue; 20 however, the Court addresses the issues separately. 2 ORDER - 9 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2232 Page 10 of 42 1 testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029, at *2. 2 “First, the ALJ must determine whether there is objective medical evidence of an 3 underlying impairment which could reasonably be expected to produce the pain or 4 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 5 “The claimant is not required to show that [the claimant’s] impairment could 6 reasonably be expected to cause the severity of the symptom [the claimant] has 7 alleged; [the claimant] need only show that it could reasonably have caused some 8 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 13 omitted). General findings are insufficient; rather, the ALJ must identify what 14 symptom claims are being discounted and what evidence undermines these claims. 15 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 16 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 17 explain why it discounted claimant’s symptom claims)). “The clear and 18 convincing [evidence] standard is the most demanding required in Social Security 19 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 20 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 2 ORDER - 10 Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2233 Page 11 of 42 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 3 duration, frequency, and intensity of pain or other symptoms; 3) factors that 4 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or 6 other symptoms; 5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; 6) any measures other than treatment 8 an individual uses or has used to relieve pain or other symptoms; and 7) any other 9 factors concerning an individual’s functional limitations and restrictions due to 10 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 11 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 12 an individual’s record,” to “determine how symptoms limit ability to perform 13 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 The ALJ found that Plaintiff’s medically determinable impairments could 15 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 16 statements concerning the intensity, persistence, and limiting effects of her 17 symptoms were not entirely consistent with the evidence. Tr. 1032. 18 1. Work History 19 The ALJ found Plaintiff’s work history was inconsistent with Plaintiff’s 20 allegations. Tr. 1032-33. Working with an impairment supports a conclusion that 2 ORDER - 11 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2234 Page 12 of 42 1 the impairment is not disabling. Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 2 1992); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) 3 (seeking work despite impairment supports inference that impairment is not 4 disabling). However, short-term work, which does not demonstrate the ability to 5 sustain substantial gainful employment, may be considered an unsuccessful work 6 attempt instead of substantial gainful activity. Gatliff v. Comm’r Soc. Sec. Admin., 7 172 F.3d 690, 694 (9th Cir. 1999); see also Reddick v. Chater, 157 F.3d 715, 722 8 (9th Cir. 1998) (“Several courts, including this one, have recognized that disability 9 claimants should not be penalized for attempting to lead normal lives in the face of 10 their limitations.”). 11 The ALJ noted Plaintiff was able to sustain part-time work even during 12 periods when she had little to no treatment for her impairments. Tr. 1032. 13 Plaintiff was able to work part-time as a cashier from 2010 through December 14 2013, and as a part-time receptionist from January 2014 through May 2014. Tr. 15 1033. However, Plaintiff alleges her disability begin in December 2013. Tr. 1026. 16 In 2014, Plaintiff earned $2,626 from one employer and $2,322 from another, 17 totaling to $4,949. Tr. 1226. Plaintiff reported the most recent job ended due to 18 her uncontrolled mood swings but reported to another provider that the job ended 19 due to her pain. Tr. 1033 (citing Tr. 452, 476). The ALJ found Plaintiff’s ability 20 to work in a semi-skilled receptionist job that required some social interaction was 2 ORDER - 12 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2235 Page 13 of 42 1 inconsistent with Plaintiff’s reported severe limitations. Tr. 1033. Plaintiff’s 2 ability to work well below the substantial gainful activity level for only five 3 months past her alleged onset date does not demonstrate any clear inconsistency, 4 although Plaintiff reported varying reasons for why the work ended. However, any 5 error in the ALJ’s consideration of Plaintiff’s work history is harmless as the ALJ 6 gave other supported reasons to reject Plaintiff’s claims, as discussed infra. See 7 Molina, 674 F.3d at 1115. 8 2. Lack of Treatment 9 The ALJ found Plaintiff’s lack of treatment was inconsistent with Plaintiff’s 10 allegations. Tr. 1032-33. An unexplained, or inadequately explained, failure to 11 seek treatment or follow a prescribed course of treatment may be considered when 12 evaluating the claimant’s subjective symptoms. Orn v. Astrue, 495 F.3d 625, 638 13 (9th Cir. 2007). And evidence of a claimant’s self-limitation and lack of 14 motivation to seek treatment are appropriate considerations in determining the 15 credibility of a claimant’s subjective symptom reports. Osenbrock v. Apfel, 240 16 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App’x 45, *3 (9th 17 Cir. 2009) (unpublished opinion) (considering why plaintiff was not seeking 18 treatment). When there is no evidence suggesting that the failure to seek or 19 participate in treatment is attributable to a mental impairment rather than a 20 personal preference, it is reasonable for the ALJ to conclude that the level or 2 ORDER - 13 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2236 Page 14 of 42 1 frequency of treatment is inconsistent with the alleged severity of complaints. 2 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental 3 health treatment is partly due to a claimant’s mental health condition, it may be 4 inappropriate to consider a claimant’s lack of mental health treatment when 5 evaluating the claimant’s failure to participate in treatment. Nguyen v. Chater, 100 6 F.3d 1462, 1465 (9th Cir. 1996). 