Garza v. Commissioner of Social Security, No. 1:2016cv03082 - Document 22 (E.D. Wash. 2017)

Court Description: ORDER GRANTING 20 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT denying 15 Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (AY, Case Administrator)

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Garza v. Commissioner of Social Security Doc. 22 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 OLIVIA GARZA, 8 Plaintiff, 9 v. 10 11 12 13 14 15 16 17 NANCY A. BERRYHILL (PREVIOUSLY CAROLYN W. COLVIN), Acting Commissioner of Social Security, 1 No. 1:16-CV-03082-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 15 & 20. Plaintiff Olivia Garza brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her applications for Disability Insurance Benefits and Supplemental 18 19 20 1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 20, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin as the defendant in this suit. No further action need be taken to continue this suit. 42 U.S.C. § 405(g). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Security Income under Titles II & XVI of the Social Security Act, 42 U.S.C §§ 2 401-434 & 1381-1383F. After reviewing the administrative record and briefs filed 3 by the parties, the Court is now fully informed. For the reasons set forth below, the 4 Court GRANTS Defendant’s Motion for Summary Judgment. 5 6 I. Jurisdiction Ms. Garza filed her applications for disability and disability insurance 7 benefits on October 24, 2012. AR 240-52. Her alleged onset date is August 1, 8 2009. AR 240. Her application was initially denied on December 13, 2012, AR 9 161-76, and on reconsideration on April 3, 2013, AR 180-92. 10 Administrative Law Judge (“ALJ”) Larry Kennedy held a hearing on 11 September 25, 2014. AR 46-74. On October 24, 2014, the ALJ issued a decision 12 finding Ms. Garza ineligible for disability benefits. AR 19-40. The Appeals 13 Council denied Ms. Garza’s request for review on March 31, 2016, AR 1-4, 14 making the ALJ’s ruling the “final decision” of the Commissioner. 15 Ms. Garza timely filed the present action challenging the denial of benefits 16 on May 10, 2016. ECF No. 3. Accordingly, Ms. Garza’s claims are properly before 17 this Court pursuant to 42 U.S.C. § 405(g). 18 19 20 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 mental impairment which can be expected to result in death or which has lasted or 2 can be expected to last for a continuous period of not less than twelve months.” 42 3 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 4 under a disability only if the claimant’s impairments are of such severity that the 5 claimant is not only unable to do his previous work, but cannot, considering 6 claimant's age, education, and work experience, engage in any other substantial 7 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 8 1382c(a)(3)(B). 9 The Commissioner has established a five-step sequential evaluation process 10 for determining whether a claimant is disabled within the meaning of the Social 11 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 12 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 13 Step one inquires whether the claimant is presently engaged in “substantial 14 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 15 activity is defined as significant physical or mental activities done or usually done 16 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 17 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 18 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 19 Step two asks whether the claimant has a severe impairment, or combination 20 of impairments, that significantly limits the claimant’s physical or mental ability to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 2 impairment is one that has lasted or is expected to last for at least twelve months, 3 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 4 416.908-09. If the claimant does not have a severe impairment, or combination of 5 impairments, the disability claim is denied, and no further evaluative steps are 6 required. Otherwise, the evaluation proceeds to the third step. 7 Step three involves a determination of whether any of the claimant’s severe 8 impairments “meets or equals” one of the listed impairments acknowledged by the 9 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 10 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 11 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 12 equals one of the listed impairments, the claimant is per se disabled and qualifies 13 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 14 the fourth step. 15 Step four examines whether the claimant’s residual functional capacity 16 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 17 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 18 is not entitled to disability benefits and the inquiry ends. Id. 19 20 Step five shifts the burden to the Commissioner to prove that the claimant is able to perform other work in the national economy, taking into account the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 2 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 3 burden, the Commissioner must establish that (1) the claimant is capable of 4 performing other work; and (2) such work exists in “significant numbers in the 5 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 6 676 F.3d 1203, 1206 (9th Cir. 2012). 