Edler v. Kijakazi, No. 1:2020cv03183 - Document 20 (E.D. Wash. 2021)
Court Description: ORDER DENYING 16 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 18 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. File is CLOSED. Signed by Magistrate Judge Mary K. Dimke. (SG, Case Administrator)
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Edler v. Kijakazi Doc. 20 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Dec 10, 2021 2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 RHONDA E.,1 6 No. 1:20-cv-03183-MKD Plaintiff, 7 vs. 8 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL 9 SECURITY,2 10 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 16, 18 Defendant. 11 Before the Court are the parties’ cross-motions for summary judgment. ECF 12 Nos. 16, 18. The parties consented to proceed before a magistrate judge. ECF No. 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 2 ORDER - 1 Dockets.Justia.com 1 6. The Court, having reviewed the administrative record and the parties’ briefing, 2 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 3 motion, ECF No. 16, and grants Defendant’s motion, ECF No. 18. 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 6 1383(c)(3). 7 8 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 9 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 10 limited; the Commissioner’s decision will be disturbed “only if it is not supported 11 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 12 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 13 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 14 (quotation and citation omitted). Stated differently, substantial evidence equates to 15 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a 17 reviewing court must consider the entire record as a whole rather than searching 18 for supporting evidence in isolation. Id. 19 In reviewing a denial of benefits, a district court may not substitute its 20 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 2 ORDER - 2 1 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are 3 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 4 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 5 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 6 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 7 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 8 decision generally bears the burden of establishing that it was harmed. Shinseki v. 9 Sanders, 556 U.S. 396, 409-10 (2009). 10 11 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 12 the meaning of the Social Security Act. First, the claimant must be “unable to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which 15 has lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 17 impairment must be “of such severity that he is not only unable to do his previous 18 work[,] but cannot, considering his age, education, and work experience, engage in 19 any other kind of substantial gainful work which exists in the national economy.” 20 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 2 ORDER - 3 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. Id. 16 At step three, the Commissioner compares the claimant’s impairment to 17 severe impairments recognized by the Commissioner to be so severe as to preclude 18 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 19 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 20 2 ORDER - 4 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. Id. 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 ALJ’S FINDINGS 14 On November 8, 2017, Plaintiff applied for Title II disability insurance 15 benefits, and on March 22, 2018, filed an application for Title XVI supplemental 16 security income benefits; Plaintiff alleged a disability onset date of September 1, 17 18 19 20 2 ORDER - 6 1 2017 in both applications.3 Tr. 16, 85-86, 245-53, 255-63. The applications were 2 denied initially and on reconsideration. Tr. 157-65, 169-82. Plaintiff appeared 3 before an administrative law judge (ALJ) on February 27, 2020. Tr. 37-66. On 4 March 11, 2020, the ALJ denied Plaintiff’s claim. Tr. 13-34. 5 At step one of the sequential evaluation process, the ALJ found Plaintiff, 6 who met the insured status requirements through December 31, 2022, has not 7 engaged in substantial gainful activity since September 1, 2017. Tr. 19. At step 8 two, the ALJ found that Plaintiff has the following severe impairments: 9 degenerative disc disease of the lumbar and cervical spine, carpal tunnel syndrome 10 (CTS), fibromyalgia, affective disorder, and anxiety. Id. 11 At step three, the ALJ found Plaintiff does not have an impairment or 12 combination of impairments that meets or medically equals the severity of a listed 13 impairment. Id. The ALJ then concluded that Plaintiff has the RFC to perform 14 light work with the following limitations: 15 [Plaintiff] must avoid concentrated exposure to temperature extremes and pulmonary irritants. She can frequently handle and finger. She can follow simple one- to three-step instructions. She can have superficial interactions with others. 