Moore v. Commissioner of Social Security, No. 2:2017cv00363 - Document 20 (E.D. Wash. 2018)
Court Description: ORDER Denying 17 Plaintiff's Motion for Summary Judgment and Granting 18 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (PL, Case Administrator)
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Moore 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 Dec 28, 2018 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ROBERT M, No. 2:17-cv-00363-MKD Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 17, 18 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 17, 18. The parties consented to proceed before a magistrate judge. ECF No. 15 8. The Court, having reviewed the administrative record and the parties’ briefing, 16 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 17 motion, ECF No. 17, and grants Defendant’s motion, ECF No. 18. 18 19 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 20 21 ORDER - 1 Dockets.Justia.com 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 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 7 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 8 (quotation and citation omitted). Stated differently, substantial evidence equates to 9 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 10 citation omitted). In determining whether the standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in 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, 15 1156 (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 19 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 20 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 21 ORDER - 2 1 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 2 decision generally bears the burden of establishing that it was harmed. Shinseki v. 3 Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 11 “of such severity that he is not only unable to do his previous work[,] but cannot, 12 considering his age, education, and work experience, engage in any other kind of 13 substantial gainful work which exists in the national economy.” 42 U.S.C. § 14 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 17 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 18 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 19 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 20 C.F.R. § 416.920(b). 21 ORDER - 3 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 4 “any impairment or combination of impairments which significantly limits [his] 5 physical or mental ability to do basic work activities,” the analysis proceeds to step 6 three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy this 7 severity threshold, however, the Commissioner must find that the claimant is not 8 disabled. 20 C.F.R. § 416.920(c). 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude 11 a person from engaging in substantial gainful activity. 20 C.F.R. § 12 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must pause to assess 17 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his limitations, 20 C.F.R. § 416.945(a)(1), is 20 relevant to both the fourth and fifth steps of the analysis. 21 ORDER - 4 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 performed in the past 3 (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of 4 performing past relevant work, the Commissioner must find that the claimant is not 5 disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing such 6 work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 14 other work, analysis concludes with a finding that the claimant is disabled and is 15 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 21 ORDER - 5 1 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 2 700 F.3d 386, 389 (9th Cir. 2012). 3 4 ALJ’S FINDINGS On October 23, 2014, Plaintiff applied for Title XVI supplemental security 5 income benefits alleging a disability onset date of September 14, 2013. Tr. 91, 6 291-96. The application was denied initially, Tr. 224-27, and on reconsideration, 7 Tr. 231-33. Plaintiff appeared before an administrative law judge (ALJ) on July 8 20, 2016. Tr. 81-132. On August 30, 2016, the ALJ denied Plaintiff’s claim. Tr. 9 18-35. 10 At step one of the sequential evaluation process, the ALJ found Plaintiff has 11 not engaged in substantial gainful activity since October 23, 2014. Tr. 24. At step 12 two, the ALJ found that Plaintiff has the following severe impairments: bilateral 13 degenerative joint disease of the knees, sleep apnea, asthma, obesity, 14 gastroesophageal reflux disease (GERD), ulcerative reflux esophagitis, irritable 15 bowel syndrome (IBS), fibromyalgia, affective disorder, and anxiety. Tr. 24. 