Jewett v. Commissioner of Social Security

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 23 Report and Recommendations- IT IS HEREBY ORDERED: The Report and Recommendation entered on August 12, 2024 (Dkt. 23), is INCORPORATED and ADOPTED in its entirety; The decision of the Commissioner i s AFFIRMED; The Complaint for Judicial Review (Dkt. 1 ) is DENIED, and this action is DISMISSED, with prejudice, as outlined in the Report and Recommendation; The Court will enter a separate judgment in favor of Defendant in accordance with Federal Rule of Civil Procedure 58. Signed by Judge Amanda K Brailsford. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICHAEL DON J.,

Case No. 1:23-cv-00418-AKB-REP
ORDER ADOPTING REPORT AND
RECOMMNDATION

Plaintiff,
v.
MARTIN J. O’MALLEY, Commissioner of
Social Security Administration,
Defendant.

Before the Court is a Report and Recommendation entered by United States Magistrate
Judge Raymond Edward Patricco, Jr. (Dkt. 23) and Plaintiff Michael Don J.’s Objection (Dkt. 24).
For the reasons explained below, the Court overrules the Objection, adopts the Report and
Recommendation in its entirety, and affirms the Commissioner’s decision.
BACKGROUND
The Report and Recommendation correctly states the case’s background. (Dkt. 23).
Plaintiff is a fifty-year-old man who suffers from ulcerative colitis and primary sclerosing
cholangitis (PSC). On October 20, 2020, Plaintiff filed an application for social security disability
income (“SSDI”) alleging a disability onset date of April 4, 2020. The claim was denied initially
and on reconsideration, and Plaintiff requested a hearing in front of an Administrative Law Judge
(“ALJ”). (Id.). On March 17, 2022, the claim went to a hearing before ALJ David Willis. (Id.). On
June 22, 2022, the ALJ issued a decision that was unfavorable to Plaintiff. In June 2022, the
Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision
of the Commissioner of Social Security.

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Plaintiff then filed a complaint in this Court seeking judicial review under the Social
Security Act. In his complaint, Plaintiff raises two points of error. First, Plaintiff contends that the
ALJ improperly rejected the opinions of his primary care provider, Dr. Lois Niska. Second,
Plaintiff maintains that the ALJ failed to provide clear and convincing reasons for rejecting
Plaintiff’s testimony about the severity of his diarrhea, fatigue, and abdominal pain. On August 12,
2024, Judge Patricco issued his Report, recommending this Court affirm the Commissioner’s
decision, deny Plaintiff’s Complaint for Judicial Review, and dismiss this action with prejudice.
(Dkt. 23 at p. 19). Plaintiff timely objects to that Report.
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(C), the district court “may accept, reject, or modify, in whole
or in part, the findings and recommendations made by the magistrate judge.” Where the parties
object to a report and recommendation, this Court “shall make a de novo determination of those
portions of the report to which objection is made.” Id. Where, however, no objections are filed,
the district court need not conduct a de novo review. To the extent that no objections are made,
arguments to the contrary are waived. See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1). In this case,
Plaintiff filed objections and the Court has conducted a de novo review of those portions of the
Report as well as the record in this matter.
ANALYSIS
In his Report, Judge Patricco found that the ALJ reasonably evaluated a medical opinion
from Plaintiff’s treating physician, Lois R. Niska, D.O., and properly assessed the impact of
Plaintiff’s impairments on his ability to function. (Dkt. 23 at pp. 6-13). Plaintiff objects to the
Report to the extent it affirmed the ALJ’s rejection of Dr. Niska’s opinion about the severity of

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Plaintiff’s conditions “in light of the Ninth Circuit holding in Smith v. Kijakazi, 14 F.4th 1108 (9th
Cir. 2021).” (Dkt. 24 at p. 1).
In Smith, the Ninth Circuit acknowledged symptoms may fluctuate over time for many
individuals with mental health conditions and held the ALJ erred in discrediting certain medical
opinions as unreliable “because the [ALJ] did not adequately consider the progression of [the
claimant’s] symptoms over time in making her credibility determinations.” 14 F.4th at 1115. As
the Ninth Circuit explained in Smith:
[W]e have previously observed that in many mental health conditions, “[c]ycles of
improvement and debilitating symptoms are a common occurrence.” We therefore
held that “in such circumstances it is error for an ALJ to pick out a few isolated
instances of improvement . . . and to treat them as a basis for concluding a claimant
is capable of working.” Physician reports of “improvement” are thus not
“sufficient to undermine the repeated diagnosis of [the alleged mental health]
conditions” in an earlier physician’s report or render the earlier medical opinions
“inconsistent” and so not credible.
Id. at 1115-16 (emphasis added). Yet, in Smith, the ALJ gave more credence to an opinion by a
provider who highlighted the claimant’s “later improvements” and discredited earlier opinions of
providers who reported more severe symptoms. Id. at 1116. The Ninth Circuit therefore concluded
that the ALJ in Smith erred by failing to consider whether the earlier medical opinions were reliable
evidence of the claimant’s functioning in that earlier period and instead sought “only a single
medical opinion of [the claimant’s] general capacity over the entire period.” Id.
Relying on Smith, Plaintiff argues in this case that the ALJ erred in discounting Dr. Niska’s
medical opinion—which Plaintiff reads as compelling a finding he was disabled as of April 4,
2020—as reliable evidence of Plaintiff’s functioning for the period during which it was rendered,
i.e., March 2022. Plaintiff contends that “records from more than a year prior to Dr. Niska’s
opinion do not show that Dr. Niska was wrong at the time he offered the opinion,” as imaging

