Cherry v. Kijakazi, No. 4:2022cv05001 - Document 16 (E.D. Wash. 2023)

Court Description: ORDER DENYING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is closed. Signed by Senior Judge Lonny R. Suko. (AY, Case Administrator)

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Cherry v. Kijakazi Doc. 16 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4308 Page 1 of 26 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Oct 04, 2023 5 SEAN F. MCAVOY, CLERK 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 JENNIFER C., 1 10 NO: 4:22-CV-05001-LRS 11 Plaintiff, v. 12 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY, 13 14 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 15 16 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 17 ECF Nos. 13, 14. This matter was submitted for consideration without oral 18 argument. Plaintiff is represented by attorney Chad Hatfield. Defendant is 19 20 1 21 last initial in order to protect privacy. See LCivR 5.2(c). The court identifies a plaintiff in a social security case only by the first name and ORDER - 1 Dockets.Justia.com Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4309 Page 2 of 26 1 represented by Special Assistant United States Attorney Katherine B. Watson. The 2 Court, having reviewed the administrative record and the parties’ briefing, is fully 3 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 13, is 4 denied and Defendant’s Motion, ECF No. 14, is granted. 5 JURISDICTION 6 Plaintiff Jennifer C. (Plaintiff), filed for supplemental security income (SSI) 7 on September 13, 2018, and alleged an onset date of January 1, 2018. Tr. 220-34. 8 Benefits were denied initially, Tr. 131-39, and upon reconsideration, Tr. 143-49. 9 Plaintiff appeared at a hearing before an administrative law judge (ALJ) on October 10 8, 2019. Tr. 37-77. On October 30, 2019, the ALJ issued an unfavorable decision, 11 Tr. 13-32, and on January 7, 2020, the Appeals Council denied review. Tr. 1-6. 12 Plaintiff appealed to the United States District Court for the Eastern District of 13 Washington, and on February 23, 2021, the Honorable Edward F. Shea issued an 14 order remanding the matter for further proceedings. 15 On October 14, 2021, Plaintiff appeared at a second hearing, Tr. 2078-2103, 16 and on October 27, 2021, the ALJ issued another unfavorable decision. Tr. 2053-77. 17 The matter is now before this Court pursuant to 42 U.S.C. § 1383(c)(3). 18 19 BACKGROUND The facts of the case are set forth in the administrative hearing and transcripts, 20 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 21 therefore only summarized here. ORDER - 2 Case 4:22-cv-05001-LRS 1 ECF No. 16 filed 10/04/23 PageID.4310 Page 3 of 26 Plaintiff was 32 years old at the time the application was filed. Tr. 220. She 2 graduated from high school. Tr. 68. She has work experience as a caregiver, fast 3 food worker, cashier, and supervising adolescents in a group home, Tr. 50, 69. 4 At the first hearing, Plaintiff testified she gets urinary tract infections (UTIs) 5 four to six times a year. Tr. 52. Sometimes UTIs lead to kidney infections. Tr. 52. 6 She has had problems with migraines about twice a month. Tr. 52-53. She has to lie 7 in a dark room for a couple of days. Tr. 53. She has gastroparesis flares about four 8 times a month with symptoms of nausea, vomiting, and stomach pain. Tr. 53. The 9 flares last several days. Tr. 55. She has pain from endometriosis. Tr. 67. Plaintiff 10 testified that when she gets depressed and feeling suicidal, she drinks alcohol to 11 numb her feelings. Tr. 63. Sometimes she binge drinks for up to three days. Tr. 63. 12 At the second hearing, Plaintiff testified that she was having migraines at least 13 once a week requiring her to lie down in the dark for at least eight hours. Tr. 2085. 14 Sometimes a migraine will last two or three days which requires her to go to an 15 emergency room for treatment. Tr. 2086. She has chronic pancreatitis which drains 16 her energy and she cannot do much of anything. Tr. 2086. She cannot work and she 17 cannot do much around the house. Tr. 2087. Some days are worse than others. Tr. 18 2087. She gets flares several times a month. Tr. 2087. The last time she had a 19 portion of a shot of alcohol she got very sick due to pancreatitis. Tr. 2089. She has 20 been getting UTIs several times a month and most of the time she would have to be 21 ORDER - 3 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4311 Page 4 of 26 1 hospitalized due to drug allergies. Tr. 2092. She has depression and fatigue. Tr 2 2093-94. 