16 17 18 3 Plaintiff previously applied for Social Security Disability benefits on September 19 4, 2009; the application resulted in a November 9, 2011 dismissal, which was not 20 appealed. Tr. 74, 77. 2 ORDER - 7 1 Tr. 21. 2 At step four, the ALJ found Plaintiff is unable to perform any of her past 3 relevant work. Tr. 27. At step five, the ALJ found that, considering Plaintiff’s 4 age, education, work experience, RFC, and testimony from the vocational expert, 5 there were jobs that existed in significant numbers in the national economy that 6 Plaintiff could perform, such as, marker, production assembler, and cleaner, 7 housekeeper. Tr. 28. Therefore, the ALJ concluded Plaintiff was not under a 8 disability, as defined in the Social Security Act, from the alleged onset date of 9 September 1, 2017, through the date of the decision. Tr. 29. 10 On September 1, 2020, the Appeals Council denied review of the ALJ’s 11 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 12 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 13 14 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 15 her disability insurance benefits under Title II and supplemental security income 16 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 17 issues for review: 18 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 19 2. Whether the ALJ properly evaluated the medical opinion evidence. 20 ECF No. 16 at 2. 2 ORDER - 8 1 2 3 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 4 convincing in discrediting her symptom claims. ECF No. 16 at 9-14. An ALJ 5 engages in a two-step analysis to determine whether to discount a claimant’s 6 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 7 “First, the ALJ must determine whether there is objective medical evidence of an 8 underlying impairment which could reasonably be expected to produce the pain or 9 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 10 “The claimant is not required to show that [the claimant’s] impairment could 11 reasonably be expected to cause the severity of the symptom [the claimant] has 12 alleged; [the claimant] need only show that it could reasonably have caused some 13 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 14 Second, “[i]f the claimant meets the first test and there is no evidence of 15 malingering, the ALJ can only reject the claimant’s testimony about the severity of 16 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 17 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 18 omitted). General findings are insufficient; rather, the ALJ must identify what 19 symptom claims are being discounted and what evidence undermines these claims. 20 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 2 ORDER - 9 1 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 2 explain why it discounted claimant’s symptom claims)). “The clear and 3 convincing [evidence] standard is the most demanding required in Social Security 4 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 5 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 Factors to be considered in evaluating the intensity, persistence, and limiting 7 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 8 duration, frequency, and intensity of pain or other symptoms; 3) factors that 9 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 10 side effects of any medication an individual takes or has taken to alleviate pain or 11 other symptoms; 5) treatment, other than medication, an individual receives or has 12 received for relief of pain or other symptoms; 6) any measures other than treatment 13 an individual uses or has used to relieve pain or other symptoms; and 7) any other 14 factors concerning an individual’s functional limitations and restrictions due to 15 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 16 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 17 an individual’s record,” to “determine how symptoms limit ability to perform 18 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 19 The ALJ found that Plaintiff’s medically determinable impairments could 20 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s 2 ORDER - 10 1 statements concerning the intensity, persistence, and limiting effects of her 2 symptoms were not entirely consistent with the evidence. Tr. 22. 