Schimanskey v. Commissioner of Social Security, No. 4:2019cv05164 - Document 19 (E.D. Wash. 2020)
Court Description: ORDER DENYING 13 PLAINTIFF'S SUMMARY-JUDGMENT MOTION AND GRANTING 17 DEFENDANT'S SUMMARY-JUDGMENT MOTION. Case is closed. Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)
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Schimanskey v. Commissioner of Social Security Doc. 19 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Jun 25, 2020 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 WILLIAM S.,1 v. 9 11 4:19-CV-5164-EFS Plaintiff, 8 10 No. ANDREW M. SAUL, THE COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S SUMMARY-JUDGMENT MOTION AND GRANTING DEFENDANT’S SUMMARY-JUDGMENT MOTION Defendant. 12 13 Before the Court are the parties’ cross summary-judgment motions.2 14 15 Plaintiff William S. appeals the denial of benefits by the Administrative Law Judge 16 (ALJ). He alleges the ALJ erred by 1) improperly weighing the medical opinions; 2) 17 improperly determining that Plaintiff did not have a severe physical impairment; 18 3) discounting Plaintiff’s symptom reports; 4) failing to properly consider lay 19 20 1 To protect the privacy of the social-security Plaintiff, the Court refers to him by 21 first name and last initial or by “Plaintiff.” See LCivR 5.2(c). 22 2 ECF Nos. 13 & 17. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 1 Dockets.Justia.com 1 statements; and 5) improperly assessing Plaintiff’s residual functional capacity and 2 therefore relying on an incomplete hypothetical at step five. In contrast, Defendant 3 Commissioner of Social Security asks the Court to affirm the ALJ’s decision finding 4 Plaintiff not disabled. After reviewing the record and relevant authority, the Court 5 denies Plaintiff’s Motion for Summary Judgment, ECF No. 13, and grants the 6 Commissioner’s Motion for Summary Judgment, ECF No. 17. 7 I. Five-Step Disability Determination 8 A five-step sequential evaluation process is used to determine whether an 9 adult claimant is disabled.3 Step one assesses whether the claimant is currently 10 engaged in substantial gainful activity.4 If the claimant is engaged in substantial 11 gainful activity, benefits are denied.5 If not, the disability-evaluation proceeds to 12 step two.6 13 14 Step two assesses whether the claimant has a medically severe impairment, or combination of impairments, which significantly limits the claimant’s physical 15 16 17 18 19 3 20 C.F.R. § 416.920(a). 4 Id. § 416.920(a)(4)(i). 5 Id. § 416.920(b). 6 Id. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 2 1 or mental ability to do basic work activities.7 If the claimant does not, benefits are 2 denied. 8 If the claimant does, the disability-evaluation proceeds to step three.9 3 Step three compares the claimant’s impairment(s) to several recognized by 4 the Commissioner to be so severe as to preclude substantial gainful activity.10 If an 5 impairment meets or equals one of the listed impairments, the claimant is 6 conclusively presumed to be disabled.11 If an impairment does not, the disability- 7 evaluation proceeds to step four. 8 Step four assesses whether an impairment prevents the claimant from 9 performing work he performed in the past by determining the claimant’s residual 10 functional capacity (RFC).12 If the claimant is able to perform prior work, benefits 11 are denied.13 If the claimant cannot perform prior work, the disability-evaluation 12 proceeds to step five. 13 14 Step five, the final step, assesses whether the claimant can perform other substantial gainful work—work that exists in significant numbers in the national 15 16 7 20 C.F.R. § 416.920(a)(4)(ii). 8 Id. § 416.920(c). 9 Id. 17 18 19 10 Id. § 416.920(a)(4)(iii). 11 Id. § 416.920(d). 12 Id. § 416.920(a)(4)(iv). 13 Id. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 3 1 economy—considering the claimant’s RFC, age, education, and work experience.14 2 If so, benefits are denied. If not, benefits are granted.15 3 The claimant has the initial burden of establishing entitlement to disability 4 benefits under steps one through four.16 At step five, the burden shifts to the 5 Commissioner to show that the claimant is not entitled to benefits.17 6 II. 7 Factual and Procedural Summary Plaintiff filed a Title XVI application, alleging a disability onset date of July 8 1, 1997.18 His claim was denied initially and upon reconsideration.19 A video 9 administrative hearing was held before Administrative Law Judge Steward 10 Stallings.20 11 In denying Plaintiff’s disability claim, the ALJ made the following findings: 12 13 Step one: Plaintiff had not engaged in substantial gainful activity since May 20, 2015, the application date; 14 15 14 20 C.F.R. § 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 16 1984). 