7 8 9 III. Standard of Review A district court's review of a final decision of the Commissioner is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 10 Commissioner's decision will be disturbed “only if it is not supported by 11 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 12 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 13 a mere scintilla but less than a preponderance; it is such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 15 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 16 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 17 whether the Commissioner’s findings are supported by substantial evidence, “a 18 reviewing court must consider the entire record as a whole and may not affirm 19 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 2 F.2d 498, 501 (9th Cir. 1989)). 3 In reviewing a denial of benefits, a district court may not substitute its 4 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 5 1992). If the evidence in the record “is susceptible to more than one rational 6 interpretation, [the court] must uphold the ALJ's findings if they are supported by 7 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 8 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 9 2002) (if the “evidence is susceptible to more than one rational interpretation, one 10 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 11 a district court “may not reverse an ALJ's decision on account of an error that is 12 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 13 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 14 The burden of showing that an error is harmful generally falls upon the party 15 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 16 IV. Statement of Facts 17 The facts of the case are set forth in detail in the transcript of proceedings, 18 and accordingly, are only briefly summarized here. Ms. Garza was born in 1991. 19 AR 38. While she does have a high school education, she required special 20 education classes and an additional two years to graduate. ECF No. 15 at 6. She ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 has very limited prior work experience that does not rise to legal definition of past 2 relevant work. Id. Ms. Garza has multiple mental impairments, as well as history 3 of learning disabilities. AR 22. 4 V. 5 The ALJ’s Findings The ALJ determined that Ms. Garza was not under a disability within the 6 meaning of the Act from August 1, 2009, through the date of the decision. AR 19- 7 40. 8 At step one, the ALJ found that Ms. Garza had not engaged in substantial 9 gainful activity since August 1, 2009, her alleged onset date (citing 20 C.F.R. §§ 10 11 404.1571 et seq. and 416.971 et seq.). AR 21. At step two, the ALJ found Ms. Garza had the following severe 12 impairments: borderline intellectual functioning; attention deficit/hyperactivity 13 disorder (“ADHD”) versus hyperkinetic disorder; depressive disorder not 14 otherwise specified; intermittent explosive disorder; anxiety disorder not otherwise 15 specified; personality disorder not otherwise specified; and substance use disorder 16 (citing 20 C.F.R. §§ 404.1520(c) and 416.920(c)). AR 22. 17 At step three, the ALJ found that Ms. Garza did not have an impairment or 18 combination of impairments that meets or medically equals the severity of one of 19 the listed impairments in 20 C.F.R. §§ 404, Subpt. P, App. 1. AR 23-27. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 At step four, the ALJ found Ms. Garza had the following residual functional 2 capacity: She can perform a full range of work at all exertional levels, but with the 3 following nonexertional limitations: She should avoid concentrated exposure to 4 fumes, odors, gases, dust, or poor ventilation. She can perform simple and routine 5 tasks and can follow short and simple instructions. She can do work that needs 6 little or no judgment and can perform simple duties that can be learned on the job 7 in a short period. She requires a work environment with minimal supervisor 8 contact. She can work in proximity to co-workers but not in a cooperative or team 9 effort. She requires a work environment with no more than superficial interactions 10 with co-workers. She requires a work environment that is predictable and with few 11 work setting changes (i.e. a few routine and uninvolved tasks according to set 12 procedures, sequence, or pace with little opportunity for diversion or interruption). 13 She cannot deal with the general public as in a sales position or where the general 14 public is frequently encountered as an essential element of the work process. 15 Incidental contact of a superficial nature with the general public is not precluded. 16 AR 27-38. 17 18 The ALJ determined that Ms. Garza has no past relevant work, so transferability of job skills is not an issue. AR 38. 