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 7 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 8 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 9 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 10 citation omitted). Stated differently, substantial evidence equates to “more than a 11 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 12 In determining whether the standard has been satisfied, a reviewing court must 13 consider the entire record as a whole rather than searching for supporting evidence in 14 isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 17 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 21 decision on account of an error that is harmless.” Id. An error is harmless “where it ORDER - 4 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4312 Page 5 of 26 1 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 2 (quotation and citation omitted). The party appealing the ALJ’s decision generally 3 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 4 396, 409-10 (2009). 5 FIVE-STEP EVALUATION PROCESS 6 A claimant must satisfy two conditions to be considered “disabled” within the 7 meaning of the Social Security Act. First, the claimant must be “unable to engage in 8 any substantial gainful activity by reason of any medically determinable physical or 9 mental impairment which can be expected to result in death or which has lasted or 10 can be expected to last for a continuous period of not less than twelve months.” 42 11 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be “of such 12 severity that he is not only unable to do his previous work[,] but cannot, considering 13 his age, education, and work experience, engage in any other kind of substantial 14 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to determine 16 whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). 17 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. § 18 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 19 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b). 20 21 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the ORDER - 5 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4313 Page 6 of 26 1 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 2 “any impairment or combination of impairments which significantly limits [his or 3 her] physical or mental ability to do basic work activities,” the analysis proceeds to 4 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 5 this severity threshold, however, the Commissioner must find that the claimant is not 6 disabled. 20 C.F.R. § 416.920(c). 7 At step three, the Commissioner compares the claimant’s impairment to 8 severe impairments recognized by the Commissioner to be so severe as to preclude a 9 person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). 10 If the impairment is as severe or more severe than one of the enumerated 11 impairments, the Commissioner must find the claimant disabled and award benefits. 12 20 C.F.R. § 416.920(d). 13 If the severity of the claimant’s impairment does not meet or exceed the 14 severity of the enumerated impairments, the Commissioner must pause to assess the 15 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 16 defined generally as the claimant’s ability to perform physical and mental work 17 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 18 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 19 At step four, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing work that he or she has performed in the 21 past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable ORDER - 6 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4314 Page 7 of 26 1 of performing past relevant work, the Commissioner must find that the claimant is 2 not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing 3 such work, the analysis proceeds to step five. 4 At step five, the Commissioner should conclude whether, in view of the 5 claimant’s RFC, the claimant is capable of performing other work in the national 6 economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the 7 Commissioner must also consider vocational factors such as the claimant’s age, 8 education and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant 9 is capable of adjusting to other work, the Commissioner must find that the claimant 10 is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 11 adjusting to other work, analysis concludes with a finding that the claimant is 12 disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 13 The claimant bears the burden of proof at steps one through four above. 14 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 15 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 16 capable of performing other work; and (2) such work “exists in significant numbers 17 in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 18 386, 389 (9th Cir. 2012). 19 However, a finding of “disabled” does not automatically qualify a claimant for 20 disability benefits. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001.) 21 When there is medical evidence of drug or alcohol addiction, the ALJ must ORDER - 7 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4315 Page 8 of 26 1 determine whether the drug or alcohol addiction is a material factor contributing to 2 the disability. 20 C.F.R. § 416.935(a). In order to determine whether drug or 3 alcohol addiction is a material factor contributing to the disability, the ALJ must 4 evaluate which of the current physical and mental limitations would remain if the 5 claimant stopped using drugs or alcohol, then determine whether any or all of the 6 remaining limitations would be disabling. 