Read v. Commissioner of Social Security, No. 2:2019cv00235 - Document 16 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 14 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Senior Judge Robert H. Whaley. (TR, Case Administrator)

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Read v. Commissioner of Social Security Case 2:19-cv-00235-RHW Doc. 16 ECF No. 16 filed 09/04/20 PageID.1360 Page 1 of 24 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Sep 04, 2020 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DIANE MICHELE R., 8 Plaintiff, 9 v. 10 11 12 13 ANDREW M. SAUL, Commissioner of Social Security, No. 2:19-CV-00235-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 15. Plaintiff brings this action seeking judicial review of the 15 Commissioner of Social Security’s final decision, which denied her applications 16 for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. 17 § 401-434, and supplemental security income under Title XVI of the Act, 42 18 U.S.C. §1381-1383F. See Administrative Record (AR) at 7-12, 18-39. After 19 reviewing the administrative record and briefs filed by the parties, the Court 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1361 Page 2 of 24 1 GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s 2 Motion for Summary Judgment. 3 4 I. Jurisdiction Plaintiff filed her applications for disability insurance benefits and 5 supplemental security income on August 12, 2016. See AR 21, 234-243, 244-45. In 6 both applications, she alleged disability beginning on October 5, 2012.1 AR 235, 7 244. Plaintiff’s applications were initially denied on November 17, 2016, see AR 8 157-160, and on reconsideration on June 8, 2017. See AR 166-171. Plaintiff then 9 filed a request for a hearing. AR 173-74. 10 A hearing with an Administrative Law Judge (“ALJ”) occurred on March 11 20, 2018. AR 41-84. On May 1, 2018, the ALJ issued a decision concluding that 12 Plaintiff was not disabled as defined in the Act and was therefore ineligible for 13 disability benefits or supplemental security income. AR 18-39. On January 25, 14 2019, the Appeals Council denied Plaintiff’s request for review, AR 7-12, thus 15 making the ALJ’s ruling the final decision of the Commissioner. See 20 C.F.R. §§ 16 404.981, 416.1481. After the Commissioner granted Plaintiff’s request for more 17 time to file a civil action, AR 1-2, Plaintiff timely filed the present action on July 9, 18 2019 challenging the denial of benefits. ECF No. 1. Accordingly, her claims are 19 20 1 However, for claims under Title XVI, benefits are not payable prior to the application’s filing date. See 20 C.F.R. § 416.335. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1362 Page 3 of 24 1 properly before this Court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 2 1383(c)(3). 3 4 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 5 substantial gainful activity by reason of any medically determinable physical or 6 mental impairment which can be expected to result in death or which has lasted or 7 can be expected to last for a continuous period of not less than twelve months.” 42 8 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 9 under a disability only if the claimant’s impairments are so severe that the claimant 10 is not only unable to do his or her previous work, but cannot, considering 11 claimant’s age, education, and work experience, engage in any other substantial 12 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 13 The Commissioner has established a five-step sequential evaluation process 14 for determining whether a claimant is disabled within the meaning of the Act. 20 15 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Step one inquires whether the claimant is 16 presently engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b), 17 416.920(b). If the claimant is, he or she is not entitled to disability benefits. 20 18 C.F.R. §§ 404.1571, 416.920(b). If not, the ALJ proceeds to step two. 19 Step two asks whether the claimant has a severe impairment, or combination 20 of impairments, that significantly limits the claimant’s physical or mental ability to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1363 Page 4 of 24 1 do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant 2 does not, the disability claim is denied and no further evaluative steps are required. 