7 The ALJ noted Plaintiff had a gap in mental health care from March 2013 8 through August 2014. Tr. 1033 (citing Tr.1675-76). Plaintiff again had a lapse in 9 mental health care from March 2015 through August 2015. Tr. 1035 (citing Tr. 10 969). She then had a lapse from March to June 2018. Tr. 1035 (citing Tr. 145211 53). When she saw the medication prescriber again in July 2018, the provider 12 stated, “This provider noted quite clearly that her poor follow up is impeding her 13 [mental health] care, and that this provider was not comfortable prescribing 14 medications without follow up.” Tr. 1484. Plaintiff again had a lapse in care prior 15 to April 2019, when she went 10 months without seeking medication management. 16 Tr. 1035 (citing Tr. 1311). Treatment records document Plaintiff’s non17 compliance with taking prescribed mental health medications. Tr. 1035-36. 18 Plaintiff argues she had reasons for the non-compliance but does not offer 19 reasoning for why she did not consistently pursue other treatment. Plaintiff 20 discusses only the March 2013 through August 2014 gap. She argues her alleged 2 ORDER - 14 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2237 Page 15 of 42 1 onset date is December 2013 and she returned to treatment by June 2014 when she 2 reported suicidal thoughts. ECF No. 19 at 4 (citing Tr. 453). However, Plaintiff 3 does not address the other gaps in treatment and does not offer any reasons for the 4 gaps. 5 Plaintiff also had no treatment for her reported pain symptoms, headaches, 6 and paresthesia from late 2016 through January 2018, and after re-establishing care 7 in January, she then did not return to care again until June 2018. Tr. 1034 (citing 8 Tr. 1797-99, 1805-12). Plaintiff argues her primary care provider was no longer 9 able to see her due to insurance issues beginning in November 2016; however, 10 Plaintiff does not offer an explanation as to why she sought no care from any 11 provider for her physical symptoms until January 2018. ECF No. 19 at 7-8. The 12 record indicates Plaintiff maintained insurance and only needed to find a new 13 provider. Tr. 943. This was a clear and convincing reason, supported by 14 substantial evidence, to reject Plaintiff’s symptom claims. 15 3. Inconsistent Objective Medical Evidence 16 The ALJ found the objective medical evidence was inconsistent with 17 Plaintiff’s symptom claims. Tr. 1033-36. An ALJ may not discredit a claimant’s 18 symptom testimony and deny benefits solely because the degree of the symptoms 19 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 20 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 2 ORDER - 15 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2238 Page 16 of 42 1 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 2 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a 3 relevant factor, along with the medical source’s information about the claimant’s 4 pain or other symptoms, in determining the severity of a claimant’s symptoms and 5 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 6 416.929(c)(2). 7 First, the ALJ found Plaintiff’s mental health symptom complaints were not 8 as severe as alleged. Tr. 1033-36. The ALJ noted that Plaintiff had generally 9 normal psychological findings in treatment settings, while she had differing 10 presentation at appointments related to her seeking state assistance. Tr. 1034. 11 Plaintiff alleged she stopped working in 2014 due to psychological symptoms but 12 reported to a provider in 2014 that her psychological impairment was not 13 impacting her sense of wellbeing. Tr. 1033 (citing Tr. 476). While Plaintiff had 14 some abnormalities at some appointments, such as abnormal thoughts and fund of 15 knowledge, and poor memory and judgment, Tr. 1035 (citing Tr. 497-511, 966), 16 Plaintiff had generally normal mood, grooming, behavior, speech, affect, memory, 17 and eye contact at multiple appointments, Tr. 1035 (citing Tr. 497-511, 920-22, 18 958, 960-61, 967). Several medical records document that Plaintiff’s complaints 19 were incongruent with her presentation. Tr. 1035. She reported feeling tired while 20 appearing energetic at one appointment. Id. (citing Tr. 1452-53). At another 2 ORDER - 16 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2239 Page 17 of 42 1 appointment, her affect was deemed incongruent with her reportedly tired mood. 2 Tr. 1035 (citing Tr. 920-22). Records in 2016 and 2017 note that Plaintiff’s 3 psychological complaints were incongruent with her normal affect, speech, 4 behavior, psychomotor activity, eye contact, attention, judgment, and thoughts. Tr. 5 1035 (citing Tr. 936-37, 943-44, 949-50, 1484-85). 6 Additionally, despite limited compliance with prescribed medication, 7 Plaintiff reported improvement each time she tried medication. Tr. 1035-36. In 8 February 2015, Plaintiff reported improvement with medication. Tr. 1035 (citing 9 Tr. 1705). In May 2016, Plaintiff reported improvement in her mood and 10 impulsive anger with medication. Tr. 1035 (citing Tr. 953-54). Plaintiff reported a 11 history of improvement with Lithium. Tr. 1035 (citing Tr. 1353). Plaintiff had 12 normal mood, affect, behavior, eye contact, speech, and motor activity after being 13 prescribed Abilify in 2019. Tr. 1036 (citing Tr. 2056). 14 The ALJ also found Plaintiff’s physical symptoms were not as severe as 15 alleged. Tr. 1033-35. While Plaintiff alleged she stopped working in 2014 due to 16 pain symptoms, the ALJ noted Plaintiff had generally normal physical 17 examinations during that time and she had improvement in her symptoms with 18 only conservative treatment. Tr. 1033. Plaintiff reported pain and numbness but 19 exhibited symmetric strength and no swelling. Id. (citing Tr. 476-77, 479-80, 48220 82). In June 2015, she had a normal examination despite ongoing complaints, and 2 ORDER - 17 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2240 Page 18 of 42 1 later in 2015, she had generally normal exams except positive fibromyalgia tender 2 points. Tr. 1033 (citing Tr. 866-83, 887-89). Plaintiff had multiple generally 3 normal examinations through 2015 and 2016, during which she reported doing 4 well on Lyrica and she reported having no physical disability and normal activities 5 of daily living. Tr. 1033 (citing, e.g., Tr. 866, 869, 893-94). Plaintiff then had a 6 gap in treatment until January 2018, when she was told to use wrist braces, and 7 exercise, and when she returned in June 2018, she was again told to use braces, 8 exercise, and take over-the-counter medication. Tr. 1034 (citing Tr. 1797-1800, 9 1805-12). In January 2019, Plaintiff reported pain of nine out of 10, but she was 10 positive for tenderness in all 18 fibromyalgia points as well as two control sites. 