ROSANNA MALOUF PETERSON, District Judge.
BEFORE THE COURT are cross-motions for summary judgment from Plaintiff Kitra Y., ECF No. 11, and the Commissioner of Social Security (the "Commissioner"), ECF No. 12. Plaintiff sought judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner's denial of her claims for supplemental security income and disability insurance benefits under Title XVI of the Social Security Act (the "Act"). See ECF No. 11. The Court has reviewed the motions and the administrative record, and is fully informed. The motions were heard without oral argument. For the reasons stated in this order, the Court grants Defendant's motion for summary judgment, ECF No. 12, and denies Plaintiff's cross-motion, ECF No. 11.
Plaintiff applied for disability insurance benefits through an application filed on January 25, 2014. Administrative Record ("AR") 609-15.
A hearing took place in Spokane, Washington, before Administrative Law Judge ("ALJ") Lori Freund on July 19, 2016. AR 226-69. Plaintiff appeared in person and was represented by attorney Lora Lee Stover.
A second hearing took place in Spokane, Washington, before Judge Freund on January 4, 2017. AR 270-303. Plaintiff again appeared in person and was represented by attorney Lora Lee Stover. Plaintiff responded to additional questions from her attorney and Judge Freund.
A third hearing took place telephonically in Spokane, Washington, before Judge Freund on February 13, 2017. AR 304-43. Plaintiff appeared telephonically and was represented by attorney Lora Lee Stover. Plaintiff responded to further questions from her attorney and Judge Freund. A medical expert, Dr. Robert Smiley, and a vocational expert, Doug Lear, also appeared telephonically at the hearing.
On April 18, 2017, the ALJ issued an unfavorable decision for Plaintiff. AR 15-40. Utilizing the five-step evaluation process, Judge Freund found:
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on November 13, 2017. AR 1-7. Plaintiff now seeks judicial review.
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A court may set aside the Commissioner's denial of benefits only if the ALJ's determination was based on legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). "The [Commissioner's] determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a whole, not just the evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).
It is the role of the trier of fact, not the reviewing court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making a decision. Brawner v. Sec'y of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant shall be determined to be under a disability only if her impairments are of such severity that the claimant is not only unable to do her previous work, but cannot, considering the claimant's age, education, and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one determines if she is engaged in substantial gainful activities. If the claimant is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activities, the decision maker proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied.
If the impairment is severe, the evaluation proceeds to the third step, which compares the claimant's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled.
If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work that she has performed in the past. If the plaintiff is able to perform her previous work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant's RFC assessment is considered.
If the claimant cannot perform this work, the fifth and final step in the process determines whether the claimant is able to perform other work in the national economy in view of her residual functional capacity and age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).
The initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is met once the claimant establishes that a physical or mental impairment prevents him from engaging in her previous occupation. The burden then shifts, at step five, to the Commissioner to show that (1) the claimant can perform other substantial gainful activity, and (2) a "significant number of jobs exist in the national economy" which the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
Plaintiff argues that the ALJ erred in discrediting Plaintiff's testimony and failing to give clear reasons for not crediting Plaintiff's testimony. ECF No. 11 at 13-14. Plaintiff argues that the ALJ made a credibility assessment not based upon any clear or convincing evidence that constituted harmful and reversible error. Id. at 14. The Commissioner contends that Plaintiff provides no substantive argument or factual support for her assertion. ECF No. 12 at 4-5.
A claimant's subjective complaints concerning his or her limitations are an important part of a disability claim. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195-96 (9th Cir. 2004). However, subjective symptomology by itself cannot be the basis for a finding of disability. A claimant must present medical evidence or findings that the existence of an underlying condition could reasonably be expected to produce the symptomology alleged. See 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1529(B), 416.929; SSR 16-3p, 2016 SSR LEXIS 4 (Mar. 28, 2016).
It is the province of the ALJ to make credibility determinations. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's findings with regard to the claimant's credibility must provide clear and convincing reasons supported by substantial evidence. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The ALJ conducts a two-step analysis to assess subjective testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant "`must produce objective medical evidence of an underlying impairment' or impairments that could reasonably be expected to produce some degree of symptom." Id. (quoting Smolen, 80 F.3d at 1281-82). "If the claimant meets this threshold and there is no affirmative evidence of malingering, `the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'" Id. (quoting Smolen, 80 F.3d at 1281, 1283-84). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citation omitted).
