Soto v. Commissioner of Social Security, No. 1:2017cv03178 - Document 18 (E.D. Wash. 2018)
Court Description: ORDER DENYING ECF No. 15 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING ECF No. 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)
Download PDF
<![CDATA[
Soto v. Commissioner of Social Security Doc. 18 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Oct 12, 2018 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 AUGUST S., No. 1:17-cv-03178-MKD Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 15, 16 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 15, 16. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s Motion, ECF No. 15, and grants Defendant’s Motion, ECF No. 18 16. 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 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 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in 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, 17 1156 (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 21 ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 19 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 20 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 21 ORDER - 3 1 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 2 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 not disabled. 20 C.F.R. § 416.920(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner pauses to assess the 19 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 21 ORDER - 4 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not 15 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 ORDER - 5 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). 4 ALJ’S FINDINGS 5 On May 14, 2014, Plaintiff applied for Title XVI supplemental security 6 income benefits alleging a disability onset date of August 1, 2013. Tr. 173-78. 7 The applications were denied initially, Tr. 92-100, and on reconsideration, Tr. 1048 10. Plaintiff appeared at a hearing before an administrative law judge (ALJ) on 9 January 15, 2016. Tr. 36-76. On June 1, 2016, the ALJ denied Plaintiff’s claim. 10 Tr. 20-31. 11 At step one of the sequential evaluation process, the ALJ found Plaintiff has 12 not engaged in substantial gainful activity since May 14, 2014, the application 13 date. Tr. 22. At step two, the ALJ found that Plaintiff has the severe impairments 14 of depressive disorder and obsessive compulsive disorder. Id. At step three, the 15 ALJ found Plaintiff does not have an impairment or combination of impairments 16 that meets or medically equals the severity of a listed impairment. Tr. 23. The 17 ALJ then concluded that Plaintiff has the RFC to perform a full range of work at 18 all exertional levels but with the following nonexertional limitations: 19 20 21 [Plaintiff] can perform simple and detailed tasks, but might have difficulty performing more complex tasks consistently. He can have superficial contact with the public, in that he can be around the public and interact briefly, but should not perform any face-to-face customer ORDER - 6 1 2 3 4 service or sales jobs. It would be preferable if [Plaintiff] avoided face-to-face interactions with the public. [Plaintiff] can perform a low stress job, which I am defining as requiring only occasional decision making and no high production paced tasks such as a high volume assembly line. [Plaintiff] needs to be in control of his own workflow. The job should be routine with few changes, occasional changes would be acceptable, but less than occasional changes would be preferable. 5 Tr. 24. 6 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 30. At 7 step five, the ALJ found there are jobs that exist in significant numbers in the 8 national economy that Plaintiff could perform, such as: janitor, hotel/motel 9 housekeeper, and cleaner II. Tr. 31. Therefore, the ALJ concluded Plaintiff was 10 not under a disability, as defined in the Social Security Act, from the date the 11 application was filed, May 14, 2014. Id 12 On August 13, 2017, the Appeals Council denied review of the ALJ’s 13 decision, Tr. 1-3, making the ALJ’s decision the Commissioner’s final decision for 14 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 15 ISSUES 16 Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 him supplemental security income benefits under Title XVI of the Social Security 18 Act. Plaintiff raises the following issues for review: 19 1. Whether the ALJ properly evaluated the medical opinion evidence; 20 2. Whether the ALJ properly evaluated lay witness testimony; and 21 ORDER - 7 1 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 2 ECF No. 15 at 3. 3 4 5 DISCUSSION A. Medical Opinion Evidence Plaintiff challenges the ALJ’s consideration of the medical opinions of Jay 6 Toews, Ed.D., and Leslie Postovoit, Ph.D. ECF No. 15 at 3-13. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 12 Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s opinion, and an examining physician’s opinion carries more weight 14 than a reviewing physician’s opinion. Id. at 1202. “In addition, the regulations 15 give more weight to opinions that are explained than to those that are not, and to 16 the opinions of specialists concerning matters relating to their specialty over that of 17 nonspecialists.” Id. (citations omitted). 18 If a treating or examining physician’s opinion is uncontradicted, the ALJ 19 may reject it only by offering “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 21 ORDER - 8 1 “However, the ALJ need not accept the opinion of any physician, including a 2 treating physician, if that opinion is brief, conclusory and inadequately supported 3 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 4 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 5 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 6 may only reject it by providing specific and legitimate reasons that are supported 7 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 8 F.3d 821, 830-831 (9th Cir. 1995)). 