3 1. Objective Medical Evidence 4 The ALJ found Plaintiff’s symptom complaints were inconsistent with the 5 objective medical evidence. Tr. 22-24. An ALJ may not discredit a claimant’s 6 symptom testimony and deny benefits solely because the degree of the symptoms 7 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 8 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 9 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 10 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a 11 relevant factor, along with the medical source’s information about the claimant’s 12 pain or other symptoms, in determining the severity of a claimant’s symptoms and 13 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 14 416.929(c)(2). Mental status examinations are objective measures of an 15 individual’s mental health. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). 16 First, the ALJ found Plaintiff’s allegations of disabling physical limitations 17 were inconsistent with the objective evidence. Tr. 23. While Plaintiff had some 18 abnormalities on examination, including tenderness of the neck and back, a 19 positive straight leg raise test, and positive fibromyalgia tender points, Plaintiff 20 also had normal range of motion, sensation, strength, sensation, and gait at 2 ORDER - 11 1 multiple examinations. Id. (citing, e.g., Tr. 407, 414, 421, 446-47, 458, 682, 691, 2 718). Plaintiff had negative straight leg raise tests and negative Romberg’s at two 3 examinations. Tr. 447, 488, 518, 682. Regarding her carpal tunnel syndrome, 4 Plaintiff had some abnormal examination findings prior to her surgery, as well as 5 several normal findings including negative Hoffman’s and Tinel’s, and normal 6 sensation and full strength, Tr. 23 (citing Tr. 446-47, 458), and after her surgery, 7 Plaintiff had marked improvement, including acceptable range of motion, Tr. 23 8 (citing Tr. 576-77, 580, 585, 587). While Plaintiff complained of ongoing pain, the 9 ALJ noted Plaintiff did not report pain at many appointments and did not take any 10 medication for her pain for approximately one year. Tr. 23, 766-67, 772. As 11 discussed further infra, Ms. Gindt noted Plaintiff was not receiving any treatment 12 for her pain at the time Ms. Gindt rendered her opinion. Tr. 619. 13 Second, the ALJ found Plaintiff’s allegations of disabling mental health 14 symptoms were inconsistent with the objective evidence. Tr. 24. Plaintiff 15 generally had normal mental status examinations, in which she was noted as 16 cooperative, pleasant, well-groomed, alert and oriented, with normal mood, affect, 17 speech, judgment/insight, attention, concentration, memory, and fund of 18 knowledge. Id., 371, 407, 421, 455-56, 557, 560, 564. Plaintiff’s screens for 19 depression were generally negative or mild. Tr. 24 (citing Tr. 677, 767, 779). 20 Although there are some abnormalities, such as Plaintiff’s mood/affect being 2 ORDER - 12 1 described as angry, anxious, agitated, and depressed, she had normal speech, 2 thoughts, insight, judgment, attention, and concentration even when her 3 mood/affect were abnormal. Tr. 536, 454-55. 4 Plaintiff offers an alternative interpretation of the evidence and argues the 5 objective evidence is consistent with her symptom claims. ECF No. 16 at 12. 6 However, the Court must consider the ALJ’s decision in the context of “the entire 7 record as a whole,” and if the “evidence is susceptible to more than one rational 8 interpretation, the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 9 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks omitted). The 10 ALJ’s finding that Plaintiff’s symptom claims were inconsistent with the objective 11 evidence is supported by substantial evidence. This was a clear and convincing 12 reason, along with the other reasons offered, to discount Plaintiff’s symptom 13 complaints. 14 2. Improvement with Treatment 15 The ALJ found Plaintiff’s symptom allegations were inconsistent with her 16 improvement with treatment. Tr. 23-24. The effectiveness of treatment is a 17 relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. §§ 18 404.1529(c)(3), 416.913(c)(3); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 19 1001, 1006 (9th Cir. 2006); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 20 2 ORDER - 13 1 2008) (a favorable response to treatment can undermine a claimant’s complaints of 2 debilitating pain or other severe limitations). 