Taylor v. Commissioner of Social Security, No. 2:2018cv00093 - Document 17 (E.D. Wash. 2019)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 13 is DENIED. Defendants Motion for Summary Judgment ECF No. 15 is GRANTED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Taylor v. Commissioner of Social Security Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 LEONA T., NO: 2:18-CV-0093-TOR Plaintiff, 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 13 and 15). This matter was submitted for consideration 15 without oral argument. The Court has reviewed the administrative record and the 16 parties’ completed briefing and is fully informed. For the reasons discussed below, 17 the Court grants Defendant’s motion and denies Plaintiff’s motion. JURISDICTION 18 19 20 The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 7 relevant evidence that “a reasonable mind might accept as adequate to support a 8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a 10 preponderance.” Id. (quotation and citation omitted). In determining whether this 11 standard has been satisfied, a reviewing court must consider the entire record rather 12 than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is 15 susceptible to more than one rational interpretation, [the court] must uphold the 16 ALJ’s findings if they are supported by inferences reasonably drawn from the 17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 18 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 19 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 20 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 The party appealing the ALJ’s decision generally bears the burden of establishing 2 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 3 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 4 A claimant must satisfy two conditions to be considered “disabled” within 5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 10 impairment must be “of such severity that he is not only unable to do his previous 11 work[,] but cannot, considering his age, education, and work experience, engage in 12 any other kind of substantial gainful work which exists in the national economy.” 13 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to 15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 16 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 17 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 18 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 19 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 20 404.1520(b), 416.920(b). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 If the claimant is not engaged in substantial gainful activities, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 4 claimant suffers from “any impairment or combination of impairments which 5 significantly limits [his or her] physical or mental ability to do basic work 6 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 7 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 8 however, the Commissioner must find that the claimant is not disabled. Id. 9 At step three, the Commissioner compares the claimant’s impairment to 10 several impairments recognized by the Commissioner to be so severe as to 11 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 12 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 13 severe than one of the enumerated impairments, the Commissioner must find the 14 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 15 If the severity of the claimant’s impairment does meet or exceed the severity 16 of the enumerated impairments, the Commissioner must pause to assess the 17 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 404.1545(a)(1), 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 2 analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv), 6 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 7 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 8 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 9 analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 13 the Commissioner must also consider vocational factors such as the claimant’s age, 14 education and work experience. Id. If the claimant is capable of adjusting to other 15 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 16 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 17 work, the analysis concludes with a finding that the claimant is disabled and is 18 therefore entitled to benefits. Id. 19 20 The claimant bears the burden of proof at steps one through four above. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 analysis proceeds to step five, the burden shifts to the Commissioner to establish 2 that (1) the claimant is capable of performing other work; and (2) such work 3 “exists in significant numbers in the national economy.” 