Holbrook v. Saul

[3] FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [4] Mar 29, 2021 5 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK 6 EASTERN DISTRICT OF WASHINGTON 7 ERIN H.,1 No. 2:20-cv-00191-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. 19, 20 [12] 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 19, 20. The parties consented to proceed before a magistrate judge. ECF No. 15 8. 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. 19, and grants Defendant’s motion, ECF No. 20. 3 JURISDICTION 4 The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405 (g); 5 1383(c)(3). 6 STANDARD OF REVIEW 7 A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405 (g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153 , 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152 , 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one [2] 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” [6] Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 FIVE-STEP EVALUATION PROCESS 10 A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous 17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” [19] 42 U.S.C. §§ 423 (d)(2)(A), 1382c(a)(3)(B). [2] 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520 (a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520 (a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520 (c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. Id. 16 At step three, the Commissioner compares the claimant’s impairment to 17 severe impairments recognized by the Commissioner to be so severe as to preclude 18 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 19 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more [2] 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520 (d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520 (a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520 (f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. [19] 20 C.F.R. §§ 404.1520 (a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, [2] 1 education, and past work experience. 20 C.F.R. §§ 404.1520 (a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. Id. 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560 (c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 ALJ’S FINDINGS 14 On September 12, 2017, Plaintiff applied both for Title II disability 15 insurance benefits and Title XVI supplemental security income benefits alleging a 16 disability onset date of June 25, 2017.2 Tr. 15, 152, 287-302. The applications [17] 18 2 Plaintiff previously applied for benefits, first on April 1, 2008, which resulted in 19 an ALJ rendering a partially favorable decision on November 25, 2009; Plaintiff 20 was found disabled during a closed period of January 12, 2008 through April 1, [2] 1 were denied initially and on reconsideration. Tr. 206-09, 218-23. Plaintiff 2 appeared before an administrative law judge (ALJ) on January 11, 2019. Tr. 46- 3 104. On February 15, 2019, the ALJ denied Plaintiff’s claim. Tr. 12-33. 4 At step one of the sequential evaluation process, the ALJ found Plaintiff, 5 who met the insured status requirements through December 31, 2022, has not 6 engaged in substantial gainful activity since June 25, 2017. Tr. 17. At step two, 7 the ALJ found that Plaintiff has the following severe impairments: myopia, post8 traumatic arthritis of the left shoulder, and cervical and lumbar degenerative disc 9 disease. Id. 10 At step three, the ALJ found Plaintiff does not have an impairment or 11 combination of impairments that meets or medically equals the severity of a listed 12 impairment. Tr. 19. The ALJ then concluded that Plaintiff has the RFC to perform 13 light work with the following limitations: 14 [Plaintiff] cannot climb ladders, ropes, or scaffolds; she can frequently balance, and occasionally perform all other postural activities; with [15] 16 2009. Tr. 106-24. Plaintiff again applied for benefits on April 9, 2010, which 17 resulted in an ALJ rendering a fully favorable decision on January 27, 2012; 18 Plaintiff was found disabled during a closed period of November 26, 2009 through 19 June 30, 2011. Tr. 125-35. Plaintiff returned to full-time work beginning July 1, 20 2011. Tr. 134. [2] 1 the left upper extremity, she can frequently push and pull, and occasionally reach overhead; with the right upper extremity, she has 2 unlimited ability to push and pull, and can frequently reach overhead; she can frequent[ly] handle bilaterally; she can frequently operate foot 3 controls; she cannot perform tasks that require precise visual acuity, such as threading a needle or reading print smaller than regular 4 newspaper print; and she can have no exposure to vibration, extreme cold, or hazards, such as unprotected heights and moving mechanical 5 parts. 6 Tr. 20. 