Yancey v. Commissioner of Social Security, No. 2:2017cv00165 - Document 14 (E.D. Wash. 2018)

Court Description: ORDER GRANTING 12 Defendant's Motion for Summary Judgment; denying 11 Plaintiff's Motion for Summary Judgment. File closed. Signed by Senior Judge Robert H. Whaley. (SK, Case Administrator)

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Yancey v. Commissioner of Social Security Doc. 14 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 May 30, 2018 5 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JAMES WAYNE YANCEY, 8 Plaintiff, 9 v. 10 11 12 13 14 15 16 17 18 19 COMMISSIONER OF SOCIAL SECURITY, No. 2:17-CV-00165-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 11, 12. Plaintiff James Wayne Yancey brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied his applications for Disability Insurance Benefits and Supplemental Security Income under Titles II & 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 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Mr. 2 Yancey’s Motion for Summary Judgment. 3 4 I. Jurisdiction Mr. Yancey filed his applications for supplemental security income and 5 disability insurance benefits on November 3, 2013. AR 209-16. His alleged onset 6 date is April 26, 2013. AR 209. His applications were initially denied on February 7 27, 2014, AR 158-62, and on reconsideration on May 5, 2014, AR 168-73. 8 Administrative Law Judge (“ALJ”) Mark Kim held a hearing on December 9 18, 2015. AR 39-83. On January 13, 2016, ALJ Kim issued a decision finding Mr. 10 Yancey ineligible for disability benefits. AR 21-33. The Appeals Council denied 11 Mr. Yancey’s request for review on March 20, 2017, AR 1-5, making the ALJ’s 12 ruling the “final decision” of the Commissioner. 13 Mr. Yancey timely filed the present action challenging the denial of benefits 14 on May 16, 2017. ECF No. 3. Accordingly, his claims are properly before this 15 Court pursuant to 42 U.S.C. § 405(g). 16 II. 17 The Social Security Act defines disability as the “inability to engage in any Sequential Evaluation Process 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 2 under a disability only if the claimant’s impairments are of such severity that the 3 claimant is not only unable to do his previous work, but cannot, considering 4 claimant's age, education, and work experience, engage in any other substantial 5 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 6 1382c(a)(3)(B). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled within the meaning of the Social 9 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 10 11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Step one inquires whether the claimant is presently engaged in “substantial 12 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 13 activity is defined as significant physical or mental activities done or usually done 14 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 15 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 16 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 17 Step two asks whether the claimant has a severe impairment, or combination 18 of impairments, that significantly limits the claimant’s physical or mental ability to 19 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 20 impairment is one that has lasted or is expected to last for at least twelve months, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 2 416.908-09. If the claimant does not have a severe impairment, or combination of 3 impairments, the disability claim is denied, and no further evaluative steps are 4 required. Otherwise, the evaluation proceeds to the third step. 5 Step three involves a determination of whether any of the claimant’s severe 6 impairments “meets or equals” one of the listed impairments acknowledged by the 7 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 8 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 9 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 10 equals one of the listed impairments, the claimant is per se disabled and qualifies 11 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 12 the fourth step. 13 Step four examines whether the claimant’s residual functional capacity 14 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 15 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 16 is not entitled to disability benefits and the inquiry ends. Id. 17 Step five shifts the burden to the Commissioner to prove that the claimant is 18 able to perform other work in the national economy, taking into account the 19 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 20 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 burden, the Commissioner must establish that (1) the claimant is capable of 2 performing other work; and (2) such work exists in “significant numbers in the 3 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 4 676 F.3d 1203, 1206 (9th Cir. 2012). 