Rolen v. Saul

[1] FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Apr 14, 2021 [3] SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JEFFREY R.,1 No. 2:20-cv-00228-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. 18, 20 [12] Before the Court are the parties’ cross-motions for summary judgment. ECF [13] Nos. 18, 20. The parties consented to proceed before a magistrate judge. ECF No. [14] 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). 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 18, 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 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 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. § 423 (d)(1)(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. § 18 423(d)(2)(A). 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. § 1 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 2 work activity. 20 C.F.R. § 404.1520 (a)(4)(i). If the claimant is engaged in 3 “substantial gainful activity,” the Commissioner must find that the claimant is not 4 disabled. 20 C.F.R. § 404.1520 (b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). If the claimant suffers 8 from “any impairment or combination of impairments which significantly limits 9 [his or her] physical or mental ability to do basic work activities,” the analysis 10 proceeds to step three. 20 C.F.R. § 404.1520 (c). If the claimant’s impairment 11 does not satisfy this severity threshold, however, the Commissioner must find that 12 the claimant is 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. § 16 404.1520(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. § 404.1520 (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 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. § 4 404.1545(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. § 404.1520 (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. § 404.1520 (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. § 404.1520 (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. § 17 404.1520(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. [20] 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 numbers 5 in the national economy.” 20 C.F.R. § 404.1560 (c)(2); Beltran v. Astrue, 700 F.3d 6 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On October 25, 2016, Plaintiff applied for Title II disability insurance 9 benefits alleging a disability onset date of October 1, 2015. Tr. 15, 69, 150-51. 10 The application was denied initially and on reconsideration. Tr. 94-96, 98-100. 11 Plaintiff appeared before an administrative law judge (ALJ) on August 3, 2018. 12 Tr. 28-68. On November 23, 2018, the ALJ denied Plaintiff’s claim. Tr. 12-27. 13 At step one of the sequential evaluation process, the ALJ found Plaintiff, 14 who met the insured status requirements through December 31, 2020, has not 15 engaged in substantial gainful activity since October 1, 2015. Tr. 17. At step two, 16 the ALJ found that Plaintiff has the following severe impairments: major 17 depressive disorder, obstructive sleep apnea with use of CPAP machine, 18 generalized anxiety disorder, PTSD, panic disorder, and drug and alcohol addiction 19 disorder. Id. [20] 1 At step three, the ALJ found Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of a listed 3 impairment. Tr. 18. The ALJ then concluded that Plaintiff has the RFC to perform 4 a full range of work at all exertional levels but with the following non-exertional 5 limitations: 6 [Plaintiff] can perform simple repetitive tasks with short, simple instructions. He can have superficial interaction with co-workers and 7 small groups of familiar individuals. He can have superficial contact with the general public, who can be around his vicinity, but this 8 individual can have no interaction with the general public for performing job tasks. He needs a stable, routine job environment. He 9 can do no work at [a] fast production rate. H[e] is off-task up to 10% of the workday. [10] Tr. 19. [11] At step four, the ALJ found Plaintiff is capable of performing his past [12] relevant work as a garbage collector and auto detailer. Tr. 23. The ALJ did not [13] make an alternative step five finding. Therefore, the ALJ concluded Plaintiff was [14] not under a disability, as defined in the Social Security Act, from the alleged onset [15] date of October 1, 2016, through the date of the decision. Id. [16] On April 22, 2020, the Appeals Council denied review of the ALJ’s [17] decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for [18] purposes of judicial review. See 42 U.S.C. § 1383 (c)(3). [20] 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 4 raises the following issues for review: 5 1. Whether the ALJ properly evaluated the medical opinion evidence; 6 2. Whether the ALJ properly evaluated the lay opinion evidence;2 7 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 8 4. Whether the ALJ conducted a proper step-five analysis; and 9 5. Whether the ALJ conducted a proper step-three analysis. 10 ECF No. 18 at 4. 11 DISCUSSION 12 A. Medical Opinion Evidence 13 Plaintiff contends the ALJ erred in his consideration of the opinion of R.A. 14 Cline, Ph.D. ECF No. 18 at 6-13. [16] 17 2 Plaintiff did not list the ALJ’s rejection of the lay opinion evidence as a separate 18 issue, but briefed the issue, ECF No. 18 at 10-11, and Defendant responded 19 regarding the issue, ECF No. 20 at 10-11. Thus, the Court finds the issue 20 sufficiently raised for the Court’s consideration. 