17 15 20 C.F.R. § 416.920(g). 16 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 17 Id. 18 AR 99. 19 AR 108 & 122. 20 AR 39. 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 4 1 2 impairments: depressive disorder and an anxiety disorder; 3 4 Step three: Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the 5 listed impairments; 6 7 RFC: Plaintiff had the RFC to perform medium work except: [H]e can never climb ladders, ropes or scaffolds and must avoid exposure to the use of moving or dangerous machinery and unprotected heights. He required work with no interaction with the public, only occasional interaction with supervisors, only brief superficial interaction with coworkers (and this would preclude any team or tandem tasks), and in an environment where there would be very few people around during the performance of the work. He also requires a low stress job, defined as not requiring the worker to cope with work-related circumstances that could be dangerous to the workers or others, and no work requiring sales or production quotas, security, or customer service. 8 9 10 11 12 13 14 Step four: Plaintiff was not capable of performing past relevant work; and 15 16 Step five: considering Plaintiff’s RFC, age, education, and work history, Plaintiff could perform work that existed in significant 17 numbers in the national economy, such as industrial cleaner and 18 lumbar sorter.21 19 20 Step two: Plaintiff had the following medically determinable severe When assessing the medical-opinion evidence, the ALJ gave: 21 22 21 AR 19-28. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 5 1 2 Psy.D., and state agency psychological consultants Diane Fligstein, 3 Ph.D. and Jan Lewis, Ph.D.; 4 5 6 11 12 13 The ALJ also found that Plaintiff’s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, but that his statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the medical evidence and other evidence in the record.22 Likewise, the ALJ discounted the lay statements from Plaintiff’s former supervisor.23 14 15 little weight to the opinion of Jason England, ARNP, N.K. Marks, Davis, RNC. 8 10 some weight to the opinion of Wayne Hurley, M.D.; and Ph.D., Janis Lewis, Ph.D., Steven Johansen, Ph.D., and Deborah 7 9 significant weight to the opinions of Jay Toews, Ed.D., T.L. Browne, Plaintiff requested review of the ALJ’s decision by the Appeals Council, which denied review.24 Plaintiff timely appealed to this Court. 16 17 18 19 20 22 AR 22. 23 AR 24-25. 24 AR 1. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 6 1 III. 2 Standard of Review A district court’s review of the Commissioner’s final decision is limited.25 The 3 Commissioner’s decision is set aside “only if it is not supported by substantial 4 evidence or is based on legal error.”26 Substantial evidence is “more than a mere 5 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 6 mind might accept as adequate to support a conclusion.”27 Moreover, because it is 7 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 8 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 9 from the record.”28 The Court considers the entire record as a whole.29 10 11 12 13 25 42 U.S.C. § 405(g). 26 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 27 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 29 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 14 15 16 17 18 consider the entire record as whole, weighing both the evidence that supports and 19 the evidence that detracts from the Commissioner's conclusion,” not simply the 20 evidence cited by the ALJ or the parties.); Black v. Apfel, 143 F.3d 383, 386 (8th 21 Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that such 22 evidence was not considered[.]”). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 7 1 Further, the Court may not reverse an ALJ decision due to a harmless 2 error.30 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.”31 The party appealing the ALJ’s decision generally 4 bears the burden of establishing harm.32 5 6 IV. A. 7 Analysis Medical Opinions: Plaintiff fails to establish error. Plaintiff challenges the ALJ’s assignment of little weight to the examining 8 opinions of Dr. N.K. Marks, Nurse Practitioner Jason England, and Registered 9 Nurse Deborah Davis, and the reviewing opinions of Dr. Janis Lewis and Dr. 10 Steven Johansen. 11 The weighing of medical-source opinions is dependent upon the nature of the 12 medical relationship, i.e., 1) a treating physician; 2) an examining physician who 13 examines but did not treat the claimant; and 3) a reviewing physician who neither 14 treated nor examined the claimant.33 Generally, more weight is given to the 15 opinion of a treating physician than to an examining physician’s opinion, and both 16 17 18 19 30 Molina, 674 F.3d at 1111. 