5 6 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 7 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 8 Commissioner's decision will be disturbed “only if it is not supported by 9 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 10 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 11 a mere scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 13 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 15 whether the Commissioner’s findings are supported by substantial evidence, “a 16 reviewing court must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 18 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 19 F.2d 498, 501 (9th Cir. 1989)). 20 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 IV. 15 Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 16 and accordingly, are only briefly summarized here. Mr. Yancey was 39 years old at 17 the time of his hearing. AR 26. He has completed high school and two years of 18 college. Id. He has previously worked a store laborer, sales clerk, office helper, 19 host, and telephone solicitor. AR 32. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 V. The ALJ’s Findings 2 The ALJ determined that Mr. Yancey was not under a disability within the 3 meaning of the Act from April 26, 2013, through the date of the decision. AR 21- 4 33. 5 At step one, the ALJ found that Mr. Yancey had not engaged in substantial 6 gainful activity since April 26, 2013, his alleged onset date (citing 20 C.F.R. §§ 7 404.1571 et seq. and 416.971 et seq.). AR 23. 8 9 At step two, the ALJ found Mr. Yancey had the following severe impairments: affective disorder, anxiety disorder, Asperger’s syndrome, scoliosis 10 and kyphosis, degenerative disc disease and spondylosis of the thoracic and 11 cervical spine, and obstructive sleep apnea (citing 20 C.F.R. §§ 404.1520(c) and 12 416.920(c)). AR 23. 13 At step three, the ALJ found that Mr. Yancey did not have an impairment or 14 combination of impairments that meets or medically equals the severity of one of 15 the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR 24-25. 16 At step four, the ALJ found Mr. Yancey had the following residual 17 functional capacity: He can perform light work as defined in C.F.R. 404.1567(b) 18 and 416.967(b) except that he can lift/carry up to 20 pounds occasionally and 10 19 pounds frequently; stand/walk for four hours in an eight-hour workday and sit up 20 to four hours in an eight-hour workday, with an opportunity to alternate ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 sitting/standing positions every one hour while staying on task; he cannot climb 2 ladders, ropes or scaffolds; he cannot crouch or crawl; he can occasionally climb 3 ramps and stairs; he can occasionally stoop and kneel; he must avoid all exposure 4 to excessive vibration and hazards such as moving machinery and unprotected 5 heights; he is limited to simple, routine tasks; he cannot have production rate or 6 pace work; he is limited to no interaction with the public beyond superficial 7 contact; and he is limited to occasional interaction with coworkers, with no tandem 8 tasks. AR 25. 9 The ALJ determined that Mr. Yancey is capable of performing past relevant 10 work as an officer helper. AR 32. The ALJ found he was capable of performing 11 this work as it is actually and generally performed. Id. 12 Because the ALJ found Mr. Yancey capable of performing some of his past 13 relevant work at step four, the ALJ did not perform a step five analysis to 14 determine whether in light of his age, education, work experience, and residual 15 functional capacity, there are jobs that exist in significant numbers in the national 16 economy that Mr. Yancey could perform. 17 18 19 VI. Issues for Review Mr. Yancey argues that the Commissioner’s decision is not free of legal error and not supported by substantial evidence. Specifically, he argues the ALJ 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 erred by improperly discrediting Mr. Yancey’s symptom claims and failing to 2 properly consider and weigh the opinion evidence. ECF No. 11 at 10. 3 VII. Discussion 4 A. The ALJ did not improperly discredit Mr. Yancey’s symptom claims. 