7 At step four, the ALJ found Plaintiff is unable to perform any of her past 8 relevant work. Tr. 25. At step five, the ALJ found that, considering Plaintiff’s 9 age, education, work experience, RFC, and testimony from the vocational expert, 10 there were jobs that existed in significant numbers in the national economy that 11 Plaintiff could perform, such as usher, photocopy machine operator, and mail 12 clerk. Tr. 26. In the alternative, the ALJ found that if Plaintiff was limited to 13 sedentary work with additional limitations, there were still jobs that existed in 14 significant numbers in the national economy that Plaintiff could perform, such as 15 document preparer, food and beverage order clerk, and addresser. Tr. 27. 16 Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in the 17 Social Security Act, from the alleged onset date of June 25, 2017, through the date 18 of the decision. Id. [2] 1 On March 31, 2020, the Appeals Council denied review of the ALJ’s 2 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 3 purposes of judicial review. See 42 U.S.C. § 1383 (c)(3). 4 ISSUES 5 Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her disability insurance benefits under Title II and supplemental security income 7 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 8 issues for review: 9 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 10 2. Whether the ALJ properly evaluated the medical opinion evidence. 11 ECF No. 19 at 16. 12 DISCUSSION 13 A. Plaintiff’s Symptom Claims 14 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 15 convincing in discrediting her symptom claims. ECF No. 19 at 17-18. An ALJ 16 engages in a two-step analysis to determine whether to discount a claimant’s 17 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029 , at *2. 18 “First, the ALJ must determine whether there is objective medical evidence of an 19 underlying impairment which could reasonably be expected to produce the pain or 20 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). [2] 1 “The claimant is not required to show that [the claimant’s] impairment could 2 reasonably be expected to cause the severity of the symptom [the claimant] has 3 alleged; [the claimant] need only show that it could reasonably have caused some 4 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 5 Second, “[i]f the claimant meets the first test and there is no evidence of 6 malingering, the ALJ can only reject the claimant’s testimony about the severity of 7 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 8 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 9 omitted). General findings are insufficient; rather, the ALJ must identify what 10 symptom claims are being discounted and what evidence undermines these claims. [11] Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 12 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 13 explain why it discounted claimant’s symptom claims)). “The clear and 14 convincing [evidence] standard is the most demanding required in Social Security 15 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 16 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 17 Factors to be considered in evaluating the intensity, persistence, and limiting 18 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 19 duration, frequency, and intensity of pain or other symptoms; 3) factors that 20 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and [2] 1 side effects of any medication an individual takes or has taken to alleviate pain or 2 other symptoms; 5) treatment, other than medication, an individual receives or has 3 received for relief of pain or other symptoms; 6) any measures other than treatment 4 an individual uses or has used to relieve pain or other symptoms; and 7) any other 5 factors concerning an individual’s functional limitations and restrictions due to 6 pain or other symptoms. SSR 16-3p, 2016 WL 1119029 , at *7; 20 C.F.R. §§ 7 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 8 an individual’s record,” to “determine how symptoms limit ability to perform 9 work-related activities.” SSR 16-3p, 2016 WL 1119029 , at *2. 10 The ALJ found that Plaintiff’s medically determinable impairments could 11 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 12 statements concerning the intensity, persistence, and limiting effects of her 13 symptoms were not entirely consistent with the evidence. Tr. 21. 14 In her opening brief, Plaintiff challenged only the ALJ’s conclusion that 15 Plaintiff’s activities of daily living were inconsistent with Plaintiff’s symptom 16 complaints. ECF No. 19 at 17-18. Plaintiff challenged the additional reasons in 17 her reply brief, ECF No. 21 at 2-8. As Plaintiff failed to raise the challenges in the 18 opening brief to the four other reasons the ALJ cited in support of his finding that 19 Plaintiff’s symptom complaints were not entirely credible, any challenges are 20 waived and the Court may decline to review them. See Carmickle v. Comm’r, Soc. [2] 1 Sec. Admin., 533 F.3d 1155 , 1161 n.2 (9th Cir. 2008). However, upon review, the 2 Court finds that the ALJ provided specific, clear, and convincing reasons, 3 supported by substantial evidence, to support his finding. Tr. 21-23. 