3 Otherwise, the evaluation proceeds to the third step. 4 Step three involves a determination of whether one of the claimant’s severe 5 impairments “meets or equals” one of the listed impairments acknowledged by the 6 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 7 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 8 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 9 equals one of the listed impairments, the claimant is per se disabled and qualifies 10 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 11 fourth step. 12 Step four examines whether the claimant’s residual functional capacity 13 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 14 416.920(e)-(f). If it does, the claimant is not entitled to disability benefits and the 15 inquiry ends. Id. 16 Step five shifts the burden to the Commissioner to prove that the claimant is 17 able to perform other work in the national economy, taking into account the 18 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 19 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 2:19-cv-00235-RHW 1 2 ECF No. 16 III. filed 09/04/20 PageID.1364 Page 5 of 24 Standard of Review A district court’s review of a final decision of the Commissioner is governed 3 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 4 Commissioner’s decision will be disturbed “only if it is not supported by 5 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 6 1158-59 (9th Cir. 2012) (citing § 405(g)). It is the ALJ’s responsibility to “resolve 7 conflicts in the evidence, and if the evidence can support either outcome, the court 8 may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 9 1016, 1019 (9th Cir. 1992). When the ALJ presents a reasonable interpretation that 10 is supported by the evidence, it is not the court’s role to second-guess it. Rollins v. 11 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Even if the evidence in the record is 12 susceptible to more than one rational interpretation, if inferences reasonably drawn 13 from the record support the ALJ’s decision, then the court must uphold that 14 decision. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 15 16 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 17 and only briefly summarized here. Plaintiff was 45 years old on the alleged date of 18 onset, which the regulations define as a younger person. AR 85; see 20 C.F.R. §§ 19 404.1563(c), 416.963(c). She graduated from high school, completed an Associate 20 of Arts degree, and can read, write, and communicate in English. AR 79, 279, 281. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1365 Page 6 of 24 1 She has past work as a family activities coordinator, perfume salesperson, 2 bookstore customer service representative, childcare aide, apprentice funeral 3 director, and grocery store cashier. AR 260-66. 4 V. The ALJ’s Findings 5 The ALJ determined that Plaintiff was not under a disability within the 6 meaning of the Act at any time from October 5, 2012 (the alleged onset date) 7 through May 1, 2018 (the date the ALJ issued his decision). AR 22, 33. 8 9 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. AR 23. 10 At step two, the ALJ found that Plaintiff had the following severe 11 impairments: obesity, central core disease, migraines, lumbar degenerative disc 12 disease, asthma, seizure disorder, major depressive disorder, generalized anxiety 13 disorder, somatic symptom disorder, and posttraumatic stress disorder. AR 23. 14 At step three, the ALJ found that Plaintiff did not have an impairment or 15 combination of impairments that met or medically equaled the severity of one of 16 the listed impairments in 20 C.F.R. § 404, Subpt. P, Appendix 1. AR 25-26. 17 At step four, the ALJ found that Plaintiff had the residual functional 18 capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 19 416.967(b), albeit with some additional limitations. AR 26. With respect to 20 Plaintiff’s physical abilities, the ALJ found that she could occasionally balance, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1366 Page 7 of 24 1 stoop, kneel, crouch, crawl, and climb ramps and stairs, but could never climb 2 ladders, ropes, or scaffolds. AR 26. She could not have concentrated exposure to 3 vibration, extreme cold, or pulmonary irritants, and could not have any exposure to 4 hazards such as unprotected heights or moving mechanical parts. AR 26. With 5 respect to Plaintiff’s mental abilities, the ALJ found that she was limited to simple, 6 routine, repetitive tasks with a reasoning level of two or less, and that she could not 7 have contact with the public. AR 26. Given these physical and psychological 8 limitations, the ALJ found that Plaintiff was unable to perform any past relevant 9 work. AR 31. 