Davis v. Kijakazi, No. 1:2022cv03047 - Document 16 (E.D. Wash. 2023)
Court Description: ORDER DENYING 11 PLAINTIFF'S SUMMARY-JUDGMENT MOTION, GRANTING 14 DEFENDANTS SUMMARY-JUDGMENT MOTION, AND AFFIRMING THE ALJ. Case is CLOSED. Signed by Senior Judge Edward F. Shea. (TNC, Case Administrator)
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Davis v. Kijakazi Doc. 16 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1570 Page 1 of 25 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Mar 29, 2023 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 SEAN F. MCAVOY, CLERK 5 6 MICHELLE D., 1 No. Plaintiff, 7 v. 8 9 4:22-cv-3047-EFS KILOLO KIJAKAZI, Acting Commissioner of Social Security, 10 ORDER DENYING PLAINTIFF’S SUMMARY-JUDGMENT MOTION, GRANTING DEFENDANT’S SUMMARY-JUDGMENT MOTION, AND AFFIRMING THE ALJ Defendant. 11 Plaintiff Michelle D. appeals the denial of benefits by the Administrative 12 13 Law Judge (ALJ). Because the ALJ’s challenged findings were explained and 14 supported by substantial evidence, the ALJ’s decision is affirmed. I. 15 Five-Step Disability Determination A five-step evaluation determines whether a claimant is disabled. Step one 16 17 assesses whether the claimant is engaged in substantial gainful activity. 2 Step two 18 assesses whether the claimant has a medically severe impairment or combination 19 20 1 For privacy reasons, Plaintiff is referred to by first name and last initial or as 21 “Plaintiff.” See LCivR 5.2(c). 22 2 20 C.F.R. §§ 404.1520(a)(4)(i), (b), 416.920(a)(4)(i), (b). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 1 Dockets.Justia.com Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1571 Page 2 of 25 1 of impairments that significantly limit the claimant’s physical or mental ability to 2 do basic work activities. 3 Step three compares the claimant’s impairment or 3 combination of impairments to several recognized by the Commissioner to be so 4 severe as to preclude substantial gainful activity. 4 Step four assesses whether an 5 impairment prevents the claimant from performing work she performed in the past 6 by determining the claimant’s residual functional capacity (RFC). 5 Step five 7 assesses whether the claimant can perform other substantial gainful work—work 8 that exists in significant numbers in the national economy—considering the 9 claimant’s RFC, age, education, and work experience. 6 II. 10 Background On August 22, 2018, Plaintiff filed Title 2 and 16 applications alleging 11 12 disability because of mental and physical impairments. 7 Plaintiff had a traumatic 13 childhood, causing depression, post-traumatic stress disorder (PTSD), and anxiety. 14 In addition, due to motor vehicle accidents, Plaintiff suffers from neck and back 15 16 3 Id. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). 4 Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). 5 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 6 Id. §§ 404.1520(a)(4)(v), (g), 416.920(a)(4)(v), (g). 7 AR 304–27. Both parties state that the relevant disability period is from August 17 18 19 20 21 22, 2018, to the date of the ALJ’s decision, March 17, 2021. ECF No. 14 at 2, 13; 22 ECF No. 15 at 1. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 2 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1572 Page 3 of 25 1 pain. Plaintiff has a high school education and worked as a social services aide, as 2 a retail salesclerk, and in a composite job of food deliverer, kitchen helper, and 3 dining room attendant. After the agency denied her applications initially and on reconsideration, 4 5 Plaintiff requested a hearing before an ALJ. 8 ALJ Shane McGovern held a 6 telephonic hearing in December 2020, during which Plaintiff and a vocational 7 expert testified. 9 After the hearing, the ALJ denied Plaintiff’s disability 8 applications. 10 As to the sequential disability analysis, the ALJ found: • 9 Step one: Plaintiff had not engaged in substantial gainful activity since June 1, 2012, the alleged onset date. 10 • 11 Step two: Plaintiff had the following medically determinable severe 12 impairments: lumbar spine spondylosis, lumbar and cervical spine 13 degenerative disc disease (DDD), PTSD, major depressive disorder, 14 stimulant use disorder, cannabis use disorder, decreased hearing 15 (worse on the left side), obesity, panic disorder, and 16 methamphetamine use disorder in early reported remission. 17 18 19 20 8 AR 217–23, 230–43, 245–53. 9 AR 75–125. 21 22 10 AR 13–36. