Hill v. Commissioner of Social Security, No. 2:2017cv00071 - Document 19 (E.D. Wash. 2018)
Court Description: ORDER Denying 17 Plaintiff's Motion for Summary Judgment and Granting 18 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)
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Hill v. Commissioner of Social Security Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 19, 2018 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 SARAH LYNN HILL, No. 2:17-cv-00071-MKD 10 COMMISSIONER OF SOCIAL ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 SECURITY, ECF Nos. 17, 18 Plaintiff, 8 vs. 9 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 17, 18. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s Motion (ECF No. 17) and grants Defendant’s Motion (ECF No. 18 18). 19 20 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 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 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 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. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 ORDER - 2 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that he is not only unable to do his previous 15 work[,] but cannot, considering his age, education, and work experience, engage in 16 any other kind of substantial gainful work which exists in the national economy.” 17 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner ORDER - 3 1 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 13 §§ 404.1520(c); 416.920(c). 14 At step three, the Commissioner compares the claimant’s impairment to 15 severe impairments recognized by the Commissioner to be so severe as to preclude 16 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 17 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 18 severe than one of the enumerated impairments, the Commissioner must find the 19 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 20 ORDER - 4 If the severity of the claimant’s impairment does not meet or exceed the 1 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 6 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 7 analysis. At step four, the Commissioner considers whether, in view of the claimant’s 8 9 RFC, the claimant is capable of performing work that he or she has performed in 10 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 11 If the claimant is capable of performing past relevant work, the Commissioner 12 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 13 If the claimant is incapable of performing such work, the analysis proceeds to step 14 five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 18 the Commissioner must also consider vocational factors such as the claimant’s age, 19 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 20 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the ORDER - 5 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 3 work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 8 capable of performing other work; and (2) such work “exists in significant 9 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); 10 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 12 CHILDHOOD DISABILITY INSURANCE BENEFITS The Social Security Act provides disabled child’s insurance benefits based 13 on the earnings record of an insured person who is entitled to old-age or disability 14 benefits or has died. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a). The same 15 definition of “disability” and five-step sequential evaluation outlined above 16 governs eligibility for disabled child’s insurance benefits. “seems to be able to relay words appropriately and meaningfully 12 with people outside the home and as well as her friends.” Tr. 54. Plaintiff 13 contends the conflict with Plaintiff’s mother is symptomatic of mental illness, not 14 divergent to it. ECF No. 17 at 13. There is substantial evidence supporting the 15 reasonably drawn inference that Plaintiff’s psychological symptoms were not 16 solely the result of an impairing psychiatric condition, but rather exacerbated by 17 the effects of significant personality conflicts and instability in the home. 18 2. Inconsistent Medical Evidence 19 Next, the ALJ concluded there was “nothing in the record that supports a 20 finding that the claimant would be unable to perform simple, routine, repetitive ORDER - 17 1 tasks with occasional contact with others.” Tr. 24. While subjective symptom 2 testimony cannot be rejected solely because it is not fully corroborated by 3 objective medical evidence, medical evidence