5 An ALJ engages in a two-step analysis to determine whether a claimant’s 6 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 7 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 8 medical evidence of an underlying impairment or impairments that could 9 reasonably be expected to produce some degree of the symptoms alleged. Id. 10 Second, if the claimant meets this threshold, and there is no affirmative evidence 11 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 12 severity of [his] symptoms only by offering specific, clear, and convincing reasons 13 for doing so.” Id. 14 In weighing a claimant's credibility, the ALJ may consider many factors, 15 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 16 reputation for lying, prior inconsistent statements concerning the symptoms, and 17 other testimony by the claimant that appears less than candid; (2) unexplained or 18 inadequately explained failure to seek treatment or to follow a prescribed course of 19 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 20 1284 (9th Cir. 1996). Here, the ALJ found that the medically determinable ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 impairments could reasonably be expected to produce some of the symptoms Mr. 2 Yancey alleges; however, the ALJ determined that Mr. Yancey’s statements 3 regarding intensity, persistence, and limiting effects of the symptoms were not 4 entirely credible. AR 26-29. The ALJ provided multiple reasons for discrediting 5 his subjective complaint testimony. AR Id. 6 7 a. Physical impairments The ALJ found that Mr. Yancey’s allegations regarding his physical 8 impairments are not supported by the record. AR 26-27. For example, he noted that 9 his scoliosis and kyphosis improved with conservative therapy. AR 26, 578-92.1 10 Allegations of disabling pain may be rejected when they are managed with 11 conservative treatment. Tommasetti, 533 F.3d at 1039-1040. Likewise, Mr. Yancey 12 has acknowledged improvement from conservative treatment, such as physical 13 therapy and medication. AR 438, 441, 628. 14 Additionally, objective findings do not support his allegations. The ALJ 15 cited to January 2014 x-rays that revealed mild findings. AR 424-26. Likewise, 16 physical examinations have resulted in unremarkable findings, such as normal gait 17 and station, strength in extremities, and sensation and reflexes. AR 412, 447, 654. 18 19 20 1 The Court notes that the ALJ inadvertently cited to Exhibit 15F, as opposed to Exhibit 14F, that does detail conservative treatment of Mr. Yancey’s scoliosis and kyphosis. Any error is harmless, as the record does support the ALJ’s findings. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 The record also supports the ALJ’s findings that Mr. Yancey’s sleep apnea 2 was not disabling because it improved with treatment. If an impairment can be 3 controlled by treatment or medication, it cannot be considered disabling. Brown v. 4 Barnhart, 390 F.3d 535, 540 (9th Cir. 2004). Following a septoplasty in May 2014, 5 he demonstrated improvement with the condition. AR 649. By June 18, 2014, Mr. 6 Yancey’s breathing was “much better,” his pain was resolved, and his doctor stated 7 that he was “doing well.” AR 650. 8 b. Mental impairments 9 As with his physical impairments, the ALJ found that the record did not 10 support a finding that Mr. Yancey’s mental impairments were disabling. AR 27-29. 11 The ALJ found that despite his Asperger’s syndrome and objective findings that 12 support that diagnosis, Mr. Yancey was able to maintain employment in a variety 13 of jobs, including those that require significant interaction with the public, such as 14 customer service and telemarketing. AR 28. Mr. Yancey also demonstrated a 15 subjective belief that he is capable of working by his continued efforts to find a 16 job, even cutting a doctor’s appointment short to attend a job interview. AR 628. 17 This is also supported by the findings of Dr. Richard G. Weiler, PhD, who noted 18 that Mr. Yancey had motivation to participate in training programs in order to 19 obtain full-time employment. AR 357-58. The ALJ interpreted these facts to 20 demonstrate that Mr. Yancey is not disabled. When the ALJ presents a reasonable ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 interpretation, such as this, and it is supported by the evidence, it is not the role of 2 the courts to second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 3 2001). 4 The objective findings also supports the ALJ’s conclusion. Mr. Yancye’s 5 mental status examinations findings have generally been unremarkable. AR 376, 6 382, 422, 443, 447, 610, 625, 633, 638. The record also supports the ALJ’s 7 findings that Mr. Yancey’s anxiety and depression are tied to situational stressors, 8 such as unemployment, trouble securing housing, and family stress. AR 381-82, 9 402, 602, 607. 