Lebeck v. Commissioner Social Security Administration

Filing 19

OPINION AND ORDER: The Commissioner's decision is AFFIRMED and this case is DISMISSED. Signed on 1/22/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

APRILL., 1

Case No. 3:l 7-cv-01803-AA
OPINION AND ORDER
Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

AIKEN, District Judge:
April L. ("Plaintiff') brings this action pursuant to the Social Security Act ("Act"), 42
U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social
Security ("Commissioner"). The Commissioner denied Plaintiffs application for Supplemental
Security Income ("SSI") on June 28, 2018. For the reasons set forth below, the Commissioner's
decision is AFFIRMED, and the case is DISMISSED.

II I
II I

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party or parties in this case. Where applicable, this opinion uses
the same designation for a non-governmental party's immediate family member.
Page I - OPINION AND ORDER

BACKGROUND

Plaintiff filed an application for SSI on February 26, 2016. Because he was a minor when
he filed his application, the Commissioner initially adjudicated his case under the child disability
standards as well as the adult disability standards. Plaintiff alleged disability due to ADHD,
depressive disorder, bipolar disorder, neurodevelopmental disorder, PTSD, sleep problems,
migraine headaches, and obesity in his SSI application. Plaintiff subsequently amended his
disability onset date to April 7, 2016, the date of his 18th birthday.
The application was initially denied on May 16, 2016 and upon reconsideration on
September 26, 2016. An administrative hearing was held before an administrative law judge
("ALJ") at Plaintiffs request on June 13, 2017 where Plaintiff and a vocational expert ("VE")
testified, subsequent to which the ALJ issued an unfavorable decision. After the Appeals Council
declined review, the ALJ' s decision became final. Plaintiff now seeks review of the ALJ' s
decision.
STANDARD OF REVIEW

42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's
disability determinations: "The court shall have power to enter . . . a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing." In reviewing the ALJ's findings, district coutts act in an
appellate capacity not as the trier of fact. Fair v. Bowen, 885 F.2d 597, 604 (9th Circ. 1989). The
district coutt must affirm the ALJ' s decision unless it contains legal error or lacks substantial
evidentiary support. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v.
Comm 'r ofSoc. Sec., 454 F.3d 1050, 1052 (9th Cir. 2006)). Hannless legal errors are not grounds

for reversal. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "Substantial evidence is more

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than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Gutierrez v. Comm 'r of Soc. Sec., 740
F.3d 519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The complete record
must be evaluated and the evidence that suppmis and detracts from the ALJ' s conclusion must be
weighed. };Jayes v. lvfassanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to
more than one interpretation but the Commissioner's decision is rational, the Commissioner must
be affim1ed, because "the court may not substitute its judgment for that of the
Commissioner." Edlund v. lvfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION
The initial burden of proof rests upon the Plaintiff to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the Plaintiff must demonstrate
an "inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impaitment which can be expected ... to last for a continuous period of not
less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).
To dete1mine whether a claimant is disabled, an ALJ is required to employ a five-step
sequential analysis, determining: "(1) whether the claimant is 'doing substantial gainful activity';
(2) whether the claimant has a 'severe medically determinable physical or mental impairment' or
combination ofimpainnents that has lasted for more than 12 months; (3) whether the impaitment
'meets or equals' one of the listings in the regulations; (4) whether, given the claimant's 'residual
functional capacity,' the claimant can still do his or her 'past relevant work' and (5) whether the
claimant 'can make an adjustment to other work."' .Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012) (quoting 20 C.F.R. §§ 404.1520(a), 416.920(a)).

