Jones v. Commissioner of Social Security, No. 2:2017cv00311 - Document 16 (E.D. Wash. 2018)

Court Description: ORDER DENYING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; granting 13 Defendant's Motion for Summary Judgment. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)

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Jones v. Commissioner of Social Security Doc. 16 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Dec 13, 2018 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MICHELLE MARIE J., NO: 2:17-CV-311-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 14 ECF Nos. 12, 13. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney Dana C. Madsen. Defendant is 16 represented by Special Assistant United States Attorney Danielle R. Mroczek. The 17 Court, having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 12, is 19 denied and Defendant’s Motion, ECF No. 13, is granted. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~1 Dockets.Justia.com 1 JURISDICTION Plaintiff Michelle Marie J.1 (Plaintiff) filed for disability insurance benefits 2 3 (DIB) and supplemental security income on June 1, 2012, alleging an onset date of 4 February 23, 2011.2 Tr. 321-22, 330-33, 373. Benefits were denied initially, 183- 5 94, and upon reconsideration, Tr. 201-04. Plaintiff appeared at a hearing before an 6 administrative law judge (ALJ) on January 16, 2014. Tr. 38-69. On April 4, 2014, 7 the ALJ issued an unfavorable decision. Tr. 162-73. The Appeals Council vacated 8 the decision and remanded the matter for further development of the record on 9 August 11, 2015. Tr. 180-81. 10 After a second hearing on December 1, 2015, Tr. 72-112, the ALJ issued an 11 unfavorable decision on February 23, 2016. Tr. 18-29. The Appeals Council denied 12 review of the second ALJ decision on July 10, 2017. Tr. 1-5. 13 14 15 16 1 17 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 18 decision. 19 2 20 onset date to February 23, 2011, by requesting reopening of a prior application at 21 the hearing. Tr. 39, 162. In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first Plaintiff initially alleged an onset date of May 4, 2012, but amended the alleged ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~2 1 This decision became the final decision of the Commissioner on November 1, 2 2017. 20 C.F.R. § 404.984. The matter is now before this Court pursuant to 42 3 U.S.C. § 405(g); 1383(c)(3). 4 BACKGROUND 5 The facts of the case are set forth in the administrative hearing and transcripts, 6 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 7 therefore only summarized here. 8 Plaintiff was born in 1985 and was 28 years old at the time of the first hearing. 9 Tr. 321. She graduated from high school. Tr. 56. She has work experience as a 10 caregiver, housekeeping cleaner, dining room attendant, and waitress. Tr. 42, 64. 11 She was diagnosed with bipolar disorder when she was 23. Tr. 48. Bipolar disorder 12 causes her to get irritated, frustrated, and angry. Tr. 47. She can keep her moods 13 under control despite only taking an antidepressant. Tr. 53. However, she testified 14 that she “can’t handle being around people.” Tr. 89. She gets anxious and upset 15 around people and removes herself from crowded areas. Tr. 90. She gets migraines 16 every few weeks since a concussion in 2012. Tr. 98-99. She does not think she 17 could maintain a job due to stress. Tr. 99. She does not socialize due to anxiety. Tr. 18 100-01. She has mood swings every other day and her moods change from upset to 19 sad periodically. Tr. 102. 20 / / / 21 / / / ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~3 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 5 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 6 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 7 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 8 citation omitted). Stated differently, substantial evidence equates to “more than a 9 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 10 In determining whether the standard has been satisfied, a reviewing court must 11 consider the entire record as a whole rather than searching for supporting evidence in 12 isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 15 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 19 decision on account of an error that is harmless.” Id. An error is harmless “where it 20 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 21 (quotation and citation omitted). The party appealing the ALJ’s decision generally ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~4 1 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 2 396, 409-10 (2009). 3 FIVE-STEP EVALUATION PROCESS 4 A claimant must satisfy two conditions to be considered “disabled” within the 5 meaning of the Social Security Act. First, the claimant must be “unable to engage in 6 any substantial gainful activity by reason of any medically determinable physical or 7 mental impairment which can be expected to result in death or which has lasted or 8 can be expected to last for a continuous period of not less than twelve months.” 