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 3 Case 1:22-cv-03047-EFS • 1 ECF No. 16 filed 03/29/23 PageID.1573 Page 4 of 25 Step three: Plaintiff did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the 3 listed impairments. • 4 RFC: Plaintiff had the RFC to perform light work except: she cannot climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and crawl. She can have no exposure to moving mechanical parts or unprotected heights. She can work at no more than a moderate noise intensity level . . . . She is limited to no more than frequent overhead and forward reaching. Such work should be uncomplicated enough that it can be learned within 30 days. Work should not involve hourly quotas or conveyor belts. Work should involve no more than occasional simple workplace changes. 5 6 7 8 9 10 11 • Step four: Plaintiff was unable to perform past relevant work. • Step five: considering Plaintiff’s RFC, age, education, and work 12 history, Plaintiff could perform work that existed in significant 13 numbers in the national economy, such as photocopy machine 14 operator, housekeeping cleaner, and office helper. 11 15 In reaching his decision, the ALJ found: 16 • the reviewing opinions of Jan Lewis, Ph.D., and Carol Moore, Ph.D., 17 persuasive. 18 19 20 21 22 11 AR 16–30. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 4 Case 1:22-cv-03047-EFS • 1 ECF No. 16 filed 03/29/23 PageID.1574 Page 5 of 25 the examining opinions of William Drenguis, M.D., and Karen 2 Mansfield-Blair, Ph.D., and the reviewing opinion of Louis Martin, 3 M.D., partially persuasive. • 4 the reviewing opinion of Wayne Hurley, M.D., and the examining opinion of Tasmyn Bowes, PsyD., not persuasive. 12 5 The ALJ also found Plaintiff’s medically determinable impairments could 6 7 reasonably be expected to cause some of the alleged symptoms, but her statements 8 concerning the intensity, persistence, and limiting effects of those symptoms were 9 “not entirely consistent with the medical evidence and other evidence.” 13 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 10 11 which denied review. 14 Plaintiff timely appealed to the Court. III. 12 A district court’s review of the Commissioner’s final decision is limited. 15 The 13 14 Standard of Review Commissioner’s decision is set aside “only if it is not supported by substantial 15 16 17 12 AR 25–28. 13 AR 23. As recommended by the Ninth Circuit in Smartt v. Kijakazi, the ALJ 18 19 should consider replacing the phrase “not entirely consistent” with “inconsistent.” 20 53 F.4th 489, 499, n.2 (9th Cir. 2022). 21 14 AR 1–6. 15 42 U.S.C. § 405(g). 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 5 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1575 Page 6 of 25 1 evidence or is based on legal error.” 16 Substantial evidence is “more than a mere 2 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 3 mind might accept as adequate to support a conclusion.” 17 Because it is the role of 4 the ALJ to weight conflicting evidence, the Court upholds the ALJ’s findings “if 5 they are supported by inferences reasonably drawn from the record.” 18 Further, the 6 Court may not reverse an ALJ decision due to a harmless error—one that “is 7 inconsequential to the ultimate nondisability determination.” 19 IV. 8 9 A. Symptom Reports: Plaintiff fails to establish consequential error. Plaintiff claims she has difficulty sitting, standing, walking, lifting, bending, 10 11 Analysis kneeling, and climbing stairs due to neck and back pain. She also claims that she 12 13 16 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 17 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See also Lingenfelter v. 14 15 16 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire 17 record as a whole, weighing both the evidence that supports and the evidence that 18 detracts from the Commissioner's conclusion,” not simply the evidence cited by the 19 ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) 20 (“An ALJ’s failure to cite specific evidence does not indicate that such evidence was 21 not considered[.]”). 22 19 Molina, 674 F.3d at 1115 (cleaned up). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 6 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1576 Page 7 of 25 1 has difficulty with memory, concentrating, understanding, following instructions, 2 and getting along with others. 3 When evaluating the intensity, persistence, and limiting effects of a 4 claimant’s symptoms, the ALJ is to consider several factors, including the 5 claimant’s daily activities, pain or other symptoms, medication, and other 6 treatments and measures to relieve pain or other symptoms. 