19 At step five, the ALJ found that in light of her age, education, work 20 experience, and residual functional capacity, there are jobs that exist in significant ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 numbers in the national economy that Ms. Garza can perform. AR 38-39. These 2 include industrial cleaner, laundry worker, and kitchen helper. Id. The ALJ 3 consulted a vocational expert and the Dictionary of Occupational Titles in making 4 this determination. Id. 5 6 VI. Issues for Review Ms. Garza argues that the Commissioner’s decision is not free of legal error 7 and not supported by substantial evidence. Specifically, she argues the ALJ erred 8 by: (1) finding that Ms. Garza’s borderline intellectual functioning does not meet 9 the severity of Listing 12.05C; (2) failing to properly evaluate the medical opinion 10 evidence; (3) discrediting Ms. Garza’s symptom testimony without providing 11 specific, clear, and convincing reasons for so doing. ECF No. 15 at 1. 12 13 VII. Discussion A. The ALJ did not err in the finding that Ms. Garza’s borderline 14 intellectual functioning does not meet the severity of Listing 12.05C 15 A claimant will satisfy Listing 12.05C and demonstrate intellectual 16 disability, thus ending the five-step inquiry at step three, if the claimant can show: 17 “(1) subaverage intellectual functioning with deficits in adaptive functioning 18 initially manifested before age 22; (2) a valid IQ score of 60 to 70; and (3) a 19 physical or other mental impairment imposing an additional and significant work- 20 related limitation.” Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013). The ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 ALJ found that Ms. Garza did not meet Listing 12.05C because she did not have 2 deficits in adaptive functioning that initially manifested prior to age 22, nor a valid 3 IQ score of 60 to 70. AR 24-28. Ms. Garza argues this was in error. 4 1. Deficits in adaptive functioning 5 The ALJ specifically found that there was “no evidence that the claimant has 6 deficits in adaptive functioning.” AR 27. The primary reasons for the ALJ’s 7 finding were Ms. Garza’s ability to graduate high school, no findings of deficits in 8 adaptive functioning during in mental status examinations, and the breadth of Ms. 9 Garza’s activities. AR 25-28. 10 While Ms. Garza did take additional time to graduate from high school and 11 attended special education courses, the record supports the ALJ’s findings that her 12 behavioral and mental issues were a significant factor, and not intellectual ability 13 alone. AR 28, 277. Her school records reflect that Ms. Garza did “not have a 14 history of regular school attendance through out [sic] her school career.” AR 277. 15 She also had a very significant record of behavioral problems, including weapons, 16 insubordination, violence, and other aggressive conduct. AR 278. 17 In particular, effort and self-reliance is a theme found throughout Ms. 18 Garza’s record. A special education evaluation report from January 2012 observed 19 that Ms. Garza is a “good student, despite his [sic] inattentiveness and off-task 20 behaviors” and that she “has the ability to performed [sic] the tasks asked of her in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 class, but that she lacks the effort and independence to complete things and turn 2 them in.” AR 309-10. In addition, the report stated that there were no concerns 3 regarding Ms. Garza’s adaptive community living skills. AR 311. 4 The ALJ also referred to multiple normal mental status examinations. 5 Examples in the record include January 2011, (AR 506), February 2011 (AR 545), 6 April 2013 (AR 460-61), and September 2013 (AR 492). 7 Finally, Ms. Garza’s activities do not support deficits in adaptive function. 8 She participated in a summer work program in 2009 unloading shipments at a retail 9 store, and by her own admission, she “did okay” at the job and got along well with 10 others. AR 458. In addition, she babysits periodically and worked for a period as a 11 security guard. AR 489, 660. Ms. Garza has also stated that she has regularly 12 looked for other work, including through an agency. Id. Moreover, her 13 socialization skills do not appear limited, as the record and her testimony at the 14 hearing refer to regular time spent with friends. AR 54-55, 61-63, 458, 489. She 15 also has the ability to comfortably socialize in public settings, including a hookah 16 lounge, a fair, concerts, and church. AR 61-63, 461, 595. Finally, Ms. Garza is able 17 to handle household chores and maintain concentration while reading or watching 18 television for at least two hours. AR 461. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 2. Valid IQ score between 60 and 70 2 The record contains multiple instances of psychometric testing, but the ALJ 3 found only the 1999 administration of the Weschler Intelligence Scale for 4 Children-III (“WISC-III”) to be reliable. AR 26. The results of the 1999 WISC-III 5 testing found Ms. Garza to have a full scale IQ of 76, performance IQ of 75, and 6 verbal IQ of 81. AR 278. These scores would not meet Listing 12.05C. See 7 Kennedy, 738 F.3d at 1174. Both her January 2012 and January 2015 special 8 education evaluation reports indicated that intellectual re-testing was not necessary 9 because Ms. Garza’s cognitive levels had not changed since the administration of 10 the WISC-III in 1999 and still fell within the borderline range. AR 278, 310-311. 