11 Tr. 1034 (citing Tr. 1748). Plaintiff reported ongoing severe pain but failed to 12 follow-up with physical therapy appointments. Tr. 1034 (citing Tr. 1714-15). At a 13 December 2019 examination, Plaintiff reported chronic pain but had normal gait, 14 reflexes, sensation, and range of motion. Tr. 1034 (citing Tr. 2011-12). 15 Several appointments documented inconsistencies between Plaintiff’s 16 reported symptoms and the objective findings. Tr. 1034. Plaintiff had normal 17 sensation at multiple appointments, and strength testing that was deemed 18 inconsistent with her presentation, sensation testing that did not follow a 19 dermatomal pattern, and fibromyalgia tender point testing that included Plaintiff 20 reporting tenderness in areas not associated with fibromyalgia. Id. (citing Tr. 2 ORDER - 18 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2241 Page 19 of 42 1 2013-20, 2023, 2025-26). Plaintiff also had pain responses that were deemed 2 disproportionate. Tr. 1034 (citing Tr. 2081, 2084). 3 Plaintiff argues the ALJ erred because the normal findings are not 4 inconsistent with disabling fibromyalgia and fibromyalgia symptoms are not 5 expected to follow a dermatomal pattern. ECF No. 19 at 4-5. However, Plaintiff 6 offers no argument regarding her reported positive symptoms at control points, and 7 her carpal tunnel syndrome symptoms not following a dermatomal pattern. While 8 Plaintiff also argues the ALJ erred in considering that she was not in acute distress 9 at appointments, id., the ALJ reasonably found Plaintiff reporting a pain level of 15 10 on a 10-point scale was inconsistent with a lack of distress, Tr. 1034 (citing Tr. 11 1729-33, 1738). Plaintiff also argues the ALJ failed to consider evidence that 12 demonstrated more severe symptoms of carpal tunnel syndrome; however, the 13 Court may not reverse the ALJ’s decision based on Plaintiff’s disagreement with 14 the ALJ’s interpretation of the record. See Tommasetti v. Astrue, 533 F.3d 1035, 15 1038 (9th Cir. 2008) (“[W]hen the evidence is susceptible to more than one 16 rational interpretation” the court will not reverse the ALJ’s decision). 17 The ALJ reasonably found Plaintiff’s symptom claims were inconsistent 18 with the objective medical evidence. This was a clear and convincing reason, 19 along with the other reasons offered, to reject Plaintiff’s symptom claims. 20 2 ORDER - 19 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2242 Page 20 of 42 1 4. Activities of Daily Living 2 The ALJ found Plaintiff’s activities of daily living were inconsistent with 3 her allegations. Tr. 1036. The ALJ may consider a claimant’s activities that 4 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a 5 substantial part of the day engaged in pursuits involving the performance of 6 exertional or non-exertional functions, the ALJ may find these activities 7 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 8 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 9 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 10 the claimant reports participation in everyday activities indicating capacities that 11 are transferable to a work setting” or when activities “contradict claims of a totally 12 debilitating impairment.” Molina, 674 F.3d at 1112-13. 13 The ALJ found Plaintiff’s activities were inconsistent with her allegations of 14 severe physical and psychological symptoms. Tr. 1036. Plaintiff has reported 15 being fully independent in her activities, including being able to handle housework, 16 clean her house daily, and shop. Id. (citing Tr. 497-511, 2060). Plaintiff has 17 reported normal activities of daily living at appointments. Tr. 1036 (citing Tr. 866, 18 869, 877, 881). Plaintiff has also reported being busy caring for two young 19 children while cleaning her home. Tr. 1036 (citing Tr. 1476, 1482). Plaintiff is 20 able to go on walks regularly and take children to the park. Tr. 1036 (citing Tr. 2 ORDER - 20 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2243 Page 21 of 42 1 2060). In 2015, Plaintiff reported she was fully independent in her self-care and 2 living skills, including being able to handle housework, shop independently, 3 manage funds and bills, and drive. Tr. 500. 4 Plaintiff argues her symptoms wax and wane, and the ALJ failed to identify 5 inconsistencies between her periodic symptoms and periodic activities and the ALJ 6 did not identify specific childcare activities. ECF No. 19 at 11-12. Plaintiff also 7 argues her cleaning is a symptom of her obsessive-compulsive disorder, and a 8 hindrance to her ability to work. Id. However, the ALJ noted that Plaintiff is able 9 to clean her house every day, Tr. 1036 (citing Tr. 2060), which is inconsistent with 10 her reported physical inability to perform activities of daily living on a regular 11 basis. While the ALJ did not identify specific childcare activities beyond taking 12 the children to the park, Plaintiff was performing tasks like daily cleaning while 13 also providing part-time childcare to a one-year-old and three-year-old. Tr. 1036, 14 1476, 1482. Any error in failing to identify specifics of the childcare is harmless 15 as the ALJ identified other activities that were inconsistent with her allegations and 16 the ALJ gave other supported reasons to reject Plaintiff’s symptom claims. See 17 Molina, 674 F.3d at 1115. This was a clear and convincing reason, supported by 18 substantial evidence, to reject Plaintiff’s symptom claims. Plaintiff is not entitled 19 to remand on these grounds. 20 2 ORDER - 21 Case 1:20-cv-03218-MKD 1 2 ECF No. 22 filed 08/10/22 PageID.2244 Page 22 of 42 B. Medical Opinion Evidence Plaintiff contends the ALJ erred in his consideration of the opinions of Jay 3 Toews, Ed.D.; Suzanne Damstedt, M.A.; Barbara MacKenzie, ARNP; Patrick 4 Waber, M.D.; and Eugene Kester, M.D. ECF No. 19 at 12-20. 