31 Id. at 1115 (quotation and citation omitted). 32 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 33 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 8 1 treating and examining opinions are to be given more weight than the opinion of a 2 reviewing physician.34 3 When a treating physician’s or evaluating physician’s opinion is not 4 contradicted by another physician, it may be rejected only for “clear and 5 convincing” reasons, and when it is contradicted, it may be rejected only for 6 “specific and legitimate reasons” supported by substantial evidence.35 A reviewing 7 physician’s opinion may be rejected for specific and legitimate reasons supported by 8 substantial evidence, and the opinion of an “other” medical source36 may be 9 rejected for specific and germane reasons supported by substantial evidence.37 The 10 opinion of a reviewing physician serves as substantial evidence if it is supported by 11 other independent evidence in the record.38 12 13 34 Id.; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 35 Lester, 81 F.3d at 830. 36 See 20 C.F.R. § 404.1502 (For claims filed before March 27, 2017, acceptable 14 15 16 medical sources are licensed physicians, licensed or certified psychologists, licensed 17 optometrists, licensed podiatrists, qualified speech-language pathologists, licensed 18 audiologists, licensed advanced practice registered nurses, and licensed physician 19 assistants within their scope of practice—all other medical providers are “other” 20 medical sources.). 21 37 Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 38 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 9 1 2 As discussed below, the Court finds Plaintiff fails to establish that the ALJ’s weighing of the medical-opinion evidence was erroneous. 3 1. 4 5 6 7 8 9 Dr. Marks, Dr. Lewis, and Dr. Johansen Dr. Marks evaluated Plaintiff in August 2015 and June 2017.39 In 2015, Dr. Marks diagnosed Plaintiff with unspecified anxiety disorder, moderate; social anxiety disorder; unspecified depressive disorder, moderate, unspecified personality disorder with paranoid and antisocial features, self-report of bipolar disorder, and self-report of PTSD.40 Based on these mental limitations, Dr. Marks opined that Plaintiff was: 10 11 Moderately limited in understanding, remembering, and persisting in tasks by following detailed instructions; performing activities within a 12 schedule, maintaining regular attendance, and being punctual within 13 customary tolerances without special supervision; learning new tasks; 14 performing routine tasks without special supervision; and making 15 simple work-related decisions; and 16 17 Markedly limited in adapting to changes in a routine work setting, asking simple questions or requesting assistance, communicating and 18 performing effectively in a work setting, maintaining appropriate 19 behavior in a work setting, completing a normal work day and work 20 21 39 AR 422-25, 415-19, & 437-43. 40 AR 424. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 10 1 week without interruptions from psychologically based symptoms, and 2 setting realistic goals and planning independently.41 3 Dr. Johansen reviewed Dr. Marks’ 2015 evaluation and concurred with her 4 findings.42 In 2017, Dr. Marks diagnosed Plaintiff with the same impairments as in 5 2015, except for excluding the diagnosis of social anxiety disorder.43 Based on these 6 mental limitations, Dr. Marks opined that Plaintiff was: 7 8 Moderately limited in performing activities within a schedule, maintaining regular attendance, and being punctual within 9 customary tolerances without special supervision; adapting to changes 10 in a routine work setting; making simple work-related decisions; and 11 maintaining appropriate behavior in a work setting; and 12 13 Markedly limited in being aware of normal hazards and taking appropriate precautions, asking simple questions or requesting 14 assistance, communicating and performing effectively in a work 15 setting, completing a normal work day and work week without 16 interruptions from psychologically based symptoms, and setting 17 realistic goals and planning interpedently.44 18 19 41 Id. 42 AR 445-46. 43 AR 418 & 440. 44 Id. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 11 1 Dr. Lewis reviewed Dr. Marks’ 2017 evaluation and concurred with her findings.45 2 3 The ALJ discounted Dr. Marks’, Dr. Lewis’, and Dr. Johansen’s opinions because they were unsupported by the record.46 4 The ALJ’s finding that Dr. Marks’, Dr. Lewis’, and Dr. Johansen’s opinions 5 were inconsistent with the longitudinal medical record is rational and supported by 6 substantial evidence. Whether a medical opinion is consistent with the longitudinal 7 record is a factor for the ALJ to consider.47 Here, the medical record reflects that 8 Plaintiff’s mental status examinations and observations had mostly been 9 unremarkable with his behaviors, attitude, appearance, speech, affect, thought, 10 and content all within normal limits.48 In addition, the records shows that Plaintiff 11 12 13 14 15 45 AR 428-30 & 444-47. 46 AR 26. 47 See Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007) (recognizing that 16 17 18 the ALJ is to consider the consistency of the medical opinion with the record as a 19 whole). 20 48 AR 473, 491, 509, 565 (speech, cognition, thought, and memory normal); AR 553- 21 57 & 560 (Plaintiff appeared calm, cooperative, and had a clear oriented stream of 22 thought); 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 1 appeared to improve with treatment and stable on medication.49 That the 2 longitudinal medical record was inconsistent with Dr. Marks’, Dr. Lewis’, and Dr. 3 Johansen’s opinions was a clear and convincing reason to discount the opinions. 4 In addition, the ALJ gave significant weight to state agency psychological 5 consultants Dr. Diane Fligstein and Dr. Jan Lewis,50 who opined Plaintiff had 6 moderate limitations in maintaining social functioning, concentration, persistence, 7 or pace, and his ability to work with coworkers and the general public was limited 8 to very superficial.51 The ALJ also crafted an RFC that incorporated limitations in 9 social functions by limiting Plaintiff interactions with the public, supervisors, and 10 coworkers.52 11 12 49 AR 394 (Patient outcome improved); AR 750 (Plaintiff’s depression/anxiety 13 appears “very stable on current meds”); AR 573, 691 & 694 (reported improvement 14 with depression and anxiety). 15 50 Plaintiff does not challenge the weight the ALJ gave to the opinions Dr. Fligstein 16 and Dr. Lewis. 17 51 AR 103, 106, & 120. 52 See AR 22 (Plaintiff is “required [to] work with no interaction with the public, 18 19 only occasional interaction with supervisors, only brief superficial interaction with 20 coworkers (and this would preclude any team or tandem tasks), and in an 21 environment where there would be very few people around during the performance 22 of the work.). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 1 2. 2 Nurse Practitioner England began treating Plaintiff in July 2017.53 In Nurse Practitioner England 3 November 2017, Mr. England diagnosed Plaintiff with hearing loss in his left ear, 4 balance problems, and chronic back pain.54 Mr. England opined Plaintiff had a 5 light level functional work capacity and would miss an average of three days of 6 work per month.55 7 The ALJ gave little weight to Mr. England’s opinion because the evidence 8 showed Plaintiff does not have any significant physical impairments, Plaintiff only 9 began seeing Mr. England in July 2017, and Plaintiff had appointments for further 10 evaluations. 11 12 13 14 53 A nurse practitioner is an “other” medical source.53 See 20 C.F.R. § 404.1513(d). 15 The ALJ is to use “other” medical source opinions in determining the “severity of 16 [the individual's] impairment(s) and how it affects [the individual's] ability to 17 work.” SSR 06-03p, 2006 WL 2329939, at *2; 20 C.F.R. § 416.913(a(3). In order to 18 reject the competent testimony of “other” medical sources, the ALJ must give 19 specific “reasons germane to each witness for doing so.” Molina, 674 F.3d at 1111 20 (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). 21 54 AR 518-19. 55 AR 519. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 1 First, inconsistency with the medical record is a germane reason to discount 2 an “other source” medical opinion.56 The ALJ highlighted the hearing testing 3 Plaintiff underwent in December 2017, which indicated Plaintiff had moderate 4 high frequency sensorineural hearing loss bilaterally, and that Plaintiff was 5 scheduled to return for a comprehensive vestibular evaluation. The vestibular 6 evaluation revealed no evidence of peripheral vestibular impairment; abnormal 7 tracking (leftward) and saccades (reduced gain) with imbalance is suggestive of 8 central nervous system involvement, suggesting a neurology consult may be 9 beneficial; and recommended Plaintiff return to his primary care physician (Mr. 10 England) for further recommendations.57 Plaintiff followed up with Mr. England 11 who assessed that Plaintiff’s imbalance had improved from the onset and planned 12 on referring him to neurology as recommended by the audiologist.58 That the 13 longitudinal medical record was inconsistent with Mr. England’s opinion was a 14 germane reason to discount the opinion. 