42 9 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must 10 be “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 13 423(d)(2)(A), 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to determine 15 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 16 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 17 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 18 engaged in “substantial gainful activity,” the Commissioner must find that the 19 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 21 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~5 1 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 2 claimant suffers from “any impairment or combination of impairments which 3 significantly limits [his or her] physical or mental ability to do basic work 4 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 5 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 6 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 7 §§ 404.1520(c), 416.920(c). 8 At step three, the Commissioner compares the claimant’s impairment to 9 severe impairments recognized by the Commissioner to be so severe as to preclude a 10 person from engaging in substantial gainful activity. 20 C.F.R. §§ 11 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 12 than one of the enumerated impairments, the Commissioner must find the claimant 13 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 14 If the severity of the claimant’s impairment does not meet or exceed the 15 severity of the enumerated impairments, the Commissioner must pause to assess the 16 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 17 defined generally as the claimant’s ability to perform physical and mental work 18 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 19 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 20 analysis. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~6 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in the 3 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 4 claimant is capable of performing past relevant work, the Commissioner must find 5 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 6 claimant is incapable of performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner should conclude whether, in view of the 8 claimant’s RFC, the claimant is capable of performing other work in the national 9 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this 10 determination, the Commissioner must also consider vocational factors such as the 11 claimant’s age, education and past work experience. 20 C.F.R. §§ 12 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 13 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 14 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 15 work, analysis concludes with a finding that the claimant is disabled and is therefore 16 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 17 The claimant bears the burden of proof at steps one through four above. 18 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 19 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 20 capable of performing other work; and (2) such work “exists in significant numbers 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~7 1 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 2 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 3 ALJ’S FINDINGS 4 At step one, the ALJ found Plaintiff did not engage in substantial gainful 5 activity since February 23, 2011, the amended alleged onset date. Tr. 20. At step 6 two, the ALJ found that Plaintiff has the following severe impairments: bipolar 7 disorder; personality disorder NOS; depressive disorder NOS; and morbid obesity. 8 Tr. 21. At step three, the ALJ found that Plaintiff does not have an impairment or 9 combination of impairments that meets or medically equals the severity of a listed 10 11 impairment. Tr. 21. The ALJ then found that Plaintiff has the residual functional capacity to 12 perform a full range of work at all exertional levels, with the following 13 nonexertional limitations: 14 15 16 17 18 19 She would be limited to simple, repetitive tasks of one to two steps; she should work away from the public; she could have superficial contact with co-workers but could not perform in-tandem tasks; she would work best in a work area or workstation without groups of people nearby; she could tolerate occasional changes in the work setting; she could not perform production-rate or pace work; and she would require work where reading was not an essential aspect of the job. Tr. 23. At step four, the ALJ found that Plaintiff is capable of performing past 20 relevant work as a kitchen helper. Tr. 26. Alternatively, after considering the 21 testimony of a vocational expert and Plaintiff’s age, education, work experience, and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~8 1 residual functional capacity, the ALJ found there are other jobs that exist in 2 significant numbers in the national economy that Plaintiff could perform such as 3 laundry worker, housekeeping cleaner, or hand packager or addresser. Tr. 28. 