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At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since his alleged disability onset date. At step two, the ALJ found that Plaintiff had the following
severe limitations: "[a] depressive, bipolar or related disorder; an anxiety disorder; a
neurodevelopmental disorder; and [PTSD]." Tr. 13. At step three, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that met or medically equaled the
requirements of a listed impahment.
The ALJ then assessed Plaintiffs residual functional capacity ("RFC"). 20 C.F.R. §
404.1520(e); § 416.920(e). The ALJ found that Plaintiff
has the [RFC] to perform a full range of work at all exertional levels but with the following
nonexe1iional limitations: He is limited to simple, routine tasks consistent with occupations
with an SVP of 1 or 2 and a general education development (GED) level not exceeding 2.
He should have no public contact. He is limited to work involving no more than superficial
coworker contact and no teamwork.
Tr. 14-15. At step four, the ALJ found that Plaintiff had no past relevant work experience. At
step five, the ALJ considered Plaintiffs age, education, work experience, and RFC and found that
there were other jobs existing in significant numbers in the national economy that Plaintiff could
perform, includingjanitor, laboratory helper, and recycler/reclaimer. Accordingly, the ALJ found
that Plaintiff was not disabled under the Act.
DISCUSSION

Plaintiff contends that the ALJ committed four harmful errors: (i) failing to admit and
consider the medical source statement of PMHNP Rebekah Phillips, and in his related duty to
develop the record; (ii) failing to incorporate Plaintiffs adaptation limitations into his RFC
assessment; (iii) failing to properly weigh the opinions of Charlene Sabin, M.D., Scott Alvord,
Psy. D., Tasha Miniszewski, LCSW, as well as the opinions ofDrs. Scott Kaper and Ben Kessler,

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the State psychological consultants; and (iv) failing to properly evaluate Plaintiffs testimony and
that of his mother, Kimberly L.

I

Admitting the Questionnaire and the ALJ's Duty to Develop the Record
Rebekah Phillips, PMHNP, is Plaintiffs treating mental healthcare provider. Plaintiff

submitted a partially-completed questionnaire by Ms. Phillips that opined on the severity of
Plaintiffs impairments and limitations the day before his administrative hearing. The ALJ rejected
the questionnaire under 20 C.F.R. § 416.1435(b) because he found that it was not submitted in a
timely manner, i.e., at least five business days before the hearing.
Plaintiff argues that (1) the exclusion of the questionnaire was improper because the ALJ
failed to apply the good cause exception to late evidentiary submissions under § 416.1435(b)(3)
and (2) the exclusion violates an ALJ's duty to develop the record. The Commissioner concedes
that the ALJ erred in not admitting Ms. Phillips's opinion statement but argues that the exclusion
was harmless because the opinion was not probative and that it was substantially similar to the
opinion submitted by Ms. Miniszewski, LCSW, which the ALJ considered.
On December 16, 2016, the Social Security Administration adopted, among other
provisions, 20 C.F.R. § 416.1435(b). 81 Fed. Reg. 90987-01. This provision requires claimants
to submit relevant evidence or notify the Commissioner that relevant evidence is outstanding, at
least five days before the claimant's hearing. If the claimant's failure to timely submit the evidence
is attributable to good cause, however, the ALJ must admit the evidence into the record. See 20
C.F.R. § 416.1435(b). The provision went into effect on January 17, 2017 and the Commissioner
required compliance with the provision from May 1, 2017 onward. 81 Fed. Reg. 90987-01.
Both parties agree that the ALJ should have admitted the questionnaire into the record. I
agree as well. Plaintiff sent a letter to the ALJ on May 25th, 2017 that she anticipated submitting

