Sattelberg v. Saul

[2] FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [3] Oct 30, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 PAUL S.,1 No. 2:20-cv-00080-MKD Plaintiff, 8 ORDER DENYING PLAINTIFF’S vs. MOTION FOR SUMMARY 9 JUDGMENT AND GRANTING ANDREW M. SAUL, DEFENDANT’S MOTION FOR 10 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT SECURITY, 11 Defendant. ECF Nos. 13, 15 [12] 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 13, 15. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, [17] 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). [2] 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 13, and grants Defendant’s motion, ECF No. 15. 3 JURISDICTION 4 The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383 (c)(3). 5 STANDARD OF REVIEW 6 A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405 (g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153 , 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 reviewing court must consider the entire record as a whole rather than searching 16 for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152 , 19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are [2] 1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” [5] Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 6 decision generally bears the burden of establishing that it was harmed. Shinseki v. 7 Sanders, 556 U.S. 396, 409-10 (2009). 8 FIVE-STEP EVALUATION PROCESS 9 A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 1382c(a)(3)(B). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 2 1 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 2 activity. 20 C.F.R. § 416.920 (a)(4)(i). If the claimant is engaged in “substantial 3 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 4 C.F.R. § 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. § 416.920 (a)(4)(ii). If the claimant suffers from 8 “any impairment or combination of impairments which significantly limits [his or 9 her] physical or mental ability to do basic work activities,” the analysis proceeds to 10 step three. 20 C.F.R. § 416.920 (c). If the claimant’s impairment does not satisfy 11 this severity threshold, however, the Commissioner must find that the claimant is 12 not disabled. Id. 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. § 16 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 17 enumerated impairments, the Commissioner must find the claimant disabled and 18 award benefits. 20 C.F.R. § 416.920 (d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess [2] 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (past relevant work). 20 C.F.R. § 416.920 (a)(4)(iv). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920 (f). If the claimant is incapable of 10 performing such work, the analysis proceeds to step five. 11 At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. [13] 20 C.F.R. § 416.920 (a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education and 15 past work experience. Id. If the claimant is capable of adjusting to other work, the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 17 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 18 concludes with a finding that the claimant is disabled and is therefore entitled to 19 benefits. Id. [2] 1 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 4 capable of performing other work; and (2) such work “exists in significant 5 numbers in the national economy.” 20 C.F.R. § 416.960 (c)(2); Beltran v. Astrue, [6] 700 F.3d 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On August 4, 2015, Plaintiff applied for Title XVI supplemental security 9 income benefits alleging a disability onset date of March 1, 2010.2 Tr. 15, 75, 184- 10 206. The application was denied initially, and on reconsideration. Tr. 90-98; Tr. 11 100-02. Plaintiff appeared unrepresented before an administrative law judge (ALJ) 12 on September 20, 2018; he then obtained a representative and appeared before the 13 ALJ on January 3, 2019. Tr. 30-69. On January 28, 2019, the ALJ denied 14 Plaintiff’s claim. Tr. 12-29. 15 At step one of the sequential evaluation process, the ALJ found Plaintiff has 16 not engaged in substantial gainful activity since August 4, 2015. Tr. 17. At step [17] 18 2 Plaintiff previously applied for Supplementary Security Income and Social 19 Security Disability benefits; both applications were denied on December 16, 2011 20 and Plaintiff did not appeal the denial. Tr. 15. [2] 1 two, the ALJ found that Plaintiff has the following severe impairments: affective 2 related disorder (persistent depressive disorder versus major depressive disorder); 3 anxiety related disorders (anxiety disorder, generalized anxiety disorder, and 4 panic); social communication disorder versus fluency disorder; and personality 5 disorder (schizoid/dependent personality). Tr. 18. 