1 Plaintiff generally asserts that the ALJ repeatedly erred in his evaluation of 2 the medical evidence, but does not set forth a specific argument regarding any 3 medical opinions except Dr. Cline’s opinion. Id. at 6-13 . Because Plaintiff failed 4 to develop the arguments regarding other medical opinions with any specificity, 5 the arguments are waived. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 6 1155 , 1161 n.2 (9th Cir. 2008) (determining Court may decline to address on the 7 merits issues not argued with specificity); Kim v. Kang, 154 F.3d 996 , 1000 (9th 8 Cir. 1998) (the Court may not consider on appeal issues not “specifically and 9 distinctly argued” in the party’s opening brief). 10 There are three types of physicians: “(1) those who treat the claimant 11 (treating physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor treat the claimant 13 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 14 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 15 Generally, a treating physician’s opinion carries more weight than an examining 16 physician’s, and an examining physician’s opinion carries more weight than a 17 reviewing physician’s. Id. at 1202 . “In addition, the regulations give more weight 18 to opinions that are explained than to those that are not, and to the opinions of 19 specialists concerning matters relating to their specialty over that of 20 nonspecialists.” Id. (citations omitted). 1 If a treating or examining physician’s opinion is uncontradicted, the ALJ 2 may reject it only by offering “clear and convincing reasons that are supported by 3 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 4 “However, the ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory and inadequately supported 6 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219 , 1228 7 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 8 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 9 may only reject it by providing specific and legitimate reasons that are supported 10 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 11 F.3d 821, 830-31 (9th Cir. 1995)). The opinion of a nonexamining physician may 12 serve as substantial evidence if it is supported by other independent evidence in the 13 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 14 On March 16, 2017, Dr. Cline examined Plaintiff and provided an opinion 15 on Plaintiff’s psychological functioning. Tr. 351-56. Dr. Cline diagnosed Plaintiff 16 with borderline personality disorder, PTSD, panic disorder, agoraphobia, 17 unspecified depressive disorder (rule out alcohol use related), and severe alcohol 18 use disorder in early reported remission. Tr. 353. Dr. Cline opined Plaintiff’s 19 anxiety/panic, mood instability/depressed mood, and trauma-related symptoms are 20 all marked in severity, and his maladaptive personality traits are moderate in 1 severity. Id. Dr. Cline opined Plaintiff has no to mild limitations in his ability to 2 understand, remember, and persist in tasks by following very short and simple 3 instructions, learn new tasks, perform routine tasks without special supervision, be 4 aware of normal hazards and take appropriate precautions, and ask simple 5 questions or request assistance; moderate limitations in his ability to understand, 6 remember, and persist in tasks by following detailed instructions, perform 7 activities within a schedule, maintain regular attendance, and be punctual within 8 customary tolerances without special supervision, adapt to changes in a routine 9 work setting, make simple work-related decisions, and set realistic goals and plan 10 independently; and marked limitations in his ability to communicate and perform 11 effectively in a work setting, maintaining appropriate behavior in a work setting, 12 and complete a normal workday/workweek without interruptions from 13 psychologically based symptoms. Tr. 354. Dr. Cline further opined Plaintiff’s 14 mental impairments overall have a moderate severity rating, and his limitations 15 were expected to last six to 12 months. Id. Dr. Cline noted, “[t]he interplay 16 between his alcohol abuse and depression remains somewhat unclear,” and as such 17 she did not know if Plaintiff’s impairments would persist following 60 days of 18 sobriety. Id. The ALJ gave Dr. Cline’s opinion little weight. Tr. 22. As Dr. 19 Cline’s opinion was contradicted by the opinion of Dr. Forsyth, Tr. 89-90, the ALJ [20] 1 was required to give specific and legitimate reasons, supposed by substantial 2 evidence, to reject Dr. Cline’s opinion. See Bayliss, 427 F.3d at 1216 . 