Williams v. Colvin, No. 2:2014cv00232 - Document 21 (E.D. Wash. 2015)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 13 is DENIED. Defendants Motion for Summary Judgment ECF No. 18 is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Williams v. Colvin Doc. 21 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JOANN WILLIAMS, NO: 2:14-CV-0232-TOR Plaintiff, 8 v. 9 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. 12 13 14 BEFORE THE COURT are the parties’ cross-motions for summary 15 judgment (ECF Nos. 13, 18). Dana C. Madsen represents Plaintiff. Lars J. Nelson 16 represents Defendant. This matter was submitted for consideration without oral 17 argument. The Court has reviewed the administrative record and the parties’ 18 completed briefing and is fully informed. For the reasons discussed below, the 19 Court grants Defendant’s motion and denies Plaintiff’s motion. 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g); 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.” Id. at 1117 (internal quotation marks and citation 4 omitted). The party appealing the ALJ’s decision generally bears the burden of 5 establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 15 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 16 severe than one of the enumerated impairments, the Commissioner must find the 17 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 3 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 4 analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 8 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(f); 416.920(f). If the claimant is incapable of performing such work, the 11 analysis proceeds to step five. 12 At step five, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing other work in the national economy. 14 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 15 the Commissioner must also consider vocational factors such as the claimant’s age, 16 education, and work experience. Id. If the claimant is capable of adjusting to 17 other work, the Commissioner must find that the claimant is not disabled. 20 18 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of 19 adjusting to other work, the analysis concludes with a finding that the claimant is 20 disabled and is therefore entitled to benefits. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 The claimant bears the burden of proof at steps one through four above. 2 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If 3 the analysis proceeds to step five, the burden shifts to the Commissioner to 4 establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. §§ 6 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 8 9 ALJ’S FINDINGS Plaintiff protectively filed applications for a period of disability and disability insurance benefits on March 24, 2011, and for supplemental security 10 income on March 4, 2011. Tr. 173-74, 175-83, 184-92. These applications were 11 denied initially and upon reconsideration, and Plaintiff requested a hearing. Tr. 65- 12 73, 74-82, 119-23, 124-29, 130-31. A hearing was held with an Administrative 13 Law Judge (“ALJ”) on December 4, 2012. Tr. 35-62. The ALJ rendered a 14 decision denying Plaintiff benefits on January 18, 2013. Tr. 9-27. 15 The ALJ found that Plaintiff met the insured status requirements of Title II 16 of the Social Security Act through December 31, 2014. Tr. 14. At step one, the 17 ALJ found that Plaintiff had not engaged in substantial gainful activity since 18 October 18, 2009, the alleged onset date. Tr. 14. At step two, the ALJ found that 19 Plaintiff had the following severe impairment: major depressive disorder. Tr. 14. 20 At step three, the ALJ found that Plaintiff did not have an impairment or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 combination of impairments that meet or medically equal a listed impairment. Tr. 2 15. The ALJ then determined that Plaintiff had the RFC 3 6 to perform a full range of work at all exertional levels but with the following nonexertional limitations: she is able to understand, remember, and carry out simple one to two-step instructions or tasks; she is able to maintain attention and concentration for two-hour intervals between regularly scheduled breaks; and she should be limited to rare interactions with the general public and occasional interactions in small groups with co-workers. 7 Tr. 17. At step four, the ALJ found that Plaintiff was unable to perform any past 8 relevant work as an office helper, shipping and receiving clerk, order picker, fast 9 food worker and manager, short order cook, machine packager, or hand packager. 