16 At step three, the ALJ found Plaintiff does not have an impairment or 17 combination of impairments that meets or medically equals the severity of a listed 18 impairment. Tr. 25. The ALJ then concluded that Plaintiff has the RFC to perform 19 sedentary work with the following limitations: 20 21 ORDER - 6 1 2 3 4 5 6 7 occasional climbing of ramps, stairs, and scaffolds; occasional balancing; and rare stooping, crouching, kneeling or crawling more than 15% of the time. [Plaintiff] will need a sit-stand option hourly for 5 minutes while at a workstation, and will use a hand held assistive device. [Plaintiff] can have occasional exposure to extreme cold, heat, and humidity; and occasional exposure to excessive vibrations, irritants, poor ventilation, moving machinery, and unprotected heights. [Plaintiff] must work in a position requiring no more than frequent routine judgment, defined as making simple work related decisions, and frequent simple workplace changes. [Plaintiff] needs work that requires no more than frequent exposure to the public, and no working in crowds. [Plaintiff] can frequently interact with supervisors and coworkers, and is unable to work at production rate jobs. 8 Tr. 27. 9 At step four, the ALJ found Plaintiff is able to perform past relevant work as 10 a telephone solicitor. Tr. 33. In the alternative, at step five, the ALJ found that, 11 considering Plaintiff’s age, education, work experience, RFC, and testimony from 12 the vocational expert, there were additional jobs that existed in significant numbers 13 in the national economy that Plaintiff could perform, such as, charge account clerk 14 and printed circuit board assembly. Tr. 35. Therefore, the ALJ concluded Plaintiff 15 was not under a disability, as defined in the Social Security Act, from the alleged 16 onset date of October 23, 2014, though the date of the decision. Tr. 35. 17 On September 15, 2017, the Appeals Council denied review of the ALJ’s 18 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 19 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 20 21 ORDER - 7 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him supplemental security income benefits under Title XVI of the Social Security 4 Act. Plaintiff raises the following issues for review: 5 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 6 2. Whether the ALJ properly evaluated the medical opinion evidence. 7 ECF No. 17 at 1, 4. 8 DISCUSSION 9 A. Plaintiff’s Symptom Claims 10 11 Plaintiff faults the ALJ for failing to rely on reasons that were clear and convincing in discrediting his symptom claims. ECF No. 17 at 10-13. 12 13 14 An ALJ engages in a two-step analysis to determine whether to discount a claimant’s testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2.1 “First, the ALJ must determine whether there is objective 15 16 17 1 At the time of the ALJ’s decision on March 25, 2016, the regulation that 18 governed the evaluation of symptom claims was SSR 16-3p, which superseded 19 SSR 96-7p effective March 24, 2016. SSR 16-3p; Titles II and XVI: Evaluation of 20 Symptoms in Disability Claims, 81 Fed. Reg. 15776, 15776 (Mar. 24, 2016). The 21 ORDER - 8 1 medical evidence of an underlying impairment which could reasonably be 2 expected to produce the pain or other symptoms alleged.” Molina, 674 F.3d at 3 1112. “The claimant is not required to show that [his] impairment could 4 reasonably be expected to cause the severity of the symptom [he] has alleged; [he] 5 need only show that it could reasonably have caused some degree of the 6 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 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) (citations 11 omitted). General findings are insufficient; rather, the ALJ must identify what 12 symptom claims are being discounted and what evidence undermines these claims. 13 Id.; Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. Barnhart, 278 14 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why he 15 discounted claimant’s symptom claims). “The clear and convincing [evidence] 16 standard is the most demanding required in Social Security cases.” Garrison v. 17 18 ALJ’s decision did not cite SSR 16-3p, but cited SSR 96-4p, which was rescinded 19 effective June 14, 2018, in favor of the more comprehensive SSR 16-3p. Neither 20 party argued any error in this regard. 21 ORDER - 9 1 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. 