3 First, the ALJ found Dr. Cline did not acknowledge Plaintiff’s history of 4 substance use. Tr. 21-22. An ALJ may properly reject a medical opinion that is 5 rendered without knowledge of a claimant’s substance abuse. Cothrell v. 6 Berryhill, 742 F. App’x 232 , 236 (9th Cir. July 18, 2018) (unpublished opinion); 7 Chavez v. Colvin, No. 3:14-cv-01178-JE, 2016 WL 8731796 , at *8 (D. Or. July 25, 8 2016) (unpublished opinion). The ALJ noted Dr. Cline did not mention Plaintiff’s 9 history of polysubstance abuse, nor Plaintiff’s potential continued marijuana use. 10 Tr. 21-22. While Dr. Cline diagnosed Plaintiff with alcohol use disorder, she did 11 not diagnose any other substance use disorder despite Plaintiff having used 12 marijuana more recently than alcohol, and his reported history of use of multiple 13 other substances, Tr. 352-53. Dr. Cline noted Plaintiff has a history of alcohol, 14 marijuana, mushroom, opiate medication, and methamphetamine use, including 15 marijuana use one month prior to the examination, and alcohol use four months 16 prior to the examination. Tr. 352. Plaintiff reported his longest period of sobriety 17 was when he maintained a year-long period following treatment. Id. Dr. Cline 18 noted it was difficult to clearly diagnose major depressive disorder due to 19 Plaintiff’s recent heavy alcohol use, Tr. 353, and stated the interplay between 20 Plaintiff’s alcohol use and depression was unclear, Tr. 354. Dr. Cline did not 1 address if Plaintiff’s history of substance use, nor his recent marijuana use, 2 impacted her opinion. Plaintiff observed Dr. Cline did not comment on Plaintiff’s 3 drug or alcohol use related to his PTSD, panic disorder or agoraphobia. ECF No. 4 18 at 12. This was a specific and legitimate reason, supported by substantial 5 evidence, to reject Dr. Cline’s opinion. 6 Second, the ALJ found Dr. Cline’s opinion indicated the limitations would 7 not be permanent with treatment. Tr. 22. Temporary limitations are not enough to 8 meet the durational requirement for a finding of disability. 20 C.F.R. § 9 404.1505(a); 42 U.S.C. § 423 (d)(1)(A) (same); Carmickle, 533 F.3d at 1165 10 (affirming the ALJ’s finding that treating physicians’ short-term excuse from work 11 was not indicative of “claimant’s long-term functioning”). To be disabled, an 12 impairment must be expected to last for a continuous period of at least 12 months. 13 See 20 C.F.R. § 404.1509 . Here, Dr. Cline opined that with available treatment, 14 Plaintiff would be impaired for six to 12 months. Tr. 354. However, Dr. Cline 15 also noted Plaintiff’s impairments may not persist following 60 days of sobriety, as 16 the interplay between his alcohol use and depression was somewhat unclear. Tr. 17 354. Any error in in finding Dr. Cline’s opinion did not meet the duration 18 requirement is harmless because the ALJ provided other specific and legitimate 19 reasons, supported by substantial evidence, to discount Dr. Cline’s opinion. See 20 Molina, 674 F.3d at 1115. 1 Lastly, the ALJ found Dr. Cline’s opinion was inconsistent with Plaintiff’s 2 improvement with treatment. Tr. 22. An ALJ may discredit physicians’ opinions 3 that are unsupported by the record as a whole. Batson v. Comm’r of Soc. Sec. 4 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). After Dr. Cline rendered her opinion 5 in March 2017, Plaintiff had ongoing mental health treatment. Tr. 22 (citing Tr. 6 583-624). The ALJ observed that in April 2017, Plaintiff reported having two 7 good friends, riding motorcycles, fishing, and camping. Tr. 20 (citing Tr. 584). 8 Plaintiff’s April 2017 mental status examination contained some abnormalities, 9 including distractible attention and poor recent memory, but Plaintiff otherwise had 10 a normal examination. Tr. 583. In July 2017, Plaintiff reported going camping, 11 and was observed as oriented, with a euthymic mood, intact functional status, 12 appropriate affect, and he was interactive. Tr. 599. In November 2017, Dr. Greer 13 noted Plaintiff appeared to be doing well, and his anxiety was under better control 14 with new medications, although he was still having occasional panic attacks. Tr. 15 20 (citing Tr. 607). In May 2018, Plaintiff had a fairly stable week with his mood 16 and anxiety, he reported sleeping well and reported his son keeps him busy during 17 the day and evening, and he reported he cares for his son during the day because 18 his fiancée is gone long hours; he was observed as alert, oriented, with normal 19 functional status. Tr. 621. This was a specific and legitimate reason, supported by 20 substantial evidence, to reject Dr. Cline’s opinion. 1 B. Lay Opinion Evidence 2 Plaintiff contends the ALJ erred in his consideration of Ms. Wright’s 3 statement. ECF No. 18 at 10-11. An ALJ must consider the statement of lay 4 witnesses in determining whether a claimant is disabled. Stout v. Comm’r of Soc. 5 Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). Lay witness evidence cannot 6 establish the existence of medically determinable impairments, but lay witness 7 evidence is “competent evidence” as to “how an impairment affects [a claimant’s] 8 ability to work.” Id.; 20 C.F.R. § 404.1513 ; see also Dodrill v. Shalala, 12 F.3d 9 915, 918-19 (9th Cir. 1993) (“[F]riends and family members in a position to 10 observe a claimant’s symptoms and daily activities are competent to testify as to 11 her condition.”). If a lay witness statement is rejected, the ALJ “‘must give 12 reasons that are germane to each witness.’” Nguyen v. Chater, 100 F.3d 1462 , 13 1467 (9th Cir. 1996) (citing Dodrill, 12 F.3d at 919). 