Franco v. Commissioner of Social Security, No. 2:2017cv00331 - Document 24 (E.D. Wash. 2018)
Court Description: ORDER Denying Plaintiff's 18 Motion for Summary Judgment and Granting Defendant's 22 Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)
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Franco v. Commissioner of Social Security Doc. 24 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Sep 26, 2018 5 UNITED STATES DISTRICT COURT 6 SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 7 KRISTIN F., 8 No. 1:17-cv-00331-MKD Plaintiff, 9 vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 18, 22 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 18, 22. 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. 18, and grants Defendant’s Motion, ECF No. 18 22. 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 21 ORDER - 2 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that [she] is not only unable to do [her] 15 previous work[,] but cannot, considering [her] age, education, and work 16 experience, engage in any other kind of substantial gainful work which exists in 17 the national economy.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 21 ORDER - 3 1 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 13 §§ 404.1520(c); 416.920(c). 14 At step three, the Commissioner compares the claimant’s impairment to 15 severe impairments recognized by the Commissioner to be so severe as to preclude 16 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 17 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 18 severe than one of the enumerated impairments, the Commissioner must find the 19 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 20 21 ORDER - 4 1 If the severity of the claimant’s impairment does not meet or exceed the 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 6 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 7 analysis. 8 At step four, the Commissioner considers whether, in view of the claimant’s 9 RFC, the claimant is capable of performing work that he or she has performed in 10 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 11 If the claimant is capable of performing past relevant work, the Commissioner 12 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 13 If the claimant is incapable of performing such work, the analysis proceeds to step 14 five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 18 the Commissioner must also consider vocational factors such as the claimant’s age, 19 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 20 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 21 ORDER - 5 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 3 work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 8 capable of performing other work; and (2) such work “exists in significant 9 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); 10 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 ALJ’S FINDINGS 12 Plaintiff applied for disability insurance benefits on February 7, 2014 and 13 supplemental security income benefits on June 3, 2014, alleging disability 14 beginning December 14, 2013. Tr. 243-50. Benefits were denied initially,1 Tr. 15 16 1 On September 17, 2014, Diane Fligstein, Ph.D. prepared a mental RFC for 17 Disability Determination Services finding Plaintiff markedly limited in her ability 18 to complete a normal workday and workweek without interruptions from 19 psychologically based symptoms. Tr. 128-29; Tr. 145-46. This resulted in a 20 proposed finding of disability. Tr. 133, 150. Subsequently, the San Francisco 21 ORDER - 6 1 181-87, and upon reconsideration. Tr. 190-94. Plaintiff appeared for a hearing 2 before an administrative law judge (ALJ) on September 1, 2016. Tr. 41-87. On 3 September 28, 2016, the ALJ denied Plaintiff’s applications. Tr. 18-40. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since December 14, 2013, the alleged onset date. Tr. 23. At step two, the 6 ALJ found Plaintiff has the following severe impairments: major depressive 7 disorder; generalized anxiety disorder; polyarthralgias; and obesity. Tr. 23. At 8 step three, the ALJ found that Plaintiff does not have an impairment or 9 combination of impairments that meets or medically equals the severity of a listed 10 impairment. Tr. 24. The ALJ then concluded that Plaintiff has the RFC to perform 11 light work with the following additional limitations: 12 13 14 15 [S]he cannot climb ladders, ropes, and scaffolds, and can frequently perform all other postural activities; she can have only occasional exposure to vibration and pulmonary irritants; she can have no exposure to hazards, such as unprotected heights and moving mechanical parts; she can tolerate only moderate noise levels; she is limited to simple, routine, and repetitive tasks with a reasoning level of two or less; she needs a routine, predictable work environment that requires no more than simple decision-making; and she can have only occasional contact with the public, coworkers, and supervisors. 16 17 18 Disability Quality Branch issued a Request for Corrective Action finding the initial 19 mental RFC flawed and directing issuance of a new disability determination 20 explanation denying benefits. Tr. 263-65. 21 ORDER - 7 1 Tr. 26. 2 At step four, the ALJ found Plaintiff was unable to perform her past relevant 3 work as a childcare provider. Tr. 32. At step five, the ALJ found that considering 4 Plaintiff’s age, education, work experience, and RFC, there are other jobs that exist 5 in significant numbers in the national economy that the Plaintiff can perform such 6 as photocopy machine operator, marker, and cardboard inserter. Tr. 33. The ALJ 7 concluded Plaintiff has not been under a disability, as defined in the Social 8 Security Act, from December 14, 2013 through the date of the decision. Tr. 34. 9 On July 27, 2017, the Appeals Council denied review, Tr. 1-7, making the 10 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 11 See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 12 13 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 14 her disability insurance benefits under Title II and supplemental security income 15 benefits under Title XVI of the Social Security Act. ECF No. 18. Plaintiff raises 16 the following issues for this Court’s review: 17 1. Whether the ALJ properly weighed Plaintiff’s symptom claims; 18 2. Whether the ALJ properly evaluated the medical opinion evidence; 19 3. Whether the ALJ properly considered the lay witness statements; and 20 21 ORDER - 8 1 2 4. Whether the ALJ properly found at step five that Plaintiff could perform other work in the national economy. 