5 There are three types of physicians: “(1) those who treat the claimant 6 (treating physicians); (2) those who examine but do not treat the claimant 7 (examining physicians); and (3) those who neither examine nor treat the claimant 8 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 9 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 10 Generally, a treating physician’s opinion carries more weight than an examining 11 physician’s, and an examining physician’s opinion carries more weight than a 12 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 13 to opinions that are explained than to those that are not, and to the opinions of 14 specialists concerning matters relating to their specialty over that of 15 nonspecialists.” Id. (citations omitted). 16 If a treating or examining physician’s opinion is uncontradicted, the ALJ 17 may reject it only by offering “clear and convincing reasons that are supported by 18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 “However, the ALJ need not accept the opinion of any physician, including a 20 treating physician, if that opinion is brief, conclusory and inadequately supported 2 ORDER - 22 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2245 Page 23 of 42 1 by clinical findings.” Bray, 554 F.3d at 1228 (internal quotation marks and 2 brackets omitted). “If a treating or examining doctor’s opinion is contradicted by 3 another doctor’s opinion, an ALJ may only reject it by providing specific and 4 legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 5 1216 (citing Lester, 81 F.3d at 830-31). The opinion of a nonexamining physician 6 may serve as substantial evidence if it is supported by other independent evidence 7 in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 8 “Only physicians and certain other qualified specialists are considered 9 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original); 10 see 20 C.F.R. §§ 404.1513, 416.913 (2013). 5 However, an ALJ is required to 11 consider evidence from non-acceptable medical sources, such as therapists. 20 12 C.F.R. §§ 404.1513(d), 416.913(d) (2013).6 An ALJ may reject the opinion of a 13 14 5 The regulation that defines acceptable medical sources is found at 20 C.F.R. §§ 15 404.1502, 416.902 for claims filed after March 27, 2017. The Court applies the 16 regulation in effect at the time the claim was filed. 17 6 The regulation that requires an ALJ’s consider opinions from non-acceptable 18 medical sources is found at 20 C.F.R. §§ 404.1502c, 416.920c for claims filed after 19 March 27, 2017. The Court applies the regulation in effect at the time the claim 20 was filed. 2 ORDER - 23 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2246 Page 24 of 42 1 non-acceptable medical source by giving reasons germane to the opinion. Ghanim, 2 763 F.3d at 1161. 3 1. Dr. Toews 4 On February 2, 2015, Dr. Toews examined Plaintiff and rendered an opinion 5 on her functioning. Tr. 497-511. Dr. Toews diagnosed Plaintiff with dysthymic 6 disorder, provisional; anxiety disorder, not otherwise specified (NOS), with panic 7 disorder, obsessive-compulsive, generalized anxiety, and PTSD features; 8 personality disorder NOS, with avoidant, dependent, and borderline features; and a 9 rule out diagnosis of cognitive disorder, NOS. Tr. 503. Dr. Toews stated 10 Plaintiff’s WAIS-IV Full Scale IQ is 75, placing Plaintiff in the borderline range. 11 Tr. 501. Dr. Toews opined Plaintiff’s scores indicate a very poor ability to process 12 and utilize more complex information; she would be a poor fit in occupations 13 involving verbal skills for interacting, judging, and decision making; her relatively 14 low verbal intellectual abilities and very low working memory would contribute to 15 difficulty in interpersonal and social interactions; she can understand and follow 16 simple two-step tasks; she can sustain attention but her psychological symptoms 17 would cause a moderate effect overall on her workplace functioning; she would 18 have moderate limitations in relating to coworkers, and making routine 19 judgments/decisions in the work place; she has moderate to marked limitations in 20 interacting with coworkers/supervisors; she has marked limitations with detailed 2 ORDER - 24 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2247 Page 25 of 42 1 instructions; and she has marked to extreme limitations in interacting with the 2 general public. Tr. 501-03. As Dr. Toews’ opinion was contradicted by the 3 opinions of Dr. Kester and Dr. Haney, Tr. 74-75, 101-03, the ALJ was required to 4 give specific and legitimate reasons to reject Dr. Toews’ opinion. See Bayliss, 427 5 F.3d at 1216. The ALJ gave Dr. Toews’ opinion minimal weight, although he 6 credited the portion of the opinion addressing Plaintiff’s ability to sustain attention 7 on simple tasks and have limited contact with the public and coworkers. Tr. 1038. 8 First, the ALJ found Dr. Toews’ opinion was inconsistent with the objective 9 medical evidence. Id. A medical opinion may be rejected if it is unsupported by 10 medical findings. Bray, 554 F.3d at 1228; Batson v. Comm’r of Soc. Sec. Admin., 11 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas, 278 F.3d at 957; Tonapetyan v. 12 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney v. Sullivan, 981 F.2d 1016, 13 1019 (9th Cir. 1992). An ALJ may discredit physicians’ opinions that are 14 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, an 15 ALJ is not obliged to credit medical opinions that are unsupported by the medical 16 source’s own data and/or contradicted by the opinions of other examining medical 17 sources. Tommasetti, 533 F.3d at 1041. The ALJ noted that Dr. Toews assessed 18 Plaintiff with good grooming, normal behavior, eye contact, speech, and affect, 19 although she had abnormal fund of knowledge, thoughts, memory, and judgment. 20 Tr. 1038. The ALJ also found Plaintiff’s presentation at Dr. Toews’ examination 2 ORDER - 25 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2248 Page 26 of 42 1 differed from her generally normal attention, judgment, and thoughts that she 2 presented with at multiple other appointments. Id. (citing, e.g., Tr. 920-22, 936-37, 3 943-44). 