20 C.F.R. §§ 4 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 5 6 ALJ’S FINDINGS Plaintiff filed applications for disability insurance benefits and supplemental 7 security income disability benefits on March 4, 2015, alleging a disability onset 8 date of December 19, 2014. Tr. 18. These applications were denied initially and 9 upon reconsideration, and Plaintiff requested a hearing. Tr. 18. A hearing was 10 held before an Administrative Law Judge on October 25, 2016. Tr. 18. The ALJ 11 rendered a decision denying Plaintiff benefits on January 11, 2017. Tr. 15-32. 12 The ALJ found that Plaintiff met the insured status requirements of the 13 Social Security Act through December 31, 2015. Tr. 20. At step one, the ALJ 14 found that Plaintiff had not engaged in substantial gainful activity since December 15 19, 2014, the alleged onset date. Tr. 20. At step two, the ALJ found that Plaintiff 16 has the following severe impairments: 17 18 19 major depressive disorder, posttraumatic stress disorder (PTSD), social anxiety disorder, panic disorder, borderline personality disorder, alcohol use disorder, cannabis use disorder, osteoarthritis right knee status post replacement surgery April 4, 2016, obesity, cervical degenerative disc disease, and degenerative joint disease right shoulder (20 CFR 404.1520(c) and 416.920(c)). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 Tr. 20. At step three, the ALJ found that Plaintiff’s severe impairments did not 2 meet or medically equal a listed impairment. Tr. 21-22. The ALJ then determined 3 that Plaintiff had the residual functional capacity to: 4 5 6 7 8 9 [P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following exceptions: she cannot climb ladders, ropes, or scaffolds, kneel, or crawl, and she can occasionally perform all other postural activities; with her right upper extremity, she can only occasionally reach overhead and frequently reach in all other directions; she can have occasional exposure to extreme cold; she can have no exposure to hazards, such as unprotected heights and moving mechanical parts; she is limited to simple, routine, and repetitive task with a reasoning level of 2 or less; she needs a routine and predictable work environment requiring no more than simple decision-making; she can have no contact with the public and only occasional superficial contact with supervisor and coworkers; and she cannot work at an assembly line pace. 10 11 Tr. 24. At step four, the ALJ found that Plaintiff was unable to perform any past 12 relevant work. Tr. 30. The ALJ then found that (1) Plaintiff is “an individual 13 closely approaching advanced age,” (2) Plaintiff “has a limited education and is 14 able to communicate in English[,]” and (3) the “[t]ransferability of job skills is not 15 material to the determination of disability[.]” Tr. 30. The ALJ then found that, 16 based on Plaintiff’s age, education, work experience, and residual functioning 17 capacity, there are jobs that exist in significant number in the national economy 18 that the claimant can perform[,]” including garment sorter, mail clerk, and 19 housekeeping cleaner. TR. 30-31. The ALJ concluded that Plaintiff has not been 20 under a disability through the date of the decision. Tr. 31. In light of these ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 findings, the ALJ concluded that Plaintiff was not disabled under the Social 2 Security Act and denied her claims on that basis. Tr. 32. 3 The Appeals Council denied Plaintiff’s request for review on January 18, 4 2018, Tr. 1-7, making the ALJ’s decision the Commissioner’s final decision for 5 purposes of judicial review. 20 C.F.R. §§ 404.981, 416.1484, and 422.210. 6 ISSUES 7 Plaintiff raises three issues for review: 8 1. Whether the ALJ committed harmful error in rejecting medical opinions; 9 10 2. Whether the ALJ committed harmful error in rejecting Plaintiff’s subjective complaints; and 11 3. Whether the ALJ erred at step five. 1 12 ECF No. 17 at 3. 13 // 14 // 15 // 16 17 1 18 in discounting the medical opinion of Dr. Duris, Dr. Crosier, and Dr. Martin. 19 Because the Court disagrees with Plaintiff’s argument regarding the medical 20 opinions, the Court need not address this issue. This issue is wholly dependent upon Plaintiff’s argument that the ALJ erred ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 2 3 DISCUSSION A. Opinions of Treating Sources There are three types of physicians: “(1) those who treat the claimant 4 (treating physicians); (2) those who examine but do not treat the claimant 5 (examining physicians); and (3) those who neither examine nor treat the claimant 6 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 7 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 8 Generally, a the opinion of a treating physician carries more weight than the 9 opinion of an examining physician, and the opinion of an examining physician 10 carries more weight than the opinion of a reviewing physician. Id. In addition, the 11 Commissioner’s regulations give more weight to opinions that are explained than 12 to opinions that are not, and to the opinions of specialists on matters relating to 13 their area of expertise over the opinions of non-specialists. Id. (citations omitted). 