Knudson v. Commissioner of Social Security, No. 2:2017cv00278 - Document 14 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 - denying 11 Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (VR, Courtroom Deputy)
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Knudson v. Commissioner of Social Security Doc. 14 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jul 30, 2018 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 KARLYN L. K., 8 Plaintiff, 9 v. 10 11 12 13 14 15 16 17 18 19 20 COMMISSIONER OF SOCIAL SECURITY, No. 2:17-CV-00278-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 11, 12. Plaintiff brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C §§ 1381-1383F. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 I. Jurisdiction Plaintiff filed her application for supplemental security income on February 3 11, 2014. AR 175-80. Her alleged onset date is September 26, 2012. AR 41. Her 4 application was initially denied on May 29, 2014, AR 82, and on reconsideration 5 on August 26, 2014, AR 93. 6 Administrative Law Judge (“ALJ”) Marie Palachuk held a hearing on May 7 5, 2016. AR 37-69. On June 2, 2016, ALJ Palachuk issued a decision finding 8 Plaintiff ineligible for disability benefits. AR 20-32. The Appeals Council denied 9 Plaintiff’s request for review on June 13, 2017, AR 1-5, making the ALJ’s ruling 10 11 the “final decision” of the Commissioner. Plaintiff timely filed the present action challenging the denial of benefits on 12 August 11, 2017. ECF No. 1. Accordingly, her claims are properly before this 13 Court pursuant to 42 U.S.C. § 405(g). 14 15 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or 18 can be expected to last for a continuous period of not less than twelve months.” 42 19 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 20 under a disability only if the claimant’s impairments are of such severity that the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 claimant is not only unable to do his previous work, but cannot, considering 2 claimant's age, education, and work experience, engage in any other substantial 3 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 4 1382c(a)(3)(B). 5 The Commissioner has established a five-step sequential evaluation process 6 for determining whether a claimant is disabled within the meaning of the Social 7 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 8 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 9 Step one inquires whether the claimant is presently engaged in “substantial 10 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 11 activity is defined as significant physical or mental activities done or usually done 12 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 13 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 14 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 15 Step two asks whether the claimant has a severe impairment, or combination 16 of impairments, that significantly limits the claimant’s physical or mental ability to 17 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 18 impairment is one that has lasted or is expected to last for at least twelve months, 19 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 20 416.908-09. If the claimant does not have a severe impairment, or combination of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 impairments, the disability claim is denied, and no further evaluative steps are 2 required. Otherwise, the evaluation proceeds to the third step. 3 Step three involves a determination of whether any of the claimant’s severe 4 impairments “meets or equals” one of the listed impairments acknowledged by the 5 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 6 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 7 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 8 equals one of the listed impairments, the claimant is per se disabled and qualifies 9 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 10 11 the fourth step. Step four examines whether the claimant’s residual functional capacity 12 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 13 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 14 is not entitled to disability benefits and the inquiry ends. Id. 15 Step five shifts the burden to the Commissioner to prove that the claimant is 16 able to perform other work in the national economy, taking into account the 17 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 18 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 19 burden, the Commissioner must establish that (1) the claimant is capable of 20 performing other work; and (2) such work exists in “significant numbers in the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 2 676 F.3d 1203, 1206 (9th Cir. 2012). 3 4 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 5 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 6 Commissioner's decision will be disturbed “only if it is not supported by 7 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 8 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 9 a mere scintilla but less than a preponderance; it is such relevant evidence as a 10 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 11 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 12 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 13 whether the Commissioner’s findings are supported by substantial evidence, “a 14 reviewing court must consider the entire record as a whole and may not affirm 15 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 16 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 17 F.2d 498, 501 (9th Cir. 1989)). 