9 1. Jay Toews, Ed.D. 10 In October 2013, Dr. Toews conducted a psychological evaluation. Tr. 277- 11 82. Dr. Toews diagnosed Plaintiff with a probable obsessive-compulsive disorder, 12 mild depressive disorder, marijuana abuse in remission, and avoidant traits with 13 dependent features. Tr. 281. Dr. Toews opined that Plaintiff was 1) moderately 14 limited in his ability to sustain attention and concentration due to a history of 15 obsessional thoughts and worries; 2) moderately limited in dealing with the general 16 public; and 3) unable to tolerate more than “very mild work-related stress.” Tr. 17 282. 18 The ALJ gave Dr. Toews’ opinion some weight. Tr. 28. However, the ALJ 19 gave his opinion that Plaintiff can tolerate only “mild work related stress” minimal 20 weight. Id. Because Dr. Toews’ opinion was not contradicted by another medical 21 ORDER - 9 1 opinion, the ALJ was required to provide clear and convincing reasons for partially 2 rejecting Dr. Toews’ opinion. See Bayliss, 427 F.3d at 1216. 3 First, the ALJ gave minimal weight to Dr. Toews’ opinion that Plaintiff can 4 only tolerate “very mild work related stress” because that limitation was vague and 5 unclarified. Tr. 28-29 (citing Tr. 282). “An ALJ must set “out a detailed and 6 thorough summary of the facts and conflicting clinical evidence,” state her 7 interpretation thereof, and make findings. Cotton v. Bowen, 799 F.2d 1403, 1408 8 (9th Cir. 1986); Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (requiring the 9 ALJ to do more than simply state conclusions). In doing so, an ALJ has an 10 independent duty to fully and fairly develop the record. Tonapetyan v. Halter, 242 11 F.3d 1144, 1150 (9th Cir. 2001). This duty to develop the record is triggered if the 12 evidence is ambiguous or the record is inadequate to make a decision. Id.; 13 Armstrong v. Comm’r of Soc. Sec., 160 F.3d 587, 589–90 (9th Cir.1998). The ALJ 14 may develop the record by scheduling a consultative examination, subpoenaing the 15 claimant’s physicians, submitting questions to the claimant’s physicians, 16 continuing the hearing, or keeping the record open after the hearing to allow for 17 supplementation of the record. Tonapetyan, 242 F.3d at 1150 (citing Tidwell v. 18 Apfel, 161 F.3d 599, 602 (9th Cir. 1998)); see also 20 C.F.R. § 404.1512. But if 19 the ALJ seeks to develop the record and a claimant fails to participate (without 20 good reason), the Social Security regulations permit an ALJ to make a negative 21 ORDER - 10 1 disability determination. 20 C.F.R. § 416.918(a). An example of a good reason 2 for failure to appear for a scheduled consultative examination includes having a 3 serious illness occur in your immediate family. 20 C.F.R. § 416.918(b)(4). 4 Here, the ALJ discounted Dr. Toews’ stress-related limitation as vague and 5 unclarified, commenting “What is mild work related stress exactly?” Tr. 28 6 (internal quotation marks omitted). Even if the ALJ deemed Dr. Toews’ “stress” 7 opinion as vague, the ALJ satisfied any duty to fairly develop the record. Before 8 the hearing, both a consultative psychological evaluation and a consultative 9 physical evaluation were scheduled. Tr. 305-06. Plaintiff failed to appear for 10 either. Id. At the hearing, Plaintiff stated that that he did not attend the evaluations 11 because he was too worried to leave his pregnant girlfriend alone due to his 12 concern that she would use drugs. Tr. 47-48. Neither at the hearing nor on appeal 13 has Plaintiff argued that this constitutes good reason to not appear for the 14 consultative examinations. Plus, Plaintiff presented no evidence to explain why he 15 could not have brought his girlfriend to the consultative-examination waiting room 16 or have a family member stay with his girlfriend during his consultative 17 examinations. Moreover, there is no evidence that Plaintiff took steps to 18 reschedule the consultative examinations after his girlfriend gave birth. Because 19 Plaintiff lacked a good reason for failing to take part in the two scheduled 20 consultative examinations, the ALJ satisfied any duty she may have had to develop 21 ORDER - 11 1 the record.1 See, e.g., McCann v. Astrue, No. EDCV-09-01432-SS, 2010 WL 2 2803964, at *4 (C.D. Cal. July 15, 2010) (affirming the ALJ’s negative disability 3 determination because plaintiff failed to show good cause for failing to attend the 4 consultative examinations); Kreidler v. Barnhart, 385 F. Supp. 2d 1034, 1037 5 (C.D. Cal. 2005) (“Plaintiff’s repeated failures to attend the consultative 6 examinations scheduled for her constitute a failure to cooperate sufficient to 7 warrant termination of her disability benefits.”). Under these circumstances, 8 contrary to Plaintiff’s suggestion, ECF No. 15 at 8, the ALJ was not required to 9 10 1 While the ALJ found that Plaintiff did not attend either consultative examination, 11 Tr. 20, the ALJ neither specifically discounted Plaintiff’s credibility because of his 12 failure to attend the consultative examinations nor based the non-disability 13 determination on Plaintiff’s failure to attend the consultative examinations. 14 However, when reviewing the ALJ’s decision, the Court must assess whether the 15 ALJ satisfied her responsibility to develop the record. It is within this context that 16 the Court considers Plaintiff’s failure to attend the consultative examinations and 17 what impact Plaintiff’s non-attendance had on the ALJ’s responsibility, if any, to 18 develop the record further. As discussed above, because Plaintiff failed to attend 19 the consultative examinations without good reason, the ALJ’s responsibility, if 20 any, to develop the record was satisfied. 