3 See ECF No. 18 at 9-18. DISCUSSION 4 A. Plaintiff’s Symptom Claims 5 Plaintiff faults the ALJ for discrediting Plaintiff’s symptom testimony. ECF 6 No. 18 at 15-18. 7 An ALJ engages in a two-step analysis when evaluating a claimant’s 8 subjective symptoms. 20 C.F.R. §§ 404.1529(a), 416.929(a); Social Security 9 Ruling (SSR) 16–3p, 2016 WL 1119029, at *2. “First, the ALJ must determine 10 whether there is objective medical evidence of an underlying impairment which 11 could reasonably be expected to produce the pain or other symptoms alleged.” 12 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 13 required to show that her impairment could reasonably be expected to cause the 14 severity of the symptom she has alleged; she need only show that it could 15 reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 16 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 17 Second, “[i]f the claimant meets the first test and there is no evidence of 18 malingering, the ALJ can only reject the claimant’s testimony about the severity of 19 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 20 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 21 ORDER - 9 1 citations and quotations omitted). “General findings are insufficient; rather, the 2 ALJ must identify what testimony is not credible and what evidence undermines 3 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 4 Cir. 1995)); Thomas, 278 F.3d at 958 (“[T]he ALJ must make a credibility 5 determination with findings sufficiently specific to permit the court to conclude 6 that the ALJ did not arbitrarily discredit claimant’s testimony.”)). “The clear and 7 convincing [evidence] standard is the most demanding required in Social Security 8 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 9 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). 10 Factors to be considered in evaluating the intensity, persistence, and limiting 11 effects of an individual’s symptoms include: (1) daily activities; (2) the location, 12 duration, frequency, and intensity of pain or other symptoms; (3) factors that 13 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 14 side effects of any medication an individual takes or has taken to alleviate pain or 15 other symptoms; (5) treatment, other than medication, an individual receives or has 16 received for relief of pain or other symptoms; (6) any measures other than 17 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 18 any other factors concerning an individual’s functional limitations and restrictions 19 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. 20 §§ 404.1529(c) (1)–(3), 416.929 (c) (1)–(3). The ALJ is instructed to “consider all 21 ORDER - 10 1 of the evidence in an individual’s record,” “to determine how symptoms limit 2 ability to perform work-related activities.” Id. at *2. 3 Here, the ALJ found Plaintiff’s medically determinable impairments could 4 reasonably be expected to produce the symptoms, but Plaintiff’s statements 5 concerning the intensity, persistence and limiting effects of these symptoms were 6 not consistent with the medical evidence and other evidence in the record. Tr. 27. 7 1. Credited Symptom Claims 8 Not all of Plaintiff’s symptom claims were rejected by the ALJ. The ALJ 9 observed that he credited certain functional limitations which were accommodated 10 in the RFC. Tr. 28. Specifically, although Plaintiff alleged she was unable to 11 sustain attendance in a work environment, the ALJ noted this allegation was based 12 on her inability to complete cosmetology school and anxiety. Tr. 27. As Plaintiff 13 identified intensive social interaction and academic testing as primary reasons she 14 was unable to sustain attendance, the ALJ incorporated limitations in social 15 functioning and concentration into the RFC. Tr. 26. The ALJ commented that 16 cosmetology school was “a far more demanding undertaking” than the simple, 17 routine work consistent with the RFC would entail. Tr. 27. 18 Plaintiff contends the ALJ’s comment is “speculation not supported by the 19 evidence” and the pressures of “performing and failing” would be the same in both 20 contexts. ECF No. 18 at 17. The ALJ may make reasonable inferences drawn 21 ORDER - 11 1 from the record. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 2 Cir. 2004) (“[T]he Commissioner’s findings are upheld if supported by inferences 3 reasonably drawn from the record.”). Plaintiff’s testimony and complaints to 4 medical providers did not indicate the “pressure of performing” contributed to 5 absences from school. See Tr. 65 (“I just got a lot of anxiety being around all the 6 people all the time. . . . It was more the learning. I didn’t do well at first. . . . So, I 7 just never really felt like I could do it. . . . When a test would come up . . . I’d have 8 anxiety. I wouldn’t even be able to handle going.”); Tr. 490 (“I was so horribly 9 depressed and I can’t go in without crying. I can’t tolerate drama and there was a 10 lot of drama.”); Tr. 493 (she felt unable “to tolerate the interpersonal and cognitive 11 demands of the classes.”); Tr. 585 (“She develops severe fatigue after cutting the 12 hair of 3-4 clients and is not able to put in a full day’s work because of above 13 symptoms.”). The record supports the ALJ’s reasonable interpretation of 14 Plaintiff’s credited testimony regarding symptoms contributing to her absenteeism 15 in cosmetology school. 16 2. Improvement with Treatment 17 The ALJ discounted Plaintiff’s other symptoms claim finding Plaintiff’s 18 symptoms improved with treatment, which the ALJ concluded called into question 19 the reliability of Plaintiff’s alleged disabling limitations. Tr. 27. The effectiveness 20 of medication and treatment is a relevant factor in determining the severity of a 21 ORDER - 12 1 claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2011); see 2 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 3 (conditions effectively controlled with medication are not disabling for purposes of 4 determining eligibility for benefits) (internal citations omitted); see also 5 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (a favorable response to 6 treatment can undermine a claimant’s complaints of debilitating pain or other 7 severe limitations). 