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 20 1992). If the evidence in the record “is susceptible to more than one rational ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 interpretation, [the court] must uphold the ALJ's findings if they are supported by 2 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 3 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 4 2002) (if the “evidence is susceptible to more than one rational interpretation, one 5 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 6 a district court “may not reverse an ALJ's decision on account of an error that is 7 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 8 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 9 The burden of showing that an error is harmful generally falls upon the party 10 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 11 IV. Statement of Facts 12 The facts of the case are set forth in detail in the transcript of proceedings, 13 and accordingly, are only briefly summarized here. Plaintiff was 47 years old on 14 the date the application was filed. AR 30. She has a GED and is able to 15 communicate in English. Id. She has never held employment. AR 22. 16 V. The ALJ’s Findings 17 The ALJ determined that Plaintiff was not under a disability within the 18 meaning of the Act from February 11, 2014, the date the application was filed. AR 19 20-32. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 At step one, the ALJ found that Plaintiff had not engaged in substantial 2 gainful activity since February 11, 2014, her application date (citing 20 C.F.R. § 3 416.971 et seq.). AR 22. The ALJ also found there was no indication Plaintiff had 4 ever engaged in substantial gainful activity. Id. 5 At step two, the ALJ found Plaintiff had the following severe impairments: 6 schizoaffective disorder, dysthymia, panic disorder without agoraphobia, and 7 personality disorder (not otherwise specified) (citing 20 C.F.R. § 416.920(c)). AR 8 22-23. 9 At step three, the ALJ found that Plaintiff did not have an impairment or 10 combination of impairments that meets or medically equals the severity of one of 11 the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR 23-24. 12 At step four, the ALJ found Plaintiff had the residual functional capacity to 13 perform a full range of work at all exertional levels but with the following 14 nonexertional limitations: she can understand, remember, and carry out simple 15 routine tasks and instructions and is able to maintain attention and concentration on 16 simple routine tasks for two hour intervals between regularly scheduled breaks; she 17 can have only occasional and simple changes in work setting or routine, and she 18 can engage in only occasional simple decision-making; she should have no fast 19 paced production rate work, such as assembly line type work; she can have only 20 incidental superficial contact with the public and coworkers, meaning she can work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 in proximity to but without actual interaction/teamwork with the public and 2 coworkers; and she may need encouraging reminders of instructions approximately 3 once a week. AR 24. 4 5 The ALJ determined Plaintiff has no past relevant work so transferability of job skills is not an issue. AR 30. 6 At step five, the ALJ found that in light of her age, education, work 7 experience, and residual functional capacity, there are jobs that exist in significant 8 numbers in the national economy that Plaintiff can perform. AR 30-31. These 9 include laundry worker II, stock selector, and officer cleaner I. AR 31. The ALJ 10 consulted a vocational expert in making this determination. Id. 11 VI. Issues for Review 12 Plaintiff argues that the Commissioner’s decision is not free of legal error 13 and not supported by substantial evidence. Specifically, she argues that the ALJ 14 erred by (1) improperly rejecting the opinions of Plaintiff’s medical providers; (2) 15 improperly rejecting Plaintiff’s severe impairments at step two; (3) rejecting 16 Plaintiff’s subjective complaints; and (4) failing to meet the burden at step five to 17 identify specific jobs available in significant numbers which Plaintiff can perform 18 in light of her specific functional limitations. ECF No. 11 at 5. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 2 3 4 5 VII. Discussion A. The ALJ did not err with the weight given to Plaintiff’s medical providers. a. Legal standard The Ninth Circuit has distinguished between three classes of medical 6 providers in defining the weight to be given to their opinions: (1) treating 7 providers, those who actually treat the claimant; (2) examining providers, those 8 who examine but do not treat the claimant; and (3) non-examining providers, those 9 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 10 11 Cir. 1996) (as amended). A treating provider’s opinion is given the most weight, followed by an 12 examining provider, and finally a non-examining provider. Id. at 830-31. In the 13 absence of a contrary opinion, a treating or examining provider’s opinion may not 14 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 15 treating or examining provider’s opinion is contradicted, it may only be discounted 16 for “specific and legitimate reasons that are supported by substantial evidence in 17 the record.” Id. at 830-31. 