20 Here, the ALJ found 7 Plaintiff was not malingering, but that her statements concerning the intensity, 8 persistence, and limiting effects of her physical and mental symptoms were not 9 entirely consistent with the objective medical findings, the treatment modalities, 10 the treatment record as a whole, her statement to the consultative examiner, and 11 her daily activities. 21 Plaintiff argues the ALJ’s analysis failed to provide “specific, clear and 12 13 convincing” reasons supported by substantial evidence for discounting her 14 symptoms. The Court looks at each articulated reason in turn. 15 /// 16 // 17 / 18 19 20 20 C.F.R. §§ 404.1529(c), 416.929(c); Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th 20 Cir. 2014); Soc. Sec. Rlg. 16-3p: Titles II and XVI: Evaluation of Symptoms in 21 Disability Claims. 22 21 AR 23–24. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 7 Case 1:22-cv-03047-EFS 1. 1 filed 03/29/23 PageID.1577 Page 8 of 25 Physical Symptoms a. 2 ECF No. 16 Objective Findings Objective medical evidence—signs, laboratory findings, or both—is a 3 4 relevant factor for the ALJ to consider when assessing a claimant’s symptoms. 22 5 While an ALJ may not “reject a claimant’s subjective complaints based solely on 6 lack of medical evidence to fully corroborate the alleged severity of pain,” the ALJ 7 may discount subjective complaints that are inconsistent with the objective medical 8 evidence.” 23 Here, the ALJ found Plaintiff’s reports of difficulty sitting and walking and 9 10 of neck and back pain inconsistent with the medical records that showed that 11 Plaintiff maintained good functionality despite her alleged pain. The ALJ 12 recognized that the imaging revealed moderate to moderately severe degenerative 13 changes in the mid and lower cervical spine and that Plaintiff was observed with 14 tenderness and decreased range of motion in her cervical and lumbar spine on 15 examinations. But the ALJ noted that despite these findings, Plaintiff did not use 16 an assistive device and was regularly observed with normal gait and coordination, 17 full strength in her extremities, normal muscle bulk and tone, and intact 18 19 22 20 C.F.R. § 416.902(k); 3 Soc. Sec. Law & Prac. § 36:26, Consideration of 20 objective medical evidence (2019). 21 23 Smartt, 53 F.4th at 498 (quoting Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 22 2005) (emphasis added in Smartt)). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 8 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1578 Page 9 of 25 1 sensation. 24 The records reflect that Plaintiff’s cervical and lumbar impairments 2 caused tenderness and reduced lumbar motion, but the record does not reflect that 3 they routinely impacted her gait, strength, and muscle tone. 25 And during her 4 consultative examination with Dr. Drenguis, he observed her walking the 40 feet 5 from the waiting room to the exam room without difficulty, sitting comfortably, and 6 rising from a chair without assistance. 26 The ALJ clearly explained why he found 7 Plaintiff’s physical functionality did not corroborate her reported back and neck 8 symptoms—and these findings are supported by substantial evidence. b. 9 Treatment Modalities 10 An ALJ may discount a claimant’s reported symptoms if they improve with 11 treatment. 27 Reports of improvement “must be interpreted with an understanding 12 of the patient’s overall well-being and the nature of [her] symptoms,” as well as 13 with an awareness that “improved functioning. . . does not always mean that a 14 15 24 AR 23. 25 See, e.g., AR 923, 952, 1076, 1107, 1122, 1126, 1141, 1420 (normal gait and 16 17 station); AR 900–01 (exhibiting normal gait, ability to tandem walk, walk on heels 18 and toes, stand on a single foot, and hop, and 5/5 strength in all major muscle 19 groups of upper and lower extremities); AR 892 (normal strength). 20 26 AR 899. 27 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Morgan v. Comm’r of Social Sec. 21 22 Admin., 169 F.3d 595, 599–600 (9th Cir. 1999). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 9 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1579 Page 10 of 25 1 claimant can function effectively in a workplace.” 28 In addition, a claimant’s course 2 of treatment, including an inadequately explained failure to seek treatment, is a 3 relevant factor for the ALJ to consider when assessing the claimant’s symptom 4 reports. 29 5 Here, the ALJ found that treatment for Plaintiff’s back and neck 6 impairments had been limited. 