8 The ALJ noted that that during a routine appointment in March 2015, it was 9 reported “[m]edications definitely improve her mental functioning and also help 10 reduce depression.” Tr. 28 (quoting Tr. 545). Subsequently, in a January 2016 11 treatment note, it indicated Plaintiff’s depression was “well controlled with 12 medication” despite some symptoms of fatigue. Tr. 28 (quoting Tr. 556). Plaintiff 13 contends the “symptom-free” periods relied upon the ALJ do not reflect the record 14 showing a pattern that “her depression always returned.” ECF No. 18 at 10 (citing 15 Tr. 545, 556, 560-61, 566). However, a review of the record reflects that when 16 Plaintiff’s symptoms of depression or anxiety returned or worsened, Plaintiff asked 17 for and responded well to prescription adjustments. See Tr. 440 (June 2013: 18 adding Effexor after Plaintiff asks for something other than Wellbutrin); Tr.459 19 (Jan. 2014: increasing Effexor dosage from 75 to 150 mg after Plaintiff asks 20 provider whether to take something different or add another medication); Tr. 561 21 ORDER - 13 1 (June 2016: increasing Effexor dosage to 225 mg). Even if Plaintiff can identify 2 evidence that can be interpreted more favorably to Plaintiff’s position, the evidence 3 is susceptible to more than one rational interpretation, and therefore the ALJ’s 4 ultimate conclusion must be upheld. See Burch v. Barnhart, 400 F.3d 676, 679 5 (9th Cir. 2005). Substantial evidence supports the ALJ’s reasonable interpretation 6 of the evidence. That Plaintiff’s mental health symptoms improved with treatment 7 was a clear and convincing reason to discount Plaintiff’s symptom testimony. 8 3. Minimal and Conservative Treatment 9 The ALJ found Plaintiff’s statements regarding her symptoms were 10 inconsistent with the minimal mental health treatment in the record. Tr. 28. The 11 medical treatment a Plaintiff seeks to relieve her symptoms is a relevant factor in 12 evaluating the intensity and persistence of symptoms. 20 C.F.R. §§ 13 416.929(c)(3)(iv), (v). When a claimant receives only conservative or minimal 14 treatment, it supports an adverse inference as to the claimant’s credibility regarding 15 the severity of her subjective symptoms. Parra v. Astrue, 481 F.3d 742, 750-51 16 (9th Cir. 2007); Meanal v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Moreover, 17 noncompliance with medical care or unexplained or inadequately explained 18 reasons for failing to seek medical treatment cast doubt on a claimant’s subjective 19 complaints. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Macri v. Chater, 93 20 F.3d 540, 544 (9th Cir. 1996). Where the evidence suggests lack of mental health 21 ORDER - 14 1 treatment is part of a claimant’s mental health condition, it may be inappropriate to 2 consider a claimant’s lack of mental health treatment as evidence of a lack of 3 credibility. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). However, 4 when there is no evidence suggesting a failure to seek treatment is attributable to a 5 mental impairment rather than personal preference, it is reasonable for the ALJ to 6 conclude that the level or frequency of treatment is inconsistent with the alleged 7 severity of complaints. Molina, 674 F.3d at 1113-14. 8 Though Plaintiff received mental health treatment in the form of medication, 9 the ALJ observed the record contained very few counseling records. Tr. 28. 10 Plaintiff had reported experiencing benefit from counseling in the past. Tr. 28; see 11 Tr. 493 (Plaintiff “has felt that long term counseling has largely kept her ‘on 12 track.’”). In 2014, Plaintiff asked her medical provider about counseling and she 13 was provided the name of a counselor. Tr. 463. However, the record contains only 14 a single counseling record pertaining to treatment during the relevant period. Tr. 15 586-88 (Plaintiff’s March 23, 2015 visit with therapist Diane Thompson); see Tr. 16 589 (letter from Lisa Burnell pertaining to mental health treatment in 2010 and 17 2011). Though Plaintiff apparently attended several other sessions with Ms. 18 Thompson, more extensive records were not available from Ms. Thompson, in 19 part, due to Plaintiff having missed or cancelled nine appointments within a one20 21 ORDER - 15 1 month timeframe. Tr. 367. The ALJ noted that the majority of treatment records 2 did not involve mental health complaints. Tr. 28. 3 Plaintiff does not challenge the ALJ’s finding that Plaintiff did not obtain 4 extensive mental health treatment, but claims this is a direct symptom of her 5 mental health impairments. ECF No. 18 at 17. The ALJ inquired into the reason 6 for lack of treatment and Plaintiff attributed her failure to seek treatment to 7 anxiety. Tr. 75. The fact that she did not continue to seek mental health treatment, 8 despite the recommendations of her providers and her ability to do so, supports the 9 ALJ’s conclusions regarding Plaintiff’s assertion of disabling symptoms of 10 depression and anxiety. Alternatively, even if the failure to pursue mental health 11 treatment was related to the Plaintiff’s depression and anxiety and this alone would 12 be insufficient to sustain the ALJ’s adverse finding, any error is harmless because 13 it does not invalidate the overall analysis of Plaintiff’s symptoms. See, e.g., 14 Batson, 359 F.3d at 1197 (upholding ALJ’s credibility determination even though 15 one reason may have been in error). 16 4. Lack of Supporting Medical Evidence 17 The ALJ found the limitations reported by Plaintiff were not consistent with 18 disabling functional limitations or supported by the medical evidence. Tr. 28. An 19 ALJ may not discredit a claimant’s symptom testimony and deny benefits solely 20 because the degree of the symptoms alleged is not supported by objective medical 21 ORDER - 16 1 evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. 2 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601. However, 3 the medical evidence is a relevant factor in determining the severity of a claimant’s 4 pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 5 404.1529(c)(2); 416.929(c)(2). Minimal objective evidence is a factor which may 6 be relied upon in discrediting a claimant’s testimony, although it may not be the 7 only factor. See Burch, 400 F.3d at 680. 