Aschenbrenner v. Commissioner of Social Security, No. 2:2016cv00397 - Document 29 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 26 - denying 13 Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (VR, Courtroom Deputy)
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Aschenbrenner v. Commissioner of Social Security 1 Doc. 29 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Apr 03, 2018 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 KIMBERLY CAROL ASCHENBRENNER, No. 2:16-CV-00397-RHW 9 10 11 Plaintiff, v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 14 15 16 17 18 19 20 Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 13 & 26. Ms. Aschenbrenner brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her application for Disability Insurance Benefits under Title II and her application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C §§ 401-434, 1381-1383F. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the Court GRANTS Defendant’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Motion for Summary Judgment and DENIES Ms. Aschenbrenner’s Motion for 2 Summary Judgment. 3 4 I. Jurisdiction Ms. Aschenbrenner filed her application for Disability Insurance Benefits 5 and her application for Supplemental Security Income on April 9, 2013. AR 226- 6 35. Her alleged onset date of disability is October 25, 2012. AR 21, 226, 233. Ms. 7 Aschenbrenner’s applications were initially denied on June 6, 2013, AR 131-34, 8 and on reconsideration on July 18, 2013, AR 135-36. 9 A hearing with Administrative Law Judge (“ALJ”) Jesse K. Shumway 10 occurred on March 26, 2015. AR 42-84. On April 24, 2015, the ALJ issued a 11 decision finding Ms. Aschenbrenner ineligible for disability benefits. AR 21-31. 12 The Appeals Council denied Ms. Aschenbrenner’s request for review on 13 September 19, 2016, AR 1-4, making the ALJ’s ruling the “final decision” of the 14 Commissioner. 15 Ms. Aschenbrenner timely filed the present action challenging the denial of 16 benefits, on November 4, 2016. ECF No. 3. Accordingly, Ms. Aschenbrenner’s 17 claims are properly before this Court pursuant to 42 U.S.C. § 405(g). 18 19 20 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 mental impairment which can be expected to result in death or which has lasted or 2 can be expected to last for a continuous period of not less than twelve months.” 42 3 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 4 under a disability only if the claimant’s impairments are of such severity that the 5 claimant is not only unable to do his previous work, but cannot, considering 6 claimant's age, education, and work experience, engage in any other substantial 7 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 8 9 The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Social 10 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 12 Step one inquires whether the claimant is presently engaged in “substantial 13 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 14 activity is defined as significant physical or mental activities done or usually done 15 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 16 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 17 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 18 Step two asks whether the claimant has a severe impairment, or combination 19 of impairments, that significantly limits the claimant’s physical or mental ability to 20 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 impairment is one that has lasted or is expected to last for at least twelve months, 2 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 3 416.908-09. If the claimant does not have a severe impairment, or combination of 4 impairments, the disability claim is denied, and no further evaluative steps are 5 required. Otherwise, the evaluation proceeds to the third step. 6 Step three involves a determination of whether any of the claimant’s severe 7 impairments “meets or equals” one of the listed impairments acknowledged by the 8 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 9 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 10 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 11 equals one of the listed impairments, the claimant is per se disabled and qualifies 12 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 13 fourth step. 14 Step four examines whether the claimant’s residual functional capacity 15 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & 16 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 17 not entitled to disability benefits and the inquiry ends. Id. 18 Step five shifts the burden to the Commissioner to prove that the claimant is 19 able to perform other work in the national economy, taking into account the 20 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 2 burden, the Commissioner must establish that (1) the claimant is capable of 3 performing other work; and (2) such work exists in “significant Aschenbrenner in 4 the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. 