3 Regarding Plaintiff’s physical impairments, the ALJ noted that Plaintiff had 4 improvement in her pain, numbness, and tingling symptoms with treatment. Tr. 5 23. Plaintiff reported ongoing pain after her carpal tunnel surgery, but she reported 6 resolution of her numbness and tingling. Tr. 23 (citing Tr. 713-714, 779). Plaintiff 7 indicated good pain control with only one hydrocodone tablet per day and told 8 providers she was happy with the postsurgical outcome. Tr. 23 (citing Tr. 592, 9 779). Providers noted Plaintiff was doing well with marked improvement and 10 acceptable range of motion. Tr. 23 (citing Tr. 576-577, 580, 585, 587, 697-700). 11 The ALJ also found Plaintiff had improvement in her mental health 12 symptoms with treatment. Tr. 24. Plaintiff reported improvement with counseling, 13 support groups, and medication. Id. (citing Tr. 759, 767, 779). Plaintiff reported 14 that her “lows” were not as severe, and she was able to work through issues with 15 her family. Tr. 24 (citing Tr. 739, 759). Counseling notes also indicate Plaintiff 16 was not on mental health medications for over a year, which the ALJ found 17 indicates she was able to manage her symptoms with counseling alone. Tr. 24 18 (citing, e.g., Tr. 726, 730, 732, 734, 767). 19 Plaintiff argues the ALJ erred because she had ongoing symptoms related to 20 her carpal tunnel syndrome, despite surgery, but does not challenge the remainder 2 ORDER - 14 1 of the ALJ’s assessment that Plaintiff had improvement with treatment. ECF No. 2 16 at 10-11. On this record, the ALJ reasonably found Plaintiff’s impairments, 3 when treated, were not as severe as Plaintiff alleged. This was a clear and 4 convincing reason, supported by substantial evidence, to reject Plaintiff’s symptom 5 claims. 6 3. Situational Stressors 7 The ALJ found a situational component to Plaintiff’s mental health 8 symptoms. Tr. 24. An ALJ may reasonably find a claimant’s symptom testimony 9 less credible where the evidence “squarely support[s]” a finding that the claimant’s 10 impairments are attributable to situational stressors rather than impairments. 11 Wright v. Colvin, No. 13-CV-3068-TOR, 2014 WL 3729142, at *5 (E.D. Wash. 12 July 25, 2014) (“Plaintiff testified that she would likely be able to maintain full13 time employment but for the ‘overwhelming’ stress caused by caring for her family 14 members”). However, “because mental health conditions may presumably cause 15 strained personal relations or other life stressors, the Court is not inclined to opine 16 that one has caused the other based only on the fact that they occur 17 simultaneously.” Brendan J. G. v. Comm’r, Soc. Sec. Admin., No. 6:17-CV-74218 SI, 2018 WL 3090200, at *7 (D. Or. June 20, 2018) (emphasis in original). 19 The ALJ identified Plaintiff’s family dynamic, loss, financial constraints, 20 and housing instability as situational stressors. Tr. 24 (citing Tr. 722, 727, 743, 2 ORDER - 15 1 751, 753, 761, 767). However, Plaintiff’s situational stressors are not clearly 2 separable from Plaintiff’s mental impairments. Unlike prior cases in this district, 3 where the record clearly contained evidence that the claimant would have been 4 capable of working but for the presence of a specific situational stressor, here 5 Plaintiff’s impairments and situational stressors are more complex and intertwined. 6 See Wright, 2014 WL 3729142, at *5. Any error is harmless because the ALJ 7 identified other clear and convincing reasons to discount Plaintiff’s symptom 8 claims. See Molina, 674 F.3d at 1115. 9 10 4. Activities of Daily Living The ALJ found Plaintiff’s symptom claims were inconsistent with her 11 activities of daily living. Tr. 25. The ALJ may consider a claimant’s activities that 12 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a 13 substantial part of the day engaged in pursuits involving the performance of 14 exertional or non-exertional functions, the ALJ may find these activities 15 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 16 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 17 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 18 the claimant reports participation in everyday activities indicating capacities that 19 are transferable to a work setting” or when activities “contradict claims of a totally 20 debilitating impairment.” Molina, 674 F.3d at 1112-13. 