10 Additionally, the record shows that Mr. Yancey’s mental impairments are 11 managed by medication. AR 381, 602, 607, 628. If an impairment can be 12 controlled by treatment or medication, it cannot be considered disabling. Brown, 13 390 F.3d at 540. 14 Finally, the ALJ noted numerous activities of daily living that are 15 inconsistent with disabling mental impairments. AR 29. These include cooking, 16 household chores, watching television, listening to music, writing, and managing 17 finances. Id. In particular, Mr. Yancey stated on his function report from 18 November 2013 that he could maintain attention for “several hours” when he was 19 interested, contrary to allegations that he is impaired in his ability to maintain 20 concentration and focus. AR 254. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 In sum, the ALJ provided numerous reasons for the findings related to Mr. 2 Yancey’s credibility that are supported by the record. The Court does not find the 3 ALJ erred when assessing Mr. Yancey’s credibility because Mr. Yancey’s 4 allegations of complete disability are inconsistent with the record and medical 5 evidence, and Mr. Yancey’s activities reflect a level of functioning that is 6 inconsistent with his claims of total disability. 7 8 9 B. The ALJ properly weighed the medical opinion evidence. a. Legal standard The Ninth Circuit has distinguished between three classes of medical 10 providers in defining the weight to be given to their opinions: (1) treating 11 providers, those who actually treat the claimant; (2) examining providers, those 12 who examine but do not treat the claimant; and (3) non-examining providers, those 13 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 14 Cir. 1996) (as amended). 15 A treating provider’s opinion is given the most weight, followed by an 16 examining provider, and finally a non-examining provider. Id. at 830-31. In the 17 absence of a contrary opinion, a treating or examining provider’s opinion may not 18 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 19 treating or examining provider’s opinion is contradicted, it may only be discounted 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 for “specific and legitimate reasons that are supported by substantial evidence in 2 the record.” Id. at 830-31. 3 The ALJ may meet the specific and legitimate standard by “setting out a 4 detailed and thorough summary of the facts and conflicting clinical evidence, 5 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 6 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 7 provider’s opinion on a psychological impairment, the ALJ must offer more than 8 his or her own conclusions and explain why he or she, as opposed to the provider, 9 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 10 b. Dr. Debra Brown, PhD and Dr. John Arnold, PhD 11 Dr. Brown performed a Psychological/Psychiatric Evaluation on Mr. Yancey 12 on January 21, 2014. AR 393-98. Dr. Brown found moderate limitations in six 13 areas of basic work activity, marked limitations in six additional areas of basic 14 work activity, and severe limitations in the ability to adapt to changes in a routine 15 work setting. AR 395. The ALJ assigned little weight to Dr. Brown’s opinion for 16 numerous reasons. AR 30. 17 Dr. Arnold performed a Psychological/Psychiatric Evaluation on September 18 17, 2015. AR 596-600. Dr. Arnold found moderate limitations in six areas of basic 19 work activity, marked limitations in three areas, and severe limitations in four 20 areas, including the ability to adapt to changes in a routine work setting. AR 598. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 He rated the overall severity rating of Mr. Yancey’s mental impairments to be 2 severe. Id. The ALJ gave little weight to Dr. Arnold’s opinion, and he gave the 3 same reasons for rejecting both Dr. Brown and Dr. Arnold’s opinions. AR 30-31. 4 The ALJ first noted that the evaluations are less reliable in the Social 5 Security context because the state Department of Social and Health Services 6 (“DSHS”), the body for which Dr. Brown and Dr. Arnold performed their 7 evaluations, uses different regulations to determine benefit eligibility and relies 8 heavily on self-reported symptoms. AR 30, 31. An ALJ may discount a treating 9 provider’s opinion if it is based largely on the claimant’s self-reports and not on 10 clinical evidence, and the ALJ finds the claimant not credible. Ghanim v. Colvin, 11 763 F.3d 1154, 1162 (9th Cir. 2014). Dr. Brown notes in her report that she did not 12 review any records and her recorded observations were mostly normal (AR 393, 13 396-97), which supports the ALJ’s determination that the report is largely based on 14 self-reporting. Dr. Arnold indicated that he reviewed a “clinical interview and 15 mental status exam,” but he does not indicate to which he refers. AR 596. There is 16 no indication he reviewed the record as a whole or that he performed any specific 17 objective testing. AR 596-600. 