An ALJ may find a claimant's testimony not credible in part or in whole, but the ALJ may not disregard the claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence. See SSR 16-3p, 2016 SSR LEXIS 4 (Mar. 28, 2016); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997). In making a credibility determination, the ALJ may consider: (1) inconsistencies in the claimant's testimony or between his testimony and his conduct; (2) the claimant's daily living activities; (3) the claimant's work record; and (4) testimony from physicians or third parties concerning the nature, severity, and effect of the claimant's condition. Thomas v. Barnhart, 278 F.3d 947, 958-59 (superseded by statute in SSR 16-3p, 2016 SSR LEXIS 4 (Mar. 28, 2016)).
The ALJ considered the medical evidence related to Plaintiff's medically determinable impairments. AR 26-27. She also considered the opinion evidence, and concluded that all "sources of records indicated a limited range of sedentary work except one opined a somewhat greater functional capacity." Id. at 27. Additionally, she gave great weight to the medical opinion of Dr. Smiley, noting that his opinion "adequately accounts for the claimant's testimony of progressively limiting symptoms as to exertion and postural activities." Id. at 28.
Based on the objective medical evidence Plaintiff provided, the ALJ found that Plaintiff's medically determinable impairments included three severe impairments: morbid obesity, degenerative disc disease with foot drop, and sleep apnea; as well as a depressive disorder. AR 21-22. The ALJ found that Plaintiff's medical evidence supported the conclusion that these medically determinable impairments could reasonably be expected to produce the symptoms that Plaintiff alleges. AR 26. However, the ALJ concluded that Plaintiff's statements of intensity, persistence, and the limiting effects of her symptoms were "not entirely consistent with the medical evidence and other evidence in the record." Id. The ALJ proceeded to review Plaintiff's testimony and the medical record.
The ALJ considered Plaintiff's testimony that the worst symptoms keeping her from working were back-related problems, and found that physical exams revealed signs consistent with functional deficits, but not to the extent that all work would be precluded. AR 26. The ALJ also considered Plaintiff's testimony that she could sit for 20 to 30 minutes, and that she could move about for no more than 5 minutes at a time. Id. Plaintiff said that needing to move about more frequently had increased. Id. She said she could walk about a block and a half, and then rest for about a minute. Id. Following her gastric bypass surgery in October 2016, Plaintiff indicated that her back pain had increased. Id.
The ALJ found that the medical and opinion evidence revealed that Plaintiff's symptoms had increased in severity between 2011 and 2017. AR 26-27. However, the ALJ determined that Plaintiff's symptoms indicated that Plaintiff could perform a limited range of sedentary work. Id. at 27. The ALJ stated that she incorporated the limitations suggested by Plaintiff's testimony and Plaintiff's medical and opinion evidence into Plaintiff's RFC assessment. Id. at 27.
The Court finds that ALJ gave specific, clear, and convincing reasons for finding Plaintiff's testimony not entirely consistent with her objective medical records. The ALJ considered and credited Plaintiff's testimony, her treatment record, testimony from physicians, and objective medical evidence concerning the nature, severity, and effect of Plaintiff's mental and physical conditions. Therefore, the Court finds the ALJ did not err in assessing Plaintiff's credibility.
Plaintiff argues that the ALJ erred in assessing Plaintiff's RFC because the ALJ did not consider Plaintiff's physical limitations and absenteeism. ECF No. 11 at 14-15. Plaintiff also argues that the ALJ did not properly consider the opinion of Dr. David L. Pounds, Ph.D., a psychologist who examined Plaintiff in 2014. Id. at 16. The Commissioner contends that the ALJ properly considered all of these facts in assessing Plaintiff's RFC. ECF No. 12 at 12.