8 In regards to Plaintiff’s mental health complaints, the ALJ noted that 9 Plaintiff’s “candid presentation to treating sources” demonstrated “very few 10 instances of mental health complaints, aside from occasional anxiety.” Tr. 28. The 11 record supports the ALJ’s conclusion. Plaintiff routinely sought medical care 12 during the relevant period, but only occasionally noted mental health complaints. 13 When Plaintiff sought treatment, the ALJ observed that her records often reflected 14 frequent normal findings. Tr. 28. For example, Dr. Brown’s treatment record 15 often reported Plaintiff “alert with normal mood and affect.” Tr. 28 (citing Tr. 16 544, 547, 552, 568). The ALJ also noted that the two counseling records were not 17 consistent with disabling functional limitations. Tr. 28 (citing Tr. 586-89). 18 Likewise, the ALJ concluded the objective findings showing full range of motion 19 and normal gait, belied the severity of Plaintiff’s alleged physical limitations, Tr. 20 21 ORDER - 17 1 28, a finding Plaintiff does not contest.2 There is substantial evidence to support 2 the ALJ’s conclusion that there were minimal complaints and minimal treatment 3 records supporting Plaintiff’s allegation of disabling symptoms. 4 In summary, the ALJ provided a number of specific, clear, and convincing 5 reasons for not fully crediting Plaintiff’s symptom claims. 6 B. Medical Opinion Evidence 7 Plaintiff contends the ALJ improperly weighed the medical opinions of 8 9 2 Defendant’s Motion responds only to the issues raised regarding Plaintiff’s 10 psychological complaints because Plaintiff does not specifically challenge the 11 physical RFC. ECF No. 22 at 3. The Court notes that Plaintiff generally contends 12 that had the ALJ credited Plaintiff’s symptom claims, the ALJ should have found 13 Plaintiff “more limited from physical and psychological perspective, and unable to 14 work.” ECF No. 18 at 18. Given Plaintiff’s failure to specifically and distinctly 15 argue error related to the evaluation of Plaintiff’s physical RFC, any challenge to 16 that issue is waived. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 17 1161 n.2 (9th Cir. 2008) (determining Court may decline to address on the merits 18 issues not argued with specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 19 1998) (the Court may not consider on appeal issues not “specifically and distinctly 20 argued” in the party’s opening brief). 21 ORDER - 18 1 examining doctors Frank Rosekrans, Ph.D., Elizabeth Koenig, M.D., and John 2 Arnold, Ph.D., as well as treating physician, William R. Brown, M.D. ECF No. 18 3 at 5-9. 4 There are three types of physicians: “(1) those who treat the claimant 5 (treating physicians); (2) those who examine but do not treat the claimant 6 (examining physicians); and (3) those who neither examine nor treat the claimant 7 but who review the claimant’s file (nonexamining or reviewing physicians).” 8 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 9 “Generally, a treating physician’s opinion carries more weight than an examining 10 physician’s, and an examining physician’s opinion carries more weight than a 11 reviewing physician’s.” Id. “In addition, the regulations give more weight to 12 opinions that are explained than to those that are not, and to the opinions of 13 specialists concerning matters relating to their specialty over that of 14 nonspecialists.” Id. (citations omitted). 15 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 16 reject it only by offering “clear and convincing reasons that are supported by 17 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 18 “However, the ALJ need not accept the opinion of any physician, including a 19 treating physician, if that opinion is brief, conclusory and inadequately supported 20 by clinical findings.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 21 ORDER - 19 1 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 2 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 3 may only reject it by providing specific and legitimate reasons that are supported 4 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8305 31). 6 To the extent that Drs. Rosekrans, Koenig, Arnold, and Brown assessed 7 Plaintiff with limitations that would prevent her from working, these opinions are 8 contradicted by the credited opinions of the state agency reviewing physicians, 9 Bruce Eather, Ph.D., Tr. 90-117, Christmas Covell, Ph.D., Tr. 161-63, 175-77, 10 Howard Platter, Tr. 160-61, 174-75, and testifying medical expert Glenn Griffin, 11 Ph.D, Tr. 55-64. Therefore, the ALJ was required to provide specific and 12 legitimate reasons for rejecting their opinions. Bayliss, 427 F.3d at 1216. 13 1. Frank Rosekrans, Ph.D. (Nov. 2013) 14 Dr. Rosekrans evaluated Plaintiff on November 5, 2013 and diagnosed 15 major depressive disorder (single episode moderate), somatization disorder, and a 16 GAF score of 45. Tr. 412-20. He opined Plaintiff had marked limitations in the 17 abilities to: (i) perform activities within a schedule, maintain regular attendance, 18 and be punctual within customary tolerances without special supervision; (ii) 19 communicate and perform effectively in a work setting; (iii) complete a normal 20 work day and work week without interruptions from psychologically based 21 ORDER - 20 1 symptoms, and (iv) maintain appropriate behavior in a work setting. The ALJ 2 assigned little weight to Dr. Rosekrans’ opinion. 3 First, the ALJ found Dr. Rosekrans did not review any outside treatment 4 records and formed his opinions based upon Plaintiff’s self-reported symptoms. 5 Tr. 28. The extent to which a medical source is “familiar with the other 6 information in [the claimant’s] case record” is relevant in assessing the weight of 7 that source’s medical opinion. See 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). 8 Here, the ALJ credited the opinions of state reviewing psychologists, Dr. Eather 9 and Dr. Covell, and the medical expert, Dr. Griffin, all of whom had reviewed the 10 medical evidence available to them. See Tr. 90-117 (Oct. 2014 disability 11 determination explanations listing evidence reviewed by Dr. Eather); Tr. 153-80 12 (Dec. 2014 disability determination explanations listing evidence reviewed by Dr. 13 Covell); Tr. 55 (testimony indicating Dr. Griffin reviewed Exhibits 1F through 14 16F); Tr. 30 (ALJ finding Drs. Eather and Covell’s opinions consistent with the 15 longitudinal record); Tr. 31 (ALJ finding Dr. Griffin’s opinion consistent with his 16 review of the medical evidence). It was reasonable for the ALJ to consider the 17 medical source’s familiarity with and reliance on the medical record in evaluation 18 his opinions. Plaintiff does not challenge this reason, thus it is waived. See 19 Carmickle, 533 F.3d at 1161 n.2 (court may decline to address an issue not raised 20 with specificity in Plaintiff’s briefing). 