10 At step five, the ALJ found that in light of Plaintiff’s age, education, work 11 experience, and residual functional capacity, there were jobs that existed in 12 significant numbers in the national economy that she could perform. AR 32. These 13 included the jobs of housekeeper/cleaner, food sorter, and small parts assembler. 14 AR 32. 15 16 VI. Issues for Review Plaintiff argues that the ALJ: (1) improperly discredited her subjective pain 17 complaint testimony, (2) improperly found that she did not meet the criteria for 18 Listing 12.04, and (3) failed to incorporate the sedentary work restriction assessed 19 by medical expert Lynne Jahnke, M.D. ECF No. 14 at 3-12. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 2:19-cv-00235-RHW 1 2 3 4 A. ECF No. 16 filed 09/04/20 PageID.1367 Page 8 of 24 The ALJ did not Improperly Reject Plaintiff’s Subjective Complaints Plaintiff argues the ALJ erred by discounting the credibility of her testimony regarding her subjective symptoms. ECF No. 14 at 3-9. When a claimant produces objective medical evidence of an underlying 5 impairment that could reasonably be expected to produce some degree of the 6 symptoms alleged—as is the case here—and there is no affirmative evidence 7 suggesting malingering, the ALJ can reject the claimant’s testimony about the 8 severity of his or her symptoms only by offering “specific, clear, and convincing 9 reasons” for doing so. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 10 Here, the ALJ found that Plaintiff’s statements concerning the intensity, 11 persistence, and limiting effects of her symptoms were belied by: (1) the 12 longitudinal medical evidence, including her examination findings and reports to 13 medical providers, (2) evidence that her conditions improved with treatment, (3) 14 her daily activities, (4) inconsistencies in her reports, and (5) the fact that she 15 stopped working for reasons other than her impairments. See AR 27-29. These are 16 generally appropriate bases for questioning the credibility of subjective complaints. 17 20 C.F.R. §§ 404.1529(c)(2)-(4), 416.929(c)(2)-(4); Molina, 674 F.3d at 1112-13; 18 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); Bruton v. Massanari, 19 268 F.3d 824, 828 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 20 1996). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1368 Page 9 of 24 1 1. 2 The ALJ first discounted Plaintiff’s testimony on the basis that her Inconsistent with the medical evidence 3 examination findings and reports to medical providers were inconsistent with her 4 alleged level of limitation. AR 27-28. 5 The ALJ noted that Plaintiff consistently had full strength in her upper and 6 lower extremities and had normal muscle tone and bulk. AR 27; see AR 474, 484- 7 85, 495, 500, 504, 509-10, 513, 519, 551-52, 576, 688, 1143, 1153, 1158. She 8 consistently had a normal gait. AR 392, 397, 401, 495, 500, 510, 513, 520, 577, 9 1143, 1153, 1158. She also consistently had normal mental status examinations 10 throughout the period at issue. AR 28; see AR 386, 393, 397, 401, 435, 495, 509, 11 519, 551, 576, 1152. Her depression and anxiety symptoms waxed and waned, but 12 she found an effective medication and began “doing very well.” AR 1163; see AR 13 429 (“denies depression or anxiety”). 14 Plaintiff acknowledges these benign findings but argues that the ALJ failed 15 to “state what symptom allegations were inconsistent” with them. ECF No. 14 at 5. 16 These findings were inconsistent with Plaintiff’s reports and testimony that she 17 could not “get[] out of [her] house most days” due to her psychological symptoms, 18 feel her left leg, stand for longer than three minutes while waiting on the 19 microwave, or carry more than a gallon of milk. AR 77-78, 268, 273. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1369 Page 10 of 24 1 In addition, the ALJ also found that the longitudinal medical evidence 2 undermined Plaintiff’s complaints of debilitating migraines—a condition she 3 raised for the first time at the hearing. AR 28-29, 67-73, 280. Plaintiff testified that 4 she has had migraines since high school, that she had them “to some degree at least 5 20 days out of the month,” and that they were “really bad” two to three times per 6 week. AR 71. She testified that she was experiencing a migraine during the 7 hearing. AR 71. 