20 C.F.R. § 416.935(b)(2). If the 7 remaining limitations would not be disabling, drug or alcohol addiction is a 8 contributing factor material to the determination of disability. Id. If the remaining 9 limitations would be disabling, the claimant is disabled independent of the drug or 10 alcohol addiction and the addiction is not a contributing factor material to the 11 disability determination. Id. 12 13 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 14 activity since January 1, 2018, the application date. Tr. 2058. At step two, the ALJ 15 found that Plaintiff has the following severe impairments: chronic urinary tract 16 infections, endometriosis, episodic migraines, pancreatitis, depressive disorder with 17 anxiety, alcohol abuse disorder, and alcohol-induced mood disorder. Tr. 2059. At 18 step three, the ALJ found that, including Plaintiff’s substance use, Plaintiff has an 19 impairment or combination of impairments that meets or medically equals the 20 severity of a listed impairment. Tr. 2059. 21 ORDER - 8 Case 4:22-cv-05001-LRS 1 ECF No. 16 filed 10/04/23 PageID.4316 Page 9 of 26 Next, the ALJ found that if Plaintiff stopped the substance use, Plaintiff would 2 still have a severe impairment or combination of impairments. Tr. 2061. At step 3 three, the ALJ found that if Plaintiff stopped the substance use, she would not have 4 an impairment or combination of impairments that meets or medically equals the 5 severity of a listed impairment. Tr. 2061. 6 The ALJ then found that if Plaintiff stopped the substance use, Plaintiff has 7 the residual functional capacity to perform medium work from the alleged onset date 8 through December 31, 2019, with the following additional limitations: 9 10 11 12 she could understand, remember, and carry out simple, routine tasks; she could maintain concentration, persistence, and pace for two-hour intervals between regularly scheduled breaks; she could tolerate occasional, routine changes; she could make simple, routine judgments; and she should not be required to work at a fast or production-rate of pace. From January 1, 2020 onward, the claimant has the same non-exertional limitations but has the residual functional capacity to perform light work as defined in 20 CFR 416.967. 13 Tr. 2064. 14 At step four, the ALJ found that Plaintiff is unable to perform any past 15 relevant work. Tr. 2068. At step five, after considering the testimony of a 16 vocational expert and Plaintiff’s age, education, work experience, and residual 17 functional capacity, the ALJ found that if Plaintiff stopped the substance use, there 18 have been jobs that exist in significant numbers in the national economy that 19 Plaintiff could have performed for the period from January 1, 2018 to December 31, 20 2019, such as industrial cleaner, store laborer, and hand packager. Tr. 2069. 21 Similarly, for the period from January 1, 2020 onward, the ALJ found that if ORDER - 9 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4317 Page 10 of 26 1 Plaintiff stopped the substance use, there are jobs that Plaintiff can perform such as 2 warehouse checker, garment sorter, and housekeeping cleaner. Tr. 2069. 3 Thus, the ALJ found that substance use disorder is a contributing factor 4 material to the determination of disability because Plaintiff would not be disabled if 5 she stopped the substance use. Tr. 2070. Because the substance use disorder is a 6 contributing factor material to the determination of disability, the ALJ found that 7 Plaintiff has not been disabled within the meaning of the Social Security Act at any 8 time from the alleged onset date through the date of the decision. Tr. 2070. 9 10 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 supplemental security income under Title XVI of the Social Security Act. ECF No. 12 13. Plaintiff raises the following issues for review: 13 1. Whether the ALJ properly considered migraines at step three; 14 2. Whether the ALJ properly evaluated Plaintiff’s symptom testimony; 15 3. Whether the ALJ properly considered Plaintiff’s functional limitations 16 17 18 without the effects of alcohol use; and 4. Whether the ALJ made a legally sufficient step five finding. ECF No. 13 at 8. 19 20 21 ORDER - 10 Case 4:22-cv-05001-LRS ECF No. 16 1 2 3 filed 10/04/23 PageID.4318 Page 11 of 26 DISCUSSION A. Listing 11.02 - Migraines At step three of the evaluation process, the ALJ must determine whether a 4 claimant has an impairment or combination of impairments that meets or equals an 5 impairment contained in the Listings. See 20 C.F.R. § 416.920(d). The Listings 6 describe “each of the major body systems impairments [considered] to be severe 7 enough to prevent an individual from doing any gainful activity, regardless of his or 8 her age, education, or work experience.” 20 C.F.R. § 416.925. “Listed impairments 9 are purposefully set at a high level of severity because ‘the listings were designed to 10 operate as a presumption of disability that makes further inquiry unnecessary.’” 