21 ORDER - 12 1 submit an interrogatory to Dr. Toews to seek clarification. The ALJ did not err in 2 not further developing the record. Moreover, the ALJ discounted Dr. Toews’ 3 opinion based on other clear-and-convincing reasons, discussed infra. 4 The ALJ also gave minimal weight to Dr. Toews’ opinion that Plaintiff can 5 tolerate only “very mild work related stress” because the limitation was 6 inconsistent with Plaintiff’s daily living activities. Tr. 28-29 (citing Tr. 282). An 7 ALJ may discount a medical source opinion to the extent it conflicts with the 8 claimant’s daily activities. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 9 601-02 (9th Cir. 1999). The ALJ found Dr. Toews’ opinion that Plaintiff can only 10 tolerate “very mild work related stress” inconsistent with Plaintiff’s responsibilities 11 as the primary caretaker for his young daughter and his stressful interactions with 12 the mother of his children (a drug user) and his mother 2 and brother, who both 13 have sought or have obtained disability assistance. Tr. 28. The ALJ found that 14 these relationships required Plaintiff to regularly deal with stress. Id. 15 First, as to Plaintiff’s parental responsibilities, the Court finds the ALJ’s 16 finding is supported by substantial evidence in the record. The ability to care for 17 18 2 The ALJ also mentioned that Plaintiff’s “sister” was disabled. This statement 19 was erroneous, as there is no evidence in the record as to Plaintiff’s sister. 20 However, as discussed, this erroneous factual statement is inconsequential. 21 ORDER - 13 1 others without help has been considered an activity that may undermine claims of 2 totally disabling pain. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 3 For care activities to serve as a basis for the ALJ to discount a claimant’s symptom 4 claims, the record must identify the nature, scope, and duration of the care 5 involved, showing that the care is “hands on” rather than a “one-off” care activity. 6 Trevizo v. Berryhill, 871 F.3d 664, 675-76 (9th Cir. 2017). Plaintiff’s parenting 7 role is “hands on.” Plaintiff has primary custody of his young daughter, who at the 8 time of the ALJ’s decision was a toddler. Tr. 49. Plaintiff navigated the state 9 system in order to obtain custody of his daughter, including taking a father10 engagement class. Id. He changed his daughter’s diapers, bathed her, dressed her, 11 read to her, and took her to the park and doctor’s appointments. Tr. 49, 54. The 12 ALJ’s interpretation of the evidence in regard to Plaintiff’s parenting activities, and 13 her decision that these activities involve more than mild stress is rational. See 14 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (Where evidence is subject to 15 more than one rational interpretation, the ALJ’s conclusion will be upheld.). This 16 was a clear and convincing reason, supported by substantial evidence, for the ALJ 17 to discount Dr. Toews’ opinion relating to Plaintiff’s stress-limitation. 18 Second, the Court also finds the ALJ’s decision to discount Dr. Toews’ 19 opinion that Plaintiff is only able to tolerate very mild work-related stress, because 20 it is inconsistent with the stress that Plaintiff regularly deals with given his familial 21 ORDER - 14 1 and girlfriend relationships, to be a rational interpretation of the record and 2 supported by substantial evidence. This is so, even though the ALJ made an 3 erroneous factual finding by mistakenly referring to Plaintiff’s sister as being on 4 disability. See Tr. 28. There simply is no evidence in the record as to Plaintiff’s 5 sister. Plaintiff also challenges the ALJ’s finding that Plaintiff’s brother is 6 disabled. Id. The record is inconsistent as to whether Plaintiff’s brother was or 7 was not receiving disability payments. Tr. 61-62 (applying for assistance), 278 8 (receiving assistance). Regardless, these factual findings are immaterial to the 9 ALJ’s overall decision to discount Dr. Toews’ opinion. There is still substantial 10 evidence in the record to rationally find that Plaintiff regularly dealt with stress in 11 his personal life given his child rearing responsibilities identified supra, his 12 interactions with his drug-using ex-girlfriend, his disabled mother, and a twin 13 brother who suffers from mental impairments. Tr. 51-52, 61-62, 278. Further, to 14 the extent the evidence could be interpreted differently, it is the role of the ALJ to 15 resolve conflicts and ambiguity in the evidence. See Morgan, 169 F.3d at 599-600. 16 The ALJ’s decision to discount Dr. Toews’ opinion as inconsistent with Plaintiff’s 17 daily activities is rational and supported by substantial evidence. 18 Finally, the ALJ also discounted Dr. Toews’ opinion as being only 19 somewhat consistent with his clinical observations. Tr. 28. Incongruity between a 20 doctor’s medical opinion and treatment records or notes is a specific and legitimate 21 ORDER - 15 1 reason to discount a doctor’s opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 2 (9th Cir. 2008). Dr. Toews noted that Plaintiff “evidences no symptoms or 3 medical problems that would interfere with his ability to show up for work and to 4 complete a full work day or work week.” Tr. 282. Additionally, Dr. Toews 5 reported that Plaintiff arrived promptly and independently; was personable, 6 pleasant, and cooperative, although anxious and nervous; interacted appropriately; 7 and maintained good eye contact. Tr. 277, 280-81. Although Plaintiff reported to 8 Dr. Toews that he was preoccupied with worries and anxieties, Plaintiff advised he 9 was able to perform personal care, prepare simple meals, do light housekeeping, 10 pull weeds, do his own laundry, shop independently, and applied for work at Labor 11 Ready. Tr. 279-81. While Plaintiff had a fair to poor fund of information, his 12 speech was normal and thinking coherent and logical. Tr. 280-81. The Court finds 13 the ALJ’s decision to discount Dr. Toews’ opinion as being only somewhat 14 consistent with his clinical observations is rational and supported by substantial 15 evidence. 