Springer v. Commissioner of Social Security, No. 2:2018cv00217 - Document 15 (E.D. Wash. 2019)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 9 - Signed by Judge Rosanna Malouf Peterson. (VR, Courtroom Deputy)

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Springer v. Commissioner of Social Security Doc. 15 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Aug 12, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JAMES JOSEPH S., NO: 2:18-CV-217-FVS 8 Plaintiff, v. 9 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 1 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 13 14 15 BEFORE THE COURT are the parties’ cross motions for summary judgment. ECF Nos. 9 and 12. This matter was submitted for consideration 16 17 18 19 20 1 Andrew M. Saul is now the Commissioner of the Social Security Administration. Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 without oral argument. The Plaintiff is represented by Attorney Dana C. Madsen. 2 The Defendant is represented by Special Assistant United States Attorney Lisa 3 Goldoftas. The Court has reviewed the administrative record, the parties’ 4 completed briefing, and is fully informed. For the reasons discussed below, the 5 Court GRANTS Defendant’s Motion for Summary Judgment, ECF No. 12, and 6 DENIES Plaintiff’s Motion for Summary Judgment, ECF No. 9. 7 JURISDICTION 8 Plaintiff James Joseph S. 2 protectively filed for supplemental security 9 income on July 8, 2015, alleging an onset date of March 15, 2004. Tr. 177. 10 Benefits were denied initially, Tr. 123-30, and upon reconsideration, Tr. 134-40. 11 Plaintiff appeared for a hearing before an administrative law judge (“ALJ”) on 12 February 21, 2017. Tr. 34-64. Plaintiff was represented by counsel and testified at 13 the hearing. Id. The ALJ denied benefits, Tr. 12-33, and the Appeals Council 14 denied review. Tr. 1. The matter is now before this court pursuant to 42 U.S.C. § 15 1383(c)(3). 16 / / / 17 / / / 18 19 2 20 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 decision. In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 BACKGROUND 2 The facts of the case are set forth in the administrative hearing and 3 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 4 Only the most pertinent facts are summarized here. 5 Plaintiff was 38 years old at the time of the hearing. Tr. 38. He has his 6 GED. Tr. 38. He lives with his mother, stepdaughter, daughter, and grandchild. 7 Tr. 38. Plaintiff has work history as a foundry laborer. Tr. 50, 61. He testified 8 that he cannot perform his past work because he has fatigue, PTSD, anxiety, and 9 depression. Tr. 42. 10 Plaintiff testified that he has strength problems in his hands, fatigue, MRSA, 11 Hepatitis C, right shoulder weakness, PTSD, depression, mood swings. Tr. 47-48, 12 55-58. He testified that he had a head injury in 2010 that required hospitalization, 13 and since that injury he has experienced migraine headaches three to five times per 14 week. Tr. 53-54. Plaintiff reported that he can walk one to two miles at a time, 15 stand in a line “all day if [he has] to,” bend over to pick things up, and lift 50 16 pounds maximum. Tr. 56-57. 17 18 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 19 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 20 limited; the Commissioner’s decision will be disturbed “only if it is not supported 21 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 2 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 3 (quotation and citation omitted). Stated differently, substantial evidence equates to 4 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 5 citation omitted). In determining whether the standard has been satisfied, a 6 reviewing court must consider the entire record as a whole rather than searching 7 for supporting evidence in isolation. Id. 8 9 In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. If the evidence in the record “is 10 susceptible to more than one rational interpretation, [the court] must uphold the 11 ALJ’s findings if they are supported by inferences reasonably drawn from the 12 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 13 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 14 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 15 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 16 party appealing the ALJ’s decision generally bears the burden of establishing that 17 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 18 19 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 20 the meaning of the Social Security Act. First, the claimant must be “unable to 21 engage in any substantial gainful activity by reason of any medically determinable ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 physical or mental impairment which can be expected to result in death or which 2 has lasted or can be expected to last for a continuous period of not less than twelve 3 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 4 “of such severity that he is not only unable to do his previous work[,] but cannot, 5 considering his age, education, and work experience, engage in any other kind of 6 substantial gainful work which exists in the national economy.” 42 U.S.C. § 7 1382c(a)(3)(B). 