11 Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v. Zebley, 12 493 U.S. 521, 532 (1990)). “Listed impairments set such strict standards because 13 they automatically end the five-step inquiry, before residual functional capacity is 14 even considered.” Kennedy, 738 F.3d at 1176. If a claimant meets the listed criteria 15 for disability, he will be found to be disabled. 20 C.F.R. § 416.920(a)(4)(iii). 16 An impairment “meets” a listing if it meets all of the specified medical 17 criteria. Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1098. An impairment that 18 manifests only some of the criteria, no matter how severely, does not qualify. 19 Sullivan, 493 U.S. at 530; Tackett, 180 F.3d at 1099. 20 An unlisted impairment or combination of impairments “equals” a listed 21 impairment if medical findings equal in severity to all of the criteria for the one most ORDER - 11 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4319 Page 12 of 26 1 similar listed impairment are present. Sullivan, 493 U.S. at 531; see 20 C.F.R. § 2 416.926(b). “Medical equivalence must be based on medical findings,” and “[a] 3 generalized assertion of functional problems is not enough to establish disability at 4 step three.” Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). An unlisted 5 impairment or combination of impairments is equivalent to a listed impairment if 6 medical findings equal in severity to all of the criteria for the one most similar listed 7 impairment are present. Sullivan, 493 U.S. at 531; see 20 C.F.R. § 416.926(b). The 8 claimant bears the burden of establishing an impairment (or combination of 9 impairments) meets or equals the criteria of a listed impairment. Burch v. Barnhart, 10 400 F.3d 676, 683 (9th Cir. 2005). 11 There is no medical listing for migraines or headaches. However, Listing 12 11.02 is the appropriate listing for an equivalence analysis for migraines. Social 13 Security Ruling (SSR) 19-4p, 2019 WL 4169635 (August 26, 2019). Plaintiff 14 alleges that the ALJ erred with respect to evaluating Listing 11.02B. ECF No. 13 at 15 17. Listing 11.02B requires documentation of a detailed description of a typical 16 seizure (or equivalent for migraines), occurring at least once a week for at least three 17 consecutive months despite adherence to prescribed treatment. 20 C.F.R. Pt. 404, 18 Subpt. P, App. 1 § 11.02B. 19 Social Security Ruling 19-4p explains that to evaluate whether a primary 20 headache disorder is equal in severity and duration to the criteria in 11.02B, the 21 following is considered: a detailed description from an acceptable medical source of ORDER - 12 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4320 Page 13 of 26 1 a typical headache event, including all associated phenomena (for example, 2 premonitory symptoms, aura, duration, intensity, and accompanying symptoms); the 3 frequency of headache events; adherence to prescribed treatment; side effects of 4 treatment (for example, many medications used for treating a primary headache 5 disorder can produce drowsiness, confusion, or inattention); and limitations in 6 functioning that may be associated with the primary headache disorder or effects of 7 its treatment, such as interference with activity during the day (for example, the need 8 for a darkened and quiet room, having to lie down without moving, a sleep 9 disturbance that affects daytime activities, or other related needs and limitations). 10 The ALJ considered Plaintiff’s headache disorder at step three. Tr. 2061-62. 11 First, the ALJ noted that no acceptable medical source opined that Plaintiff’s 12 headaches medically equaled listing 11.02. Tr. 2061. Plaintiff argues the ALJ erred 13 by “asserting that the DDS physicians found that the claimant’s headaches did not 14 equal Listing 11.02B where they made no such analysis.” ECF No. 13 at 17. 15 However, Norman Staley, M.D., and J.D. Fitterer, M.D., who reviewed the record, 16 both considered listing 11.02 and neither found that Plaintiff’s headache disorder 17 equaled a listing. Tr. 99, 117, 2061. 18 Next, the ALJ considered the evaluation of a headache disorder under SSR 19 19-4p. Tr. 2061-62. Plaintiff argues the ALJ misstated the law regarding Listing 20 11.02B, asserting it “only” requires migraine headaches occurring once a week for 21 three consecutive months. ECF No. 13 at 16-17. However, Plaintiff overlooked ORDER - 13 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4321 Page 14 of 26 1 details of Listing 11.02B, which also requires “documentation of a detailed 2 description of a typical seizure” and “adherence to prescribed treatment.” 20 C.F.R. 3 Pt. 404, Subpt. P, App. 1 § 11.02B. Plaintiff also overlooks SSR 19-4p which was 4 referenced by the ALJ and explains how Listing 11.02B should be considered for 5 headache disorders. Tr. 2061-62. 6 Then, the ALJ discussed evidence of Plaintiff’s headache impairment in the 7 record. The ALJ noted that the record indicates that Plaintiff reported the frequency 8 and severity of her headaches had increased in early 2018. Tr. 2062 (citing Tr. 494). 