5 Astrue, 676 F.3d 1203, 1206 (9th Cir. 2012). 6 7 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 8 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 9 Commissioner's decision will be disturbed “only if it is not supported by 10 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 11 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 12 mere scintilla but less than a preponderance; it is such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 14 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 15 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 16 whether the Commissioner’s findings are supported by substantial evidence, “a 17 reviewing court must consider the entire record as a whole and may not affirm 18 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 19 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 20 F.2d 498, 501 (9th Cir. 1989)). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 3 1992). If the evidence in the record “is susceptible to more than one rational 4 interpretation, [the court] must uphold the ALJ's findings if they are supported by 5 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 6 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 7 2002) (if the “evidence is susceptible to more than one rational interpretation, one 8 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 9 a district court “may not reverse an ALJ's decision on account of an error that is 10 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 11 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 12 The burden of showing that an error is harmful generally falls upon the party 13 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 14 15 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 16 and only briefly summarized here. Ms. Aschenbrenner was 51 years old at the 17 alleged date of onset. AR 226, 233. She has a high school education and two years 18 of college. AR 250, 495, 498. Ms. Aschenbrenner is able to communicate in 19 English. AR 248. Ms. Aschenbrenner has past work as a customer service clerk 20 and an administrative clerk. AR 30, 251, 270. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 V. The ALJ’s Findings 2 The ALJ determined that Ms. Aschenbrenner was not under a disability 3 within the meaning of the Act from October 25, 2012, through the date of the 4 ALJ’s decision. AR 21, 31. 5 At step one, the ALJ found that Ms. Aschenbrenner had not engaged in 6 substantial gainful activity since October 25, 2012 (citing 20 C.F.R. §§ 404.1571 et 7 seq., and 416.971 et seq.). AR 23. 8 9 At step two, the ALJ found Ms. Aschenbrenner had the following severe impairments: peripheral neuropathy of the feet, diabetes mellitus, degenerative 10 arthritis of the cervical and lumbar spine, restless leg syndrome, osteoarthritis of 11 the left foot and ankle, right Achilles tendonitis, and obesity (citing 20 C.F.R. §§ 12 404.1520(c) and 416.920(c)). AR 23. 13 At step three, the ALJ found that Ms. Aschenbrenner did not have an 14 impairment or combination of impairments that meets or medically equals the 15 severity of one of the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR 16 26. 17 At step four, the ALJ found Ms. Aschenbrenner had the residual functional 18 capacity to perform a full range of light work, with the following limitations: she 19 can only stand and walk for four hours in an eight-hour workday; she can only 20 occasionally use foot controls bilaterally; she can only occasionally climb stairs or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 ramps, ladders, ropes, and scaffolds; she can only occasionally crouch and crawl; 2 she can only frequently balance, stoop, and kneel; and she can have no 3 concentrated exposure to extreme cold, extreme heat, vibration, moving 4 mechanical parts, and unprotected heights. AR 26. 5 At step five, the ALJ found that Ms. Aschenbrenner can perform her past 6 relevant work as a customer service clerk and as an administrative clerk as actually 7 and generally performed. AR 30-31. 8 9 VI. Issues for Review Ms. Aschenbrenner argues that the Commissioner’s decision is not free of 10 legal error and not supported by substantial evidence. Specifically, she argues the 11 ALJ erred by: (1) failing to include neuropathy of the hands, irritable bowel 12 syndrome, and depression as severe impairments at step two; (2) improperly 13 discrediting Ms. Aschenbrenner’s subjective complaint testimony; and (3) 14 improperly evaluating the medical opinion evidence. 15 VII. Discussion 16 A. 17 process. The ALJ did not err at step two of the sequential evaluation 18 Ms. Aschenbrenner contends that the ALJ erred by not finding her 19 neuropathy of the hands, irritable bowel syndrome, and depression to be severe 20 impairments at step two of the five-step sequential evaluation process. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 At step two in the five-step sequential evaluation for Social Security cases, 2 the ALJ must determine whether a claimant has a medically severe impairment or 3 combination of impairments. An impairment is found to be not severe “when 4 medical evidence establishes only a slight abnormality or a combination of slight 5 abnormalities which would have no more than a minimal effect on an individual’s 6 ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (quoting 7 SSR 85-28). Step two is generally “a de minimis screening device [used] to 8 dispose of groundless claims.” Webb v. Barnhart, 433 F. 683, 687 (9th Cir. 2005) 9 (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996)). 10 Under step 2, an impairment is not severe if it does not significantly limit a 11 claimant’s ability to perform basic work activities. Edlund v. Massanari, 253 F.3d 12 1152, 1159 (9th Cir. 2001) (citing 20 C.F.R. § 404.1521(a)(b)). A diagnosis from 13 an “acceptable medical source,” such as a licensed physician or certified 14 psychologist, is necessary to establish a medically determinable impairment. 20 15 C.F.R. § 404.1513(d). Importantly however, a diagnosis itself does not equate to a 16 finding of severity. Edlund, 253 F.3d at 1159-60 (plaintiff has the burden of 17 proving this impairment or their symptoms affect her ability to perform basic work 18 activities); see also Mcleod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). An 19 alleged impairment must result from anatomical, physiological, or psychological 20 abnormalities that can be shown by medically acceptable clinical and laboratory ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 diagnostic techniques and must be established by medical evidence not only by a 2 plaintiff’s statements regarding his symptoms. 20 C.F.R. §§ 404.1508, 416.908. 3 First, Ms. Aschenbrenner argues that the ALJ should have found she had 4 severe neuropathy of the hands based on her subjective reports. However, Ms. 5 Aschenbrenner points to no diagnosis in the record of neuropathy of the hands, no 6 impairments that affect her ability to work from neuropathy of the hands, or any 7 medically acceptable clinical or laboratory techniques demonstrating any 8 limitations. Furthermore, testifying medical expert, Dr. Panek, stated that there is 9 no objective evidence of hand neuropathy and there are no functional limitations 10 associated with Ms. Aschenbrenner’s allegations. AR 24, 51, 55. The ALJ also 11 noted that Ms. Aschenbrenner’s allegations of hand neuropathy are inconsistent 12 with her daily activities, which include preparing daily meals, doing laundry, doing 13 the dishes, cleaning, and using the mouse and keyboard to play computer games 14 and chat with others on the computer. AR 24, 290-92, 497. The ALJ’s 15 determination is supported by the record and the ALJ did not err in not finding 16 neuropathy of the hands to be severe. 17 Second, Ms. Aschenbrenner contends that the ALJ should have found she 18 had severe irritable bowel syndrome based on her subjective reports. However, the 19 ALJ correctly noted that record demonstrates this impairment is controlled with 20 medication management, and Ms. Aschenbrenner stated that she feels she is fairly ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 well controlled when taking her medication. AR 24, 535. The ALJ’s decision is 2 further supported by the medical expert testimony of Dr. Panek, who testified that 3 Ms. Aschenbrenner’s irritable bowel syndrome is non-severe. AR 50. Ms. 4 Aschenbrenner’s treating provider, Mr. Bomberger, PAC, also opined that her 5 irritable colon would have “no significant interference with the ability to perform 6 basic work-related activities.” AR 648. Thus, the ALJ’s determination is supported 7 by substantial evidence in the record and the ALJ did not err in not finding irritable 8 bowel syndrome to be severe. 9 Lastly, Ms. Aschenbrenner argues that the ALJ should have found her 10 depression to be severe based on her subjective reports, a diagnosis of adjustment 11 disorder with mixed anxiety and depressed mood by Dr. Quackenbush, and the 12 possible diagnosis of depression after the relevant time frame in the report by Dr. 13 Arnold that is not part of the record and indicates that the diagnosis lacks validity 14 based on possible embellishment. The ALJ noted that the record is devoid of 15 medically determinable limitations that significantly affected her ability to work 16 associated with her allegations of depression and the medical record is consistent 17 with a finding that depression was not severe. AR 24. The ALJ’s determination is 18 supported by substantial evidence in the record. State Agency doctors Sean Mee, 19 Ph.D., and Michael Brown, Ph.D., opined