16 Moreover, the ALJ rationally translated and incorporated Dr. Toews’ 17 opinion when developing the RFC. See Stubbs-Danielson v. Astrue, 539 F.3d 18 1169, 1174 (9th Cir. 2008) (“[A]n ALJ’s assessment of a claimant adequately 19 captures restrictions related to concentration, persistence, or pace where the 20 21 ORDER - 16 1 assessment is consistent with restrictions identified in the medical testimony.”). 2 For instance, the ALJ included the following limitation in the RFC: 3 [A] low stress job . . . requiring only occasional decision making and no high production paced tasks such as a high volume assembly line. The claimant needs to be in control of his own workflow. The job should be routine with a few changes, occasional changes would be acceptable, but less than occasional changes would be preferable. 4 5 6 Tr. 24. This RFC is consistent with Dr. Toews’ accepted findings, including his 7 finding that Plaintiff “evidences no symptoms or medical problems that would 8 interfere with his ability to show up for work and to complete a full work day or 9 work week.” Tr. 282. The Court finds this RFC adequately translated and 10 incorporated Dr. Toews’ accepted findings. See Rounds v. Comm’r Soc. Sec. 11 Admin., 807 F.3d 996, 1006 (9th Cir. 2015). Plaintiff also argues the ALJ erred by failing to discuss Dr. Toews’ GAF 3 12 13 (Global Assessment of Functioning) score. ECF No. 15 at 5-6. The Commissioner 14 has explicitly disavowed use of GAF scores as indicators of disability. 65 Fed. 15 16 3 The GAF Scale measures “the clinician’s judgment of the individual’s overall 17 level of functioning” as to “psychological, social, and occupational functioning,” 18 but not “impairment in functioning due to physical (or environmental) limitations.” 19 Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, at 32 20 (4th ed. Text Revision 2000); see Morgan, 169 F.3d at 598, n.1. 21 ORDER - 17 1 Reg. 50746-01, 50765 (Aug. 21, 2000) (“The GAF scale . . . does not have a direct 2 correlation to the severity requirements in our mental disorder listing.”). The GAF 3 scale is no longer included in the DSM–V. See Am. Psychiatric Ass’n, Diagnostic 4 & Statistical Manual of Mental Disorders at 16 (5th ed. 2013) (“It was 5 recommended that the GAF be dropped from the DSM-V for several reasons, 6 including its conceptual lack of clarity (i.e., including symptoms, suicide risk and 7 disabilities in its descriptors) and (questionable psychometrics in routine 8 practice.”)). As a result, the mere fact that Dr. Toews assessed Plaintiff a low GAF 9 score does not require the adoption of functional limitations stemming therefrom. 10 See Merritt v. Colvin, 572 Fed. App’x 468 (9th Cir. 2014). Moreover, any error by 11 the ALJ in failing to discuss whether the GAF score was considered and 12 incorporated into the RFC was harmless because the ALJ provided other clear and 13 convincing reasons, supported by substantial evidence, to discount Dr. Toews’ 14 opinion. See Molina, 674 F.3d at 1115. 15 Finally, Plaintiff argues the ALJ failed to apply the appropriate analytical 16 factors, citing 20 C.F.R. § 416.927(c) and Trevizo, 871 F.3d 664. ECF No. 15 at 7. 17 The ALJ must evaluate every medical opinion received according to the factors set 18 forth by the Social Security Administration. 20 C.F.R. § 416.927(c). While the 19 ALJ did not detail these factors in chronological order in one paragraph, the ALJ 20 did consider these § 416.927(c) factors: 21 ORDER - 18 1 1) Examining relationship: The ALJ noted that Dr. Toews was a consultative 2 3 examiner. Tr. 22; 2) Treatment relationship: The ALJ recognized that Dr. Toews was a one-time 4 5 consultative examiner—not a treatment source, Tr. 22; 3 & 4) Supportability and Consistency: The ALJ discussed that Dr. Toews’ 6 opined stress-limitation was vague and unsupported by Dr. Toews’ 7 observations and the record as a whole, Tr. 22-23, 26-29; and 8 5) Specialization: The ALJ recognized that Dr. Toews had a doctorate in 9 education, Tr. 22. 10 The ALJ fully considered the applicable § 416.927(c) factors. The ALJ’s decision 11 to discount Dr. Toews’ opinion is rationale and supported by clear and convincing 12 reasons, which are each supported by substantial evidence. See Hill, 698 F.3d at 13 1158. 14 2. Leslie Postovoit, Ph.D. 15 In November 2013, Dr. Postovoit reviewed the medical evidence of record, 16 which consisted primarily of Dr. Toews’ records. Tr. 283-300. Dr. Postovoit 17 opined that Plaintiff was 1) markedly limited in the abilities to understand, 18 remember, and carry out detailed instructions, and 2) moderately limited in the 19 abilities to respond appropriately to changes in the work setting, interact 20 appropriately with the general public, complete a normal workday and workweek 21 ORDER - 19 1 without interruptions from psychologically based symptoms, and perform at a 2 consistent pace without an unreasonable number and length of rest periods. Tr. 3 297-98. 4 The ALJ gave some weight to Dr. Postovoit’s opinion. Because Dr. 5 Postovoit’s opinion was contradicted by another medical opinion,4 the ALJ was 6 required to provide specific and legitimate reasons for rejecting Dr. Postovoit’s 7 opinion. See Bayliss, 427 F.3d at 1216. 