4 Therefore, at step five, the ALJ concluded that Plaintiff has not been under a 5 disability, as defined in the Social Security Act, from February 23, 2011, through the 6 date of the decision. Tr. 28. 7 ISSUES 8 Plaintiff seeks judicial review of the Commissioner’s final decision denying 9 disability income benefits under Title II and supplemental security income under 10 Title XVI of the Social Security Act. ECF No. 12. Plaintiff raises the following 11 issues for review: 12 1. 13 and 14 2. 15 Whether the ALJ properly evaluated Plaintiff’s symptom complaints; Whether the ALJ properly considered the medical opinion evidence. ECF No. 12 at 11. 16 17 DISCUSSION A. Symptom Claims 18 Plaintiff contends the ALJ improperly rejected her symptom claims. ECF 19 No. 12 at 14-15. An ALJ engages in a two-step analysis to determine whether a 20 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 21 ALJ must determine whether there is objective medical evidence of an underlying ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~9 1 impairment which could reasonably be expected to produce the pain or other 2 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 3 “The claimant is not required to show that her impairment could reasonably be 4 expected to cause the severity of the symptom she has alleged; she need only show 5 that it could reasonably have caused some degree of the symptom.” Vasquez v. 6 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 7 Second, “[i]f the claimant meets the first test and there is no evidence of 8 malingering, the ALJ can only reject the claimant’s testimony about the severity of 9 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 10 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 11 citations and quotations omitted). “General findings are insufficient; rather, the 12 ALJ must identify what testimony is not credible and what evidence undermines 13 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 14 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he 15 ALJ must make a credibility determination with findings sufficiently specific to 16 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 17 testimony.”). “The clear and convincing [evidence] standard is the most 18 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 19 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 20 924 (9th Cir. 2002)). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~10 1 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 2 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 3 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 4 daily living activities; (4) the claimant’s work record; and (5) testimony from 5 physicians or third parties concerning the nature, severity, and effect of the 6 claimant’s condition. Thomas, 278 F.3d at 958-59. 7 Here, the ALJ found Plaintiff’s medically determinable impairments could 8 reasonably be expected to produce the symptoms alleged, but Plaintiff’s statements 9 concerning the intensity, persistence, and limiting effects of these symptoms are not 10 entirely credible. Tr. 24, 169. This Court finds that the ALJ provided specific, 11 clear, and convincing reasons for finding Plaintiff’s statements concerning the 12 intensity, persistence, and limiting effects of her symptoms not credible. Tr. 24, 169- 13 72. 14 15 First, the ALJ found the objective evidence does not support the level of limitation alleged.3 Tr. 24, 169. An ALJ may not discredit a claimant’s pain 16 17 3 In the February 23, 2016 decision, the ALJ noted: 18 19 20 21 The Appeals Council did not direct the undersigned to reconsider any of the evidence already considered and addressed in the claimant’s prior decision. However, the Appeals Council directed the undersigned to provide the claimant the opportunity to submit additional evidence, and the claimant has submitted [additional] medical evidence []. The undersigned fully considered these [new] Exhibits and will discuss their effect on the claimant’s residual functional capacity findings. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~11 1 testimony and deny benefits solely because the degree of pain alleged is not 2 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 3 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. 4 Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the medical evidence is a 5 relevant factor in determining the severity of a claimant’s pain and its disabling 6 effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) 7 (2011). Minimal objective evidence is a factor which may be relied upon in 8 discrediting a claimant’s testimony, although it may not be the only factor. See 9 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 10 The ALJ noted that although Plaintiff’s alleged onset date is February 23, 11 2011, there are few records between 2009 and March 2012. Tr. 169. In June 2011, 12 James Bailey, Ph.D., reviewed the record and determined the evidence was 13 insufficient to assess Plaintiff’s impairments. Tr. 169, 562. In June 2012, John 14 Arnold, Ph.D., examined Plaintiff and opined that her symptoms would negatively 15 impact job performance, but assessed limitations consistent with the ability to 16 work. Tr. 170, 601-02. In October 2013, Plaintiff saw her treating counselor, 17 Mandy Freeman, M.Ed., for completion of DSHS disability benefits paperwork, 18 but Ms. Freeman indicated Plaintiff does not have a condition that prevents her 19 20 21 Tr. 24. The ALJ’s findings regarding Plaintiff’s symptom complaints are therefore discussed in the ALJ’s April 4, 2014 decision. Tr. 169-72. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~12 1 from working, and Plaintiff stated her difficulty is finding the right work for her. 2 Tr. 171, 699. The ALJ noted that psychologists Thomas Clifford, Ph.D., and 3 Diane Fligstein, Ph.D., reviewed the record in June and September 2012, 4 respectively, and found that Plaintiff has limitations, but the limitations do not 5 prohibit all work. Tr. 122-23, 143-45, 172. The ALJ also detailed other evidence 6 in the record reasonably supporting the conclusion that the objective evidence is 7 not consistent with the level of limitation alleged by Plaintiff. Tr. 169-72. 8 Plaintiff’s only argument is that “the ALJ may not make a negative 9 credibility finding ‘solely because’ the claimant’s symptom testimony ‘is not 10 substantiated affirmatively by objective medical evidence.’” ECF No. 12 at 15 11 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)). Here, 12 the lack of objective evidence is not the sole reason given by the ALJ for rejecting 13 Plaintiff’s symptom testimony. The ALJ cited several other clear and convincing 14 reasons supported by substantial evidence, discussed infra. Thus, the lack of 15 supporting objective evidence was properly considered by the ALJ. 16 Second, the ALJ found Plaintiff demonstrated a tendency to exaggerate her 17 symptoms. Tr. 169. The tendency to exaggerate may be a permissible reason for 18 discounting Plaintiff’s symptom testimony. See Tonapetyan v. Halter, 242 F.3d 19 1144, 1148 (9th Cir. 2001) (finding the ALJ appropriately considered Plaintiff’s 20 tendency to exaggerate when assessing Plaintiff’s symptoms claims). The ALJ 21 cited the evaluation of Thomas Mitchell, Ph.D., who examined Plaintiff in March ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~13 1 2009 and conducted psychological testing. Tr. 581-84. Dr. Mitchell noted that 2 both his observations and objective test results “indicate a tendency to 3 emphasize/exaggerate her symptoms, possibly as a way to solicit support/attention 4 from others.” Tr. 583. The ALJ found the tendency to exaggerate detracts from 5 the reliability of Plaintiff’s alleged symptoms. Tr. 169. 6 Plaintiff first contends the ALJ misinterpreted Dr. Mitchell’s opinion, 7 arguing that, “Dr. Mitchell did not find [Plaintiff] personally exaggerates or has a 8 tendency to exaggerate symptoms, rather an algorithm supposed [sic] a profile of 9 merely a tendency of ‘magnifying’ her symptoms.” ECF No. 12 at 14 (citing Tr. 10 583). Plaintiff is incorrect. In the mental status exam findings, Dr. Mitchell noted, 11 “[h]er thinking was significant for negativity and emphasizing her symptoms,” and 12 his behavioral observations include, “she tended to describe her symptoms in 13 rather dramatic terms. This created some inconsistency in her overall 14 presentation.” Tr. 582. Dr. Mitchell also noted objective findings of emphasizing 15 and exaggerating her symptoms indicated in the results of the Millon Clinical 16 Multiaxial Inventory and found that those results were “consistent with her 17 presentation during the evaluation.” Tr. 583. Plaintiff’s assertion that Dr. Mitchell 18 did not find that Plaintiff tends to exaggerate or emphasize her symptoms is not 19 supported by the record. 20 21 Plaintiff also contends that Dr. Mitchell’s opinion was formed outside the relevant period, suggesting that the ALJ should not have considered his ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~14 1 conclusions. ECF No. 12 at 15. “Medical opinions that predate the alleged onset 2 of disability are of limited relevance,” especially in cases where “disability is 3 allegedly caused by discrete event.” Carmickle v. Comm’r of Soc. Sec. Admin., 4 533 F.3d 1155, 1165 (9th Cir. 2008). Dr. Mitchell’s 2009 opinion predates 5 Plaintiff’s alleged onset date of February 23, 2011 by nearly two years. However, 6 as noted by Defendant, Plaintiff alleged depression since the age of 16, reasonably 7 suggesting that earlier records could shed light on Plaintiff’s symptom claims. 8 ECF No. 13 at 7 (citing Tr. 169, 576). Nonetheless, although the ALJ did not 9 necessarily err in considering Dr. Mitchell’s opinion, the opinion two years prior to 10 the alleged onset date does not by itself constitute clear and convincing evidence 11 that Plaintiff exaggerated her symptoms. 4 12 Third, the ALJ found Plaintiff’s symptoms improve when she is compliant 13 with medication and involved in counseling, and that there are unexplained gaps in 14 treatment. Tr. 170-71. The effectiveness of treatment is a relevant factor in 15 determining the severity of a claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 16 17 4 18 Plaintiff exaggerates her symptoms. ECF No. 13 at 6-7. However, the ALJ did not 19 mention this evidence and the Court is constrained to review only those reasons 20 asserted by the ALJ. Sec. Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 21 (1947); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001). Defendant cites additional evidence in the record supporting the finding that ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~15 1 416.929(c)(3) (2011); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 2 1006 (9th Cir. 2006) (conditions effectively controlled with medication are not 3 disabling for purposes of determining eligibility for benefits) (internal citations 4 omitted); see also Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a 5 favorable response to treatment can undermine a claimant’s complaints of 6 debilitating pain or other severe limitations). Additionally, when there is no 7 evidence suggesting a failure to seek treatment is attributable to a mental 8 impairment, it is reasonable for the ALJ to conclude that the level or frequency of 9 treatment is inconsistent with the level of complaints. Molina, 674 F.3d at 10 1113-14. The ALJ cited substantial evidence supporting this reasoning, Tr. 170- 11 71, and Plaintiff failed to discuss the evidence or show how the ALJ erred. ECF 12 No. 12 at 14-15; ECF No. 14 at 6-7. This is a clear and convincing reason 13 supported by substantial evidence. 14 Fourth, the ALJ found Plaintiff was able to work after her alleged onset date, 15 which undermines her disability claim. Tr. 171. Working with an impairment 16 supports the conclusion that an impairment is not disabling. See Drouin v. 17 Sullivan, 966 F.2d 1256, 1258 (9th Cir.1992). The ALJ observed that Plaintiff 18 worked a 36-hour work week for nearly a year after her alleged onset date, which 19 reasonably supports the inference that Plaintiff’s limitations are not as severe as 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~16 1 alleged.5 Tr. 171, 392, 394. Plaintiff failed to discuss this evidence or demonstrate 2 any error, and this is another clear and convincing reasons supported by substantial 3 evidence. 4 B. 5 Medical Opinion Evidence Plaintiff contends the ALJ failed to properly consider the opinion of 6 psychologist Scott Mabee, Ph.D., who examined Plaintiff in July 2013. ECF No. 12 7 at 12-14; Tr. 670-75. Dr. Mabee diagnosed depressive disorder and borderline 8 personality features and indicated “rule out” borderline intellectual functioning 9 based on poor effort during the mental status exam. Tr. 671. He assessed marked 10 limitations in four functional areas: the ability to understand, remember, and persist 11 in tasks by following detailed directions; the ability to perform activities within a 12 schedule, maintain regular attendance, and be punctual; the ability to complete a 13 normal work day and work week without interruptions from psychologically based 14 symptoms; and the ability to communicate and perform effectively in a work setting. 15 Tr. 672. Dr. Mabee also assessed five moderate limitations. Tr. 672. The ALJ gave 16 no weight to the marked limitations assessed by Dr. Mabee. Tr. 167, 171. 17 18 There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining 19 20 5 21 May 2012. Tr. 392, 394. Plaintiff reported working 36 hours per week at McDonalds from April 2011 to ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~17 1 physicians); and (3) those who neither examine nor treat the claimant but who 2 review the claimant’s file (nonexamining or reviewing physicians).” Holohan v. 3 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). “Generally, 4 a treating physician’s opinion carries more weight than an examining physician’s, 5 and an examining physician’s opinion carries more weight than a reviewing 6 physician’s.” Id. “In addition, the regulations give more weight to opinions that are 7 explained than to those that are not, and to the opinions of specialists concerning 8 matters relating to their specialty over that of nonspecialists.” Id. (citations omitted). 9 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 10 reject it only by offering “clear and convincing reasons that are supported by 11 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 12 “However, the ALJ need not accept the opinion of any physician, including a 13 treating physician, if that opinion is brief, conclusory and inadequately supported by 14 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 15 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 16 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 17 only reject it by providing specific and legitimate reasons that are supported by 18 substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). 19 Because Dr. Mabee’s opinion regarding marked limitations was contradicted 20 by the opinions of Drs. Clifford and Fligstein, Tr. 122-23, 143-45, the ALJ was 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~18 1 required to provide specific and legitimate reasons for rejecting the opinion. Bayliss, 2 427 F.3d at 1216. 