15 16 17 56 See Lingenfelter, 504 F.3d at 1042 (recognizing that a medical opinion is 18 evaluated as to the amount of relevant evidence that supports the opinion, the 19 quality of the explanation provided in the opinion, and the consistency of the 20 medical opinion with the record as a whole). 21 57 AR 764. 58 AR 766. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 1 Second, the number of visits a claimant had with a particular provider is a 2 relevant factor in assigning weight to an opinion.59 By Mr. England’s November 20, 3 2017 opinion, he had been seeing Plaintiff for a few months concerning hearing loss 4 and balance problems, with the first being on July 17, 2017.60 Since treatment, at 5 time of opinion was limited to a short period of time, the reason meets the germane 6 standard.61 7 Lastly, the ALJ discounted Mr. England’s opinion because Plaintiff had an 8 appointment with an audiologist for further evaluation in December 2017.62 An 9 assessment being premature is a germane reason to discount Mr. England’s 10 opinion. 11 12 The ALJ’s decision to discount Mr. England’s opinion is supported by germane reasons and substantial evidence. 13 14 15 16 17 59 20 C.F.R. § 416.927(c). 60 AR 518. 61 See 20 C.F.R. 404.1527(f)(1) (the length of the treatment relationship and the 18 19 20 frequency of examination are factors to consider when weighing the opinion of a non21 acceptable medical source.) 22 62 AR 518. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 1 3. 2 On February 9, 2005, Ms. Davis performed a psychological evaluation of Registered Nurse Deborah Davis 3 Plaintiff.63 Ms. Davis diagnosed Plaintiff with depressive disorder, polysubstance 4 abuse, anxiety disorder, and social phobia.64 Based on these mental limitations, 5 Ms. Davis opined that Plaintiff was: 6 7 simple instructions; learning new tasks; exercising judgment and 8 making decisions; and controlling physical or motor movements and 9 maintaining appropriate behavior; and 10 11 relating appropriately to co-workers and supervisors; interacting 13 appropriately in public contacts; and responding appropriately to and 14 tolerating the pressure and expectations of a normal work setting. 15 17 Markedly limited in understanding, remembering, and following complex instructions; exercising judgment and making decision; 12 16 Moderately limited in understanding, remembering, and following The ALJ discounted Ms. Davis’ opinion because Plaintiff’s records from the Department of Corrections (DOC) show Plaintiff was able to interact with other inmates and hold two jobs while incarcerated.65 Inconsistency with the medical 18 19 63 AR 396-99; see 20 C.F.R. § 416.927 (2016) (a registered nurse is an “other” 20 medical source). 21 64 AR 397. 65 AR 27. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 1 evidence of record is a germane reason to discount an “other source” medical 2 opinion.66 The DOC behavioral health records show Plaintiff experienced 3 depression and anxiety, but showed improvement with nice weather and when he 4 had frequent contact with mental health providers.67 The records also show that 5 Plaintiff worked in the inmate kitchen and the therapeutic community, and if 6 taking his medications as prescribed, his mood and anxiety were manageable 7 enough to work in these settings.68 In light of this medial record, that Ms. Davis’ 8 more-limiting opinion was inconsistent with the other medical evidence was a 9 germane reason to discount Ms. Davis’ opinion. 10 Plaintiff fails to establish that the ALJ erred when weighing Ms. Davis’ 11 opinion. 12 B. Step Two (Severe Impairment): Plaintiff fails to establish error. 13 Plaintiff contends the ALJ erred at step two by failing to identify his 14 physical impairments as a severe impairment, specifically hepatitis C, imbalance 15 16 17 66 See Lingenfelter, 504 F.3d at 1042 (recognizing that a medical opinion is evaluated 18 as to the amount of relevant evidence that supports the opinion, the quality of the 19 explanation provided in the opinion, and the consistency of the medical opinion with 20 the record as a whole). 21 67 AR 297-98. 68 AR 299. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 1 problems, falls, bilateral hearing loss, and abnormal tracking and “saccades 2 suggestive of central nervous system involvement.”69 3 At step two of the sequential process, the ALJ must determine whether the 4 claimant suffers from a “severe” impairment, i.e., one that significantly limits his 5 physical or mental ability to do basic work activities.70 To show a severe 6 impairment, the claimant must first prove the existence of a physical or mental 7 impairment by providing medical evidence consisting of signs, symptoms, and 8 laboratory findings.71 The claimant’s own statement of symptoms alone will not 9 suffice.72 10 A medically determinable impairment is not severe if the “medical evidence 11 establishes only a slight abnormality or a combination of slight abnormalities 12 which would have no more than a minimal effect on an individual’s ability to 13 work.”73 Similarly, an impairment is not sever if it does not significantly limit a 14 claimant’s physical or mental ability to do basic work activities, such as walking, 15 standing, sitting, lifting, reaching, carrying, handling, responding appropriately to 16 17 69 ECF No. 13 at 15. 