is still a relevant factor in 4 determining severity of symptoms and their disabling effects. Rollins v. 5 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ specifically cited medical 6 treatment records from June 2013 through June 2015 where Plaintiff was observed 7 to have unremarkable, stable, or mild findings on mental health status 8 examinations. Tr. 24-25. Plaintiff concedes the records show a “calmer period” in 9 the treatment record where “Ms. Hill is doing well.” ECF No. 17 at 14. Yet 10 Plaintiff contends (without citation to any specific record evidence) that the ALJ 11 failed to consider the “intensive therapy sessions, repeated hospitalizations, and 12 doctor’s evaluations” that support her credibility. ECF No. 17 at 15. Regardless of 13 evidence from an earlier period of time that could be interpreted more favorably to 14 Plaintiff, the periods of stability cited by the ALJ, which occurred during the 15 alleged period of disability, establish inconsistencies between plaintiff’s 16 complaints and the objective medical evidence. Such inconsistencies are clear and 17 convincing reasons to discount plaintiff’s credibility. See Morgan v. Comm’r of 18 Soc. Sec. Admin., 169 F.3d 595, 599–600 (9th Cir.1999). 19 20 ORDER - 18 1 3. Conservative Treatment 2 Despite history of having been prescribed multiple medications, see, e.g., Tr. 3 620-623 (prescribing Busapar, Zyprexa, and Tegretol), and having noted benefit 4 from medication, see, e.g., Tr. 677, 753, the ALJ also noted that in late 2014 into 5 2015 Plaintiff was not taking psychotropic medications. Tr. 25 (citing Tr. 803, 6 806, 810). A conservative course of treatment may undermine assertions of 7 disabling symptoms. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 8 2008); Johnson v. Shalala, 60 F.3d 1428, 1434 (conservative treatment can suggest 9 a lower level of functional limitation, justifying adverse credibility determination). 10 It was reasonable for the ALJ to consider conservative treatment measures as a 11 reason to discount Plaintiff’s testimony that her mental impairments were so severe 12 as to be completely disabling. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 13 2007); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“[W]here 14 evidence is susceptible to more than one rational interpretation, it is the 15 [Commissioner’s] conclusion that must be upheld.”). This was a clear and 16 convincing reason to find Plaintiff’s symptom complaints less than credible. 17 4. Gaps in Treatment 18 Next, the ALJ found Plaintiff’s symptom complaints less than credible 19 because there were “significant gaps in the claimant’s history of treatment.” Tr. 20 24. The medical treatment a Plaintiff seeks to relieve her symptoms is a relevant ORDER - 19 1 factor in evaluating the intensity and persistence of symptoms. 20 C.F.R. §§ 2 416.929(c)(3)(iv), (v). Unexplained, or inadequately explained, failure to seek 3 treatment or follow a prescribed course of treatment may be the basis for an 4 adverse credibility finding unless there is a showing of a good reason for the 5 failure. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Where the evidence 6 suggests lack of mental health treatment is part of a claimant’s mental health 7 condition, it may be inappropriate to consider a claimant’s lack of mental health 8 treatment as evidence of a lack of credibility. See Nguyen v. Chater, 100 F.3d 9 1462, 1465 (9th Cir. 1996). However, when there is no evidence suggesting a 10 failure to seek treatment is attributable to a mental impairment rather than personal 11 preference, it is reasonable for the ALJ to conclude that the level or frequency of 12 treatment is inconsistent with the alleged severity of complaints. Molina, 674 F.3d 13 at 1113-14. 14 As the ALJ noted at the time of the initial administrative hearing, Plaintiff 15 had not been in counseling since November 2013, Tr. 49-50, and in January 2014, 16 was discharged due to failure to follow through with attending appointments. 