4 The ALJ specifically noted Dr. Toews’ opinion that Plaintiff has social 5 functioning limitations was not supported by objective evidence, Tr. 1038, and 6 Plaintiff argues the opinion was supported by Plaintiff’s imprecise and 7 disorganized speech, need for clarification/examples, flighty thoughts and 8 hypomanic tendencies, ECF No. 19 at 14 (citing Tr. 501). However, Plaintiff was 9 pleasant, cooperative, animated, and gestured appropriately, related well and 10 interacted appropriately, with good eye contact and normal mood, speech rate and 11 volume. Tr. 500-01. While Plaintiff offers an alternative interpretation of the 12 evidence, the Court may not reverse the ALJ’s decision based on Plaintiff’s 13 disagreement with the ALJ’s interpretation of the record. See Tommasetti, 533 14 F.3d at 1038 (“[W]hen the evidence is susceptible to more than one rational 15 interpretation” the court will not reverse the ALJ’s decision). This was a specific 16 and legitimate reason to reject Dr. Toews’ opinion. 17 Second, the ALJ found Dr. Toews’ opinion was inconsistent with the record 18 as a whole. Tr. 1038. An ALJ may discredit physicians’ opinions that are 19 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, the 20 extent to which a medical source is “familiar with the other information in [the 2 ORDER - 26 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2249 Page 27 of 42 1 claimant’s] case record” is relevant in assessing the weight of that source’s medical 2 opinion. See 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). The ALJ found Dr. 3 Toews’ opinion was inconsistent with Plaintiff’s work history, activities, and 4 longitudinal treatment records. Tr. 1038. As discussed supra, Plaintiff’s ability to 5 work prior to the alleged onset date, and below substantial gainful activity level 6 after the alleged onset date, is not clearly inconsistent with disabling limitations. 7 However, the ALJ reasonably found Plaintiff’s activities, including her ability to 8 independently handle her personal care, household chores, and provide childcare 9 for two young children, were inconsistent with Dr. Toews’ opinion. 10 Additionally, the ALJ reasonably found Plaintiff’s longitudinal treatment 11 record, which documents normal attention, judgment, memory, and thoughts, as 12 well as lapses in treatment and compliance with medication, was inconsistent with 13 Dr. Toews’ opinion. Tr. 920-22, 936-37, 943-44, 949-50, 958, 1038. While 14 Plaintiff again offers an alternative interpretation of the evidence and points to 15 evidence of abnormal findings in the record, including impaired insight/judgment, 16 tangential and circumstantial thoughts, ECF No. 19 at 14-15, the ALJ’s 17 interpretation of the evidence is reasonable. While there are abnormalities in the 18 record, there are also numerous visits with normal findings, including normal 19 orientation, thoughts, memory, and insight/judgment. Tr. 1314-15, 1408, 1412, 20 2 ORDER - 27 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2250 Page 28 of 42 1 1453, 1504, 1587, 1812. This was a specific and legitimate reason to reject Dr. 2 Toews’ opinion. 3 Third, the ALJ gave more weight to the State agency opinions than he gave 4 to Dr. Toews’ opinion. Tr. 1038. Generally, an ALJ should accord more weight to 5 the opinion of an examining physician than to that of a non-examining physician. 6 See Andrews, 53 F.3d at 1040-41. However, the opinion of a nonexamining 7 physician may serve as substantial evidence if it is “supported by other evidence in 8 the record and [is] consistent with it.” Id. at 1041. The ALJ found the State 9 agency opinions were more consistent with the record as a whole. Tr. 1038. The 10 State agency consultants, Dr. Kester and Dr. Haney, opined Plaintiff is capable of 11 understanding and remembering simple routine tasks, she can attend to and persist 12 on simple tasks with occasional decreased efficiency due to symptoms, and she is 13 capable of superficial contact with the general public and coworkers. Tr. 85-86, 14 102-03. The ALJ gave Dr. Kester and Dr. Haney’s opinions significant weight. 15 Tr. 1039. The ALJ found the opinions were consistent with Plaintiff’s work 16 history, activities, treatment records and examinations. Tr. 1039-40. As the ALJ 17 considered whether the State agency opinions were supported by and consistent 18 with the other evidence, the ALJ reasonably gave more weight to Dr. Kester and 19 Dr. Haney’s opinions than he gave to Dr. Toews’ opinion. This was a specific and 20 legitimate reason, supported by substantial evidence, to reject Dr. Toews’ opinion. 2 ORDER - 28 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2251 Page 29 of 42 1 2. Ms. Damstedt 2 On January 23, 2017, Ms. Damstedt, a treating counselor, rendered an 3 opinion on Plaintiff’s functioning. Tr. 972-74. Ms. Damstedt opined Plaintiff has 4 mild limitations in her ability to perform activities within a schedule, maintain 5 regular attendance, and be punctual within customary tolerances, and accept 6 instructions and respond appropriately to criticism from supervisors; moderate 7 limitations in her ability to complete a normal workday/workweek without 8 interruptions from psychologically based symptoms and to perform at a consistent 9 pace without an unreasonable number and length of rest periods, and maintain 10 attention and concentration for extended periods; and Plaintiff otherwise is not 11 significantly limited in the remaining areas of functioning. Tr. 972-73. Regarding 12 the “B” criteria, she opined Plaintiff has no limitations in maintaining social 13 functioning, mild limitations in activities of daily living, and moderate limitations 14 in maintaining concentration, persistence, or pace, and she opined Plaintiff meets 15 the “C” criteria. Tr. 974. She further opined Plaintiff would be off-task 12 to 20 16 percent of the time and would miss four or more days per month if she tried to 17 work full-time. Id. As Ms. Damstedt is not an acceptable medical source, the ALJ 18 was required to give germane reasons to reject Ms. Damstedt’s opinion. See 19 Ghanim, 763 F.3d at 1161. The ALJ gave Ms. Damstedt’s opinion minimal 20 weight, except to the degree it is consistent with no to mild limitations. Tr. 1039. 