Maroney v. Commissioner of Social Security

Filing 32

MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 1/3/19 DENYING 25 and 30 Motions for Summary Judgment; GRANTING 30 Motion for Summary Judgment; GRANTING 27 Motion for Summary Judgment; and AFFIRMING the Commissioner's final decision. CASE CLOSED. (Coll, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TASHAYHA GILMER,

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Plaintiff,

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No. 2:17-CV-0845-DMC

v.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brings this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).1

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Pursuant to the written consent of all parties (Docs. 10 and 21), this case is before the undersigned

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as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c).

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Pending before the court are the parties’ briefs on the merits (Docs. 25, 27, and 30).

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The action was initiated by Michelle Tanya Maroney, who was the claimant at the
agency level. Upon Ms. Maroney’s death in October 2017, her adult daughter was substituted as
plaintiff in this action pursuant to Federal Rule of Civil Procedure 25(a). See Doc. 15 (December
21, 2017, order).
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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).
For the reasons discussed below, the Commissioner’s final decision is affirmed.

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I. THE DISABILITY EVALUATION PROCESS

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To achieve uniformity of decisions, the Commissioner employs a five-step

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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

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§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

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Step 1

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Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

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Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;

Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

Step 5

If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and
the claim is denied.

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See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

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To qualify for benefits, the claimant must establish the inability to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

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impairment of such severity the claimant is unable to engage in previous work and cannot,

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considering the claimant’s age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

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of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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The claimant establishes a prima facie case by showing that a physical or mental

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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER’S FINDINGS

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Claimant applied for social security benefits on December 6, 2012. See CAR 23.2

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In the application, plaintiff claims disability began on November 13, 2012. See id. She alleged

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disability to due to idiopathic thrombocytopenic purpura (ITP), depression, and anxiety. See id.

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at 28 (citing Exhibit 1E). Claimant’s claim was initially denied. Following denial of

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reconsideration, claimant requested an administrative hearing, which was held on September 9,

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2015, before Administrative Law Judge (ALJ) Maxine R. Benmour. In a January 5, 2016,

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decision, the ALJ concluded claimant was not disabled based on the following relevant findings:

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The claimant had the following severe impairment(s): idiopathic
thrombocytopenic purpura (ITP), status post splenectomy; left
knee patella dislocation; anxiety; and depression;

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The claimant did not have an impairment or combination of
impairments that meets or medically equals an impairment listed in
the regulations;

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The claimant had the following residual functional capacity:
sedentary work; she could lift and/or carry 10 pounds frequently
and 20 pounds occasionally; she could sit for six hours in an eighthour workday and stand and/or walk for two hours in an eight-hour
workday; she could not climb and must have avoided even
moderate exposure to hazards; she was limited to simple, repetitive
tasks with occasional contact with supervisors and co-workers;
every one to two months, she would have missed work for three
hours because of her need for infusions;

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Considering the claimant’s age, education, work experience,
residual functional capacity, and vocational expert testimony, there
are jobs that exist in significant numbers in the national economy
that the claimant could have performed.

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See id. at 25-33.

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After the Appeals Council declined review on March 23, 2017, this appeal followed.

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Citations are the to the Certified Administrative Record (CAR) lodged on October
3, 2017 (Doc. 13). Disposition of plaintiff’s arguments has not required citation herein to the
Supplemental Administrative Transcript lodged on April 23, 2018 (Doc. 23).
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III. DISCUSSION

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In her opening brief, plaintiff argues: (1) the ALJ erred by failing to consider all

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relevant non-opinion medical evidence; (2) the ALJ failed to property evaluate medical opinions

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rendered by Drs. Kiefer and Tang, and Licensed Clinical Social Worker (LCSW) Lynnell Morris;

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(3) the ALJ failed to provide sufficient reasons for finding claimant’s statements and testimony

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not credible; (4) the ALJ failed to adequately evaluate lay witness evidence provided by

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claimant’s mother, Marie A. Sneed; and (5) the ALJ erred by relying on vocational expert

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testimony that was not based on an accurate description of claimant’s residual functional

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capacity.

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A.

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Non-Opinion Medical Evidence
Citing 20 C.F.R. § 404.1512, plaintiff argues the ALJ failed to comply with the

Commissioner’s regulations by not considering the following evidence:

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Exhibit 5F

Treatment records from 2011. CAR 931-1075.