2 ORDER - 16 1 While Plaintiff reported to the consultative examiner that she has difficulties 2 with daily tasks, the ALJ noted Plaintiff reported at other appointments that she 3 was able to bathe, dress herself, prepare food, read, watch television, work on a 4 computer, care for a dog, help her sister with housework, and go places, including 5 shopping. Tr. 25 (citing Tr. 444, 455, 776). In 2018 and 2019, Plaintiff was noted 6 as unemployed and looking for work. Tr. 770, 776, 779. Plaintiff is able to drive, 7 and reported she had been busy, went camping, and reported working in May 8 2019. Tr. 25 (Tr. 443-44, 732, 744-45, 757). Plaintiff reported attending church, 9 visiting a friend once per week, and attending a graduation. Tr. 455. Plaintiff also 10 reported not needing reminders or help with personal care, to take her medication, 11 or to go places, she can handle money/bills, and she has no difficulty with memory, 12 concentration, following instructions, and getting along with others, although she 13 also wrote she has some difficulties with memory and instructions. Tr. 349-52. 14 Plaintiff contends the ALJ erred because her activities are not inconsistent with her 15 allegations, as the cited activities primarily take place in her home. ECF No. 16 at 16 13-14. However, the ALJ pointed to multiple activities that took place outside of 17 Plaintiff’s home. Further, any error in the ALJ’s consideration of Plaintiff’s 18 symptom claims is harmless as the ALJ gave other clear and convincing reasons, 19 supported by substantial evidence, to reject Plaintiff’s symptom claims. See 20 Molina, 674 F.3d at 1115. Plaintiff is not entitled to remand on these grounds. 2 ORDER - 17 1 2 B. Medical Opinion Evidence Plaintiff contends the ALJ erred by rejecting the medical opinions of 3 Jennifer Gindt, ARNP, and Patrick Metoyer, Ph.D. ECF No. 16 at 14-21. 4 As an initial matter, for claims filed on or after March 27, 2017, new 5 regulations apply that change the framework for how an ALJ must evaluate 6 medical opinion evidence. Revisions to Rules Regarding the Evaluation of 7 Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 8 C.F.R. §§ 404.1520c, 416.920c. The new regulations provide that the ALJ will no 9 longer “give any specific evidentiary weight…to any medical 10 opinion(s)…” Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 586711 68; see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ must consider 12 and evaluate the persuasiveness of all medical opinions or prior administrative 13 medical findings from medical sources. 20 C.F.R. §§ 404.1520c(a) and (b), 14 416.920c(a) and (b). The factors for evaluating the persuasiveness of medical 15 opinions and prior administrative medical findings include supportability, 16 consistency, relationship with the claimant (including length of the treatment, 17 frequency of examinations, purpose of the treatment, extent of the treatment, and 18 the existence of an examination), specialization, and “other factors that tend to 19 support or contradict a medical opinion or prior administrative medical finding” 20 (including, but not limited to, “evidence showing a medical source has familiarity 2 ORDER - 18 1 with the other evidence in the claim or an understanding of our disability 2 program’s policies and evidentiary requirements”). 20 C.F.R. §§ 404.1520c(c)(1)3 (5), 416.920c(c)(1)-(5). 4 Supportability and consistency are the most important factors, and therefore 5 the ALJ is required to explain how both factors were considered. 20 C.F.R. §§ 6 404.1520c(b)(2), 416.920c(b)(2). Supportability and consistency are explained in 7 the regulations: 8 9 10 11 12 13 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 14 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not 15 required to, explain how the other factors were considered. 20 C.F.R. §§ 16 404.1520c(b)(2), 416.920c(b)(2). However, when two or more medical opinions 17 or prior administrative findings “about the same issue are both equally well18 supported ... and consistent with the record ... but are not exactly the same,” the 19 ALJ is required to explain how “the other most persuasive factors in paragraphs 20 2 ORDER - 19 1 (c)(3) through (c)(5)” were considered. 20 C.F.R. §§ 404.1520c(b)(3), 2 416.920c(b)(3). 3 The parties disagree over whether Ninth Circuit case law continues to be 4 controlling in light of the amended regulations, specifically whether the “clear and 5 convincing” and “specific and legitimate” standards still apply. ECF No. 16 at 156 16; ECF No. 18 at 11-14. “It remains to be seen whether the new regulations will 7 meaningfully change how the Ninth Circuit determines the adequacy of [an] ALJ’s 8 reasoning and whether the Ninth Circuit will continue to require that an ALJ 9 provide ‘clear and convincing’ or ‘specific and legitimate reasons’ in the analysis 10 of medical opinions, or some variation of those standards.” Gary T. v. Saul, No. 11 EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 12 2020) (citing Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *3 13 (W.D. Wash. Apr. 9, 2020)). “Nevertheless, the Court is mindful that it must defer 14 to the new regulations, even where they conflict with prior judicial precedent, 15 unless the prior judicial construction ‘follows from the unambiguous terms of the 16 statute and thus leaves no room for agency discretion.’” Gary T., 2020 WL 17 3510871, at *3 (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet 18 Services, 545 U.S. 967, 981-82 (2005); Schisler v. Sullivan, 3 F.3d 563, 567-58 (2d 19 Cir. 1993) (“New regulations at variance with prior judicial precedents are upheld 20 2 ORDER - 20 1 unless ‘they exceeded the Secretary’s authority [or] are arbitrary and 2 capricious.’”). 