30 The ALJ highlighted that Plaintiff had been 7 referred to physical therapy but there was no evidence that she received any 8 physical therapy to relieve her back and neck pain. The ALJ also noted that 9 Plaintiff had only been using Tylenol on an as needed basis for her pain, and that 10 the prescribed anti-inflammatory Meloxicam helped stabilize her pain. Plaintiff argues it was error for the ALJ to discount Plaintiff’s back and neck 11 12 pain for not taking opiate prescription medication, as she is a recovering heroin 13 and meth addict. However, that is not what the ALJ did. The ALJ simply noted 14 that Plaintiff had told Dr. Drenguis during the February 2019 consultative 15 examination that she was not taking prescribed medication, instead taking Tylenol 16 on an as needed basis. 31 The ALJ then noted that Plaintiff had been prescribed 17 Meloxicam, an anti-inflammatory, for her back pain and that Plaintiff’s back pain 18 19 28 Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (cleaned up). 29 20 C.F.R. § 404.1529(c)(3). 30 AR 23. 31 AR 23, 899. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 10 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1580 Page 11 of 25 1 became stable. 32 Moreover, Plaintiff did not attend the recommended physical 2 therapy for her claimed back and neck pain. 33 That Plaintiff’s treatment for her 3 back and neck was limited and that the prescribed anti-inflammatory and Tylenol 4 reduced her symptoms were clear and convincing reasons to discount her reported 5 symptoms. c. 6 Inconsistent Statements An ALJ may discount a claimant’s symptom reports if they are inconsistent 7 8 with her prior statements. 34 Here, the ALJ discounted Plaintiff’s reports of 9 disabling back pain because she told the consultative examiner that she was 10 comfortable lifting about 20 pounds, whereas during the administrative hearing 11 Plaintiff reported that she could only lift about 5 pounds. 35 The ALJ’s finding is 12 supported by substantial evidence—Plaintiff’s statements were inconsistent. This 13 14 32 AR 23. 33 See, e.g., AR 856, 860, 1162, 1167, 1317 (prescribing Meloxicam for back pain), 15 16 and AR 850, 1321–22 (recommending that Plaintiff do physical therapy if her back 17 pain persists). 18 34 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). See Smolen v. Chater, 80 F.3d 1273, 19 1284 (9th Cir. 1996) (The ALJ may consider “ordinary techniques of credibility 20 evaluation,” such as reputation for lying, prior inconsistent statements concerning 21 symptoms, and other testimony that “appears less than candid.”). 22 35 AR 23, 898, 100–01. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 11 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1581 Page 12 of 25 1 was a clear and convincing reason to discount Plaintiff’s reported lifting 2 limitations. Based on Plaintiff’s statements to the consultative examiner, the 3 consultative examiner permitted Plaintiff to lift 20 pounds occasionally and 10 4 pounds frequently, which are the same lifting limitations as the light-work RFC. 36 d. 5 Activities of Daily Living The ALJ may discount a claimant’s reported disabling symptoms if she can 6 7 spend a substantial part of the day engaged in pursuits inconsistent with the 8 reported disabling symptoms. 37 But “disability claimants should not be penalized 9 for attempting to lead normal lives in the face of their limitations.” 38 “The Social 10 Security Act does not require that claimants be utterly incapacitated to be eligible 11 for benefits, and many home activities may not be easily transferable to a work 12 environment where it might be impossible to rest periodically or take 13 medication.” 39 For these reasons, activities of daily living bear on a claimant’s 14 symptom reports only if the level of activity is inconsistent with the individual’s 15 claimed limitations. 40 16 17 36 See AR 901–02. 37 Molina, 674 F.3d at 1113. 38 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (cleaned up)). 39 Smolen, 80 F.3d at 1287 n.7. 40 Reddick, 157 F.3d at 722. See also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 18 19 20 21 22 Cir. 2001) (The Ninth Circuit has “repeatedly asserted that the mere fact that a 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1582 Page 13 of 25 Here, the ALJ found Plaintiff’s activities of daily living inconsistent with her 1 2 alleged standing and walking difficulties because Plaintiff reported that she 3 walked and used public transportation to get around, shopped in using a pushcart, 4 and moved into her own apartment. 