70 20 C.F.R. § 416.920(c). 71 Id. § 416.921 (recognizing the claimant’s statement of symptoms alone will not 18 19 20 suffice). 21 72 Id. 73 SSR 85-28 at *3. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 1 supervision and usual work situations, and dealing with changes in a routine work 2 setting.74 3 Step two is “a de minimus screening device [used] to dispose of groundless 4 claims.”75 “Thus, applying our normal standard of review to the requirements of 5 step two, [the Court] must determine whether the ALJ had substantial evidence to 6 find that the medical evidence clearly establishes that [Plaintiff] did not have a 7 medically severe impairment or combination of impairments.”76 8 At step two, the ALJ concluded that Plaintiff had the severe impairments of 9 depressive disorder and anxiety disorder.77 After detailing the medical evidence 10 pertaining to Plaintiff’s treatment for a knee injury, back pain, hepatitis C (which 11 has been in remission), and hearing with loss of balance issues, the ALJ found 12 Plaintiff’s complaints and treatments had been limited and that none of these 13 conditions, individually or collectively, caused Plaintiff more than minimal or 14 temporary limitations in his functioning.78 Plaintiff argues the “medical records 15 16 17 18 74 Id. § 416.922. 75 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 76 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 77 AR 19. 78 AR 19-20. 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20 1 and opinions are more than enough to meet the de minimus step two screening,” 2 but provides no explanation as to how the cited evidence is severe.79 3 Here, the ALJ’s finding that Plaintiff’s knee injury, back pain, hepatitis C, 4 and hearing with loss of balance issues were not a severe impairment is a rational 5 interpretation of the record.80 The ALJ considered that, while Plaintiff reported 6 knee pain and intermittent swelling if he walked or rode his bike too much, Dr. 7 Richard Jacobs indicated that Plaintiff’s knee pain was “due to dysfunction of the 8 normal knee mechanism stemming from his injury and would benefit from physical 9 therapy.”81 The ALJ also considered that Plaintiff had a history of knee pain and 10 hepatitis C, for which he required no treatment.82 Finally, the ALJ considered the 11 hearing testing Plaintiff underwent in December 2017, which indicated moderate 12 high frequency sensorineural hearing loss bilaterally, and that while there was 13 indication of imbalance, there was no evidence of peripheral vestibular 14 impairment.83 The ALJ noted that Plaintiff’s complaints of hearing loss and 15 imbalance issues had yet to be associated with any specific diagnosis and, 16 17 18 79 ECF No. 13 at 15. 80 See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 81 AR 20 (citing AR 351-52). 82 Id. (citing AR 323-42). 83 Id. (citing AR 763). 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 21 1 therefore, Plaintiff’s complaints and treatment had been limited. Moreover, as 2 previously explained, the ALJ properly discounted Mr. England’s opinion. 3 Furthermore, any error at step two is harmless because the ALJ resolved 4 step two in Plaintiff’s favor by finding severe impairments and continued the 5 sequential analysis through step five. Also, the ALJ considered Plaintiff’s non- 6 severe issues when formulating the RFC.84 7 C. Plaintiff’s Symptom Reports: Plaintiff fails to establish 8 consequential error. 9 Plaintiff argues the ALJ failed to provide valid reasons for rejecting his 10 symptom reports. When examining a claimant’s symptom reports, the ALJ must 11 make a two-step inquiry. “First, the ALJ must determine whether there is objective 12 medical evidence of an underlying impairment which could reasonably be expected 13 to produce the pain or other symptoms alleged.”85 Second, “[i]f the claimant meets 14 15 84 Id. (“While the undersigned does not find these conditions to be ‘severe’ as this 16 term is used for Social Security disability evaluation purposes (i.e., resulting in 17 more than minimal or temporary limitations), a medium level residual functional 18 capacity would be considered reasonable. The undersigned has also included 19 limitations for climbing ladders, ropes, or scaffolds and exposure to the use of 20 moving or dangerous machinery and unprotected heights.”); see Burch, 400 F.3d at 21 679. 