Dyoke v. Commissioner of Social Security, No. 2:2017cv00330 - Document 17 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, INTER ALIA, denying 13 Motion for Summary Judgment; and granting 14 Motion for Summary Judgment. Signed by Senior Judge Lonny R. Suko. (LR, Case Administrator)
Download PDF
<![CDATA[
Dyoke v. Commissioner of Social Security Doc. 17 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Jun 25, 2018 4 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 EMAN REYAD DYOKE, Plaintiff, 8 9 10 11 12 13 14 vs. COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________ ) ) ) ) ) ) ) ) ) ) ) ) No. 2:17-CV-00330-LRS ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 13) and the Defendant's Motion For Summary Judgment (ECF No. 14). 15 JURISDICTION 16 17 Eman Reyad Dyoke, Plaintiff, applied for Title II Social Security Disability 18 Insurance benefits (SSDI) and for Title XVI Supplemental Security Income benefits 19 (SSI) on August 20, 2013. 20 reconsideration. Plaintiff timely requested a hearing which was held on January 14, 21 2016, before Administrative Law Judge (ALJ) R.J. Payne. Medical experts Margaret 22 Moore, Ph.D., and Arthur Lorber, M.D., testified at that hearing. A supplemental 23 hearing was held on May 3, 2016, at which Plaintiff testified, as did Vocational 24 Expert (VE) Sharon Welter. On June 1, 2016, the ALJ issued a decision finding the 25 Plaintiff not disabled. The Appeals Council denied a request for review of the ALJ’s 26 decision, making that decision the Commissioner’s final decision subject to judicial 27 review. The Commissioner’s final decision is appealable to district court pursuant The applications were denied initially and on 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 to 42 U.S.C. §405(g) and §1383(c)(3). 2 3 STATEMENT OF FACTS 4 The facts have been presented in the administrative transcript, the ALJ's 5 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. 6 Plaintiff has an 8th grade education and past relevant work experience as a retail store 7 manager, sales clerk and payroll clerk. She alleges disability since July 1, 2014, on 8 which date she was 46 years old. 9 10 STANDARD OF REVIEW 11 "The [Commissioner's] determination that a claimant is not disabled will be 12 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 13 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 14 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 15 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 16 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 17 1988). "It means such relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 19 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 20 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 21 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 22 On review, the court considers the record as a whole, not just the evidence supporting 23 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 24 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 25 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 26 Richardson, 402 U.S. at 400. If evidence supports more than one rational 27 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2 1 F.2d 577, 579 (9th Cir. 1984). 2 A decision supported by substantial evidence will still be set aside if the proper 3 legal standards were not applied in weighing the evidence and making the decision. 4 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 5 1987). 6 7 ISSUES 8 Plaintiff argues the ALJ erred in: 1) failing to find that Plaintiff had additional 9 “severe” impairments; 2) rejecting the opinions of her treating physician, Bethany 10 Lynn, M.D., and examining psychologist, John Arnold, Ph.D.; 3) failing to provide 11 specific, clear and convincing reasons for discounting Plaintiff’s testimony regarding 12 her symptoms and limitations; 4) failing to provide specific and germane reasons for 13 rejecting a lay witness statement; and 5) failing to provide a hypothetical to the VE 14 which included all of Plaintiff’s physical and mental limitations. 15 16 17 DISCUSSION SEQUENTIAL EVALUATION PROCESS 18 The Social Security Act defines "disability" as the "inability to engage in any 19 substantial gainful activity by reason of any medically determinable physical or 20 mental impairment which can be expected to result in death or which has lasted or can 21 be expected to last for a continuous period of not less than twelve months." 42 22 U.S.C. § 423(d)(1)(A) and § 1382c(a)(3)(A). The Act also provides that a claimant 23 shall be determined to be under a disability only if her impairments are of such 24 severity that the claimant is not only unable to do her previous work but cannot, 25 considering her age, education and work experiences, engage in any other substantial 26 gainful work which exists in the national economy. Id. 27 The Commissioner has established a five-step sequential evaluation process for 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3 1 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 2 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 3 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 4 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If she is not, the decision-maker 5 proceeds to step two, which determines whether the claimant has a medically severe 6 impairment or combination of impairments. 