"Residual functional capacity" is defined as "what you can still do despite your limitations." 20 C.F.R. §§ 404.1545(a), 416.945(a); SSR 96-8p, 1996 SSR LEXIS 5. "Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which means eight hours a day, five days a week, or an equivalent work schedule. SSR 96-8p, 1996 SSR LEXIS 5 (emphasis in original). The Commissioner considers all of a claimant's medically determinable impairments, including impairments that are not found to be severe. 20 C.F.R. § 404.1545(a)(2). Social Security rulings require an ALJ to "consider and address medical source opinions" when assessing a claimant's RFC. Little v. Berryhill, 708 Fed. Appx. 468, 469 (9th Cir. 2018). "The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." SSR 96-8p, 1996 SSR LEXIS 5. Although the ALJ need not have engaged in a function-by-function analysis for non-credible medical impairments, the ALJ should not ignore limitations supported by the record and already credited by the ALJ. March v. Commissioner of Soc. Sec. Admin., 462 Fed.Appx. 671, 673 (9th Cir. 2011); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). However, where the ALJ's analysis regarding a claimant's functional limitations and restrictions affords an adequate basis for meaningful judicial review, applies the proper legal standards, and is supported by substantial evidence such that additional analysis would be unnecessary or superfluous, the Ninth Circuit does not require remand where the ALJ has failed to conduct the mandated function-by-function analysis. Bayliss, 427 F.3d at 1217.
The Ninth Circuit has held that, in determining residual functional capacity, in conjunction with the medical evidence, the ALJ must take into account the claimant's testimony regarding his capabilities. Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012). The ALJ also must consider all relevant evidence, including medical records, lay evidence, and pain. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
As a general matter, an RFC assessment that fails to take into account a claimant's limitations is defective. Leonard v. Colvin, 633 Fed. Appx. 362, 363-64 (9th Cir. 2015) (finding that limiting claimant's use of ladders, ropes, and scaffolds did not adequately address claimant's need for frequent trips to the bathroom). As the Court previously stated, the ALJ correctly determined that Plaintiff's medically determinable impairments included the three severe impairments: morbid obesity, degenerative disc disease with foot drop, and sleep apnea; as well as a depressive disorder. AR 21-22.
In assessing Plaintiff's RFC, the ALJ considered Plaintiff's physical limitations and absenteeism. Based on the record in this case, the ALJ concluded that the RFC adequately reflected Plaintiff's expressed needs to change position frequently. Id. at 25. The ALJ also stated that the medical expert testimony of Dr. Jahnke and Dr. Smiley, as well the responses from Dr. Griffin, do not support Plaintiff's assertion that she would be off-task or that frequent absenteeism would occur. Id. at 30.
Although Plaintiff may disagree with the ALJ's assessment of the evidence, where evidence may support more than one rational interpretation, "the Court may not substitute its judgment for that of the Commissioner." Tackett, 180 F.3d at 1097. The ALJ's interpretation regarding Plaintiff's limitations is rational. Therefore, the Court finds that the ALJ properly considered Plaintiff's limitations associated with her medically determinable impairments in assessing Plaintiff's RFC.
In weighing medical source opinions, the ALJ should distinguish between three different types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and, (3) nonexamining physicians who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more weight to the opinion of a treating physician than to the opinion of an examining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The ALJ should give more weight to the opinion of an examining physician than to the opinion of a nonexamining physician. Id.
When an examining physician's opinion is not contradicted by another physician, the ALJ may reject the opinion only for "clear and convincing" reasons. Lester, 81 F.3d at 830. When an examining physician's opinion is contradicted by another physician, the ALJ is only required to provide "specific and legitimate reasons" for rejecting the opinion. Id. at 830-31.
The specific and legitimate standard can be met by the ALJ setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her conclusions, she "must set forth [her] interpretations and explain why they, rather than the doctors', are correct." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).
An ALJ may reject opinions that are internally inconsistent. Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996); see also Bayliss, 427 F.3d at 1216. An ALJ also may discredit physicians' opinions that are unsupported by the record as a whole. Batson, 359 F.3d at 1195. Additionally, an ALJ may disregard a physician's opinion because it does not contain a useful analysis of the claimant's abilities and limitations. See id.
Dr. Pound saw Plaintiff once. AR 1085-89. Therefore, Dr. Pound qualifies as an examining physician. The ALJ gave Dr. Pound's evaluation great weight to the extent it was consistent with Plaintiff's other mental health evaluations. AR 23. However, the ALJ gave little weight to the remainder Dr. Pound's opinion because the ALJ found Dr. Pound's descriptors vague, and because the opinion was inconsistent with Dr. Pound's unremarkable contemporaneous mental status exam, which the ALJ found more consistent with the other mental health-related evidence in the record. Id.