8 9 The ALJ found that the medical record undermined Plaintiff’s allegations about both the frequency and severity of her migraines. AR 28. Regarding 10 frequency, the ALJ noted that Plaintiff “told her providers that she has no more 11 than 10 headache days a month when on treatment” and that she had “fairly bad 12 migraine[s] only three to four times a month.” AR 28; see AR 512, 1149. The ALJ 13 further observed that at other times, “she has reported her migraines are resolved, 14 or at least much improved.” AR 28; see AR 475, 488, 1145. In 2017, she was able 15 to discontinue her headache medication while initially being “headache free.” AR 16 28. Regarding severity, the ALJ noted that Plaintiff had a migraine at the hearing 17 yet she “sat through the one-hour hearing in no apparent discomfort,” did not need 18 sunglasses or a visor, and “was able to fully engage in the hearing.” AR 28. The 19 ALJ also observed that her treatment regimen was “not suggestive of a particularly 20 severe migraine syndrome,” given that she had not needed emergent treatment, had ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1370 Page 11 of 24 1 not trialed many medications, and her doctors characterized her headaches as “not 2 intractable” (i.e., they were easily managed or relieved). AR 29; see AR 513. 3 Plaintiff argues that her “number of migraines per week or month changed 4 over time” and that this was “more indicative of her medication regiment . . . than 5 proof she is not credible.” ECF No. 14 at 6. Plaintiff’s brief is devoid of any 6 citations to the medical record to support this contention, nor does she attempt to 7 address the ALJ’s actual findings or the evidence the ALJ relied upon to support 8 those findings. See id. But in any event, Plaintiff’s argument reinforces the ALJ’s 9 point—that she was able to effectively control her migraine symptoms with proper 10 treatment. Plaintiff also argues that she was only able to function well and engage 11 during the hearing because she “had taken Verapamil the day of the hearing so her 12 migraines had improved.” ECF No. 14 at 6. Again, this argument reinforces the 13 ALJ’s point that treatment effectively managed her symptoms. 14 2. 15 The ALJ also discounted Plaintiff’s complaints based on evidence of 16 17 Improvement with treatment effective responses to treatment. AR 27-28. With respect to Plaintiff’s back condition, Plaintiff first complained of low 18 back pain with radiculopathy in March 2016. AR 684-89. She was diagnosed with 19 herniated discs at L3-4 and L4-5, which were causing stenosis and nerve root 20 compression. AR 674. She underwent surgery in May 2016. AR 694-97. At her ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1371 Page 12 of 24 1 two-week follow up appointment, she “had great improvement in back pain” and 2 was “very pleased with [her] surgical result.” AR 676. She had no radicular pain in 3 her legs, no paresthesia, no weakness, and she was “eager to increase her activity.” 4 AR 676. At her three-month follow up, she was “doing very well,” her back pain 5 had “significantly improved,” and her provider indicated that “no further surgical 6 restrictions [were] needed.” AR 678. 7 With respect to Plaintiff’s ongoing migraines, the ALJ noted that Plaintiff’s 8 neurologist put her on the maximum dose of Verapamil in October 2016. AR 28; 9 see AR 828. It worked well enough that Plaintiff tapered herself off the medication 10 from June 2017 to September 2017. AR 1156. “She was headache free, until the 11 weather changed.” AR 1156. Her neurologist then restarted her on Verapamil at a 12 quarter dose. AR 1158. By her next appointment, her “headaches [had] resolved.” 13 AR 1160. Throughout the period at issue, medical providers have documented that 14 this medication successfully controls Plaintiff’s migraine symptoms. See AR 477 15 (“verapamil definitely helps control her migraines”), 490 (“Verapamil has been 16 very successful for her.”). 17 18 19 20 With respect to Plaintiff’s mental impairments, the ALJ noted that Plaintiff’s depression was “well controlled” on medication. AR 28; see AR 1160, 1163. Plaintiff does not mention or challenge this rationale in her brief. See ECF No. 14. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1372 Page 13 of 24 1 3. 2 The ALJ also discounted Plaintiff’s symptom complaints on the basis that 3 they were belied by her daily activities. AR 29. The ALJ noted that Plaintiff was 4 able to care for her daughter (with the help of a caregiver three hours per day), 5 cook, clean the house, sweep, mop, do laundry, go out alone, drive, shop, manage 6 financial accounts, and had no problems with personal care. AR 29; see AR 269- 7 272. She did household chores for “1-2 hours a few times a week.” AR 270. Her 8 main hobby was going to yard sales and thrift stores. AR 272, 810. A few weeks 9 after her back surgery she went to yard sales with a friend. AR 1102. The ALJ Daily activities 10 concluded that these “high functioning activities of daily living” were “inconsistent 11 with her allegations of total disability.” AR 29. 