7 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 8 of impairments, the disability claim is denied. 9 evaluation proceeds to the third step, which compares the claimant's impairment with 10 a number of listed impairments acknowledged by the Commissioner to be so severe 11 as to preclude substantial gainful activity. 12 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 13 equals one of the listed impairments, the claimant is conclusively presumed to be 14 disabled. If the impairment is not one conclusively presumed to be disabling, the 15 evaluation proceeds to the fourth step which determines whether the impairment 16 prevents the claimant from performing work she has performed in the past. If the 17 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. §§ 18 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work, 19 the fifth and final step in the process determines whether she is able to perform other 20 work in the national economy in view of her age, education and work experience. 20 21 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). 20 C.F.R. §§ 404.1520(a)(4)(ii) and If the impairment is severe, the 20 C.F.R. §§ 404.1520(a)(4)(iii) and 22 The initial burden of proof rests upon the claimant to establish a prima facie 23 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 24 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 25 mental impairment prevents her from engaging in her previous occupation. 26 burden then shifts to the Commissioner to show (1) that the claimant can perform 27 other substantial gainful activity and (2) that a "significant number of jobs exist in the 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4 The 1 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 2 1498 (9th Cir. 1984). 3 4 ALJ'S FINDINGS 5 The ALJ found the following: 6 1) Plaintiff has “severe” medically determinable impairments which include 7 depression, anxiety/posttraumatic stress disorder, right knee degenerative joint 8 disease, obesity, degenerative disk disease of the lumbar spine, and left shoulder 9 bursitis and impingement syndrome; 10 11 2) Plaintiff’s impairments do not meet or equal any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 12 3) Plaintiff has the Residual Functional Capacity (RFC) to perform a range of 13 light work, defined in 20 C.F.R. §§404.1567(b) and 416.967(b), which allows her to 14 lift no more than 20 pounds at a time occasionally and lift or carry 10 pounds at a 15 time frequently; allows her to sit with no limitations, stand for one hour at a time for 16 a total of four hours in an eight hour workday, and walk for one hour at a time for a 17 total of four hours in an eight hour workday; she can occasionally push/pull foot 18 controls with the right lower extremity within the aforementioned weight limitations; 19 she can occasionally push/pull objects and/or arm controls above shoulder level with 20 the left upper extremity; she can frequently stoop and crouch; she cannot kneel with 21 the right knee and cannot crawl; has minimal restriction on balancing; can frequently 22 climb ramps and stairs, but cannot climb ladders, ropes or scaffolds; cannot work 23 around unprotected heights or hazardous machinery; can occasionally reach overhead 24 with the left upper extremity; can understand, remember and carry out simple and 25 more complex work instructions; cannot work with the general public; can work with, 26 or in the vicinity of, coworkers, but not in a teamwork type job setting; and would do 27 best working independently; 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5 1 4) Plaintiff’s RFC precludes performance of her past relevant work; 2 5) Plaintiff’s RFC allows performance of other jobs existing in significant 3 4 numbers in the national economy, including office helper and mail clerk. Accordingly, the ALJ concluded Plaintiff is not disabled. 5 6 SEVERE IMPAIRMENT 7 A “severe” impairment is one which significantly limits physical or mental 8 ability to do basic work-related activities. 20 C.F.R. §§ 404.1520(c) and 416.920(c). 9 It must result from anatomical, physiological, or psychological abnormalities which 10 can be shown by medically acceptable clinical and laboratory diagnostic techniques. 11 It must be established by medical evidence consisting of signs, symptoms, and 12 laboratory findings, not just the claimant's statement of symptoms. 20 C.F.R. §§ 13 404.1508 and 416.908. 