6 At step three, the ALJ found Plaintiff does not have an impairment or 7 combination of impairments that meets or medically equals the severity of a listed 8 impairment. Id. The ALJ then concluded that Plaintiff has the RFC to perform 9 work at all exertional levels but with the following nonexertional limitations: 10 [Plaintiff] can perform simple, routine tasks and follow short, simple instructions. He can do work that needs little or no judgment and can 11 perform simple duties that can be learned on the job in a short period. [Plaintiff] requires a work environment with minimal supervisor 12 contact (Minimal contact does not preclude all contact, rather it means contact does not occur regularly. Minimal contact also does not 13 preclude simple and superficial exchanges and it doesn’t preclude being in proximity to the supervisor). He can work in proximity to 14 co-workers but not in a cooperative or team effort. [Plaintiff] requires a work environment that has no more than superficial interactions 15 with co-workers. He requires a work environment that is predictable and with few work setting changes, and further requires a work 16 environment without public contact. 17 Tr. 19-20. 18 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 23. At 19 step five, the ALJ found that, considering Plaintiff’s age, education, work 20 experience, RFC, and testimony from the vocational expert, there were jobs that [2] 1 existed in significant numbers in the national economy that Plaintiff could perform, 2 such as hand packager, auto detailer, and store laborer. Tr. 24. Therefore, the ALJ 3 concluded Plaintiff was not under a disability, as defined in the Social Security 4 Act, from the date of the application through the date of the decision. Id. 5 On January 10, 2020, the Appeals Council denied review of the ALJ’s 6 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 7 purposes of judicial review. See 42 U.S.C. § 1383 (c)(3). 8 ISSUES 9 Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 him supplemental security income benefits under Title XVI of the Social Security 11 Act. Plaintiff raises the following issues for review: 12 1. Whether the ALJ properly evaluated the medical opinion evidence; and 13 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 14 ECF No. 13 at 2. 15 DISCUSSION 16 A. Medical Opinion Evidence 17 Plaintiff contends the ALJ erred in his consideration of the opinions of 18 Lance Harris, Ph.D.; Renee Eisenhauer, Ph.D.; John Arnold, Ph.D.; John Gilbert, 19 Ph.D, and Cathleen MacLennan, Ph.D. ECF No. 13 at 4-16. [2] 1 There are three types of physicians: “(1) those who treat the claimant 2 (treating physicians); (2) those who examine but do not treat the claimant 3 (examining physicians); and (3) those who neither examine nor treat the claimant 4 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 5 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 6 Generally, a treating physician’s opinion carries more weight than an examining 7 physician’s, and an examining physician’s opinion carries more weight than a 8 reviewing physician’s. Id. at 1202 . “In addition, the regulations give more weight 9 to opinions that are explained than to those that are not, and to the opinions of 10 specialists concerning matters relating to their specialty over that of 11 nonspecialists.” Id. (citations omitted). 12 If a treating or examining physician’s opinion is uncontradicted, the ALJ 13 may reject it only by offering “clear and convincing reasons that are supported by 14 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 15 “However, the ALJ need not accept the opinion of any physician, including a 16 treating physician, if that opinion is brief, conclusory and inadequately supported 17 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219 , 1228 18 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 19 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 20 may only reject it by providing specific and legitimate reasons that are supported [2] 1 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 2 F.3d 821, 830-31 (9th Cir. 1995)). The opinion of a nonexamining physician may 3 serve as substantial evidence if it is supported by other independent evidence in the 4 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 5 1. Dr. Harris and Dr. Eisenhauer 6 On May 24, 2011, Dr. Harris, an examining psychologist, examined Plaintiff 7 and provided an opinion on Plaintiff’s functioning. Tr. 318-26. Dr. Harris 8 diagnosed Plaintiff with pervasive developmental disorder not otherwise specified, 9 and rule out diagnoses of autism, and personality disorder not otherwise specified 10 with borderline and narcissistic features. Tr. 321. Dr. Harris opined Plaintiff’s 11 poor judgment and lack of empathy cause marked limitations in his ability to 12 perform work activities, while his anger causes a severe limitation. Tr. 320. Dr. 13 Harris opined Plaintiff had a Global Assessment of Functioning score of 45, based 14 on “chronic and likely non-remediable interpersonal and social mental health 15 problems,” a lack of support group, poor judgment, and minimal insight. Tr. 321. 