4 1. Inconsistent Statements 5 The ALJ found Plaintiff made inconsistent statements about her symptoms 6 and limitations. Tr. 21-22. In evaluating a claimant’s symptom claims, an ALJ 7 may consider the consistency of an individual’s own statements made in 8 connection with the disability-review process with any other existing statements or 9 conduct under other circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 (9th 10 Cir. 1996) (The ALJ may consider “ordinary techniques of credibility evaluation,” 11 such as reputation for lying, prior inconsistent statements concerning symptoms, 12 and other testimony that “appears less than candid.”). 13 The ALJ noted that while Plaintiff alleges an inability to work since June 25, 14 2017, she told her treating physician in August 2017 that she was employed as a 15 nursing assistant, which required moderate physical activity, and she was satisfied 16 with the work. Tr. 21-22 (citing Tr. 464, 614). However, Plaintiff’s work as 17 nursing assistant appears under “social history”, Tr. 614, and “work history,” Tr. 18 464, and Plaintiff’s earnings record indicates Plaintiff had earnings in the first and 19 second quarters of 2017, and there are no earnings in the third quarter of 2017, 20 which is consistent with Plaintiff’s reports that her work ended in June 2017, Tr. [2] 1 310. The ALJ’s finding that Plaintiff gave inconsistent statements about her work 2 is not supported by substantial evidence. However, any error is harmless as the 3 ALJ gave other supported reasons to reject Plaintiff’s symptom claims. See 4 Molina, 674 F.3d at 1115. 5 The ALJ also found Plaintiff’s allegation that she had been having four 6 seizures per month since mid-2016 was inconsistent with her testimony that she 7 continued driving until September 2017, and her report to a provider that she was 8 still driving in January 2018. Tr. 22 (citing Tr. 593). Plaintiff testified at the 9 hearing that she stopped driving “maybe” in October 2017, Tr. 86, but also 10 reported in January 2018 to a provider that she is able to drive during the day but 11 not after the sun goes down because of her seizures, and she reported she does not 12 drive far because she tends to get tired, Tr. 593. On this record, the ALJ 13 reasonably concluded that Plaintiff made inconsistent statements about her ability 14 to drive. This finding is supported by substantial evidence and was a clear and 15 convincing reason to discount Plaintiff’s symptom complaints. 16 2. Inconsistent Objective Evidence 17 The ALJ found the objective medical evidence is inconsistent with 18 Plaintiff’s symptom claims. Tr. 22. An ALJ may not discredit a claimant’s 19 symptom testimony and deny benefits solely because the degree of the symptoms 20 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 [2] 1 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 2 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 3 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a 4 relevant factor, along with the medical source’s information about the claimant’s 5 pain or other symptoms, in determining the severity of a claimant’s symptoms and 6 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529 (c)(2), 7 416.929(c)(2). 8 The ALJ found the objective evidence does not support Plaintiff’s allegation 9 that she has three to five seizures per month. Tr. 22. Plaintiff’s MRIs and EEGs 10 were consistently within normal limits, with no evidence of seizure activity. Id. 11 (citing Tr. 462, 612). Plaintiff had mild diffuse slowing on one occasion but had 12 no epileptiform abnormalities. Tr. 22 (citing Tr. 612, 616). On another occasion, 13 Plaintiff reported having a five-minute seizure, but Dr. Cairns observed Plaintiff 14 appeared alert and did not appear significantly postictal. Tr. 22 (citing Tr. 678). 15 While the ALJ found the objective evidence does not support Plaintiff’s 16 allegations of four seizures per month due to epilepsy, the ALJ noted that Dr. 17 Sparrow suspected Plaintiff’s events were not epileptic in nature. Tr. 22 (citing Tr. 18 615). Dr. Johnson also found Plaintiff’s visual fields impairment had a non19 physiological cause. Tr. 22 (citing Tr. 675). Dr. McKenna testified that there was 20 not evidence to support a diagnosis of a seizure disorder and noted Plaintiff’s [2] 1 providers thought her seizures may be psychogenic. Tr. 65. However, the ALJ 2 noted that Plaintiff did not follow-up with the extended EEG that was 3 recommended to determine if the seizures were epileptic or psychogenic, and 4 Plaintiff did not seek mental health treatment. Tr. 22-23. As such, there is not 5 objective evidence to support disabling limitations due to psychogenic seizures. 