18 The ALJ may meet the specific and legitimate standard by “setting out a 19 detailed and thorough summary of the facts and conflicting clinical evidence, 20 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 2 provider’s opinion on a psychological impairment, the ALJ must offer more than 3 his or her own conclusions and explain why he or she, as opposed to the provider, 4 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 5 6 b. Dr. Mahlon Dalley, PhD Dr. Dalley performed a psychological/psychiatric evaluation on Plaintiff on 7 November 4, 2011. AR 315-20. Dr. Dalley observed symptoms of depression, 8 anxiety, and hallucinations in the examination. AR 315. Dr. Dalley opined that 9 these symptoms would “most likely affect [Plaintiff’s] motivation” for work 10 activities, attendance, and “probably” would affect her concentration. AR 316. 11 However, Dr. Dalley noted that Plaintiff was not receiving mental health treatment 12 or medication, and Dr. Dalley recommended treatment through a social services 13 medical program. AR 316-17. 14 The ALJ gave little weight to this opinion. AR 28. The ALJ stated that the 15 record provided little basis for the limitations opined because Plaintiff’s mental 16 status examination and test findings did not support significant findings or 17 limitations. Id. A discrepancy between a doctor’s recorded observations and 18 opinions is a clear and convincing reason for not relying on the doctor’s opinion. 19 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 The record supports this finding. Plaintiff’s mental status examination 2 showed her to be “loquacious” with “demonstrated tangential content,” to be 3 oriented, to recall past events with clarity, to exhibit average mental control, to 4 demonstrate an average fund of knowledge and the ability to think abstractly, to 5 exhibit average mental control, including good insight and fair judgment, and her 6 score on the mini mental status examination was a 27 out of 30, with a 24 being the 7 cut-off for impairment. AR 317-18. 8 While Plaintiff endorsed hallucinations, including during her examination, 9 Dr. Dalley found Plaintiff to have a “tendency to over report psychopathology on 10 the [Personality Assessment Inventory ‘PAI’]” and thus could not interpret her test 11 results. AR 317. An ALJ may discount a treating provider’s opinion if it is based 12 largely on the claimant’s self-reports and not on clinical evidence, and the ALJ 13 finds the claimant not credible. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 14 2014). 15 Finally, the ALJ also rejected the opinion because it was almost a year prior 16 to Plaintiff’s alleged onset date. “Medical opinions that predate the alleged onset of 17 disability are of limited relevance.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 18 F.2d 1155, 1165 (9th Cir. 2008) (citing Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 19 1989)). In contrast, the ALJ relied more on the most recent opinions, specifically 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 the opinion of testifying medical expert Dr. Nancy Winfrey, PhD, who also had the 2 benefit of review of the entire record. AR 30. 3 c. Dr. Jay Toews, EdD Dr. Toews evaluated Plaintiff on December 26, 2012. AR 321-26. Dr. 4 5 Toews reported that Plaintiff responded to internal stimuli during the evaluation, 6 including audible, visual, and olfactory hallucinations, and that her thinking was 7 disrupted by these internal stimuli. AR 321, 324. Based on the evaluation, Dr. 8 Toews found Plaintiff would have multiple limitations, including remembering 9 simple instructions, remembering job routines, interacting with coworkers or the 10 public, and completing a work day or work week. AR 324-25. 11 The ALJ gave little weight to this opinion. AR 28. In particular, she noted 12 that Plaintiff’s symptoms are treatable, but she chooses not to seek treatment for 13 them. Id. This is supported by the record. Both Dr. Amy Dowell, MD, an 14 examining doctor, and Dr. Winfrey, the testifying medical expert, opined that 15 Plaintiff’s condition was treatable. 1 AR 47-48, 330. These doctors, particularly the 16 testifying medical expert, contradict the opinion of Dr. Toews, and constitute 17 substantial evidence for discrediting Dr. Toews’ opinion. Tonapetyan v. Halter, 18 19 20 1 The Court further addresses Plaintiff’s failure to seek treatment in the section on Plaintiff’s subjective symptom testimony. See infra at pp. 17-19. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 242 F.3d 1144, 1149 (9th Cir. 2001).; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 2 Cir. 1995). 3 Even still, the ALJ did include some limitations consistent with Dr. Toews’ 4 opinion in the residual functional capacity. AR 24. In particular, the ALJ limited 5 Plaintiff to simple, routine tasks and no more than incidental interaction with 6 coworkers and the public. Id. 7 8 9 d. Dr. John Arnold, PhD Dr. Arnold evaluated Plaintiff on January 30, 2014, on behalf of the Washington Department of Social and Health Services. AR 332-35. He opined 10 marked limitations in her ability to: understand, remember, and persist in tasks by 11 following detailed instructions; perform activities within a schedule, maintain 12 regular attendance, and be punctual within customary tolerances without special 13 supervision; communicate and perform effectively in a work setting; maintain 14 appropriate behavior in a work setting; and complete a normal work day and work 15 week without interruptions from psychologically based symptoms. AR 334. 