41 Plaintiff argues that these cited activities do 5 not serve as a clear and convincing reason to discount her difficulties standing and 6 walking. While such daily activities often are not sufficient to discount a claimant’s 7 8 reported walking and standing difficulties, here, Plaintiff reported that she walked 9 (and took public transportation) in order to get around, including to her 10 appointments and daily substance-abuse meetings (sometimes three meetings a 11 day). 42 In addition, during her assessment with Merit, she reported that she likes 12 to walk, camp, fish, and hike. 43 Therefore, on this record, it was appropriate for the 13 ALJ to consider that Plaintiff’s reported inability to walk and stand for longer than 14 20 minutes at a time was inconsistent with her daily activities. 15 16 17 plaintiff has carried on certain daily activities, such as grocery shopping, driving a 18 car, or limited walking for exercise, does not in any way detract from her credibility 19 as to her overall disability.”). 20 41 AR 25. 42 AR 16, 359, 756–77. 43 AR 49, 68. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1583 Page 14 of 25 1 Plaintiff’s activities—in conjunction with the objective medical findings, her 2 self-reported improvement with Meloxicam, her failure to attend physical therapy, 3 and her inconsistent statements about her lifting abilities—serve as clear and 4 convincing reasons to discount Plaintiff’s reported difficulties standing, walking, 5 and lifting. 6 2. 7 The ALJ discounted Plaintiff’s symptoms related to her PTSD, depression, Mental-Health Symptoms 8 and panic disorder because she improved with treatment and she performed 9 activities of daily living independently. 10 a. 11 Improvement with Treatment As mentioned above, an ALJ may discount the claimant’s reported 12 symptoms if the symptoms improve to such extent with treatment that the 13 claimant would be able to perform and sustain work. 44 14 Here, the ALJ noted that Plaintiff had been treated with psychiatric 15 medications, mental-health therapy, and substance-abuse treatment. 45 The ALJ 16 highlighted that—although at some appointments Plaintiff had poor hygiene, was 17 anxious and depressed, was distractible with poor attention span, and her 18 associations were tangential—Plaintiff mostly presented as appropriately dressed, 19 with good eye contact and normal speech, was cooperative with normal insight and 20 21 44 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 45 AR 24–25. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1584 Page 15 of 25 1 judgment, and had normal mood, euthymic affect, memory, concentration, and 2 attention span. Based on a comprehensive review of the overall medical records, 3 the ALJ’s finding that Plaintiff’s mental-health symptoms improved with 4 treatment is supported by substantial evidence. For instance, during a July 2018 5 evaluation, Plaintiff presented as disheveled with decreased eye contact, sad, 6 anxious mood with constricted affect, some difficulty concentrating and with 7 attention, difficulty with serial 7s, difficulty tracking interview questions, slightly 8 tangential thought form, and fair to poor insight and judgment. 46 Though she 9 continued to struggle with some depression, as Plaintiff progressed through 10 counseling and medication management, the record reflects that her mood, affect, 11 judgment, insight, concentration, and attention improved. 47 In June 2019, when 12 Plaintiff transitioned from Cognitive Processing Therapy to Cognitive Behavioral 13 Therapy, her therapist noted that Plaintiff’s mood/affect, thought 14 15 16 46 AR 770. 47 See, e.g., AR 912 (Nov. 2018: unremarkable thought process/orientation and 17 18 behavior/functioning); AR 916, 930, 940 (Dec. 2018, Jan. 2019, Feb. 2019, Apr. 19 2019: unremarkable mood/affect, thought process/orientation, 20 behavior/functioning); AR 918 (Dec. 2018: appropriately dressed, normal speech, 21 attention span, concentration, and thought content, although lonely with 22 tangential thoughts). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1585 Page 16 of 25 1 process/orientation, and behavior/functioning were all unremarkable. 48 And as the 2 ALJ noted, Plaintiff reported that she was doing “really good” with treatment in 3 the spring of 2020 at which time she was living independently. 49 Moreover, the 4 treatment records rarely indicate that Plaintiff was anxious. 50 Accordingly, the 5 overall record provides substantial evidence to support the ALJ’s finding that 6 Plaintiff’s reports of disabling mental-health symptoms were inconsistent with her 7 improvement with treatment. Plaintiff argues that, even if her mental health improved at some point, the 8 9 ALJ erred by failing to consider whether Plaintiff was disabled prior to the 10 improvement. However, this case is different than that presented to the Ninth 11 Circuit in Smith v. Kijakazi. 