2 ORDER - 29 Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2252 Page 30 of 42 First, the ALJ found Ms. Damstedt’s opinion was inconsistent with the 2 longitudinal record. Id. An ALJ may discredit physicians’ opinions that are 3 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, the 4 extent to which a medical source is “familiar with the other information in [the 5 claimant’s] case record” is relevant in assessing the weight of that source’s medical 6 opinion. See 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). The ALJ found Ms. 7 Damstedt’s opinion was inconsistent with Plaintiff’s work history, activities, 8 treatment records and longitudinal examinations. Tr. 1039. As discussed supra, 9 the ALJ’s finding that Plaintiff’s activities and treatment record as a whole are 10 inconsistent with disabling limitations is reasonable. 11 Second, the ALJ found Ms. Damstedt’s opinion lacked any basis for her 12 opinions. Tr. 1039. The Social Security regulations “give more weight to opinions 13 that are explained than to those that are not.” Holohan, 246 F.3d at 1202. “[T]he 14 ALJ need not accept the opinion of any physician, including a treating physician, if 15 that opinion is brief, conclusory and inadequately supported by clinical findings.” 16 Bray, 554 F.3d at 1228. However, the fact that an opinion is in the form of a 17 check-box questionnaire is not a proper basis to reject an opinion that is supported 18 by treatment records. See Garrison, 759 F.3d at 1014 n.17. 19 Ms. Damstedt’s opinion consists only of a checked box form and does not 20 contain any explanation. Tr. 972-75. Plaintiff argues Ms. Damstedt’s treatment 2 ORDER - 30 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2253 Page 31 of 42 1 records supported her opinion and points to records showing that Plaintiff reported 2 thoughts of death/suicide on a single occasion and exhibited depressive and manic 3 symptoms on two occasions. ECF No. 19 at 15-16 (citing Tr. 939, 942, 946). Ms. 4 Damstedt’s records document observations of abnormal mood and speech, and 5 Plaintiff’s reported thoughts of suicide/death, impaired sleep, irritability, 6 tearfulness, and impaired concentration. Tr. 939, 942, 946. The appointments 7 focused on Plaintiff’s issues with her boyfriend at the time, and Ms. Damstedt 8 noted that Plaintiff’s lack of progress was likely in part due to the situational issue. 9 Tr. 939-42. Ms. Damstedt’s records contain a repeated paragraph regarding 10 Plaintiff’s self-reported symptoms but contain minimal objective evidence of 11 limitations or symptoms. For example, at a June 2016 appointment, the repeated 12 paragraph discusses self-reported symptoms, and a PHQ-9 score is discussed but 13 no objective evidence is documented. Tr. 952. In July 2016, Plaintiff reported 14 impaired sleep and pain, and there are no notes of objective evidence of symptoms 15 or limitations. Tr. 948. While Ms. Damstedt opined Plaintiff would miss four or 16 more days per month of work, Tr. 974, 1039, there is not documentation of 17 observed symptoms or limitations that explain why Plaintiff would miss four or 18 more days per month of work. The ALJ reasonably found Ms. Damstedt’s opinion 19 lacked a supporting explanation. 20 2 ORDER - 31 Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2254 Page 32 of 42 Third, the ALJ found Ms. Damstedt’s opinion was internally inconsistent. 2 Tr. 1039. Relevant factors to evaluating any medical opinion include the amount 3 of relevant evidence that supports the opinion, the quality of the explanation 4 provided in the opinion, and the consistency of the medical opinion with the record 5 as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 6 F.3d at 631. Moreover, a physician’s opinion may be rejected if it is unsupported 7 by the physician’s treatment notes. See Connett v. Barnhart, 340 F.3d 871, 875 8 (9th Cir. 2003). The ALJ found Ms. Damstedt’s opinion internally inconsistent 9 because while she opined Plaintiff has no more than moderate limitations, with 10 most areas of functioning being rated no to mild limitations, Ms. Damstedt opined 11 Plaintiff would miss four or more days per month and would be off-task up to 20 12 percent of the time. Tr. 971-74. The ALJ reasonably found the opinion was 13 internally inconsistent. 14 Lastly, the ALJ gave more weight to the State agency opinions than he gave 15 to Ms. Damstedt’s opinion. Tr. 1039. The opinion of a nonexamining physician 16 may serve as substantial evidence if it is “supported by other evidence in the record 17 and [is] consistent with it.” Andrews, 53 F.3d at 1041. As discussed supra, the 18 ALJ reasonably found the State agency opinions were consistent with and 19 supported by the longitudinal record. 20 2 ORDER - 32 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2255 Page 33 of 42 1 3. Ms. MacKenzie 2 On September 18, 2015, Ms. MacKenzie, a treating nurse practitioner, 3 rendered an opinion on Plaintiff’s functioning. Tr. 523-25. Ms. MacKenzie 4 opined Plaintiff has mild limitations in her ability to remember locations and work5 like procedures, understand and remember very short and simple instructions, 6 understand and remember detailed instructions, carry out very short simple 7 instructions, ask simple questions or request assistance, be aware of normal 8 hazards and take appropriate precautions, and set realistic goals or make plans 9 independently of others; moderate limitations in her ability to carry out detailed 10 instructions, perform activities within a schedule, maintain regular attendance and 11 be punctual within customary tolerances, make simple work-related decisions, 12 accept instructions and respond appropriately to criticism from supervisors, get 13 along with coworkers or peers without distracting them or exhibiting behavioral 14 extremes, maintain socially appropriate behavior and adhere to basic standards of 15 neatness and cleanliness, respond appropriately to changes in the work setting; and 16 marked limitations in her ability to sustain an ordinary routine without special 17 supervision, maintain attention and concentration for extended periods, work in 18 coordination with or proximity to others without being distracted by them, 19 complete a normal workday/workweek without interruptions from psychologically 20 based symptoms and perform at a consistent pace without an unreasonable number 2 ORDER - 33 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2256 Page 34 of 42 1 and length of rest periods, and interact appropriately with the general public. Tr. 2 523-24. She further opined Plaintiff has moderate to marked limitations in all 3 three “B” criteria, Plaintiff meets the “C” criteria, Plaintiff would be off task more 4 than 30 percent of the time and would miss four or more days per month if she 5 worked full-time. Tr. 525. As Ms. MacKenzie is not an acceptable medical 6 source, the ALJ was required to give germane reasons to reject Ms. MacKenzie’s 7 opinion. See Ghanim, 763 F.3d at 1161. The ALJ gave Ms. MacKenzie’s opinion 8 minimal weight. Tr. 1039. 