Macabitas v. Commissioner of Social Security, No. 2:2017cv00291 - Document 20 (E.D. Wash. 2018)

Court Description: ORDER Granting 18 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Macabitas v. Commissioner of Social Security Doc. 20 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 24, 2018 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 JODI M., No. 2:17-CV-00291-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 14, 18. Attorney Dana C. Madsen represents Jodi M. (Plaintiff); Special 19 Assistant United States Attorney Diana Andsager represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 6. After reviewing the administrative record and briefs 22 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 23 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 JURISDICTION 25 Plaintiff filed an application for Supplemental Security Income (SSI) on 26 December 20, 2013, Tr. 80, alleging disability since October 23, 2013, Tr. 156, due 27 to a “broken neck” and a “scalped head exposing brain,” Tr. 181. The application 28 was denied initially and upon reconsideration. Tr. 108-11, 115-17. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Administrative Law Judge (ALJ) Marie Palachuck held a hearing on April 7, 2 2016 and heard testimony from Plaintiff, medical expert Arthur Lorber, M.D., 3 psychological expert Donna Veraldi, Ph.D., and vocational expert Sharon Welber. 4 Tr. 42-79. The ALJ issued an unfavorable decision on May 4, 2016. Tr. 20-33. 5 The Appeals Council denied review on June 22, 2017. Tr. 1-6. The ALJ’s May 4, 6 2016 decision became the final decision of the Commissioner, which is appealable 7 to the district court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). 8 Plaintiff initiated this action for judicial review on August 21, 2017. ECF Nos. 1, 9 4. STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was 45 years old at the date of application. Tr. 156. She reported 15 that she completed three years of college. Tr. 182. She reported that she had never 16 worked, but that her impairments prevented her from working as of October 23, 17 2013. Tr. 181. Plaintiff was involved in a car accident resulting in her reported 18 impairments on October 23, 2013. Tr. 60, 70, 270. 19 20 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 23 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 24 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 25 not supported by substantial evidence or if it is based on legal error. Tackett v. 26 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 27 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 28 another way, substantial evidence is such relevant evidence as a reasonable mind ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 2 389, 401 (1971). If the evidence is susceptible to more than one rational 3 interpretation, the court may not substitute its judgment for that of the ALJ. 4 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 5 findings, or if conflicting evidence supports a finding of either disability or non- 6 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 7 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 8 evidence will be set aside if the proper legal standards were not applied in 9 weighing the evidence and making the decision. Brawner v. Secretary of Health 10 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 11 12 The Commissioner has established a five-step sequential evaluation process 13 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 14 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 15 proof rests upon the claimant to establish a prima facie case of entitlement to 16 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 17 claimant establishes that physical or mental impairments prevent her from 18 engaging in her previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 19 cannot do her past relevant work or has no past relevant work, the ALJ proceeds to 20 step five, and the burden shifts to the Commissioner to show that (1) the claimant 21 can make an adjustment to other work, and (2) specific jobs which the claimant can 22 perform exist in the national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 23 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make an adjustment to 24 other work in the national economy, a finding of “disabled” is made. 20 C.F.R. § 25 416.920(a)(4)(v). 26 27 28 ADMINISTRATIVE DECISION On May 4, 2016, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 2 3 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since December 20, 2013, the application date. Tr. 22. At step two, the ALJ determined Plaintiff had the following severe 4 impairments: status post motor vehicle accident October 2013, which non- 5 displaced fracture at C6 and degloving injury to scalp; depressive disorder; general 6 anxiety disorder; and history of substance abuse. Tr. 22. 7 At step three, the ALJ found Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of one of 9 the listed impairments. Tr. 23. 