Powers v. Saul, No. 2:2019cv00253 - Document 17 (E.D. Wash. 2020)
Court Description: ORDER DENYING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (AN, Courtroom Deputy)
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Powers v. Saul Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 23, 2020 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 VANESSA P.,1 No. 2:19-cv-00253-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 15 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 2 ORDER - 1 Dockets.Justia.com 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 14, and grants Defendant’s motion, ECF No. 15. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 ORDER - 2 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous 17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 20 2 ORDER - 3 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 16 §§ 404.1520(c), 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 20 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 2 ORDER - 4 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, the analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 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 numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 14 ALJ’S FINDINGS On September 22, 2016, Plaintiff applied both for Title II disability 15 insurance benefits and Title XVI supplemental security income benefits alleging a 16 disability onset date of July 31, 2015. Tr. 94, 104, 114, 124, 203-13. The 17 applications were denied initially and on reconsideration. Tr. 125-28, 130-35. 18 Plaintiff appeared before an administrative law judge (ALJ) on December 13, 19 2017, and the hearing was continued to allow Plaintiff to seek representation. Tr. 20 2 ORDER - 6 1 40-49. On May 7, 2018, Plaintiff appeared before an ALJ with her counsel. Tr. 2 50-84. On July 26, 2018, the ALJ denied Plaintiff’s claim. Tr. 12-33. 3 At step one of the sequential evaluation process, the ALJ found that Plaintiff 4 had not engaged in substantial gainful activity since July 31, 2015. Tr. 17. At step 5 two, the ALJ found that Plaintiff had the following severe impairments: anxiety 6 disorder, depression, and adjustment disorder. Tr. 17. 7 At step three, the ALJ found that Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of a listed 9 impairment. Tr. 21. The ALJ then concluded that Plaintiff had the RFC to 10 perform a full range of work at all exertional levels with the following 11 nonexertional limitations: 12 13 14 15 16 [Plaintiff] is limited to unskilled work consisting of simple, routine, repetitive tasks performed in a static environment that would experience few, if any, work-related changes; those changes that might occur would be gradually introduced and explained or demonstrated. No strict fast paced production or time quotas. Frequent, superficial interaction with coworkers and supervisors (superficial is defined as no negotiation, arbitration, conflict resolution, sales, direction/management of others, or group tasks), and incidental to no contact or interaction with the public. 17 Tr. 22. 18 At step four, the ALJ found that Plaintiff was unable to perform any of her 19 past relevant work. Tr. 26. At step five, the ALJ found that, considering 20 Plaintiff’s age, education, work experience, RFC, and testimony from the 2 ORDER - 7 1 vocational expert, there were jobs that existed in significant numbers in the 2 national economy that Plaintiff could perform, such as production assembler, 3 industrial cleaner, and hand packager. Tr. 26-27. The vocational expert further 4 testified that an individual with Plaintiff’s vocational profile would be able to 5 perform jobs that existed in significant numbers in the national economy under two 6 more restrictive hypotheticals limiting Plaintiff to light and sedentary work with 7 the same nonexertional limitations outlined in the above RFC. Tr. 27. Under the 8 light hypothetical, the vocational expert testified that such an individual would be 9 able to perform the jobs of parts cleaner and electrical accessories assembler. Tr. 10 27. Under the sedentary hypothetical, the vocational expert testified that such an 11 individual would be able to perform the jobs of final assembler, table worker, and 12 semi-conductor bonder. Tr. 27. Therefore, the ALJ concluded that Plaintiff was 13 not under a disability, as defined in the Social Security Act, from the alleged onset 14 date of July 31, 2015, though the date of the decision. Tr. 27. 15 On May 23, 2019, the Appeals Council denied review of the ALJ’s decision, 16 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 17 of judicial review. See 42 U.S.C. § 1383(c)(3). 18 19 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 20 her disability insurance benefits under Title II and supplemental security income 2 ORDER - 8 1 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 2 issues for review: 3 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 4 2. Whether the ALJ properly evaluated the medical opinion evidence. 5 ECF No. 14 at 11. 6 7 8 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 9 discrediting her symptom claims. ECF No. 14 at 11-13. An ALJ engages in a two10 step analysis to determine whether to discount a claimant’s testimony regarding 11 subjective symptoms. Social Security Ruling (SSR) 16–3p, 2016 WL 1119029, at 12 *2. “First, the ALJ must determine whether there is objective medical evidence of 13 an underlying impairment which could reasonably be expected to produce the pain 14 or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 15 “The claimant is not required to show that [the claimant’s] impairment could 16 reasonably be expected to cause the severity of the symptom [the claimant] has 17 alleged; [the claimant] need only show that it could reasonably have caused some 18 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 19 Second, “[i]f the claimant meets the first test and there is no evidence of 20 malingering, the ALJ can only reject the claimant’s testimony about the severity of 2 ORDER - 9 1 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 2 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 3 omitted). General findings are insufficient; rather, the ALJ must identify what 4 symptom claims are being discounted and what evidence undermines these claims. 5 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 1996); Thomas v. Barnhart, 6 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why it 7 discounted claimant’s symptom claims)). “The clear and convincing [evidence] 8 standard is the most demanding required in Social Security cases.” Garrison v. 9 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. 10 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 11 Factors to be considered in evaluating the intensity, persistence, and limiting 12 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 13 duration, frequency, and intensity of pain or other symptoms; 3) factors that 14 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 15 side effects of any medication an individual takes or has taken to alleviate pain or 16 other symptoms; 5) treatment, other than medication, an individual receives or has 17 received for relief of pain or other symptoms; 6) any measures other than treatment 18 an individual uses or has used to relieve pain or other symptoms; and 7) any other 19 factors concerning an individual’s functional limitations and restrictions due to 20 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 2 ORDER - 10 1 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 2 an individual’s record,” to “determine how symptoms limit ability to perform 3 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 4 The ALJ found that Plaintiff’s medically determinable impairments could 5 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s 6 statements concerning the intensity, persistence, and limiting effects of her 7 symptoms were not entirely consistent with the evidence. Tr. 23. 