6 On this record, the ALJ reasonably concluded that the objective medical evidence 7 is not consistent with Plaintiff’s complaints of disabling symptoms. This finding is 8 supported by substantial evidence and was a clear and convincing reason to 9 discount Plaintiff’s symptom claims. 10 3. Lack of Treatment 11 The ALJ found Plaintiff’s lack of treatment is inconsistent with her symptom 12 claims. Tr. 22. An unexplained, or inadequately explained, failure to seek 13 treatment or follow a prescribed course of treatment may be considered when 14 evaluating the claimant’s subjective symptoms. Orn v. Astrue, 495 F.3d 625 , 638 15 (9th Cir. 2007). And evidence of a claimant’s self-limitation and lack of 16 motivation to seek treatment are appropriate considerations in determining the 17 credibility of a claimant’s subjective symptom reports. Osenbrock v. Apfel, 240 18 F.3d 1157 , 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App’x 45, *3 (9th 19 Cir. 2009) (unpublished opinion) (considering why plaintiff was not seeking 20 treatment). When there is no evidence suggesting that the failure to seek or [2] 1 participate in treatment is attributable to a mental impairment rather than a 2 personal preference, it is reasonable for the ALJ to conclude that the level or 3 frequency of treatment is inconsistent with the alleged severity of complaints. 4 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental 5 health treatment is partly due to a claimant’s mental health condition, it may be 6 inappropriate to consider a claimant’s lack of mental health treatment when 7 evaluating the claimant’s failure to participate in treatment. Nguyen v. Chater, 100 8 F.3d 1462, 1465 (9th Cir. 1996). 9 At her February 2019 hearing, Plaintiff testified she had not sought 10 treatment for her seizures since February 2018 and had not sought any other 11 medical treatment since May 2018. Tr. 22, 51. Although an extended EEG was 12 recommended, Plaintiff did not have the EEG performed and she could not explain 13 why, though she stated she guessed the EEG request was probably declined by her 14 insurance, but she did not know if the insurance denial was appealed. Tr. 23, 6715 68. Plaintiff testified she could not get additional neurological treatment covered 16 until she obtained the EEG. Tr. 68. Plaintiff argues she did not have any gaps in 17 her treatment but does not explain why there are no medical records from May 18 2018 through the February 2019 hearing. ECF No. 21 at 3-4. Plaintiff also has not 19 sought mental health treatment, despite her providers indicating her symptoms may 20 be due to psychogenic causes. Tr. 22, 98-99. Plaintiff testified she has never been [2] 1 told to seek mental health treatment and she does not feel she needs it. Tr. 98-99. 2 The ALJ’s finding that Plaintiff’s lack of treatment is inconsistent with her 3 allegation of disabling seizures is a clear and convincing reason, supported by 4 substantial evidence, to reject Plaintiff’s symptom claims. 5 4. Symptom Exaggeration 6 The ALJ found Plaintiff exaggerated her symptoms. Tr. 22. Evidence of 7 being motivated by secondary gain is sufficient to support an ALJ’s rejection of 8 testimony evidence. See Matney, 981 F.2d at 1020. Therefore, the tendency to 9 exaggerate or engage in manipulative conduct during the process is a permissible 10 reason to discount the credibility of the claimant’s reported symptoms. 11 Tonapetyan, 242 F.3d at 1148. 12 The ALJ noted the medical records contained evidence of symptom 13 magnification and a focus on secondary gain. Tr. 22 (citing Tr. 590, 600, 615). 14 During her psychological consultative examination, the examiner observed 15 Plaintiff was less helpless appearing in the waiting room than she was during her 16 examination, and Plaintiff then became annoyed and upset during the examination. 17 Tr. 590. During her physical consultative examination, Plaintiff exhibited poor 18 effort on the range of motion testing, exhibited exaggerated pain behavior 19 throughout the examination, and the examiner noted multiple inconsistencies in 20 Plaintiff’s behavior including her ability to put on her jacket without difficulty and [2] 1 with improved shoulder range of motion despite Plaintiff having restricted range of 2 motion on examination. Tr. 600. The examiner noted Plaintiff gave poor effort on 3 her examination. Tr. 601. When seeking treatment for her seizures, Plaintiff and 4 her mother reported she was applying for disability benefits and needed to obtain 5 the treatment records for Plaintiff’s application for benefits. Tr. 615. This was a 6 clear and convincing reason, supported by substantial evidence, to reject Plaintiff’s 7 symptom claims. 