10 11 12 13 14 15 16 17 18 19 20 21 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined she could perform a range of light work with the following limitations: she can occasionally balance, stoop, kneel, crouch, crawl, climb ramps and stairs, but never climb ladders, ropes or scaffolds; frequently reach overhead bilaterally; avoid concentrated exposure to vibration, hazards of working at unprotected height and around heavy machinery and all exposure to extreme temperatures; she can understand remember and carry out simple routine tasks and instructions and familiar detailed tasks; no interaction with the public and only basic (i.e., brief) superficial interaction with coworkers; she will need additional time (defined as 10% more than the average employee) to adapt to changes in work routine. Tr. 25. The ALJ found Plaintiff had no past relevant work. Tr. 32. At step five, the ALJ determined that, considering Plaintiff’s age, education, 22 work experience and residual functional capacity, and based on the testimony of 23 the vocational expert, there were other jobs that exist in significant numbers in the 24 national economy Plaintiff could perform, including the jobs of cleaner 25 housekeeping, cafeteria attendant, and price marker. Tr. 32-33. The ALJ 26 concluded Plaintiff was not under a disability within the meaning of the Social 27 Security Act at any time from December 20, 2013, through the date of the ALJ’s 28 decision. Tr. 33. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 ISSUES The question presented is whether substantial evidence supports the ALJ’s 2 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends the ALJ erred by (1) failing to properly address 5 Plaintiff’s symptom statements and (2) failing to properly weigh the medical 6 source opinions. DISCUSSION 1 7 8 9 1. Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that her statements concerning the 10 intensity, persistence, and limiting effects of her reported symptoms were not 11 entirely consistent with the medical evidence and other evidence in the record. 12 ECF No. 14 at 9-12. 13 It is generally the province of the ALJ to make determinations regarding the 14 credibility of a claimant’s statements, Andrews, 53 F.3d at 1039, but the ALJ’s 15 findings must be supported by specific cogent reasons, Rashad v. Sullivan, 903 16 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, the 17 ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear and 18 convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 19 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 20 rather the ALJ must identify what testimony is not credible and what evidence 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. The ALJ found Plaintiff’s statements concerning the intensity, persistence, 2 3 and limiting effects of her reported symptoms were not entirely consistent with the 4 medical evidence and other evidence in the record. Tr. 27. Plaintiff identifies 5 three reasons the ALJ provided for finding her statements less than fully credible: 6 (1) they were inconsistent with the medical evidence, (2) they were inconsistent 7 with Plaintiff’s reported activities, and (3) Plaintiff failed to seek treatment 8 consistent with the severity of alleged limitations and symptoms. ECF No. 14 at 9- 9 12. 10 A. Medical Evidence 11 The ALJ’s first reason for finding Plaintiff’s statements less than fully 12 credible, that Plaintiff’s statements were not supported by the medical evidence, 13 meets the specific, clear, and convincing standard. 14 Although it cannot serve as the sole grounds for rejecting a claimant’s 15 credibility, objective medical evidence is a “relevant factor in determining the 16 severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 17 F.3d 853, 857 (9th Cir. 2001). Here, the ALJ addressed Plaintiff’s symptom 18 statements regarding both the physical and mental health impairments and 19 concluded that they were not supported by the objective medical evidence. Tr. 27, 20 29, 31. Plaintiff only argues that this reason alone is insufficient to support an 21 adverse credibility determination and raises specific challenges to the other two 22 reasons she asserts the ALJ provided. ECF No. 14 at 10-11. Since Plaintiff failed 23 to challenge the ALJ’s determination that her symptom statements were not 24 supported by the objective medical evidence, Plaintiff essentially forfeited the 25 argument. See Carmickle v. Comm., Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 26 (9th Cir. 2008) (the Court need not address arguments not specifically addressed in 27 briefing). 28 When addressing Plaintiff reported symptoms from her mental health ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 impairment, the ALJ found that “from a historical perspective, the medical 2 evidence reflects a history of opioid abuse, methadone treatment and indicators 3 during evaluations that suggest over-reporting, impression management and lack of 4 effort during the exam.” Tr. 31. Defendant asserts that these reasons are separate 5 from the finding that Plaintiff’s statements are not supported by the objective 6 medical evidence. ECF No. 18 at 5-6. In response, Plaintiff asserts that the opioid 7 abuse is not supported by substantial evidence and that the lack of consistent effort 8 in testing is not a clear and convincing reason. ECF No. 19 at 4-5. 