8 1. Not Supported by Objective Medical Evidence 9 The ALJ found that Plaintiff’s symptom complaints were not supported by 10 the objective medical evidence. Tr. 23. An ALJ may not discredit a claimant’s 11 symptom testimony and deny benefits solely because the degree of the symptoms 12 alleged is not supported by the objective medical evidence. Rollins v. Massanari, 13 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th 14 Cir. 1991). However, the objective medical evidence is a relevant factor, along 15 with the medical source’s information about the claimant’s pain or other 16 symptoms, in determining the severity of a claimant’s symptoms and their 17 disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 18 416.929(c)(2). 19 Here, the ALJ discussed Plaintiff’s alleged symptoms due to anxiety, 20 depression, and bipolar disorder that she claims cause her to be unable to work. 2 ORDER - 11 1 Tr. 23 (citing Tr. 233). The ALJ cited Plaintiff’s reports that her impairments limit 2 her ability to talk, hear, remember, complete tasks, concentrate, understand, follow 3 instructions, and get along with others. Tr. 23 (citing Tr. 247). The ALJ also cited 4 Plaintiff’s allegations that she is unable to think more than one-step at a time on a 5 daily basis, her organizational skills are completely gone, she gets overwhelmed 6 trying to do basic things, and she frequently has to stop, regroup, and try again. Tr. 7 23 (citing Tr. 242). The ALJ highlighted Plaintiff’s allegations that trying to 8 decide even basic things like what to make for dinner can send her into a panic 9 attack, she is unable to complete tasks without repeated reminders or help, and she 10 is easily distracted. Tr. 23 (citing Tr. 242, 247). The ALJ noted that in her 11 disability appeals report, Plaintiff reported that her psychological impairments 12 have progressively worsened and continue to affect all aspects of daily living. Tr. 13 23 (citing Tr. 261). The ALJ observed that Plaintiff testified at the hearing that the 14 primary symptom preventing her from working is the unpredictability of her 15 mental state and ability to function. Tr. 23, 63. The ALJ cited Plaintiff’s 16 testimony that since September or October 2015 she has crying spells and 17 difficulty sleeping, and she experiences panic attacks three to four times per week. 18 Tr. 23, 65-66. The ALJ cited Plaintiff’s testimony that she is unable to make 19 outgoing phone calls due to anxiety and other issues, she frequently needs help 20 from her mother to complete household chores and care for her children, she does 2 ORDER - 12 1 not leave her house unless absolutely necessary, she has problems maintaining 2 personal hygiene and only showers every three to four days. Tr. 23, 47, 64-65, 713 72, 78. The ALJ also noted that Plaintiff alleged physical limitations due to 4 tendonitis in her right ankle, which makes it hard for her to stand or walk for any 5 length of time and limits the types of shoes she can wear.2 Tr. 23, 63-64. 6 However, the ALJ found that although Plaintiff had a history of anxiety 7 disorder, depression, and adjustment disorder, examinations showed mostly normal 8 findings that did not support her allegations of total disability. Tr. 23-24; see, e.g., 9 Tr. 308-10 (January 12, 2016: Plaintiff first sought treatment from her primary care 10 provider approximately six months after the alleged onset date; she reported 11 postpartum anxiety related to the birth of her son one month earlier; she endorsed 12 anxiety with severe episodes of agoraphobia and shakiness; on mental status 13 examination, Plaintiff was alert and oriented, with an anxious mood, full affect, 14 normal speech, and stable judgment and insight; she was assessed with anxiety); 15 Tr. 312, 315 (March 29, 2016: Plaintiff established care at Providence Primary 16 Care South for her anxiety; she reported her anxiety had worsened since the birth 17 18 2 Plaintiff asserts she is not alleging that she is unable to work due to her physical 19 problems, but instead is alleging that she is unable to work due to her mental 20 symptoms and limitations. ECF No. 14 at 11. 2 ORDER - 13 1 of her son; upon examination, Plaintiff had a normal mood, affect, behavior, 2 judgment, and thought content, and a very well organized thought process, 3 although she became very emotional talking about the negative side effects of 4 medications); Tr. 365 (April 4, 2016: Plaintiff had an anxious mood and a fearful 5 and anxious affect, but she was cooperative with good eye contact and normal 6 psychomotor activity, had normal speech, she was goal directed with organized 7 and logical thought content, her fund of knowledge was average, her insight and 8 judgment, attention, and recent and remote memory were intact; her provider noted 9 her anxiety might be related to hormonal fluctuations after having her baby); Tr. 10 357, 361 (May 2, 2016 and July 8, 2016: Plaintiff had an anxious mood and a 11 fearful and anxious affect, but she was cooperative with good eye contact and 12 normal psychomotor activity, had normal speech, she was goal directed with 13 organized and logical thought content, her fund of knowledge was average, her 14 insight and judgment, attention, and recent and remote memory were intact); Tr. 15 353 (August 8, 2016: Plaintiff had an anxious mood and a fearful and anxious 16 affect, but she was cooperative with good eye contact and normal psychomotor 17 activity, had normal speech, she was goal directed with organized and logical 18 thought content, her fund of knowledge was average, her insight and judgment, 19 attention, and recent and remote memory were intact); Tr. 325 (October 19, 2016: 20 Plaintiff reported sleep disturbance, anxiety, depression, and feeling out of control; 2 ORDER - 14 1 upon examination she presented as oriented with a normal mood and affect, 2 although she appeared anxious and cried easily during the visit); Tr. 333 3 (November 28, 2016: Plaintiff had an appropriate mood and affect); Tr. 349 4 (January 16, 2017: Plaintiff had an anxious mood and a fearful and anxious affect, 5 but she was cooperative with good eye contact and normal psychomotor activity, 6 had normal speech, congruent mood, she was goal directed with organized, logical, 7 and linear thought content, her fund of knowledge was average, her insight and 8 judgment, attention, and recent and remote memory were intact); Tr. 342-43 9 (February 11, 2017: Plaintiff had good eye contact, was congenial, engaging, and 10 cooperative, she demonstrated coherent, logical, and linear thought process, normal 11 speech, normal comprehension, she denied auditory and visual hallucinations and 12 denied having any intent or plan to harm herself or others, she reported that her 13 mood was “good today,” her affect was normal-appropriate during the majority of 14 the session, although she became tearful during the mental status examination, she 15 exhibited no problems with her memory, fund of knowledge, demonstrated good 16 persistence in attempting tasks and seemed to recognize failures made, and had fair 17 insight into her overall mental health); Tr. 345 (March 10, 2017: Plaintiff had an 18 anxious mood, but she was cooperative with good eye contact, had normal speech, 19 congruent mood, she was goal directed, no abnormal thought content, her insight 20 and judgment were intact, and her recent and remote memory were intact); Tr. 374 2 ORDER - 15 1 (June 14, 2017: Plaintiff reported the medications were “significantly” helping her 2 anxiety; Plaintiff was assessed with generalized anxiety disorder “doing very well 3 on current regimen”; upon examination Plaintiff had a normal mood and affect); 4 Tr. 377, 380 (June 21, 2017 and July 11, 2017: Plaintiff had a normal mood and 5 affect, her behavior, judgment, and thought content were normal). 