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Exhibit 6F

Treatment records from 2012. CAR 1076-1201.

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Exhibit 7F

Treatment records from 2014. CAR 1202-1288.

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Exhibit 10F

Treatment records from March 2015. CAR 1711-1750.

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Exhibit 11F

Treatment records from March 2015. CAR 1751-1870.

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Exhibit 12F

Treatment records from April 2015. CAR 1871-1893.

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Exhibit 13F

Treatment records from August 2015. CAR 1894-2172.

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Exhibit 16F

Treatment records from July through September
2015. CAR 2250-2336.

Exhibit 17F

Treatment records from February 2012 through
September 2015. CAR 2337-2348.

Exhibit 18F

Treatment records from October 2012 through
September 2015. CAR 2349-2364.

Exhibit 19F

Medical Assessment from Lynnell Morris, LCSW,
dated October 6, 2015. CAR 2365-2368.

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According to plaintiff, the ALJ engaged in “cherry picking” by ignoring this evidence.

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Pursuant to 20 C.F.R. § 404.1512(d), the Commissioner must develop the

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claimant’s complete medical history “for at least the 12 months preceding the month” the

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application is filed, unless the claimant alleges an onset date within 12 months preceding the

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filing date. If, as here, the alleged onset date is within 12 months preceding the filing date, the

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regulations require the Commissioner to develop the complete medical history beginning with the

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month the claimant alleges onset of disability. See § 404.1512(d)(2). In this case, claimant

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alleged disability beginning November 2012. The court, therefore, rejects at the outset any claim

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the ALJ failed to comply with 20 C.F.R. § 404.1512 as to non-opinion medical evidence

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predating November 2012.

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Next, though plaintiff bears the burden of persuasion by seeking judicial review of

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alleged ALJ errors, plaintiff fails to make any effort in her briefs to meet this burden. Notably,

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plaintiff does not identify the content of any of the listed exhibits, or how they undermine any of

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the ALJ’s findings. Because plaintiff has not pointed to some objective finding contained in these

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exhibits which would tend to undermine the ALJ’s findings, the court cannot say plaintiff has

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established a violation of the regulation discussed above regarding the Commissioner’s

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responsibility to develop the record. For the same reason, the court is unable to conclude the ALJ

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in fact did not consider these exhibits, despite the ALJ’s repeated statements throughout the

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decision that the entire record was considered.

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Plaintiff has cited no authority supporting her conclusion the ALJ errs by failing to

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include in the hearing decision a discussion of every item of evidence. To the contrary, the ALJ

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need not discuss all evidence presented. See Vincent on Behalf of Vincent v. Heckler, 739 F.2d

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1393, 1394-95 (9th Cir. 1984). Rather, the ALJ must explain why “significant probative evidence

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has been rejected.” Id. (citing Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981). Applying this

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standard, the court held the ALJ properly ignored evidence which was neither significant nor

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probative. See id. at 1395.

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The court presumes treatment records tend to be probative of a claimant’s medical

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condition. The court also presumes most such records are significant and probative to the extent

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they relate to impairments and symptoms alleged by the claimant. The question, then, becomes

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whether the ALJ provided an explanation for rejecting treatment records. As discussed below,

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the ALJ in this case clearly provided explanations where medical opinion evidence was rejected.

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There is simply no reason to also presume the ALJ did not, as she stated throughout the hearing

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decision, consider all the other medical evidence and accept that evidence unless explicitly

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rejected.3

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B.

Medical Opinions
The ALJ’s Analysis

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1.

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At Step 4 of the sequential evaluation process, the ALJ evaluated the medical

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opinions of record to determine claimant’s residual functional capacity. See CAR 27-32.