2 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 3 Factors to be considered in evaluating the intensity, persistence, and limiting 4 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 5 duration, frequency, and intensity of pain or other symptoms; 3) factors that 6 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 7 side effects of any medication an individual takes or has taken to alleviate pain or 8 other symptoms; 5) treatment, other than medication, an individual receives or has 9 received for relief of pain or other symptoms; 6) any measures other than treatment 10 an individual uses or has used to relieve pain or other symptoms; and 7) any other 11 factors concerning an individual’s functional limitations and restrictions due to 12 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 13 416.929(c)(1)-(3). The ALJ is instructed to “consider all of the evidence in an 14 individual’s record,” “to determine how symptoms limit ability to perform work15 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 16 While the ALJ determined that Plaintiff’s medically determinable 17 impairments could reasonably be expected to cause some of the alleged symptoms, 18 the ALJ discounted Plaintiff’s claims concerning the intensity, persistence, and 19 limiting effects of the symptoms. Tr. 29. 20 21 ORDER - 10 1 1. Inconsistent with the Objective Medical Evidence 2 The ALJ found that the severity of Plaintiff’s reported physical and mental- 3 health symptoms were unsupported by the objective medical evidence. Tr. 29-30. 4 An ALJ may not discredit a claimant’s symptom testimony and deny benefits 5 solely because the degree of the symptoms alleged is not supported by objective 6 medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); 7 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 8 597, 601 (9th Cir. 1989). However, the medical evidence is a relevant factor in 9 determining the severity of a claimant’s symptoms and their disabling effects. 10 Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). Here, as 11 detailed by the ALJ, the objective medical evidence is inconsistent with Plaintiff’s 12 disabling claims. For instance, the medical notes from a May 2013 examination 13 stated that Plaintiff did not have joint deformity, swelling, erythema, heat, or 14 effusion, and he retained full range of motion bilaterally. Tr. 468. These notes 15 also stated that Plaintiff’s range of motion was limited by his body mass, not his 16 joints. Tr. 468. In addition, imaging in May 2013 reflected only mild bilateral 17 bicompartmental osteoarthrosis. Tr. 491. Regarding Plaintiff’s asthma, tests and 18 imaging reflected no acute cardiopulmonary disease and sinus rhythm was within 19 normal limits. Tr. 496, 843, 1318. The ALJ also pointed to the objective medical 20 evidence related to Plaintiff’s sleep disorder, chronic pain, gastrointestinal and 21 ORDER - 11 1 bowel impairments. See, e.g., Tr. 1562 (reporting that he is sleeping better); Tr. 2 476 (noting normal balance and gait and no skeletal tenderness or deformity); Tr. 3 543 (noting that Plaintiff ambulated down the hallway with no limp or pain 4 behaviors); Tr. 560 (noting negative gastric emptying). The ALJ also highlighted 5 the medical records that were inconsistent with Plaintiff’s claim that his anxiety 6 was disabling. See, e.g., Tr. 536, 567-68 (Plaintiff’s judgment, insight, reasoning, 7 and attention are good, as well as affect appropriate and attitude cooperative.); Tr. 8 979 (noting that affect, judgment, and mood were normal); Tr. 1535, 1559 (noting 9 that mood, affect, judgment, and memory were normal). It was the ALJ’s role to 10 weigh the evidence. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599-600 11 (9th Cir. 1999). The ALJ’s finding that the objective medical evidence is 12 inconsistent with Plaintiff’s claim that his physical and mental conditions were 13 disabling is rationale and supported by substantial evidence. 14 Plaintiff submits that the ALJ’s statement that “the new and material 15 evidence presented by [Plaintiff] for the instant proceeding warrants not adopting 16 the [RFC] from” Plaintiff’s prior disability-application opinion, contradicts the 17 ALJ’s finding that Plaintiff’s conditions are not as disabling as Plaintiff claims. 18 ECF No. 17 at 12 (citing Tr. 28). This argument is unpersuasive. The ALJ’s 19 finding that Plaintiff had additional severe impairments necessitating a new RFC is 20 not inconsistent with the ALJ’s finding that Plaintiff’s reported symptoms were not 21 ORDER - 12 1 as severe has he claimed. The step-two assessment of severe impairments is a 2 different assessment than the extent to which the severe impairments restrict the 3 Plaintiff’s residual functional capacity—a step-three assessment. 20 C.F.R. §§ 4 416.920, 416.945(a). 5 2. Improvement with Treatment 6 The ALJ also found that Plaintiff’s reported symptoms improved with 7 treatment. Tr. 29. The effectiveness of treatment is a relevant factor in 8 determining the severity of a claimant’s symptoms. 