14 Step two is a de minimis inquiry designed to weed out nonmeritorious claims 15 at an early stage in the sequential evaluation process. Smolen v. Chater, 80 F.3d 16 1273, 1290 (9 t h Cir. 1996), citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987) 17 ("[S]tep two inquiry is a de minimis screening device to dispose of groundless 18 claims"). "[O]nly those claimants with slight abnormalities that do not significantly 19 limit any basic work activity can be denied benefits" at step two. Bowen, 482 U.S. 20 at 158 (concurring opinion). "Basic work activities" are the abilities and aptitudes to 21 do most jobs, including: 1) physical functions such as walking, standing, sitting, 22 lifting, pushing, pulling, reaching, carrying, or handling; 2) capacities for seeing, 23 hearing, and speaking; 3) understanding, carrying out, and remembering simple 24 instructions; 4) use of judgment; 5) responding appropriately to supervision, co- 25 workers and usual work situations; and 6) dealing with changes in a routine work 26 setting. 20 C.F.R. §§ 404.1521(b) and 416.921(b). 27 The Commissioner has stated that “[i]f an adjudicator is unable to determine 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6 1 clearly the effect of an impairment or combination of impairments on the individual’s 2 ability to do basic work activities, the sequential evaluation should not end with the 3 not severe evaluation step.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005), 4 citing S.S.R. No. 85-28 (1985). An ALJ may find that a claimant lacks a medically 5 severe impairment or combination of impairments only when his conclusion is 6 “clearly established by medical evidence.” Id. 7 Plaintiff asserts the ALJ erred in failing to find that Plaintiff has additional 8 “severe” impairments, including fibromyalgia, recurrent carpal tunnel syndrome, left 9 foot plantar fasciitis, osteoporosis of the thoracic spine, gastroesophageal reflux 10 disease (GERD), allergic rhinitis and lumbar radiculopathy. Citing testimony from 11 Dr. Lorber at the hearing, the ALJ found that most of these are non-severe. (AR at 12 pp. 26-27). Plaintiff contends that “in particular, the ALJ failed to properly account 13 for numerous musculoskeletal impairments and associated symptoms . . . resulting in 14 additional physical limitations . . ., the need for unscheduled breaks during the day 15 to lie down, and preventing her from performing the exertional demands of light 16 work.” Plaintiff, however, does not identify these “additional physical limitations” 17 and how they differ and/or are more severe than those arising from the physical 18 impairments which the ALJ found severe: right knee degenerative joint disease, 19 obesity, degenerative disk disease of the lumbar spine and left shoulder bursitis and 20 impingement syndrome. 21 physical impairments as non-severe, the error his harmless. As discussed below, 22 substantial evidence supports the ALJ’s determination regarding the Plaintiff’s 23 physical RFC. Accordingly, if the ALJ erred in failing to find certain 24 25 MEDICAL OPINIONS 26 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 27 of a licensed treating or examining physician or psychologist is given special weight 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7 1 because of his/her familiarity with the claimant and his/her condition. If the treating 2 or examining physician's or psychologist’s opinion is not contradicted, it can be 3 rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 4 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the 5 ALJ may reject the opinion if specific, legitimate reasons that are supported by 6 substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, 7 an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 8 and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 9 1216 (9th Cir. 2005). The opinion of a non-examining medical advisor/expert need 10 not be discounted and may serve as substantial evidence when it is supported by other 11 evidence in the record and consistent with the other evidence. Andrews v. Shalala, 12 53 F.3d 1035, 1041 (9th Cir. 1995). 13 Nurse practitioners, physicians’ assistants, and therapists (physical and mental 14 health) are not “acceptable medical sources” for the purpose of establishing if a 15 claimant has a medically determinable impairment. 16 416.913(a). 17 impairment and how it affects a claimant’s ability to work. 20 C.F.R. §§ 404.1513(d); 18 416.913(d). 20 C.F.R. §§ 404.1513(a); Their opinions are, however, relevant to show the severity of an 19 Bethany Lynn, M.D., at Confluence Family Medicine, treated Plaintiff for 20 physical impairments, although the length of that treating physician relationship is not 21 apparent from the record. It is unclear how long Dr. Lynn treated the Plaintiff before 22 the doctor, on August 7, 2014, completed a “Physical Functional Evaluation” for the 23 Washington State Department of Social & Health Services (DSHS). Dr. Lynn noted 24 Plaintiff was on Cymbalta for fibromyalgia which apparently had been diagnosed in 25 2011, and had carpal tunnel surgery on her right wrist in 2012, and on her left hand 26 in 2013. (AR at p. 523). Dr. Lynn rated Plaintiff’s carpal tunnel syndrome and 27 fibromyalgia as “marked” impairments causing “[v]ery significant interference