8 5. Activities of Daily Living 9 The ALJ found Plaintiff’s activities of daily living were inconsistent with 10 her symptom claims. Tr. 22. The ALJ may consider a claimant’s activities that 11 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a 12 substantial part of the day engaged in pursuits involving the performance of 13 exertional or non-exertional functions, the ALJ may find these activities 14 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603 ; Molina, 15 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 16 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 17 the claimant reports participation in everyday activities indicating capacities that 18 are transferable to a work setting” or when activities “contradict claims of a totally 19 debilitating impairment.” Molina, 674 F.3d at 1112-13. [2] 1 The ALJ noted Plaintiff reported she was able to independently perform 2 basic housework, laundry, meal preparation, animal care, shopping, and financial 3 management. Tr. 22 (citing Tr. 369-76). However, Plaintiff reported receiving 4 assistance from her family members for many of the activities and reported 5 significant difficulties with the activities. Tr. 369-76. However, any error is 6 harmless as the ALJ gave other supported reasons to reject Plaintiff’s symptom 7 claims. See Molina, 674 F.3d at 1115. Plaintiff is not entitled to remand on these 8 grounds. 9 B. Medical Opinion Evidence 10 Plaintiff contends the ALJ erred in his analysis of the opinions of Michael 11 Clark, M.D. ECF No. 19 at 18-20. As an initial matter, for claims filed on or after 12 March 27, 2017, new regulations apply that change the framework for how an ALJ 13 must evaluate medical opinion evidence. Revisions to Rules Regarding the 14 Evaluation of Medical Evidence, 2017 WL 168819 , 82 Fed. Reg. 5844 -01 (Jan. 18, 15 2017); 20 C.F.R. §§ 404 .1520c, 416.920c. The new regulations provide that the 16 ALJ will no longer “give any specific evidentiary weight…to any medical 17 opinion(s)…” Revisions to Rules, 2017 WL 168819 , 82 Fed. Reg. 5844 , at 586718 68; see 20 C.F.R. §§ 404 .1520c(a), 416.920c(a). Instead, an ALJ must consider 19 and evaluate the persuasiveness of all medical opinions or prior administrative 20 medical findings from medical sources. 20 C.F.R. §§ 404 .1520c(a) and (b), [2] 1 416.920c(a) and (b). The factors for evaluating the persuasiveness of medical 2 opinions and prior administrative medical findings include supportability, 3 consistency, relationship with the claimant (including length of the treatment, 4 frequency of examinations, purpose of the treatment, extent of the treatment, and 5 the existence of an examination), specialization, and “other factors that tend to 6 support or contradict a medical opinion or prior administrative medical finding” 7 (including, but not limited to, “evidence showing a medical source has familiarity 8 with the other evidence in the claim or an understanding of our disability 9 program’s policies and evidentiary requirements”). 20 C.F.R. §§ 404 .1520c(c)(1)- 10 (5), 416.920c(c)(1)-(5). 11 Supportability and consistency are the most important factors, and therefore 12 the ALJ is required to explain how both factors were considered. 20 C.F.R. §§ 13 404.1520c(b)(2), 416.920c(b)(2). Supportability and consistency are explained in 14 the regulations: 15 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 16 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 17 administrative medical finding(s) will be. [18] (2) Consistency. The more consistent a medical opinion(s) or prior 19 administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more 20 persuasive the medical opinion(s) or prior administrative medical finding(s) will be. [1] 20 C.F.R. §§ 404 .1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not 2 required to, explain how the other factors were considered. 20 C.F.R. §§ 3 404.1520c(b)(2), 416.920c(b)(2).3 However, when two or more medical opinions [4] 5 3 The parties disagree over whether Ninth Circuit case law continues to be 6 controlling in light of the amended regulations. ECF No. 19 at 17-20; ECF No. 20 7 at 13-18. Plaintiff cited exclusively to case law that applied the prior regulations, 8 ECF No. 19 at 17-20, and argues the change in the regulations does not overrule 9 prior case law, ECF No. 21 at 9, while Defendant argues the prior case law does 10 not apply to the new regulations, ECF No. 20 at 13-18. The Court finds resolution 11 of this question unnecessary to the disposition of this case. “It remains to be seen 12 whether the new regulations will meaningfully change how the Ninth Circuit 13 determines the adequacy of the an ALJ’s reasoning and whether the Ninth Circuit 14 will continue to require that an ALJ provide ‘clear and convincing’ or ‘specific and 15 legitimate reasons’ in the analysis of medical opinions, or some variation of those 16 standards.” Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871 , at *3 17 (C.D. Cal. June 29, 2020) (citing Patricia F. v. Saul, No. C19-5590-MAT, 2020 18 WL 1812233 , at *3 (W.D. Wash. Apr. 9, 2020)). “Nevertheless, the Court is 19 mindful that it must defer to the new regulations, even where they conflict with 20 prior judicial precedent, unless the prior judicial construction ‘follows from the [2] 1 or prior administrative findings “about the same issue are both equally well2 supported ... and consistent with the record ... but are not exactly the same,” the 3 ALJ is required to explain how “the other most persuasive factors in paragraphs 4 (c)(3) through (c)(5)” were considered. 20 C.F.R. §§ 404 .1520c(b)(3), 5 416.920c(b)(3). 6 On January 14, 2018, Dr. Clark examined Plaintiff and rendered an opinion 7 on Plaintiff’s psychological functioning. Tr. 590-96. Dr. Clark diagnosed Plaintiff 8 with unspecified depressive disorder, unspecified anxiety disorder, and possible 9 unspecified cluster C personality disorder. Tr. 595. Dr. Clark opined Plaintiff is 10 able to manage her own funds, but she would appear to have some difficulties 11 performing simple/repetitive tasks; he has significant doubts about Plaintiff’s 12 ability to perform detailed and complicated tasks; Plaintiff would probably have 13 difficulty accepting instructions from supervisors; she would probably have [14] 15 unambiguous terms of the statute and thus leaves no room for agency discretion.’” 16 Allen T., at *3 (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet 17 Services, 545 U.S. 967, 981-82 (2005); Schisler v. Sullivan, 3 F.3d 563 , 567-58 18 (2d Cir. 1993) (“New regulations at variance with prior judicial precedents are 19 upheld unless ‘they exceeded the Secretary’s authority [or] are arbitrary and 20 capricious.’”). [2] 1 significant difficulty interacting with coworkers and the public; she would not have 2 difficulty performing work activities without special/additional instructions, but 3 she would probably have difficulty maintaining regular attendance and completing 4 a normal workday/workweek without interruptions from a psychiatric condition; 5 she would likely have difficulty dealing with the usual stress in the workplace; and 6 her symptoms/limitations are unlikely to dissipate within 12 months. Tr. 595-96. 7 The ALJ found Dr. Clark’s opinion was not persuasive. Tr. 25. 8 First, the ALJ found Dr. Clark’s opinion was inconsistent with Plaintiff’s 9 presentation, behavior, and examination results. Tr. 25. Supportability is one of 10 the most important factors an ALJ must consider when determining how 11 persuasive a medical opinion is. 20 C.F.R. §§ 404 .1520c(b)(2), 416.920c(b)(2). 12 The more relevant objective evidence and supporting explanations that support a 13 medical opinion, the more persuasive the medical opinion is. 20 C.F.R. §§ 14 404.1520c(c)(1), 416.920c(c)(1). 15 The ALJ found Plaintiff’s behavior during Dr. Clark’s examination was 16 uncooperative, Tr. 25, and noted the examination contained evidence of symptom 17 magnification, Tr. 22. Dr. Clark observed that Plaintiff had appropriate behavior 18 in the waiting room, and appeared less helpless in the waiting room, but began to 19 behave in a helpless manner in the initial portion of the interview before becoming 20 upset. Tr. 590. On examination, Dr. Clark noted Plaintiff was tangential, agitated, [2] 1 defensive, helpless, hopeless, alert, and oriented. Tr. 593-94. Plaintiff had normal 2 memory, fund of knowledge, and level of intelligence, and she made only one error 3 on serial sevens but then became upset by the error and while still upset made an 4 error while following a three-step command. Id. Plaintiff had normal judgment 5 but did not appear to have much insight into her own difficulties. Id. While 6 Plaintiff had some abnormalities on examination, Dr. Clark did not address how 7 Plaintiff’s potential symptom magnification impacted his opinion, despite noting 8 her different behavior in the waiting room versus the examination room. As 9 discussed infra, Plaintiff generally presented at her treatment appointments with 10 normal mood, affect, behavior and without complaints of psychological symptoms, 11 and such presentation is inconsistent with her presentation at Dr. Clark’s 12 examination. As such, the ALJ’s finding that Dr. Clark’s opinion is inconsistent 13 with Plaintiff’s presentation, behavior, and examination results was a specific and 14 legitimate reason, supported by substantial evidence, to reject the opinion. See 15 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Batson 16 v. Comm’r Soc. Sec. Admin., 359 F.3d 1190 , 1195 (9th Cir. 2003); Thomas, 278 17 F.3d at 957; Tonapetyan, 242 F.3d at 1149; Matney, 981 F.2d at 1019. 