9 First, the ALJ found Ms. MacKenzie’s opinion lacked an objective basis. Id. 10 The Social Security regulations “give more weight to opinions that are explained 11 than to those that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not 12 accept the opinion of any physician, including a treating physician, if that opinion 13 is brief, conclusory and inadequately supported by clinical findings.” Bray, 554 14 F.3d at 1228. Like Ms. Damstedt’s opinion, Ms. MacKenzie’s opinion consists 15 only of checkboxes without any supporting explanation. Tr. 523-26. Plaintiff 16 argues Ms. MacKenzie’s opinion is supported by her treatment records but cites 17 only to evidence that she treated Plaintiff and does not set forth any argument as to 18 how the records demonstrate an objective basis for the disabling opinion. ECF No. 19 19 at 17. The records cited to by Plaintiff are other provider’s medical records, 20 who note that Plaintiff was seeing Ms. MacKenzie. Tr. 465, 645, 648. While 2 ORDER - 34 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2257 Page 35 of 42 1 Disability Determination Services requested Ms. MacKenzie’s records, they were 2 not received. Tr. 143. There does not appear to be any medical records signed by 3 Ms. MacKenzie in the record. The ALJ reasonably found Ms. MacKenzie’s 4 opinion did not have an objective basis. 5 Second, the ALJ found Ms. MacKenzie’s opinion was inconsistent with the 6 longitudinal record. Tr. 1039. An ALJ may discredit physicians’ opinions that are 7 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, the 8 extent to which a medical source is “familiar with the other information in [the 9 claimant’s] case record” is relevant in assessing the weight of that source’s medical 10 opinion. See 20 C.F.R. § 416.927(c)(6). Ms. MacKenzie opined Plaintiff has 11 multiple marked limitations, would miss four or more days per month of work, and 12 would be off task more than 30 percent of the time. Tr. 523-25. However, this is 13 inconsistent with multiple other medical opinions, and the visits discussed by the 14 ALJ that contain many largely normal mental findings. As discussed supra, the 15 ALJ reasonably found the longitudinal record is inconsistent with disabling 16 limitations. 17 Third, the ALJ gave more weight to the State agency opinions than he gave 18 to Ms. MacKenzie’s opinion. Tr. 1039. The opinion of a nonexamining physician 19 may serve as substantial evidence if it is “supported by other evidence in the record 20 and [is] consistent with it.” Andrews, 53 F.3d at 1041. As discussed supra, the 2 ORDER - 35 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2258 Page 36 of 42 1 ALJ reasonably considered the State agency opinions and found they are consistent 2 with and supported by the longitudinal record. 3 4. Dr. Waber 4 On March 13, 2014, Dr. Waber, a treating provider, rendered an opinion on 5 Plaintiff’s functioning. Tr. 485. Dr. Waber stated he was keeping Plaintiff off 6 work until at least April 12, due to her “significant issues with pain, weakness.” 7 Id. As Dr. Waber’s opinion was contradicted by the opinions of Dr. Kester and Dr. 8 Haney, Tr. 74-75, 101-03, the ALJ was required to give specific and legitimate 9 reasons to reject Dr. Waber’s opinion. See Bayliss, 427 F.3d at 1216. The ALJ 10 gave Dr. Waber’s opinion minimal weight. Tr. 1040. 11 First, the ALJ found Dr. Waber’s opinion was a temporary limitation. Id. 12 Temporary limitations are not enough to meet the durational requirement for a 13 finding of disability. 20 C.F.R. § 416.905(a) (requiring a claimant’s impairment to 14 be expected to last for a continuous period of not less than twelve months); 42 15 U.S.C. § 423(d)(1)(A) (same); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 16 1155, 1165 (9th Cir. 2008) (affirming the ALJ’s finding that treating physicians’ 17 short-term excuse from work was not indicative of “claimant’s long-term 18 functioning”). Dr. Waber’s opinion indicated Plaintiff should be off work for at 19 least one month. Tr. 485. At the next appointment in May 2014, there is no 20 mention of an ongoing inability to work, thus there is no evidence Dr. Waber 2 ORDER - 36 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2259 Page 37 of 42 1 extended his opinion that Plaintiff should not work past April 12, 2014. Tr. 4802 81. Plaintiff argues Dr. Waber did not alter or rescind his opinion and therefore the 3 opinion was not temporary and thus meets the duration requirement. ECF No. 19 4 at 18. However, the ALJ’s finding that Dr. Waber’s opinion was temporary was a 5 reasonable conclusion supported by substantial evidence, given a lack of any 6 further discussion in the records of Plaintiff being unable to work. 7 Second, the ALJ found Dr. Waber’s opinion lacked objective support and 8 therefore relied too heavily on Plaintiff’s self-report. Tr. 1040. The Social 9 Security regulations “give more weight to opinions that are explained than to those 10 that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not accept the opinion 11 of any physician, including a treating physician, if that opinion is brief, conclusory 12 and inadequately supported by clinical findings.” Bray, 554 F.3d at 1228. The 13 Ninth Circuit in Ghanim contemplated that medical sources rely on self-reports to 14 varying degrees and held that an ALJ may reject a medical source’s opinion as 15 based on unreliable self-reports only when the medical source relied “more heavily 16 on a patient’s self-reports than on clinical observations.” Ghanim, 763 F.3d at 17 1162. The ALJ noted that Dr. Weber’s examinations leading up to the time of his 18 opinion had been unremarkable except Plaintiff’s self-reported symptoms. Tr. 19 1040. In March 2014, Plaintiff reported chronic pain and tingling numbness, but 20 on examination, Plaintiff had normal symmetrical strength, and normal active 2 ORDER - 37 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2260 Page 38 of 42 1 range of motion, with subjective tingling/numbness. Tr. 482-83, 488. The ALJ 2 reasonably found Dr. Waber relied on Plaintiff’s unreliable self-report in forming 3 in his opinion. 