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further evidence, and possibly less than five business days prior to the hearing. Several pieces of
written evidence were anticipated, including evidence identified as a "questionnaire" sent to Dr.
Sabin for her to complete. On June 12, 2017, less than five business days prior to hearing, Plaintiff
submitted a questionnaire from Ms. Phillips, PMHNP-the questionnaire simply had Dr. Sabin's
name crossed out on the top left corner with Ms. Phillips's name substituted in. Although Dr. Sabin
did not complete the questionnaire, Ms. Phillips's questionnaire is clearly the questionnaire that
Plaintiff had referenced in the May 25, 2017 letter to the Commissioner. The ALJ did not inform
Plaintiff that the evidence was excluded, and Plaintiff therefore did not provide an explanation for
its late submission. It appears that either Plaintiff was unaware that the questionnaire should have
been directed to Ms. Phillips, and mistakenly addressed it to Dr. Sabin, or that the hospital made
a judgement call that Ms. Phillips would be the more appropriate professional to fill out the
questionnaire. Either way, and in the light of the fact that Commissioner is conceding the enor, I
find that the ALJ should have admitted the questionnaire under the good cause exception in §
4 l 6.1435(b)(3) and failure to do so was error.
Next, I consider whether the ALJ's error was also a violation of his duty to develop the
record.
Plaintiff states that "Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) requires an
ALJ to develop the record where it is either ambiguous or incomplete; but a specific finding of
ambiguity or incompleteness is not required." Pl.'s Br. 4 (emphasis added). Plaintiff then argues
that "because there is no evidence in the record as to whether any of the exceptions outlined in 20
C.F.R. § 416 1435(b) might apply, the record is patently incomplete." Id. Plaintiff also seems to
argue that he was misled by the ALJ because the ALJ failed to info1m Plaintiffs counsel that Ms.

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Phillips's questionnaire was excluded from the record, which Plaintiff also believes violates the
duty to develop the record.
ALJs have an independent duty to fully and fairly develop the record, whether or not the
claimant is represented by counsel. Smolen v. Chafer, 80 F.3d 1273, 1283 (9th Cir. 1996).
However, the duty is heightened if a claimant is not represented by counsel. Celaya v. Halter, 332
F.3d 1177, 1183 (9th Cir. 2003). This duty is only triggered when the evidence is ambiguous or
when the record is inadequate to properly evaluate the evidence. }1/ayes, 276 F.3d at 459-60; see

also JvfcLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2010) (explaining that the duty to develop the
record is not triggered when the reports of two treating physicians were not unclear or ambiguous).
Here, the ALJ adequately developed the record. Plaintiff is mistaken in his premise:

Tonapetyan does not require the ALJ to develop the record where the record is "incomplete."
Instead, the duty is triggered when the evidence is ambiguous or when "the ALJ[] [finds] that the
record is inadequate to allow for proper evaluation of the evidence." Tonapetyan, 242 F.3d at
1150 (emphasis added). Tonapetyan's discussion of completeness had to do with a testifying
physician's concern that the Plaintiffs medical record was incomplete and inhibited a proper
assessment of the Plaintiffs mental impairment. Id. at 1150-51. The Ninth Circuit concluded that
because the ALJ "clearly relied heavily on [the physician's] testimony ... the ALJ was not free to
ignore [the physician's] concern of the lack of a complete record ... and was not free to ignore
[the] specific recommendation that a more detailed report ... be obtained." Id. The issue, then,
was that a testifying physician on whom the ALJ was heavily relying had testified that the record
was inadequate to allow for a proper evaluation but the ALJ had ignored this part of the physician's
testimony. Id. The Ninth Circuit found that ignoring this fact violated the ALJ's duty to develop
the record because the record was inadequate. Id. Therefore, the fact that Plaintiff disagrees with

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an ALJ' s decision to exclude evidence from the record does not trigger a failure to develop the
record issue for incompleteness.
Even assuming, arguendo, that Plaintiffs interpretation of Tonapetyan is correct, the
ALJ's failure to inquire whether any of the exceptions outlined in§ 416. l 435(b) might apply would
not violate the duty to develop the record. A reasonable reading of§ 416.1435(b) indicates that
the burden is on the claimant to explain why an exception to the general evidence submission rules
should apply. See 20 C.F.R. 416.1435(b) (stating "[i]f you have evidence required under§
416.912 but you have missed the deadline described in paragraph (a) [the ALJ] will accept the
evidence if ... you did not inform us about or submit the evidence before the deadline because:
[an unusual] circumstance beyond your control prevented you from informing us about or
submitting the evidence earlier."). Plaintiff provides no reason to believe, via case citations or
otherwise, that the burden is on the ALJ to inquire into exceptions or that failing to do so violates
the ALJ's duty to develop the record. Accordingly, the ALJ does not en· by failing to follow up
about the applicability of a potential exception-instead, Plaintiff should accompany his late
submissions with an explanation as to why an exception applies.
Moreover, Tonapetyan was interpreted in 1vfayes to provide the current rule for triggering
the duty to further develop the record: the duty is triggered only when the evidence is ambiguous
or the record is inadequate to properly evaluate the evidence. Mayes, 276 F.3d at 459-60
(emphasis added) (citing Tonapetyan, 242 F.3d at 1150). Mayes has recognized two circumstances
that trigger an ALJ's duty to further develop the record: ambiguity or insufficiency. Id. Fmiher,
lvlayes's inclusion of "only" indicates that at least one of ambiguity or inadequacy are necessary