16 He opined Plaintiff had moderate limitations in his ability to understand, 17 remember, and follow simple instructions, perform routine tasks, interact 18 appropriately with the public, and care for himself; and he has marked limitations 19 in his ability to understand, remember, and follow complex instructions, learn new 20 tasks, exercise judgment and make decisions, respond appropriately to and tolerate [2] 1 the pressures and expectations of a normal work setting, and maintain appropriate 2 behavior in a work setting. Tr. 322. Dr. Harris further opined Plaintiff “is unable 3 to do any meaningful work,” though he may benefit from treatment and working 4 with the Division of Vocational Rehabilitation, and opined Plaintiff’s limitations 5 would last a minimum of six months up to his entire lifetime. Tr. 322-23. The 6 ALJ did not address Dr. Harris’ opinion. As Dr. Harris’ opinion is contradicted by 7 the opinion of Dr. Gilbert, Tr. 83-87, the ALJ would be required to give specific 8 and legitimate reasons to reject Dr. Harris’ opinion if it was admitted evidence. 9 See Bayliss, 427 F.3d at 1216 . 10 On May 26, 2011, Dr. Eisenhauer, a reviewing psychologist, reviewed Dr. 11 Harris’ evaluation and opinion, and found Plaintiff should be approved for pre-SSI 12 benefits “for 12.10.” Tr. 327. The ALJ did not address Dr. Eisenhauer’s opinion. 13 As Dr. Eisenhauer is a non-examining source, the ALJ would be required to 14 consider the opinion and whether it is consistent with other independent evidence 15 in the record if it was admitted evidence. See 20 C.F.R. § 416.927 (b),(c)(1); 16 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Lester, 81 F.3d at 830- 17 31. 18 The ALJ stated any evidence from the time period prior to the date of 19 Plaintiff’s prior denial of benefits, December 16, 2011 was exhibited but not 20 admitted for consideration of the claim before him, as the prior decision was [2] 1 administratively final and the evidence was not material to the current claim. Tr. 2 15. Evidence from outside the relevant period in a case is of limited relevance. 3 Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1165 (9th Cir. 2008); see also 4 Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989) (report that predated period at issue 5 was relevant only to proving Plaintiff’s condition had worsened); Johnson v. 6 Astrue, 303 F. App’x 543, 545 (9th Cir. 2008) (affirming ALJ’s rejection of 7 medical opinions that were remote in time, and reliance on more recent opinions); 8 Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010) (date of 9 social worker’s opinion rendered more than a year after the date last insured was a 10 germane reason to not address the opinion). 11 At the 2019 hearing, the ALJ stated that he would exhibit but not admit all 12 of the records related to the time period before December 2011, which contain Dr. 13 Harris and Dr. Eisenhauer’s opinions. Tr. 59. Plaintiff’s representative did not 14 object to the exclusion of the evidence at the hearing. Plaintiff presently makes no 15 argument that the ALJ erred by excluding the evidence. An ALJ does not have to 16 address evidence upon which he did not rely. Hearings, Appeals, and Litigation 17 Law Manual (HALLEX), HALLEX § I-2-1-13(f). As the ALJ did not admit the 18 records containing Dr. Harris and Dr. Eisenhauer’s opinions, and did not rely on 19 the opinions in making his decision, he was not required to address the opinions. [2] 1 Further, any error in rejecting the opinions would be harmless. See Molina, 2 674 F.3d at 1115. Dr. Harris and Dr. Eisenhauer rendered their opinions in May 3 2011; Plaintiff argues the opinions are relevant because they were offered after 4 Plaintiff’s alleged onset date, ECF No. 13 at 6, however the opinions were 5 rendered during a period that an administratively final decision found Plaintiff was 6 not disabled and the decision is outside the time period for reopening, Tr. 15. As 7 the opinions were rendered during a period Plaintiff cannot be found disabled, and 8 they were rendered more than four years before the current protective filing date, 9 the opinions are of limited value. See Carmickle., 533 F.3d at 1165 . Plaintiff 10 argues the opinions of Dr. Harris and Dr. Eisenhauer are consistent with the 11 medical records and opinions in later evidence, and therefore the opinions are 12 relevant to the current period. ECF No. 3 at 6-7. However, the ALJ’s decision, 13 including the rejection of the opinions from the relevant time period, is supported 14 by substantial evidence for the reasons discussed infra. 15 2. Dr. Arnold 16 On October 28, 2015, Dr. Arnold, an examining psychologist, examined 17 Plaintiff and provided an opinion on his functioning.3 Tr. 333-37. Dr. Arnold [18] 19 3 The Court notes Phyllis Sanchez, Ph.D., reviewed Dr. Arnold’s opinion and 20 rendered an opinion on November 2, 2015. Tr. 338-39. The ALJ did not address [2] 1 diagnosed Plaintiff with persistent depressive disorder, late onset; unspecified 2 anxiety disorder with panic features; schizoid/dependent personality features, rule 3 out schizoid/dependent personality disorder; and rule out autism spectrum disorder. 