51 In Smith, the claimant’s symptoms varied, and 12 generally improved, during the years following his onset date and, therefore, the 13 Ninth Circuit determined that given the significant variation in Smith’s symptom 14 severity over time, the ALJ erred by focusing solely on Smith’s symptoms at the 15 time of the hearing. Here, the record reflects that Plaintiff’s mental-health 16 17 48 AR 982–83. 49 See, e.g., AR 1181, 1190, 1217. 50 Compare AR 921, 951, 967, 989, 1033, 1048 (The “anxious” box is not checked), 18 19 20 AR 1055 (“does not appear anxious”); with AR 1138–41 (2013: presenting as 21 anxious when reporting to emergency room with chest pain). 22 51 14 F.4th 1108, 1112-14 (9th Cir. 2021). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1586 Page 17 of 25 1 symptoms improved soon after receiving consistent treatment. Therefore, the ALJ 2 appropriately discounted Plaintiff’s mental-health symptoms because they 3 improved with medication and therapy. 52 Moreover, the RFC limited Plaintiff to uncomplicated work that could be 4 5 learned within 30 days, did not involve hourly quotas or conveyor belts, and 6 involved no more than occasional simple workplace changes. 53 b. 7 Activities of Daily Living As mentioned above, the ALJ may discount a claimant’s reported symptoms 8 9 if she can spend a substantial part of the day engaged in pursuits inconsistent with 10 the reported disabling symptoms. 54 Here, the ALJ found Plaintiff’s activities of 11 daily living were inconsistent with her alleged disabling mental-health symptoms, 12 as she was able to care for her personal hygiene and grooming, used public 13 transportation, moved into her own apartment, cleaned, did laundry, prepared 14 simple meals, went to church, spent time with sober friends, attended narcotics 15 anonymous meetings, managed her finances, and spent time with her daughter. 55 16 17 52 See Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of 18 medical treatment successfully relieving symptoms can undermine a claim of 19 disability.”). 20 53 AR 22. 54 Molina, 674 F.3d at 1113. 55 AR 25. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1587 Page 18 of 25 1 This range of activities, which included attending daily substance-abuse meetings, 2 could rationally be inconsistent with Plaintiff’s reported difficulties with anxiety, 3 comprehension, and memory. However, the ALJ did not clearly explain this 4 inconsistency. The ALJ must do more than list the activities and then state that 5 such activities are inconsistent with Plaintiff’s reported disabling symptoms. 6 However, this error is harmless because the ALJ clearly found Plaintiff’s 7 reported disabling symptoms inconsistent with her mental-health improvement 8 resulting from therapy, medication-management, and other treatment. 56 9 B. Plaintiff challenges the ALJ’s consideration of the medical opinions from 10 11 Medical Opinions: Plaintiff fails to establish consequential error. Dr. Drenguis, Dr. Hurley, Dr. Mansfield-Blair, and Dr. Bowes. 12 1. 13 The ALJ was required to consider and evaluate the persuasiveness of the Standard 14 medical opinions. 57 The factors for evaluating the persuasiveness of medical 15 opinions include, but are not limited to, supportability, consistency, relationship 16 with the claimant, and specialization. 58 Supportability and consistency are the 17 18 19 56 See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (specifying that remand 20 is not appropriate when the harmlessness of the error is clear). 21 57 20 C.F.R. §§ 404.1520c(a), (b), 416.920c(a), (b). 58 Id. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1588 Page 19 of 25 1 most important factors, and the ALJ is required to explain how both factors were 2 considered. 59 3 2. 4 In 2019, Dr. Drenguis reviewed identified records and conducted a physical Dr. Drenguis and Dr. Hurley 5 examination of Plaintiff. 60 Dr. Drenguis diagnosed Plaintiff with degenerative 6 changes of the cervical and lumbar spine, decreased hearing on the left side worse 7 than the right side, and a history of anemia and fatigue, which was suspected of 8 causing chronic iron loss. Dr. Drenguis limited Plaintiff to a maximum of 2 hours of 9 standing and walking, 6 hours of sitting, frequent lifting of 10 pounds, frequent 10 balancing, frequent reaching overhead and forward, working around excessive 11 noise, and occasional lifting of 20 pounds, climbing, stooping, crouching, kneeling, 12 and crawling, 13 Two weeks later, Dr. Hurley reviewed the medical record, including 14 Dr. Drenguis’ opinion. Dr. Hurley largely agreed with Dr. Drenguis, including his 15 opinion that Plaintiff be limited to standing and walking 2 hours each workday. 