8 First, the ALJ discounted Dr. Postovoit’s opinion because Plaintiff’s daily 9 activities indicated that Plaintiff’s limitations were not as severe as assessed by Dr. 10 Postovoit. Tr. 29. An ALJ may discount a medical source opinion to the extent it 11 conflicts with the claimant’s daily activities. Morgan, 169 F.3d at 601-02. As 12 discussed above, Plaintiff’s daily activities as the primary caretaker for his toddler 13 daughter—and at-that-time soon for his son—conflicted with Dr. Postovoit’s 14 marked and moderate limitations. Tr. 47-53. The ALJ’s decision to discount Dr. 15 16 4 Dr. Postovoit’s opinion that Plaintiff was moderately limited in the ability to 17 complete a normal workday and workweek, Tr. 298, was contradicted by Dr. 18 Toews’ opinion that Plaintiff “evidence[d] no symptoms or medical problems that 19 would interfere with his ability to show up for work and to complete a full work 20 day or work week,” Tr. 282. 21 ORDER - 20 1 Postovoit’s opinion is a rational interpretation of the record and supported by 2 substantial evidence. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th 3 Cir. 2008). 4 Plaintiff contends the ALJ failed to give sufficient support to Dr. Postovoit’s 5 opinion that Plaintiff would have “some difficulty with complex tasks for a normal 6 work day/week with occasional interruptions from psychological symptoms.” ECF 7 No. 15 at 12 (citing Tr. 299 (spelling out abbreviations in original)). Plaintiff relies 8 on the “occasionally” definition in Program Operations Manual System (POMS) 9 Disability Index (DI) 25001.001. Id. However, POM DI 25001.001 uses 10 “occasionally” to explain a claimant’s exertional limits, i.e., whether claimant is 11 limited to sedentary work. There is no indication that Dr. Postovoit intended this 12 POMS DI 25001.001 “occasionally” definition to apply to her opinion about 13 Plaintiff’s nonexertional limitations. Likewise, there is no evidence indicating that 14 Dr. Postovoit considered Plaintiff’s potential to have “some difficulty with 15 complex tasks” to be of such severity that Plaintiff is unable to do any kind of 16 substantial gainful work, particularly since Dr. Postovoit found that Plaintiff could 17 manage simple routine tasks and execute detailed instructions. Tr. 299-300. 18 Moreover, contrary to Plaintiff’s position, Dr. Postovoit’s moderate 19 limitation in regard to Plaintiff’s ability to complete a normal work day/week was 20 reasonably included in the RFC by requiring a low stress, routine job with Plaintiff 21 ORDER - 21 1 controlling his workflow and few changes. See Stubbs-Danielson, 539 F.3d at 2 1174. This RFC is consistent with Dr. Postovoit’s opinion that Plaintiff is able to 3 understand and remember simple, routine tasks and execute detailed instructions 4 while limited in the ability to sustain attention and concentration while performing 5 complex tasks. The ALJ’s decision will be disturbed. See Hill, 698 F.3d at 1158. 6 7 B. Lay Witness Testimony Plaintiff challenges the ALJ’s treatment of statements provided by Mary 8 Jane Messer, Plaintiff’s grandmother. ECF No. 15 at 13-14 (citing Tr. 29-30). Ms. 9 Messer completed a Function Report in 2014, before Plaintiff’s daughter was born. 10 Tr. 216-23. Ms. Messer reported that Plaintiff managed his personal care, played 11 video games, swam, got on the internet, handled changes in routine well, and did 12 well with hands-on instructions. Tr. 220-22. Ms. Messer also reported that 13 Plaintiff suffers from anxiety (as he feels he is being judged), gets angry when he 14 does not understand, and sometimes loses concentration. Tr. 216, 218, 221-22. 15 Ms. Messer noted that she usually reminds Plaintiff about his appointments, 16 mentioning though that she does not often see Plaintiff now that he is an adult. Tr. 17 216, 220. 18 An ALJ must consider the testimony of lay witnesses in determining 19 whether a claimant is disabled. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 20 1050, 1053 (9th Cir. 2006). Lay witness testimony cannot establish the existence 21 ORDER - 22 1 of medically determinable impairments, but lay witness testimony is “competent 2 evidence” as to “how an impairment affects [a claimant's] ability to work.” Id.; 20 3 C.F.R. § 416.913; see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) 4 (“[F]riends and family members in a position to observe a claimant's symptoms 5 and daily activities are competent to testify as to her condition.”). If lay testimony 6 is rejected, the ALJ “‘must give reasons that are germane to each witness.’” 7 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill, 12 F.3d at 8 919). 9 10 1. Lack of Treatment The ALJ discounted Ms. Messer’s statements because it did not account for 11 how Plaintiff’s symptoms may be impacted by his complete lack of treatment as an 12 adult. Tr. 29. While lay witness testimony as to a claimant’s symptoms and 13 limitations is competent evidence, Nguyen, 100 F.3d at 1467, an ALJ may discount 14 the stated symptoms and limiting effects if the impairment would be effectively 15 controlled or mitigated by medication or treatment. Warre v. Comm’r of Soc. Sec. 16 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti, 533 F.3d at 1040. As 17 discussed below, Plaintiff has not received any mental health treatment as an adult. 18 As a result, the ALJ appropriately discounted Ms. Messer’s statements about 19 Plaintiff’s symptoms, particularly when Dr. Toews opined that Plaintiff could be 20 helped by cognitive behavioral therapy for anxiety and depression and was a good 21 ORDER - 23 1 candidate for vocational-planning and job-finding assistance. Tr. 281. This was a 2 germane reason supported by substantial evidence to discount Ms. Messer’s 3 testimony. 