12 Plaintiff argues that her daughter’s caregiver helped her five hours a day, not 13 three, and that “the caregiver did ‘90% of the chores.’” ECF No. 14 at 7. In other 14 words, Plaintiff appears to argue that she could not actually care for her daughter 15 or perform any of her other daily activities without assistance. See id. 16 However, Plaintiff’s daughter did not have a caregiver from 2012 to 2015 17 (i.e., the first three years of the period at issue). AR 62. During this period, Plaintiff 18 was solely responsible for her daughter’s care. AR 62. When the caregiver first 19 started in 2015, it was for three hours per day. AR 63. By the time of the hearing in 20 2018, it had increased to five hours per day. AR 62. Plaintiff also split custody of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1373 Page 14 of 24 1 her daughter with her former spouse. AR 62. The caregiver accompanied the 2 daughter—Plaintiff had them both Wednesday through Friday, and her former 3 spouse had them Saturday through Tuesday. AR 62. In sum, substantial evidence 4 supports the ALJ’s findings that Plaintiff was able to care for her daughter and also 5 perform her own daily activities independently. 6 Plaintiff also argues that the cited activities were isolated and did not 7 “constitute a ‘substantial part’ of her day.” ECF No. 14 at 8. The portions of the 8 record that Plaintiff cites for this argument do not support this conclusion. See id. 9 (citing AR 96-97) (“Clmt able to understand, remember & carry out SRT & 10 detailed tasks as seen by her ability to provide regular care for her ill daughter.”). 11 But regardless of the frequency of Plaintiff’s activities, if those activities are 12 inconsistent with the limitations she claims to have, this nevertheless has a bearing 13 on her credibility. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); Reddick 14 v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). And here, her activities were 15 inconsistent with her claims that she could not “get[] out of [her] house most 16 days,” “pay attention whatsoever,” stand for longer than three minutes while 17 waiting on the microwave, or carry more than a gallon of milk. AR 78, 268, 273. 18 Accordingly, the ALJ did not err in questioning her credibility on this basis. See 19 Garrison, 759 F.3d at 1016. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1374 Page 15 of 24 1 4. 2 The ALJ also discounted Plaintiff’s credibility due to various inconsistencies Inconsistencies in her reports 3 in her reports. AR 29. First, the ALJ noted that during a July 2016 psychological 4 evaluation—which was “for the purpose of obtaining state disability benefits”— 5 Plaintiff reported having panic attacks “off and on for about three years.” AR 29; 6 see AR 808. She described “getting tunnel vision and feeling like she need[ed] to 7 get out and run because she [was] not safe.” AR 808. However, in 8 “contemporaneous statements to treating providers for the purpose of treatment,” 9 Plaintiff expressly denied experiencing panic attacks. AR 29; see AR 384 (“The 10 patient denies anxiety or panic attacks.”), 411, 429, 442. She also never mentioned 11 panic attacks to her mental health counselor. See AR 876-959, 1206-1266. Given 12 Plaintiff’s complaints of frequent panic attacks to the examining psychologist, the 13 ALJ “expect[ed] to see some reference” to them in the treatment notes. AR 29. 14 Next, the ALJ noted that Plaintiff initially reported that she had “no 15 limitations in any physical activities” and that only mental health issues prevented 16 her from working. AR 29; see AR 268, 280. However, Plaintiff then testified at the 17 hearing that her physical conditions and migraines caused severe limitations. AR 18 67-73, 77-79. 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 2:19-cv-00235-RHW 1 ECF No. 16 filed 09/04/20 PageID.1375 Page 16 of 24 Finally, the ALJ noted that Plaintiff had told the examining psychologist that 2 she could not work because of her daughter’s health problems and because her 3 “soon-to-be ex [was] a narcissistic abuser.” AR 29, 808. 4 5 Plaintiff does not mention or challenge this rationale in her brief. See ECF No. 14. 