4 Tr. 334. Dr. Arnold opined Plaintiff has moderate limitations in his ability to 5 understand, remember, and persist in tasks by following very short and simple 6 instructions, perform routine tasks without special supervision, make simple work7 related decisions, and ask simple questions or request assistance; and marked 8 limitations in his ability to understand, remember, and persist in tasks by following 9 detailed instructions, perform activities within a schedule, maintain regular 10 attendance, and be punctual within customary tolerances without special 11 supervision, learn new tasks, adapt to changes in a routine work setting, be aware 12 of normal hazards and take appropriate precautions, communicate and perform 13 effectively in a work setting, maintain appropriate behavior in a work setting, [14] 15 Dr. Sanchez’s opinion. However, Plaintiff did not raise any challenge to the ALJ’s 16 failure to address Dr. Sanchez’s opinion. Thus, any challenge to those findings is 17 waived. See Carmickle, 533 F.3d at 1161 n.2 (determining Court may decline to 18 address on the merits issues not argued with specificity); Kim, 154 F.3d at 1000 19 (the Court may not consider on appeal issues not “specifically and distinctly 20 argued” in the party’s opening brief). [2] 1 complete a normal workday/workweek without interruptions from psychologically 2 based symptoms, and set realistic goals and plan independently. Tr. 335. Dr. 3 Arnold opined Plaintiff’s impairments overall cause marked limitations, and his 4 limitations are expected to last 18 months. Tr. 335-36. The ALJ gave Dr. 5 Arnold’s opinion some weight. Tr. 22. As Dr. Arnold’s opinion is contradicted by 6 the opinion of Dr. Gilbert, Tr. 83-87, the ALJ was required to give specific and 7 legitimate reasons to reject Dr. Arnold’s opinion. See Bayliss, 427 F.3d at 1216 . 8 First, the ALJ found Dr. Arnold’s opinion that Plaintiff had marked 9 limitations in multiple areas of functioning was inconsistent with Plaintiff’s 10 activities of daily living. Tr. 22. An ALJ may discount a medical source opinion 11 to the extent it conflicts with the claimant’s daily activities. Morgan v. Comm’r of 12 Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). The ALJ noted Plaintiff 13 was able to maintain a schedule, help care for his mother and aunt, perform a wide 14 range of daily tasks, use a white board to organize and plan ahead, and maintain 15 close relationships. Tr. 22, 506, 512-13. Plaintiff testified at the hearing that he 16 acts as a full-time caregiver for his aunt and mother, handles the household chores, 17 cares for a cat, prepares meals, and goes to the store and pharmacy, though he 18 reported needing someone to provide him with a list of the tasks that need to be 19 done. Tr. 22, 51-52. Plaintiff reported having had two live-in girl friends in the 20 past, and having a current significant other whom he met online. Tr. 22, 506, 508. [2] 1 Plaintiff argues the ALJ offered only a conclusory statement that Plaintiff’s 2 activities were inconsistent with Dr. Arnold’s opinion, ECF No. 13 at 9-11, 3 however the ALJ offered several paragraphs analyzing Plaintiff’s activities and 4 explaining inconsistencies between Plaintiff’s alleged limitations and his activities, 5 Tr. 22. This was a specific and legitimate reason, supported by substantial 6 evidence, to reject the opinion. 7 Second, the ALJ found Plaintiff’s poor effort on examinations with Dr. 8 Arnold and Dr. MacLennan caused Dr. Arnold’s examination to lack reliability. 9 Tr. 22. Evidence that a claimant exaggerated his symptoms is a specific and 10 legitimate reason to reject the doctor’s conclusions. Thomas, 278 F.3d at 958. An 11 ALJ may consider the consistency of an individual’s own statements made in 12 connection with the disability-review process with any other existing statements or 13 conduct. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). At Dr. Arnold’s 14 examination, Plaintiff scored three out of 15 on the Rey test, which Dr. Arnold 15 noted indicated “questionable effort,” and Plaintiff discontinued the Trails test 16 early, stating he did not understand the task, Tr. 334. Dr. MacLennan stated 17 Plaintiff’s “extremely poor performance” on her mental statue examination was 18 “extremely unlikely unless a person is intentionally faking bad.” Tr. 397. Dr. 19 MacLennan noted Plaintiff reported having an unusually high number and 20 frequency of symptoms, and the number of problems/symptoms he reported [2] 1 experiencing most or all of the time are “quite unlikely in combination” and stated 2 she could not determine what his diagnosis was due to “apparent exaggeration of 3 all symptoms” and “poor effort.” Tr. 399-400. She stated the noted discrepancies 4 suggest he exaggerated his symptoms and intentionally underperformed, although 5 no formal or objective symptom validity testing was performed. Tr. 400. Plaintiff 6 argues the ALJ failed to explain how his “poor performance on the Rey test” 7 rendered Dr. Arnold’s opinion less reliable. ECF No. 13 at 11. However, the 8 ALJ’s analysis that Dr. Arnold’s opinion could not be adopted because it was 9 based upon objective results that lack reliability was a specific and legitimate 10 reasons, supported by substantial evidence, to reject the opinion. 