14 On October 31, 2016, Ms. Wright completed a questionnaire regarding 15 Plaintiff’s functioning. Tr. 174-81. Ms. Wright stated Plaintiff’s anxiety at times 16 prevents him from leaving the house, he has been hospitalized multiple times for 17 panic attacks, he helps care for their son and dogs though Ms. Wright handles most 18 of the care, his symptoms vary between “good days” and “bad days,” and on bad 19 days he will not change his clothes, bathe, care for his hair, or shave, and he 20 requires reminders to perform personal care, he can prepare several meals per week 1 with encouragement, he can drive and go out alone, he can handle money, he 2 works on cars and goes hiking only when he is feeling good, he works on cars with 3 a friend a couple times per week and visits his stepdad a few times per month, he 4 does not have issues getting along with others, but he has trouble with his memory, 5 concentration, completing tasks, following instructions, and handling stress. Id. 6 The ALJ gave Ms. Wright’s opinion little weight. Tr. 23. As Ms. Wright is a lay 7 witness, the ALJ was required to give germane reasons to reject the statement. See 8 Nguyen, 100 F.3d at 1467 . 9 The ALJ found Ms. Wright’s opinion was inconsistent with her own report 10 of Plaintiff’s activities of daily living. Tr. 22-23. Inconsistency with a claimant’s 11 daily activities is a germane reason to reject lay testimony. Carmickle, 533 F.3d at 12 1163-64; Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ noted that 13 while Ms. Wright reported Plaintiff had severe limitations, she also reported 14 Plaintiff was able to leave the home daily by driving or riding in a car, and was 15 able to shop. Tr. 22-23. The ALJ discussed Plaintiff’s other activities earlier in 16 the decision, and noted Plaintiff engaged in camping, boating, fishing, riding 17 motorcycles, spending time with two friends, and maintaining a romantic 18 relationship. Tr. 20-21. Plaintiff alleges the record does not indicate how 19 frequently he engages in the activities. ECF No. 18 at 9. However, Ms. Wright 20 indicated Plaintiff engaged in social activities multiple times per week, leaves his 1 home almost every day, shops a few times per month, and prepares meals several 2 times per week. Tr. 175-78. While Ms. Wright indicated Plaintiff has “good days” 3 and “bad days,” Plaintiff’s ability to engage in multiple activities outside of his 4 home on a regular basis is inconsistent with her reports of Plaintiff’s disabling 5 limitations and inability to consistently leave his home. This was a germane 6 reason to reject Ms. Wright’s statements. Plaintiff is not entitled to remand on 7 these grounds. 8 C. Plaintiff’s Symptom Claims 9 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 10 convincing in discrediting his symptom claims. ECF No. 18 at 13-14. An ALJ 11 engages in a two-step analysis to determine whether to discount a claimant’s 12 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029 , at *2. 13 “First, the ALJ must determine whether there is objective medical evidence of an 14 underlying impairment which could reasonably be expected to produce the pain or 15 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 16 “The claimant is not required to show that [the claimant’s] impairment could 17 reasonably be expected to cause the severity of the symptom [the claimant] has 18 alleged; [the claimant] need only show that it could reasonably have caused some 19 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). [20] 1 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of 3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 5 omitted). General findings are insufficient; rather, the ALJ must identify what 6 symptom claims are being discounted and what evidence undermines these claims. [7] Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 8 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 9 symptom claims)). “The clear and convincing [evidence] standard is the most 10 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995 , 11 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920 , 12 924 (9th Cir. 2002)). 13 Factors to be considered in evaluating the intensity, persistence, and limiting 14 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 15 duration, frequency, and intensity of pain or other symptoms; 3) factors that 16 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 17 side effects of any medication an individual takes or has taken to alleviate pain or 18 other symptoms; 5) treatment, other than medication, an individual receives or has 19 received for relief of pain or other symptoms; 6) any measures other than treatment 20 an individual uses or has used to relieve pain or other symptoms; and 7) any other 1 factors concerning an individual’s functional limitations and restrictions due to 2 pain or other symptoms. SSR 16-3p, 2016 WL 1119029 , at *7; 20 C.F.R. § 3 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 4 individual’s record,” to “determine how symptoms limit ability to perform work5 related activities.” SSR 16-3p, 2016 WL 1119029 , at *2. 6 The ALJ found that Plaintiff’s medically determinable impairments could 7 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 8 statements concerning the intensity, persistence, and limiting effects of his 9 symptoms were not entirely consistent with the evidence. Tr. 19. 10 1. Inconsistent Objective Medical Evidence 11 The ALJ found Plaintiff’s symptom claims are inconsistent with the 12 objective medical evidence. Tr. 20-21. An ALJ may not discredit a claimant’s 13 symptom testimony and deny benefits solely because the degree of the symptoms 14 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 15 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 16 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 17 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a 18 relevant factor, along with the medical source’s information about the claimant’s [20] 1 pain or other symptoms, in determining the severity of a claimant’s symptoms and 2 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529 (c)(2). 