9 The assertion that opioid abuse is not supported by the record cannot 10 succeed. The record reflects that Plaintiff had a history of opioid dependence and 11 Plaintiff was treated for a potential overdose in 2010. Tr. 261-2, 413, 421, 427. 12 The Ninth Circuit has held that an ALJ may consider a claimant’s failure to 13 reliably report substance use in assessing credibility. Thomas v. Barnhart, 278 14 F.3d 947, 959 (9th Cir. 2002). However, the ALJ failed to actually find that 15 Plaintiff had inaccurately represented her substance abuse, she only found that the 16 record demonstrated a history of substance abuse. Tr. 31. Therefore, this does not 17 raise to the level of specific, clear and convincing. As for the assertion that a failure to give consistent effort in testing is not 18 19 specific, clear and convincing, the Ninth Circuit has found that an ALJ may 20 consider a claimant’s failure to give maximum or consistent effort during 21 evaluations when addressing the reliability of Plaintiff’s statements. Thomas, 278 22 F.3d at 959. Therefore, the ALJ’s finding that Plaintiff gave poor effort in testing 23 is a specific, clear and convincing reason to reject her symptom statements. This 24 reason stands apart from the ALJ’s determination that her statements are not 25 supported by the objective medical evidence. Therefore, the inconsistency 26 between Plaintiff’s statements and the objective medical evidence is not the only 27 reasons for finding Plaintiff’s statements unreliable. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 B. Reported Activities 2 The ALJ’s next reason for finding Plaintiff’s statements less than fully 3 credible, that they were inconsistent with Plaintiff’s reported activities, does not 4 meet the specific, clear and convincing standard. 5 A claimant’s daily activities may support an adverse credibility finding if (1) 6 the claimant’s activities contradict her other testimony, or (2) “the claimant is able 7 to spend a substantial part of [her] day engaged in pursuits involving performance 8 of physical functions that are transferable to a work setting.” Orn v. Astrue, 495 9 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 10 1989)). “The ALJ must make ‘specific findings relating to [the daily] activities’ 11 and their transferability to conclude that a claimant’s daily activities warrant an 12 adverse credibility determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 13 681 (9th Cir. 2005)). A claimant need not be “utterly incapacitated” to be eligible 14 for benefits. Fair, 885 F.2d at 603. 15 The ALJ noted that Plaintiff reported being able to manage her finances, 16 read, craft, prepare meals, laundry, shop, and attend church. Tr. 31. Recently, the 17 Ninth Circuit has warned against ALJs finding that daily activities are inconsistent 18 with testimony because impairments that would preclude work and all the 19 pressures of the workplace environment “will often be consistent with doing more 20 than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th 21 Cir. 2014). The activities cited by the ALJ as proof of more ability are the same 22 activities the Court in Garrison refers to when chastising ALJs for these 23 determinations. Id. (Finding that the ability to talk on the phone, prepare meals, 24 clean, care for a child were not inconsistent with Garrison’s reported limitations.). 25 This is laid out fully in Plaintiff’s Reply, which articulates how the ALJ 26 misrepresented Plaintiff’s reported activities. ECF No. 19 at 3-4 (Plaintiff reported 27 that she struggles to count change, Tr. 172; Plaintiff reported she cannot perform 28 her crafts as often as before, Tr. 207; Plaintiff reported difficulty with dressing, Tr. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 204; Plaintiff reported that she needs help with chores, Tr. 171; Plaintiff reported 2 she goes to church only when she does not have panic attacks, Tr. 173). Therefore, 3 these inconsistencies cited by the ALJ are not supported by substantial evidence 4 and do not satisfy the specific, clear, and convincing standard. 5 C. Lack of Treatment 6 The final reason the ALJ provided for rejecting Plaintiff’s reported 7 symptoms, that they were inconsistent with her lack of treatment, does not meet the 8 specific, clear, and convincing standard. 9 The ALJ concluded that both Plaintiff’s physical and mental symptoms were 10 not supported by Plaintiff’s failure to seek treatment. Tr. 27, 31. The Ninth 11 Circuit has held that unexplained or inadequately explained reasons for failing to 12 seek medical treatment can cast doubt on a claimant’s subjective complaints, Fair, 13 885 F.2d at 603, but warns that “it is a questionable practice to chastise one with a 14 mental impairment for the exercise of poor judgment in seeking rehabilitation,” 15 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). 16 Plaintiff explains that her lack of treatment is related to her lack of 17 insurance. Tr. 44-45. The ALJ found that Plaintiff had insurance following the 18 first evaluation from DSHS in December of 2013 based on the evaluation itself. 