8 The Commissioner has established a five-step sequential analysis to 9 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 10 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 11 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 12 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 13 C.F.R. § 416.920(b). 14 If the claimant is not engaged in substantial gainful activity, the analysis 15 proceeds to step two. At this step, the Commissioner considers the severity of the 16 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 17 “any impairment or combination of impairments which significantly limits [his or 18 her] physical or mental ability to do basic work activities,” the analysis proceeds to 19 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 20 this severity threshold, however, the Commissioner must find that the claimant is 21 not disabled. 20 C.F.R. § 416.920(c). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 At step three, the Commissioner compares the claimant’s impairment to 2 severe impairments recognized by the Commissioner to be so severe as to preclude 3 a person from engaging in substantial gainful activity. 20 C.F.R. § 4 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 5 enumerated impairments, the Commissioner must find the claimant disabled and 6 award benefits. 20 C.F.R. § 416.920(d). 7 If the severity of the claimant’s impairment does not meet or exceed the 8 severity of the enumerated impairments, the Commissioner must pause to assess 9 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 10 defined generally as the claimant’s ability to perform physical and mental work 11 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 12 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 13 At step four, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing work that he or she has performed in 15 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 16 capable of performing past relevant work, the Commissioner must find that the 17 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 18 performing such work, the analysis proceeds to step five. 19 At step five, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing other work in the national economy. 21 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 must also consider vocational factors such as the claimant’s age, education and 2 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 3 adjusting to other work, the Commissioner must find that the claimant is not 4 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 5 other work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 10 capable of performing other work; and (2) such work “exists in significant 11 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 12 700 F.3d 386, 389 (9th Cir. 2012). 13 14 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 15 activity since July 8, 2015, the application date. Tr. 18. At step two, the ALJ 16 found that Plaintiff has the following severe impairments: depressive disorder; 17 bipolar disorder; anxiety disorder; personality disorder; history of substance use 18 disorder; and lumbago. Tr. 18. At step three, the ALJ found that Plaintiff does not 19 have an impairment or combination of impairments that meets or medically equals 20 the severity of a listed impairment. Tr. 18. The ALJ then found that Plaintiff has 21 the RFC ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 to perform light work as defined in 20 CFR 416.967(b) except he is limited to: avoiding all exposure to hazards, such as dangerous moving machinery and unprotected heights; simple, routine tasks with no production rate or pace work; only occasional and superficial interaction with the public; and only occasional interaction with coworkers. 4 Tr. 20. At step four, the ALJ found that Plaintiff is unable to perform any past 5 relevant work. Tr. 26. At step five, the ALJ found that considering Plaintiff’s age, 6 education, work experience, and RFC, there are jobs that exist in significant 7 numbers in the national economy that Plaintiff can perform, including: office 8 cleaner, collator operator, and small parts assembler. Tr. 26-27. On that basis, the 9 ALJ concluded that Plaintiff has not been under a disability, as defined in the 10 Social Security Act, since July 8, 2015, the date the application was filed. Tr. 27. 11 ISSUES 12 Plaintiff seeks judicial review of the Commissioner’s final decision denying 13 her supplemental security income benefits under Title XVI of the Social Security 14 Act. ECF No. 9. Plaintiff raises the following issues for this Court’s review: 15 1. Whether the ALJ properly considered Plaintiff’s symptom claims; and 16 2. Whether the ALJ properly weighed the medical opinion evidence. 17 DISCUSSION 18 A. Plaintiff’s Symptom Claims 19 An ALJ engages in a two-step analysis when evaluating a claimant’s 20 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 21 whether there is objective medical evidence of an underlying impairment which ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 could reasonably be expected to produce the pain or other symptoms alleged.” 