Therefore, the Court finds that the ALJ's first reason for rejecting the remainder of Dr. Pound's opinion, that Dr. Pound's descriptive statements were vague, is legally sufficient. See Batson, 359 F.3d at 1195. The Court also finds that the ALJ's other reason for rejecting the remainder of Dr. Pound's opinion, that his statements were inconsistent with his own evaluation and with the record as a whole, is a legally sufficient reason. See id.; see also Nguyen, 100 F.3d at 1464. Thus, the Court finds that the ALJ did not reversibly err in considering the opinion of Dr. Pounds.
Plaintiff argues that the ALJ erred in posing an incomplete hypothetical question to the vocational expert, because the hypothetical did not take into consideration Plaintiff's need for a supportive supervisor, anticipated absenteeism due to health concerns and treatment, and anticipated time spent off-task. ECF No. 11 at 17. The Commissioner argues that the ALJ did not err in her consideration of the testimonial or medical record, and, therefore, it was not necessary for the ALJ to include limitations stemming from Plaintiff's subjective complaints in the vocational hypothetical. ECF No. 12 at 13.
In Step Five of the sequential process, an ALJ may pose hypothetical questions to a vocational expert in order to determine whether employment opportunities exist in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work experience. "For the hypothetical to be complete, the ALJ need[s] to present all limitations that were supported by substantial evidence in the record." Inman v. Colvin, 669 Fed. Appx. 849, 850 (9th Cir. 2016). "Unless the record indicates that the ALJ had specific and legitimate reasons for disbelieving a claimant's testimony as to subjective limitations such as pain, those limitations must be included in the hypothetical in order for the vocational expert's testimony to have any evidentiary value." Embrey, 849 F.2d at 423. "If the assumptions in the hypothetical are not supported by the record, the opinion of the vocational expert that claimant has residual working capacity has no evidentiary value." Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). Hypotheticals posed to a vocational expert "must be upheld as long as they are supported by substantial evidence." Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986).
The ALJ posed the following hypothetical to the vocational expert:
AR 332.
The Court previously concluded that the ALJ did not err in weighing the objective evidence in the record, or in assessing Plaintiff's RFC. The ALJ's hypothetical contemplated Plaintiff's subjective limitations, and were supported by substantial evidence based upon the ALJ's determinations. See id. Therefore, the Court finds that the ALJ did not err in posing the above hypothetical to the vocational expert.
Plaintiff contends that the ALJ erred in finding Plaintiff capable of performing her past relevant work. ECF No. 11 at 11. However, Plaintiff did not provide any legal or factual arguments specifically supporting this contention. It is not a reviewing court's role to "do an appellant's work for it, either by manufacturing its legal arguments, or by combing the record on its behalf for factual support." Western Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir. 2012). Accordingly, when an "argument was not raised clearly and distinctly in the opening brief, it has been waived." McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009). Therefore, the Court finds that Plaintiff has not demonstrated that the ALJ erred in finding Plaintiff capable of performing her past relevant work.
Plaintiff also contends that the evidence taken from the record as a whole does not support the ALJ's determination that Plaintiff is not disabled. ECF No. 11 at 11. However, Plaintiff provides no legal or factual arguments specifically supporting this contention, and the Court will not supply missing arguments. See Western Radio Servs. Co., 678 F.3d at 979. Therefore, the Court finds that Plaintiff has not demonstrated that the ALJ erred in considering evidence taken from the record as a whole in this matter.
Plaintiff argues that the ALJ's decision should be reversed and that the Court should find Plaintiff to be disabled and entitled to benefits. ECF No. 11 at 18. In the alternative, Plaintiff argues that the ALJ's decision should be reversed and remanded to the Commissioner to re-assess Plaintiff's RFC. Id.
The Court has found that Plaintiff has not demonstrated that the ALJ erred in finding that Plaintiff is not disabled. Therefore, the Court finds that summary judgment in favor of the Commissioner is proper. Accordingly,
The District Court Clerk is directed to enter this Order, enter judgment for Defendant, provide copies to counsel, and