11 Dr. Jay M. Toews, EdD, administered the Weschler Adult Intelligence 12 Scale-IV (“WAIS-IV”) on December 21, 2010. AR 506-07. At that time, Ms. 13 Garza tested to have a full scale IQ of 68. AR Id. Dr. Toews specifically found the 14 test results to be considered valid and further stated in his report that Ms. Garza 15 was “focused, attentive, and calm” during her evaluation and was “serious and 16 motivated for testing.” AR 506. 17 In discrediting these results, the ALJ noted significant discrepancies between 18 various scores, such as a fifteen-point difference between verbal comprehension 19 and perceptional reasoning. AR 26. In his report, however, Dr. Toews stated that 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 the magnitude of the difference could suggest a cerebral disorder affecting the right 2 hemisphere of the brain. AR 507. 3 In sum, there is nothing to conclude that this result is invalid. Thus, the 4 Court notes the presence of at least one valid full-scale IQ result in the range of 60- 5 70 and need not address whether the April 2013 results were valid. However, to 6 meet Listing 12.05C, Ms. Garza must demonstrate both a valid IQ score in the 60- 7 70 range and deficits in adaptive functioning. See Kennedy, 738 F.3d at 1174. For 8 the reasons discussed above, the Court finds no error with the ALJ’s conclusion 9 that Ms. Garza has no deficit in adaptive functioning. See supra p. 10-12. Thus, the 10 ALJ’s error in not crediting the results of the December 2010 WAIS-IV test is 11 harmless error. See Molina, 674 F.3d at 1111. 12 B. The ALJ did not err in evaluation of the medical record 13 1. Legal Standard 14 The Ninth Circuit has distinguished between three classes of medical 15 providers in defining the weight to be given to their opinions: (1) treating 16 providers, those who actually treat the claimant; (2) examining providers, those 17 who examine but do not treat the claimant; and (3) non-examining providers, those 18 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 19 Cir. 1996) (as amended). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 A treating provider’s opinion is given the most weight, followed by an 2 examining provider, and finally a non-examining provider. Id. at 830-31. In the 3 absence of a contrary opinion, a treating or examining provider’s opinion may not 4 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 5 treating or examining provider’s opinion is contradicted, it may only be discounted 6 for “specific and legitimate reasons that are supported by substantial evidence in 7 the record.” Id. at 830-31. 8 The ALJ may meet the specific and legitimate standard by “setting out a 9 detailed and thorough summary of the facts and conflicting clinical evidence, 10 stating [his or her] interpretation thereof, and making findings.” Magallanes v. 11 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When 12 rejecting a treating provider’s opinion on a psychological impairment, the ALJ 13 must offer more than his or her own conclusions and explain why he or she, as 14 opposed to the provider, is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th 15 Cir. 1988). 16 2. The opinion of Dr. Toews 17 Dr. Toews performed a psychological evaluation on Ms. Garza on January 18 18, 2011. AR 504-09. During the evaluation, Dr. Toews completed a mental status 19 examination and administered multiple objective tests. AR 506-08. Among his 20 impressions following the evaluation, Dr. Toews opined that Ms. Garza has ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 “significant cognitive processing deficits” that would limit her ability to adapt to 2 workplace stressors and other challenges and found her to have “severe problems” 3 when dealing with the general public. AR 508. 4 The ALJ gave Dr. Toews’s opinion “some weight.” AR 33. The ALJ found 5 that the limitations in social interaction and performance of tasks discussed by Dr. 6 Toews were consistent with the record, but the record also showed that Ms. Garza 7 can adapt to routine stressors adequately and that she can tolerate at least 8 superficial public contact. Id. 9 An ALJ may reject an opinion that is contradicted by a claimant’s activities 10 of daily living. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). The 11 ALJ cited to many of Ms. Garza’s activities to demonstrate that she is less limited 12 than Dr. Toews opined. These included her ability to shop independently, attend 13 regular church services and sing in the church choir, participate in competitive 14 dancing, maintain steady friendships, and get along with others at her summer 15 work program. AR 33, 458, 505-06, 595. The record also demonstrates many 16 instances of socialization that were discussed previously in the analysis of Ms. 17 Garza’s lack of deficits in adaptive functioning. See supra pp. 10-12. 18 The Court finds the ALJ provided a detailed analysis, citing to specific, 19 clear, and convincing reasons, for rejecting the portion of Dr. Toews’s opinion that 20 was not supported by the record. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 3. The opinion of Dr. Wachsmuth 2 Dr. Wendi Wachsmuth, PhD, performed a psychological evaluation on Ms. 3 Garza on September 21, 2013. AR 489-92. Dr. Wachsmuth opined that Ms. Garza 4 had marked limitations in five functional areas, including the ability to follow both 5 short, simple and detailed, complex instructions, the ability to perform activities 6 within a schedule, the ability to learn new tasks, and the ability to set goals and 7 plan independently. AR 491. The ALJ gave little weight to Dr. Wachsmuth’s 8 opinion because there was no explicit basis for the findings and because the record, 9 including Ms. Garza’s statements to Dr. Wachsmuth, are inconsistent with the 10 11 limitations opined. AR 37. An ALJ may not discredit a doctor’s opinion simply because it is in a check- 12 box format unless the opinion is inconsistent with the underlying medical records. 13 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). A check-box will 14 generally be given more weight when it reflects a significant treatment 15 relationship. See id. at 1013 (finding that the check-box form was based on 16 significant experience with the claimant and numerous medical records). 17 Here, there are many factors that support the ALJ’s determination. There is 18 no lengthy established treatment history between Ms. Garza and Dr. Wachsmuth. 19 The records strongly suggests this was their only meeting. See AR 489-93. Further, 20 the record as a whole does not support Dr. Wachsmuth’s assessments, nor do her ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 own notes. Id. Ms. Garza herself stated to Dr. Wachsmuth that she “could probably 2 handle full time work” and that she babysat. AR 489-91. While there were some 3 issues with fidgeting and other symptoms consistent with ADHD, largely the 4 mental status examination yielded benign results. AR 492-93. These facts are 5 inconsistent with the level of impairment opined by Dr. Wachsmuth, and a conflict 6 between a doctor’s notes and their subsequent opinion is an adequate reason for 7 discrediting the opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 8 2014). Additionally, there is no indication in Dr. Wachsmuth’s notes that Ms. 9 Garza was taking her prescribed ADHD medication, which Dr. Wachsmuth 10 recognized would strongly benefit her. AR 491. Viewing the record as a whole, 11 with specific attention to Dr. Wachsmuth’s report, the Court does not find the ALJ 12 erred. 13 4. The opinion of Dr. Barnard 14 Dr. Philip G. Barnard, PhD, evaluated Ms. Garza on April 24, 2014. AR 15 660-664. The only clinical finding provided was that Ms. Garza’s ADHD would 16 affect her ability to work on a daily basis to a mild extent. AR 661. Nevertheless, 17 Dr. Barnard opined Ms. Garza would have moderate limitations understanding, 18 remembering, and persisting in detailed tasks; performing within a schedule, 19 including maintaining regular attendance and punctuality; completing a normal 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 work day and work week; and maintaining appropriate behavior in a work setting. 2 AR 662. 3 The ALJ actually agreed with some of these limitations, such as those 4 related to detailed instructions and extended public contact in a work setting. AR 5 37. The ALJ, however, only gave some weight to portions of the opinion, noting 6 that the record overall indicates Ms. Garza can maintain appropriate behavior and 7 persist in simple tasks without interruption. Id. 8 Again, the ALJ took issue with the lack of explanation for the check-box 9 format. Like Dr. Wachsmuth, Dr. Barnard has no established lengthy history with 10 Ms. Garza that would suggest the unsupported check-boxes are especially reliable. 11 See supra p. 17; see also Garrison, 759 F.3d at 1014. This is particularly relevant 12 for another reason the ALJ gave for giving only partial weight to Dr. Barnard’s 13 opinion: Dr. Barnard’s lack of familiarity with Ms. Garza’s record. AR 37. The 14 ALJ specifically noted that Dr. Barnard was “critically misinformed about [Ms. 15 Garza’s] substance abuse.” Id. The ALJ explained that an opinion that does not 16 account for all relevant information is less reliable. Id. at fn.5. 17 Ms. Garza’s statements about her substance use are inconsistent throughout 18 the record, as discussed later in the review of the ALJ’s credibility analysis. See 19 infra pp. 25. In this instance, she told Dr. Barnard that she has never had a problem 20 with alcohol, nor has she used illicit drugs other than marijuana. AR 660. These ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 statements are inconsistent with others in the record, most notably her statements 2 on April 7, 2014, that she drinks until she is unable to drink anymore during the 3 weekends and combines “molly” (methylenedioxy-methamphetamine) and alcohol. 4 AR 684. These admissions resulted in a diagnosis of alcohol dependence and a 5 referral to treatment—only seventeen days before she met with Dr. Barnard and 6 told him that she had no problem with alcohol. AR 685. Even though the ALJ 7 ultimately found her substance use disorder did not materially affect her ability to 8 perform gainful activity, AR 32, this shows a serious hole in Dr. Barnard’s 9 knowledge of his patient. It was not unreasonable for the ALJ to approach the 10 opinion with caution. 