10 Tr. 21. At step five, the ALJ found that Plaintiff could perform the representative 11 occupations of fish cleaner, dining room attendant, and laundry worker. Tr. 22. In 12 light of the step five finding, the ALJ concluded that Plaintiff was not disabled 13 under the Social Security Act and denied her claims on that basis. Tr. 23. 4 5 14 The Appeals Council denied Plaintiff’s request for review on May 22, 2014, 15 making the ALJ’s decision the Commissioner’s final decision for purposes of 16 judicial review. Tr. 1-6; 20 C.F.R. §§ 404.981, 416.1484, 422.210. 17 18 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 19 her disability benefits and supplemental security income under Titles II and XVI of 20 the Social Security Act. Plaintiff raises the following two issues for review: ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 (1) Whether the ALJ properly discounted Plaintiff’s credibility; and 2 (2) Whether the ALJ properly weighed the medical opinion evidence. 3 ECF No. 13 at 12-19. This Court addresses each issue in turn. 4 DISCUSSION 5 A. 6 Plaintiff contends the ALJ improperly discredited her symptom testimony. Adverse Credibility Finding 7 Id. at 12. In support, Plaintiff asserts that (1) the medical evidence supports her 8 testimony regarding her mental health symptoms; and (2) her failure to seek 9 treatment was justified because her condition did not improve with medication, she 10 could not afford treatment, and her mental condition interfered with her ability to 11 seek treatment. Id. at 12-16. 12 “In assessing the credibility of a claimant’s testimony regarding subjective 13 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” 14 Molina, 674 F.3d at 1112 (citing Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 15 2009)). First, the ALJ must determine whether the claimant has proved the 16 existence of a physical or mental impairment with “medical evidence consisting of 17 signs, symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908, 416.927; see 18 Molina, 674 F.3d at 1112. A claimant’s statements about his or her symptoms 19 alone will not suffice. 20 C.F.R. §§ 416.908, 416.927. “Once the claimant 20 produces medical evidence of an underlying impairment, the Commissioner may ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 not discredit the claimant’s testimony as to subjective symptoms merely because 2 they are unsupported by objective evidence.” Berry v. Astrue, 622 F.3d 1228, 3 1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); 4 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). As long as the 5 impairment “could reasonably be expected to produce the pain or other 6 symptoms,” the claimant may offer a subjective evaluation as to the severity of the 7 impairment. Bunnell, 947 F.2d at 345-56. This rule recognizes that the severity of 8 a claimant’s symptoms “cannot be objectively verified or measured.” Id. at 347 9 (citation omitted). 10 However, an ALJ may conclude that the claimant’s subjective assessment is 11 unreliable, so long as the ALJ makes “a credibility determination with findings 12 sufficiently specific to permit [a reviewing] court to conclude that the ALJ did not 13 arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 14 (9th Cir. 2002); see also Bunnell, 947 F.2d at 345 (“[A]lthough an adjudicator may 15 find the claimant’s allegations of severity to be not credible, the adjudicator must 16 specifically make findings which support this conclusion.”). If there is no 17 evidence of malingering, the ALJ’s reasons for discrediting the claimant’s 18 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 19 661, 672 (9th Cir. 2012) (quotation and citation omitted). The ALJ “must 20 specifically identify the testimony she or he finds not to be credible and must ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 explain what evidence undermines the testimony.” Holohan v. Massanari, 246 2 F.3d 1195, 1208 (9th Cir. 2001); see Berry, 622 F.3d at 1234 (“General findings 3 are insufficient; rather, the ALJ must identify what testimony is not credible and 4 what evidence undermines the claimant’s complaints.”). 