18 The ALJ also found that the opinions were less reliable because they were in 19 check-box format with few objective findings to support them. AR 30, 31. This is 20 permissible. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) (check- ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 box formats are entitled to less weight when unsupported and not supported by 2 experiences and records); see also Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 3 1996). As neither doctor reviewed records, the findings are limited to the single 4 visit and, as stated prior, based on significant acceptance of self-reported 5 symptoms. 6 Finally and most importantly, the ALJ rejected the opinions because they are 7 not supported by the record. AR 30, 31. An ALJ may reject a doctor’s opinion 8 when it is inconsistent with other evidence in the record. See Morgan v. Comm’r of 9 the Soc. Sec. Admin., 169 F.3d 595, 602-603 (9th Cir. 1999). Contrary to the 10 numerous limitations opined, the record reflects benign mental status findings. AR 11 376, 382, 422, 443, 447, 610, 625, 633, 638. Additionally, neither doctor appears 12 aware that the record indicates the positive impact of medication on Mr. Yancey’s 13 mental impairments. AR 381, 602, 607, 628. 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 Dr. Brown and Dr. Arnold’s opinions, the ALJ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 supported the determination with specific and legitimate reasons supported by 2 substantial evidence in the record. Thus, the Court finds the ALJ did not err in his 3 consideration of these opinions. 4 5 c. Dr. Nathan Henry, PsyD Dr. Henry performed a Psychological Diagnostic Evaluation on Mr. Yancey 6 on January 13, 2014. AR 386-91. Dr. Henry noted that Mr. Yancey had “lifelong 7 deficits in social relationships/communication, restricted/exaggerated interests, and 8 difficulty with changes in routine.” AR 390. He opined that these deficient have 9 long-term impairment and that his prognosis “appears guarded.” AR 391. He also 10 11 found that Mr. Yancey did not appear to have cognitive impairment. Id. The ALJ gave some weight to this opinion, but gave more weight to the 12 opinion of impartial psychological expert Dr. Marian Martin, PhD, who testified at 13 the hearing. AR 30. The ALJ gave Dr. Martin’s opinion more weight because she 14 had the opportunity to review the full record and because her opinion was more 15 consistent with the objective medical findings and Mr. Yancey’s demonstrated 16 functional abilities. Id. 17 The ALJ is required to consider all medical opinion evidence, and the ALJ is 18 also assigned the duty to be the “final arbitrer” in resolving medical evidence 19 ambiguities. Tommasetti, 533 F.3d at 1041. Here, the ALJ evaluated both opinions 20 and determined that Dr. Martin’s was more reliable, and the ALJ then provided ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 specific and legitimate reasons for this finding. Lester, 81 F.3d at 830-31. The 2 Court finds no error. 3 d. Dr. Robert C. Thompson, M.D., and Dr. Marian Martin, PhD 4 Dr. Thompson and Dr. Martin both testified as impartial medical experts at 5 the hearing. AR 39-83. The ALJ afforded their opinions significant weight. AR 29- 6 30. Both doctors reviewed the medical record and have “an understanding of 7 Social Security disability programs and evidentiary requirements.” AR 29. In 8 addition, the ALJ explained that the opinions of both doctors were supported by 9 the record. AR 29-30. In particular, Dr. Thompson’s findings were supported by 10 benign x-rays, physical examination findings, and Mr. Yancey’s statements that he 11 can lift up to 40 pounds. AR 29. Dr. Martin’s findings are supported by benign 12 mental status findings in the record and Mr. Yancey’s reports of improvement of 13 his mental impairments with medication. AR 29-30. The ALJ additionally found 14 both doctors’ opinions consistent with the opinion of the Disability Determination 15 Services (“DDS”) consultant that reviewed the record and rendered an opinion in 16 May 2014. AR 29-30, 141-57. 