6 5. 7 Finally, the ALJ partially discredited Plaintiff’s testimony on the basis that Stopped working for reasons other than impairments 8 her ongoing unemployment was due to factors unrelated to her allegedly disabling 9 impairments. AR 29. 10 Plaintiff worked full time at a bookstore from 2002 until 2011. AR 260, 263, 11 369. In 2011, the store closed and she was laid off. AR 810. In 2012, she worked 12 two part time jobs: as a perfume salesperson for Bath & Body Works and also as a 13 family activities coordinator for the YMCA, each for 16 hours per week. AR 260- 14 62, 369. She stopped working at Bath & Body Works in May 2012 and she quit at 15 the YMCA in December 2012 due to her daughter’s health issues. AR 369, 810. 16 The ALJ inferred from this work history that Plaintiff’s “impairments [were] not 17 the cause of her unemployment.” AR 29. 18 Citing her hearing testimony, Plaintiff argues that her migraines were 19 actually “[o]ne of the main reasons” why she left her job at the YMCA. ECF No. 20 14 at 8. However, she told the examining psychologist that she left because of her ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1376 Page 17 of 24 1 daughter’s health issues. AR 810. When the record contains conflicting evidence, 2 resolving these conflicts is the province of the ALJ, not the Court. Matney, 981 3 F.2d at 1019. 4 Plaintiff also argues that the bookstore laying her off is irrelevant because it 5 was prior to her alleged onset date, and “therefore should not have been used to 6 discredit [her].” ECF No. 14 at 9. Plaintiff cites no authority for this argument. But 7 even if there were a requirement that a claimant must become unemployed after the 8 alleged onset date for it to be relevant to his or her credibility, that is what 9 happened here—Plaintiff quit her job at the YMCA after the alleged onset date. 10 B. The ALJ Properly Found that Plaintiff did not Meet the Criteria for Listing 12.04 at Step Three 11 Plaintiff argues that the ALJ erred at step three by finding that she did not 12 meet the criteria for Listing 12.04. ECF No. 14 at 9-11. Specifically, Plaintiff 13 argues that the ALJ based his determination on an evaluation from Kayleen Islam14 Zwart, Ph.D., but then subsequently discredited Dr. Islam-Zwart’s opinion at step 15 four when assessing the residual functional capacity. Id. at 10. Plaintiff also argues 16 that the ALJ erred by not considering her mental health counselor’s treatment notes 17 in the step three analysis. Id. 18 At step three in the sequential evaluation process, claimants can establish 19 per se disability if they prove that one of their impairments meets or medically 20 equals a listed impairment in 20 C.F.R. § 404 Subpt. P. App. 1. In order to meet ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1377 Page 18 of 24 1 Listing 12.04 for depressive, bipolar, and related disorders, the claimant must 2 establish: 3 4 5 Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: 1. Understand, remember, or apply information; 2. Interact with others; 3. Concentrate, persist, or maintain pace; 4. Adapt or manage oneself. 6 Listing 12.04(B).2 7 With respect to the first category—understanding, remembering, or 8 applying information—the ALJ found that Plaintiff only had mild 9 limitations. AR 25. In making this finding, the ALJ relied on five pieces of 10 evidence. First, the ALJ noted Dr. Islam-Zwart’s finding that Plaintiff 11 “appeared to be of average intelligence.” AR 25; see AR 810 (“There was 12 no real indication of cognitive difficulty. She seemed of probably average 13 intelligence.”). Second, the ALJ noted that Plaintiff performed well during 14 Dr. Islam-Zwart’s mental status examination, particularly on the short delay 15 memory tasks and command tasks, and obtained 28 out of a possible 30 16 17 2 18 19 20 Paragraph “B” is the only paragraph at issue here. Claimants can meet the criteria for Listing 12.04 by satisfying either Paragraphs A and B, or Paragraphs A and C. The ALJ did not address Paragraph A at all in his decision. See AR 25-26. Without any findings or reasoning to review, the Court will view the record in the light most favorable to Plaintiff and assume that she satisfies the Paragraph A criteria. However, the ALJ found that Plaintiff did not meet the Paragraph C criteria, which Plaintiff does not contest in her brief. See AR 26; ECF No. 14 at 911. Accordingly, the sole issue here is whether the ALJ properly found that Plaintiff does not satisfy the Paragraph B criteria. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1378 Page 19 of 24 1 points. AR 25; see AR 810-11. Third, the ALJ noted that Plaintiff 2 graduated from high school, went to college, and earned an Associate of 3 Arts degree. AR 25. Fourth, the ALJ noted that Plaintiff was able to drive 4 a car. AR 25. Finally, the ALJ noted that Plaintiff reported being able to 5 follow both written and spoken instructions well. AR 25; see AR 273. 6 With respect to the second category—interacting with others—the ALJ 7 found that Plaintiff had moderate limitations. AR 25. The ALJ acknowledged Dr. 8 Islam-Zwart’s finding that Plaintiff had poor eye contact. AR 25; see AR 810. The 9 ALJ also acknowledged Plaintiff’s report that she had “no desire to be as social as 10 [she] used to be.” AR 25; see AR 272. Despite those issues, however, the ALJ 11 observed that Plaintiff had people over to her house once a month. AR 25; see 12 AR 272. She reported having no problems getting along with family, friends, 13 neighbors, authority figures, or anyone else. AR 25; see AR 273-74. She liked 14 going to yard sales with friends. AR 1102. 15 With respect to the third category—concentrating, persisting, or 16 maintaining pace—the ALJ found that Plaintiff had moderate limitations. AR 25- 17 26. The ALJ acknowledged Plaintiff’s reports that she could not pay attention or 18 finish what she started. AR 25; see AR 273. The ALJ also acknowledged 19 Plaintiff’s inability to complete serial 7s during Dr. Islam-Zwart’s examination. 20 AR 25; see AR 810. Despite those issues, however, the ALJ observed that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1379 Page 20 of 24 1 Plaintiff was able to pay bills, count change, handle her bank accounts, use 2 money orders, and balance a checkbook. AR 25-26; see AR 271. 3 With respect to the fourth category—adapting or managing oneself—the 4 ALJ found that Plaintiff had mild limitations. AR 26. The ALJ noted that 5 Plaintiff had no problems with personal care and that she was able to manage her 6 medication regimen with the help of alarms she set. AR 26; see AR 269-270. 7 Finally, the ALJ noted that the limitations in these four categories were 8 consistent with the testimony of psychological expert Nancy Winfrey, Ph.D., 9 whose opinion the ALJ assigned great weight. AR 30; see AR 46-48. 10 Because Plaintiff did not have an “extreme” limitation in any one category 11 or “marked” limitations in two categories, the ALJ concluded that Plaintiff did 12 not satisfy the Paragraph “B” criteria and therefore her depressive disorder did 13 not meet or equal Listing 12.04. See AR 26. 14 Later in the decision, the ALJ weighed the persuasive value of Dr. Islam- 15 Zwart’s opinion as it related to Plaintiff’s functional limitations. See AR 30. The 16 ALJ assigned it little weight, reasoning that Dr. Islam-Zwart expressed her 17 opinions regarding Plaintiff’s work restrictions “on a checkbox form with little 18 explanation.” AR 30. The ALJ also reasoned that the opinion was “internally 19 inconsistent,” given that the mental status examination revealed mostly normal 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1380 Page 21 of 24 1 findings but then Dr. Islam-Zwart paradoxically opined that Plaintiff had severe 2 work restrictions. AR 30. 3 Plaintiff argues that in analyzing Listing 12.04, “the ALJ relie[d] exclusively 4 on Dr. Kayleen Islam-Zwart’s ‘cursory’ examination which he discredited.” ECF 5 No. 14 at 10 (emphasis in original). She contends that “[t]he ALJ cannot have the 6 opinion both ways”—in other words, that the ALJ could not rely on Dr. Islam- 7 Zwart’s opinion in analyzing Listing 12.04 at step three, but then subsequently 8 discount her opinion at step four. Id. However, the ALJ did not rely on Dr. Islam- 9 Zwart’s opinion about Plaintiff’s work restrictions in his analysis—he credited and 10 then relied on her clinical findings, which were generally normal (e.g., score of 11 28/30 on the mental status exam). Plaintiff does not cite any authority establishing 12 that this was improper. But even if it was, the ALJ provided additional, separate 13 reasons supporting his determinations for each of the four criteria—e.g., Plaintiff’s 14 college degree, the fact that she liked to have people over and go to yard sales with 15 friends, her ability to balance a checkbook, etc. See AR 25-26. 