11 Plaintiff argues the ALJ erred in stating Dr. Arnold opined Plaintiff had a 12 moderate limitation in learning new tasks when the opinion reflects a marked 13 limitation in learning new tasks. ECF No. 13 at 9 (citing Tr. 22, 335). As 14 discussed above, the ALJ gave specific and legitimate reasons to reject the marked 15 limitations; as such, any error in noting a single area of functioning was moderate 16 rather than marked would be harmless. See Molina, 674 F.3d at 1115. Plaintiff 17 also argues the ALJ erred by not addressing Dr. Arnold’s opinion that Plaintiff 18 would be moderately limited in his ability to perform routine tasks without special 19 supervision, as it supported a conclusion that Plaintiff would need a more 20 structured work environment than provided for in the RFC. ECF No. 13 at 9. [2] 1 However, a “moderate limitation” indicates an individual has a “fair” ability to 2 function in an area independently, appropriately, effectively, and on a sustained 3 basis. 20 C.F.R. § 404 , Subpart P, Appendix 1. Plaintiff does not point to any 4 specific limitation the ALJ failed to include in the RFC, and the RFC includes 5 multiple limitations to account for a structured work environment, including a 6 limitation to simple, routine tasks, and a limitation to a work environment that is 7 predictable and with few work setting changes, Tr. 19-20. Plaintiff has not 8 demonstrated any error in the ALJ’s consideration of Dr. Arnold’s opinion that 9 Plaintiff has a moderate limitation in performing routine tasks without special 10 supervision. 11 3. Dr. Gilbert 12 On August 1, 2017, Dr. Gilbert, a State agency psychological consultant, 13 rendered an opinion in Plaintiff’s reconsideration disability determination. Tr. 8214 87. The determination lists autism spectrum disorder and anxiety/obsessive15 compulsive disorders as severe impairments, Tr. 82, but then states there is 16 insufficient evidence to substantiate the presence of autism spectrum disorder, and 17 Dr. Gilbert noted autism spectrum disorder was a rule out diagnosis, Tr. 83. Dr. 18 Gilbert opined Plaintiff had: moderate limitations in his ability to maintain 19 attention and concentration for extended periods, perform activities within a 20 schedule, maintain regular attendance, and be punctual within customary [2] 1 tolerances, complete a normal workday/workweek without interruptions from 2 psychologically based symptoms and to perform at a consistent pace without an 3 unreasonable number and length of rest periods, accept instructions and respond 4 appropriately to criticism from supervisors, get along with coworkers or peers 5 without distracting them or exhibiting behavioral extremes, and respond 6 appropriately to changes in the work setting; marked limitations in his ability to 7 interact appropriately with the general public; and no significant limitations in the 8 others areas of functioning. Tr. 85-87. Dr. Gilbert further opined Plaintiff’s 9 concentration, persistence or pace is diminished at times due to mental health 10 symptoms, but he would be able to complete routine tasks over a normal eight11 hour workday with customary breaks; he should not work with the general public 12 and he would do best with independent work requiring only occasional interactions 13 with supervisors and superficial interactions with coworkers; and he would do best 14 with routine work. Tr. 85-86. The ALJ gave significant weight to the “State 15 agency medical consultants’ assessments.” Tr. 23 (citing Tr. 70-74, 77-89). As 16 Dr. Gilbert is a non-examining source, the ALJ must consider the opinion and 17 whether it is consistent with other independent evidence in the record. See 20 18 C.F.R. § 416.927 (b),(c)(1); Tonapetyan, 242 F.3d at 1149 ; Lester, 81 F.3d at 83019 31. [2] 1 First, the Court notes the erroneously gave weight to a single decision maker 2 (SDM). The ALJ gave significant weight to the opinions of the State agency 3 opinions contained within exhibits 1A and 4A, but exhibit 1A contains only the 4 signature of an SDM. Tr. 73-74. An ALJ may not accord any weight to a non5 physician SDM opinion. Morgan v. Colvin, 531 Fed. App’x 793, 794-95 (9th Cir. 6 June 21, 2013) (unpublished) (citing Program Operations Manual System DI 7 24510.050). However, Plaintiff did not challenge the ALJ giving weight to the 8 SDM. Thus, any challenge to those findings is waived. See Carmickle, 533 F.3d 9 1155, 1161 n.2; Kim v. Kang, 154 F.3d 996 , 1000 (9th Cir. 1998). However, the 10 Court finds the ALJ’s error is harmless, because the SDM’s decision consisted of 11 the denial of benefits due to Plaintiff’s failure to cooperate with the process. Tr. 12 73. As the SDM’s decision was purely technical and not substantive, while the 13 ALJ made a substantive decision, any weight given to the SDM’s decision is 14 harmless. See Molina, 674 F.3d at 1115. 