17 Again, Mr. Yancey takes issue with the weight given to these doctors, but as 18 discussed prior regarding Dr. Henry’s opinion, the ALJ is assigned the duty to be 19 the “final arbitrer” in resolving medical evidence ambiguities. Tommasetti, 533 20 F.3d at 1041. Again, the ALJ determined that these opinions were the most reliable ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 and provided multiple specific and legitimate reasons for this determination. 2 Lester, 81 F.3d at 830-31. The Court finds no error. 3 C. The ALJ did not err in the weighing of the non-medical lay witness 4 opinions. 5 The ALJ gave little weight to the lay witness opinions of Pennie Hartley, a 6 friend of Mr. Yancey’s family; Mark Kast, Mr. Yancey’s friend and former 7 supervisor; and Patricia Oliphant, Mr. Yancey’s grandmother. AR 31- 32. The ALJ 8 gave partial weight to the vocational report of Cindy Wright. Id. Mr. Yancey 9 argues that these were rejected for “insufficient reasons” and are “ancillary errors” 10 to be addressed on remand. ECF No. 11 at 19. Mr. Yancey must do more than 11 simply issue spot; he has the burden of showing prejudicial error. See Molina, 674 12 F.3d at 1110-11. Mr. Yancey has left it to the Court to guess at his specific 13 contentions, the evidence that causes him concern, and how the ALJ erred with 14 regard to this evidence. 2 United States v. Renzi, 651 F.3d 1012, 1030 (9th Cir. 15 2011); Indep. Towers of Washington v. Washington, 350 F.3d 925, 929–30 (9th 16 Cir. 2003). 17 18 Nevertheless, the Court finds that the ALJ did not err with regard to these lay witness opinions. These opinions are classified as “other source.” 20 C.F.R. §§ 19 20 2 In addition, Mr. Yancey is mistaken in his reply brief that the Commissioner conceded the issue by failing to respond, as the Commissioner noted that Mr. Yancey failed to make arguments regarding these other opinions. ECF No. 12 at 18. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 404.1513(d), 416.913(d). An ALJ is required to “consider observations by non- 2 medical sources as to how an impairment affects a claimant's ability to work.” 3 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987). Non-medical testimony 4 can never establish a diagnosis or disability absent corroborating competent 5 medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.1996). An ALJ 6 is obligated to give reasons germane to “other source” testimony before 7 discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). 8 9 Inconsistency with evidence in the medical record is a germane reason to reject other source testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 10 2005). The ALJ described inconsistencies with the record for each opinion. AR 31- 11 32. The ALJ also rejected Mr. Kast’s and Ms. Oliphant’s opinions because they 12 were based on subjective statements and Mr. Yancey was previously found to be 13 not credible. AR 31-32; see supra at pp. 9-13. This is a germane reason for 14 rejecting a lay witness opinion. See Valentine v. Comm’r Soc. Sec. Admin., 574 15 F.3d 685, 694 (9th Cir. 2009) (upholding the ALJ’s rejection of a lay witness for 16 the same reasons the ALJ rejected the claimant’s credibility). 17 D. There are no ancillary errors that warrant remand. 18 Mr. Yancey argues that had his symptom testimony and the medical 19 evidence discussed above been properly considered, a different residual functional 20 capacity and resulting hypothetical to the vocational expert would have been ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 reached. ECF No. 11 at 20. This is merely an attempt to repeat the same arguments 2 discussed above. The Court will uphold the ALJ’s findings when a claimant 3 attempts to restate the argument that the residual functional capacity finding did 4 not account for all limitations and the resulting vocational expert hypothetical was 5 incomplete. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). 6 VIII. Conclusion 7 Having reviewed the record and the ALJ’s findings, the Court finds the 8 ALJ’s decision is supported by substantial evidence and free from legal error. 9 Accordingly, IT IS ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is 12 13 14 15 GRANTED. 3. The District Court Executive is directed to enter judgment in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Executive is directed to enter this 16 Order, forward copies to counsel and close the file. 17 DATED this 30th day of May, 2018. 18 19 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21

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