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Regarding claimant’s physical limitations, the ALJ gave the opinions of Dr. Suga “greatest

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weight,” the opinions of Dr. Tang “great weight,” and assigned “less weight” to the opinions of

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the agency reviewing doctors. Id. at 30. As to claimant’s mental limitations, the ALJ gave the

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opinions of Drs. Suskin, Kiefer, and Foret, as well as those rendered by the agency reviewing

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doctors, “great weight.” Id. at 31. It does not appear the ALJ rejected any medical opinions

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regarding claimant’s mental limitations.
As to Dr. Tang, who opined regarding claimant’s physical limitations, the ALJ

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stated:

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The claimant was examined at the request of the State agency on April 23,
2013, by Robert Tang, M.D. (Exhibit 3F). The claimant described her
medical history, with the early 2012 diagnosis of ITP with platelet count at
2K to 4K and current platelet count at 170K. She stated that she could
take care of her personal needs and she could complete house chore duties

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In this regard, the court makes two additional observations. First, if ALJs were
required to discuss every piece of evidence, including evidence they do not “reject,” hearing
decisions involving records consisting of over 2,800 pages, as in this case, would approach the
same length, rendering the administrative process unworkable. Second, the court is hard-pressed
to imagine any scenario in which an ALJ would “reject” routine treatment records without
explaining why. Without also discussing every page of the instant record and thereby asking
those interested to review a 2,800-page opinion, and except as discussed herein with respect to
evidence provided by Ms. Morris at Exhibit 19F, the court has reviewed the record and finds no
such scenario suggested by the exhibits plaintiff claims the ALJ improperly failed to discuss.
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episodically. She also indicated that she was looking for work. She was
taking Prozac for depressive symptoms, along with Prednisone,
Metoprolol, Hydrochlorothiazide, Pepcid, and Vitamin D. There were no
significant clinical findings; for example, her gait was normal, she had
normal range of motion of her spine and joints, normal motor strength and
tone, and normal sensory and reflexes. Dr. Tang assessed few physical
limitations: frequent climbing and avoiding working at heights.

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. . .Dr. Tang’s opinion is assigned great weight. . ., based on his personal
examination of the claimant and his familiarity with the Social Security
program requirements.

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CAR 30.

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As to Dr. Kiefer, who opined as to claimant’s mental limitations, the ALJ stated:
The claimant was examined at the request of the State agency on April 23,
2013, by John Kiefer, Psy.D. (Exhibit 2F). She drove to the interview and
completed the questionnaire independently. She described feeling
depressed after the birth of her fourth child, then 17 months old. She
stated that she was laid off from her previous job. She described being
able to cook simple meals, do housekeeping, shop, and do the laundry. On
mental status examination, she was cooperative, made good eye contact,
had a neutral attitude, was logical and goal directed, and her speech was
normal, her thought content was appropriate, and there were no signs of
psychotic symptoms. She described her mood as bad, depressed, and
angry. Her affect was restricted and congruent with her mood. She
mentioned that her sleep was not good because her daughter was teething.
Her recent and remote memory were good, she had a good fund of
knowledge, and she could calculate simple problems. Her concentration
was within normal limits, she could follow a three-step command, and her
abstract thinking was normal. Dr. Kiefer diagnosed an adjustment
disorder with depressed mood, rule out a mood disorder NOS due to
Prednisone. He assessed a GAF [Global Assessment of Functioning] of
60, indicating mild symptoms. He opined that she would have no more
than fair to moderate limitations in any aspect of work-related activity.

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The medical records and the conclusions by Dr. Kiefer are consistent,
describing the claimant with moderate symptoms of depression and/or
anxiety. No treating or evaluating therapist, psychologist, or psychiatrist
assessed the claimant with worse than moderate symptoms, and she
appeared to improve somewhat with medication. Therefore, while it is
reasonable to assess some related limitations, there is no reason to believe
that the claimant’s psychological impairment imposed limitations that
would preclude regular work activity that is simple and repetitive, with
only occasional contact with supervisors and co-workers. . . .

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CAR 31.
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The ALJ gave Dr. Kiefer’s opinion “great weight.” Id.
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Plaintiff’s Contentions

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2.

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As to both Drs. Tang and Kiefer, plaintiff argues the ALJ erred in assigning “great

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weight” to their opinions because they were not based on a review of all relevant medical

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evidence, contrary to the requirements of 20 C.F.R. § 404.1517. As to Dr. Kiefer specifically,

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plaintiff notes Dr. Kiefer consistently described claimant’s abilities as “fair.” According to

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plaintiff, the ALJ erred because:

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The ALJ did not mention in the decision what the definition of
“fair” means in the context of a person with limitations. The Diagnostic &
Statistical Manual-III states the definition of “fair” as follows:
“Moderate impairment in social relations in either social relations
or occupational functioning, or some impairment in both.”