3 There is not a consensus among the district courts as to whether the “clear 4 and convincing” and “specific and legitimate” standards continue to apply. See, 5 e.g., Kathleen G. v. Comm'r of Soc. Sec., 2020 WL 6581012, at *3 (W.D. Wash. 6 Nov. 10, 2020) (applying the specific and legitimate standard under the new 7 regulations); Timothy Mitchell B., v. Kijakazi, 2021 WL 3568209, at *5 (C.D. Cal. 8 Aug. 11, 2021) (stating the court defers to the new regulations); Agans v. Saul, 9 2021 WL 1388610, at *7 (E.D. Cal. Apr. 13, 2021) (concluding that the new 10 regulations displace the treating physician rule and the new regulations control); 11 Madison L. v. Kijakazi, No. 20-CV-06417-TSH, 2021 WL 3885949, at *4-6 (N.D. 12 Cal. Aug. 31, 2021) (applying only the new regulations and not the specific and 13 legitimate nor clear and convincing standard). For the sake of consistency in this 14 District, the Court adopts the rationale and holding articulated on the issue in 15 Emilie K. v. Saul, No. 2:20-cv-00079-SMJ, 2021 WL 864869, *3-4 (E.D. Wash. 16 Mar. 8, 2021), appeal docketed, No. 21-35360 (9th Cir. May 10, 2021). In Emilie 17 K., this Court held that the ALJ did not err in applying the new regulations over 18 Ninth Circuit precedent, because the result did not contravene the Administrative 19 Procedure Act’s requirement that decisions include a statement of “findings and 20 conclusions, and the reasons or basis therefor, on all the material issues of fact, 2 ORDER - 21 1 law, or discretion presented on the record.” Id. at *4 (citing 5 U.S.C. § 557(c)(A)). 2 This rationale has been adopted in other cases with this Court. See, e.g., Jeremiah 3 F. v. Kijakazi, No. 2:20-CV-00367-SAB, 2021 WL 4071863, at *5 (E.D. Wash. 4 Sept. 7, 2021). Nevertheless, it is not clear that the Court’s analysis in this matter 5 would differ in any significant respect under the specific and legitimate standard 6 set forth in Lester, 81 F.3d at 830-31. 7 1. Ms. Gindt 8 On August 27, 2019, Ms. Gindt, a treating nurse practitioner, rendered an 9 opinion on Plaintiff’s functioning. Tr. 619-21. Ms. Gindt diagnosed Plaintiff with 10 fibromyalgia, major depressive disorder, hypertension, and positive rheumatoid 11 factor. Tr. 619. She opined Plaintiff would miss four or more days per month if 12 she tried to work full-time, Plaintiff is limited to sedentary work, and Plaintiff can 13 occasionally handle and never reach bilaterally. Tr. 619-21. The ALJ found Ms. 14 Gindt’s opinion was not persuasive. Tr. 26. 15 First, the ALJ found Ms. Gindt’s opinion lacks citations to objective medical 16 evidence and any specific rationale for the opinion. Id. Supportability is one of 17 the most important factors an ALJ must consider when determining how 18 persuasive a medical opinion is. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 19 The more relevant objective evidence and supporting explanations that support a 20 medical opinion, the more persuasive the medical opinion is. 20 C.F.R. §§ 2 ORDER - 22 1 404.1520c(c)(1), 416.920c(c)(1). Ms. Gindt stated Plaintiff’s pain and depression 2 issues would cause her to miss four or more days per month, and listed Plaintiff’s 3 diagnoses and symptoms. Tr. 619-20. The only clinical signs Ms. Gindt listed 4 were labile mood, anxiety, and recent weight loss, and she stated Plaintiff was not 5 currently receiving any treatment for pain, though she had a referral to pain 6 management. Tr. 619. The questionnaire does not contain any citations to records, 7 clinical signs related to physical limitations, nor an explanation for the limitations 8 to sedentary work or manipulative limitations beyond stating that Plaintiff has 9 pain. Tr. 619-21. The ALJ’s finding that Ms. Gindt’s opinion lacks supporting 10 explanation and citations is supported by substantial evidence. 11 Second, the ALJ found Ms. Gindt’s opinion was internally inconsistent, as 12 the opinion states Plaintiff is limited by her pain, yet she is not on pain medication. 