17 Tr.25. Plaintiff later attended four sessions in the summer of 2014, but was again 18 discharged. Tr. 25. Plaintiff contends these gaps are not “significant” and started 19 after Plaintiff moved away from home and “no longer had an authority figure 20 forcing her to treat her mental illness.” ECF No. 17 at 14. At the hearing, the ALJ ORDER - 20 1 inquired at the hearing into the gaps in treatment. Plaintiff testified that “I did a lot 2 better when I was in counseling and doing the pills which is why I’m trying to get 3 back into a counseling center….” Tr. 64. She explained she did not want to seek 4 counseling at the Chas Clinic because she could only see counselors there once a 5 week, and she preferred appointments twice a week. Tr. 65. As Plaintiff’s lack of 6 consistent counseling since November 2013 appears based upon personal 7 preference and is inadequately explained, it was a relevant consideration bearing 8 on Plaintiff’s credibility. See Orn, 495 F.3d at 638 (9th Cir. 2007). Overall, the ALJ provided specific, clear, and convincing reasons for 9 10 rejecting Plaintiff’s symptom claims, including pain. The ALJ made extensive 11 credibility findings and identified multiple valid reasons supported by the record 12 for discounting Plaintiff’s statements regarding her subjective symptoms. 13 Moreover, “where evidence is susceptible to more than one rational interpretation, 14 it is the [Commissioner’s] conclusion that must be upheld.” Burch, 400 F.3d at 15 679. 16 17 C. Medical Opinion Evidence Plaintiff contends the ALJ improperly weighed the opinions of examining 18 doctor John Arnold, Ph.D., and nonexamining doctors Donna Veraldi, Ph.D., Ellen 19 Rozenfeld, Ed.M., Psy.D., Jerry Gardner, Ph.D., and John Robinson, Ph.D. ECF 20 ORDER - 21 1 No. 17 at 15-19. 2 There are three types of physicians: “(1) those who treat the claimant 3 (treating physicians); (2) those who examine but do not treat the claimant 4 (examining physicians); and (3) those who neither examine nor treat the claimant 5 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 6 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 7 Generally, a treating physician’s opinion carries more weight than an examining 8 physician’s, and an examining physician’s opinion carries more weight than a 9 reviewing physician’s. Id. at 1202. If a treating or examining physician’s opinion 10 is uncontradicted, the ALJ may reject it only by offering “clear and convincing 11 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 12 1211, 1216 (9th Cir. 2005). “If a treating or examining doctor’s opinion is 13 contradicted by another doctor’s opinion, an ALJ may only reject it by providing 14 specific and legitimate reasons that are supported by substantial evidence.” 15 Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830–31). 16 1. John Arnold, Ph.D. 17 Dr. Arnold prepared a psychological/psychiatric evaluation on November 18 20, 2014. Tr. 772-76. Dr. Arnold opined that Plaintiff was markedly limited in the 19 ability to: (1) perform activities within a schedule, maintain regular attendance, and 20 be punctual within customary tolerances without special supervision; (2) adapt to ORDER - 22 1 changes in a routine work setting; (3) communicate and perform effectively in a 2 work setting; and (4) complete a normal work day and work week without 3 interruptions from psychologically based symptoms. Tr. 774. He found a number 4 of other moderate limitations. Id. “Marked” was defined on the form as “a very 5 significant limitation on the ability to perform one or more basic work activity.” 6 Id. 7 The ALJ accorded Dr. Arnold’s opinion little weight. Tr. 26. As Dr. 8 Arnold’s opinion was contradicted by the opinions of Drs. Veraldi, Rozenfeld, 9 Gardner, and Robinson, the ALJ was required to provide specific and legitimate 10 reasons for rejecting the opinion. Bayliss, 427 F.3d at 1216. 11 12 a. Internal inconsistency The ALJ discounted Dr. Arnold’s opinion because it was internally 13 inconsistent. An ALJ may reject opinions that are internally inconsistent. Nguyen, 14 100 F.3d at 1464. An ALJ is not obliged to credit medical opinions that are 15 unsupported by the medical source’s own data and/or contradicted by the opinions 16 of other examining medical sources. Tommasetti, 533 F.3d at 1041. Here, the ALJ 17 found that the assessed marked limitations were inconsistent with Dr. Arnold’s 18 clinical finding set forth on the same form of “mild” depression and anxiety, 19 “which she stated were improving.” Tr. 26. Plaintiff does not address the 20 inconsistency and instead disputes the characterization of the impairments as ORDER - 23 1 “mild,” which was Dr. Arnold’s finding, not the ALJ’s characterization. ECF No. 2 17 at 16-17; Tr. 773. The Court concludes the internal inconsistency in Dr. 3 Arnold’s assessment was a specific and legitimate reason to discount the opinion. 