3 The ALJ found Plaintiff’s symptom complaints are inconsistent with the 4 medical records, which contain many generally normal mental findings. Tr. 20. In 5 February 2016, Plaintiff was noted as having normal insight, judgment, mood, 6 affect, orientation, and memory. Id. (citing Tr. 387). In March 2017, Plaintiff was 7 cooperative, calm, and pleasant, with normal eye contact, speech, thoughts, 8 orientation, memory, insight, judgment, thoughts, and mood, though he had an 9 anxious affect. Tr. 20 (citing Tr. 359). In February 2018, Plaintiff had a normal 10 assessment. Tr. 20 (citing Tr. 609). The medical records contain numerous largely 11 normal mental status findings. See, e.g., Tr. 369, 378, 380-81, 383. There are 12 some examinations containing abnormalities, including fair insight, poor recent 13 memory, and distractible attention/concentration, Tr. 583, and anxious mood, 14 abnormal thoughts, some memory impairments, and abnormal abstract thought, Tr. 15 355-56, however even during the examinations containing some abnormal 16 findings, Plaintiff’s examinations were otherwise normal. Dr. Greer noted she 17 discussed working with Plaintiff, but Plaintiff wanted to wait to see if he would be 18 receiving disability benefits because working would interfere with his ability to 19 obtain benefits, Tr. 22, 606, and she suggested Plaintiff pursue services from 20 division of vocational rehabilitation to help Plaintiff find work, but Plaintiff 1 declined, Tr. 606, 610. Plaintiff reported he wants to work in the future but felt he 2 could not presently. Tr. 610. 3 Plaintiff argues the medical evidence is consistent with his claims, as the 4 records document Plaintiff reported feeling anxious, being unable to return to 5 work, and his reports that he had ongoing symptoms of panic attacks and 6 depression. ECF No. 18 at 13-14. Plaintiff’s argument largely relies on his own 7 self-report of his symptoms; the cited records contain Plaintiff’s report of his 8 symptoms to medical providers, rather than objective documentation of his 9 symptoms and limitations. See Tr. 269-70, 311-12. Plaintiff also argues the 10 statement of his fiancée is consistent with his symptom claims, however a lay 11 witness statement does not provide objective medical evidence to support his 12 claims. See ECF No. 18 at 14. Plaintiff further argues the ALJ inflated Dr. 13 Greer’s notes, and the notes reflected only Dr. Greer’s hope that Plaintiff could 14 work. Id. at 8 . However, Dr. Greer’s notes contained Plaintiff’s own statements 15 that he was not pursuing work so he could pursue disability benefits, and Dr. 16 Greer’s repeated suggestions that Plaintiff pursue assistance obtaining work 17 indicates a belief that Plaintiff is able to work. Tr. 606, 609-10. 18 While Plaintiff’s symptoms naturally waxed and waned, the ALJ’s finding 19 that the relatively benign objective findings were out of proportion with and did 20 not corroborate Plaintiff’s report of severe mental limitations is reasonable. This 1 was a clear and convincing reason, along with the other reasons offered, to 2 discount Plaintiff’s symptom reports. 3 2. Improvement with Treatment 4 The ALJ found Plaintiff’s symptom claims are inconsistent with Plaintiff’s 5 improvement with treatment. Tr. 20. The effectiveness of treatment is a relevant 6 factor in determining the severity of a claimant’s symptoms. 20 C.F.R. § 7 404.1529(c)(3) (2011); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001 , 1006 8 (9th Cir. 2006) (determining that conditions effectively controlled with medication 9 are not disabling for purposes of determining eligibility for benefits); Tommasetti 10 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (recognizing that a favorable 11 response to treatment can undermine a claimant’s complaints of debilitating pain or 12 other severe limitations). 13 The ALJ noted Plaintiff’s mental health symptoms improved with 14 medication, which was inconsistent with Plaintiff’s reported limitations. Tr. 20. In 15 April 2017, Plaintiff reported having two good friends, riding motorcycles, fishing, 16 and camping. Id. (citing Tr. 584). In November 2017, Dr. Greer noted Plaintiff 17 appeared to be doing well, and his anxiety was under better control with new 18 medications, although he was still having occasional panic attacks. Tr. 20 (citing 19 Tr. 607). As discussed supra, despite some abnormalities in the records, Plaintiff 20 had numerous generally normal mental status examinations. 1 On this record, the ALJ reasonably concluded that Plaintiff’s impairments 2 when treated were not as limiting as Plaintiff claimed. This finding is supported by 3 substantial evidence and was a clear and convincing reason to discount Plaintiff’s 4 symptoms complaints. 