13 Tr. 26. The more relevant supporting explanations that support a medical opinion, 14 the more persuasive the medical opinion is. 20 C.F.R. §§ 404.1520c(c)(1), 15 416.920c(c)(1). Plaintiff contends the opinion is not internally inconsistent, 16 because pain medications were deemed to not be appropriate for treating Plaintiff’s 17 fibromyalgia, and Plaintiff did not have access to pain medications from her 18 primary care physician to treat her other conditions, due to violating her pain 19 contract. ECF No. 16 at 18 (citing Tr. 481, 535, 715). Plaintiff was not receiving 20 any treatment for her pain at the time of Ms. Gindt’s opinion. Tr. 619. However, 2 ORDER - 23 1 the ALJ did not consider Plaintiff’s lack of any treatment for her pain, but rather 2 only found an inconsistency between Ms. Gindt’s opinion and Plaintiff’s lack of 3 pain medication. Tr. 26. Plaintiff’s medical records note that fibromyalgia is 4 “typically not very responsive to other types of opioids long-term,” and Plaintiff 5 did not have much benefit from tramadol. Tr. 481. As such, a lack of treatment by 6 pain medication is not inconsistent with Ms. Gindt’s opinion. However, this error 7 is harmless as the ALJ gave other supported reasons to reject the opinion. See 8 Molina, 674 F.3d at 1115. 9 Third, the ALJ found Ms. Gindt’s opinion was inconsistent with the 10 objective medical evidence from other sources. Tr. 26-27. Consistency is one of 11 the most important factors an ALJ must consider when determining how 12 persuasive a medical opinion is. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 13 The more consistent an opinion is with the evidence from other sources, the more 14 persuasive the opinion is. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The ALJ 15 noted Plaintiff’s physical examinations were generally normal. Tr. 27. The ALJ 16 found Plaintiff had some abnormalities on examination, such as positive 17 fibromyalgia tender points, Tr. 23 (citing Tr. 714), however Plaintiff generally had 18 normal range of motion, sensation, strength, gait, and motor functioning, Tr. 23 19 (citing, e.g., Tr. 407, 414, 421, 446-47, 458). 20 2 ORDER - 24 1 Plaintiff offers an alternative interpretation of the evidence and argues Ms. 2 Gindt’s opinion is consistent with the records that demonstrate Plaintiff had an 3 antalgic gait, reduced strength and tone, a positive straight leg raise, and imaging 4 documenting abnormalities. ECF No. 16 at 19 (citing Tr. 449, 488, 515-16, 545). 5 Plaintiff also had a normal gait, strength, and tone, and negative straight leg raise 6 tests at multiple examinations. Tr. 447, 518-19, 523, 536, 557, 682, 714, 768, 771. 7 While Plaintiff disagrees with the ALJ’s interpretation of the evidence, the Court 8 may not reverse the ALJ’s decision based on Plaintiff’s disagreement with the 9 ALJ’s interpretation of the record. See Tommasetti, 533 F.3d at 1038 (“[W]hen the 10 evidence is susceptible to more than one rational interpretation” the court will not 11 reverse the ALJ’s decision). The ALJ’s finding that Ms. Gindt’s opinion is 12 inconsistent with the objective evidence is supported by substantial evidence. 13 2. Dr. Metoyer 14 On June 23, 2018, Dr. Metoyer conducted a psychological consultative 15 examination and rendered an opinion on Plaintiff’s functioning. Tr. 452-56. Dr. 16 Metoyer diagnosed Plaintiff with panic disorder and major depressive disorder, 17 recurrent moderate. Tr. 455. Dr. Metoyer opined Plaintiff’s remote memory is 18 mildly impaired; her ability to interact with coworkers and the public is likely 19 mildly impaired; her ability to maintain regular attendance in the workplace is 20 mildly to moderately impaired; and her ability to deal with the usual stress 2 ORDER - 25 1 encountered in the workplace is mildly to moderately impaired if it involves 2 persistent activity, complex tasks, task pressure, or interacting with others. Tr. 3 455-56. The ALJ found Dr. Metoyer’s opinion was less persuasive than the State 4 agency opinions. Tr. 27. 5 The ALJ found Dr. Metoyer’s opinion did not define mild or moderate in 6 terms of vocationally specific limitations that reflect the most Plaintiff is capable 7 of mentally performing. Id. The more relevant supporting explanations that 8 support a medical opinion, the more persuasive the medical opinion is. 20 C.F.R. 9 §§ 404.1520c(c)(1), 416.920c(c)(1). Furthermore, an ALJ may reject an opinion 10 that does “not show how [a claimant’s] symptoms translate into specific functional 11 deficits which preclude work activity.” See Morgan v. Comm’r of Soc. Sec. 12 Admin., 169 F.3d 595, 601 (9th Cir. 1999). 