21 ORDER - 21 1 Moreover, a physician’s opinion may be rejected if it is based on a 2 claimant’s subjective complaints which were properly discounted. Tonapetyan v. 3 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec. 4 Admin., 169 F.3d 595, 602 (9th Cir. 1999); Fair, 885 F.2d at 604. “[W]hen an 5 opinion is not more heavily based on a patient’s self-reports than on clinical 6 observations, [this] is no evidentiary basis for rejecting the opinion.” Ghanim, 763 7 F.3d at 1162. Here, Dr. Rosekrans conducted a clinical interview that was based 8 entirely on Plaintiff’s self-reports. Though Dr. Rosekrans also performed a mental 9 status examination, he relied upon Plaintiff’s responses. Plaintiff does not 10 challenge this reason, thus it is waived. See Carmickle, 533 F.3d at 1161 n.2 (court 11 may decline to address an issue not raised with specificity in Plaintiff’s briefing). 12 As Dr. Rosekrans’ opinion appears largely based on the symptoms Plaintiff 13 reported, which the ALJ properly discounted, this was a specific and legitimate 14 reason to accord Dr. Rosekrans’ opinion less weight. 15 Next, the ALJ found Dr. Rosekrans’ opinion was not supported by his own 16 examination findings. Tr. 29. A medical opinion may be rejected by the ALJ if it 17 is conclusory, contains inconsistencies, or is inadequately supported. Bray, 554 18 F.3d at 1228; Thomas, 278 F.3d at 957. Moreover, a physician’s opinion may be 19 rejected if it is unsupported by the physician’s treatment notes. See Connett v. 20 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). The ALJ found Dr. Rosekrans’ 21 ORDER - 22 1 opinion inconsistent with Plaintiff’s “unremarkable presentation and mental 2 status.” Tr. 29. Dr. Rosekrans observed Plaintiff was nicely dressed and groomed; 3 Plaintiff’s speech was normal, not overly rapid or slow; Plaintiff “did not appear 4 anxious defensive, angry or sullen”; Plaintiff maintained appropriate eye contact 5 and cooperated during the evaluation; Plaintiff had “no signs of profound 6 depression”; Plaintiff was able to go to public spaces without excessive anxiety; 7 Plaintiff’s emotions did not seem “labile or excitable, nor did they seem flat or 8 overly subdued”; and finally, Plaintiff’s thought process, concentration, insight, 9 and judgment were all within normal limits. Tr. 415-16. Plaintiff’s contention that 10 Dr. Rosekrans’ opinion was “not inconsistent with Ms. Franco’s presentation,” 11 does not address the internal inconsistencies cited by the ALJ. ECF No. 18 at 11. 12 The inconsistency between Dr. Rosekrans’ observations and the limitations he 13 assessed constitutes a specific and legitimate reason for rejecting his opinion. 14 Bayliss, 427 F.3d at 1216. 15 Finally, the ALJ found Dr. Rosekrans’ opinion was inconsistent “with the 16 remainder of the record.” Tr. 29. An ALJ may discredit physicians’ opinions that 17 are unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, 18 the extent to which a medical source is “familiar with the other information in [the 19 claimant’s] case record” is relevant in assessing the weight of that source’s medical 20 opinion. See 20 C.F.R. § 416.927(c)(6). The ALJ noted inconsistencies with 21 ORDER - 23 1 Plaintiff’s routine treatment records from Plaintiff’s primary care physician, Dr. 2 Brown. Tr. 29. Dr. Griffin opined that all three one-time evaluations in the record 3 (of Drs. Rosekrans, Koenig, and Arnold) were inconsistent with Dr. Brown’s 4 treatment record which contained very little about Plaintiff’s psychiatric 5 complaints. Tr. 59-60. The ALJ also noted inconsistency with the credited portion 6 of Dr. Koenig’s opinion indicating Plaintiff was capable of perform simple tasks. 7 Tr. 29. Dr. Rosekrans’ opinion was also contradicted by the mild to moderate 8 limitations assessed by three non-examining doctors’ opinions, including medical 9 expert Dr. Griffin, who reviewed the longitudinal record. See Andrews v. Shalala, 10 53 F.3d 1035, 1041 (9th Cir. 1995) (explaining that non-examining source’s report 11 may serve as substantial evidence and may be used to reject an examining 12 physician’s opinion, if it is consistent with and supported by other evidence in the 13 record). 14 Plaintiff contends that Dr. Rosekrans’ opinion was consistent other part of 15 the record, ECF No. 18 at 11, however, this does not warrant a reversal or remand 16 of the ALJ’s decision because it amounts to no more than a dispute about the 17 ALJ’s interpretation of the evidence. It is well established that the ALJ is 18 responsible for resolving conflicts in medical testimony. Magallanes v. Bowen, 19 881 F.2d 747, 750 (9th Cir. 1989). Moreover, an ALJ may choose to give more 20 weight to an opinion that is more consistent with the evidence in the record. 20 21 ORDER - 24 1 C.F.R. § 416.927(c)(4) (“the more consistent an opinion is with the record as a 2 whole, the more weight we will give to that opinion”). “Where evidence is 3 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 4 must be upheld.” Burch, 400 F.3d at 679. 5 The ALJ identified specific and legitimate reasons supported by substantial 6 evidence for according little weight to Dr. Rosekrans’ opinion. 