61 16 The ALJ found Dr. Drenguis’ opinion persuasive except the ALJ found 17 Dr. Drenguis’ standing and walking restrictions overly restrictive because 18 Dr. Drenguis observed Plaintiff to have normal gait and coordination, Plaintiff did 19 20 59 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). 60 AR 897–902. 61 AR 152–56. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1589 Page 20 of 25 1 not use an assistive device, other examinations showed normal gait and full range 2 of motion in the extremities, and Plaintiff did not obtain significant treatment for 3 DDD. 62 The ALJ likewise found Dr. Hurley’s standing/walking restrictions overly 4 restrictive for the same reasons. 63 Instead, the ALJ found Dr. Martin’s opinion that 5 Plaintiff could perform light work, i.e., could stand/walk for up to 6 hours each 6 work day with postural limitations, persuasive. 64 Whether a medical opinion is consistent with the longitudinal record— 7 8 including the medical findings and observations and treatment—is a factor for the 9 ALJ to consider. 65 Here, although a claimant need not use an assistive device to be 10 limited to sedentary work, the ALJ’s decision to discount Dr. Drenguis’ and 11 Dr. Hurley’s standing/walking restrictions was meaningfully explained and 12 supported by substantial evidence. Plaintiff routinely had a normal gait and 13 normal range of motion in her extremities, she did not seek physical therapy for 14 her DDD, and the prescribed Meloxicam stabilized her back pain. 66 And Dr. Martin 15 16 62 AR 26. 63 AR 25. 64 AR 25–26. 65 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). 66 See, e.g., AR 850 (referring to physical therapy); AR 1322 (referring to physical 17 18 19 20 21 therapy and noting that Plaintiff’s back pain was “stable” and that her pain is 22 “aggravated by bending, lifting, sitting and twisting. Symptoms are relieved by 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1590 Page 21 of 25 1 found, “She has some DDD in her cervical and lumbar spines but no radiculopathy 2 and some mild DJD in her S-I joints. The available [medical evidence of record] 3 support[s] her being able to perform light work with the limitations listed in this 4 RFC.” 67 The ALJ’s decision to adopt Dr. Martin’s standing/walking 5 recommendation rather than Dr. Drenguis’ and Dr. Hurley’s recommendation is 6 supported by substantial evidence. 7 3. 8 In February 2019, Dr. Mansfield-Blair reviewed some records and conducted Dr. Mansfield-Blair 9 a psychological examination of Plaintiff. 68 Dr. Mansfield-Blair diagnosed Plaintiff 10 with PTSD, major depressive disorder, generalized anxiety disorder, stimulate-use 11 disorder, cannabis use disorder, and borderline personality disorder. Dr. Mansfield- 12 Blair opined that Plaintiff would have difficulty dealing with the usual stress 13 encountered in the workplace, maintaining regular attendance and completing a 14 normal workday and work week without interruption from a psychiatric condition, 15 and performing simple and repetitive tasks, detailed and complex tasks, and work 16 activities on a consistent basis without special or additional instruction. 17 18 movement, pain meds/drugs, and rest”); AR 923, 952, 1076, 1107, 1122, 1126, 1141, 19 1420 (normal gait and station); AR 900 (exhibiting normal gait and ability to 20 tandem walk, walk on heels and toes, stand on a single foot, and hop). 21 67 AR 212. 68 AR 904–10. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 21 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1591 Page 22 of 25 The ALJ found Dr. Mansfield-Blair’s opinion somewhat persuasive. 69 The 1 2 ALJ agreed that Plaintiff has work-related limitations due to her mental 3 impairments but that the treatment records indicated that Plaintiff experienced 4 improvement with treatment, including reported sobriety since 2018, and that 5 Plaintiff routinely was observed with appropriate mood and affect, intact memory, 6 and good concentration, attention, judgment, and insight. 70 The ALJ’s finding is 7 supported by meaningful analysis and substantial evidence. As previously 8 discussed, although the record reflects waxing and waning of Plaintiff’s mental- 9 health symptoms, Plaintiff’s symptoms improved when she received consistent 10 medication management and therapy. 71 11 12 13 14 69 AR 27. 