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Plaintiff also argues the ALJ erred by failing to address “Dr. Kiefer’s opinion about the

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[claimant’s] moderate likelihood of emotionally deteriorating in the work environment. . .” and

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thereby “cherry picking” from the evidence to support the ALJ’s conclusions. Finally, plaintiff

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contends the ALJ erred by failing to mention a mental assessment provided by Licensed Clinical

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Social Worker Lynnell Morris.

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3.

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“The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,

Applicable Legal Standards

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533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not

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explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

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2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical

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opinion over another. See id.

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Under the regulations, only “licensed physicians and certain qualified specialists”

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are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue,

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674 F.3d 1104, 1111 (9th Cir. 2012). Social workers are not considered an acceptable medical

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source. See Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010).

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Nurse practitioners and physician assistants also are not acceptable medical sources. See Dale v.

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Colvin, 823 F.3d 941, 943 (9th Cir. 2016). Opinions from “other sources” such as nurse

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practitioners, physician assistants, and social workers may be discounted provided the ALJ
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provides reasons germane to each source for doing so. See Popa v. Berryhill, 872 F.3d 901, 906

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(9th Cir. 2017), but see Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R.

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§ 404.1527(f)(1) and describing circumstance when opinions from “other sources” may be

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considered acceptable medical opinions).

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4.

Disposition

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Plaintiff first argues the ALJ improperly relied on opinions rendered by Drs. Tang

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and Kiefer as substantial evidence because the doctors were not provided with all medical records

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pursuant to 20 C.F.R. § 1517. Section 1517 states the Commissioner will provide consultative

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examiners “any necessary background information about your condition.” The regulation,

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however, does not define “necessary background information” to include medical records. Thus,

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the court is not persuaded a violation of § 1517 occurred. In any event, an “examining

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physician’s opinion alone constitutes substantial evidence, because it rests on his own

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independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.

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2001).

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Next, plaintiff asserts the ALJ erred with respect to Dr. Kiefer due to some

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misunderstanding of the meaning of the word “fair” in the context of describing claimant’s

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abilities for purposes of a social security evaluation. According to plaintiff, “fair” means

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“Moderate impairment.” As to Dr. Kiefer, the ALJ stated: “He opined that [the claimant] would

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have no more than fair to moderate limitations in any aspect of work-related activity.” CAR 31.

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It is apparent to this court the ALJ accepted plaintiff’s understanding of “fair” to mean either

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“fair” or “moderate.” It is clear the ALJ did not understand “fair” to mean more than “moderate,”

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such as “marked,” or “extreme.”

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Plaintiff next argues the ALJ erred by ignoring “Dr. Kiefer’s opinion about the

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[claimant’s] moderate likelihood of emotionally deteriorating in the work environment. . . .” In

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his report, Dr. Kiefer stated: “The likelihood of the claimant emotionally deteriorating in the work

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environment is moderate.” CAR 684 (Exhibit 2F). To the extent this statement constitutes an

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opinion regarding plaintiff’s mental capabilities in a work setting, the ALJ accepted all of Dr.

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Kiefer’s opinions, giving them “great weight,” and limited claimant to only occasional contact
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with supervisors and co-workers in describing claimant’s residual functional capacity. CAR 27,

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31. Plaintiff’s argument is unpersuasive because she has not demonstrated how the ALJ failed to

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account for the doctor’s finding.

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Finally, plaintiff argues the ALJ erred by failing to discuss an assessment offered

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by Ms. Morris, a Licensed Clinical Social Worker with claimant’s treating provider, Kaiser

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Permanente. Ms. Morris’ October 6, 2015, report is contained in the record at Exhibit 19F. See

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CAR 2365-67. Ms. Morris rated claimant as no more than moderately limited in any category of

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mental functioning. See id. at 2367. The court agrees with plaintiff to the extent it is clear the

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ALJ did not discuss Ms. Morris’ report in the hearing decision.