4 2. Nature of Relationship 5 The ALJ discounted Ms. Messer’s statements because Ms. Messer did not 6 routinely observe Plaintiff. Tr. 29. An ALJ may reject the testimony of a lay 7 witness who does not observe the claimant’s functional capacity. Valentine v. 8 Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Ms. Messer stated 9 that she did not spend much time with Plaintiff now that he is an adult. Tr. 216. 10 As a result, the ALJ appropriately discounted Ms. Messer’s statements discussing 11 Plaintiff’s limitations in regard to losing concentration and completing tasks. Ms. 12 Messer’s lack of first-hand knowledge as to Plaintiff’s observed symptoms was a 13 germane reason supported by substantial evidence to discount Ms. Messer’s 14 testimony. Moreover, even if the ALJ erred in discounting Ms. Messer’s 15 statements because her contact with Plaintiff was not in person, this error is 16 harmless where the ALJ listed additional germane reasons, supported by 17 substantial evidence, for discounting Ms. Messer’s testimony. See Carmickle v. 18 Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008); Molina, 674 19 F.3d at 1115. 20 21 ORDER - 24 1 3. Inconsistent with Plaintiff’s Activities 2 The ALJ discounted Ms. Messer’s statements about Plaintiff’s symptoms 3 because the reported symptoms were inconsistent with the activities she noted 4 Plaintiff performed. Tr. 29-30. Inconsistency with a claimant’s daily activities is a 5 germane reason to reject lay testimony. Carmickle, 533 F.3d at 1163-64; Lewis v. 6 Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ found that Ms. Messer’s reports 7 that Plaintiff’s symptoms of anxiety, anger, and limited concentration inconsistent 8 with his personal care, video-game playing, internet surfing, and swimming. Tr. 9 29-30. This was a germane reason supported by substantial evidence to discount 10 Ms. Messer’s testimony. Moreover, the ALJ found that Plaintiff’s activities, as 11 described by Ms. Messer, were consistent with the RFC. Tr. 30. The Court finds 12 the ALJ rationally interpreted the record and incorporated Plaintiff’s found 13 limitations into the RFC. See Stubbs-Danielson, 539 F.3d at 1174. The Court 14 upholds the ALJ’s conclusion. See Burch, 400 F.3d at 679. 15 4. Relied on Plaintiff’s Testimony, which is Inconsistent with the Medical Evidence 16 The ALJ discounted Ms. Messer’s statements because Ms. Messer relied on 17 Plaintiff’s subjective complaints rather than objective medical evidence. Tr. 29-30. 18 An ALJ may reject lay testimony that essentially reproduces the claimant’s 19 discounted testimony. Valentine, 574 F.3d at 694. Moreover, inconsistency with 20 the medical evidence is a germane reason for rejecting lay witness testimony. See 21 ORDER - 25 1 Bayliss, 427 F.3d at 1218; Lewis, 236 F.3d at 511-12. Here, because Ms. Messer’s 2 statements are similar to Plaintiff’s symptom testimony, and, as discussed below, 3 the ALJ properly discounted Plaintiff’s symptom testimony for several clear and 4 convincing reasons, including as being inconsistent with the objective medical 5 evidence, the ALJ need only point to the same reasons to discount this lay 6 testimony. Molina, 674 F.3d at 1114; Valentine, 574 F.3d at 694. This was a 7 germane reason to discount Ms. Messer’s testimony. 8 C. Plaintiff’s Symptom Claims 9 Plaintiff contends the ALJ failed to rely on clear and convincing reasons in 10 finding his symptom testimony not credible. ECF No. 15 at 16-20. 11 An ALJ engages in a two-step analysis to determine whether to discount a 12 claimant’s testimony regarding subjective symptoms. 5 SSR 16–3p, 2016 WL 13 14 5 At the time of the ALJ’s decision in July 2016, the regulation that governed the 15 evaluation of symptom claims was SSR 16-3p, which superseded SSR 96-7p 16 effective March 24, 2016. SSR 16-3p; Titles II and XVI: Evaluation of Symptoms 17 in Disability Claims, 81 Fed. Reg. 15776, 15776 (Mar. 24, 2016). The ALJ’s 18 decision did not cite SSR 16-3p, but cited SSR 96-4p, which was rescinded 19 effective June 14, 2018, in favor of the more comprehensive SSR 16-3p. Neither 20 party argued any error in this regard. 21 ORDER - 26 1 1119029, at *2. “First, the ALJ must determine whether there is objective medical 2 evidence of an underlying impairment which could reasonably be expected to 3 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation 4 marks omitted). “The claimant is not required to show that [his] impairment could 5 reasonably be expected to cause the severity of the symptom [he] has alleged; [he] 6 need only show that it could reasonably have caused some degree of the 7 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 8 Second, “[i]f the claimant meets the first test and there is no evidence of 9 malingering, the ALJ can only reject the claimant’s testimony about the severity of 10 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 11 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 12 omitted). General findings are insufficient; rather, the ALJ must identify what 13 symptom claims are being discounted and what evidence undermines these claims. 14 Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 15 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 16 symptom claims)). “The clear and convincing [evidence] standard is the most 17 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 18 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 19 924 (9th Cir. 2002)). 