4 5 b. Inconsistency with the medical record as a whole Additionally, the ALJ concluded Dr. Arnold’s opinion was inconsistent with 6 “treatment notes that generally show the claimant fully alert and oriented with no 7 deficits in attention, concentration, or memory.” Tr. 26. Relevant factors to 8 evaluating any medical opinion include the amount of relevant evidence that 9 supports the opinion, the quality of the explanation provided in the opinion, and the 10 consistency of the medical opinion with the record as a whole. Lingenfelter v. 11 Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. An ALJ may 12 discredit medical opinions that are conclusory, brief, and unsupported by the 13 record as a whole. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 14 Cir. 2004). The ALJ described a number of treatment records in detail in the 15 discussion of the “paragraph B” criteria and the RFC. Tr. 22 (citing Tr. 714-15, 16 753, 767, 876); Tr. 24-25. Among a number of treatment notes the ALJ set forth, 17 one was from June 2013, which stated “symptoms have stabilized,” “patient 18 reports it is not difficult at all to meet home, work, or social obligations,” and 19 “patient is not anxious, has normal attention span and concentration, does not have 20 pressured speech and does not have suicidal ideation.” Tr. 618-19; Tr. 24. The ORDER - 24 1 ALJ also discussed the October 2013 mental status examination note, which 2 indicated Plaintiff had a normal thought process, good fund of knowledge, and 3 normal memory, and it was recommended to “simplify medications” as “necessity 4 for all of these medications in unclear.” Tr. 716; Tr. 22, 25. 5 Plaintiff contends “Ms. Hill’s treatment records do not give this impression.” 6 ECF No. 17 at 17. Plaintiff contends the record evidence of behavior in 7 uncontrolled settings, including educational records, low GAF scores, and 8 statements of Plaintiff’s family give numerous examples of Plaintiff’s difficulty in 9 concentration, focus, taking direction, and completing tasks. ECF No. 17 at 17-18. 10 While Plaintiff disagrees with the ALJ’s consideration of the evidence, if more 11 than one interpretation of the evidence is plausible, the Court must defer to that 12 interpretation. The record reflects the ALJ did take into consideration Plaintiff’s 13 attention and concentration problems, according great weight to Dr. Veraldi who 14 opined Plaintiff would be limited to simple, routine, and repetitive tasks taking into 15 consideration the records cited by Plaintiff. Tr. 87. Though the record supports 16 the fact Plaintiff struggled both at home and in the public school system prior to 17 her graduation, it also reflects Plaintiff’s success while attending school in the 18 eighth grade at the Tamarack Center for nine months. While there, in the “very19 structured, self-contained classroom” with a low student to teacher ratio, Plaintiff 20 did “awesome,” was “cooperative, respectful, and has a good attitude,” and was ORDER - 25 1 “able to work to her ability level and complete assignments regularly.” Tr. 290. 2 Plaintiff’s argument does not warrant a reversal or remand of the ALJ’s decision 3 because it amounts to no more than a dispute about the ALJ’s interpretation of the 4 evidence, and “[w]here evidence is susceptible to more than one rational 5 interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 6 400 F.3d 676, 679 (9th Cir. 2005). 7 2. Nonexamining Opinions 8 Plaintiff generally contends that the ALJ erred in weighing the opinions of 9 non-examining physicians Donna Veraldi, Ph.D., Ellen Rozenfeld, Ed.M., Psy.D., 10 Jerry Gardner, Ph.D. and John Robinson, Ph.D. ECF No. 17 at 18 (including 11 contention as part of discussion of Dr. Arnold). Drs. Rozenfeld and Veraldi 12 testified as the designated psychological experts at the administrative hearings. 13 Drs. Gardner and Robinson were state agency reviewing physicians. All four 14 consistently opined Plaintiff was capable of simple, routine, tasks with limited 15 interaction with the public. Tr. 22-23. 16 Plaintiff contends crediting these opinions was error because “[t]he ALJ fails 17 to point out what part of the record was viewed that made the reviewing doctors’ 18 opinions more valuable,” and because “[t]here is no basis for the doctors’ opinions 19 that [Plaintiff] could carry out routine tasks and tolerate brief contact with the 20 public and coworkers on a sustained basis.” ECF No. 17 at 18. While Plaintiff ORDER - 26 1 may not agree with the ALJ’s interpretation, it is sufficient that the ALJ’s 2 interpretation is rational and supported by substantial evidence. The overall 3 longitudinal record paints a picture of a young individual whose anxiety and 4 depression were exacerbated by significant situational stressors in her home life 5 starting at an early age; she received benefit from treatment through medication 6 and counseling to help cope with and reduce situational stressors; and during the 7 relevant period demonstrated only moderate effects on concentration, thought 8 processes, and affect. Substantial evidence therefore supports the ALJ’s 9 incorporation of the non-examining physicians’ limitation to simple, routine, 10 repetitive tasks with limited contact with the public and coworkers. 