9 In April 2018, she reported having headaches more than 50 percent of the days and 10 severe migraines a few times per month. Tr. 574. Ultimately, she received Botox 11 injections in September 2018 and thereafter reported minimal headaches with no 12 severe migraines. Tr. 1473. Her doctor recommended additional injections in 12 13 weeks, but the record does not indicate she returned for another injection or that she 14 sought treatment for migraines thereafter on more than an occasional basis. Tr. 2062 15 (citing Tr. 1475). The ALJ found the record indicates that Plaintiff occasionally 16 reported headaches when treated for other issues, but otherwise typically denied 17 having headaches. Tr. 2062 (citing Tr. 434, 464, 469, 485, 522, 1449, 1464, 1479, 18 1484, 1604, 1826, 1830, 1842, 1877, 1883, 1950, 1955, 1960, 1974, 2023). 19 The ALJ observed that Plaintiff reported severe migraines only from January 20 2018 to September 2018, which is less than the 12-month period required to 21 establish a severe impairment and a determination of disability. Tr. 2062. The ORDER - 14 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4322 Page 15 of 26 1 duration requirement provides that “[u]nless your impairment is expected to result in 2 death, it must have lasted or must be expected to last for a continuous period of at 3 least 12 months.” 20 C.F.R. § 416.909. Similarly, “[a]t the third step, we also 4 consider the medical severity of your impairment(s). If you have an impairment(s) 5 that meets or equals one of our listings in appendix 1 of this subpart and meets the 6 duration requirement, we will find that you are disabled.” 20 C.F.R. § 7 404.1520(a)(4)(iii) (emphasis added). Although the ALJ viewed the evidence in the 8 light most favorable to Plaintiff at step two and found episodic migraines to be a 9 severe impairment, the ALJ found that Plaintiff’s medical record does not support a 10 finding that her headaches medically equal a Listing for a period of 12 months or 11 more. Tr. 2062. Plaintiff argues the ALJ “misstates the law and regulations,” but 12 does not establish any error. ECF No. 13 at 17. 13 Finally, Plaintiff argues the ALJ did not comply with the previous order of 14 this Court regarding consideration of migraines at step two. ECF No. 13 at 16. The 15 previous District Court decision found the previous step three consideration of 16 migraines was inadequate because the ALJ said only that Listing 11.02 was 17 considered but did not discuss Plaintiff’s complaints or the objective medical 18 evidence. Tr. 2143-44. Here, the ALJ discussed Plaintiff’s complaints, the medical 19 record, and explained why Listing 11.02 was not equaled. The ALJ complied with 20 the order of the District Court and the step three finding is supported by substantial 21 evidence. ORDER - 15 Case 4:22-cv-05001-LRS 1 2 B. ECF No. 16 filed 10/04/23 PageID.4323 Page 16 of 26 Symptom Testimony An ALJ engages in a two-step analysis to determine whether a claimant’s 3 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 4 determine whether there is objective medical evidence of an underlying impairment 5 which could reasonably be expected to produce the pain or other symptoms alleged.” 6 Molina, 674 F.3d at 1112 (internal quotation marks omitted). Second, “[i]f the 7 claimant meets the first test and there is no evidence of malingering, the ALJ can 8 only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 9 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 10 11 763 F.3d 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). Second, “[i]f the claimant meets the first test and there is no evidence of 12 malingering, the ALJ can only reject the claimant’s testimony about the severity of 13 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 14 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 15 citations and quotations omitted). “General findings are insufficient; rather, the 16 ALJ must identify what testimony is not credible and what evidence undermines 17 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see also Thomas, 18 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with findings 19 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 20 discredit claimant’s testimony.”). “The clear and convincing [evidence] standard 21 is the most demanding required in Social Security cases.” Garrison, 759 F.3d at ORDER - 16 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4324 Page 17 of 26 1 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2 2002)). 3 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 4 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 5 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 6 daily living activities; (4) the claimant’s work record; and (5) testimony from 7 physicians or third parties concerning the nature, severity, and effect of the 8 claimant’s condition. Thomas, 278 F.3d at 958-59. 