5 In weighing the claimant’s credibility, the ALJ may consider many factors, 6 including “‘(1) ordinary techniques of credibility evaluation, such as the claimant’s 7 reputation for lying, prior inconsistent statements concerning the symptoms, and 8 other testimony by the claimant that appears less than candid; (2) unexplained or 9 inadequately explained failure to seek treatment or to follow a prescribed course of 10 treatment; and (3) the claimant’s daily activities.’” Chaudry v. Astrue, 688 F.3d 11 661, 672 (9th Cir. 2012) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 12 Cir. 2008)). If the ALJ’s finding is supported by substantial evidence, the court 13 may not engage in second-guessing. Id. (quoting Tommasetti, 533 F.3d at 1039). 14 Here, the ALJ found that although Plaintiff’s “medically determinable 15 impairments could reasonably be expected to cause some of the alleged 16 symptoms,” her “statements concerning the intensity, persistence, and limiting 17 effects of these symptoms are not entirely credible.” Tr. 18. Because there is no 18 evidence of malingering in this case, the Court must determine whether the ALJ 19 provided specific, clear, and convincing reasons not to credit Plaintiff’s testimony 20 regarding the limiting effect of her symptoms. Chaudhry, 688 F.3d at 672. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Although Plaintiff contends that the ALJ improperly conducted an adverse 2 credibility analysis, this Court disagrees. The ALJ provided the following specific, 3 clear, and convincing reasoning supported by substantial evidence for finding 4 Plaintiff’s subjective statements not fully credible: (1) the medical evidence of 5 record did not support the degree of limitation alleged by Plaintiff; and (2) 6 Plaintiff’s failure to seek treatment was inconsistent with the disabling symptoms 7 alleged. Tr. 18-20. 8 First, the ALJ found the medical evidence, which signaled a broader 9 development of improvement, did not support the degree of limitation alleged by 10 Plaintiff. Although Plaintiff testified to debilitating depressive symptoms, such as 11 anhedonia, a lack of motivation, discouragement, difficulty sleeping, and difficulty 12 concentrating, the ALJ found Plaintiff’s condition improved with medication and 13 thus the record did not support the degree of limitation alleged. Tr. 18-19. For 14 instance, after Plaintiff was hospitalized for depression in November 2009, she 15 reported “feeling much better” with use of medication. Tr. 19 (citing Tr. 289); see 16 also Tr. 19 (citing Tr. 310 (“[Claimant] stated that the medication had been 17 helpful.”)). Plaintiff subsequently discontinued her medication, reporting to a 18 provider that she did not want to take them anymore. Tr. 19 (citing Tr. 370). 19 However, one week after restarting medication in August 2010, Plaintiff was 20 observed by a provider to be “more animated” with an “increased range of affect.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Tr. 19 (citing Tr. 374). Similarly, in September 2010, after continued use of 2 medication, Plaintiff’s provider noted “significant improvement” in Plaintiff’s 3 condition, finding that Plaintiff appeared “brighter and more interactive.” Tr. 19 4 (citing Tr. 379); see also Tr. 378 (treatment notes following antidepressant 5 medication use noted Plaintiff reporting that she was “feeling better”). In 6 December 2010, Plaintiff presented for refills of her medications—several months 7 after she ran out—and reported that “she feels better when she takes her 8 medications, less depressed, and she sleeps better when she has them.” 1 Tr. 380. 9 Although the ALJ acknowledged that Plaintiff’s affect was still limited, 10 improvement was documented. Tr. 19 (citing Tr. 374, 379). 11 While “it is error to reject a claimant’s testimony merely because symptoms 12 wax and wane in the course of treatment,” an ALJ may rely on examples of 13 “broader development” of improvement when finding a claimant’s testimony not 14 credible. Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014) (“While ALJs 15 obviously must rely on examples to show why they do not believe that a claimant 16 is credible, the data points they choose must in fact constitute examples of a 17 1 18 similar trend in 2006: “The claimant reported that she had significant depression 19 several years prior, but she was placed on medication and did ‘quite well’ until she 20 stopped using them around 2006.” Tr. 18 (citing Tr. 281). Although prior to the relevant period of alleged disability, the ALJ also noted a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 broader development to satisfy the applicable ‘clear and convincing’ standard.”). 