with 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8 1 the ability to perform one or more basic work-related activities.” (AR at p. 524). Dr. 2 Lynn indicated Plaintiff was limited to “sedentary” work defined as the ability to lift 3 10 pounds maximum and frequently lift or carry lightweight articles, and the ability 4 to walk or stand only for brief periods. (AR at p. 525). In the evaluation form, Dr. 5 Lynn did not mention any objective findings supporting the physical limitations 6 opined by her and instead stated that “[p]sychiatric diagnoses affect functioning, 7 leaving house, memory, focus, communicating with others, making and keeping 8 appointments.” (AR at p. 524). The doctor noted that a “psychiatric consult” was 9 pending and the treatment recommended by her was “counseling and psychiatric 10 care.” (AR at p. 525). Consistent therewith, in her progress notes from August 16, 11 2014, Dr. Lynn stated she thought Plaintiff’s “anxiety and advanced depression are 12 the most prohibitive to her ability to obtain and keep a job.” (AR at p. 637). She 13 added that Plaintiff’s “carpal tunnel causes pain in wrists and weakness in hands that 14 causes a moderate amount of difficulty in fine movements/computer work/ writing” 15 and Plaintiff’s fibromyalgia “causes pain in her back and hips and most of her body 16 which affects prolonged standing or sitting and manual labor.” (AR at p. 636). 17 In June of 2015, Dr. Lynn completed a one page “Medical Questionnaire” at 18 the request of Plaintiff’s counsel at the time. The doctor indicated Plaintiff was not 19 capable of performing any type of work on a reasonably continuous and sustained 20 basis due “severe anxiety & panic attacks, bipolar spectrum, chronic neck pain, 21 fibroymyalgia [and] chronic knee pain.” (AR at p. 898). 22 This appears to be the full extent of the medical records attributable to Dr. 23 Lynn. The ALJ assigned “little weight” to the assessments of Dr. Lynn because she 24 did not cite to any objective information, her findings were inconsistent with 25 objective evaluations, and she was the only physician who indicated Plaintiff could 26 not perform at a “light” exertional level.” (AR at p. 33). It is accurate that Dr. Lynn 27 did not cite to any objective information and her findings were inconsistent with 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9 1 objective evaluations as discussed by the ALJ in her decision (AR at pp. 30 and 31), 2 and as discussed by Dr. Lorber during his testimony at the hearing (AR at pp. 74-82). 3 Dr. Lorber offered opinions about Plaintiff’s exertional and physical non-exertional 4 limitations which provided the basis for the ALJ’s physical RFC determination. (AR 5 at pp. 82-86).1 The ALJ offered “specific and legitimate” reasons to give “little 6 weight” to the functional assessments of Dr. Lynn and those reasons are supported 7 by “substantial evidence” in the record, including the opinion of Dr. Lorber. 8 As noted above, Dr. Lynn thought Plaintiff’s mental impairments presented the 9 greatest barrier to Plaintiff’s ability to keep and obtain a job. On August 26, 2014, 10 John Arnold, Ph.D., completed a Psychological/Psychiatric Evaluation for DSHS. Dr. 11 Arnold performed a “Semi-Structured Clinical Interview,” a MSE (Mental Status 12 Examination), and administered the Rey 15-Item Memory Test. (AR at p. 526). 13 While he noted that Plaintiff had received outpatient treatment in New York State for 14 depression and PTSD (Post-Traumatic Stress Disorder) and was taking certain 15 psychiatric medications (Cymbalta, Xanax, Clonazepam, etc.), there is no indication 16 Dr. Arnold reviewed any mental health records from New York or anywhere else. 17 (AR at p. 526). Dr. Arnold’s clinical findings were that Plaintiff had a depressed 18 mood and an anxious mood. (AR at p. 527). He diagnosed the Plaintiff with “PTSD, 19 Delayed Onset, Chronic,” “Major Depression, Recurrent, Severe w/psychotic 20 features,” and “R/O [Rule Out] Somatoform Disorder” with an onset date of 21 December 31, 1983. (AR at p. 527). He indicated that Plaintiff had a number of 22 23 1 24 25 26 27 28 As the ALJ pointed out, although Plaintiff complained of bilateral hand/wrist pain, electromyography (EMG) testing was unremarkable (AR at p. 26). Dr. Lorber testified there was no evidence of ongoing carpal tunnel syndrome or residuals (AR at p. 74), and indicated there was no restriction on fine manipulation or handling. (AR at p. 86). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10 1 “marked” limitations and a “severe” limitation in the ability to complete a normal 2 work day and work week without interruptions from psychologically based 3 symptoms. (AR at p. 528). A “severe” limitation means the inability to perform the 4 particular activity in regular competitive employment or outside of a sheltered 5 workshop. (AR at p. 528). 