9 First, the ALJ found the objective medical evidence does not fully support the 10 level of limitation alleged. Tr. 2065-66. While subjective pain testimony may not 11 be rejected solely because it is not corroborated by objective medical findings, the 12 medical evidence is a relevant factor in determining the severity of a claimant’s pain 13 and its disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 14 Despite Plaintiff’s assertion that the ALJ “failed to evaluate the entire longitudinal 15 record – and makes little mention of the claimant’s frequent hospital visits,” ECF 16 No. 13 at 19, the ALJ discussed the medical record in detail. Tr. 2065-67. In fact, 17 the ALJ discussed in detail “numerous visits to area hospitals” around October 2019 18 for urinary tract infections, nausea and vomiting, abdominal pain, and pancreatitis 19 (Tr. 2065); treatment records for urinary tract infections and pancreatitis symptoms 20 in 2020 (Tr. 2066); and records from 2021 reflecting “regular visits to hospitals with 21 complaints of pancreatic symptoms” (Tr. 2067). The ALJ ultimately found that ORDER - 17 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4325 Page 18 of 26 1 “[a]fter considering the multiple hospital visits in 2020 and 2021 for the claimant’s 2 pain symptoms, the undersigned concludes that her exertional capacity would be 3 reduced from medium to light beginning in January 2020” (Tr. 2067). Plaintiff does 4 not identify any error in the ALJ’s discussion of the objective record, and the Court 5 concludes the finding is supported by substantial evidence. 6 Second, the ALJ found the medical opinions are inconsistent with the level of 7 limitation alleged. Tr. 2065-66. A medical opinion that the claimant can perform a 8 limited range of work may support the ALJ’s determination that Plaintiff’s claim of 9 disabling limitations is not reliable. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 10 1175 (9th Cir. 2008). The ALJ cited the February 2018 opinion of Marja Adair, 11 ARNP, who opined that Plaintiff was capable of medium exertion, but noted that 12 later records indicated a reduction in exertional functioning in 2020. Tr. 402-04, 13 2066. The ALJ cited the 2019 opinions of reviewing physicians Dr. Staley and Dr. 14 Fitterer, who assessed limitations consistent with medium work. Tr. 101-02, 118-19, 15 2066. The ALJ also noted the statement of David Davis-Boozer, M.D., who 16 completed paperwork in November 2020 “releasing her to work full time without 17 restrictions.” Tr. 2067, 3306. With regard to mental limitations, Jay Toews, Ed.D., 18 the medical expert at the first hearing, testified that Plaintiff had limitations 19 consistent with the ability to work if she stopped using alcohol. Tr. 49, 2067-68; see 20 Tr. 2060. Reviewing psychologists Shawn Horn, Psy.D., and Michael Regets, 21 Ph.D., found Plaintiff has similar limitations, Tr. 103-04, 120-21, but the ALJ found ORDER - 18 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4326 Page 19 of 26 1 Dr. Toews’ opinion more persuasive. Tr. 2068. The ALJ’s consideration of the 2 medical opinion evidence in evaluating Plaintiff’s symptom claims is supported by 3 substantial evidence. 4 Third, the ALJ found Plaintiff exhibited drug-seeking behavior. Tr. 2066. 5 Drug-seeking behavior can constitute a clear and convincing reason to discount a 6 claimant’s pain testimony. See Edlund, 253 F.3d at 1157 (holding that evidence of 7 drug-seeking behavior undermines a claimant’s credibility). Although Plaintiff 8 argues the ALJ’s findings are “vague and unsupported,” ECF No. 13 at 19, the ALJ 9 detailed findings suggestive of drug-seeking behavior. Tr. 2066. In May 2019, it 10 was noted that Plaintiff had four different providers prescribing controlled 11 substances since June 2018, and she had 16 emergency room visits in the past year, 12 yet her drug screen in January 2019 was negative. Tr. 2066 (citing Tr. 1828, 1832- 13 33, 4070). In July 2019, it was noted that Plaintiff was “not entirely forthcoming 14 with her history, with her pain medication use”; hospital records note a “flag of 15 concern” that Plaintiff requested Dilaudid specifically for pain; and in August 2019 16 concerns about drug-seeking behavior were noted along with the observation that 17 Plaintiff had seven ER visits in the previous month for similar complaints despite 18 normal findings on workup. Tr. 1972, 1979-80, 2016, 2066. In October 2019, 19 Plaintiff reported to the ER she had several episodes of bilious vomiting, but blood 20 work-up was essentially normal, apart from complaining of severe pain she appeared 21 comfortable, and nurses did not find her vomiting anything though she kept asking ORDER - 19 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4327 Page 20 of 26 1 for Phenergan and IV Benadryl. Tr. 2066, 3928. The ALJ’s conclusion that the 2 record indicates drug-seeking behavior is supported by substantial evidence and this 3 is a clear and convincing reason. 4 Fourth, the ALJ found Plaintiff’s ability to engage in substantial gainful 5 activity during the period of alleged disability suggests greater capacity than alleged. 