14 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 15 reject it only by offering “clear and convincing reasons that are supported by 16 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 17 “If a treating or examining doctor’s opinion is contradicted by another doctor’s 18 opinion, an ALJ may only reject it by providing specific and legitimate reasons 19 that are supported by substantial evidence.” Id. (citing Lester v. Chater, 81 F.3d 20 821, 830-831 (9th Cir. 1995)). Regardless of the source, an ALJ need not accept a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 physician’s opinion that is “brief, conclusory and inadequately supported by 2 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d at 1228 3 (quotation and citation omitted). 4 1. Opinion of Dr. Duris 5 Dr. Duris diagnosed Plaintiff with major depressive disorder, recurrent, 6 panic disorder without agoraphobia, and borderline personality disorder. Dr. Duris 7 opined that Plaintiff suffers a marked limitation in her ability to (1) adapt to 8 changes in a routine work setting, (2) communicate and perform effectively in a 9 work setting, (3) complete a normal work day and work week without interruptions 10 from psychologically based symptoms, and (4) maintain appropriate behavior in a 11 work setting. Tr. 440. Dr. Duris conducted two mental status examinations with 12 identical results. Under part 1 of the mental status examinations, Dr. Duris 13 observed that Plaintiff (1) appeared adequately groomed and with adequate 14 hygiene, her clothes were appropriate for weather and situation, (2) her speech was 15 normal in terms of amount, productivity, flow and rate, there was no evidence of 16 pressured, slurred stuttering or halting in her speech pattern, (3) she presented as 17 generally open, cooperative, and relatively genuine in her responses, (4) her mood 18 was generally depressed, and (5) affective expression was labile. Tr. 385, 441. 19 Under part 2, Dr. Duris indicated Plaintiff was within normal limits in all 20 categories: (1) thought process and content, (2) orientation, (3) perception, (40 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 memory, (5) fund of knowledge, concentration, (6) abstract though, and (7) insight 2 and judgment. Tr. 385-86, 442. 3 The ALJ “gave little weight to the Department of Social and Health Services 4 evaluations by Mark Duris, Ph.D., completed on May 6, 2014 and March 3, 2015.” 5 Tr. 19. Among other things, the ALJ reasonably found that the opinion of Dr. 6 Duris that Plaintiff has moderate to marked functional limitations is not consistent 7 with normal mental status examination results reported by Dr. Duris. Tr. 19. 8 Accordingly, the Court finds that the ALJ did not commit reversible error in 9 discounting the opinion. Bayliss v. Barnhart, 427 F.3d at 1216 (inconsistency 10 within physician’s records is a clear and convincing reason for discounting the 11 opinion); see Bray, 554 F.3d at 1228 (an ALJ need not accept a physician’s 12 opinion that is “brief, conclusory and inadequately supported by clinical 13 findings.”). Moreover, the ALJ properly discounted the opinion of Dr. Duris 14 because his opinion was not based on a complete record, as Plaintiff falsely denied 15 a history of drug and alcohol use when reporting to Dr. Duris. See McFeely v. 16 Colvin, 2014 WL 2918552, at *2 (E.D. Wis. June 27, 2014). The failure to report 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 the substance abuse is not trivial given other medical opinions suggest Plaintiff’s 2 symptoms may be related, at least in part, to her substance use.2 3 2. Dr. Crosier 4 Dr. Jonathan P. Crosier treated Plaintiff when she was admitted to the 5 emergency room after she slipped and fell the night before. Dr. Crosier observed 6 that Plaintiff was in moderate discomfort and had a slow deliberate gait with 7 normal station. Tr. 833. Dr. Crosier determined she had a back strain and 8 prescribed 12 tablets of Norco 5/325 mg as needed for pain and 30 tablets for 9 Flexeril for muscle spasms. He recommended Plaintiff “keep active, but avoid 10 aggressive activity such as running, jumping, or heavy lifting.” Tr. 833. 