15 Next, Plaintiff argues the ALJ erred in rejecting Dr. Gilbert’s opinion that 16 autism spectrum disorder is Plaintiff’s primary severe impairment. ECF No. 13 at 17 11-12. The ALJ found autism spectrum disorder is not a medically determinable 18 serve impairment. Tr. 18. However, while the determination lists autism spectrum 19 disorder as a severe impairment, Tr. 82, it then states there is insufficient evidence 20 to substantiate the presence of autism spectrum disorder, and Dr. Gilbert noted [2] 1 autism spectrum disorder was a rule out diagnosis, Tr. 83. At the hearing, 2 Plaintiff’s representative was unable to point to a diagnosis of autism spectrum 3 disorder from an acceptable medical source in the record. Tr. 66-67. Further, any 4 error would be harmless. Even if Dr. Gilbert intended for his opinion to indicate 5 autism is a severe impairment, Dr. Gilbert opined Plaintiff has no or moderate 6 limitations in most areas of functioning, and only one marked limitation, and found 7 Plaintiff is capable of simple routine work with additional limitations. Tr. 85-87. 8 As such, even when including the autism diagnosis, Dr. Gilbert did not give a 9 disabling opinion. Therefore, any error in rejecting Dr. Gilbert’s opinion would be 10 harmless. See Molina, 674 F.3d at 1115. 11 4. Dr. MacLennan 12 On July 19, 2017, Dr. MacLennan, an examining psychologist, examined 13 Plaintiff and provided an opinion on his functioning. Tr. 394-401. Dr. MacLennan 14 stated she could not diagnose Plaintiff with any diagnoses due to his exaggeration 15 of his symptoms and poor effort on the examination, but stated his presentation and 16 communication was consistent with autism spectrum disorder. Tr. 400. She stated 17 she was unable to develop an opinion as to Plaintiff’s functioning due to the 18 discrepancies on examination suggesting he exaggerated symptoms and 19 intentionally underperformed, but noted no formal or objective symptom validity 20 testing was administered. Id. Dr. MacLennan opined that Plaintiff’s mental status [2] 1 examination “suggests concerns about cognitive or neurocognitive problems that 2 might be a barrier to full time work,” and based on Plaintiff’s presentation, “he is 3 not adaptable [or] resilient,” and appears unable to handle his own funds. Tr. 398, 4 400. The ALJ did not state what weight he gave to Dr. MacLennan’s opinion, but 5 noted Dr. MacLennan did not offer a functional assessment. Tr. 23. As Dr. 6 MacLennan’s opinion is contradicted by the opinion of Dr. Gilbert, Tr. 83-87, the 7 ALJ was required to give specific and legitimate reasons to reject Dr. 8 MacLennan’s opinion. See Bayliss, 427 F.3d at 1216 . 9 While the ALJ did not specify the weight given to Dr. MacLennan’s 10 opinion, he stated the opinion failed to provide functional limitations. Tr. 23. An 11 ALJ may reject an opinion that does “not show how [a claimant’s] symptoms 12 translate into specific functional deficits which preclude work activity.” See 13 Morgan, 169 F.3d at 601 . Dr. MacLennan did not specify how Plaintiff’s impaired 14 resiliency or ability to adapt would impact his functioning, nor did she give an 15 opinion as to his ability to handle funds in a work setting. Dr. MacLennan’s 16 opinion that Plaintiff’s problems “may” pose a barrier to full-time employment 17 also does not translate into a specific limitation. Tr. 398. This was a specific and 18 legitimate reason, supported by substantial evidence, to reject Dr. MacLennan’s 19 opinion. Further, any error in rejecting Dr. MacLennan’s opinion would be [2] 1 harmless as she did not set forth any specific functional limitations that would 2 impact the RFC. See Molina, 674 F.3d at 1115. 3 In sum, the ALJ’s rejection of the medical opinions of Dr. Harris, Dr. 4 Eisenhauer, Dr. Arnold, Dr. Gilbert, and Dr. MacLennan is supported by 5 substantial evidence. Plaintiff is not entitled to remand on these grounds. 6 B. Plaintiff’s Symptom Claims 7 Plaintiff contends the ALJ for failed to rely on reasons that were clear and 8 convincing in discrediting his symptom claims. ECF No. 15 at 13-16. An ALJ 9 engages in a two-step analysis to determine whether to discount a claimant’s 10 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029 , at *2. 11 “First, the ALJ must determine whether there is objective medical evidence of an 12 underlying impairment which could reasonably be expected to produce the pain or 13 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 14 “The claimant is not required to show that [the claimant’s] impairment could 15 reasonably be expected to cause the severity of the symptom [the claimant] has 16 alleged; [the claimant] need only show that it could reasonably have caused some 17 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 18 Second, “[i]f the claimant meets the first test and there is no evidence of 19 malingering, the ALJ can only reject the claimant’s testimony about the severity of 20 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the [2] 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 2 omitted). General findings are insufficient; rather, the ALJ must identify what 3 symptom claims are being discounted and what evidence undermines these claims. [4] Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 5 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 6 symptom claims)). “The clear and convincing [evidence] standard is the most 7 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995 , 8 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920 , 9 924 (9th Cir. 2002)). 