6 Tr. 2066-67. The regulations provide that employment during any period of claimed 7 disability may be probative of a claimant’s ability to work. 20 C.F.R. § 416.971. 8 The ALJ noted that Plaintiff obtained a job in a department store in August 2020 and 9 had earnings constituting substantial gainful activity in the fourth quarter of 2020. 10 Tr. 2067 (citing Tr. 3467). Plaintiff testified that she stopped working because of 11 her medical conditions and argues that should not be held against her. ECF No. 13 12 at 19. An unsuccessful work attempt which fails due to a claimant’s limitations 13 should not typically be a factor in considering a claimant’s symptom complaints. 14 See Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007). However, the ALJ 15 noted that in November 2020, Dr. Davis-Boozer found Plaintiff “has no restrictions 16 for working as a cashier” and released her to full-time work without restrictions. Tr. 17 2067 (citing Tr. 3306). This inconsistency reasonably suggests that Plaintiff may 18 not be as limited as alleged. Furthermore, even if the ALJ should not have 19 considered Plaintiff’s attempt to work, any error would be harmless because the ALJ 20 cited other clear and convincing reasons supported by substantial evidence. See 21 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008); ORDER - 20 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4328 Page 21 of 26 1 Molina, 674 F.3d at 1115 (“[S]everal of our cases have held that an ALJ’s error was 2 harmless where the ALJ provided one or more invalid reasons for disbelieving a 3 claimant’s testimony, but also provided valid reasons that were supported by the 4 record.”). 5 Fifth, the ALJ found Plaintiff’s daily activities are inconsistent with her 6 allegations of disability. Tr. 2065-67. It is reasonable for an ALJ to consider a 7 claimant’s activities which undermine claims of totally disabling pain in evaluating 8 symptom claims. See Rollins, 261 F.3d at 857. The ALJ found Plaintiff’s ability to 9 babysit, pick up her children from school and help them with homework, make 10 dinner, clean the house, do laundry, wash dishes, vacuum, and dust are inconsistent 11 with the limitations alleged. Tr. 2067 (citing Tr. 286-87). Even if these activities 12 are not particularly compelling in terms of activity level, they could reasonably be 13 construed as inconsistent with Plaintiff’s allegations that she needed to lie down four 14 to five hours during the day or that she could not even get out of bed at times. Tr. 15 2065, 2067, 2085-87, 2095). Furthermore, other clear and convincing reasons 16 supported by substantial evidence were cited by the ALJ, so even if this reasoning is 17 less persuasive, there is no effect on the outcome. 18 19 20 21 ORDER - 21 Case 4:22-cv-05001-LRS 1 2 C. ECF No. 16 filed 10/04/23 PageID.4329 Page 22 of 26 Functioning Without Alcohol Use Plaintiff contends the ALJ erred in considering her functioning in the absence 3 of alcohol use. ECF No. 13 at 10. The claimant bears the burden at steps one 4 through four of the sequential analysis to show that substance abuse is not a 5 “contributing factor material to [her] disability.” Hardwick v. Astrue, 782 F. Supp 6 2d 1170, 1177 (E.D.Wa. 2011) (citing Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 7 2007)). To meet this burden, the claimant “must provide competent evidence of a 8 period of abstinence and medical source opinions relating to that period sufficient to 9 establish [her] alcoholism is not a contributing factor material to [her] alleged mental 10 impairments and disability.” Hardwick, 782 F.Supp. 2d at 1177 (citing Parra, 481 11 F.3d at 748-49). “Evidence that is inconclusive does not satisfy this burden.” 12 Schwanz v. Astrue, No. 10–CV–795, 2011 WL 4501943 at *11 (D.Or. Sept. 28, 13 2011) (citing Parra, 481 F.3d at 749–750). 14 Plaintiff asserts she had only three episodes of “binge drinking” and “quit 15 alcohol” in October 2019. ECF No. 13 at 10. However, the ALJ found that Plaintiff 16 had a significant period of alcohol abuse in 2018. Tr. 2060. She reported drinking a 17 fifth of vodka per day in August 2018. Tr. 1782, 2060. She entered inpatient 18 treatment in December 2018 and reported that she drank ten shots of alcohol per 19 day. Tr. 1661, 2060. A February 2020 treatment note indicates that Plaintiff had 20 “fairly heavy alcohol consumption” until onset of pancreatitis in October 2019, 21 having reported that she drank one half gallon of vodka per day for the two years ORDER - 22 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4330 Page 23 of 26 1 prior. Tr. 4116. In September 2020, Plaintiff reported that she had two shots of 2 alcohol to celebrate her new job, Tr. 3381; however, at the hearing Plaintiff testified 3 that she had only “a quarter of a shot” of alcohol after her pancreatitis diagnosis in 4 October 2019. Tr. 2088. She had drug screens which were positive for alcohol in 5 February, May, and June 2021. Tr. 2067 (citing Tr. 4126-27, 4182). 