11 Plaintiff appears to argue that the ALJ erred in finding that Dr. Crosier’s 12 exam finding were benign. ECF No. 13 at 13. Plaintiff’s entire argument on this 13 point follows: 14 The ALJ asserted that Dr. Crosier’s exam findings were benign. (Tr. 21). However, Dr. Crosier’s objective findings included decreased range of motion of her spine, tenderness of muscles in the low back, and muscle 15 16 2 17 aware of the substance abuse, “it raises questions about whether or not all of those 18 symptoms that he listed that meet the diagnostic criteria for depression would still 19 be considered as symptoms of depression if the substance use was take into 20 account.” Tr. 65. At the hearing, Dr. Marian F. Martin testified that because Dr. Duris was not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 tension. He prescribed pain medication. (Tr. 833). Thus, his examination results indicated a legitimate complaint of back pain. 2 3 ECF No. 13 at 13. The ALJ did not commit reversible error. First, the ALJ’s 4 conclusion that the results of the examination are benign is an observation about 5 the findings of Dr. Martin that is reviewed for substantial evidence; the ALJ does 6 not specifically discount the opinion of Dr. Martin. Even if Plaintiff is correct that 7 the examination demonstrates Plaintiff has a “legitimate complaint of back pain,” 8 Plaintiff must prove the back pain causes more than minimal limitations to 9 Plaintiff’s ability to perform work activity to be considered a severe impairment. 10 Plaintiff has not argued this point. Nor has Plaintiff explained how the back pain 11 limited Plaintiff in a manner more severe than what is accounted for in the RFC. 12 Moreover, the complained of back pain was caused by a fall, and Plaintiff does not 13 argue the symptoms continued. 3 Plaintiff has thus not met her burden of showing 14 the ALJ committed harmful error. See Shinseki, 556 U.S. at 409-10. 15 // 16 // 17 18 3 19 symptoms continued, Tr 841, but Plaintiff does not point to any record showing the 20 pain continued. Notably, Plaintiff was told to follow up with her primary care provider if ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 3. Dr. Martin 2 Dr. Marian F. Martin provided expert testimony at the hearing. Tr. 47. 3 During an extensive back and forth regarding the potential and documented effects 4 of Plaintiff’s substance abuse, Dr. Martin opined that Plaintiff would have a 5 marked limitation in concentration, persistence and pace[,]” reasoning: “based on 6 my experience and research, I don’t think somebody who’s using marijuana daily 7 and alcohol a few times a week or on weekends is going to make it to work on any 8 kind of regular basis.” Tr. 60. The ALJ inquired whether “there’s any specific 9 affirmative evidence in this file that suggest she’s ever actually experienced that 10 degree of limitation in concentration, persistence and pace, even while, you know, 11 abusing substances.” Tr. 62. Dr. Martin could not point to any evidence. See Tr. 12 62. 13 Plaintiff argues that the ALJ erred in rejecting Dr. Martin’s opinion that 14 Plaintiff would have occasional absenteeism. ECF No. 13 at 13. The ALJ rejected 15 the opinion of Dr. Martin only as to his opinion that Plaintiff would have 16 occasional absenteeism because of marijuana use. Tr. 28. The ALJ correctly 17 found that this was merely an opinion based on general experience, rather than the 18 medical evidence in the record. TR. 28-29. An ALJ may reject an opinion that is 19 unsupported by clinical findings. Bayliss, 427 F.3d at 1216. As such, the ALJ did 20 not err in discounting the opinion of Dr. Martin. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2 B. Adverse Credibility Determination In social security proceedings, a claimant must prove the existence of 3 physical or mental impairment with “medical evidence consisting of signs, 4 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A 5 claimant’s statements about his or her symptoms alone will not suffice. 20 C.F.R. 6 §§ 416.908; 416.927. Once an impairment has been proven to exist, the claimant 7 need not offer further medical evidence to substantiate the alleged severity of his or 8 her symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 9 As long as the impairment “could reasonably be expected to produce [the] 10 symptoms,” the claimant may offer a subjective evaluation as to the severity of the 11 impairment. Id. This rule recognizes that the severity of a claimant’s symptoms 12 “cannot be objectively verified or measured.” Id. at 347 (quotation and citation 13 omitted). 14 If an ALJ finds the claimant’s subjective assessment unreliable, “the ALJ 15 must make a credibility determination with findings sufficiently specific to permit 16 [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant’s 17 testimony.” Thomas v. Barnhart, 278 F .3 d 947, 958 (9th Cir. 2002). In making 18 this determination, the ALJ may consider, inter alia: (1) the claimant’s reputation 19 for truthfulness; (2) inconsistencies in the claimant’s testimony or between his 20 testimony and his conduct; (3) the claimant’s daily living activities; (4) the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 claimant’s work record; and (5) testimony from physicians or third parties 2 concerning the nature, severity, and effect of the claimant’s condition. Id. If there 3 is no evidence of malingering, the ALJ’s reasons for discrediting the claimant’s 4 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 5 661, 672 (9th Cir. 2012) (quotation and citation omitted). The ALJ “must 6 specifically identify the testimony she or he finds not to be credible and must 7 explain what evidence undermines the testimony.” Holohan, 246 F.3d at 1208. 