11 In addition, Dr. Barnard’s notes largely reflect subjective and biographical 12 information by Ms. Garza, who was properly found to be unreliable. See infra at 13 pp. 23-25. The objective information contained within Dr. Barnard’s notes is 14 limited to the mental status examination, which does not support all of the 15 limitations opined. ALJ. AR 663-64. 16 In sum, the Court finds no error in the ALJ’s decision to give weight only to 17 the portions of Dr. Barnard’s opinion that were consistent with the record and not 18 based upon subjective information. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 5. The opinion of Dr. Jackson 2 Dr. Caryn Jackson, MD, was a treating physician with Yakima 3 Neighborhood Health Services, who provided statements on August 5, 2013, and 4 July 31, 2014, that Ms. Garza’s mental health disorder prevented her from 5 engaging in work or school activities. AR 477, 698. 6 The ALJ gave little weight to these statements, which he correctly described 7 as “cursory.” AR 35-36. Dr. Jackson’s statements provided no specific findings or 8 explanations to justify the opinion, and she did not even refer to a specific mental 9 health condition. AR 477, 698. An ALJ may reject a treating physician’s opinion 10 that is conclusory, brief, and unsupported by the record as a whole or by objective 11 medical findings. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). In 12 this case, the opinion is not only conclusory and brief, but also unsupported by 13 objective medical findings or the record as a whole. Further, they provide no 14 relevant information that can be considered to assess the residual functional 15 capacity and ultimate disability determination. See Meanel v. Apfel, 172 F.3d 1111, 16 1114 (9th Cir. 1999) (rejection of conclusory, unsubstantiated opinion in favor of 17 specific findings that were useful in determining disability). 18 The records from Dr. Jackson do not contain objective findings that support 19 the total limitations opined. For example, while a physical examination was 20 performed in November 2012, there was no specific information about Ms. Garza’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 psychological condition other than a comment that Ms. Garza showed “some 2 improvement” after restarting her ADHD medication. AR 422. There were also 3 some statements that appear to be based on subjective information provided by Ms. 4 Garza, who has been established to be unreliable. See infra at pp. 23-25. Likewise, 5 at an August 13, 2013, appointment, Dr. Jackson’s notes do not demonstrate 6 objective medical findings that support a total bar on work and school activities. 7 AR 604. 8 9 Moreover, the record generally does not support Dr. Jackson’s August 2013 and July 2014 opinions. Ms. Garza was able to attend and graduate from high 10 school. AR 277-309. While she did attend special education courses and required 11 additional time, she was clearly able to participate in school activities, despite Dr. 12 Jackson’s statements to the contrary. Additionally, the record shows instances of 13 work experience, such as babysitting, work as a security guard, and a temporary 14 job in retail. AR 458, 489, 660. These activities are all contrary to Dr. Jackson’s 15 total bar on work and school activities, and the ALJ was reasonable to consider 16 them when choosing to discredit the opinion. 17 6. The opinions of Dr. Borton 18 Dr. Richard Borton, PhD, performed a review of the record for the state on 19 December 11, 2012. AR 116-23. Dr. Borton opined that Ms. Garza would have 20 problems adapting to changes on the job and that she could only adapt to minimal ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 changes in a “very routine set of job tasks.” AR 123. He did also recognize that 2 when taking her medication, her impulse control, the source of her adaptation 3 problems, improved. Id. 4 Dr. Jerry Gardner, PhD, reviewed the record and provided an opinion for the 5 state on April 3, 2013. AR 139-49. His findings were similar to Dr. Borton in that 6 he found Ms. Garza to have low tolerance for stress and limited adaptive coping 7 strategies. Id. 8 9 As with Dr. Barnard, the ALJ gave some weight to the portions of the opinions that were supported by the record, but he rejected the portions 10 contradicted. AR 35. For example, the ALJ pointed to a special education 11 evaluation performed January 29, 2012. AR 35, 309-14. This evaluation found Ms. 12 Garza to have no concerns regarding adaptive community living skills, and that 13 despite not being medicated for approximately one year, she could still persist with 14 short, concise instructions. AR 309-11. 15 The record overall demonstrates that Ms. Garza will function best when she 16 takes her ADHD medication, but also that she has some adaptive capability even 17 without her medication. The Court finds no error in the ALJ’s explanation for the 18 decision to give less credit to the portion of Drs. Borton and Gardner’s opinion that 19 contradicted the special education evaluation and the record generally. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 2 C. The ALJ did not err in the determination of Ms. Garza’s credibility. An ALJ engages in a two-step analysis to determine whether a claimant’s 3 testimony regarding subjective symptoms is credible. Tommasetti, 533 F.3d at 4 1039. First, the claimant must produce objective medical evidence of an underlying 5 impairment or impairments that could reasonably be expected to produce some 6 degree of the symptoms alleged. Id. Second, if the claimant meets this threshold, 7 and there is no affirmative evidence suggesting malingering, “the ALJ can reject 8 the claimant’s testimony about the severity of [his] symptoms only by offering 9 specific, clear, and convincing reasons for doing so.” Id. 10 In weighing a claimant's credibility, the ALJ may consider many factors, 11 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 12 reputation for lying, prior inconsistent statements concerning the symptoms, and 13 other testimony by the claimant that appears less than candid; (2) unexplained or 14 inadequately explained failure to seek treatment or to follow a prescribed course of 15 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 16 1284 (9th Cir. 1996). 17 The record strongly supports the ALJ’s contention that Ms. Garza’s 18 conditions can be managed by medication. Unexplained or inadequately explained 19 failure to follow a prescribed course of treatment can be a proper basis for an ALJ 20 to discount a claimant’s credibility. Smolen, 80 F.3d at 1284. In April 2011, Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 Jack Reiter, MD, provided a letter to Ms. Garza which indicated that Ms. Garza 2 herself recognized improvement while on her ADHD medication and that her 3 performance in school and other activities will be “markedly improved.” AR 385. 4 Ms. Garza’s overall mood and behavior were noticeably worse during evaluations 5 in which she had not been regularly taking her medication. AR 386-90. For 6 instance, her special education evaluators noted that she would lose focus without 7 short, concise instructions, and this was during a period in which she was not 8 taking her medication. AR 309-310. The record is unclear why Ms. Garza 9 sometimes took her ADHD medications and at other times did not, particularly 10 11 since she herself recognized improvement from it. In addition, Ms. Garza’s activities and work history also do not support her 12 subjective testimony. Ms. Garza has prior experience working in a retail store 13 without problems doing the job or getting along with her co-workers. AR 458. She 14 periodically babysits and had worked as a security guard. AR 489, 660. Her social 15 skills are well-developed, including the ability to socialize comfortably in public 16 settings such as a hookah lounge, a fair, concerts, and church. AR 61-63, 461, 595. 17 She is also able to complete household chores and maintain concentration while 18 reading or watching television for at least two hours. AR 461. All of these 19 activities do not support her allegations, and it was not improper for the ALJ to 20 consider them. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 Finally, Ms. Garza has exhibited significant inconsistency when discussing 2 her history of drug and alcohol use, which was an important factor to the ALJ’s 3 analysis. Prior inconsistent statements and other testimony that appears less than 4 candid will uphold an ALJ’s finding on credibility. Smolen, 80 F.3d at 1284. 5 Almost each evaluation contains different information about Ms. Garza’s drug and 6 alcohol use. Her medical record of January 11, 2013, noted a history of marijuana 7 use, AR 626, but on April 1, 2013, she denied any history of drug or alcohol use, 8 AR 458. She admitted to drinking heavily at the hookah lounge, but claims to have 9 stopped by her visit on September 6, 2013, with Mark Sikora, LICSW. AR 595. 10 Also in September 2013, she told Dr. Wachsmuth that she “experimented” with 11 marijuana and pills as recently as a couple weeks prior and drinks 12 “occasionally.”AR 492. As discussed previously in the analysis of Dr. Barnard’s 13 opinion, this is dramatically different from the information provided to Dr. Barnard 14 in April 2014, in which she claims to have never had an alcohol problem or used 15 any drugs other than marijuana. AR 660; See also supra at p.19. In sum, Ms. 16 Garza’s own statements about her drug and alcohol abuse have changed with each 17 evaluation, and the significant inconsistency between her statements, particularly 18 within short time frames, constitute valid reasons for the ALJ to have rejected her 19 credibility. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 VIII. Conclusion 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is supported by substantial evidence and free from legal error. 4 Accordingly, IT IS ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 20, is 7 8 9 GRANTED. 3. The District Court Executive is directed to enter judgment in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Executive is directed to enter this 10 Order, forward copies to counsel and close the file. 11 DATED this 1st day of June, 2017. 12 13 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26

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