2 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 3 required to show that her impairment could reasonably be expected to cause the 4 severity of the symptom she has alleged; she need only show that it could 5 reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 6 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)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 15 must make a credibility determination with findings sufficiently specific to permit 16 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 GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Here, the ALJ found Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause some of the alleged symptoms; however, 3 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of 4 these symptoms are not entirely consistent with the medical evidence and other 5 evidence in the record” for several reasons. Tr. 21. 6 7 1. Lack of Objective Medical Evidence First, the ALJ found “the objective findings in this case fail to provide strong 8 support for [Plaintiff’s] allegations of disabling symptoms and limitations.” Tr. 9 22. An ALJ may not discredit a claimant’s pain testimony and deny benefits solely 10 because the degree of pain alleged is not supported by objective medical evidence. 11 Rollins, 261 F.3d at 857; Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 12 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the medical evidence 13 is a relevant factor in determining the severity of a claimant’s pain and its disabling 14 effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). 15 Here, the ALJ set out the medical evidence contradicting Plaintiff’s claims 16 of disabling physical limitations during the relevant adjudicatory period, including: 17 normal and unremarkable physical examination findings in July 2015; normal gait 18 and station, with only brief pain behavior when he got up from a chair at the end of 19 the examination, in August 2015; tenderness in left paraspinal muscle, but 20 otherwise normal findings with regard to his back, and normal gait and station in 21 September 2015; unremarkable x-rays in Setember 2015, aside from mild L5-S1 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 disc degeneration; and reports by Plaintiff in December 2016 that he was not 2 experiencing back pain. Tr. 22 (citing Tr. 385, 391, 393, 395, 671). Similarly, the 3 ALJ outlined medical evidence inconsistent with Plaintiff’s allegations of disabling 4 mental health limitations. Tr. 22-23. For example, the ALJ noted consistently 5 normal and unremarkable mental status examination results across the relevant 6 adjudicatory period, including findings that Plaintiff was oriented to all spheres, 7 had appropriate mood and affect, was cooperative and insightful, had good long- 8 term memory, had normal speech, was amiable and euthymic, had good eye 9 contact, and had normal thought process. Tr. 22-23 (citing, e.g., Tr. 318, 324, 388, 10 391, 393, 409, 441, 516-17, 524-25, 536-39, 556-57). In addition, objective testing 11 results in August 2015 by the consultative examining psychologist indicated that 12 Plaintiff did not have difficulty with executive functioning, and his attention, 13 concentration, and intellectual ability appeared within normal limits. Tr. 22-23 14 (citing Tr. 385). 15 Plaintiff generally argues, without citation to the record, that his claims are 16 “corroborated by his treatment records, as well as by the counseling records of 17 Frontier Behavioral Health. According to the examining psychologist, John 18 Arnold, Ph.D. and Joyce Everhart, Ph.D. and [Plaintiff’s] counselor at Frontier 19 Behavioral Health, he suffers from significant psychological symptoms which 20 would prevent gainful employment.” ECF No. 9 at 15. However, the Court’s 21 review of the ALJ’s decision indicates that Plaintiff’s treatment records were ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 considered in their entirety, including evidence that at times during the relevant 2 adjudicatory period Plaintiff presented with depressed mood, anxiety, constricted 3 affect, intermittent eye contact. Tr. 22-23. Moreover, as discussed below, the ALJ 4 properly weighed the medical opinion evidence, and accounted for properly 5 supported limitations in the assessed RFC. 6 Thus, regardless of evidence that could be interpreted more favorably to 7 Plaintiff, the Court finds the ALJ properly relied on evidence from the overall 8 record, as cited extensively above, to support the finding that Plaintiff’s alleged 9 physical and mental health limitations, were inconsistent with objective medical 10 evidence. “[W]here evidence is susceptible to more than one rational 11 interpretation, it is the [Commissioner’s] conclusion that must be upheld.” See 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The lack of corroboration of 13 Plaintiff’s claimed limitations by the medical evidence was a clear and convincing 14 reason, supported by substantial evidence, for the ALJ to discount Plaintiff’s 15 symptom claims. 16 2. Daily Activities 17 Second, the ALJ noted that Plaintiff “has described daily activities that are 18 inconsistent with [Plaintiff’s] allegations of disabling symptoms and limitations.” 