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The court, however, does not find any legal error. Ms. Morris is a Licensed

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Clinical Social Worker and, as such, is not an acceptable medical source. See Turner, 613 F.3d at

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1223-24; see also 20 C.F.R. § 404.1527(b). It is not apparent whether Ms. Morris would

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nonetheless qualify as an acceptable medical source under 20 C.F.R. § 404.1527(f)(1), which

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would impact the standard the ALJ should apply in evaluating the evidence. In any event,

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regardless of the standard applied to the evidence, the ALJ is not required to discuss all evidence

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but must explain why significant probative evidence is rejected. See Vincent, 739 F.3d at 1394-

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95. In this case, the ALJ did not err because she did not reject Ms. Morris’ findings. To the

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contrary, the ALJ accepted the opinions of every other doctor who opined to no more than

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moderate limitations and incorporated restrictions consistent with such limitations in her residual

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functional capacity finding.

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Even if the court were to conclude the ALJ erred by failing to specifically discuss

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Ms. Morris’ assessment, any error would be harmless. The Ninth Circuit has applied harmless

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error analysis in social security cases in a number of contexts. For example, in Stout v.

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Commissioner of Social Security, 454 F.3d 1050 (9th Cir. 2006), the court stated that the ALJ’s

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failure to consider uncontradicted lay witness testimony could only be considered harmless “. . . if

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no reasonable ALJ, when fully crediting the testimony, could have reached a different disability

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determination.” Id. at 1056; see also Robbins v. Social Security Administration, 466 F.3d 880,

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885 (9th Cir. 2006) (citing Stout, 454 F.3d at 1056). Similarly, in Batson v. Commissioner of
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Social Security, 359 F.3d 1190 (9th Cir. 2004), the court applied harmless error analysis to the

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ALJ’s failure to properly credit the claimant’s testimony. Specifically, the court held:

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However, in light of all the other reasons given by the ALJ for Batson’s
lack of credibility and his residual functional capacity, and in light of the
objective medical evidence on which the ALJ relied there was substantial
evidence supporting the ALJ’s decision. Any error the ALJ may have
committed in assuming that Batson was sitting while watching television,
to the extent that this bore on an assessment of ability to work, was in our
view harmless and does not negate the validity of the ALJ’s ultimate
conclusion that Batson’s testimony was not credible.
Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)).

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In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the

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claimant’s age and education. The Ninth Circuit also considered harmless error in the context of

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the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a

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medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006).

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The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d

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1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court

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stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility

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finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless

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error.” See id. at 1162. The court articulated the difference between harmless error standards set

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forth in Stout and Batson as follows:

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. . . [T]he relevant inquiry [under the Batson standard] is not whether the
ALJ would have made a different decision absent any error. . . it is whether
the ALJ’s decision remains legally valid, despite such error. In Batson, we
concluded that the ALJ erred in relying on one of several reasons in
support of an adverse credibility determination, but that such error did not
affect the ALJ’s decision, and therefore was harmless, because the ALJ’s
remaining reasons and ultimate credibility determination were adequately
supported by substantial evidence in the record. We never considered what
the ALJ would do if directed to reassess credibility on remand – we
focused on whether the error impacted the validity of the ALJ’s decision.
Likewise, in Stout, after surveying our precedent applying harmless error
on social security cases, we concluded that “in each case, the ALJ’s
error . . . was inconsequential to the ultimate nondisability determination.”
Our specific holding in Stout does require the court to consider whether the
ALJ would have made a different decision, but significantly, in that case
the ALJ failed to provide any reasons for rejecting the evidence at issue.
There was simply nothing in the record for the court to review to determine
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whether the ALJ’s decision was adequately supported.

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Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted).

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Thus, where the ALJ’s errs in not providing any reasons supporting a particular

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determination (i.e., by failing to consider lay witness testimony), the Stout standard applies and

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the error is harmless if no reasonable ALJ could have reached a different conclusion had the error

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not occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is

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flawed (i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either

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legally insufficient or unsupported by the record), the Batson standard applies and any error is

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harmless if it is inconsequential to the ultimate decision because the ALJ’s disability

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determination nonetheless remains valid.
Assuming the ALJ erred by failing to discuss Ms. Morris’ assessment, the Stout

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standard applies and the error is harmless if no reasonable ALJ considering the assessment could

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have reached a different disability conclusion. Such is the case here because, as discussed above,

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Ms. Morris opined as to moderate mental limitations consistent with every other medical opinion

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of record regarding claimant’s mental capabilities. Therefore, Ms. Morris’ report is cumulative

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and would not have persuaded any other ALJ a different outcome is warranted.4
C.