6 Further, the ALJ specifically noted that while Plaintiff alleged she was 7 unable to concentrate or focus, and could not complete even basic tasks without 8 repeated reminders or help, the psychological examiner reported Plaintiff had no 9 problems completing the psychiatric evaluation questionnaire, was able to 10 complete a three-step command, and demonstrated good persistence in completing 11 tasks. Tr. 338-39, 342-43. 12 Plaintiff disagrees with the ALJ’s findings, and argues that the ALJ 13 improperly discounted her symptom allegations because “she had some normal 14 findings during her counseling sessions and during her examination by Dr. 15 Liddell.” ECF No. 14 at 12. Plaintiff fails to provide any record citations to 16 demonstrate that the ALJ cherry-picked the record evidence. It is the ALJ’s 17 responsibility to resolve conflicts in the medical evidence. Andrews v. Shalala, 53 18 F.3d 1035, 1039 (9th Cir. 1995). Where the ALJ’s interpretation of the record is 19 reasonable as it is here, it should not be second-guessed. Rollins, 261 F.3d at 857. 20 The Court must consider the ALJ’s decision in the context of “the entire record as 2 ORDER - 16 1 a whole,” and if the “evidence is susceptible to more than one rational 2 interpretation, the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 3 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks omitted). Here, the 4 ALJ reasonably concluded, based on this record, that the objective medical 5 evidence did not support the level of impairment alleged by Plaintiff. Tr. 23-24. 6 The ALJ’s finding is supported by substantial evidence and was a clear and 7 convincing reason, in conjunction with Plaintiff’s failure to report symptoms to 8 treatment providers, inconsistency with daily activities and childcare activities, 9 improvement with medication, reasons for stopping work unrelated to her 10 impairments, and the ability to work with her impairments, see infra, to discount 11 Plaintiff’s symptom complaints. 12 2. Failure to Report Symptoms to Treatment Providers 13 The ALJ found that Plaintiff’s symptom testimony was inconsistent with 14 Plaintiff’s failure to report similar symptoms to her treatment providers. Tr. 24. In 15 evaluating a claimant’s symptom claims, an ALJ may consider the consistency of 16 an individual’s own statements made in connection with the disability review 17 process with any other existing statements or conduct made under other 18 circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); Thomas, 19 278 F.3d at 958-59. Additionally, “[t]he failure to report symptoms to treatment 20 providers is a legitimate consideration in determining the credibility of those 2 ORDER - 17 1 complaints.” Lesher v. Comm’r of Soc. Sec., No. 2:15-cv-00237-SMJ, 2018 WL 2 314819, at *6 (E.D. Wash. Jan. 5, 2018) (citing Greger v. Barnhart, 464 F.3d 972, 3 972 (9th Cir. 2006)). Here, the ALJ noted that despite Plaintiff’s allegations made 4 during her administrative hearing that she has experienced almost daily panic 5 attacks since September or October 2015, and that after a panic attack the rest of 6 the day is shot, Plaintiff did not report this symptom to her providers. Tr. 24, 657 66, 76. The ALJ reasonably concluded, based on this record, that Plaintiff’s 8 symptom allegations in connection with her claim of daily disabling panic attacks 9 were inconsistent with reporting to her treatment providers. This was a clear and 10 convincing reason to discount her symptom complaints. 11 3. Inconsistent with Daily Activities 12 The ALJ found that Plaintiff’s activities were inconsistent with the level of 13 impairment Plaintiff alleged. Tr. 24. An ALJ may consider a claimant’s activities 14 that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can 15 spend a substantial part of the day engaged in pursuits involving the performance 16 of exertional or nonexertional functions, the ALJ may find these activities 17 inconsistent with the reported disabling symptoms. Fair v. Bowen, 885 F.2d 597, 18 603 (9th Cir. 1989); Molina, 674 F.3d at 1113. “While a claimant need not 19 vegetate in a dark room in order to be eligible for benefits, the ALJ may discount a 20 claimant’s symptom claims when the claimant reports participation in everyday 2 ORDER - 18 1 activities indicating capacities that are transferable to a work setting” or when 2 activities “contradict claims of a totally debilitating impairment.” Molina, 674 3 F.3d at 1112-13. 4 Here, the ALJ indicated that Plaintiff reported she was unable to work due to 5 mental health impairments that caused extreme limitations, including difficulty 6 sleeping, going days without showering, an inability to make phone calls, and 7 staying at home unless absolutely necessary. Tr. 24, 64-66, 71-72; see, e.g., Tr. 66 8 (Plaintiff testified, “I lay there and do not fall asleep no matter what I do. I take 9 [B]enadryl or [X]anax and sometimes it helps, but most of the time, I just get 10 sleepy and I just lay there. I can’t shut my brain off at all.”); Tr. 243 (Plaintiff 11 alleged that no matter how exhausted she was, she had an “extremely hard time 12 falling or staying asleep” because she was unable to shut her mind off); Tr. 72 13 (Plaintiff testified that she did not keep up on her showering and hygiene, 14 explaining that she “probably” takes a shower every third or fourth day.”); Tr. 64 15 (Plaintiff testified, “I don’t make outgoing phone calls. I just can’t do it. I try, but 16 when I pick up the phone, my voice gets all tight and I don’t make any sense”); Tr. 17 71 (Plaintiff testified that she does not leave her house unless she absolutely has to, 18 stating “I don’t leave very often. If I need something, I call my mom and ask her 19 to do it.”); Tr. 246 (Plaintiff alleged, “I don’t go anywhere”); Tr. 247 (Plaintiff 20 reported “I never go anywhere anymore.”). The ALJ also highlighted Plaintiff’s 2 ORDER - 19 1 allegations that trying to decide even basic things like what to make for dinner can 2 send her into a panic attack, she is unable to complete tasks without repeated 3 reminders or help, and she is easily distracted. Tr. 23 (citing Tr. 242, 247). 4 However, the ALJ noted that Plaintiff engaged in activities that were incompatible 5 with the extreme limitations alleged. Tr. 24. For example, Plaintiff reported that 6 she sleeps five to seven hours per night, cares for her own personal hygiene, 7 sweeps, mops and, vacuums every other day, cleans dishes multiple times per day, 8 cleans, folds, and puts away laundry once a week. Tr. 24 (citing Tr. 341). Further, 9 Plaintiff told the psychological examiner that she drives “whenever it is needed,” 10 prepares meals twice a day, and shops for groceries and clothing weekly. Tr. 24 11 (citing Tr. 341). The ALJ also noted that Plaintiff told the psychological examiner 12 she was able to use the telephone as needed, which was inconsistent with her 13 claims at the hearing. Tr. 24 (citing Tr. 341). The ALJ reasonably concluded that 14 these activities were inconsistent with the debilitating level of impairment Plaintiff 15 alleged. Tr. 24. 