20 C.F.R. § 404.1529(c)(3) 9 (2011); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 10 2006); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (A favorable 11 response to treatment can undermine a claimant’s complaints of debilitating pain or 12 other severe limitations.). Here, the ALJ noted that Plaintiff’s depression 13 symptoms and sleep disorders improved with medication. Tr. 29 (citing Tr. 487 14 (“You are improving very nicely.”); Tr. 489-90 (noting that Plaintiff’s affect was 15 improved given the medication change); Tr. 521 (noting improving in overall 16 appearance and that Plaintiff is not anxious). Likewise, the ALJ found that 17 Plaintiff’s physical pain was treated effectively with medication. Tr. 30 (citing Tr. 18 487-89). The ALJ reasonably concluded that the record showed a history of 19 improvement with treatment: improvement which was inconsistent with the level 20 21 ORDER - 13 1 of impairment Plaintiff alleged. This was a clear and convincing reason to 2 discount Plaintiff’s symptom claims. 3 3. Failure to Follow Treatment Recommendations 4 The ALJ discounted Plaintiff’s reported symptoms because he did not 5 pursue recommended treatment. Tr. 30. Unexplained, or inadequately explained, 6 failure to seek treatment or follow a prescribed course of treatment may serve as a 7 basis to discount the claimant’s reported symptoms, unless there is a good reason 8 for the failure. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Here, the ALJ 9 noted that Plaintiff failed to participate in the recommended healthy living 10 workshop because, as Plaintiff reported, he “has just been sort of lazy and has not 11 started it yet.” Tr. 30 (citing Tr. 567). Also contrary to his providers’ 12 recommendations, Plaintiff was not interested in exercising or changing his eating 13 habits. Tr. 1562, 1567. This record supports a finding that Plaintiff did not follow 14 a prescribed course of treatment. 15 But relying on Yvonne Belcourt’s opinion, Plaintiff submits that Plaintiff’s 16 treatment noncompliance was due to his affective disorder and anxiety disorder 17 and therefore his noncompliance should not be used as a basis to discount his 18 reported symptoms. ECF No. 17 at 12 (citing Tr. 446 and Nguyen v. Chater, 100 19 F.3d 1462, 1465 (9th Cir. 1996)). However, as is discussed below, Ms. Belcourt 20 stated that Plaintiff’s physical condition—not his mental condition—contributed to 21 ORDER - 14 1 his untidy living conditions. Therefore, Ms. Belcourt’s statements do not support 2 an argument that Plaintiff’s treatment noncompliance was the result of his mental 3 health condition rather than a deliberate choice. The ALJ’s interpretation of the 4 record—that Plaintiff was not motivated to participate in treatment—is a rational 5 interpretation. The ALJ’s conclusion is entitled to deference. See Orn, 495 F.3d at 6 632 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see 7 also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (noting “[w]here 8 evidence is susceptible to more than one rational interpretation,” the ALJ’s 9 conclusion will be upheld). 10 In sum, the ALJ cited specific, clear, and convincing reasons to discount 11 Plaintiff’s symptom claims. 12 13 B. Medical Opinion Evidence Plaintiff faults the ALJ for improperly rejecting the opinions of treating 14 physician Marven Cabling, M.D.; examining psychologist John Arnold, Ph.D.; and 15 caregiver Yvonne Belcourt. ECF No. 17 at 5-10. 16 There are three types of physicians: “(1) those who treat the claimant 17 (treating physicians); (2) those who examine but do not treat the claimant 18 (examining physicians); and (3) those who neither examine nor treat the claimant 19 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 20 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 21 ORDER - 15 1 Generally, a treating physician’s opinion carries more weight than an examining 2 physician’s opinion, and an examining physician’s opinion carries more weight 3 than a reviewing physician’s opinion. Id. at 1202. 4 If a treating or examining physician’s opinion is uncontradicted, the ALJ 5 may reject it only by offering “clear and convincing reasons that are supported by 6 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 7 “However, the ALJ need not accept the opinion of any physician, including a 8 treating physician, if that opinion is brief, conclusory, and inadequately supported 9 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 10 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 11 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 12 may only reject it by providing specific and legitimate reasons that are supported 13 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830– 14 31). 