19 Tr. 31, 70. However, this is not supported by the record. There is no letter or 20 determination from DSHS stating that medical insurance was provided. Plaintiff 21 testified that her treatment at the chiropractor was covered by her insurance and 22 she stopped attending when her insurance ran out. Tr. 72. She was treated by the 23 chiropractor in 2013 and 2014. Tr. 331-78. These records show that the 24 responsible party was the automobile insurance company. Tr. 351. Additionally, 25 when Plaintiff established care with Rockwood in May of 2014, she reported that 26 the doctor who performed her neck surgery no longer accepted her insurance. Tr. 27 396. In October of 2015, Plaintiff reported to Rockwood Neurology that she had 28 just received insurance. Tr. 420. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 Therefore, Plaintiff’s statements are not necessarily inconsistent. Her 2 statements are consistent with having gone a long period of time without medical 3 insurance while her automobile insurance covered her treatment for her accident 4 related injuries, but not for her other impairments. Therefore, the ALJ’s assertion 5 that Plaintiff’s lack of treatment supported the finding that her statements were 6 unreliable and that she made inconsistent statements regarding insurance is not a 7 specific, clear, and convincing reason. In conclusion, the ALJ provided two specific, clear and convincing reasons 8 9 to support her determination that Plaintiff’s statements were less than fully 10 credible: (1) Plaintiff’s statements were inconsistent with the objective medial 11 evidence and (2) Plaintiff failed to put forth maximum or consistent effort in 12 testing. This is sufficient to uphold the ALJ’s determination. See Carmickle, 533 13 F.3d at 1163 (upholding an adverse credibility finding where the ALJ provided 14 four reasons to discredit the claimant, two of which were invalid); Batson, 359 15 F.3d at 1197 (affirming a credibility finding where one of several reasons was 16 unsupported by the record); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 17 2008) (an error is harmless when “it is clear from the record that the . . . error was 18 inconsequential to the ultimate nondisability determination”). 19 2. 20 Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 21 opinions expressed by examining psychologist, John Arnold, Ph.D. ECF No. 14 at 22 12-16. 23 In weighing medical source opinions, the ALJ should distinguish between 24 three different types of physicians: (1) treating physicians, who actually treat the 25 claimant; (2) examining physicians, who examine but do not treat the claimant; 26 and, (3) nonexamining physicians who neither treat nor examine the claimant. 27 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 28 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 631. Likewise, the ALJ should give more weight to the opinion of an examining 2 physician than to the opinion of a nonexamining physician. Id. 3 When an examining physician’s opinion is not contradicted by another 4 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 5 and when an examining physician’s opinion is contradicted by another physician, 6 the ALJ is only required to provide “specific and legitimate reasons” to reject the 7 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 8 met by the ALJ setting out a detailed and thorough summary of the facts and 9 conflicting clinical evidence, stating her interpretation thereof, and making 10 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 11 required to do more than offer her conclusions, she “must set forth [her] 12 interpretations and explain why they, rather than the doctors’, are correct.” 13 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 14 Dr. Arnold completed a Psychological/Psychiatric Evaluation on December 15 9, 2013. Tr. 327-30. He diagnosed Plaintiff with mood disorder not otherwise 16 specified, social anxiety with general anxiety disorder features, rule out of 17 cyclothymia, rule out opioid abuse/dependence in partial remission, rule out 18 somatoform disorder, and rule out personality disorder especially borderline 19 features. Tr. 328. He opined that out of thirteen basic work activities, Plaintiff had 20 a marked limitation in two, a moderate limitation in nine, and no limitation or a 21 mild limitation in two. Tr. 329. He opined that the limitations would persist with 22 available treatment for twelve months. Id. The ALJ gave this opinion little weight 23 for four reasons: (1) the opinion was based on Plaintiff’s unreliable self-reported 24 symptoms and complaints; (2) the opinion was based on an incomplete report by 25 Plaintiff; (3) the opinion was inconsistent with the clinical findings; and (4) the 26 opinion was expressed on a check the box form identifying few objective findings. 27 Tr. 29-30. 