3 First, the ALJ found there is no support for the marked limitations assessed by 4 Dr. Mabee in the record as a whole. Tr. 167. The consistency of a medical opinion 5 with the record as a whole is a relevant factor in evaluating that opinion. 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 7 625, 631 (9th Cir. 2007). The ALJ noted that Plaintiff’s ability to maintain a 36- 8 hour per week work schedule for nearly a year after her amended alleged onset date 9 is inconsistent with the marked limitations assessed by Dr. Mabee. Tr. 167, 171, 10 392, 394. Plaintiff contends her employment was not relevant because “that work 11 was not one that she can perform under the residual functional capacity 12 determination.” ECF No. 12 at 13. Plaintiff’s point is unclear. If the functional 13 requirements of the job Plaintiff performed during the period of alleged disability 14 exceed the limitations of the residual functional capacity finding, the ALJ’s point is 15 emphasized, not undermined. Dr. Mabee’s marked limitations are even more 16 unsupported if Plaintiff was more capable than the RFC for some time after the 17 alleged onset date. This is a specific, legitimate reason for giving little weight to the 18 marked limitations assessed by Dr. Mabee. 19 The ALJ also observed that Plaintiff’s symptoms improved with therapy and 20 counseling, as discussed throughout the decision. Tr. 167 (citing Tr. 687-709), 170- 21 72. Plaintiff argues that the ALJ “fails to identify which of the limitations found by ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~19 1 Dr. Mabee was eliminated by the improvement claimed. This is impermissibly 2 vague.” ECF No. 12 at 13. To the contrary, the ALJ did identify the limitations 3 rejected, which are the marked limitations assessed by Dr. Mabee. The ALJ found 4 those limitations are unsupported by evidence that Plaintiff improved with treatment. 5 Tr. 167. Plaintiff again misses the ALJ’s point, which is that evidence of 6 improvement with treatment reflects a higher level of functioning than indicated by 7 the marked limitations assessed by Dr. Mabee. This was reasonably considered by 8 the ALJ in evaluating Dr. Mabee’s opinion. 9 Second, the ALJ found the marked limitations assessed by Dr. Mabee are 10 inconsistent with his own findings. Tr. 167, 171. A medical opinion may be 11 rejected by the ALJ if it is conclusory, contains inconsistencies, or is inadequately 12 supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. The ALJ determined 13 Dr. Mabee’s “ratings of marked impairment are not supported by his other findings.” 14 Tr. 167. A review of Dr. Mabee’s “other findings” reflects no basis for assessing 15 marked limitations. Tr. 670-75. Notably, Plaintiff was on time to her appointment, 16 the mini mental status exam and Trails Making test results were within normal 17 limits, and Dr. Mabee assessed no more than a moderate limitation in her ability to 18 perform activities of daily living. Tr. 674-75. Plaintiff fails to identify any findings 19 by Dr. Mabee which reasonably support his assessment of marked limitations. ECF 20 No. 12 at 13; ECF No. 14 at 2. While the ALJ could have perhaps cited more detail, 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~20 1 the conclusion is supported by substantial evidence and this is a legitimate reason for 2 giving less weight to Dr. Mabee’s opinion. 3 Third, the ALJ found Dr. Mabee’s conclusions appear to be based on the 4 Plaintiff’s subjective complaints. Tr. 171. A physician’s opinion may be rejected if 5 it is based on a claimant’s subjective complaints which were properly discounted. 6 Tonapetyan, 242 F.3d at 1149; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 7 595, 599 (9th Cir. 1999); Fair, 885 F.2d at 604. However, when an opinion is not 8 more heavily based on a patient’s self-reports than on clinical observations, there is 9 no evidentiary basis for rejecting the opinion. Ghanim, 763 F.3d at 1162; Ryan v. 10 Comm’r of Soc. Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008). As noted supra, 11 the ALJ’s determination that Dr. Mabee’s findings do not support the marked 12 limitations assessed is based on the evidence. Since the ALJ also reasonably found 13 that Plaintiff’s symptom testimony is not fully reliable, the ALJ’s conclusion that Dr. 14 Mabee’s marked limitations must have been based on Plaintiff’s unreliable 15 statements is a reasonable interpretation of the evidence. In this case, this is a 16 specific, legitimate reason for rejecting the marked limitations assessed by Dr. 17 Mabee. 18 19 20 CONCLUSION Having reviewed the record and the ALJ’s findings, this Court concludes the ALJ’s decision is supported by substantial evidence and free of harmful legal error. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~21 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 4 5 GRANTED. IT IS SO ORDERED. The District Court Clerk is directed to enter this 6 Order and provide copies to counsel. Judgment shall be entered for Defendant and 7 the file shall be CLOSED. 8 DATED December 13, 2018. 9 10 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT~22

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