20 21 ORDER - 27 1 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of an individual’s symptoms include: 1) daily activities; 2) the location, 3 duration, frequency, and intensity of pain or other symptoms; 3) factors that 4 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or 6 other symptoms; 5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; 6) any measures other than treatment 8 an individual uses or has used to relieve pain or other symptoms; and 7) any other 9 factors concerning an individual’s functional limitations and restrictions due to 10 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 11 416.929 (c) (1)–(3). The ALJ is instructed to “consider all of the evidence in an 12 individual’s record,” “to determine how symptoms limit ability to perform work13 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 At step one of the analysis, the ALJ determined that Plaintiff’s medically 15 determinable impairments could reasonably be expected to cause some of the 16 alleged symptoms. Tr. 26. At step two, the ALJ discounted Plaintiff’s claims 17 concerning the intensity, persistence, and limiting effects of the symptoms of the 18 impairments as not consistent with medical evidence and other evidence in the 19 record. Id. 20 21 ORDER - 28 1 1. Lack of Treatment 2 The ALJ discounted Plaintiff’s symptom claims because he has had no 3 treatment and medication as an adult. Tr. 26-27. An unexplained, or inadequately 4 explained, failure to seek treatment or follow a prescribed course of treatment may 5 be considered when evaluating the claimant’s subjective symptoms. Orn v. Astrue, 6 495 F.3d 625, 638 (9th Cir. 2007). And evidence of a claimant’s self-limitation 7 and lack of motivation to seek treatment are appropriate considerations in 8 determining the credibility of a claimant’s subjective symptom reports. Osenbrock 9 v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 Fed. 10 App’x 45, *3 (9th Cir. 2009) (unpublished opinion) (considering why plaintiff was 11 not seeking treatment). When there is no evidence suggesting that the failure to 12 seek or participate in treatment is attributable to a mental impairment rather than a 13 personal preference, it is reasonable for the ALJ to conclude that the level or 14 frequency of treatment is inconsistent with the alleged severity of complaints. 15 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental 16 health treatment is partly due to a claimant’s mental health condition, it may be 17 inappropriate to consider a claimant’s lack of mental health treatment when 18 evaluating failure to participate in treatment. Nguyen, 100 F.3d at 1465. 19 Here, the ALJ noted that Plaintiff has had no mental health treatment since 20 his benefits ceased in 2013 when he became an adult. Tr. 26. The ALJ mentioned 21 ORDER - 29 1 that Plaintiff stated that he did not attend the scheduled mental-health exams 2 because he was concerned about his pregnant girlfriend using drugs and also that 3 he did not know how to get treatment. Tr. 26-27. Based on the entire record, the 4 ALJ’s decision to discount Plaintiff’s symptoms due to lack of treatment is a 5 rational decision. Plaintiff testified that he knows he needs mental health 6 treatment. Tr. 56. And there is no evidence that Plaintiff’s lack of treatment is due 7 to a lack of financial resources as Plaintiff has health insurance. Tr. 27, 46. The 8 record rationally supports a finding that Plaintiff’s lack of treatment is due to a lack 9 of motivation, rather than his mental-health impairments, because when Plaintiff is 10 motivated he follows through with appointments, see, e.g., Tr. 49 (following 11 through with court-ordered requirements to obtain custody of daughter); Tr. 52 12 (taking daughter to medical appointments). 13 2. Objective Medical Evidence 14 The ALJ found Plaintiff’s statements about the limiting extent of his 15 symptoms inconsistent with the medical evidence. Tr. 27. An ALJ may not 16 discount a claimant’s symptom testimony and deny benefits solely because the 17 degree of the symptoms alleged is not supported by objective medical evidence. 18 Rollins, 261 F.3d at 857; Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 19 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). But medical evidence is a 20 relevant factor in determining the severity of a claimant’s symptoms. Rollins, 261 21 ORDER - 30 1 F.3d at 857; 20 C.F.R. § 416.929(c)(2). The ALJ considered that Dr. Toews 2 reported that Plaintiff arrived promptly and independently to the appointment; was 3 personable, pleasant, and cooperative (although anxious and nervous); interacted 4 appropriately; and maintained good eye contact. Tr. 26 (citing Tr. 277-82). Here, 5 the ALJ recognized that Plaintiff had a poor fund of information but performed 6 well on the mental tests, noting that Plaintiff’s thinking was coherent and logical. 7 Id. The ALJ also noted that Plaintiff’s anxiety and obsessive compulsive disorder 8 were not so severe as to prevent him from obtaining medical treatment for a 9 shoulder problem in June 2015. Tr. 27 (citing Tr. 309 (“Psychiatric: Denies 10 depression, suicidal ideation,” and “Psychiatric: Affect normal, judgment normal, 11 mood normal”). Based on Dr. Toews’ observations and findings and the other 12 medical evidence, the ALJ rationally discounted the severity of Plaintiff’s 13 symptom claims, including his claim that he is unable to maintain a work day or 14 work week attendance because of his constant anxiousness. The ALJ’s decision 15 was supported by substantial evidence. 16 3. Daily Living Activities 17 The ALJ discounted Plaintiff’s symptom claims as inconsistent with his 18 activities of daily living. Tr. 27. A claimant’s reported activities can be evaluated 19 for consistency with reported symptoms. Orn, 495 F.3d at 639. “While a claimant 20 need not vegetate in a dark room in order to be eligible for benefits, the ALJ may 21 ORDER - 31 1 discredit a claimant’s testimony when the claimant reports participation in . . . 