19 Tr. 21. A claimant need not be utterly incapacitated in order to be eligible for 20 benefits. ECF No. 14 at 18 (citing Fair, 885 F.2d at 603); see also Orn v. Astrue, 21 495 F.3d 625, 639 (9th Cir. 2007) (“the mere fact that a plaintiff has carried on ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 certain activities . . . does not in any way detract from her credibility as to her 2 overall disability.”). Regardless, even where daily activities “suggest some 3 difficulty functioning, they may be grounds for discrediting the [Plaintiff’s] 4 testimony to the extent that they contradict claims of a totally debilitating 5 impairment.” Molina, 674 F.3d at 1113. 6 Here, Plaintiff “alleged that his impairments have negatively affected his 7 ability to lift, bend, remember, complete tasks, concentrate, understand, follow 8 instructions, use his hands, and get along with others.” Tr. 21. However, 9 “[d]espite these allegations,” as noted by the ALJ, Plaintiff also reported that he 10 prepares simple meals, washes laundry, cleans his room, shops in stores for 11 groceries, pays bills, counts change, uses a checkbook, spends time with others, 12 and follows written instructions “okay.” Tr. 21 (citing Tr. 195-98). Moreover, 13 Plaintiff testified that he lives with his mother, daughter, stepdaughter, and 14 grandchild “with no issues,” cares for his children, and helped care for his sister’s 15 children after his grandmother passed away. Tr. 21, 38, 42, 60-61. 16 In his reply brief, Plaintiff argues this was not a clear and convincing reason, 17 and generally cites Ninth Circuit cases that have held activities such as doing 18 housework, grocery shopping, cooking meals, and driving a car “are not activities 19 that would necessarily detract from a claimant’s testimony in a disability case.” 20 ECF No. 13 at 5-6. However, regardless of evidence that could be viewed more 21 favorably to Plaintiff, it was reasonable for the ALJ to conclude that Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 documented daily activities and social functioning, including caring for children 2 and family members, was inconsistent with her allegations of incapacitating mental 3 limitations. Tr. 28-29; Molina, 674 F.3d at 1113 (Plaintiff’s activities may be 4 grounds for discrediting Plaintiff’s testimony to the extent that they contradict 5 claims of a totally debilitating impairment); Burch, 400 F.3d at 679 (where 6 evidence is susceptible to more than one interpretation, the ALJ’s conclusion must 7 be upheld). This was a clear and convincing reason to discredit Plaintiff’s 8 symptom claims. 9 Moreover, although Plaintiff responds to the Commissioner’s briefing about 10 the ALJ’s daily activities finding in his reply brief, ECF No. 13 at 5-6, Plaintiff 11 fails to raise the ALJ’s daily activities finding as an issue in Plaintiff’s opening 12 brief. ECF No. 9 at 14-15. Accordingly, Plaintiff waived challenge to this issue. 13 Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not consider on 14 appeal issues not “specifically and distinctly argued” in the party’s opening brief); 15 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) 16 (court may decline to consider issues not raised with specificity in the opening 17 brief). Thus, even assuming, arguendo, that the ALJ erred in considering his daily 18 activities, Plaintiff is not entitled to remand on these grounds. 19 20 The Court concludes that the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff’s symptom claims. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2 B. Medical Opinions There are three types of physicians: “(1) those who treat the claimant 3 (treating physicians); (2) those who examine but do not treat the claimant 4 (examining physicians); and (3) those who neither examine nor treat the claimant 5 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 6 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 7 Generally, a treating physician's opinion carries more weight than an examining 8 physician's, and an examining physician's opinion carries more weight than a 9 reviewing physician's. Id. If a treating or examining physician's opinion is 10 uncontradicted, the ALJ may reject it only by offering “clear and convincing 11 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 12 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 13 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 14 providing specific and legitimate reasons that are supported by substantial 15 evidence.” Id. (citing Lester, 81 F.3d at 830–831). “However, the ALJ need not 16 accept the opinion of any physician, including a treating physician, if that opinion 17 is brief, conclusory and inadequately supported by clinical findings.” Bray, 554 18 F.3d at 1228 (quotation and citation omitted). 19 Plaintiff argues the ALJ erroneously considered the opinion of examining 20 psychologist John Arnold, Ph.D.; examining psychologist Joyce Everhart, Ph.D.; 21 and testifying medical expert Stephen Rubin, Ph.D. ECF No. 9 at 16. However, as ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 correctly noted by Defendant, “Plaintiff briefly summarizes the opinions of [these] 2 three medical providers, but fails to raise any issues with specificity . . .. Because 3 Plaintiff has not raised issues with specificity, any challenge is waived.” ECF No. 4 12 at 7-8 (citing Carmickle, 533 F.3d at 1161 n.2). In his reply brief, Plaintiff 5 contends that he “did argue with specificity concerning the findings” of Dr. 6 Arnold, Dr. Everhart, and Dr. Rubin.3 This argument is misplaced. While 7 Plaintiff’s opening brief does summarize the opinion of each of these providers, he 8 does not “specifically and distinctly” identify or challenge any of the ALJ’s 9 findings with regard to these opinions. See Kim, 154 F.3d at 1000 (the Court may 10 not consider on appeal issues not “specifically and distinctly argued” in the party’s 11 opening brief). However, despite Plaintiff’s waiver, in an abundance of caution, 12 the Court will review the ALJ’s findings regarding the medical opinion evidence. 