4 Third, the ALJ gave more weight to the State agency opinions than he did to 5 Dr. Waber’s opinion. Tr. 1040. Other cases have upheld the rejection of an 6 examining or treating physician based in part on the testimony of a non-examining 7 medical advisor when other reasons to reject the opinions of examining and 8 treating physicians exist independent of the non-examining doctor’s opinion. 9 Lester, 81 F.3d at 831. As the ALJ gave other supported reasons to reject Dr. 10 Waber’s opinion, the ALJ reasonably gave more weight to the State agency 11 opinions than he gave to Dr. Waber’s opinion. 12 5. Dr. Kester 13 On February 4, 2015, Dr. Kester, a State agency psychological consultant, 14 rendered an opinion on Plaintiff’s functioning. Tr. 74-75. Dr. Kester opined 15 Plaintiff has moderate limitations in her ability to understand and remember 16 detailed instructions but is capable of understanding and remembering simple, 17 routine tasks; she is moderately limited in her ability to carry out detailed 18 instructions, maintain attention/concentration for extended periods, and complete a 19 normal workday/workweek without interruptions from psychologically based 20 symptoms and perform at a consistent pace without an unreasonable number and 2 ORDER - 38 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2261 Page 39 of 42 1 length of rest periods, but she is able to attend to and persist on simple tasks with 2 occasional decreased efficiency due to symptoms; she is moderately limited in her 3 ability to interact with the general public, but is capable of superficial contact with 4 the general public and coworkers; and she otherwise is not significantly limited in 5 the remaining areas of functioning. Id. The ALJ gave Dr. Kester’s opinion 6 significant weight but gave more weight to the opinion of State agency consultant 7 Dr. Haney. Tr. 1039. 8 Plaintiff contends the ALJ erred in crediting Dr. Kester’s opinion but failing 9 to incorporate the limitation that Plaintiff would occasionally have decreased 10 efficiency due to symptoms. ECF No. 19 at 19. Plaintiff argues the limitation is 11 disabling, because occasional is defined as up to one-third of the time and being 12 off-task more than 10 percent of the time results in unemployability. Id. However, 13 the definition cited to by Plaintiff defines occasional as “up to” one-third of the 14 time, meaning Plaintiff would have decreased efficiency one-third of the time or 15 less, and Dr. Kester did not indicate the decreased efficiency would prevent 16 Plaintiff from working. Tr. 73-74. Rather, Dr. Kester opined Plaintiff was still 17 capable of performing simple routine tasks. Tr. 74. Further, as Dr. Kester’s 18 opinion resulted in a finding Plaintiff is not disabled, it is clear this was not a 19 disabling opinion by the Agency’s standards. Tr. 77. Plaintiff has not 20 2 ORDER - 39 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2262 Page 40 of 42 1 demonstrated the ALJ harmfully erred in his analysis of Dr. Kester’s opinion. 2 Plaintiff is not entitled to remand on these grounds. 3 4 C. Lay Opinion Evidence Plaintiff contends the ALJ erred in his consideration of the opinions of 5 Debbie Clark, Barbara Kennedy, Betty Lai, Robert Kennedy, Janelle Zink, Taylor 6 Gardenshire, and Ruby R. ECF No. 19 at 20-21. 7 An ALJ must consider the statement of lay witnesses in determining whether 8 a claimant is disabled. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1053 9 (9th Cir. 2006). Lay witness evidence cannot establish the existence of medically 10 determinable impairments, but lay witness evidence is “competent evidence” as to 11 “how an impairment affects [a claimant’s] ability to work.” Id.; 20 C.F.R. §§ 12 404.1513, 416.913; see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 13 1993) (“[F]riends and family members in a position to observe a claimant’s 14 symptoms and daily activities are competent to testify as to her condition.”). If a 15 lay witness statement is rejected, the ALJ “‘must give reasons that are germane to 16 each witness.’” Nguyen, 100 F.3d at 1467 (citing Dodrill, 12 F.3d at 919). 17 As these lay statements contain similar statements to Plaintiff’s symptom 18 testimony, and the ALJ properly discredited Plaintiff’s symptom testimony for 19 several clear and convincing reasons, the ALJ needed only point to the same 20 reasons to discredit this lay testimony. See Molina, 674 F.3d at 1114; Valentine v. 2 ORDER - 40 Case 1:20-cv-03218-MKD ECF No. 22 filed 08/10/22 PageID.2263 Page 41 of 42 1 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Further, the ALJ 2 was not required to give an individualized discussion of each witness’ statement in 3 order to properly reject it. See Molina, 674 F.3d at 1114. Like Plaintiff’s 4 statements, the ALJ found the lay statements were inconsistent with the 5 longitudinal record, including her activities and treatment record. Tr. 1037-38. 6 The ALJ also noted some of the opinions were rendered two years before the 7 relevant time period and found the State agency opinions were more consistent the 8 evidence than the lay opinions. Id. The ALJ reasonably rejected the lay opinion 9 evidence. Plaintiff is not entitled to remand on these grounds. 10 11 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 12 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 13 Accordingly, IT IS HEREBY ORDERED: 14 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 15 Defendant and update the docket sheet. 16 2. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED. 17 3. Defendant’s Motion for Summary Judgment, ECF No. 20, is 18 GRANTED. 19 4. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 20 2 ORDER - 41 Case 1:20-cv-03218-MKD 1 ECF No. 22 filed 08/10/22 PageID.2264 Page 42 of 42 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED August 10, 2022. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 42

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