5 3. Activities of Daily Living 6 The ALJ found Plaintiff’s symptom claims are inconsistent with Plaintiff’s 7 activities of daily living. Tr. 20-21. The ALJ may consider a claimant’s activities 8 that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can 9 spend a substantial part of the day engaged in pursuits involving the performance 10 of exertional or non-exertional functions, the ALJ may find these activities 11 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603 ; Molina, 12 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 13 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 14 the claimant reports participation in everyday activities indicating capacities that 15 are transferable to a work setting” or when activities “contradict claims of a totally 16 debilitating impairment.” Molina, 674 F.3d at 1112-13. 17 The ALJ noted Plaintiff’s activities are inconsistent with his reported 18 difficulty leaving the house and frequent anxiety. Tr. 20-21. Plaintiff reported 19 camping, boating, fishing, and maintaining two friendships and a romantic 20 relationship. Id. Plaintiff’s fiancée reported Plaintiff visits his friends and 1 stepfather, leaves the home almost daily, and is able to shop. Tr. 22-23. Plaintiff 2 argues there is not documentation of the frequency of his activities, ECF No. 18 at 3 9-10, but as discussed supra, Ms. Wright indicated the frequency of several of the 4 activities. Plaintiff argues he had anxiety during the activities, and his activities 5 are not inconsistent with his allegations. Id. However, there are multiple notes 6 documenting Plaintiff reporting engaging in camping, hunting, fishing, and 7 boating. Tr. 55, 515, 584, 599, 607. While Plaintiff argues the activities are not 8 transferrable to work activity, ECF No. 18 at 9, 11, the activities undermine 9 Plaintiff’s allegations that he is often unable to leave his home. 10 On this record, the ALJ reasonably concluded that Plaintiff’s activities of 11 daily living are inconsistent with his allegations. This finding is supported by 12 substantial evidence and was a clear and convincing reason to discount Plaintiff’s 13 symptom complaints. 14 4. Substance Use 15 The ALJ found Plaintiff made inconsistent statements about his substance 16 use. Tr. 21. Inconsistent statements about drug use are appropriate grounds for the 17 ALJ to discount a claimant’s reported symptoms. Thomas, 278 F.3d at 959 ; 18 Edlund, 253 F.3d at 1157 ; Gray v. Comm’r, of Soc. Sec., 365 F. App’x 60, 63 (9th 19 Cir. 2010); Lewis v. Astrue, 238 F. App’x 300, 302 (9th Cir. 2007); Morton v. 20 Astrue, 232 F. App’x 718, 719 (9th Cir. 2007). At his hearing, Plaintiff testified he 1 had not been consuming any substances. Tr. 21, 43. Plaintiff stated he could not 2 recall the last time he consumed alcohol, but stated his attorney had told him the 3 medical records indicated his last use was October of 2017, and he did not have 4 any other recollection. Tr. 51. Plaintiff also testified he could not recall the last 5 time he used marijuana. Id. Plaintiff reported he first tried to stop drinking alcohol 6 in 2015, but he began drinking alcohol again multiple times per week before 7 stopping again and he had not drank since the last time he stopped. Tr. 52-53. 8 Plaintiff’s records indicate continued alcohol consumption in November 2017 and 9 marijuana use in February 2017. Tr. 351, 467, 515. 10 Plaintiff contends the ALJ improperly speculated as to the significance of 11 Plaintiff’s substance use on his ability to function. ECF No. 18 at 11-12. Plaintiff 12 argues the ALJ should not have considered Plaintiff’s substance use, as he did not 13 find Plaintiff disabled. Id. When there is medical evidence of drug or alcohol 14 addiction (DAA), the ALJ must determine whether the drug or alcohol addiction is 15 a material factor contributing to the disability. 20 C.F.R. § 404.1535 (a). In order 16 to determine whether drug or alcohol addiction is a material factor contributing to 17 the disability, the ALJ must evaluate which of the current physical and mental 18 limitations would remain if the claimant stopped using drugs or alcohol, then 19 determine whether any or all of the remaining limitations would be disabling. 20 20 C.F.R. § 404.1535 (b)(2). If the remaining limitations would not be disabling, drug 1 or alcohol addiction is a contributing factor material to the determination of 2 disability. Id. If the remaining limitations would be disabling, the claimant is 3 disabled independent of the drug or alcohol addiction and the addiction is not a 4 contributing factor material to disability. Id. The claimant has the burden of 5 showing that drug and alcohol addiction is not a contributing factor material to 6 disability. Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2008). 7 The ALJ found there was not clear evidence of substance abuse that allowed 8 for a materiality analysis. Tr. 21. The ALJ then stated that even during a period 9 sobriety, Plaintiff’s substance use before and after the sober period could 10 reasonably have depressed Plaintiff’s functioning. Id. Plaintiff argues the ALJ 11 erred in his analysis as his substance use is not material to his disability. ECF No. 12 18 at 12. However, the ALJ found there was not sufficient evidence to make a 13 materiality determination. Tr. 21. Any error in the ALJ’s analysis of Plaintiff’s 14 substance use is harmless, as the ALJ found Plaintiff’s use was not material, and he 15 gave other clear and convincing reasons, supported by substantial evidence, to 16 reject Plaintiff’s symptom claims. See Molina, 674 F.3d at 1115. 