18 Second, the ALJ found Dr. Clark’s opinion was inconsistent with the 19 longitudinal record. Tr. 25. Consistency is one of the most important factors an 20 ALJ must consider when determining how persuasive a medical opinion is. 20 [2] 1 C.F.R. §§ 404 .1520c(b)(2), 416.920c(b)(2). The more consistent an opinion is 2 with the evidence from other sources, the more persuasive the opinion is. 20 3 C.F.R. §§ 404 .1520c(c)(2), 416.920c(c)(2). The ALJ noted treating sources 4 generally found Plaintiff had no cognitive deficits, was pleasant, had a normal 5 mood and affect, and was in no acute distress. Tr. 25. As indicated by the ALJ, 6 the treatment records generally reflect normal psychological functioning, including 7 normal mood, affect, memory, orientation, behavior, concentration, attention, fund 8 of knowledge, speech, comprehension, insight, and judgment. Tr. 426, 465, 500, 9 608, 614, 619. While Dr. Clark noted Plaintiff was tangential and difficult to get a 10 history from, Tr. 592, treatment records indicate Plaintiff has an intact memory and 11 is able to give a detailed history with goal-directed answers, Tr. 505, 510, 520, 12 525, 534, 539. Plaintiff also has not sought any mental health treatment and 13 testified that she does not feel she needs mental health treatment. Tr. 99. The 14 ALJ’s finding that Dr. Clark’s opinion is inconsistent with the longitudinal record 15 was a specific and legitimate reason, supported by substantial evidence to reject the 16 opinion. See Batson, 359 F.3d at 1195. 17 Third, the ALJ found that the inclusion of additional mental limitations in 18 the RFC would not be disabling. Tr. 25. Any error in failing to include a 19 provider’s opined limitation would be harmless “where it is inconsequential to the 20 [ALJ’s] ultimate nondisability determination.” See Molina, 674 F.3d at 1115. The [2] 1 ALJ posed a second hypothetical to the vocational expert that contained additional 2 limitations, and the vocational expert testified there would still be available jobs 3 that exist in significant numbers. Tr. 25. The hypothetical included the following 4 limitations: “sedentary work . . . simple, routine tasks, with a reasoning level of 2 5 or less; superficial contact with the public; occasional contact with coworkers; and 6 could not have concentrated pulmonary irritants or wetness.” Tr. 101. 7 The ALJ reasonably interpreted Dr. Clark’s opinion as being accounted for 8 by a limitation to simple, routine tasks, a reasoning level of two, and social 9 limitations. Dr. Clark opined Plaintiff appears to have “some” difficulties with 10 simple and repetitive tasks, and would have difficulties with detailed tasks, which 11 was accounted for in the hypothetical. Tr. 101, 596. He opined Plaintiff would 12 have difficulties with supervisors and would probably have difficulties with 13 coworkers and the public, which the ALJ accounted for in the hypothetical with 14 limitations to superficial public contact and occasional coworker contact. Tr. 101, 15 596. As such, any error in rejecting most of Dr. Clark’s opinion would be 16 harmless, as the opined limitations were not disabling. Dr. Clark also opined 17 Plaintiff would “probably” have difficulty maintaining regular attendance and 18 completing a normal workday/workweek but did not specify the amount of time 19 Plaintiff would miss work or be off task. Tr. 596. Even if the attendance portion 20 of the opinion was disabling, the ALJ gave two reasons, supported by substantial [2] 1 evidence, why he found Dr. Clark’s opinion was not persuasive; as such, any error 2 in finding Dr. Clark’s opinion was not disabling is harmless. 3 Plaintiff argues the ALJ erred in rejecting Dr. Clark’s opinion, because the 4 testifying medical expert opined Plaintiff’s seizures are not epileptic and noted that 5 providers believed Plaintiff’s seizures may be psychogenic. ECF No. 19 at 19-20. 6 Plaintiff contends that if Plaintiff’s seizures are psychogenic, the ALJ erred in 7 rejecting Dr. Clark’s opinion. Id. However, Dr. Clark only noted that Plaintiff 8 complained of seizures which he interpreted “to mean pseudoseizures given what 9 little history I was provided,” Tr. 590, and Dr. Clark did not diagnose Plaintiff with 10 somatoform disorder or any other condition to account for pseudoseizures, Tr. 595. 11 Plaintiff is not entitled to remand on these grounds. 12 CONCLUSION 13 Having reviewed the record and the ALJ’s findings, the Court concludes the 14 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 15 Accordingly, IT IS HEREBY ORDERED: 16 1. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED. 17 2. Defendant’s Motion for Summary Judgment, ECF No. 20, is 18 GRANTED. 19 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. [2] 1 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED March 29, 2021. 4 s/Mary K. Dimke MARY K. DIMKE 5 UNITED STATES MAGISTRATE JUDGE