7 2. Elizabeth Koenig, M.D. (Aug. 2014) 8 Dr. Koenig performed a psychiatric interview and consultative examination 9 at the request of the Department of Disability Determination Services on August 10 31, 2014. Tr. 487-94. The only record she had available for review was the 11 evaluation of Dr. Rosekrans. Tr. 486-87. Though she noted the existence of 12 “diagnostic ambiguities,” Tr. 494, Dr. Koenig diagnosed: major depressive 13 disorder, recurrent (rule out bipolar II disorder, currently depressed, moderate-to14 severe without psychotic symptoms); attention deficit hyperactivity disorder, 15 combined type, provisional; anxiety disorder, NOS, with panic and generalized 16 anxiety, perhaps some PTSD symptoms; rule out of alcohol abuse in sustained full 17 remission; and rule out personality disorder, not otherwise specified, with cluster B 18 traits (particularly borderline) and perhaps schizotypal traits. Tr. 493. Dr. Koenig 19 assessed a GAF score of 62. Dr. Koenig opined Plaintiff could perform simple 20 tasks well, but would have difficult with tasks requiring more sustained 21 ORDER - 25 1 concentration (including math) or multiple step commands. Tr. 494. Dr. Koenig 2 further opined that without stabilization of her mood and anxiety, she is “likely to 3 have difficulty with regular attendance at work as she has been having with her 4 classes.” Tr. 494. She also opined Plaintiff’s lability and rapid speech “may” 5 interfere with effective communication. Id. 6 The ALJ accorded significant weight to the portion of Dr. Koenig’s opinion 7 suggesting Plaintiff could perform simple tasks and the GAF score assessment. Tr. 8 29. The ALJ accorded little weight to the remainder of her opinion citing three 9 reasons. Id. 10 First, the ALJ found Dr. Koenig’s opinion inconsistent with the treatment 11 record of Plaintiff’s primary treating physician, Dr. Brown. Tr. 29. An ALJ may 12 reject a physician’s findings that are unsupported by the record as a whole or by 13 objective medical findings. Batson, 359 F.3d at 1195. The ALJ noted Plaintiff’s 14 “candid presentation with Dr. Brown “showed no significant mental symptoms or 15 communications deficits.” Tr. 29. The ALJ referred to Dr. Brown’s nearly 16 contemporaneous treatment record from August 11, 2014, just twenty days prior to 17 the evaluation with Dr. Koenig on August 31, 2014. At Plaintiff’s August 11 18 appointment with Dr. Brown, Plaintiff presented with primary complaints of left 19 otalgia and “associated fatigue,” left hip pain, and headaches. Tr. 541, 543 20 (endorsing depression and anxiety in Dr. Brown’s review of systems). The ALJ 21 ORDER - 26 1 found it notable that just days later, Dr. Koenig opined that Plaintiff’s “degree of 2 depression and distress with which she presents,” would likely result in Plaintiff 3 having attendance difficulties at work as she has had with her cosmetology classes. 4 Tr. 494. In yet another example, Dr. Brown noted Plaintiff was “communicative” 5 with a normal affect, Tr. 544, meanwhile Dr. Koenig opined rapid speech might 6 interfere with effective communication, Tr. 494. These inconsistencies with the 7 contemporaneous treatment record provided a specific and legitimate reason to 8 accord less weight to Dr. Koenig’s opinion that Plaintiff would likely have 9 attendance and communication difficulties. 10 Second, the ALJ found Dr. Koenig’s opinion was internally inconsistent 11 with the assessed GAF score of 62, which the ALJ found was “indicative of an 12 individual with some mild symptoms or some difficulty in social or occupational 13 functioning, but generally functioning pretty well.” Tr. 29. An ALJ may reject 14 opinions that are internally inconsistent. Nguyen, 100 F.3d at 1464. An ALJ is not 15 obliged to credit medical opinions that are unsupported by the medical source’s 16 own data and/or contradicted by the opinions of other examining medical sources. 17 Tommasetti, 533 F.3d at 1041. As noted by the Ninth Circuit, “a GAF score is 18 merely a rough estimate of an individual psychological, social, or occupational 19 functioning used to reflect an individual’s need for treatment, [ ] it does not have 20 any direct correlate of work-related or functional limitations.” Hughes v. Coleman, 21 ORDER - 27 1 599 Fed. Appx. 765, 766 (9th Cir. April 15, 2015) (unpublished opinion) (citation 2 omitted). Plaintiff does not address this reason, ECF No. 18 at 12-13, thus it is 3 waived. See Carmickle, 533 F.3d at 1161 n.2 (court may decline to address an 4 issue not raised with specificity in Plaintiff’s briefing). Even if the Court were to 5 consider the issue, because the ALJ offered other specific and legitimate reasons to 6 discount Dr. Koenig’s opinion, any potential error in consideration of the GAF 7 score is inconsequential to this overall disability determination and is therefore 8 harmless. See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 9 2006). 10 Finally, the ALJ rejected Dr. Koenig’s opinion that Plaintiff’s struggle with 11 attendance in cosmetology school was an indicator Plaintiff would likely struggle 12 with attendance at work. Tr. 29. The ALJ’s findings are upheld if they are 13 supported by inferences reasonably drawn from the record. See Molina, 674 F.3d 14 at 1111. Plaintiff was self-employed as a fulltime child care provider for many 15 years leading up to her alleged date of onset. Tr. 271. Plaintiff then nearly 16 completed cosmetology school, despite the demands and attendance problems. Dr. 17 Griffin testified that the ability to maintain regular attendance at work would 18 depend on the “nature and demand of the work,” and that Dr. Koenig’s concern 19 about attendance was not made in reference to “any specific set of work demands 20 or work conditions.” Tr. 63. As discussed supra, based on this record, it was 21 ORDER - 28 1 reasonable for the ALJ to conclude the demands of cosmetology school were 2 greater than the simple work contemplated by the RFC, and to reject the contention 3 Plaintiff’s absenteeism at school correlates to her ability to complete a typical work 4 day or work week. Accordingly, the ALJ was entitled and did here reasonably 5 reject Dr. Koenig’s opinion regarding absenteeism by providing specific and 6 legitimate reasons in support of his conclusion. 7 3. John Arnold, Ph.D. (Sept. 2015) 8 On September 28, 2015, Dr. Arnold completed a psychological evaluation 9 diagnosing Plaintiff with persistent depressive disorder, late onset; generalized 10 anxiety disorder; rule out somatic symptom disorder; attention deficit disorder; and 11 borderline and dependent personality features, rule out disorder. Tr. 536-40. Dr. 12 Arnold assessed marked limitations in the abilities to: (i) adapt to changes in a 13 routine work setting; (ii) be aware of normal hazards and take appropriate 14 precautions; and (iii) complete a normal work day and work week without 15 interruptions from psychologically based symptoms. Dr. Arnold recommended 16 stable housing, medical care and psychiatric services/counseling. Tr. 539. The 17 ALJ accorded little weight to Dr. Arnold’s assessment. Tr. 30. 18 First, the ALJ rejected Dr. Arnold’s opinion because it was “cursory” and 19 provided in a check-box form. Tr. 30. A medical opinion may be rejected by the 20 ALJ if it is conclusory or inadequately supported. Bray, 554 F.3d at 1228; 21 ORDER - 29 1 Thomas, 278 F.3d at 957. Also, individual medical opinions are preferred over 2 check-box reports. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); 3 Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). An ALJ may permissibly 4 reject check-box reports that do not contain any explanation of the bases for their 5 conclusions. Crane, 76 F.3d at 253. However, if treatment notes are consistent 6 with the opinion, a check-box form may not automatically be rejected. See 7 Garrison, 759 F.3d at 1014 n.17; see also Trevizo v. Berryhill, 871 F.3d 664, 667 8 n.4 (9th Cir. 2017) (“[T]here is no authority that a ‘check-the-box’ form is any less 9 reliable than any other type of form”). 10 As the ALJ noted, Dr. Arnold’s testing showed “mild impairment” on Trails 11 A, but memory, insight, and judgment within normal limits; thus, Dr. Arnold’s 12 testing did not support the ALJ’s conclusion Plaintiff would have difficulty 13 adapting to change or being aware of hazards. As a one-time examining provider, 14 Dr. Arnold did not have an ongoing relationship with Plaintiff in order to lend 15 support to these opinions. Accordingly, without other explanation, the fact Dr. 16 Arnold’s opinion was cursory was a specific and legitimate reason to reject Dr. 17 Arnold’s opinion. 18 Next, the ALJ also rejected Dr. Arnold’s opinion was because, like Dr. 19 Rosekrans and Dr. Koenig’s opinions, it was not consistent with contemporaneous 20 treatment records of Dr. Brown. Tr. 30. It is well established that the ALJ is 21 ORDER - 30 1 responsible for resolving conflicts in the medical evidence. Magallanes, 881 F.2d 2 at 750. In March 2015, just six months prior to Dr. Arnold’s September 2015 3 evaluation, Dr. Brown noted Plaintiff was “alert and cooperative,” and had a 4 “normal mood and affect without evidence of depression and anxiety,” “normal 5 attention span,” and “good eye contact” with open conversation. Tr. 547. At her 6 visit with Dr. Brown in November 2015, Plaintiff had no psychiatric complaints, 7 Tr. 548, and in January 2016, Dr. Brown indicated Plaintiff’s symptoms of 8 depression were “well controlled with medication.” Tr. 557. Plaintiff does not 9 specifically challenge this reason as a basis for rejection of Dr. Arnold’s opinion. 10 ECF No. 18 at 13. 11 The ALJ identified legitimate and specific reasons supported by substantial 12 evidence for according little weight to Dr. Arnold’s opinion. 13 4. William Brown, M.D. (Aug. 2016) 14 The record also contains a letter dated August 29, 2016 from Plaintiff’s 15 treating physician, Dr. Brown, who began treating her in December 2013. Tr. 585. 16 Dr. Brown indicates that he has treated Plaintiff for “severe” depression, anxiety, 17 and arthralgias. Id. He further states: 18 19 Plaintiff states that the above conditions prevent her from pursuing her career as a cosmetologist for which she has been trained. She develops severe fatigue after cutting the hair of 3-4 clients and is not able to put in a full day’s work because of the above symptoms. 20 21 ORDER - 31 1 Id. 2 The ALJ gave little weight to Dr. Brown’s “opinion,” while acknowledging 3 that Dr. Brown is a treating source. Tr. 31. However, the deference ordinarily 4 owed a treating physician does not apply where, as found by the ALJ, Dr. Brown’s 5 letter is not a medical opinion, but a recitation of Plaintiff’s subjective complaints. 6 Tr. 31. Moreover, the opinion that Plaintiff is unable to work as a cosmetologist is 7 not entitled to special significance, as it is a statement on an issue reserved to the 8 Commissioner. 20 C.F.R. § 404.1527 (d) (3) (“We will not give any special 9 significance to the source of an opinion on issues reserved to the Commissioner . . . 10 .”); 20 C.F.R. § 416.927(d). 11 Assuming the ALJ was required to consider and weight the statement, an 12 ALJ may reject a treating physician’s opinion that is premised primarily on 13 subjective complaints that the ALJ properly discounted. Tonapetyan, 242 F.3d at 14 1149. The ALJ found that Dr. Brown’s letter did not offer an opinion based upon 15 objective findings from his treatment notes, but reiterated what Plaintiff told him. 16 Tr. 31. 17 The ALJ further found that Dr. Brown’s treatment notes were internally 18 inconsistent even with Dr. Brown’s characterization of Plaintiff’s depression, 19 anxiety, and arthralgia as “severe.” Tr. 31. Dr. Brown’s treatment notes reflected 20 Plaintiff’s depression was “well controlled” with medication, Tr. 566, and as to 21 ORDER - 32 1 arthralgia, Plaintiff suffered from a rash and “intermittent swelling of the hands 2 and ankles,” which was improved with massage and application of warm water. 3 Tr. 561. The Court concludes the ALJ’s interpretation of the evidence is 4 reasonable and supported by substantial evidence. Accordingly, the ALJ also set 5 forth specific and legitimate reasons for assigning little weight to Dr. Brown’s 6 letter based upon Dr. Brown’s reliance upon Plaintiff’s unreliable self-report and 7 its inconsistency with his own treatment records. 8 5. Reviewing Sources 9 Finally, Plaintiff contends the ALJ erred by rejecting all of the treating and 10 examining physicians in the file, while relying upon the opinions of non-treating, 11 non-examining physicians Drs. Eather, Covell, and Griffin. ECF No. 18 at 14. 12 Plaintiff contends these opinions cannot by themselves justify the rejection of the 13 opinion of a treating physician. ECF No. 18 at 15 (citing Lester, 81 F.3d at 831). 14 The opinion of a non-examining expert “may constitute substantial evidence when 15 it is consistent with other independent evidence in the record.” Tonapetyan, 242 16 F.3d at 1149. Because the ALJ properly discounted the opinion evidence of Drs. 17 Rosekrans, Koenig, Arnold and Brown, the ALJ did not error in relying on the 18 opinion evidence from the reviewing consultants and testifying medical expert in 19 assessing Plaintiff’s RFC. The ALJ further found that this evidence was consistent 20 21 ORDER - 33 1 with the treatment record, including the treatment notes of Dr. Brown. In 2 combination, these findings amount to substantial evidence. 3 4 C. Lay Evidence Plaintiff challenges the ALJ’s treatment of statements provided by Jane 5 Lederer, Plaintiff’s mother. ECF No. 18 at 15. 