8 9 The ALJ did not err in finding Plaintiff was not entirely credible. The ALJ found several inconsistencies between Plaintiff’s alleged limitations and her actual 10 conduct, and otherwise found her claimed symptoms were not supported by the 11 record. These are clear and convincing reasons for discounting Plaintiff’s 12 credibility, and are supported by substantial evidence. First, Plaintiff’s alleged 13 limitations were not consistent with the ALJ’s own observation at the hearing. 14 Plaintiff testified that she could sit for only 20 minutes at a time, yet – as the ALJ 15 observed – she did not stand for an hour during the hearing, and only stood up after 16 the ALJ pointed out that Plaintiff had been sitting for an hour. Tr. 25. Plaintiff 17 testified that it was unusual for her to sit for that long, and that she stood up only 18 after receiving confirmation that she was free to stand up if necessary, and that she 19 was experiencing pain as a result of sitting for so long. ECF No. 13 at 16. 20 However, the ALJ specifically told the Plaintiff at the beginning of the hearing: “I ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 want you to please try to relax. I want you to make yourself as comfortable as you 2 can, and do whatever you need to do throughout the hearing to keep yourself 3 comfortable[.]” Tr. 41. Second, the ALJ found an inconsistency between 4 Plaintiff’s testimony and the record regarding her church attendance,4 which is 5 significant given the alleged severity of Plaintiff’s social limitations (at the 6 hearing, Plaintiff alleged she only attended once because there are too many 7 people). Tr. 25. Third, the ALJ found that Plaintiff’s activities of daily living – 8 including gardening, household chores, going to the library, food bank, grocery 9 store, church, and Bible study groups – undermine the claimant’s symptom 10 allegations. Tr. 28. For example, Plaintiff indicated that she did not spend time 11 12 4 13 and Bible study once since the alleged onset date – was not consistent with the 14 record. Tr. 28; compare Tr. 85 (Plaintiff testifying that she has “gone to church 15 once and Bible study once), with TR. 726 (February 24, 2016: Plaintiff reported 16 that she had attended a women’s bible study group), Tr. 732 (March 14, 2016: 17 “Plaintiff “reports that she has been attending church study groups each week and 18 she went to church once.”), and Tr. 84 (testimony on October 25, 2016: Plaintiff 19 admitting she went to church “about a month ago”). The ALJ found Plaintiff’s testimony – that she had only been to church once 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 with others and did not go anywhere on a regular basis, Tr. 287, yet she admitted 2 she was “making friends with her neighbors and trying to expand her social 3 network[,]” had “been attending church study groups each week[,]” Tr. 732, and 4 had kept in contact with women from her church and her pastor for support after 5 her knee surgery, Tr. 737. See also Tr. 749 (“CSS praised and discussed ongoing 6 support from church group, friends and family”). Finally, the ALJ observed that, 7 despite Plaintiff’s testimony that “she stays in bed three to four days if she is 8 depressed and this happens every two to three months” and suffers from panic 9 attacks that cause “heart palpations, sweating, shaking, crying, diarrhea, and 10 vomiting[,]” Tr. 25, Plaintiff “did not report to treatment providers that she stayed 11 in bed three to four days every two to three months, nor did she report symptoms 12 of vomiting and diarrhea from anxiety approximately every three months[,]” Tr. 13 27. 14 Whether viewed in terms of inconsistency or a change in Plaintiff’s ability to 15 cope with others, the ALJ did not err in finding Plaintiff alleged limitations were 16 inconsistent with the record. An observed contradiction between the Plaintiff’s 17 claimed symptoms and actual ability is a clear and convincing reason to find 18 Plaintiff not entirely credible. Moreover, Plaintiff does not even attempt to argue 19 how, if erroneous, the finding that Plaintiff is not entirely credible caused any 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 harmful error. The Plaintiff has thus failed to meet her burden. See Shinseki, 556 2 U.S. at 409-10. 3 IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED. 5 2. Defendant’s Motion for Summary Judgment (ECF No. 15) is 6 7 8 9 GRANTED. The District Court Executive is hereby directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED January 16, 2019. 10 11 THOMAS O. RICE Chief United States District Judge 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19

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