2 Despite Plaintiff’s contention here, the ALJ did not inappropriately “cherry pick” 3 periods of temporary well-being; rather, the ALJ noted that Plaintiff’s condition 4 consistently improved when she followed her prescribed course of medication and 5 discredited her testimony on that basis. See Warre v. Comm’r of Soc. Sec. Admin., 6 439 F.3d 1001, 1006 (9th Cir. 2006)(“Impairments that can be controlled 7 effectively with medication are not disabling for the purpose of determining 8 eligibility for . . . benefits.”). 9 Second, and relatedly, the ALJ found Plaintiff’s statements concerning the 10 severity of her limitations inconsistent with her failure to follow a prescribed 11 course of treatment. Despite Plaintiff’s improvement with medication use, detailed 12 above, the ALJ noted over a one-year gap in treatment, which cast doubt on the 13 severity of Plaintiff’s symptoms: “The claimant’s lack of follow-up for over a year 14 again suggests that her condition did not significantly interfere with her 15 functioning.” Tr. 20. Although Plaintiff attempted to explain her lack of 16 treatment, the ALJ did not find these explanations convincing. For instance, 17 although Plaintiff asserted an inability to afford medications, the ALJ noted that (1) 18 she testified at the hearing that she had medical insurance through the state, Tr. 19, 19 and (2) even if Plaintiff did not have insurance, the lack of insurance would not 20 have precluded Plaintiff from receiving treatment considering the availability of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 patient assistance programs. Tr. 20 (citing Tr. 390 (“Learned [patient] can get 2 Zyperxa, which was helpful in the past, on a patient assistant program, this is 3 prescribed.”)); see Tr. 381 (referring Plaintiff to Project Access Coordinator to 4 determine whether there may be resources available to help with expense of 5 medications). Moreover, the ALJ found inconsistencies in Plaintiff’s reasoning for 6 not following a prescribed course of treatment: Plaintiff reported to providers that 7 she stopped taking medication because “she did not want to anymore,” and that she 8 could not afford medications but would try counseling, which the ALJ determined 9 was inconsistent because someone who could not afford medications could likely 10 not afford counseling. Tr. 20. Finally, the ALJ had reason to doubt Plaintiff’s 11 commitment to counseling. As the ALJ had previously noted, although Plaintiff 12 was enrolled in counseling in February 2010, she only met with a therapist once 13 and failed to appear at subsequent appointments or otherwise respond to 14 voicemails or letters. Tr. 19 (citing Tr. 293). Plaintiff was subsequently referred 15 to a counselor in February 2012, Tr. 20 (citing Tr. 391); however, there is no 16 evidence that Plaintiff complied with this referral, Tr. 20. Indeed, Plaintiff 17 reported to one provider that she “did not follow through with counseling because 18 she did not like being there.” Tr. 402. Accordingly, Plaintiff’s inadequately 19 explained failure to follow a prescribed course of treatment provided another clear 20 and convincing reason for discounting her credibility. See Tommasetti, 533 F.3d at ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 1039 (finding that a plaintiff’s “unexplained or inadequately explained failure to 2 seek treatment” provided legitimate reason for rejecting claimant’s credibility). 3 B. 4 Plaintiff also contends the ALJ failed to properly weigh the medical opinion Medical Opinions 5 evidence. ECF No. 13 at 16-19. In support, Plaintiff faults the ALJ for rejecting 6 the opinions of Dr. Pollack and giving greater weight to the opinions of Dr. 7 Chandler and Dr. Veraldi. Id. 8 9 There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 10 (examining physicians); and (3) those who neither examine nor treat the claimant 11 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 12 Holohan, 246 F.3d at 1201-02 (citations omitted). A treating physician’s opinions 13 are generally entitled to substantial weight in social security proceedings. Bray v. 14 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If a treating or 15 examining physician’s opinion is uncontradicted, an ALJ may reject it only by 16 offering “clear and convincing reasons” that are supported by substantial evidence 17 in the record. Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 18 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “However, the 19 ALJ need not accept the opinion of any physician, including a treating physician, if 20 that opinion is brief, conclusory and inadequately supported by clinical findings.