15 The opinion of an acceptable medical source such as a physician or 16 psychologist is given more weight than that of an “other source.” See SSR 06-03p 17 (Aug. 9, 2006), available at 2006 WL 2329939 at *2; 20 C.F.R. § 416.927(a). 18 “Other sources” include nurse practitioners, physician assistants, therapists, 19 teachers, social workers, and other non-medical sources. 20 C.F.R. §§ 20 404.1513(d), 416.913(d) (2013). The ALJ need only provide “germane reasons” 21 ORDER - 16 1 for disregarding an “other source” opinion. Molina, 674 F.3d at 1111. However, 2 the ALJ is required to “consider observations by nonmedical sources as to how an 3 impairment affects a claimant’s ability to work.” Sprague v. Bowen, 812 F.2d 4 1226, 1232 (9th Cir. 1987). 5 1. Dr. Cabling2 6 Dr. Cabling examined Plaintiff on four occasions between July 2015 and 7 June 20, 2016 and diagnosed Plaintiff with chronic pain syndrome from 8 fibromyalgia, sleep apnea, and obesity. Tr. 1334. Dr. Cabling opined that 9 Plaintiff’s pain and stress would frequently interfere with his attention and 10 concentration during a typical work day and estimated that Plaintiff could only sit 11 for forty-five minutes, stand for thirty minutes, and walk for twenty minutes at a 12 time. Tr. 1334-35. He also opined that Plaintiff needed to use a cane to walk, take 13 one-two unscheduled breaks daily, be off task approximately fifteen-to-twenty 14 percent of the workday, and miss at least two days per month due to his 15 impairments. Tr. 1336-37. 16 The ALJ assigned this opinion partial weight. Tr. 32. Because Dr. 17 Cabling’s opinion was contradicted by Patricia Kraft Ph.D., Tr. 164-65, the ALJ 18 19 20 21 2 The ALJ decision referred to Dr. Marven Cabling as “Marren Cablin.” ORDER - 17 1 was required to provide specific and legitimate reasons for rejecting Dr. Cabling’s 2 opinion. Bayliss, 427 F.3d at 1216. 3 First, the ALJ gave partial weight to Dr. Cabling’s opinion because Dr. 4 Cabling noted that his opined functional assessments were “estimates.” Tr. 32. A 5 medical opinion may be rejected by the ALJ if it is conclusory or inadequately 6 supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. An ALJ may 7 permissibly reject functional assessments that are not supported by any 8 explanation, treatment notes, or findings. Crane v. Shalala, 76 F.3d 251, 253 (9th 9 Cir. 1996); Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). Here, the ALJ 10 noted that Dr. Cabling admitted that he was not able to provide a thorough 11 evaluation of Plaintiff’s functioning, noting that Dr. Cabling had only seen Plaintiff 12 four times. Plaintiff submits the ALJ erred by discounting Dr. Cabling’s opinion 13 on the basis that Dr. Cabling had only treated Plaintiff four times. ECF No. 17 at 14 7. Plaintiff’s argument is without merit because, regardless of the number of times 15 Dr. Cabling treated Plaintiff, Dr. Cabling himself noted that his functional 16 assessments were merely “estimates” and that he was “not sure” how long Plaintiff 17 could stand and walk in an eight-hour workday. Tr. 1335-37. Thus, that Dr. 18 Cabling’s functional assessments were estimates was a valid basis to discount the 19 opined functional assessments. The ALJ provided a specific and legitimate reason 20 21 ORDER - 18 1 supported by substantial evidence to discount Dr. Cabling’s functional 2 assessments. 3 Second, the ALJ gave partial weight to Dr. Cabling’s opinion that Plaintiff 4 would be absent two days a month and unable to complete an eight-hour workday 5 because these opinions were inconsistent with the objective medical evidence. Tr. 6 32. Relevant factors to evaluating any medical opinion include the amount of 7 relevant evidence that supports the opinion, the quality of the explanation provided 8 in the opinion, and the consistency of the medical opinion with the record as a 9 whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d 10 at 631. An ALJ may choose to give more weight to an opinion that is more 11 consistent with the evidence in the record. 20 C.F.R. § 416.927(c)(4) (“[T]he more 12 consistent an opinion is with the record as a whole, the more weight we will give to 13 that opinion.”). Here, the imaging of Plaintiff’s abdominal, chest, and knees either 14 were negative or showed only minor impairments. Tr. 491, 496, 843, 1318. The 15 medical evidence does not indicate that Plaintiff’s physical or mental impairments, 16 singly or in combination, were of such severity to be disabling, when prescribed 17 medication was taken and recommended eating and exercise performed. See, e.g., 18 Tr. 468, 476, 487, 489, 524, 536, 543, 560, 567-68, 979, 1284, 1535, 1559, 1562. 