conditions for triggering the duty. Id. Neither condition is present in this case. While the duty to
develop the record is heightened where a claimant is not represented by counsel under Celaya,

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Plaintiff was represented by counsel prior to and during the ALJ hearing in this case. See Celaya,
332 F.3d at 1183. There is no indication that the Ninth Circuit has expanded the duty to develop
to cases other than where the record was ambiguous or inadequate. Thus, while the parties agree
that the evidence was improperly excluded, that failure is not an independent failure to develop
the record.
I turn next to whether the ALJ's failure to admit Ms. Phillips's opinion statement into the
record was a harmful error.
Harmless errors are not grounds for reversing an ALJ. Stout, 454 F.3d at I 054. An error
is harmless only if the comi "can confidently conclude that no reasonable ALJ ... could have
reached a different conclusion." Id. at 1056. In other words, legal errors are ham1less only if they
are inconsequential to the non-disability decision. Id. at 1055.
The Commissioner argues that the ALJ' s failure to admit the questionnaire was harmless
because ALJs are only required to address evidence that is significant and probative under Vincent

v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), and the submitted questiommire did not need
to be addressed because it was incomplete and unsigned, and therefore was neither significant nor
probative.

The Conunissioner also argues that the partially-completed questio1111aire was

substantially similar to the questionnaire completed by Ms. Miniszewski and the ALJ's criticism
of that questio1111aire also applies to the questio1111aire submitted by Ms. Phillips. Plaintiff argues
that Phillips's form was probative and significant as "other sources" evidence under the regulation,
that Phillip's hand-written name on the first page of the fo1m constitutes a signature, and essentially
that the form was complete enough.
With respect to the signature issue, I find that Ms. Phillip's failure to properly sign the
questio1111aire does not render it insignificant or not probative. If there is no dispute as to its

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authenticity and no evidence that Ms. Phillips does not stand by her assessment of Plaintiff, her
failure to properly sign it is immaterial to the evidentiary value of the partially-completed
questionnaire. Absent case law to the contrary, a lack of a proper signature page is enough to
consider the evidence to be neither significant nor probative. Therefore, failure to admit the
partially-completed questionnaire is not harmless.
With respect to the incompleteness issue, I find that Plaintiffs failure to provide a fully
completed questionnaire does not render the portion that was submitted insignificant or not
probative. The questionnaire includes an assessment of Plaintiffs impai1ments and limitations by
a PMHNP. It solicits answers with respect to Plaintiffs concentration, interactions, symptoms,
and side effects of his medication.

All of these issues are clearly probative of Plaintiffs

limitations, if any. Had the questi01maire been included, the ALJ would therefore have had to
assign appropriate weight to the evidence and could not disregard it without comment. See
Vincent, 739 F.2d at 1395 (an ALJ must explain why any probative evidence has been rejected).

Nevertheless, although the signature page deficiency and the missing page are insufficient
reasons to exclude the evidence, I agree that Ms. Phillips's partially-completed questionnaire was
substantially similar to the questionnaire submitted by Ms. Miniszewski and therefore the ALJ's
failure to address is was harmless error. 2
"Where the ALJ rejects a witness's testimony without providing germane reasons but has
already provided germane reasons for rejecting similar testimony, we cannot reverse the agency
merely because the ALJ did not "clearly link his determination to those reasons." i'vfolina, 674
F.3d at 1121; see also Brown v. Benyhill, 724 F.App'x 615,615 (2018) ("Even if the ALJ erred