16 Plaintiff challenges the ALJ’s finding by asserting that she could only 17 occasionally perform these activities. ECF No. 14 at 12-13. An ALJ may discount 18 a claimant’s symptom claims when the claimant reports participation in everyday 19 activities that “contradict claims of a totally debilitating impairment.” Molina, 674 20 F.3d at 1112-13. Here, the ALJ identified Plaintiff’s specific alleged impairments 2 ORDER - 20 1 and noted specific activities that indicated Plaintiff was less limited than she 2 alleged. Tr. 24. This was a clear and convincing reason to give less weight to 3 Plaintiff’s subjective symptom testimony. 4 4. Inconsistent with Childcare Activities 5 The ALJ discounted Plaintiff’s symptom claims as inconsistent with the 6 ability to care for her children. Tr. 24. The ability to care for others without help 7 has been considered an activity that may undermine claims of totally disabling 8 pain. Rollins, 261 F.3d at 857. For care activities to serve as a basis for the ALJ to 9 discredit a claimant’s symptom claims, the record must identify the nature, scope, 10 and duration of the care involved, showing that the care is hands on rather than a 11 “one-off” care activity. Trevizo v. Berryhill, 871 F.3d 664, 675-76 (9th Cir. 2017). 12 Here, the ALJ noted that Plaintiff alleged she was unable to concentrate or focus, 13 and could not complete even basis tasks without repeated reminders or help. Tr. 14 24 (citing Tr. 242, 247). The ALJ also observed that Plaintiff reported she was 15 raising two small children with minimal help. Tr. 24, 56, 67, 78. The record 16 provides additional insight into Plaintiff’s childcare activities. See Tr. 56, 67-70 17 (Plaintiff testified that her two children, ages two and five, were with her all day); 18 Tr. 71 (When discussing why she does not usually leave her house, Plaintiff 19 testified, “If I leave, then I have to take my kids with me.”); Tr. 243 (Plaintiff 20 noted on her function report that she takes care of her two children and does 2 ORDER - 21 1 “everything” for them); Tr. 243 (Plaintiff reported that the children’s father helped 2 with the children three mornings a week). During the hearing, when asked to 3 describe her “average typical day,” Plaintiff described caring for her two small 4 children for the entire day with no help other than the children’s father putting 5 them down for a nap in the afternoon. Tr. 68-70. Plaintiff testified that her mother 6 helps with her children, but further stated “[e]very once in a while, if I’m having a 7 particularly bad stretch and [the children’s father] cannot miss anymore work 8 which is perfectly understandable, and my mom who has kidney failure can’t help 9 today also understandable, I will call the crisis nursery and see if they can take the 10 kids for the day too. I’ve accessed them occasionally for that.” Tr. 78. The ALJ 11 noted that raising two small children requires considerable focus, persistence, and 12 mental stability. Tr. 24. On this record, the ALJ properly found that Plaintiff’s 13 childcare activities did not support her disabling subjective symptom complaints. 14 5. Improvement with Medication 15 The ALJ discounted Plaintiff’s symptom claims because her anxiety 16 symptoms improved with medication. Tr. 23-24. The effectiveness of medication 17 and treatment is a relevant factor in determining the severity of a claimant’s 18 symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2017); see Warre v. 19 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (recognizing that 20 conditions effectively controlled with medication are not disabling for purposes of 2 ORDER - 22 1 determining eligibility for benefits) (internal citations omitted); see also 2 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (A favorable response 3 to treatment can undermine a claimant’s complaints of debilitating pain or other 4 severe limitations.). Here, the ALJ cited treatment records demonstrating that 5 Plaintiff’s anxiety symptoms improved with medication. Tr. 23-24; see, e.g., Tr. 6 372 (Plaintiff reported significant improvement in her anxiety symptoms with 7 medication; Plaintiff felt they were “the right dose for her,” and denied any side 8 effects; provider noted she was doing very well on her current medication 9 regimen). The ALJ also noted that there are no records from 2018, suggesting that 10 Plaintiff’s mental health issues have not been severe enough to motivate her to 11 seek treatment. Tr. 24. Based on this record, the ALJ reasonably concluded that 12 Plaintiff’s mental impairments, when treated with medication, were not as limiting 13 as Plaintiff claimed. This was a clear and convincing reason to discount Plaintiff’s 14 symptom claims. 15 6. Stopped Work for Reasons Unrelated to Impairments 16 The ALJ found that Plaintiff’s symptom complaints were less reliable 17 because she stopped working for reasons other than her impairments. Tr. 24. An 18 ALJ may consider that a claimant stopped working for reasons unrelated to the 19 allegedly disabling condition in making a credibility determination. See Bruton v. 20 Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The ALJ noted that despite 2 ORDER - 23 1 Plaintiff’s alleged disability onset date of July 31, 2015, testimony confirmed that 2 Plaintiff stopped working in 2015 after being placed on bed rest due to pregnancy, 3 and not due to her alleged disabling mental health issues. Tr. 24; see, e.g., Tr. 74 4 (Plaintiff testified that her last job ended because “I was put on bed rest. I couldn’t 5 do the barn job anymore.”); Tr. 57 (When asked about earnings listed as self6 employment in 2015, Plaintiff testified that the earnings record was incorrect and 7 she actually worked in 2016 because she had just given birth at the end of 2015 8 and “wasn’t doing anything.”). The ALJ reasonably concluded that this reason for 9 stopping work undermines Plaintiff’s claim that her anxiety and depression made it 10 impossible for her to work at all. Tr. 24. 11 7. Ability to Work with Impairments 12 The ALJ found that Plaintiff’s symptom allegations were inconsistent with 13 her ability to work part-time after her alleged disability onset date. Tr. 17, 24. 14 Working with an impairment supports a conclusion that the impairment is not 15 disabling. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992); see also 16 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (seeking 17 work despite impairment supports inference that impairment is not disabling). The 18 ALJ indicated that Plaintiff reported she was unable to work due to mental health 19 impairments that caused extreme limitations, including difficulty sleeping, going 20 days without showering, an inability to make phone calls, and not leaving her 2 ORDER - 24 1 house unless absolutely necessary. Tr. 24, 64-66, 71-72, 246-47. The ALJ 2 highlighted Plaintiff’s allegations that trying to decide even basic things like what 3 to make for dinner can send her into a panic attack, she is unable to complete tasks 4 without repeated reminders or help, and she is easily distracted. Tr. 23 (citing Tr. 5 242, 247). The ALJ cited Plaintiff’s testimony that since September or October 6 2015 she has panic attacks three to four times per week. Tr. 23, 65-66. The ALJ 7 cited Plaintiff’s reports that her impairments limit her ability to talk, hear, 8 remember, complete tasks, concentrate, understand, follow instructions, and get 9 along with others. Tr. 23 (citing Tr. 247). The ALJ also