16 The ALJ gave little weight to this opinion. ALJ Palachuk noted it was the 17 “most cursory examination of record with little basis provided for any of the 18 limitations indicated.” AR 28. Additionally, the report was internally inconsistent. 19 Id. Check-box form statements may be given less weight when they are conclusory 20 in nature and lack substantive medical findings to support them or they are ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 inconsistent with the underlying medical records. Batson v. Comm’r of Soc. Sec. 2 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Garrison v. Colvin, 759 F.3d 995, 3 1014 (9th Cir. 2014). 4 Despite the opined limitations, Dr. Arnold’s mental status examination was 5 normal in all areas but memory. AR 335. Plaintiff was not responding to internal 6 stimuli, her thought processes were devoid of clearly delusional content, she 7 exhibited the ability to think abstractly, and despite being slow, her concentration 8 was intact. Id. Dr. Arnold did observe some depressed and anxious mood, but he 9 described Plaintiff has cooperative and generally congenial, dressed for the 10 occasion, and having logical and progressive speech. AR 334. There is very little 11 other than Plaintiff’s subjective testimony to support Dr. Arnold’s findings. “[A]n 12 ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and 13 inadequately supported by clinical findings.” Bayliss, 427 F.3d at 1216. 14 15 e. Dr. Amy L. Dowell, MD Dr. Dowell performed a consultative examination on Plaintiff on May 15, 16 2014. AR 327-31. Dr. Dowell opined that Plaintiff’s schizoaffective disorder is a 17 treatable condition, and even without, the condition was only mildly affecting 18 Plaintiff at the present time, but decompensation was a risk to her ability to work. 19 AR 330-31. Dr. Dowell also found that Plaintiff’s anxiety and panic attacks were 20 treatable, with a good likelihood of recovery with appropriate treatment. Id. Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Dowell also found that Plaintiff’s lack of education, not her mental impairments, 2 would contribute to the need for special or additional workplace instructions. AR 3 331. 4 The ALJ gave some weight to the portions of the assessment that were vague 5 and speculative. AR 29. Dr. Dowell did not provide the degree of difficulty that 6 Plaintiff would experience due to her symptoms. However, those limitations 7 consistent with Dr. Winfrey’s testimony at the hearing were given great weight. 8 AR 29. An ALJ may give more weight to an opinion that is specific than one that 9 is vague. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Consistent 10 limitations were included in the residual functional capacity, including limitations 11 to simple, routine tasks and instructions, a bar on fast-paced work, and 12 “encouraging reminders” of workplace instructions. AR 24, 29. 13 14 B. The ALJ did not err at step two. At step two in the sequential evaluation for Social Security cases, the ALJ 15 must determine whether a claimant has a medically severe impairment or 16 combination of impairments. An impairment is found to be not severe “when 17 medical evidence establishes only a slight abnormality or a combination of slight 18 abnormalities which would have no more than a minimal effect on an individual’s 19 ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (quoting 20 SSR 85-28). Step two is generally “a de minimis screening device [used] to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 dispose of groundless claims.” Webb v. Barnhart, 433 F. 683, 687 (9th Cir. 2005) 2 (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996)). 3 Under step two, an impairment is not severe if it does not significantly limit 4 a claimant’s ability to perform basic work activities. Edlund v. Massanari, 253 5 F.3d 1152, 1159 (9th Cir. 2001) (citing 20 C.F.R. § 404.1521(a)(b)). A diagnosis 6 from an “acceptable medical source,” such as a licensed physician or certified 7 psychologist, is necessary to establish a medically determinable impairment. 20 8 C.F.R. § 404.1513(d). 9 Plaintiff alleges the ALJ erred by failing to find her tic disorder and social 10 phobia as severe impairments, resulting in harmful error. ECF No. 11 at 15. Dr. 11 Dallon diagnosed both of these conditions in November 2011, which as noted 12 above is outside of the relevant period. AR 315. However, diagnosis alone is 13 insufficient to show harmful error. 14 Plaintiff was found to have at least one severe impairment, and this case was 15 not resolved at step two. Thus, if there was any error in the ALJ’s finding at step 16 two, it is harmless, as all impairments, severe and non-severe, were considered in 17 the determination of Plaintiff’s residual functional capacity. See Short v. Astrue, 18 498 F.3d 909, 910 (9th Cir. 2007) (holding that a failure to consider an impairment 19 in step two is harmless error where the ALJ includes the limitations of that 20 impairment in the determination of the residual functional capacity). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 The record does not support that Plaintiff is limited in pushing, pulling, 2 reaching, handling, and fingering as she alleges in her briefing. ECF No. 11 at 15. 