70 See, e.g., AR 951–52 (noting that even with racing thoughts, Plaintiff’s thought 15 16 process, cognition, attention span, concentration, and ability to follow instructions 17 was not impacted); AR 1169 (orientated with normal mood and appropriate mood 18 and affect); AR 1250–51, 1281–82, 1293 (happy/normal mood with congruent affect, 19 good concentration and attention span, normal thought content and process, good 20 insight and judgment, and normal fund of knowledge). 21 71 See, e.g., AR 546, 841, 989–90, 1012, 1169, 1208–09, 1250–51, 1270–71, 1280–81, 22 1293–94, 1400. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 22 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1592 Page 23 of 25 1 4. Dr. Bowes 2 In June 2018, Dr. Tasmyn Bowes, Psy.D., conducted a psychological 3 examination. 72 Dr. Bowes diagnosed Plaintiff with PTSD, generalized anxiety 4 disorder, major depressive disorder, panic disorder, meth use disorder (early 5 remission), and borderline personality disorder. Dr. Bowes opined that Plaintiff 6 was markedly limited in her abilities to communicate and perform and maintain 7 appropriate behavior at work, set realistic goals and plan independently, and 8 complete work without interruptions from psychologically based symptoms. The ALJ found Dr. Bowes’ opinion was not persuasive because it was based 9 10 on a one-time evaluation, it was inconsistent with Dr. Bowes’ observations, and it 11 was inconsistent with the objective medical evidence. 73 12 First, that Dr. Bowes’ opinion was based on a single evaluation was not a 13 legitimate factor by itself to find Dr. Bowes’ opinion unpersuasive when the ALJ 14 found persuasive the reviewing opinions of Dr. Lewis and Dr. Moore, who had not 15 evaluated Plaintiff. However, the ALJ legitimately considered that Dr. Lewis and 16 Dr. Moore benefitted from reviewing longitudinal medical records, which reflected 17 improvement of Plaintiff’s mental-health symptoms with treatment. Second, the ALJ’s finding that Dr. Bowes’ marked limitations were 18 19 inconsistent with her observations is supported by substantial evidence. Dr. Bowes 20 21 72 AR 755–60. 73 AR 27–28. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 23 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1593 Page 24 of 25 1 noted that she observed Plaintiff with adequate eye contact and basic grooming, 2 that she was cooperative although briefly tearful, and that she had normal speech, 3 logical thought-process, and normal perception and memory, but that Plaintiff’s 4 fund of knowledge was inadequateand her abstract thought, concentration, and 5 insight/judgment were abnormal given her answers. 74 As to the concentration 6 component of the test, Dr. Bowes said, “See Trails and MSE,” which in turn 7 mentions that these tests were not completed by Plaintiff because she “can’t really 8 see those – I need glasses.” 75 The ALJ’s finding that Dr. Bowes did not adequately 9 connect her observations with the marked limitations as to communicating and 10 performing effectively in a work setting, maintaining appropriate behavior in a 11 work setting, completing a normal work day and work week without interruptions 12 from psychologically based symptoms, and setting realistic goals and plan 13 independently is supported by substantial evidence. Moreover, Dr. Bowes’ 14 observations are consistent with the assessed RFC limiting Plaintiff to 15 uncomplicated work that can be learned in 30 days, does not involve hourly quotas 16 or conveyor belts, and involves no more than occasional simple workplace changes. 17 18 19 20 21 74 AR 760. 75 AR 757, 760. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 24 Case 1:22-cv-03047-EFS ECF No. 16 filed 03/29/23 PageID.1594 Page 25 of 25 And as previously mentioned, Plaintiff’s mood, affect, judgment, insight, 1 2 concentration, and attention improved with counseling and medication 3 management. 76 V. 4 Plaintiff fails to establish that the ALJ consequentially erred. The ALJ’s 5 6 Conclusion nondisability findings are supported by explanation and substantial evidence. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 9 2. The Commissioner’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 10 3. 11 The Clerk’s Office shall enter JUDGMENT in favor of the Commissioner. 12 13 4. 14 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 15 The case shall be CLOSED. provide copies to all counsel. DATED this 29th day of March 2023. 16 17 EDWARD F. SHEA Senior United States District Judge 18 19 20 21 22 76 See, e.g., AR 912, 916, 918, 930, 940. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 25
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