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Bray, 554 F.3d at 1228 (quotation and citation omitted). If a treating or examining 2 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only 3 reject it by providing “specific and legitimate reasons” that are supported by 4 substantial evidence in the record. Valentine v. Comm’r of Soc. Sec. Admin., 574 5 F.3d 685, 692 (9th Cir. 2009); Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 6 830-31). 7 Plaintiff contends the ALJ did not give sufficient weight to the findings of 8 examining psychologist, Dr. Dennis Pollack, Ph. D. ECF No. 13 at 7, 17-19. Dr. 9 Pollack examined Plaintiff in November 2012, at the request of Plaintiff’s 10 representative, and opined that Plaintiff would have marked limitations in her 11 ability to perform activities within a schedule, maintain regular attendance, be 12 punctual within customary tolerances, complete a normal workday or workweek 13 without interruptions from psychologically based symptoms, and perform at a 14 consistent pace without an unreasonable number of rest periods. Tr. 399-408. 15 This Court finds that ALJ properly evaluated the opinion of Dr. Pollack and 16 reasonably provided the opinions of Dr. Veraldi and Dr. Chandler greater weight. 17 Because Dr. Pollack’s opinion was contradicted, see Tr. 20-21, the ALJ need only 18 have provided “specific and legitimate” reasoning for rejecting it. Bayliss, 427 19 F.3d at 1216. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 First, the ALJ found Dr. Pollack’s opinion was not supported by the 2 evidence in the record. For instance, the ALJ noted Dr. Pollack’s opinion that 3 Plaintiff was unable to complete a normal workday or workweek was not 4 supported by objective findings. Tr. 20. Further, as testified to by Dr. Donna 5 Veraldi, Ph. D., at the hearing, Plaintiff might become depressed once every six 6 months but would not routinely be missing work because of her condition. Tr. 20; 7 see Tr. 44. Because Dr. Veraldi was able to review all of the medical evidence and 8 her opinion was consistent with the findings of Dr. Chandler,2 the ALJ gave Dr. 9 Veraldi’s conclusions greater weight. Tr. 21. Because contrary opinions, in 10 addition to objective medical evidence, provide a specific and legitimate reason for 11 rejecting a medical opinion, see Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 12 Cir. 2001), the ALJ provided a specific and legitimate reason for rejecting Dr. 13 Pollack’s opinion. 14 Second, the ALJ noted inconsistencies in Dr. Pollack’s own assessment. 15 Although Dr. Pollack opined that Plaintiff had marked limitations in maintaining a 16 schedule and completing a normal work day, the ALJ commented that Dr. 17 2 18 weight . . . because she was able to examine the claimant personally and her 19 conclusions are consistent with her objective findings during the evaluation.” Tr. 20 19. The ALJ afforded the opinion of Dr. Samantha Chandler, Psy. D., “significant ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Pollack’s notes also indicated Plaintiff suffered no significant limitations in the 2 majority of the functioning categories. Tr. 20; see Tr. 406. Further, although Dr. 3 Pollack opined that Plaintiff had marked limitations in her ability to perform 4 activities within a schedule, maintain attendance, or be punctual within customary 5 tolerances, he also noted that Plaintiff arrived on time or early to her evaluations. 6 Tr. 20; see Tr. 400. Because inconsistencies between a doctor’s opinion and his 7 own reports, provide a specific and legitimate reason for rejecting even a treating 8 doctor’s opinion, see Bayliss, 427 F.3d at 1216 (finding a discrepancy between a 9 doctor’s opinion and his other recorded observations and opinions provided a clear 10 and convincing reason for not relying on that doctor’s opinion), the ALJ provided 11 another specific and legitimate reason for rejecting Dr. Pollack’s opinion. 12 IT IS ORDERED: 13 1. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED. 14 2. Defendant’s Motion for Summary Judgment (ECF No. 18) is 15 16 17 18 GRANTED. The District Court Executive is directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED June 12, 2015. 19 20 THOMAS O. RICE United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18

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