19 To the extent there was conflicting evidence in the record, it was the ALJ’s role to 20 weigh the evidence. See Morgan, 169 F.3d at 599-600. There is substantial 21 ORDER - 19 1 objective medical evidence conflicting with Dr. Cabling’s assessments that 2 Plaintiff was unable to complete an eight-hour work day without additional breaks 3 and would be absent two days a month. The ALJ provided specific and legitimate 4 reasons supported by substantial evidence to discount Dr. Cabling’s opinion. 5 Moreover, the ALJ incorporated exertional functional limitations into the RFC, 6 including, limiting Plaintiff to sedentary work with a sit-stand option hourly for 7 five minutes and permitting the use of a hand-held assistive device. Tr. 27. See 8 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“[A]n ALJ’s 9 assessment of a claimant adequately captures restrictions . . . where the assessment 10 is consistent with restrictions identified in the medical testimony.”). 11 2. Dr. Arnold 12 Dr. Arnold completed three Psychological/Psychiatric Evaluation forms, Tr. 13 505-08 (May 2013), Tr. 509-12 (April 2014), and Tr. 591-94 (January 2015). In 14 2013, Dr. Arnold diagnosed Plaintiff with dysthymic disorder; anxiety, not 15 otherwise specified with social phobia features; and rule out somatoform disorder. 16 Tr. 506. In 2014 and 2015, Dr. Arnold diagnosed Plaintiff with dysthymic 17 disorder; anxiety, not otherwise specified with obsessive compulsive disorder and 18 social phobia features; and pain disorder with both psychological factors and a 19 general medical condition. Tr. 510, 592. Dr. Arnold opined that Plaintiff was 20 21 ORDER - 20 1 largely moderately limited in non-exertional basic work activities but markedly 2 limited in the following non-exertional basic work activities: 3 • 2013: perform activities within a schedule, maintain regular 4 attendance, and be punctual within customary tolerances without 5 special supervision, Tr. 507; 6 • 2014: understand, remember, and persist in tasks by following 7 detailed instructions; perform activities within a schedule, maintain 8 regular attendance, and be punctual within customary tolerances 9 without special supervision, Tr. 511; and 10 • 2015: understand, remember, and persist in tasks by following 11 detailed instructions; adapt to changes in a routine work setting; and 12 complete a normal workday and workweek without interruptions 13 from psychologically based symptoms, Tr. 593. 14 The ALJ assigned partial weight to these opinions. Tr. 31. Because Dr. 15 Arnold’s opinion was contradicted by Nancy Winfrey, Ph.D., Tr. 107-19, the ALJ 16 was required to provide specific and legitimate reasons for rejecting Dr. Arnold’s 17 opinion. Bayliss, 427 F.3d at 1216. 18 First, the ALJ discounted Dr. Arnold’s opinions because the medical 19 evidence was not consistent with Dr. Arnold’s functional assessments. Tr. 31. An 20 ALJ may discredit physicians’ opinions that are unsupported by the record as a 21 ORDER - 21 1 whole. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2 2004). Here, the ALJ rationally found that Plaintiff’s examinations showed 3 minimal loss of psychiatric functioning resulting from his impairments and 4 therefore were inconsistent with Dr. Arnold’s marked restrictions. Tr. 31; see, e.g., 5 Tr. 536 (noting that Plaintiff’s appearance and affect were appropriate, attitude 6 cooperative, attention gained, and judgment and insight good); Tr. 568 (noting that 7 memory is intact, attitude cooperative, attention gained, reasoning, judgment, and 8 insight good); Tr. 979, 1535 (noting normal affect, judgment, and mood); Tr. 8839 84, 1004, 1036-39 (noting negative for depression, and alert, orientated, and 10 cooperative with staff). This was a specific and legitimate reason supported by 11 substantial evidence to discount Dr. Arnold’s opinions. 12 Second, the ALJ discounted Dr. Arnold’s opinions because the opined 13 limitations were inconsistent with Dr. Arnold’s mental status examinations of 14 Plaintiff. Tr. 31. An ALJ may reject opinions that are internally inconsistent or 15 not supported by that source’s data. Nguyen, 100 F.3d at 1464; Tommasetti, 533 16 F.3d at 1041 (Incongruity between an opinion and treatment records or notes is a 17 specific and legitimate reason to discount an opinion.). For instance, Plaintiff 18 functioned within normal limits in all categories, including orientation, perception, 19 concentration, abstract thoughts, insight, and judgment. Tr. 508, 512, 595. These 20 normal abilities are inconsistent with Dr. Arnold’s marked limitations. The 21 ORDER - 22 1 incongruity between Dr. Arnold’s observations and opinions served as a legitimate 2 and specific basis for the ALJ to discredit Dr. Arnold’s opinions. And while 3 Plaintiff’s memory did not test within normal limits, Tr. 508, 512, 595, Plaintiff’s 4 memory deficient was incorporated into the RFC by limiting Plaintiff to jobs 5 requiring simple work-related decisions and not at a production rate. Tr. 27. See 6 Stubbs-Danielson, 539 F.3d at 1174. 