cited Plaintiff’s 10 allegations that she is unable to think more than one-step at a time on a daily basis, 11 her organizational skills are completely gone, she gets overwhelmed trying to do 12 basic things, she frequently has to stop, regroup and try again. Tr. 23 (citing Tr. 13 242). Further, the ALJ noted that in her disability appeals report, Plaintiff reported 14 that her psychological impairments have progressively worsened and continue to 15 affect all aspects of daily living. Tr. 23 (citing Tr. 261). However, the ALJ 16 observed that Plaintiff was able to work at least part-time cleaning houses after her 17 disability onset date of July 31, 2015, which showed she was more functional than 18 alleged. Tr. 24. At the hearing, the ALJ questioned Plaintiff about her past work 19 cleaning someone’s house. Tr. 57. Plaintiff testified that at the “tail end of 2016” 20 she began cleaning someone’s house and she was paid in cash. Tr. 57. Further, 2 ORDER - 25 1 Plaintiff testified that although this work began at the end of 2016, she still 2 performs this work “every once in a while.” Tr. 57. Based on Plaintiff’s 3 testimony, the ALJ reasonably concluded that although this work was not 4 substantial gainful activity, Plaintiff’s ability to work at least part-time cleaning 5 houses after her disability onset date indicated that Plaintiff’s impairments were 6 not as severe as she alleged. Tr. 17, 24. 7 8 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Morgan 9 Liddell, M.D., and Amanda Guthmueller, LMHC. ECF No. 14 at 13-16. 10 There are three types of physicians: “(1) those who treat the claimant 11 (treating physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor treat the claimant 13 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 14 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 15 Generally, a treating physician’s opinion carries more weight than an examining 16 physician’s opinion, and an examining physician’s opinion carries more weight 17 than a reviewing physician’s opinion. Id. at 1202. “In addition, the regulations 18 give more weight to opinions that are explained than to those that are not, and to 19 the opinions of specialists concerning matters relating to their specialty over that of 20 nonspecialists.” Id. (citations omitted). 2 ORDER - 26 1 If a treating or examining physician’s opinion is uncontradicted, the ALJ 2 may reject it only by offering “clear and convincing reasons that are supported by 3 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 4 “However, the ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory, and inadequately supported 6 by clinical findings.” Bray, 554 F.3d at 1228 (internal quotation marks and 7 brackets omitted). “If a treating or examining doctor’s opinion is contradicted by 8 another doctor’s opinion, an ALJ may only reject it by providing specific and 9 legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 10 1216 (citing Lester, 81 F.3d at 830–31. The opinion of a nonexamining physician 11 may serve as substantial evidence if it is supported by other independent evidence 12 in the record. Andrews, 53 F.3d at 1041. 13 “Only physicians and certain other qualified specialists are considered 14 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original); 15 see 20 C.F.R. §§ 404.1513, 416.913 (2013).3 However, an ALJ is required to 16 17 3 For cases filed prior to March 27, 2017, the definition of an acceptable medical 18 source, as well as the requirement that an ALJ consider evidence from non19 acceptable medical sources, are located at 20 C.F.R. §§ 404.1513(d), 416.913(d) 20 (2013). 2 ORDER - 27 1 consider evidence from non-acceptable medical sources. Sprague v. Bowen, 812 2 F.2d 1226, 1232 (9th Cir. 1987); 20 C.F.R. §§ 404.1513(d), 416.913(d) (2013). 3 “Other sources” include nurse practitioners, physicians’ assistants, therapists, 4 teachers, social workers, spouses, and other non-medical sources. 20 C.F.R. §§ 5 404.1513(d), 416.913(d) (2013). An ALJ may reject the opinion of a non6 acceptable medical source by giving reasons germane to the opinion. Ghanim, 763 7 F.3d at 1161. 8 1. Dr. Liddell 9 On February 11, 2017, Plaintiff underwent a consultative psychological 10 examination performed by Morgan Liddell, M.D. Tr. 338-44. Plaintiff reported 11 that she was unable to work due to an inability to stay focused and organized, 12 further describing difficulty with setting goals, time management, and caring for 13 herself. Tr. 339. She reported poor memory, ADHD, anxiety, and a history of 14 unstable relationships. Tr. 339. She described her mood as “typically cheerful and 15 laid back” but with periods of irritability and poor frustration tolerance. Tr. 339. 16 Plaintiff endorsed sleep disturbance, poor concentration, and fatigue. Tr. 339. Dr. 17 Liddell noted that Plaintiff arrived early for her appointment, she was observed to 18 pull up to the clinic in an SUV with her window down, singing, she easily engaged 19 Dr. Liddell’s secretary and completed the psychiatric evaluation questionnaire 20 without any odd behaviors. Tr. 338. On mental status examination, Dr. Liddell 2 ORDER - 28 1 noted that Plaintiff presented with appropriate clothing, fair grooming and hygiene, 2 she had good eye contact, was congenial, engaging, and cooperative, had good 3 adherence to social conventions, and did not demonstrate any abnormal 4 movements. Tr. 342. She had normal thought process, normal speech, normal 5 comprehension, and denied hallucinations and delusions. Tr. 342. Plaintiff 6 reported that her mood was “good today.” Tr. 342. Dr. Liddell found that 7 Plaintiff’s affect was normal-appropriate during the majority of the session, and 8 she became tearful during the mental status examination. Tr. 342. Mental status 9 examination findings showed that Plaintiff was alert and oriented, and she 10 demonstrated a normal memory, fund of knowledge, and attention. Tr. 342. She 11 recalled five out of five items after a delay, was able to follow a three-step 12 command, spelled the word “world” backwards, and demonstrated good 13 persistence in attempting tasks. Tr. 342-43. 14 Dr. Liddell opined that Plaintiff’s mental impairments would not produce 15 any obvious limitations in her ability to perform simple and repetitive tasks, 16 perform detailed and complex tasks, interact with coworkers and the public, accept 17 instructions from supervisors, perform work activities on a consistent basis, or 18 maintain regular attendance in the workplace. Tr. 344. Dr. Liddell also opined 19 that Plaintiff’s psychiatric symptoms would cause limitations in her ability to 20 complete a normal workday or workweek without interruptions and manage usual 2 ORDER - 29 1 stress encountered in the workplace without some accommodations. Tr. 344. 2 However, Dr. Liddell also stated that Plaintiff’s psychiatric complaints were 3 treatable with a fair likelihood of substantial recovery and were likely to improve 4 within the next 12 months with standard care treatment. Tr. 343. 5 The ALJ gave Dr. Liddell’s opinion little weight. Tr. 25. Because Dr. 6 Liddell’s opinion was contradicted by the nonexamining opinions of Patricia Kraft, 7 Ph.D., and John Robinson, Ph.D., Tr. 90-93, 100-03, 111-13, 121-23, the ALJ was 8 required to provide specific and legitimate reasons for discounting Dr. Liddell’s 9 opinion. Bayliss, 427 F.3d at 1216. 