11 12 D. Lay Testimony Plaintiff contends the ALJ did not properly consider the testimony of 13 Plaintiff’s mother, Elizabeth Hill. ECF No. 17 at 15. 14 An ALJ must consider the testimony of lay witnesses in determining 15 whether a claimant is disabled. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 16 1050, 1053 (9th Cir. 2006). Lay witness testimony regarding a claimant’s 17 symptoms or how an impairment affects ability to work is competent evidence and 18 must be considered by the ALJ. If lay testimony is rejected, the ALJ must provide 19 reasons that are germane to each witness. Nguyen, 100 F.3d at 1467. 20 ORDER - 27 1 The ALJ considered the Third Party Function Report and testimony of 2 Plaintiff’s mother that described Plaintiff as nervous, irritable, angry, anxious, 3 worried around more than two or three people, and experiencing crying spells. Tr. 4 101. The ALJ determined that: 5 6 7 8 9 10 The undersigned gives little weight to Ms. Hill’s statements, due to their inconsistency with the objective medical evidence and medical opinions of record. Additionally, this testimony that the claimant is unable to work is internally inconsistent with her sending the claimant out to look for work. Furthermore, Ms. Hill does not have the medical training necessary to make exacting observations as to dates, frequencies, types, and degrees of medical signs and symptoms or the frequency or intensity of unusual moods or mannerisms. More importantly, by virtue of her relationship with the claimant the undersigned cannot consider Ms. Hill to be a disinterested third party witness whose statements would not tend to be colored by affection for the claimant and a natural tendency to agree with the symptoms and limitations the claimant alleges. 11 Tr. 26-27. 12 Here, the ALJ erred in discounting Ms. Hill’s statements in part because of 13 her relationship to Plaintiff. Smolen, 80 F.3d at 1289. However the error is 14 harmless because the ALJ gave other “germane” reasons sufficient for discounting 15 Ms. Hill’s opinion including the objective evidence and Plaintiff’s activities in 16 searching for work. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 17 (9th Cir. 2009) (ALJ’s improper rejection of lay testimony of witness because she 18 was an interested party who never saw claimant at work was harmless error 19 because there were other germane reasons for rejecting her testimony); see also 20 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (noting that inconsistency ORDER - 28 1 with medical evidence is a germane reason for discounting lay witness testimony); 2 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1163–64 (9th Cir.2008) 3 (ALJ’s specific findings related to Plaintiff’s ability to perform vocational 4 functions to find testimony incredible demonstrates the ALJ did not do so 5 arbitrarily). 6 7 E. Remaining Contentions Plaintiff also challenges the ALJ’s determinations of step three, the RFC, 8 and step five. However, Plaintiff’s arguments are based entirely on the assumption 9 that the ALJ erred in considering the medical evidence, Plaintiff’s symptom 10 claims, and the lay witness testimony. As discussed in detail above, the ALJ’s 11 evaluation of medical evidence and the ALJ’s adverse credibility findings, were 12 legally sufficient and supported by substantial evidence. Thus, the ALJ did not err 13 in assessing step three, the RFC, or step five. 14 15 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 16 substantial evidence and free of harmful legal error. 17 IT IS ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment (ECF No. 17) is DENIED. 19 2. Defendant’s Motion for Summary Judgment (ECF No. 18) is 20 GRANTED. ORDER - 29 1 The District Court Executive is directed to file this Order, enter JUDGMENT 2 FOR THE DEFENDANT, provide copies to counsel, and CLOSE THE FILE. 3 DATED March 19, 2018. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 30
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