10 Factors to be considered in evaluating the intensity, persistence, and limiting 11 effects of a claimant’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 treatment 17 an individual uses or has used to relieve pain or other symptoms; and 7) any other 18 factors concerning an individual’s functional limitations and restrictions due to 19 pain or other symptoms. SSR 16-3p, 2016 WL 1119029 , at *7; 20 C.F.R. § 20 416.929(c). The ALJ is instructed to “consider all of the evidence in an [2] 1 individual’s record,” to “determine how symptoms limit ability to perform work2 related activities.” SSR 16-3p, 2016 WL 1119029 , at *2. 3 The ALJ found that Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 5 statements concerning the intensity, persistence, and limiting effects of his 6 symptoms were not entirely consistent with the evidence. Tr. 20. 7 1. Activities of Daily Living 8 The ALJ found the Plaintiff’s activities of daily living were inconsistent with 9 his symptom claims. Tr. 20-23. The ALJ may consider a claimant’s activities that 10 undermine reported symptoms. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 11 2001). If a claimant can spend a substantial part of the day engaged in pursuits 12 involving the performance of exertional or non-exertional functions, the ALJ may 13 find these activities inconsistent with the reported disabling symptoms. Fair, 885 14 F.2d at 603; Molina, 674 F.3d at 1113. “While a claimant need not vegetate in a 15 dark room in order to be eligible for benefits, the ALJ may discount a claimant’s 16 symptom claims when the claimant reports participation in everyday activities 17 indicating capacities that are transferable to a work setting” or when activities 18 “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 111219 13. [2] 1 The ALJ found Plaintiff’s robust slate of activities of daily living are 2 inconsistent with his alleged limitations. Tr. 22, 23. The ALJ noted Plaintiff 3 reported caring for his mother, brother, and aunt, performing household chores and 4 repairs, reading, caring for pets, exercising, gardening, cooking, walking to the 5 grocery store and pharmacy alone, and using a whiteboard to keep organized. Tr. 6 20-23. Plaintiff reported having had two live-in girl friends and presently having a 7 significant other. Tr. 22. While Plaintiff argues the ALJ paraphrased the activities 8 without explaining how they contradict his testimony, ECF No. 13 at 18, the ALJ 9 found Plaintiff’s activities demonstrate he is more capable than he alleges, Tr. 21. 10 While Plaintiff alleged he did not cook or clean without assistance, he also 11 reported being the primary caretaker of others and the household. Tr. 21-22 (citing 12 Tr. 397-98, 485, 506). Despite Plaintiff’s allegations of disabling social 13 limitations, and his report he did not know if he had ever had a relationship, he also 14 reported having had two live-in girl friends and a current relationship. Tr. 22 15 (citing Tr. 395, 506). Plaintiff argues he is only able to perform activities with 16 specific instructions from his family members, ECF No. 16 at 6, but Plaintiff 17 reported performing his personal care without reminders or assistance, performing 18 household chores with reminders, and going out alone two times per week to 19 complete shopping. Tr. 251-53. On this record, the ALJ reasonably concluded 20 that Plaintiff’s activities of daily living were inconsistent with his symptom claims. [2] 1 This finding is supported by substantial evidence and was a clear and convincing 2 reason to discount Plaintiff’s symptoms complaints. 3 2. Ability to Work 4 The ALJ found Plaintiff’s willingness to work was inconsistent with his 5 symptom claims. Tr. 22. Plaintiff does not address this issue, thus, any challenge 6 to those findings is waived. See Carmickle., 533 F.3d at 1161 n.2 (determining 7 Court may decline to address on the merits issues not argued with specificity); 8 Kim, 154 F.3d at 1000 (the Court may not consider on appeal issues not 9 “specifically and distinctly argued” in the party’s opening brief). However, the 10 Court considered the issue and finds the ALJ’s analysis was supported by 11 substantial evidence. Plaintiff’s own perception of his ability to work is a proper 12 consideration in determining credibility. See Barnes v. Comm’r of Soc. Sec., No. 13 2:16-cv-00402-MKD, 2018 WL 545722 (E.D. Wash. Jan. 24, 2018) (“Evidence of 14 Plaintiff’s preparedness to return to work, even if an optimistic self-assessment, is 15 significant to the extent that the Plaintiff is willing and able to work, as that belief 16 indicates her allegation of symptoms precluding work are not credible.”). 17 Plaintiff reported he was willing to work if he knew his family would be 18 cared for, but he felt he had to choose between working and caring for his mother 19 and aunt. Tr. 22 (citing Tr. 485). Plaintiff reported an interest in becoming a 20 caregiver, and taking classes so he can work from home. Tr. 485. The ALJ noted [2] 1 that Plaintiff’s reported willingness to work if his family had care demonstrates he 2 is aware that he is capable of working but felt unable to do so because of his 3 responsibilities at home. Tr. 22. On this record, the ALJ reasonably concluded 4 that Plaintiff’s reported ability to work was inconsistent with his symptom claims. 