that Plaintiff had no significant 20 limitations from her depression. AR 101, 124-125. Examining doctor, Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Quackenbush, diagnosed Ms. Aschenbrenner with adjustment disorder with mixed 2 anxiety and depressed mood, but specifically stated she “did not appear clinically 3 depressed.” AR 497-498. Dr. Quackenbush did not include functional limitations 4 but rather he further stated that: Ms. Aschenbrenner’s immediate and delayed 5 memory were within the average range except her contextual auditory memory was 6 within the high-average range; she had no significant cognitive defects, except for 7 an occasional lapse in attention/concentration; he did not observe marked problems 8 with concentration, persistence, and pace; she was able to make simple judgments; 9 and she was friendly and likeable. AR 498. Treatment providers also consistently 10 noted that Ms. Aschenbrenner’s affect was normal; she was not agitated, anxious, 11 or have suicidal ideation; she did not display unusual anxiety or evidence of 12 depression; and her memory, orientation, mood, insight, and judgment were 13 normal. AR 546, 569, 583, 599, 609, 612, 620, 656, 660, 664, 678, 682, 690, 695, 14 699, 704, 709, 716, 722, 798, 802, 805. 15 Additionally, the assessment completed by Dr. Arnold in May 2015 that is 16 not part of the record is irrelevant to the ALJ’s determination that Ms. 17 Aschenbrenner is not disabled from her alleged onset date of October 25, 2012, to 18 the date of the ALJ’s decision on April 24, 2015. 42 U.S.C. § 405(g) (a federal 19 court may affirm, modify, or reverse any final decision of the Commissioner, but 20 can only rely “upon the pleadings and transcript of the record” in taking any of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 these three specified actions). A court “may at any time order additional evidence 2 to be taken before the Commissioner of Social Security, but only upon a showing 3 that there is new evidence which is material and that there is good cause for the 4 failure to incorporate such evidence into the record in a prior proceeding. Id. Ms. 5 Aschenbrenner does not argue that the opinion from Dr. Arnold, after the relevant 6 period and noting a lack of validity, is new and material or that there exists good 7 cause for the failure to submit it to the ALJ. The Appeals Council specifically 8 addressed this opinion and stated that it “does not provide a basis for changing the 9 Administrative Law Judge’s decision,” “this new information is about a later 10 time… it does not affect the decision about whether you were disabled beginning 11 on or before April 24, 2015.” AR 2. Therefore, Dr. Arnold’s assessment does not 12 provide a basis for remand and the ALJ did not err in not finding depression to be 13 severe. 14 Furthermore, because Ms. Aschenbrenner was found to have at least one 15 severe impairment, this case was not resolved at step two. Thus, any error in the 16 ALJ’s finding at step two is harmless, if all impairments, severe and non-severe, 17 were considered in the determination Ms. Aschenbrenner’s residual functional 18 capacity. See Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding that a 19 failure to consider an impairment in step two is harmless error where the ALJ 20 includes the limitations of that impairment in the determination of the residual ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 functional capacity). The ALJ specifically noted that he considered all symptoms in 2 assessing the residual functional capacity. AR 26 (emphasis added). Accordingly, 3 the Court finds the ALJ did not err in the step two analysis, and if any error did 4 occur it was harmless. 5 B. The ALJ Properly Discounted Ms. Aschenbrenner’s Credibility. 6 An ALJ engages in a two-step analysis to determine whether a claimant’s 7 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 8 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 9 medical evidence of an underlying impairment or impairments that could 10 reasonably be expected to produce some degree of the symptoms alleged. Id. 11 Second, if the claimant meets this threshold, and there is no affirmative evidence 12 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 13 severity of [her] symptoms only by offering specific, clear, and convincing reasons 14 for doing so.” Id. 15 In weighing a claimant's credibility, the ALJ may consider many factors, 16 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 17 reputation for lying, prior inconsistent statements concerning the symptoms, and 18 other testimony by the claimant that appears less than candid; (2) unexplained or 19 inadequately explained failure to seek treatment or to follow a prescribed course of 20 treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284. When ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 evidence reasonably supports either confirming or reversing the ALJ's decision, the 2 Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 3 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically 4 determinable impairments could reasonably be expected to produce the symptoms 5 Ms. Aschenbrenner alleges; however, the ALJ determined that Ms. 6 Aschenbrenner’s statements of intensity, persistence, and limiting effects of the 7 symptoms were not entirely credible. AR 27. The ALJ provided multiple clear and 8 convincing reasons for discrediting Ms. Aschenbrenner’s subjective complaint 9 testimony. AR 24, 27-28. 