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from January 2022 does indicate a worsening of Plaintiff’s bile duct. (Dkt. 24 at p. 2). Plaintiff
therefore asks that “the ALJ’s decision be remanded for a full and fair determination.” (Id.).
First, whether Smith applies to this case is questionable because Plaintiff challenges the
ALJ’s evaluation of his physical conditions—as opposed to mental health conditions. See, e.g.,
Lachner v. Kijakazi, No. 1:22-CV-01464-SKO, 2023 WL 8699011, at *10 (E.D. Cal. Dec. 15,
2023) (citing Wendi M. v. Comm'r, Soc. Sec. Admin., No. 1:21-CV-01828-HZ, 2023 WL 315519,
at *9 (D. Or. Jan. 18, 2023)) (“Plaintiff challenges the ALJ’s consideration of her physical
conditions, and the Court does not believe that Smith applies here.”). Even if Smith did apply,
unlike that case, the ALJ in this case provided “specific and legitimate reasons that [were]
supported by substantial evidence” in discounting Dr. Niska’s opinion. Moreover, Dr. Niska’s
opinion conflicted with the medical opinions of Drs. Coolidge and Arnold. Smith, 14 F.4th at 1114
(“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ
may only reject it by providing specific and legitimate reasons that are supported by substantial
evidence.”).
Here, as the Report accurately describes, “[t]he ALJ provided three, interrelated reasons
for rejecting Dr. Niska’s opinions about the severity of [Plaintiff’s] conditions,” including that:
(1) Dr. Niska’s treatment notes did not match her conclusions; (2) Dr. Niska’s opinions were
inconsistent with the documented improvements in Plaintiff’s conditions with prescribed
medications; and (3) Dr. Niska’s opinions were more extreme than would be expected based “on
the record,” which showed “little to no evidence of recurring emergent care and treatment notes . . .
generally within normal limits.” (Dkt. 23 at pp. 9-12) (citing AR 22). The ALJ’s analysis in this
regard “appropriately focused on the supportability and consistency of Dr. Niska’s opinion,” (id.
at p. 9) (citing 20 C.F.R. § 404.1520c(b)(2)). Further, unlike in Smith, the ALJ in this case did not

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seek only a single medical opinion of Plaintiff’s general capacity over the entire period. Rather,
the ALJ found all three medical opinions in this case “less than persuasive” and instead focused
on the entire record in finding the severity of Plaintiff’s conditions lay somewhere in the middle
between the opinions of Dr. Coolidge and Dr. Niska.
As the Report explains, simply because a reasonable jurist could have given more weight
to Dr. Niska’s opinions and to records from the end of the period of alleged disability, which
indicated Plaintiff’s conditions may have been worsening, the existence of such an alternative
reading of the record “does not justify relief on appeal.” (Dkt. 23 at p. 13). The question on appeal
is not whether substantial evidence exists to support the claimant’s preferred findings, but whether
substantial evidence supports the ALJ’s findings. Jamerson v. Chater, 112 F.3d 1064, 1067 (9th
Cir. 1997). A court may not reweigh the evidence or substitute its judgment for that of the ALJ in
determining whether substantial evidence exists. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir.
2021). So long as substantial evidence supports the ALJ’s conclusions, such conclusions must be
affirmed.
Substantial evidence exists in this case to support the ALJ’s rejection of Dr. Niska’s
opinion regarding the severity of Plaintiff’s symptoms. Accordingly, the Court overrules the
Objection, adopts the Report and Recommendation in its entirety, and affirms the Commissioner’s
decision.
ORDER
IT IS HEREBY ORDERED:
1. The Report and Recommendation entered on August 12, 2024 (Dkt. 23), is
INCORPORATED and ADOPTED in its entirety;
2. The decision of the Commissioner is AFFIRMED;

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3. The Complaint for Judicial Review (Dkt. 1) is DENIED, and this action is DISMISSED,
with prejudice, as outlined in the Report and Recommendation;
4. The Court will enter a separate judgment in favor of Defendant in accordance with Federal
Rule of Civil Procedure 58.

September 24, 2024

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