10 11 a. Conclusory Opinion The ALJ rejected Dr. Liddell’s opinion because she did not provide rationale 12 in support of the limitations she opined. Tr. 25. The Social Security regulations 13 “give more weight to opinions that are explained than to those that are not.” 14 Holohan, 246 F.3d at 1202. “[T]he ALJ need not accept the opinion of any 15 physician, including a treating physician, if that opinion is brief, conclusory and 16 inadequately supported by clinical findings.” Bray, 554 F.3d at 1228. 17 Furthermore, an ALJ may reject an opinion that does “not show how [a claimant’s] 18 symptoms translate into specific functional deficits which preclude work activity.” 19 See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). In 20 her opening brief, Plaintiff did not challenge this reason articulated by the ALJ, 2 ORDER - 30 1 thus it is waived. Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (recognizing 2 the Court may not consider on appeal issues not “specifically and distinctly 3 argued” in the party’s opening brief). 4 Despite Plaintiff’s waiver, the Court has reviewed the ALJ’s finding. The 5 ALJ determined that Dr. Liddell’s opinion relied upon undefined vocational terms, 6 finding that Dr. Liddell failed to elaborate on the extent of her opined limitations in 7 completing a normal workday/workweek and managing usual stress. Tr. 25. The 8 ALJ also determined that Dr. Liddell provided almost no explanation as to why 9 Plaintiff would have such limitations. Tr. 25. Dr. Liddell also failed to explain the 10 type of “usual stress” that would cause Plaintiff to be disabled. Morgan, 169 F.3d 11 at 601. The ALJ reasonably discredited these findings as not sufficiently 12 explained. Tr. 25. This was a specific and legitimate reason to discredit Dr. 13 Liddell’s opinion. 14 15 b. Internally Inconsistent The ALJ found that Dr. Liddell’s opined limitations in completing a normal 16 workday/workweek and managing usual stress were internally inconsistent with 17 Dr. Liddell’s own examination findings. Tr. 25. Relevant factors to evaluating 18 any medical opinion include the amount of relevant evidence that supports the 19 opinion, the quality of the explanation provided in the opinion, and the consistency 20 of the medical opinion with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 2 ORDER - 31 1 1028, 1035 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 2 Moreover, a physician’s opinion may be rejected if it is unsupported by the 3 physician’s treatment notes. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 4 2003). The ALJ noted that Dr. Liddell’s own mental status examination findings 5 were largely intact. Tr. 25. The ALJ found that Plaintiff presented with 6 appropriate clothing and fair grooming and hygiene. Tr. 19, 341. The ALJ noted 7 that Dr. Liddell reported Plaintiff had good eye contact, was congenial, engaging 8 and cooperative, had good adherence to social conventions, as shown by shaking 9 Dr. Liddell’s hand when offered and offering appropriate greetings, and did not 10 demonstrate any abnormal movements. Tr. 19, 338, 342. The ALJ noted that Dr. 11 Liddell found Plaintiff had normal thought process, normal speech, normal 12 comprehension, and no hallucinations or delusions. Tr. 19, 342. Further, the ALJ 13 cited Dr. Liddell’s notation that Plaintiff reported her mood was “good today,” and 14 she noted Plaintiff’s affect was normal-appropriate during the majority of the 15 session, although she became tearful during the mental status examination. Tr. 19, 16 342. The ALJ observed that Dr. Liddell noted Plaintiff was alert and oriented, and 17 demonstrated a normal memory, fund of knowledge, attention and concentration. 18 Tr. 19, 342. The ALJ noted that Dr. Liddell found Plaintiff recalled five out of five 19 items after a delay, was able to follow a three-step command, spelled the word 20 “world” backwards, and demonstrated good persistence in attempting tasks. Tr. 2 ORDER - 32 1 19, 342-43. Notably, Dr. Liddell opined that Plaintiff “would not have any 2 obvious limitations in her ability to . . . perform work activities on a consistent 3 basis, or maintain regular attendance in the workplace.” Tr. 344. 4 Plaintiff argues that “Dr. Liddell would have based his opinion on 5 [Plaintiff’s] medical history of mental problems and upon his observations during 6 the evaluation.” ECF No. 14 at 15. As discussed supra, Plaintiff’s mental 7 impairments and Dr. Liddell’s observations during the evaluation do not support 8 Plaintiff’s disabling symptom claims. To the extent the evidence could be 9 interpreted differently, it is the role of the ALJ to resolve conflicts and ambiguity 10 in the evidence. Morgan, 169 F.3d at 599-600. Where, as here, evidence is subject 11 to more than one rational interpretation, the ALJ’s conclusion will be upheld. 12 Burch, 400 F.3d at 679; Hill, 698 F.3d at 1158 (recognizing the court only disturbs 13 the ALJ’s findings if they are not supported by substantial evidence). The ALJ 14 provided a specific and legitimate reason to discount Dr. Liddell’s opined 15 limitations in completing a normal workday/workweek and managing usual stress. 16 c. Inconsistent with the Overall Record 17 The ALJ reasoned that Dr. Liddell’s opinion was not consistent with the 18 overall record. Tr. 25. Relevant factors when evaluating a medical opinion 19 include the amount of relevant evidence that supports the opinion and the 20 consistency of the medical opinion with the record as a whole. Lingenfelter, 504 2 ORDER - 33 1 F.3d at 1035; Orn, 495 F.3d at 631. The ALJ noted that Dr. Liddell’s opinion was 2 inconsistent with the largely benign mental status findings documented in the 3 record. Tr. 25; see, e.g., Tr. 353 (August 8, 2016: Plaintiff had an anxious mood 4 and a fearful and anxious affect, but she was cooperative with good eye contact 5 and normal psychomotor activity, had normal speech, she was goal directed with 6 organized and logical thought content, her fund of knowledge was average, her 7 insight and judgment, attention, and recent and remote memory were intact); Tr. 8 349 (January 16, 2017: Plaintiff had an anxious mood and a fearful and anxious 9 affect, but she was cooperative with good eye contact and normal psychomotor 10 activity, had normal speech, congruent mood, she was goal directed with 11 organized, logical, and linear thought content, her fund of knowledge was average, 12 her insight and judgment, attention, and recent and remote memory were intact); 13 Tr. 342-43 (February 11, 2017: Plaintiff had good eye contact, was congenial, 14 engaging, and cooperative, she demonstrated coherent, logical, and linear thought 15 process, normal speech, normal comprehension, she denied auditory and visual 16 hallucinations and denied having any intent or plan to harm herself or others, she 17 reported that her mood was “good today,” her affect was normal-appropriate 18 during the majority of the session, although she became tearful during the mental 19 status examination, she exhibited no problems with her memory or fund of 20 knowledge, demonstrated good persistence in attempting tasks and seemed to 2 ORDER - 34 1 recognize failures made, and had fair insight into her overall mental health); Tr. 2 345 (March 10, 2017: Plaintiff had an anxious mood, but she was cooperative with 3 good eye contact, had normal speech, congruent mood, she was goal directed with 4 no abnormal thought content, her insight and judgment were intact, and her recent 5 and remote memory were intact); Tr. 374 (June 14, 2017: Plaintiff reported her 6 medications were “significantly” helping her anxiety; Plaintiff was assessed with 7 generalized anxiety disorder “doing very well on current regimen”; upon 8 examination Plaintiff had a normal mood and affect); Tr. 377, 380 (June 21, 2017 9 and July 11, 2017: Plaintiff had a normal mood and affect, and her behavior, 10 judgment, and thought content were normal). Moreover, the ALJ determined that 11 Dr. Liddell’s opinion was inconsistent with Plaintiff’s own reports of significant 12 improvement in her anxiety with medication. Tr. 25; see, e.g., Tr. 24, see, e.g., Tr. 13 372 (Plaintiff reported significant improvement in her anxiety symptoms with 14 medication; Plaintiff felt they were “the right dose for her,” and denied any side 15 effects; provider noted she was doing very well on her current medication 16 regimen). 