10 First, the ALJ noted multiple inconsistencies with the medical evidence. AR 11 27-28. This determination is supported by substantial evidence in the record. An 12 ALJ may discount a claimant’s subjective symptom testimony that is contradicted 13 by medical evidence. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 14 1161 (9th Cir. 2008). Inconsistency between a claimant’s allegations and relevant 15 medical evidence is a legally sufficient reason to reject a claimant’s subjective 16 testimony. Tonapetyan, 242 F.3d at 1148. Ms. Aschenbrenner alleges completely 17 debilitating pain limitations and an inability to walk. AR 27, 62, 65, 673. However, 18 physical examinations were generally normal and unremarkable, including full 19 strength, normal gait, normal range of motion, and the ability to ambulate. See e.g., 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 AR 27-28, 353, 376, 387, 393, 395, 520, 523, 525, 560, 562, 564, 628, 630, 632, 2 634, 673. 3 Second, the ALJ noted several pertinent inconsistent statements. AR 28. An 4 ALJ may rely on ordinary techniques of credibility evaluation such as a witness’s 5 prior inconsistent statements. Tommasetti, 533 F.3d at 1039. Specifically, the ALJ 6 noted Ms. Aschenbrenner stated that her disabling symptoms include insomnia, 7 but she denied that her insomnia caused functional limitations to her medical 8 providers, that she has no sleeping complaints, her insomnia was well controlled, 9 and she denied experiencing fatigue (AR 28, 67, 249, 381, 454, 540, 543, 549, 535, 10 568, 582, 588, 593, 598, 604, 608, 611, 622, 652, 655, 659, 663, 666, 667, 674, 11 678, 680, 700, 806). 12 Third, the ALJ previously noted that Ms. Aschenbrenner’s allegations of 13 disabling limitations are belied by her daily activities. AR 24-25. Including her 14 ability to cook meals daily, do laundry, do the dishes, clean the kitchen, vacuum, 15 use the computer to play games and chat online, shop in stores routinely, and go 16 out with her boyfriend and her friend. AR 24-25, 71, 74, 290-92, 497. Activities 17 inconsistent with the alleged symptoms are proper grounds for questioning the 18 credibility of an individual’s subjective allegations. Molina, 674 F.3d at 1113 19 (“[e]ven where those activities suggest some difficulty functioning, they may be 20 grounds for discrediting the claimant’s testimony to the extent that they contradict ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 claims of a totally debilitating impairment”); see also Rollins v. Massanari, 261 2 F.3d 853, 857 (9th Cir. 2001). The ALJ reasonably found that Ms. 3 Aschenbrenner’s daily activities contradict her allegations of total disability. The 4 record supports the ALJ’s determination that Ms. Aschenbrenner’s conditions are 5 not as limiting as she alleges. 6 When the ALJ presents a reasonable interpretation that is supported by the 7 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d at 857. 8 The Court “must uphold the ALJ's findings if they are supported by inferences 9 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 10 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 11 rational interpretation, one of which supports the ALJ’s decision, the conclusion 12 must be upheld”). The Court does not find the ALJ erred when discounting Ms. 13 Aschenbrenner’s credibility because the ALJ properly provided multiple clear and 14 convincing reasons for doing so. 15 16 17 C. The ALJ Properly Weighed the Medical Opinion Evidence. a. Legal Standard. The Ninth Circuit has distinguished between three classes of medical 18 providers in defining the weight to be given to their opinions: (1) treating 19 providers, those who actually treat the claimant; (2) examining providers, those 20 who examine but do not treat the claimant; and (3) non-examining providers, those ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 2 Cir. 1996) (as amended). 3 A treating provider’s opinion is given the most weight, followed by an 4 examining provider, and finally a non-examining provider. Id. at 830-31. In the 5 absence of a contrary opinion, a treating or examining provider’s opinion may not 6 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 7 treating or examining provider’s opinion is contradicted, it may only be discounted 8 for “specific and legitimate reasons that are supported by substantial evidence in 9 the record.” Id. at 830-31. 