3 No doctors after 2011 even mention this impairment. Additionally, her social 4 phobia was not opined by later doctors either, but nevertheless the ALJ did place a 5 limitation on contact with coworkers and the public in her residual functional 6 capacity. AR 24. 7 8 9 C. The ALJ did properly discredited Plaintiff’s subjective claims. An ALJ engages in a two-step analysis to determine whether a claimant’s testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 10 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 11 medical evidence of an underlying impairment or impairments that could 12 reasonably be expected to produce some degree of the symptoms alleged. Id. 13 Second, if the claimant meets this threshold, and there is no affirmative evidence 14 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 15 severity of [his] symptoms only by offering specific, clear, and convincing reasons 16 for doing so.” Id. 17 In weighing a claimant's credibility, the ALJ may consider many factors, 18 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 19 reputation for lying, prior inconsistent statements concerning the symptoms, and 20 other testimony by the claimant that appears less than candid; (2) unexplained or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 inadequately explained failure to seek treatment or to follow a prescribed course of 2 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 3 1284 (9th Cir. 1996). 4 First, the Court notes that there is affirmative evidence of malingering in the 5 record in this case. As discussed prior, Dr. Dalley was unable to interpret the 6 results of Plaintiff’s PAI due to over reporting of her symptoms. AR 317. 7 Malingering alone can satisfy an ALJ’s adverse credibility determination, 8 Tommasetti, 533 F.3d at 1039, but in this case the ALJ provided additional clear 9 and convincing reasons for the adverse finding. Each of these reasons were 10 supported by evidence in the record, to which the ALJ pointed. AR 25-26. 11 A significant factor in the ALJ’s determination was Plaintiff’s failure to seek 12 treatment for her impairments. AR 25. A claimant’s statements may be less 13 credible when treatment is inconsistent with the level of complaints or a claimant is 14 not following treatment prescribed without good reason. Molina, 674 F.3d at 1114. 15 “Unexplained, or inadequately explained, failure to seek treatment . . . can cast 16 doubt on the sincerity of [a] claimant’s [] testimony.” Fair v. Bowen, 885 F.2d 597, 17 603 (9th Cir. 1989). 18 Plaintiff argues that her inability to seek treatment is a condition of her 19 impairment, but the ALJ detailed how this is inconsistent with the record. Plaintiff 20 was able to assist her boyfriend during a medical crisis and moving homes with ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 him. AR 57-60. The record also contradicts Plaintiff’s allegations because she 2 admits to previously seeking treatment and taking medication, AR 327, and Dr. 3 Winfrey specifically noted in her testimony that someone with Plaintiff’s alleged 4 symptoms would have sought treatment, AR 44. Her lack of treatment is 5 significant because both Dr. Dowell and Dr. Winfrey opined that her condition is 6 treatable, if Plaintiff would seek the treatment. AR 47-48, 330. 7 Finally, the ALJ also noted a “significant disconnect” between the reports, 8 testimony, and objective findings. AR 26. Most of Plaintiff’s mental status 9 examinations were unremarkable, as were her mental testing scores, when valid. 10 AR 317-18, 329, 335. Inconsistency between a claimant’s allegations and relevant 11 medical evidence is a legally sufficient reason to reject a claimant’s subjective 12 testimony. Tonapetyan, 242 F.3d at 1148. 13 In conclusion, the ALJ provided numerous reasons for the findings related to 14 Plaintiff’s credibility that are supported by the record, in addition to affirmative 15 evidence of malingering in the record. The Court does not find the ALJ erred when 16 assessing Plaintiff’s subjective complaints. 17 D. The ALJ did not err at step five. 18 Plaintiff argues that had her symptom testimony and the medical evidence 19 discussed above been properly considered, a different residual functional capacity 20 and resulting hypothetical to the vocational expert would have been reached, and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 as a result, the ALJ erred in her burden at step five. ECF No. 11 at 19-20. This is 2 merely an attempt to repeat the same arguments discussed above. The Court will 3 uphold the ALJ’s findings when a claimant attempts to restate the argument that 4 the residual functional capacity finding did not account for all limitations and the 5 resulting vocational expert hypothetical was incomplete. Stubbs-Danielson v. 6 Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). 7 VIII. Conclusion 8 Having reviewed the record and the ALJ’s findings, the Court finds the 9 ALJ’s decision is supported by substantial evidence and free from legal error. 10 Accordingly, IT IS ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 12 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is 13 14 15 16 17 18 19 20 GRANTED. 3. The District Court Executive is directed to enter judgment in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel and close the file. DATED this 30th day of July, 2018. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20
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