13 Dr. Metoyer opined that Plaintiff was “likely” mildly impaired in one area of 14 functioning, and mildly to moderately impaired in multiple areas. Tr. 455-56. 15 However, the ALJ did not set forth an explanation as to how the entirety of Dr. 16 Metoyer’s opinion does not reflect the most Plaintiff is capable of performing, and 17 mild and moderate limitations are clearly defined limitations. Tr. 27, see 20 C.F.R. 18 §§ 404.1520a(c)(4), 416.920a(c)(4). Any error in rejecting Dr. Metoyer’s opinion 19 as not reflecting the most Plaintiff can do in terms of vocationally specific 20 limitations is harmless, for the reasons discussed infra. 2 ORDER - 26 1 Second, the ALJ found the State agency consultants’ opinions were more 2 persuasive than Dr. Metoyer’s opinion. Tr. 27. Consistency is one of the most 3 important factors an ALJ must consider when determining how persuasive a 4 medical opinion is. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The more 5 consistent an opinion is with the evidence from other sources, the more persuasive 6 the opinion is. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The State agency 7 consultants, Dr. Horn and Dr. Lewis, opined Plaintiff has moderate limitations in 8 her ability to carry out detailed instructions, maintain attention/concentration for 9 extended periods, and interact appropriate with the general public; Plaintiff’s 10 symptoms would be expected to cause some periods of slowed pace and lapses in 11 concentration on more complex/detailed tasks, but she could carry out simple one 12 to three-step instructions, maintain concentration, persistence, and pace for up to 13 two hours continuously, and maintain adequate attendance; she could have 14 superficial social interactions with others and accept supervision; and she 15 otherwise did not have limitations due to her mental health symptoms. Tr. 27, 9816 99, 133-35. 17 The ALJ found the State agency consultants’ opinions were more consistent 18 with the record than Dr. Metoyer’s opinion. Tr. 27. The ALJ noted Dr. Horn and 19 Dr. Lewis had the opportunity to review a significant portion of the record, they 20 cited to evidence to support their opinions, and their opinions were generally 2 ORDER - 27 1 consistent with the record. Id. The ALJ noted Plaintiff’s treatment records 2 generally documented normal mood, affect, speech, judgment, insight, attention, 3 concentration, memory, and fund of knowledge. Tr. 24 (citing, e.g., Tr. 407, 4554 56, 557, 560, 564). Plaintiff also reported improvement with treatment. Tr. 24 5 (citing, e.g., Tr. 759, 767). The ALJ reasonably found the State agency 6 consultants’ opinions were more persuasive than Dr. Metoyer’s opinion. 7 Further, any error in rejecting Dr. Metoyer’s opinion is harmless, as Plaintiff 8 has not demonstrated any harm in the rejection of the opinion. Dr. Metoyer opined 9 that Plaintiff has only mild to moderate limitations. Tr. 455-56. Plaintiff argues 10 Dr. Metoyer’s opinion supports a conclusion that Plaintiff would have more than 11 six absences per year and would be off task more than 10 percent of the time. ECF 12 No. 16 at 20. However, Plaintiff’s argument is not supported by Dr. Metoyer’s 13 opinion that Plaintiff has only mild to moderate limitations in her ability to 14 maintain attendance, and his opinion that Plaintiff’s concentration/persistence is 15 adequate. Tr. 455-56. The State agency consultants found Dr. Metoyer’s opinion 16 was supported by the evidence and consistent with record, and found the opinion 17 was not disabling, as they incorporated some of the mild to moderate limitations 18 into the RFC and found Plaintiff was not disabled. Tr. 96-101, 131-36. Further, 19 marked and extreme limitations are typically disabling limitations, while mild and 20 moderate limitations are typically not disabling. See 20 C.F.R. §§ 404.1520a(c)(4), 2 ORDER - 28 1 (d)(1), 416.920a(c)(4), (d)(1); 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00F2. As 2 such, any error in rejecting Dr. Metoyer’s opinion is harmless. Plaintiff is not 3 entitled to remand on these grounds. 4 5 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 6 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 9 Defendant and update the docket sheet. 10 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 11 3. Defendant’s Motion for Summary Judgment, ECF No. 18, is 12 GRANTED. 13 4. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 14 The District Court Executive is directed to file this Order, provide copies to 15 counsel, and CLOSE THE FILE. 16 DATED December 10, 2021. 17 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 18 19 20 2 ORDER - 29
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