28 Dr. Arnold completed a second Psychological/Psychiatric Evaluation on ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 November 2, 2015. Tr. 380-84. He diagnosed Plaintiff with unspecified bipolar 2 depression with psychotic features, generalized anxiety disorder with social phobia 3 features, rule out neurocognitive disorder due to head injury, and rule out 4 borderline personality disorder features. Tr. 381. This time, out of the thirteen 5 basic work activities, Dr. Arnold opined that Plaintiff had a severe limitation in 6 four activities, a marked limitation in one activity, a moderate limitation in seven 7 activities, and no limitation or mild limitation in one activity. Tr. 382. The ALJ 8 gave this opinion little weight “for the same reasons attributed to his former 9 evaluation.” Tr. 29-30. Plaintiff appears to concede that the ALJ was required to provide specific 10 11 and legitimate reasons for rejecting the opinions. ECF No. 14 at 12. Defendant’s 12 brief does not address the standard required for the ALJ to reject the opinion, but 13 argues that the ALJ’s reasons are supported by substantial evidence. ECF No. 18 14 at 11. 15 The ALJ’s first reason for rejecting the opinions, that they were based on 16 Plaintiff’s unreliable self-reported symptoms and complaints, meets the specific 17 and legitimate standard for the 2013 opinion. A doctor’s opinion may be 18 discounted if it relies on a claimant’s unreliable self-report. Bayliss v. Barnhart, 19 427 F.3d 1211, 1217 (9th Cir. 2005); Tommasetti, 533 F.3d at 1041. But the ALJ 20 must provide the basis for her conclusion that the opinion was based on a 21 claimant’s self-reports. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 22 The ALJ concluded that the 2013 opinion was based on Plaintiff’s self- 23 reports because there were inconsistencies in performance during the exam and the 24 mental status findings were normal yet Dr. Arnold provided marked limitations in 25 two areas of functioning. Tr. 29. Furthermore, the ALJ stated that even Dr. 26 Arnold found Plaintiff’s self-reports to be questionable in light of inconsistencies 27 revealed in test findings and over-reporting. Tr. 30. The ALJ found all categories 28 of the mental status exam to be within normal limits. Tr. 330. Dr. Arnold scored ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 Plaintiff’s Rey test as eight out of fifteen noting a questionable effort and deferred 2 the Trails Making Tests. Tr. 328, 330. Additionally, he noted that Plaintiff 3 reported that she forgot being in a methadone program. Tr. 330. Therefore, the 4 ALJ provided a basis for her conclusion that the opinion was based on Plaintiff’s 5 self-reports. Since the ALJ provided legally sufficient reasons to support her 6 determination that Plaintiff’s symptom statements were unsupported by the record, 7 see supra, the ALJ did not error in rejecting Dr. Arnold’s 2013 opinion for this 8 reason. 9 The ALJ concluded that the 2015 opinion was based on Plaintiff’s self- 10 reports because “despite the inconsistencies between the claimant’s alleged 11 symptoms and very mild examination findings, Dr. Arnold also evaluated marked 12 and severe limitations in five areas.” Tr. 30. As discussed more below, the ALJ 13 inaccurately represented the record when she found that the 2015 mental status 14 examination was normal. The ALJ found Plaintiff’s concentration to not be within 15 normal limits. Tr. 384. Therefore, the ALJ’s basis for finding that Dr. Arnold’s 16 2015 opinion was more heavily based on Plaintiff’s self-report than objective 17 evidence is not supported by substantial evidence and this reason fails to meet the 18 specific and legitimate standard. 19 The ALJ’s second reason, that Plaintiff provided incomplete information to 20 Dr. Arnold, meets the specific and legitimate standard. The credibility of medical 21 source opinions can be undercut by a claimant failing to provide an adequate and 22 complete picture at the time of the evaluation. Hardwick v. Astrue, 782 F. Supp. 23 2d 1170, 1179-80 (E.D. Wash. 2011) (holding that a doctor’s failure to diagnose or 24 factor in evidence of the claimant’s substance abuse constituted a specific and 25 legitimate reason for disregarding the opinion); Roy v. Colvin, No. 14-35162, 656 26 Fed. Appx. 816, 818 (9th Cir. 2016) (holding that the ALJ properly rejected the 27 opinions of the claimant’s therapists because they did not sufficiently account for 28 his drug abuse). The ALJ noted that Plaintiff failed to inform Dr. Arnold of her ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 college education and her prior drug use during the 2013 evaluation. Tr. 30. 2 Despite having completed three years of college, Plaintiff reported to Dr. Arnold 3 that her education consisted of a GED. Tr. 327. Additionally, Plaintiff reported 4 that she was treated at a methadone clinic, but that the treatment was for pain 5 management and not a drug addiction. Id. Both of these assertions by Plaintiff 6 were inconsistent with Plaintiff’s reports elsewhere in the record. Upon 7 application for benefits, she stated she had completed three years of college. Tr. 8 182. Additionally, the record reflects that Plaintiff had a history of opioid 9 dependence. Tr. 261, 413, 421, 427. In 2010, Plaintiff was seen at the emergency 10 room for a potential overdose and was diagnosed with substance abuse with a drug 11 screen positive for opiates and tricyclics. Tr. 261-62. Yet at the first evaluation, 12 Plaintiff denied illegal drug use and at the second she stated she had never taken 13 illegal drugs. Tr. 327, 381. The ALJ also found that Plaintiff reported auditory 14 hallucinations and difficulty leaving her home at the second evaluation, yet failed 15 to report these symptoms to other providers. Id. At both the evaluations, Plaintiff 16 reported auditory hallucinations. Tr. 327, 380. Yet, she denied such hallucinations 17 elsewhere in the record. Tr. 398, 417. Likewise, at the second hearing, Plaintiff 18 reported that it “[t]akes a lot for her to get out of the house, due to fear.” Tr. 380. 