22 85 Molina, 674 F.3d at 1112. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 22 1 the first test and there is no evidence of malingering, the ALJ can only reject the 2 claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific, 3 clear and convincing reasons’ for the rejection.”86 Here, the ALJ found Plaintiff’s 4 statements concerning the intensity, persistence, and limiting effects of his 5 symptoms were inconsistent with the objective medical evidence and other evidence 6 in the record.87 7 As to the ALJ’s finding that Plaintiff’s symptom reports were inconsistent 8 with the objective medical evidence, symptom reports cannot be solely discounted 9 on the grounds that they were not fully corroborated by the objective medical 10 evidence, which entails signs, laboratory findings, or both.88 However, objective 11 12 13 14 86 15 F.3d at 1036). 16 87 AR 22. 17 88 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); 20 C.F.R. § 18 404.1502(f). “Signs” is defined as: 19 20 21 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 one or more anatomical, physiological, or psychological abnormalities that can be observed, apart from [the claimant’s] statements (symptoms). Signs must be shown by medically clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception, and must also be shown by observable facts that can be medically described and evaluated. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 23 1 medical evidence is a relevant factor in considering the severity of the reported 2 symptoms. 89 The ALJ cited several specific reasons why Plaintiff’s reported 3 disabling symptoms conflicted with the objective medical evidence, including 4 records from the Department of Corrections reporting depression and anxiety with 5 components of generalized anxiety, social anxiety, and bipolar disorder (well 6 managed with medications), which indicated Plaintiff functioned well, could 7 advocate for himself, attend all programming, manage his mental health without 8 much interference from others, and was infraction free for a year and half;90 9 unremarkable mental status examinations and observations;91 and Plaintiff 10 actively participated in his medication management and treatment.92 Based on the 11 medical record, the ALJ’s finding that Plaintiff’s reported severe symptoms were 12 13 14 Id. § 404.1502(g). Evidence obtained from the “application of a medically acceptable 15 clinical diagnostic technique, such as evidence of reduced joint motion, muscle 16 spasm, sensory deficits, or motor disruption” is considered objective medical 17 evidence. 3 Soc. Sec. Law & Prac. § 36:26, Consideration of objective medical 18 evidence (2019). 19 89 Id. 90 AR 297-99. 91 AR 305, 307, 347, 578, 552 & 565. 92 AR 23-24 & 560. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 24 1 inconsistent with the medical evidence is rational and supported by substantial 2 evidence. 3 In addition, the ALJ’s finding that Plaintiff's conditions improved with 4 treatment is a relevant consideration for the ALJ when assessing Plaintiff’s 5 reported symptoms and, on this record, supported by substantial evidence.93 6 The ALJ also discounted Plaintiff’s symptom reports because they were 7 inconsistent with his daily activities.94 If a claimant can spend a substantial part of 8 the day engaged in pursuits involving the performance of exertional or non- 9 exertional functions, the ALJ may find these activities inconsistent with the 10 reported disabling symptoms.95 The ALJ highlighted that Plaintiff found a job to 11 “keep busy,” worked daily around his apartment complex, and reported enjoying 12 13 14 93 Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599–600 (9th Cir. 1999) 15 (considering evidence of improvement); See, e.g., AR 750 (Plaintiff’s 16 depression/anxiety appears “very stable on current meds”); AR 553-57 & 560 17 (Plaintiff appeared calm, cooperative, and had a clear oriented stream of thought 18 after a week of in-house treatment where he was able to meet with practitioners, 19 assess his medication, and attend groups, and participate in treatment.); AR 573, 20 691 & 694 (reported improvement with depression and anxiety). 21 94 AR 22-24. 95 Molina, 674 F.3d at 1113. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 25 1 walking and riding his bike.96 In order for Plaintiff’s cited activities to be deemed 2 “high-functioning activities of daily living” constituting a clear and convincing 3 reason to discount Plaintiff’s symptoms, the ALJ needed to have more 4 meaningfully articulated this finding. These cited activities, which may be 5 achieved in relatively short periods of time and with multiple breaks and limited 6 verbal instructions, do not “contradict claims of a totally debilitating 7 impairment.”97 8 Because the ALJ articulated two other supported grounds for discounting 9 Plaintiff’s reported symptoms — inconsistent with the objective medical evidence 10 and improvement with treatment — the ALJ’s decision to discount Plaintiff’s 11 reported symptoms is upheld on this record. 12 D. 13 Lay Witness: Plaintiff fails to establish error. The ALJ gave some weight to Plaintiff’s former supervisor’s statements 14 because her reports of Plaintiff’s limitations when interacting with others were 15 consistent with Plaintiff’s reported symptomology, but her statements related to 16 Plaintiff’s other symptoms (specifically fatigue) were not significant or relevant as 17 they were temporary.98 “Testimony by a lay witness provides an important source 18 19 20 96 AR 24 (citing AR 630, 677, 680, & 682). 97 Molina, 674 F.3d at 1112-13. 98 AR 24-25. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 26 1 of information about a claimant’s impairments, and an ALJ can reject it only by 2 giving specific reasons germane to each witness.”99 3 Plaintiff’s former supervisor testified that Plaintiff would get angry quickly, 4 push his way of doing things onto others, had a bit of OCD about the way things 5 work, and would get angry and frighten his coworkers.100 The former supervisor 6 also testified that she tried to work with Plaintiff on these issues by sending him 7 home early and supervising him working, but ultimately had to let him go because 8 minimum wage increased and the place of employment had to hire people that did 9 not need as much supervision.101 The former supervisor confirmed that Plaintiff 10 was able to perform the physical aspects of his job, but had difficulty interacting 11 with others.102 12 The ALJ’s decision to discount part of Plaintiff’s former supervisor’s 13 statement because it was inconsistent with the objective medical evidence is a 14 germane reason for rejecting lay witness testimony.103 The ALJ included the 15 former supervisor’s reported limitations of Plaintiff interacting with others in the 16 RFC and, as to her statements regarding Plaintiff’s fatigue, the record shows 17 18 99 Regennitter v. Comm’r, 166 F.3d 1294, 1298 (9th Cir. 1999). 19 100 AR 59-60. 101 AR 61 & 63. 102 AR 61-63. 103 See Molina, 674 F.3d at 1111-12. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 27 1 Plaintiff continually showed no symptoms of fatigue.104 This was a germane reason 2 to discount the former supervisor’s statements regarding Plaintiff’s difficulties, 3 other than interacting with others. 4 5 Plaintiff fails to establish error by the ALJ in this regard. E. 6 Step Five: Plaintiff fails to establish error. Plaintiff argues the ALJ erred at step five because the vocational expert’s 7 testimony was based on an incomplete hypothetical that failed to include the follow 8 limitations: “off-task and unproductive more than 10 percent of the time; the need 9 for close supervision on a persistent, ongoing basis; confrontations with or difficulty 10 receiving instruction from supervisors on an ongoing basis; and causing coworkers 11 to be off-task more than 10 percent of the time.”105 Plaintiff’s argument is based 12 entirely on his initial argument that the ALJ erred in considering the medical- 13 opinion evidence, Plaintiff’s symptom reports, and lay witness testimony. However, 14 this argument merely restates Plaintiff’s earlier allegations of error, which are not 15 supported by the record. Accordingly, the ALJ’s hypothetical properly accounted for 16 the limitations supported by the record.106 17 18 19 104 See e.g., AR 488-89, 92, 495, 765 (symptoms negative for fatigue). 105 ECF No. 13 at 20. 106 See Magallanes, 881 F.2d at 756–57 (holding it is proper for the ALJ to limit a 20 21 22 hypothetical to those restrictions supported by substantial evidence in the record). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 28 1 V. Conclusion 2 Accordingly, IT IS HEREBY ORDERED: 3 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 4 2. The Commissioner’s Motion for Summary Judgment, ECF No. 17, is 5 GRANTED. 6 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 7 4. The case shall be CLOSED. 8 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order and 9 10 provide copies to all counsel. DATED this 25th day of June 2020. 11 12 13 s/Edward F. Shea _____________ EDWARD F. SHEA Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 29
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