16 Plaintiff also argues that the ALJ erred “by failing to discuss or analyze the 17 weekly mental health notes from [her] mental health counselor.” ECF No. 14 at 10 18 (citing AR 1170-1266). However, the ALJ did—he discounted the counselor’s 19 opinions because she gave them “in a conclusory fashion with no meaningful 20 explanation or analysis and no specificity.” AR 31; see, e.g., AR 1172 (“[Plaintiff] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1381 Page 22 of 24 1 has a chronic mental health disability that is expected to last for an extended period 2 of time, beyond a period of 12 months. [Her] disability qualifies as defined in 42 3 U.S.C. 423.”), 1176, 1183 (“Due to mental illness, [Plaintiff] has certain 4 limitations regarding anxiety, coping with stress, and physical transitions. In order 5 to alleviate those difficulties . . . I am prescribing an emotional support animal.”). 6 The ALJ also reasoned that the counselor’s treatment notes actually supported a 7 finding that Plaintiff was not disabled. AR 31. 8 Plaintiff also points to where her counselor indicated that she appeared 9 “anxious/avoidant,” was overwhelmed, had “complex PTSD,” could not sleep, was 10 exhausted, etc. ECF No. 14 at 10. However, she fails to explain how these noted 11 symptoms undermine the ALJ’s determinations with respect to the four Paragraph 12 B criteria, such as her ability to understand, remember, or apply information. See 13 id. And in any event, this argument asks the Court to reweigh the evidence, 14 which the Court cannot do. Matney, 981 F.2d at 1019. 15 C. The ALJ Rationally Interpreted the Opinion of Medical Expert Lynne Jahnke, M.D. 16 Plaintiff argues that Dr. Jahnke’s testimony at the hearing “can be 17 interpreted as supporting a sedentary exertional limit.” ECF No. 14 at 12. Plaintiff 18 contends that because the ALJ assigned great weight to Dr. Jahnke’s opinion, the 19 ALJ was required to then find that she was limited to sedentary work. Id. Plaintiff 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1382 Page 23 of 24 1 argues that because she lacked transferable skills, a sedentary work limitation 2 would have therefore precluded her from doing other work. Id. 3 Dr. Jahnke reviewed and outlined the medical record, identified Plaintiff’s 4 severe and non-severe impairments, analyzed the listings, and provided an opinion 5 on workplace restrictions. AR 48-54. She testified that Plaintiff could perform light 6 work with some additional postural and environmental restrictions. AR 53-54. 7 Later, on cross-examination, counsel asked Dr. Jahnke if Plaintiff’s central core 8 disease symptoms might support limiting her to sedentary work. AR 59. Dr. Jahnke 9 responded: “I didn’t see evidence of it causing significant problems, but if her 10 primary care provider wrote an RFC that said sedentary I wouldn’t disagree with 11 it.” AR 59. 12 The ALJ ultimately characterized Dr. Jahnke’s opinion as limiting Plaintiff 13 to light work. AR 29. The ALJ assigned great weight to her opinion and limited 14 Plaintiff to light work with some additional restrictions. AR 26, 30. 15 Plaintiff argues that Dr. Jahnke’s comments on cross-examination “can be 16 interpreted as supporting a sedentary exertional limit.” ECF No. 14 at 12. While 17 that is a possible interpretation, they can also be interpreted as opining that 18 Plaintiff could perform light work, that her central core disease did not “caus[e] 19 significant problems,” but that if a treating provider limited her to sedentary work, 20 Dr. Jahnke would not disagree. And here, no treating provider indicated that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 Case 2:19-cv-00235-RHW ECF No. 16 filed 09/04/20 PageID.1383 Page 24 of 24 1 Plaintiff was limited to sedentary work. AR 29-31. Under these circumstances, the 2 ALJ’s interpretation of Dr. Jahnke’s testimony was rational. And “when the 3 evidence is susceptible to more than one rational interpretation, [the Court] must 4 uphold the ALJ’s findings.” Molina, 674 F.3d at 1111. 5 VIII. Order 6 Having reviewed the briefs, the record, and the ALJ’s findings, the Court 7 concludes the Commissioner’s decision is supported by substantial evidence and is 8 free from legal error. Accordingly, IT IS ORDERED: 9 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 10 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 11 12 13 14 15 16 17 18 GRANTED. 3. Judgment shall be entered in favor of Defendant and the file shall be CLOSED. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel, and close the file. DATED this September 4, 2020. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24

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