19 Yet, while the other records reflect an anxiety disorder, nowhere does it indicate 20 this is related to leaving her home. Tr. 272, 282, 396, 399, 401, 405, 407, 411-12, 21 414, 421. Therefore, the ALJ’s finding, that the opinion was based on 22 misrepresentation, was supported by substantial evidence and meets the specific 23 and legitimate standard. 24 The ALJ’s third reason, that the opinion was inconsistent with clinical 25 findings, is sufficient to support rejecting the first evaluation, but is not supported 26 by substantial evidence in the case of the second evaluation. Inconsistency with 27 the majority of objective evidence is a specific and legitimate reason for rejecting 28 physician’s opinions. Batson, 359 F.3d at 1195. Here the ALJ found that ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 Plaintiff’s normal results on the mental status exam, besides the noted anxious 2 mood and constricted affect, did not support the level of limitation opined in the 3 first evaluation. Tr. 29. Dr. Arnold indicated that all categories of the mental 4 status examination were within normal limits. Tr. 330. As for the second 5 evaluation, the ALJ found that besides a depressed/anxious mood the mental status 6 exam was normal and did not account for the level of limitation opined in the 7 second evaluation. Tr. 30. However, in this evaluation, the mental status exam 8 shows abnormalities in Plaintiff’s concentration and Dr. Arnold indicated her 9 concentration was not within normal limits. Tr. 384. As such, the ALJ’s finding 10 that the 2015 mental status examination was normal is not supported by substantial 11 evidence. Any error resulting from this treatment of the second evaluation would 12 be harmless as the ALJ provided other legally sufficient reasons to reject the 13 opinion. See Tommasetti, 533 F.3d at 1038 (An error is harmless when “it is clear 14 from the record that the . . . error was inconsequential to the ultimate nondisability 15 determination.”). 16 The ALJ’s fourth reason, that the opinion was expressed on a check the box 17 form identifying few objective findings, is not specific and legitimate. The Ninth 18 Circuit has expressed a preference for individualized medical opinions over check- 19 the-box reports. Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). However, 20 check-the-box forms that do not stand alone, but are supported by records should 21 be “entitled to weight that an otherwise unsupported and unexplained check-box 22 form would not merit.” Garrison, 759 F.3d at 1013. Here, the forms are 23 accompanied with a mental status examination and some psychological test results. 24 Tr. 327-30, 380-84. Therefore, these forms do not stand alone. The ALJ also 25 found that the opinions identified few objective findings. Tr. 30. This is 26 inaccurate. The forms contain psychological test results including the Becks 27 Depression Inventory-II, the Becks Anxiety Inventory, the Rey 15 item memory 28 test for malingering, the Trail Making Test, and a mental status examination which ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 includes memory testing and concentration testing. Tr. 328, 330, 381, 383-84. 2 Undoubtedly, viewing Plaintiff’s responses to the testing prompts would provide 3 greater insight into their results, but the results themselves constitute objective 4 evidence. Therefore, the ALJ’s conclusion that these forms failed to provide 5 objective medical evidence to support the opinion is not supported by substantial 6 evidence, and this is not a specific and legitimate reason for the ALJ to reject the 7 opinions. 8 9 While not all of the ALJ’s reasons for rejecting the opinions meet the specific and legitimate standard, the ALJ provided at least one legally sufficient 10 reason for each of the opinions. Therefore, any resulting error would be 11 considered harmless. Tommasetti, 533 F.3d at 1038 (an error is harmless when “it 12 is clear from the record that the . . . error was inconsequential to the ultimate 13 nondisability determination”). 14 CONCLUSION 15 Having reviewed the record and the ALJ’s findings, the Court finds the 16 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 17 Accordingly, IT IS ORDERED: 18 19 1. Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 20 2. 21 The District Court Executive is directed to file this Order and provide a copy 22 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 23 and the file shall be CLOSED. 24 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. DATED September 24, 2018. 25 26 27 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 16

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