17 5. Situational Stressors 18 The ALJ found Plaintiff’s exacerbation of his anxiety-related symptoms was 19 attributable to situational stress. Tr. 21. If a claimant suffers from limitations that 20 are transient and result from situational stressors, as opposed to resulting from a 1 medical impairment, an ALJ may properly consider this fact in discounting 2 Plaintiff’s symptom claims. See Chesler v. Colvin, 649 F. App’x 631, 632 (9th 3 Cir. 2016) (symptom testimony properly rejected in part because “the record 4 support[ed] the ALJ’s conclusion that [plaintiff’s] mental health symptoms were 5 situational”); but see Bryant v. Astrue, No. C12-5040-RSM-JPD, 2012 WL 6 5293018, at *5–7 (W.D. Wash. Sept. 24, 2012) (concluding Plaintiff’s stressors 7 appeared to have a constant presence affecting ability to work on a continuing 8 basis, rather than temporary exacerbation). 9 The ALJ noted some of Plaintiff’s mental health symptoms were attributable 10 to situational stress. Tr. 21. Dr. Greer attributed Plaintiff’s anxiety to an ongoing 11 legal proceeding, and noted Plaintiff was aware some of his stress would be 12 alleviated after the proceeding was complete. Id. (citing Tr. 614). The medical 13 records indicate in November 2016 Plaintiff was dealing with financial issues, 14 legal issues, housing issues, and issues with his sobriety, among other issues. Tr. 15 373. On this record, the ALJ reasonably concluded that Plaintiff’s symptoms were 16 in part attributable to situational stressors. This finding is supported by substantial 17 evidence and was a clear and convincing reason to discount Plaintiff’s symptom 18 complaints. Plaintiff is not entitled to remand on these grounds. [20] 1 D. Step Five 2 Plaintiff contends the ALJ erred at step five. ECF No. 18 at 14-18. At step 3 five of the sequential evaluation analysis, the burden shifts to the Commissioner to 4 establish that 1) the claimant can perform other work, and 2) such work “exists in 5 significant numbers in the national economy.” 20 C.F.R. § 404.1560 (c)(2); 6 Beltran, 700 F.3d at 389 . In assessing whether there is work available, the ALJ 7 must rely on complete hypotheticals posed to a vocational expert. Nguyen, 100 8 F.3d at 1467. The ALJ’s hypothetical must be based on medical assumptions 9 supported by substantial evidence in the record that reflects all of the claimant’s 10 limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). The 11 hypothetical should be “accurate, detailed, and supported by the medical record.” 12 Tackett, 180 F.3d at 1101 . 13 The hypothetical that ultimately serves as the basis for the ALJ’s 14 determination, i.e., the hypothetical that is predicated on the ALJ’s final RFC 15 assessment, must account for all the limitations and restrictions of the claimant. 16 Bray, 554 F.3d at 1228 . As discussed above, the ALJ’s RFC need only include 17 those limitations found credible and supported by substantial evidence. Bayliss, [18] 427 F.3d at 1217 (“The hypothetical that the ALJ posed to the VE contained all of 19 the limitations that the ALJ found credible and supported by substantial evidence 20 in the record.”). “If an ALJ’s hypothetical does not reflect all of the claimant’s 1 limitations, then the expert’s testimony has no evidentiary value to support a 2 finding that the claimant can perform jobs in the national economy.” Id. However, 3 the ALJ “is free to accept or reject restrictions in a hypothetical question that are 4 not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968 , 973 5 (9th Cir. 2006). Therefore, the ALJ is not bound to accept as true the restrictions 6 presented in a hypothetical question propounded by a claimant’s counsel if they are 7 not supported by substantial evidence. Magallanes v. Bowen, 881 F.2d 747 , 7568 57 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. 1986). A 9 claimant fails to establish that a step five determination is flawed by simply 10 restating argument that the ALJ improperly discounted certain evidence, when the 11 record demonstrates the evidence was properly rejected. Stubbs-Danielson v. 12 Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2006). 13 Plaintiff’s argument is based entirely on the assumption that the ALJ erred in 14 considering the opinion evidence and Plaintiff’s symptom claims. For the reasons 15 discussed throughout this decision, the ALJ’s consideration of Plaintiff’s symptom 16 claims and consideration of the medical opinion evidence are legally sufficient and 17 supported by substantial evidence. Thus, the ALJ did not err in assessing the RFC 18 or finding Plaintiff capable of performing work existing in the national economy. [20] 1 E. Step Three 2 Plaintiff contends the ALJ erred at step three by finding that Plaintiff’s 3 impairments did not meet Listing 12.06. ECF No. 18 at 18-19. At step three, the 4 ALJ must determine if a claimant’s impairments meet or equal a listed impairment. [5] 20 C.F.R. § 404.1520 (a)(4)(iii). The Listing of Impairments “describes each of the 6 major body systems impairments [which are considered] severe enough to prevent 7 an individual from doing any gainful activity, regardless of his or her age, 8 education or work experience.” 20 C.F.R. § 404.1525 . “Listed impairments are 9 purposefully set at a high level of severity because ‘the listings were designed to 10 operate as a presumption of disability that makes further inquiry unnecessary.’ ” 11 Kennedy v. Colvin, 758 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, [12] 493 U.S. 521, 532 (1990)). “Listed impairments set such strict standards because 13 they automatically end the five-step inquiry, before residual functional capacity is 14 even considered.” Kennedy, 758 F.3d at 1176 . If a claimant meets the listed 15 criteria for disability, he will be found to be disabled. 20 C.F.R. § 16 404.1520(a)(4)(iii). 17 “To meet a listed impairment, a claimant must establish that he or she meets 18 each characteristic of a listed impairment relevant to his or her claim.” Tackett, [19] 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 404.1525 (d). “To equal a 20 listed impairment, a claimant must establish symptoms, signs and laboratory 1 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 2 listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting [3] 20 C.F.R. § 404.1526 (a)). “If a claimant suffers from multiple impairments and 4 none of them individually meets or equals a listed impairment, the collective 5 symptoms, signs and laboratory findings of all of the claimant’s impairments will 6 be evaluated to determine whether they meet or equal the characteristics of any 7 relevant listed impairment.” Tackett, 180 F.3d at 1099 . However, “ ‘[m]edical 8 equivalence must be based on medical findings,” and “[a] generalized assertion of 9 functional problems is not enough to establish disability at step three.’ ” Id. at 10 1100 (quoting 20 C.F.R. § 404.1526 (a)). 11 The claimant bears the burden of establishing his impairment (or 12 combination of impairments) meets or equals the criteria of a listed impairments. 13 Burch, 400 F.3d at 683. “An adjudicator’s articulation of the reason(s) why the 14 individual is or is not disabled at a later step in the sequential evaluation process 15 will provide rationale that is sufficient for a subsequent reviewer or court to 16 determine the basis for the finding about medical equivalence at step 3.” Social 17 Security Ruling (SSR) 17-2P, 2017 WL 3928306 , at *4 (effective March 27, 18 2017). 19 Here, the ALJ found that Plaintiff’s impairments and combinations of 20 impairments did not meet or equal any listings, including Listing 12.06. Tr. 18. 1 To meet Listing 12.06, the claimant must satisfy the criteria of both the Paragraph 2 A and Paragraph B criteria, or Paragraph A and C criteria of the listing. 20 C.F.R. 3 § 404, Appendix 1 to Subpt. P, Listing 12.06. The Paragraph A criteria requires 4 medical documentation of anxiety disorder characterized by three or more of the 5 following: restlessness, easy fatiguability, difficulty concentrating, irritability, 6 muscle tension, or sleep disturbance; panic disorder or agoraphobic characterized 7 one or more of the following: panic attacks followed by a persistent concern or 8 worry about additional panic attacks or other consequences, or disproportionate 9 fear or anxiety about at least two different situations; or obsessive-compulsive 10 disorder characterized by one or more of the following: involuntary, time11 consuming preoccupation with intrusive, unwanted thoughts, or repetitive 12 behaviors aimed at reducing anxiety. Id. The Paragraph B criteria is met if the 13 impairment results in an extreme limitation of one, or marked limitation of two, of 14 the following areas of mental functioning: understand, remember, or apply 15 information; interact with others; concentrate, persist or maintain pace; or adapt or 16 manage oneself. Id. The Paragraph C criteria requires the impairment is “serious 17 and persistent,” meaning there is a medically documented history of the existence 18 of the impairment over a period of at least two years, and there is evidence of both: 19 medical treatment, therapy, psychosocial support, or a highly structured setting that 20 is ongoing and diminishes the symptoms/signs of the mental impairment; and 1 marginal adjustment, meaning the claimant has minimal capacity to adapt to 2 changes in their environment or to demands that are not already part of their daily 3 life. Id. 4 Plaintiff contends he meets Listing 12.06 based on Dr. Cline’s opinion, as 5 Dr. Cline opined Plaintiff has multiple marked limitations. ECF No. 18 at 18-19. 6 Plaintiff does not present an argument as to which Paragraph A criteria he meets, 7 nor which two Paragraph B criteria he meets, and Plaintiff does not address the 8 Paragraph C criteria. Plaintiff does not cite to any evidence to support his 9 argument except Dr. Cline’s opinion. As the ALJ’s rejection of Dr. Cline’s 10 opinion was supported by substantial evidence, as discussed supra, and Plaintiff 11 has not presented any other argument or evidence beyond Dr. Cline’s opinion, 12 Plaintiff has not met his burden in demonstrating he meets Listing 12.06. Plaintiff 13 is not entitled to remand on these grounds. 14 CONCLUSION 15 Having reviewed the record and the ALJ’s findings, the Court concludes the 16 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 17 Accordingly, IT IS HEREBY ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is DENIED. 19 2. Defendant’s Motion for Summary Judgment, ECF No. 20, is 20 GRANTED. 1 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 2 The District Court Executive is directed to file this Order, provide copies to 3 counsel, and CLOSE THE FILE. 4 DATED April 14, 2021. 5 s/Mary K. Dimke MARY K. DIMKE 6 UNITED STATES MAGISTRATE JUDGE