6 Phyllis Sanchez, Ph.D., reviewed the medical evidence for DSHS and 7 concurred with Dr. Arnold’s assessment and the limitations opined by him. (AR at 8 pp. 531-33; 535).2 9 The ALJ concluded the mild to moderate limitations opined by Dr. Arnold were 10 consistent with the record, but “the marked to severe limitations are not given much 11 weight since other evidence in the record does not support them and the mental status 12 examination showed some deficits but not to this degree” and “[p]resumably, Dr. 13 Arnold relied heavily on [Plaintiff’s] subjective reporting, as he did not provide 14 objective information to support these significant limitations.” (AR at p. 33). As 15 noted above, there is nothing in the record indicating Dr. Arnold relied on anything 16 other than his one time encounter with Plaintiff. And it is true that his mental status 17 examination did not reveal any serious deficits other than a depressed/anxious mood. 18 (AR at pp. 529-30). 19 Dr. Arnold made no mention of reviewing the psychological evaluation 20 conducted by Jennifer J. Schnitzer, Ph.D., in North Carolina in December 2013. Dr. 21 Schnitzer noted that Plaintiff “has a historical ability to conform to social standards, 22 comply with rules, cooperate with authority figures and interact with her peers in an 23 24 25 26 27 2 Although a Ph.D., and not an M.D. or a D.O., Dr. Sanchez also concurred with the assessment of Dr. Lynn and the physical limitations opined by her. (AR at pp. 534 and 536). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11 1 appropriate manner.” (AR at p. 503). Plaintiff told Dr. Schnitzer she had psychiatric 2 care roughly six months ago after being robbed at gunpoint in New York and had 3 been prescribed Cymbalta and Xanax. (AR at p. 503). Dr. Schnitzer’s mental status 4 examination of the Plaintiff was unremarkable. (AR at pp. 503-04). Dr. Schnitzer 5 diagnosed the Plaintiff with PTSD and offered the following conclusion: 6 7 8 9 10 Regarding the claimant’s mental ability to perform the following work activities, she is capable of following, understanding, and retaining simple directions and instructions. She can sustain attention to perform simple repetitive tasks. She can relate appropriately with others to include fellow workers and supervisors. The claimant can appropriately tolerate the stress and pressures associated with day-to-day work activity. (AR at p. 504). 11 The ALJ assigned “great weight” to Dr. Schnitzer’s assessment, finding that 12 the limitation to simple, repetitive tasks was consistent with the record. (AR at p. 32). 13 The ALJ, however, included more extensive social restrictions based on the testimony 14 of Dr. Moore at the hearing. Based on her review of the record, Dr. Moore testified 15 she saw no evidence of limitation in Plaintiff’s ability to perform daily living 16 activities and noted that Plaintiff lived independently. (AR at p. 61). Dr. Moore 17 testified she thought the most significant functional problem for the Plaintiff was 18 anxiety because of Plaintiff’s “histrionic style of reporting in the impulsive moving 19 in and out of relationships [and] difficulties with her family.” (AR at p. 61). The 20 doctor opined that Plaintiff had moderate to marked social limitations. (AR at p. 61). 21 Dr. Moore summed up Plaintiff’s mental limitations as follows: 22 23 24 25 26 27 28 I don’t think she would have difficulties understanding, remembering or carrying out very simple instructions. I think that should not be a problem. She can probably handle somewhat more complex instructions and work-like tasks as well. I think her problems are in the social domain. I would not expect her to work with the general public, so no public contact. I would not expect her to work in a teamwork kind of placement with coworkers . . . . (AR at p. 62). The ALJ assigned “great weight” to Dr. Moore’s opinion and adopted that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12 1 opinion as Plaintiff’s mental RFC. (AR at p. 34). This was appropriate as Dr. 2 Moore’s opinion is supported by, and consistent with, other evidence in the record 3 and the ALJ offered “specific and legitimate” reasons for discounting Dr. Arnold’s 4 assessment of Plaintiff’s limitations, particularly so in light of the assessments 5 provided by Dr. Schnitzer and Dr. Moore.3 6 7 SYMPTOM TESTIMONY 8 Where, as here, the Plaintiff has produced objective medical evidence of an 9 underlying impairment that could reasonably give rise to some degree of the 10 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 11 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Burrell 12 v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 13 1014 (9th Cir. 2014). If an ALJ finds a claimant’s subjective assessment unreliable, 14 “the ALJ must make a credibility determination with findings sufficiently specific to 15 permit [a reviewing] court to conclude that the ALJ did not arbitrarily discredit [the] 16 claimant’s testimony.” 17 Among other things, the ALJ may consider: 18 truthfulness; 2) inconsistencies in the claimant's testimony or between her testimony Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). 