2 activities that “contradict claims of a totally debilitating impairment.” Molina, 674 3 F.3d at 1112-13 (internal citations omitted). The ability to care for others without 4 help has been considered an activity that may undermine claims of totally disabling 5 symptoms. Rollins, 261 F.3d at 857. For the reasons discussed above, the ALJ’s 6 finding that Plaintiff engaged in “hands on” parenting activities that were 7 inconsistent with his work-prohibiting symptom claims is a rational finding. See 8 Trevizo, 871 F.3d at 675-76. Plaintiff obtained and has primary custody of his 9 young toddler daughter. Tr. 49. Plaintiff changed his daughter’s diapers, bathed 10 her, dressed her, read to her, and took her to the park and doctor’s appointments. 11 Tr. 49, 54. There is substantial evidence to support the ALJ’s decision that 12 Plaintiff’s caretaking activities undermine Plaintiff’s claims of totally disabling 13 symptoms. 14 Plaintiff contends that he is only able to care for his daughter because he 15 receives assistance from his family. ECF No. 15 at 18-19. However, a claimant 16 need not care for a child without assistance in order for the ALJ to find that the 17 claimant’s reported symptoms are inconsistent with child-care activities. Rather, 18 the question is as identified above, whether the care activities, given their nature, 19 scope, and duration, contradict claims of a totally debilitating impairment. Trevizo, 20 871 F.3d at 675-76. Here, there is no evidence that Plaintiff’s family spent “day 21 ORDER - 32 1 and night” with Plaintiff to help him care for his daughter; instead, the record 2 reasonably reflects that Plaintiff’s care of his daughter contradicts his claim of a 3 totally debilitating mental impairment. Cf. id. The ALJ’s decision will not be 4 disturbed. 5 4. Inconsistent Statements 6 The ALJ also discounted Plaintiff’s symptom claims because his statements 7 regarding his schooling varied. Tr. 28. In evaluating a claimant’s symptom 8 claims, an ALJ may consider the consistency of an individual’s own statements 9 made in connection with the disability review process with any other existing 10 statements or conduct made under other circumstances. Smolen v. Chater, 80 F.3d 11 1273, 1284 (9th Cir. 1996) (The ALJ may consider “ordinary techniques of 12 credibility evaluation,” such as reputation for lying, prior inconsistent statements 13 concerning symptoms, and other testimony that “appears less than candid.”); 14 Thomas, 278 F.3d at 958-59. Here, the ALJ noted the varying answers provided 15 by Plaintiff regarding his schooling: 1) during the hearing, Plaintiff testified that he 16 dropped out of school in the eighth grade and never had special education services, 17 Tr. 41-42 (mentioning also that he later attended a juvenile school); 2) Plaintiff 18 reported to Dr. Toews that he dropped out of school in the ninth grade, Tr. 279; 19 and 3) in his disability application, Plaintiff reported he completed the tenth grade, 20 Tr. 191. The ALJ’s finding that Plaintiff offered inconsistent answers regarding 21 ORDER - 33 1 his schooling without any evidentiary explanation for these varying answers is 2 supported by substantial evidence. However, Plaintiff’s minor inconsistencies 3 regarding his schooling does not constitute a clear and convincing reason to 4 discredit his symptom claims. 5 Nevertheless, this error is harmless because, as discussed above, the ALJ 6 lists additional clear-and-convincing reasons, supported by substantial evidence, to 7 discount Plaintiff’s symptom claims. See Carmickle, 533 F.3d at 1162-63; Molina, 8 674 F.3d at 1115 (An ALJ’s error is “harmless where the ALJ provided one or 9 more invalid reasons for disbelieving a claimant’s testimony, but also provided 10 valid reasons that were supported by the record.”); Batson v. Comm’r of Soc. Sec. 11 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding that any error the ALJ 12 committed in asserting one impermissible reason for discounting the claimant’s 13 symptom claims did not negate the validity of the ALJ’s ultimate decision to 14 discount the claimant’s symptom claims). 15 5. Motivation to Work: Criminal History 16 The ALJ also noted that Plaintiff has a prior felony that may impact his 17 ability to obtain work, thereby undermining his claim that mental disorders are the 18 primary reason he is unable to work. Tr. 28. While a claimant’s efforts to work 19 are a factor for the ALJ to consider when evaluating the claimant’s symptom 20 claims, Thomas, 278 F.3d at 959, the Court finds the record does not offer 21 ORDER - 34 1 substantial evidence to support the ALJ’s decision to discount Plaintiff’s symptom 2 claims on account of his prior felony. There is no evidence that Plaintiff’s prior 3 felony impacted his ability to obtain work. In fact, it appears the sole time that 4 Plaintiff took steps to obtain work, Plaintiff was able to obtain employment, 5 reflecting that Plaintiff’s prior felony did not present an obstacle to employment. 6 Tr. 43. 7 Nevertheless, this error is harmless because the ALJ listed other clear-and- 8 convincing reasons, supported by substantial evidence, to discount Plaintiff’s 9 symptom claims. See Carmickle, 533 F.3d at 1162-63; Molina, 674 F.3d at 1115. 10 CONCLUSION 11 Having reviewed the record and the ALJ’s findings, the Court concludes the 12 ALJ’s decision is supported by substantial evidence and is free of harmful legal 13 error. Accordingly, IT IS HEREBY ORDERED: 14 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 15 /// 16 /// 17 /// 18 /// 19 /// 20 21 ORDER - 35 1 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 2 GRANTED. 3 3. JUDGMENT is to be entered in favor of Defendant. 4 The District Court Executive is directed to file this Order, provide copies to 5 counsel, and CLOSE THE FILE. 6 DATED October 12, 2018. 7 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 36
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