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Credibility
At Step 4, the ALJ evaluated the credibility of claimant’s statements and testimony

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to determine her residual functional capacity. See CAR 27-30. The ALJ found claimant’s

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statements and testimony “not entirely credible.” Id. at 28. Though plaintiff contends the ALJ

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erred with respect to this analysis, her argument is entirely conclusory, consisting of nothing of

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substance beyond the following statements: “In this case the reason’s [sic] espoused by the ALJ

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were not legitimate,” (emphasis in plaintiff’s brief); and “. . .the ALJ’s reasons do not pass

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muster.” Given the absence of any guidance from plaintiff as to why the ALJ’s analysis is flawed

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For the same reason, any error is harmless under the Batson standard because the
result would have been the same even had the ALJ discussed the evidence. The underlying
characteristic of Ms. Morris’ report directs the same result under both standards – the report is
cumulative.
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4

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and any rationale to gainsay it apparent upon review of the hearing decision and the record as a

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whole, this court is disinclined to disturb the ALJ’s adverse credibility finding.

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D.

Lay Witness Evidence
At Step 4, the ALJ considered lay witness evidence consisting of a statement

submitted by claimant’s mother, Marie A Sneed. CAR 28. As to Ms. Sneed, the ALJ stated:

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The claimant’s mother, Marie A. Sneed, wrote in March 2013 that she saw
the claimant about four times a month for shopping, laundry, and watching
television (Exhibit 5E). She observed that the claimant appears weak with
poor focus, but she is able to take care of her four children, provide
clothing and meals, and take them to school, the doctor, and daycare. She
also takes them to school activities. Ms. Sneed noted that the claimant can
drive, shop, and count change. She also observed that the claimant cannot
watch television often because she has small children to care for. She
estimated that the claimant can walk one-quarter of a mile at a time, has to
reread instructions, and has difficulty handling stress and changes in
routine. . . .

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Id.

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The ALJ gave Ms. Sneed’s statement “only some weight,” finding it “inconsistent with the

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medial evidence and residual functional capacity.” Id. The ALJ did not comment on a second

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report submitted by Ms. Sneed in September 2015.

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According to plaintiff:

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. . .In this case, the ALJ only commented on the statement of Ms.
Sneed found in the first statement. See AR 250-259. See the ALJ
decision at page 6. See AR 28. There is no indication that the ALJ either
considered her more recent statement found in Exhibit 15E. See AR 302308. There is no discussion in the opinion that the ALJ considered her
most recent statement and either rejected it or not. Silence may be golden,
but not with respect to the ALJ’s decisions. This too is legal error.
(underlining and boldface type in plaintiff’s brief).

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Plaintiff’s briefs contain no summary of the record, nor does she discuss in the context of this

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argument the statements provided by Ms. Sneed or articulate any reasons why the ALJ erred in

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not discussing the second statement. More notably, plaintiff does not argue the ALJ erred with

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respect to Ms. Sneed’s March 2013 statement. For this reason, whether the ALJ provided reasons

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germane to Ms. Sneed for rejecting the March 2013 statement, see Dodrill v. Shalala, 12 F.3d

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915, 919 (9th Cir. 1993), is not an issue before the court. Plaintiff again appears to rely solely on

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the premise the failure to consider any evidence – in this instance Ms. Sneed’s second statement –
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is per se reversible error. The court will not repeat the reasons discussed above for rejecting this

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argument.