6 An ALJ must consider the statements of lay witnesses in determining 7 whether a claimant is disabled. Stout, 454 F.3d at 1053. Lay witness evidence 8 cannot establish the existence of medically determinable impairments, but lay 9 witness evidence is “competent evidence” as to “how an impairment affects [a 10 claimant’s] ability to work.” Id.; 20 C.F.R. § 416.913; see also Dodrill v. Shalala, 11 12 F.3d 915, 918-19 (9th Cir. 1993) (“[F]riends and family members in a position 12 to observe a claimant’s symptoms and daily activities are competent to testify as to 13 her condition.”). If lay witness statements are rejected, the ALJ “‘must give 14 reasons that are germane to each witness.’” Nguyen, 100 F.3d at 1467 (9th Cir. 15 1996) (citing Dodrill, 12 F.3d at 919). 16 The ALJ summarized Ms. Lederer’s July 2014 Third Party Function Report, 17 Tr. 295-302, and August 2016 letter, Tr. 338. Tr. 31. Ms. Lederer indicated 18 Plaintiff’s impairments affect her numerous ways both mentally and physically. 19 Tr. 300. For example, Ms. Lederer indicated Plaintiff has trouble concentrating 20 and needs encouragement to perform activities of daily living, Tr. 338; Plaintiff 21 ORDER - 34 1 hates change and misses school because of depression or anxiety, Tr. 299; Plaintiff 2 constantly talks and has trouble sleeping, Tr. 338; her anxiety and depression 3 “seem to rule her simple life,” Tr. 338; and her anxiety “kicks in” if she is around 4 more than one or two good friends or family, Tr. 338. 5 The ALJ accorded Ms. Lederer’s statements “little weight,” for the same 6 reasons he discounted Plaintiff’s symptom claims including the inconsistency with 7 the treatment record and lack of support in the medical record. Tr. 32. If the ALJ 8 gives germane reasons for rejecting testimony by one witness, the ALJ need only 9 point to those reasons when rejecting similar testimony by a different witness. 10 Molina, 674 F.3d at 1114; see Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 11 685, 694 (9th Cir. 2009) (holding that because the ALJ provided clear and 12 convincing reasons for rejecting the claimant’s own subjective complaints, and 13 because the lay witness’s testimony was similar to such complaints, it follows that 14 the ALJ also gave germane reasons for rejecting the lay witness’s testimony). 15 Thus, the ALJ’s well-supported reasons for rejecting Plaintiff’s subjective 16 symptoms claims apply as well to Ms. Lederer’s statements. The Court concludes 17 the ALJ gave germane reasons for rejecting the lay witness statements. Moreover, 18 Plaintiff does not articulate any additional limitations identified by Ms. Lederer 19 that the ALJ should have adopted, ECF No. 18 at 15, accordingly any error in 20 consideration of Ms. Lederer’s statements was harmless. Stout, 454 F.3d at 1055 21 ORDER - 35 1 (error harmless where it is non-prejudicial to claimant or irrelevant to ALJ’s 2 ultimate disability conclusion). 3 4 D. Step Five Finally, Plaintiff’s contends the ALJ erred at step five, because the ALJ 5 relied upon a RFC and hypothetical that failed to include all of Plaintiff’s 6 limitations, including consistent absenteeism more than one day a month. ECF No. 7 18 at 18. 8 However, the ALJ’s RFC need only include those limitations found credible 9 and supported by substantial evidence. Bayliss, 427 F.3d at 1217 (“The 10 hypothetical that the ALJ posed to the VE contained all of the limitations that the 11 ALJ found credible and supported by substantial evidence in the record.”). The 12 hypothetical that ultimately serves as the basis for the ALJ’s determination, i.e., the 13 hypothetical that is predicated on the ALJ’s final RFC assessment, must account 14 for all of the limitations and restrictions of the particular claimant. Bray, 554 F.3d 15 1219, 1228 (9th Cir. 2009). “If an ALJ’s hypothetical does not reflect all of the 16 claimant’s limitations, then the expert’s testimony has no evidentiary value to 17 support a finding that the claimant can perform jobs in the national economy.” Id. 18 However, the ALJ “is free to accept or reject restrictions in a hypothetical question 19 that are not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 20 973 (9th Cir. 2006). A claimant fails to establish that a step five determination is 21 ORDER - 36 1 flawed by simply restating argument that the ALJ improperly discounted certain 2 evidence, when the record demonstrates the evidence was properly rejected. 3 Stubbs–Danielson, 539 F.3d at 1175–76. 4 Plaintiff contends the opinions of Dr. Koenig and Dr. Griffin, as well as 5 Plaintiff’s school records, demonstrate Plaintiff would have “attendance issues if 6 required to work,” a limitation which the RFC did not accommodate. ECF No. 18 7 at 18. Plaintiff contends her expected absences in excess of once per month make 8 her unable to sustain employment according to the vocational expert testimony. Id. 9 Plaintiff’s argument is based entirely on the assumption that the ALJ erred in 10 considering the medical opinion evidence and Plaintiff’s symptom claims. See 11 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (challenge to 12 ALJ’s step five findings was unavailing where it “simply restates [claimant’s] 13 argument that the ALJ’s RFC finding did not account for all her limitations”). For 14 reasons discussed throughout this decision, the ALJ’s adverse finding in regards to 15 Plaintiff’s subjective symptom claims and consideration of the medical opinion 16 evidence are legally sufficient and supported by substantial evidence. Thus, the 17 ALJ did not err in assessing the RFC and posed a hypothetical to the vocational 18 expert that incorporated all of the limitations in the ALJ’s RFC determination, to 19 which the expert responded that jobs within the national economy exist that 20 Plaintiff could perform. The ALJ properly relied upon this testimony to support 21 ORDER - 37 1 the step five determination. Therefore, the ALJ’s step five determination that 2 Plaintiff was not disabled within the meaning of the Social Security Act was proper 3 and supported by substantial evidence. 4 5 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 6 substantial evidence and free of harmful error. IT IS ORDERED: 7 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is DENIED. 8 2. Defendant’s Motion for Summary Judgment, ECF No. 22, is 9 GRANTED. 10 The District Court Executive is directed to file this Order, enter 11 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 12 THE FILE. 13 DATED September 26, 2018. 14 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 ORDER - 38
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