5 This finding is supported by substantial evidence and was a clear and convincing 6 reason to discount Plaintiff’s symptoms complaints. 7 3. Objective Medical Evidence 8 The ALJ found Plaintiff’s symptom claims were inconsistent with the 9 objective evidence. Tr. 20-23. An ALJ may not discredit a claimant’s symptom 10 testimony and deny benefits solely because the degree of the symptoms alleged is 11 not supported by objective medical evidence. Rollins, 261 F.3d at 857 ; Bunnell v. 12 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601 ; Burch, 400 13 F.3d at 680. However, the objective medical evidence is a relevant factor, along 14 with the medical source’s information about the claimant’s pain or other 15 symptoms, in determining the severity of a claimant’s symptoms and their 16 disabling effects. Rollins, 261 F.3d at 857 ; 20 C.F.R. § 416.929 (c)(2). 17 The ALJ noted Plaintiff underperformed at two different examinations, 18 which lead to the examiners questioning Plaintiff’s effort. Tr. 20-21. Even with 19 the opinions that Plaintiff did not put forth full effort on examination, while 20 Plaintiff had multiple abnormal results, he also had multiple normal findings at [2] 1 each examination, including normal appearance, logical and progressive speech, 2 normal thoughts and orientation, he did not appear to respond to internal stimuli, 3 and he was polite and formal. Tr. 20-21, 333-37, 394-401. While Plaintiff alleges 4 disabling mental health limitations, the ALJ noted Plaintiff had not consistently 5 sought any treatment and dropped out of mental health treatment. Tr. 21 (citing Tr. 6 338). When he did seek treatment, Plaintiff reported improvement in his 7 symptoms. Tr. 21 (citing Tr. 364). Plaintiff reported improvement in how he 8 handles conflict, anxiety, and depression, and reported doing well in group therapy. 9 Tr. 362, 376. Plaintiff reported a wide range of activities to the examiners and 10 treating providers, which the ALJ found were inconsistent with Plaintiff’s 11 allegations as discussed supra. Dr. MacLennan noted that based on her review of 12 the record, Plaintiff functions at a higher level than he performed on her 13 examination. Tr. 400. 14 On this record, the ALJ reasonably concluded that the objective evidence 15 was inconsistent with Plaintiff’s symptom claims. This finding is supported by 16 substantial evidence and was a clear and convincing reason, along with the other 17 reasons offered, to discount Plaintiff’s symptoms complaints. 18 4. Symptom Exaggeration 19 The ALJ found Plaintiff exaggerated his mental health symptoms and 20 limitations. Tr. 20-23. The tendency to exaggerate provided a permissible reason [2] 1 for discounting Plaintiff’s reported symptoms. Tonapetyan v. Halter, 242 F.3d 2 1144, 1148 (9th Cir. 2001) (The ALJ appropriately considered Plaintiff’s tendency 3 to exaggerate when assessing Plaintiff’s credibility, which was shown in a doctor’s 4 observation that Plaintiff was uncooperative during cognitive testing but was 5 “much better” when giving reasons for being unable to work.). Moreover, in 6 evaluating symptom claims, the ALJ may utilize ordinary evidence-evaluation 7 techniques, such as considering prior inconsistent statements. Smolen v. Chater, [8] 80 F.3d 1273, 1284 (9th Cir. 1996). 9 The ALJ noted Plaintiff exaggerated his symptoms/limitations at both Dr. 10 Arnold and Dr. MacLennan’s examinations. Tr. 22-23. Dr. Arnold noted Plaintiff 11 put forth questionable effort, as indicated by his Rey test score. Tr. 21-22 (citing 12 Tr. 334). Dr. MacLennan noted Plaintiff’s extremely poor performance was 13 unlikely unless he was intentionally faking it, and Plaintiff’s reported combination 14 of symptoms and difficulties were quite unlikely, and she stated she was unable to 15 guess at Plaintiff’s diagnosis because of his “apparent exaggeration of all 16 symptoms.” Tr. 21 (citing Tr. 397-400). Plaintiff also inconsistently reported his 17 ability to perform tasks, such as cooking and cleaning, Tr. 21 (citing Tr. 397-98), 18 and inconsistently reported whether he had maintained any romantic relationships, 19 Tr. 22 (citing Tr. 395, 506). On this record, the ALJ reasonably concluded that 20 Plaintiff exaggerated his symptoms. This finding is supported by substantial [2] 1 evidence and was a clear and convincing reason, along with the other reasons 2 offered, to discount Plaintiff’s symptoms complaints. Plaintiff is not entitled to 3 remand on these grounds. 4 CONCLUSION 5 Having reviewed the record and the ALJ’s findings, the Court concludes the 6 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 10 GRANTED. 11 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 12 The District Court Executive is directed to file this Order, provide copies to 13 counsel, and CLOSE THE FILE. 14 DATED October 30, 2020. 15 s/Mary K. Dimke MARY K. DIMKE 16 UNITED STATES MAGISTRATE JUDGE