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Ms. Sneed’s second statement of September 2015 is contained in the record at

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Exhibit 15E. See CAR 302-308. Ms. Sneed reported that, at the time, claimant “[l]looks

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depressed, loses interest in everyday functioning, sits, sometimes mood swings to a better attitude

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towards life and she wants to perform but moves slow getting up can’t stand for too long or walk

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a long distance.” Id. at 303. Ms. Sneed also stated claimant no longer took care of children. See

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id. at 304. According to Ms. Sneed, as of September 2015 claimant was able to care for personal

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needs and grooming without assistance and take medicine and go to medical appointments

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without help or reminders. See id. Though Ms. Sneed stated claimant was “[n]ot interested in

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cooking,” she stated claimant prepared her own meals, to include “cereal – sandwiches –

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hamburgers – pizza.” Id. at 305. Somewhat inconsistently, Ms. Sneed stated claimant “[n]eed

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[sic] help with cooking.” Ms. Sneed’s statement that claimant went outside “[e]veryday – got

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children to watch,” id., is also inconsistent with her statement, noted above, that claimant no

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longer took care of children, see id. at 304. According to Ms. Sneed, claimant was unable, as of

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September 2015, of walking more than 12 yards before needing to stop to rest. See id. at 307.

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She also stated claimant would have to rest 10 to 15 minutes before resuming. See id. Ms. Sneed

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further stated claimant could only pay attention for 20 minutes before getting irritated. See id.

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Ms. Sneed stated claimant was unable to finish what she started. See id. Ms. Sneed reported

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claimant required use of crutches, a cane, and a brace and/or splint “when she walks.” Id. at 308.

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In many respects, it appears Ms. Sneed’s second statement reflects limitations

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more significant than those indicated by her first statement. In other respects, the reports are

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similar. Notably, Ms. Sneed’s second statement contains several internal inconsistencies. To the

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extent the second report describes an individual more limited than described in the first report, the

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only logical explanation would be medical deterioration resulting in a degradation in capability.

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This explanation, however, finds no support in the record. Given the lack of any evidence

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suggesting deterioration, it is clear Ms. Sneed’s second report is unreliable and, as such, was

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properly ignored as neither significant nor probative. See Vincent, 739 F.2d at 1394-95.
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E.

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Vocational Expert Testimony
At Step 5, the ALJ concluded claimant was not disabled because she could have

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performed other work existing in significant numbers in the national economy. See CAR 33.

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The ALJ based this finding, in part, on testimony from a vocational expert based on hypothetical

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questions assuming the residual functional capacity found by the ALJ. See id. The ALJ accepted

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the vocational expert’s testimony claimant could have performed jobs such as addressing clerk

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and food and order beverage clerk, and concluded such testimony was consistent with the

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information contained with the Dictionary of Occupational Titles. See id.
Plaintiff argues the ALJ erred by failing to make any “explicit findings with

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respect to the impact of the claimant’s depression and anxiety on her ability to work.” According

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to plaintiff, once the ALJ finds an impairment severe, as the ALJ did here with respect to

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claimant’s anxiety and depression, see CAR 25, “the ALJ is obligated to explain how the

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claimant’s depressive symptoms does or does [sic] not limit hers [sic] ability to work.” This

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argument is unpersuasive because it misstates the law. The claimant has the initial burden of

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proving the existence of a disability, see Terry, 903 F.2d at 1275, not the Commissioner.

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Moreover, the ALJ accounted for claimant’s depression and anxiety by finding she would have

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been limited to simple repetitive tasks involving limited contact with supervisors and co-workers.

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See CAR 27.

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Plaintiff also appears to argue the ALJ erred with respect to her finding claimant

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required infusions. The court does not agree. According to plaintiff: “The current evidence does

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not support the ALJ’s finding that she needs infusions. . . .” Plaintiff also states: “In fact the

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claimant is required to have infusions once a week.” Plaintiff concludes: “This would

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significantly impact her ability to show up for work without an excessive amount of absentiism

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[sic].” Initially, the court observes plaintiff’s argument is internally inconsistent in that, on the

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one hand, she disagrees with the ALJ, stating the evidence does not support the need for infusions

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but, on the other hand, agrees with the ALJ, stating claimant required infusions. Moreover,

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plaintiff’s argument is belied by the ALJ’s hearing decision, which reflects the ALJ accounted for

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absenteeism associated with infusions. See CAR 27 (finding claimant would have been absent

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from work because of her need for infusions).

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IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final decision

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is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1.

Plaintiff’s motion for summary judgment (Doc. 25 and 30) are denied;

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2.

Defendant’s motion for summary judgment (Doc. 27) is granted;

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3.

The Commissioner’s final decision is affirmed; and

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4.

The Clerk of the Court is directed to enter judgment and close this file.

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Dated: January 3, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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