13 1. John Arnold, Ph.D. 14 15 16 17 18 19 20 21 3 In his reply brief, Plaintiff notes that he “devoted an entire paragraph of [his opening brief] concerning the findings of Daniel Fitzpatrick, ARNP;” and “[t]herefore, [Plaintiff] did argue with specificity the findings of Frontier Behavioral Health.” ECF No. 13 at 3. However, as noted by Defendant, Plaintiff’s opening brief “identifies no alleged error [regarding Mr. Fitzpatrick’s opinion] with any specificity, and therefore waives the argument.” ECF No. 12 at 15 n.4 (citing Carmickle, 533 F.3d at 1161 n.2). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 In August 2012, Dr. Arnold examined Plaintiff and opined that he had 2 severe limitations in his ability to complete a normal work day and work week 3 without interruptions from psychologically based symptoms; and marked 4 limitations in his ability to understand, remember and persist in tasks by following 5 very short and simple instructions, communicate and perform effectively in a work 6 setting, and set realistic goals and plan independently. Tr. 421. The ALJ gave Dr. 7 Arnold’s opinion little weight for several reasons. Tr. 25. 8 First, the ALJ noted that Dr. Arnold’s August 2012 opinion was “provided 9 well before [Plaintiff’s] application date [of July 8, 2015].” Tr. 25. “Medical 10 opinions that predate the alleged onset of disability are of limited relevance.” 11 Carmickle, 533 F.3d at 1165; see also Turner v. Comm'r of Soc. Sec., 613 F.3d 12 1217, 1224 (9th Cir. 2010) (a statement of disability made outside the relevant time 13 period may be disregarded). Second, the ALJ found Dr. Arnold’s opinion “is 14 inconsistent with the recent medication records, which show that [Plaintiff] had 15 normal mental status examination findings and once he had the right combination 16 of medication, his symptoms greatly improved and he was able to control his anger 17 and was no longer depressed.” Tr. 25 (citing Tr. 318, 324, 384-85, 388, 391, 393, 18 409, 441, 516-17, 524-25, 538-39). An ALJ may discount an opinion that is 19 conclusory, brief, and unsupported by the record as a whole, or by objective 20 medical findings. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 21 Cir. 2004); Orn, 495 F.3d at 631 (the consistency of a medical opinion with the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 record as a whole is a relevant factor in evaluating that medical opinion); see also 2 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a favorable response to 3 treatment can undermine a claimant's complaints of debilitating pain or other 4 severe limitations). 5 As noted above, Plaintiff’s opening and reply briefs only recite Dr. Arnold’s 6 findings, without identifying or challenging the ALJ’s reasons for discounting Dr. 7 Arnold’s opinion with the requisite specificity. Carmickle, 533 F.3d at 1161 n.2 8 (court may decline to consider issues not raised with specificity in the opening 9 brief). However, even had Plaintiff not waived the issue, the Court finds the 10 reasons offered by the ALJ for discounting Dr. Arnold’s opinion were without 11 legal error and supported by substantial evidence. Burch, 400 F.3d at 679 (where 12 evidence is subject to more than one rational interpretation, the ALJ’s conclusion 13 will be upheld). 14 2. Joyce Everhart, Ph.D. 15 In August 2015, Dr. Everhart examined Plaintiff and opined that, “based on 16 the mental status examination,” his attention, concentration and intellectual ability 17 appear to be within normal limits; test results do not suggest difficulty with 18 executive functioning; he “has the ability to listen, understand, remember and 19 follow simple directions”; he has some ability to complete multistep tasks; his gait 20 and station is normal; he has normal rate of speech and voice tone; and he does not 21 need help to manage his funds. Tr. 385-86. The ALJ gave Dr. Everhart’s opinion ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 great weight because it was “consistent with her objective findings and the record 2 as a whole, which shows that despite [Plaintiff’s] noted anger issues and difficulty 3 concentrating at times, he generally had normal mental status findings.” Tr. 23 4 (citing Tr. 318, 324, 384-85, 388, 391, 393, 409, 441, 516-17, 524-25, 538-39). 5 Plaintiff’s opening brief recites additional findings from Dr. Everhart’s 6 evaluation of Plaintiff, including observations that he had poor persistence, was 7 easily distracted but “does attempt every task once he is redirected,” had poor eye 8 contact, and was a “difficult” interview. ECF No. 9 at 9 (citing Tr. 385). As noted 9 by Plaintiff, Dr. Everhart’s evaluation also included diagnoses of unspecified 10 depressive disorder, unspecified anxiety disorder, history of PTSD, “other 11 psychotic disorder, apparently controlled with medication,” alcohol and substance 12 use disorder, remission, and other specified personality disorder. ECF No. 9 at 16; 13 Tr. 385. 