17 Plaintiff argues that the ALJ erred in weighing Dr. Liddell’s opinion because 18 the ALJ “assigned great weight to the opinions of doctors who allegedly reviewed 19 [Plaintiff’s] medical records at the Disability Determination Services.” ECF No. 20 14 at 14 (citing Tr. 25, 109-13, 119-23). Plaintiff’s argument is misplaced, as the 2 ORDER - 35 1 ALJ gave little weight to the State agency psychologists’ opinions that Plaintiff 2 had no severe mental impairments, and the ALJ instead formulated an RFC 3 limiting Plaintiff to unskilled work consisting of simple, routine, repetitive tasks in 4 a static environment with few, if any, work-related changes, no strict fast paced 5 production or time quotas, frequent, superficial interaction with coworkers and 6 supervisors, and incidental to no contact or interaction with the public. Tr. 22, 25 7 (citing Tr. 90-93, 100-03, 111-13, 121-23). The ALJ reasonably determined that 8 Dr. Liddell’s opinion was not consistent with the largely benign mental status 9 findings documented in the record or with Plaintiff’s own reports of significant 10 improvement in her anxiety with medication. Tr. 25. This was a specific and 11 legitimate reason, supported by substantial evidence, to discount Dr. Liddell’s 12 opinion. 13 14 d. Durational Requirement The ALJ discounted Dr. Liddell’s assessment because it was unclear 15 whether her opinion established a durational level of impairment. Tr. 25. 16 Temporary limitations are not enough to meet the durational requirement for a 17 finding of disability. 20 C.F.R. §§ 404.1505(a), 416.905(a) (requiring a claimant’s 18 impairment to be expected to last for a continuous period of not less than twelve 19 months); 42 U.S.C. § 423(d)(1)(A) (same); Carmickle, 533 F.3d at 1165 (affirming 20 the ALJ’s finding that treating physicians’ short-term excuse from work was not 2 ORDER - 36 1 indicative of “claimant’s long-term functioning”). In the opening brief, Plaintiff 2 did not challenge this reason articulated by the ALJ, thus it is waived. Kim, 154 3 F.3d at 1000. 4 Despite Plaintiff’s waiver, the Court has reviewed the ALJ’s finding. The 5 ALJ noted that Dr. Liddell specifically stated that Plaintiff’s condition was likely 6 to improve within the next 12 months with appropriate treatment. Tr. 25. To be 7 disabled, an impairment must be expected to last for a continuous period of at least 8 12 months. See 20 C.F.R. §§ 404.1509, 416.909; see also 20 C.F.R. §§ 404.1505, 9 416.905. Here, Dr. Liddell opined that Plaintiff’s condition would likely improve 10 with appropriate treatment within the next 12 months. Tr. 343-44. Without further 11 clarification, Dr. Liddell’s statement could mean that Plaintiff would be impaired 12 for the entire 12-month period. Therefore, it appears that Dr. Liddell’s opinion 13 may have satisfied the disability durational requirement and this was not a specific 14 and legitimate reason to discredit Dr. Liddell’s opinion. However, such error is 15 harmless because the ALJ provided other specific and legitimate reasons, 16 supported by substantial evidence, see infra, to discredit Dr. Liddell’s opinion. 17 Molina, 674 F.3d at 1115. 18 2. Ms. Guthmueller 19 On March 10, 2018, Plaintiff’s counselor, Amanda Guthmueller, LMHC, 20 completed a mental medical source statement. Tr. 392-97. Ms. Guthmueller noted 2 ORDER - 37 1 that she had provided mental health counseling to Plaintiff from October 2015 2 through October 2016 and Plaintiff exhibited “slight if any improvement.” Tr. 3 392. Ms. Guthmueller noted that she did not conduct any mental status 4 examinations or have any clinical findings that demonstrated the severity of 5 Plaintiff’s mental impairments and symptoms. Tr. 392. Ms. Guthmueller checked 6 boxes on the mental medical source statement indicating that Plaintiff would have 7 serious limitations in her ability to complete a normal workday or workweek 8 without interruptions from psychologically based symptoms, perform at a 9 consistent pace without an unreasonable number and length of rest periods, and 10 travel in unfamiliar places. Tr. 394-95. Ms. Guthmueller checked boxes assessing 11 that Plaintiff would be off-task five percent of the time, and would miss more than 12 four days of work each month. Tr. 396. The ALJ gave Ms. Guthmueller’s opinion 13 little weight. Tr. 25. Because Ms. Guthmueller was an “other source,” the ALJ 14 was required to provide germane reasons to discount her opinion.4 Dodrill v. 15 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 16 17 18 4 As a therapist, Ms. Guthmueller is considered an “other source” under 20 C.F.R. 19 §§ 404.1513(d)(1), 416.913(d)(1) (2013). 20 2 ORDER - 38 1 2 a. “Other Source” Opinion In discrediting her opinion, the ALJ noted that Ms. Guthmueller was not an 3 acceptable medical source. Tr. 25. An ALJ must consider the testimony of lay 4 witnesses in determining whether a claimant is disabled. Stout v. Comm’r of Soc. 5 Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). Lay witness testimony cannot 6 establish the existence of medically determinable impairments, but lay witness 7 testimony is “competent evidence” as to “how an impairment affects [a claimant’s] 8 ability to work.” Id.; 20 C.F.R. §§ 404.1513, 416.913; see also Dodrill, 12 F.3d at 9 918-19 (“[F]riends and family members in a position to observe a claimant’s 10 symptoms and daily activities are competent to testify as to her condition.”). If lay 11 testimony is rejected, the ALJ “‘must give reasons that are germane to each 12 witness.’” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill, 13 12 F.3d at 919). The fact that Ms. Guthmueller was an “other source” was not a 14 germane reason to reject her opinion. Plaintiff asserts that because Ms. 15 Guthmueller’s opinion was allegedly consistent with Dr. Liddell’s assessment, the 16 ALJ was required to provide clear and convincing reasons to reject Ms. 17 Guthmueller’s opinion. ECF No. 14 at 16. Plaintiff offers no legal authority to 18 support this specific proposition. Although the fact that she was an other source 19 was not a germane reason to discount her opinion, because Ms. Guthmueller was 20 an “other source” under 20 C.F.R. §§ 404.1513(d), 416.913(d), the ALJ need only 2 ORDER - 39 1 have provided germane reasons for rejecting her findings. See Molina, 674 F.3d at 2 1111. 3 4 b. Self-Report The ALJ found that Ms. Guthmueller’s limitations were based exclusively 5 on Plaintiff’s self-reports. Tr. 25. A physician’s opinion may be rejected if it 6 based on a claimant’s subjective complaints which were properly discounted. 