7 Plaintiff submits that it is odd that the ALJ relied on the testimony of Dr. 8 Winfrey over Dr. Arnold’s opinion as Dr. Winfrey deferred “the question of 9 [Plaintiff’s] limitations of being off task to the treating physician.” ECF No. 17 at 10 8. However, Dr. Winfrey deferred to a treating physician in regard to whether 11 Plaintiff’s physical conditions caused pain to such extent that he would be off task 12 as opined by Dr. Arnold. Tr. 115-16. As discussed above, the objective medical 13 evidence supports the ALJ’s finding that Plaintiff’s physical conditions are not so 14 severe that they would markedly restrict his non-exertional abilities. 15 The ALJ articulated specific and legitimate reasons for discounting Dr. 16 Arnold’s opinions. 17 3. Ms. Belcourt 18 Ms. Belcourt served as Plaintiff’s caregiver for the State of Washington as 19 an independent provider from 2015 through May 1, 2016. Tr. 446. Ms. Belcourt 20 helped Plaintiff with his housekeeping, medication management, shopping, and 21 ORDER - 23 1 minor personal care. Tr. 446. Ms. Belcourt reported that when she began, 2 Plaintiff’s apartment was a mess because it was infested with bed bugs and 3 unclean, and Plaintiff had “hoarding problems since he was not that mobile and did 4 not leave his apartment that much because of medical issues.” Tr. 446. 5 Ms. Belcourt is considered an “other source” under the regulations, 20 6 C.F.R. § 416.913(d) (2013); thus, the ALJ was required to cite germane reasons for 7 rejecting this opinion. See Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). 8 First, the ALJ discounted Ms. Belcourt’s opinion because it was consistent 9 with Plaintiff’s subjective complaints, which were in turn inconsistent with the 10 objective medical evidence. Tr. 32. Inconsistency with the medical evidence is a 11 germane reason to reject an opinion from an “other source.” Bayliss, 427 F.3d at 12 1218; Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001). And an ALJ may 13 reject an “other source” opinion that essentially reproduces the claimant’s 14 discounted testimony. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 15 (9th Cir. 2009). Here, because Ms. Belcourt’s opinion about Plaintiff’s inability to 16 care for his home, shop, and perform minor personal care are, for the reasons 17 summarized above, inconsistent with the level of impairment reflected in the 18 objective medical evidence, the ALJ properly discounted Ms. Belcourt’s opinion. 19 See Molina, 674 F.3d at 1114; Valentine, 574 F.3d at 694. This was a germane 20 reason to discount Ms. Belcourt’s opinion. 21 ORDER - 24 1 Next, the ALJ also found the statements were essentially a repeat of 2 Plaintiff’s allegations, which had been properly rejected. A non-medical opinion 3 may be rejected if it based on a claimant’s subjective complaints which were 4 properly discounted. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); 5 Morgan, 169 F.3d at 602; Fair, 885 F.2d at 604. This was a germane reason to 6 discount Ms. Belcourt’s opinion. 7 Finally, the ALJ discounted Ms. Belcourt’s opinion because she was not a 8 disinterested party with medical training and expertise necessary to assess 9 symptoms and their severity. Tr. 32. Defendant concedes these were not proper 10 grounds to discount Ms. Belcourt’s opinion. ECF No. 18 at 10; see Smolen v. 11 Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996); 20 C.F.R. § 404.1513(d) (2013) 12 (directing the ALJ to consider evidence from other sources, including caregivers, 13 about the claimant’s impairments and how they affect the claimant’s ability to 14 work). Notwithstanding this concession, any error is harmless because the ALJ 15 provided another germane reason, supported by substantial evidence, to discredit 16 Ms. Belcourt’s statements. See Molina, 674 F.3d at 1115. 17 18 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 19 ALJ’s decision is supported by substantial evidence and is free of harmful legal 20 error. Accordingly, IT IS HEREBY ORDERED: 21 ORDER - 25 1 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 2 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is 3 GRANTED. 4 3. The Clerk’s Office is to enter JUDGMENT in favor of Defendant. 5 The District Court Executive is directed to file this Order, provide copies to 6 counsel, and CLOSE THE FILE. 7 DATED December 28, 2018. 8 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 26
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