10 The ALJ may meet the specific and legitimate standard by “setting out a 11 detailed and thorough summary of the facts and conflicting clinical evidence, 12 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 13 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 14 provider’s opinion on a psychological impairment, the ALJ must offer more than 15 his or her own conclusions and explain why he or she, as opposed to the provider, 16 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 17 Additionally, “other sources” for opinions include nurse practitioners, 18 physicians' assistants, therapists, teachers, social workers, spouses, and other non- 19 medical sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is required to 20 “consider observations by non-medical sources as to how an impairment affects a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987). 2 Non-medical testimony can never establish a diagnosis or disability absent 3 corroborating competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 4 (9th Cir.1996). An ALJ is obligated to give reasons germane to “other source” 5 testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). 6 b. Mr. William Bomberger, PAC. 7 Mr. Bomberger is a certified physician’s assistant that has been treating Ms. 8 Aschenbrenner. AR 29, 567-626, 647-49. In July 2013, Mr. Bomberger noted that 9 Ms. Aschenbrenner’s diabetic condition was disabling for six months and she was 10 unable to do sedentary work, and he completed an evaluation form for the 11 Washington State Department of Social and Health Services opining that Ms. 12 Aschenbrenner’s ability to work was “severely limited” and “unable to meet the 13 demands of sedentary work.” AR 576, 648-49. Mr. Bomberger’s opinion is 14 contradicted by testifying medical expert Dr. Panek, and by medical consultant Dr. 15 Hander. AR 29, 53-54, 115-116. 16 The ALJ did not completely discount Mr. Bomberger’s opinion, but 17 assigned the opinion little weight. AR 29. The ALJ provided valid reasons, 18 supported by the record, to discount this opinion. Id. First, the ALJ discounted this 19 opinion because it is inconsistent with Mr. Bomberger’s own treatment notes. Id. A 20 discrepancy between a doctor’s recorded observations and opinions is a clear and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 convincing reason for not relying on the doctor’s opinion. Bayliss v. Barnhart, 427 2 F.3d 1211, 1216 (9th Cir. 2005). Additionally, “an ALJ need not accept the 3 opinion of a doctor if that opinion is inadequately supported by clinical findings.” 4 Id. at 1216. Indeed, Mr. Bomberger’s treatment notes do not include any indication 5 of severe disability; rather, they consistently note unremarkable presentation, no 6 difficulties associated with the alleged impairments, or only mild impairments. AR 7 29, 536, 540-41, 543, 550, 569, 589, 605, 609, 668, 675. Additionally, the ALJ 8 afforded the opinion little weight because, absent clinical findings or treatment 9 notes of severe limitations, the opinion is heavily based on Ms. Aschenbrenner’s 10 subjective reports that the ALJ appropriately found not credible. AR 29. An ALJ 11 may discount even a treating provider’s opinion if it is based largely on the 12 claimant’s self-reports and not on clinical evidence, and the ALJ finds the claimant 13 not credible. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 14 When the ALJ presents a reasonable interpretation that is supported by the 15 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 16 857. The Court “must uphold the ALJ's findings if they are supported by inferences 17 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 18 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 19 rational interpretation, one of which supports the ALJ’s decision, the conclusion 20 must be upheld”). In discounting Mr. Bomberger’s opinion, the ALJ supported the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 determination with specific and legitimate reasons supported by substantial 2 evidence in the record. Thus, the Court finds the ALJ did not err in his 3 consideration of Mr. Bomberger’s opinion. 4 VIII. Conclusion 5 Having reviewed the record and the ALJ’s findings, the Court finds the 6 ALJ’s decision is supported by substantial evidence and is free from legal error. 7 Accordingly, IT IS ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 26, is 10 GRANTED. 11 3. Judgment shall be entered in favor of Defendant and the file shall be 12 CLOSED. 13 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 14 forward copies to counsel and close the file. 15 16 17 DATED this 3rd day of April, 2018. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21
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