7 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan, 169 F.3d at 8 602; Fair, 885 F.2d at 604. “[W]hen an opinion is not more heavily based on a 9 patient’s self-reports than on clinical observations, [this] is no evidentiary basis for 10 rejecting the opinion.” Ghanim, 763 F.3d at 1162. As discussed supra, the ALJ 11 reasonably discredited Plaintiff’s symptom complaints. Moreover, the ALJ noted 12 that Ms. Guthmueller specifically stated that a mental status examination was “not 13 conducted,” suggesting that her opinions were based exclusively on Plaintiff’s self14 reports. Tr. 25 (citing Tr. 392). Plaintiff argues that Ms. Guthmueller, as a 15 counselor at Spokane Resource Group, would have been aware of Plaintiff’s 16 symptoms during her counseling sessions, and Plaintiff testified that Ms. 17 Guthmueller was one of her counselors at Spokane Resource Group. ECF No. 14 18 at 15; Tr. 47, 73. Plaintiff asserts that Ms. Guthmueller would have reviewed the 19 findings and notes of several different counselors at Spokane Resource Group, and 20 therefore, her diagnosis and opinion was not based on Plaintiff’s self-report, but 2 ORDER - 40 1 instead was based on the counseling records as a whole. ECF No. 14 at 15-16. 2 However, given Ms. Guthmueller’s limited evaluation, absence of a mental status 3 examination or any clinical findings, no record review, and minimal explanation, 4 the ALJ reasonably concluded that Ms. Guthmueller relied on Plaintiff’s 5 discredited symptom complaints in assessing serious limitations. This was a 6 germane reason for discounting Ms. Guthmueller’s opinion. 7 8 c. Internally Inconsistent The ALJ found that Ms. Guthmueller’s opinion that Plaintiff would be 9 absent more than four days a month was internally inconsistent with Ms. 10 Guthmueller’s own assessment of Plaintiff’s mild limitations in other areas. Tr. 11 25. Relevant factors to evaluating any medical opinion include the amount of 12 relevant evidence that supports the opinion, the quality of the explanation provided 13 in the opinion, and the consistency of the medical opinion with the record as a 14 whole. Lingenfelter, 504 F.3d at 1035; Orn, 495 F.3d at 631. Moreover, a 15 physician’s opinion may be rejected if it is unsupported by the physician’s 16 treatment notes. See Connett, 340 F.3d at 875. In the opening brief, Plaintiff did 17 not challenge this reason articulated by the ALJ, thus it is waived. Kim, 154 F.3d 18 at 1000. 19 Despite Plaintiff’s waiver, the Court has reviewed the ALJ’s finding. The 20 ALJ noted that Ms. Guthmueller opined Plaintiff would be absent more than four 2 ORDER - 41 1 days a month, yet indicated only mild limitations in many other areas, which was 2 inconsistent with an individual who was so debilitated that they would not be able 3 to attend work for multiple days a month. Tr. 25; see, e.g., Tr. 394 (Ms. 4 Guthmueller assessed Plaintiff as having an unlimited or very good ability to 5 maintain regular attendance and be punctual within customary, usually strict 6 tolerances, and to sustain an ordinary routine without special supervision). This 7 was a germane reason for the ALJ to discount Ms. Guthmueller’s opinion that 8 Plaintiff would miss work more than four days per month. Tr. 25. 9 10 d. Inconsistent with Overall Record The ALJ reasoned that Ms. Guthmueller’s opinion was not supported by the 11 record as a whole. Tr. 25. Relevant factors when evaluating a medical opinion 12 include the amount of relevant evidence that supports the opinion and the 13 consistency of the medical opinion with the record as a whole. Lingenfelter, 504 14 F.3d at 1035; Orn, 495 F.3d at 631. The ALJ noted that although Ms. Guthmueller 15 stated that during Plaintiff’s treatment from October 2015 to October 2016, 16 Plaintiff had “slight if any improvement,” Tr. 392, records during the same time 17 frame showed Plaintiff was “doing a lot better” and had continued improvement in 18 her anxiety and depression. Tr. 25; see, e.g., Tr. 316 (May 18, 2016: Plaintiff 19 reported she felt like she was “doing a lot better”); Tr. 352-53 (August 8, 2016: 20 Plaintiff reported “I am doing better in some ways but I think I might be getting 2 ORDER - 42 1 some depression”); Tr. 356-57 (July 8, 2016: Plaintiff reported that overall she had 2 been feeling “pretty good.”). The ALJ also determined that Ms. Guthmueller’s 3 opinions were inconsistent with the benign mental status examination findings and 4 demonstrated functional abilities throughout the record, showing that Plaintiff was 5 engaging and cooperative, had normal mood and affect, and presented with good 6 eye contact and normal speech, normal or intact memory, attention, focus, and 7 concentration. Tr. 25, 342, 345, 349, 353, 357, 374, 377, 380. The ALJ 8 reasonably considered that these findings directly contradicted Ms. Guthmueller’s 9 assessment that Plaintiff had serious limitations in completing a normal workday or 10 workweek without interruptions from psychologically based symptoms, 11 performing at a consistent pace, and traveling in unfamiliar places, when 12 discounting her opinion. Tr. 25. 13 Plaintiff argues that Ms. Guthmueller’s opinion would have been based on 14 her counseling records as a whole, and her opinion was consistent with the opinion 15 of Dr. Liddell. ECF No. 14 at 16. These assertions do not undermine the ALJ’s 16 conclusion. As discussed supra, the ALJ reasonably determined that Dr. Liddell’s 17 own mental status examination findings were largely intact and inconsistent with 18 the largely benign mental status findings documented in the record, and with 19 Plaintiff’s own reports of significant improvement in her anxiety with medication. 20 Tr. 25. This was a germane reason to discount Ms. Guthmueller’s opinion. 2 ORDER - 43 1 2 e. Inadequate Explanation The ALJ also discounted Ms. Guthmueller’s opinion because it was only a 3 check-box form with little explanation for the assessed limitations. Tr. 25. A 4 medical opinion may be rejected by the ALJ if it is conclusory or inadequately 5 supported. Bray, 554 F.3d at 1228. For this reason, individual medical opinions 6 are preferred over check-box reports. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 7 1996); Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). An ALJ may 8 permissibly reject check-box reports that do not contain any explanation of the 9 bases for their conclusions. Crane, 76 F.3d at 253. However, if treatment notes 10 are consistent with the opinion, a conclusory opinion, such as a check-the-box 11 form, may not automatically be rejected. See Garrison, 759 F.3d at 1014 n.17; see 12 also Trevizo, 871 F.3d at 667 n.4 (“[T]here is no authority that a ‘check-the-box’ 13 form is any less reliable than any other type of form”). Here, the ALJ noted that 14 Ms. Guthmueller’s opinion consisted of a check-box form, with little explanation 15 to support the degree of limitation opined. Tr. 25 (citing Tr. 392-97). The ALJ 16 observed that, while Ms. Guthmueller treated Plaintiff for over a year, she had not 17 treated Plaintiff not since October 2016 and her opinion was rendered almost a 18 year and a half later, in March 2018. Tr. 392, 397. The ALJ noted that although 19 Ms. Guthmueller saw Plaintiff for 37 one-hour sessions from during her year of 20 treatment, there were no treatment records from Ms. Guthmueller in the record and 2 ORDER - 44 1 thus, there were no objective findings from Ms. Guthmueller to corroborate her 2 opinion. Tr. 25. Given the lack of explanation, this was a germane reason to reject 3 Ms. Guthmueller’s opinion. 4 5 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 6 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 10 GRANTED. 11 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 12 The District Court Executive is directed to file this Order, provide copies to 13 counsel, and CLOSE THE FILE. 14 DATED March 23, 2020. 15 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 2 ORDER - 45
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