6 The ALJ found that Plaintiff’s testimony may not accurately depict her 7 alcohol use, but that the record reflects significant improvement in her mental health 8 when she decreased her consumption considerably. Tr. 2067. She reported 9 symptoms of only moderate depression and mild anxiety in October 2019, and the 10 record reflects little to no evidence of mental health complaints in 2020 or 2021. Tr. 11 2067. In May 2020, she reported her depression and anxiety were under control and 12 she no longer needed mental health medication. Tr. 3559, 2067. She restarted 13 mental health medication in July 2020 because she was experiencing panic attacks 14 after a breakup with an abusive partner. Tr. 3503. The ALJ noted few, if any, 15 records thereafter indicating complaints of depression or anxiety. Tr. 2067. The 16 ALJ’s finding that Plaintiff’s mental health improved after she reduced her alcohol 17 consumption is supported by substantial evidence. 18 The ALJ acknowledged Plaintiff’s diagnosis of pancreatitis in October 2019 19 supports at least some of her pain complaints. Tr. 2066. However, the ALJ ‘s 20 statement that “alcohol use is a primary instigator of pancreatitis” is not supported 21 by the record. Tr. 2066. Any error from the statement is harmless, however, ORDER - 23 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4331 Page 24 of 26 1 because the ALJ acknowledged ongoing complaints about pancreatitis symptoms 2 after a cholecystectomy in May 2020, continued intermittent bouts of pancreatitis, 3 and multiple hospital visits in 2020 and 2021 for Plaintiff’s pain symptoms. Tr. 4 2067. In fact, the ALJ found that Plaintiff’s exertional capacity would be reduced 5 due to pain symptoms beginning in January 2020. Tr. 2067. 6 Plaintiff asserts the ALJ “ignored the thousands of medical records, 7 emergency room visits, and extended hospitalized stays showing complications from 8 pancreatitis and UTIs in the absence of disordered alcohol use.” ECF No. 13 at 10. 9 To the contrary, the ALJ discussed the treatment record in detail and at length, Tr. 10 2064-68, and Plaintiff’s argument does not specifically address any of the findings 11 made by the ALJ. In particular, Plaintiff does not respond to the ALJ’s recitation of 12 the evidence regarding Plaintiff’s alcohol use which is documented in the record. As 13 noted supra, it is the Plaintiff’s obligation to provide “competent evidence of a 14 period of abstinence” and medical source opinions relating to that period which 15 establish that alcoholism is not a contributing factor material to alleged 16 disability. Hardwick, 782 F.Supp. 2d at 1177. No medical source concluded that 17 Plaintiff is disabled with or without alcohol, and Plaintiff’s recitation of the record 18 does not meet that obligation. ECF No. 13 at 11-16. Plaintiff does not cite any 19 specific error and argues only generally that the ALJ failed to properly evaluate the 20 impact of her conditions without alcohol. ECF No. 13 at 16. The ALJ’s findings are 21 ORDER - 24 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4332 Page 25 of 26 1 based on a reasonable interpretation of the record and are based on substantial 2 evidence. 3 D. 4 Step Five Plaintiff contends the ALJ erred at step five because the finding that there are 5 jobs available that Plaintiff can perform was based on an incomplete hypothetical. 6 ECF No. 13 at 21. The ALJ’s hypothetical must be based on medical assumptions 7 supported by substantial evidence in the record which reflect all of a claimant’s 8 limitations. Osenbrook v. Apfel, 240 F.3D 1157, 1165 (9th Cir. 2001). The 9 hypothetical should be “accurate, detailed, and supported by the medical record.” 10 Tackett, 180 F.3d at 1101. The ALJ is not bound to accept as trued the restrictions 11 presented in a hypothetical question propounded by a claimant’s counsel. 12 Osenbrook, 240 F.3d at 1164; Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 13 1989); Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. 1986). The ALJ is free to 14 accept or reject these restrictions as long as they are supported by substantial 15 evidence, even when there is conflicting medical evidence. Magallanes, 881 F.2d at 16 id. Plaintiff’s argument assumes the ALJ erred in evaluating the RFC and other 17 evidence. As discussed throughout this decision, the ALJ’s findings are supported 18 by substantial evidence. Thus, there is no error at step five. 19 20 21 CONCLUSION Having reviewed the record and the ALJ’s findings, this Court concludes the ALJ’s decision is supported by substantial evidence and free of harmful legal error. ORDER - 25 Case 4:22-cv-05001-LRS ECF No. 16 filed 10/04/23 PageID.4333 Page 26 of 26 1 Accordingly, 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 4 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order 5 and provide copies to counsel. Judgment shall be entered for Defendant and the file 6 shall be CLOSED. 7 DATED October 4, 2023. 8 LONNY R. SUKO Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 26

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