1) the claimant's reputation for 19 20 3 The ALJ noted that Dr. Arnold’s DSHS evaluation was “conducted for a 21 22 23 24 25 26 27 28 purpose separate and distinct from Social Security Administration disability determinations.” (AR at p. 33). The court does not consider this to be a “specific and legitimate” reason for discounting Dr. Arnold’s opinion. Nonetheless, the other reasons offered by the ALJ for discounting Dr. Arnold’s opinion are “specific and legitimate.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 13 1 and her conduct; 3) the claimant’s daily living activities; 4) the claimant's work 2 record; and 5) testimony from physicians or third parties concerning the nature, 3 severity, and effect of claimant's condition. Id. Subjective testimony cannot be 4 rejected solely because it is not corroborated by objective medical findings, but 5 medical evidence is a relevant factor in determining the severity of a claimant’s 6 impairments. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 7 The ALJ found the Plaintiff’s subjective complaints were not reasonably 8 consistent with the medical evidence (AR at p. 30) and the Plaintiff “can perform a 9 full range of daily activities, which is inconsistent with the nature, severity and 10 subjective complaints of the claimant.” (AR at p. 31). In his decision, the ALJ 11 detailed the unremarkable physical examination findings regarding Plaintiff and the 12 conservative treatment provided to her. (AR at pp. 30 and 31). Dr. Lorber reviewed 13 these things in arriving at his opinion regarding Plaintiff’s physical RFC which was 14 adopted by the ALJ. 15 With regard to Plaintiff’s mental impairments, the ALJ detailed the Plaintiff’s 16 unremarkable mental status examinations and noted the various activities engaged in 17 by the Plaintiff (AR at p. 31), including traveling to New York and back (January 18 2015, AR at p. 737)), and her going back to college to get a GED and then planning 19 on taking college courses (April 2015, AR at p. 617). As discussed above, Dr. Moore 20 saw no evidence of limitation in Plaintiff’s ability to perform daily living activities 21 and noted that Plaintiff lived independently. 22 The ALJ offered clear and convincing reasons supported by substantial 23 evidence for discounting Plaintiff’s testimony regarding the severity of her symptoms 24 and her asserted limitations. 25 26 27 LAY WITNESS STATEMENT Plaintiff’s friend, Manal Alhussin, completed a Third Party Function Report 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 14 1 on the Plaintiff’s behalf, dated September 12, 2013. Alhussin indicated he had known 2 Plaintiff for 10 years. He described what he had observed of Plaintiff’s abilities when 3 she lived in New York. (AR at pp. 415-422). 4 Lay testimony as to a claimant’s symptoms or how an impairment affects the 5 claimant’s ability to work is competent evidence that must be considered by an ALJ. 6 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 7 competent lay witness testimony, the ALJ “must give reasons that are germane to 8 each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). In order to discount 9 The ALJ gave partial weight to Alhussin’s assessment, finding that although 10 the record supported some of the limitations he opined regarding Plaintiff’s 11 impairments, those limitations were “not at the disabling level and Albussin’s opinion 12 is not consistent with the totality of the record evidence.” (AR at pp. 34-35). To the 13 extent Alhussin’s statement is in fact inconsistent with the medical opinions discussed 14 above 15 inconsistency constitutes a specific and “germane” reason to discount Albussin’s 16 statement. regarding Plaintiff’s exertional and non-exertional limitations, this 17 18 STEP FIVE ANALYSIS 19 Because the ALJ properly discounted the opinions of Drs. Lynn and Arnold, 20 and properly discounted the symptoms and limitations testimony of Plaintiff, his RFC 21 determination is supported by substantial evidence. This RFC was presented to the 22 VE in hypothetical questioning and the VE opined there were jobs existing in 23 significant numbers in the national economy which Plaintiff is capable of performing. 24 (AR at pp. 122-26). The ALJ did not commit any error at step five because all of the 25 limitations supported by substantial evidence were included in his questioning of the 26 VE. 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 15 CONCLUSION 1 2 The ALJ rationally interpreted the evidence and “substantial evidence”- more 3 than a scintilla, less than a preponderance- supports his decision that Plaintiff is not 4 disabled. 5 Defendant’s Motion For Summary Judgment (ECF No. 14) is GRANTED and 6 Plaintiff’s Motion For Summary Judgment (ECF No. 13) is DENIED. The 7 Commissioner's decision is AFFIRMED. 8 IT IS SO ORDERED. 9 10 11 The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. The file shall be CLOSED. DATED this 25th day of June, 2018. 12 13 14 15 s/ Lonny R. Suko LONNY R. SUKO Senior United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