14 However, the “mere diagnosis of an impairment . . . is not sufficient to 15 sustain a finding of disability.” Kay v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 16 1985). Moreover, as indicated above, Plaintiff does not raise any specific 17 challenge to the reasons given by the ALJ for according Dr. Everhart’s opinion 18 great weight; nor does Plaintiff identify any specific functional limitations opined 19 by Dr. Everhart that were not properly incorporated into the assessed RFC. See 20 Carmickle, 533 F.3d at 1161 n.2; Molina, 674 F.3d at 1115 (error is harmless 21 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 Thus, regardless of evidence that could be viewed more favorably to Plaintiff, the 2 Court finds no error in the ALJ’s consideration of Dr. Everhart’s opinion. 3 4 3. Stephen Rubin, Ph.D. At the February 2017 hearing, Dr. Rubin testified that Plaintiff has no 5 problem with understanding, remembering, or applying information; mild 6 problems interacting with others; moderate difficulties with concentration, 7 persistence, or pace; and moderate difficulties in managing himself. Tr. 44. He 8 further opined that “intermittent or occasional interactions” with the public and 9 coworkers “would probably work better than constant interactions”; and “a fast- 10 paced environment would not be good for him.” Tr. 45. Dr. Rubin testified that it 11 would be good for Plaintiff to start out working part-time to as “part of a therapy or 12 counseling program” to achieve a “gradual immersion into the workforce.” Tr. 45. 13 He testified that he “think[s]” Plaintiff would “struggle with” absenteeism “at the 14 beginning of any period of full-time employment,” and that “[he] think[s] 15 [Plaintiff] would be absent, I don’t know, three, four, five days a month right at the 16 beginning and unless he had support.” Tr. 46. Finally, Dr. Rubin noted that he 17 thought the transition to full-time work would be “difficult” for Plaintiff. Tr. 46. 18 The ALJ gave Dr. Rubin’s opinion “partial weight, as his opinion that 19 [Plaintiff] would be absent from work for up to five days a month if he started full- 20 time work right away and might not be able to transition to full-time work is based 21 upon speculation and is not supported by the record.” Tr. 23. The consistency of a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 medical opinion with the record as a whole is a relevant factor in evaluating that 2 medical opinion. Orn, 495 F.3d at 631; Batson, 359 F.3d at 1195 (an ALJ may 3 discount an opinion that is conclusory, brief, and unsupported by the record as a 4 whole, or by objective medical findings); see also Carmickle, 533 F.3d at 1165 5 (ALJ did not err in failing to incorporate a doctor’s statement into RFC where the 6 doctor’s “proposal was offered as a recommendation, not an imperative”) 7 (emphasis in original). Here, the ALJ specifically noted that “despite [Plaintiff’s] 8 noted anger issues and difficulty concentrating at times, he generally had normal 9 mental status examination findings. Furthermore, [Plaintiff] acknowledged that 10 once he had the right combination of medication, his symptoms greatly improved 11 and he was able to control his anger and was no longer depressed.” Tr. 23-24. 12 Again, Plaintiff’s opening and reply briefs only recount Dr. Rubin’s 13 testimony, without identifying or challenging the ALJ’s reasons for discounting 14 Dr. Rubin’s opinion with the requisite specificity. Carmickle, 533 F.3d at 1161 n.2 15 (Court may decline to consider issues not raised with specificity in the opening 16 brief). However, even had Plaintiff not waived the issue, the Court finds the 17 reasons offered by the ALJ for discounting Dr. Rubin’s opinion were without legal 18 error and supported by substantial evidence. Burch, 400 F.3d at 679 (where 19 evidence is subject to more than one rational interpretation, the ALJ’s conclusion 20 will be upheld). 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 2 CONCLUSION A reviewing court should not substitute its assessment of the evidence for 3 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must 4 defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42 5 U.S.C. § 405(g). As discussed in detail above, the ALJ provided clear and 6 convincing reasons to discount Plaintiff’s symptom claims, and properly weighed 7 the medical opinion evidence. After review the court finds the ALJ’s decision is 8 supported by substantial evidence and free of harmful legal error. 9 ACCORDINGLY, IT IS HEREBY ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 9, is DENIED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is 12 GRANTED. 13 The District Court Clerk is directed to enter this Order and provide copies to 14 counsel. Judgement shall be entered for Defendant and the file shall be CLOSED. 15 DATED August 12, 2019. 16 17 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 18 19 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 22

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