Plaintiff also contends that the Commissioner's argument "would have the Comt conflate
Molina's harmless e1Tor analysis of lay witness testimony with its application of the "ge1mane
reason" standard. As this section makes clear, that is not how I read the Commissioner's position.
2

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by failing to provide substantial evidentiary suppott for discounting lay witness testimony by
[Plaintiff]'s husband[,] any error was harmless because the testimony described substantially
similar limitations as [Plaintiff]'s testimony, and the "ALJ's reasons for rejecting [Plaintiffs]
testimony apply with equal force to the lay testimony.").
Here, the ALJ discounted Ms. Miniszewski' s substantially similar assessment for several
reasons. In assessing Plaintiffs degree of limitations, Ms. Miniszewski checked "marked" in
response to all three questions on the questionnaire. Tr. 19. However, the ALJ found Ms.
Miniszewski's assessment to be unsupported by her own treatment records. He also found her
assessment to be inconsistent with the Plaintiffs performance on consultative mental status exams.
The ALJ therefore gave "little weight" to Ms. Miniszewski's assessment.
Ms. Phillips opined that Plaintiffs limitations were well beyond "Marked" and instead
assessed Plaintiffs degree oflimitations as "Extreme." Under lvfolina, an ALJ's failure to address
relevant evidence is harmless if similar evidence was discounted for legally sufficient reasons that
could apply to both pieces of evidence. lvfolina, 674 F.3d at 1121. Any reasonable ALJ that finds
"marked" limitations to be unsupported by the objective record would surely find "extreme"
limitations to also be unsupported by that same record. That is, had the ALJ included Ms. Phillip's
pmtially-completed questionnaire in the record it would also have been reasonable to discount its
even more severe assessment of Plaintiffs limitations for the same reasons he discounted Ms.
Miniszewski's, i.e., because the assessment would not have been suppotted by the objective
evidence. Thus, to the extent that the ALJ properly assessed Ms. Miniszewski's opinion, the
addition of Ms. Phillips's opinion could not have changed his ultimate disability determination. It
follows, then, that failing to include Ms. Phillip's opinion is hannless enor.

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The only remaining issue is whether the ALJ did in fact provide ge1mane reasons for
discounting Ms. Miniszewski' s opinion. As explained fmiher in section III, the ALJ found that
Ms. Miniszewski' s assessment was unsupported by her own treatment records and found her
assessment inconsistent with Plaintiffs performance on consultative mental status exams. These
are all ge1mane reasons for discounting Ms. Miniszewski's opinion, and I find that the ALJ did
not commit hmmful e11'or.

II

Incorporating RFC Limitations
Plaintiff argues that the ALJ failed to properly incorporate Plaintiffs adaptation limitations

into the RFC because the RFC fails to state that Plaintiff requires a predictable work
environment-the limitation found by the Disability Determination Services psychological
consultants, Drs. Kaper and Kessler ("State Psychologists"). I disagree. The ALJ states
I find that the claimant has the [RFC] to perform a full range of work ... with the following
nonexertional limitations: He is limited to simple, routine, tasks consistent with
occupations with an SVP of 1 or 2 and a general education development GED level not
exceeding 2. He should have no public contact. He is limited to work involving no more
than superficial coworker contact and no teamwork.
Tr. 14-5.
Within the same section, the ALJ acknowledged the State Psychologists believe that
Plaintiff is "able to sustain attention, concentration and persistent for simple tasks ... is limited to
occasional contact with the public and others in the workplace ... is able to interact appropriately
with supervisors [and] needs a predictable work environment." Tr. 18. The ALJ then states that
"[g]reat weight is given to the opinion of Dr. Kaper and Dr. Kessler." Id. This is not a legally
problematic consideration of the State Psychologists' assessed limitations in the RFC.
Plaintiff argues that because the adaptation limitations assessed by the State Psychologists
are not word-for-word in the RFC section heading, that this evinces a failure of the ALJ to properly

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include their opinion in the RFC. But the RFC only needs to be consistent with the crediblyassessed limitation, not identical to it. Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23
(9th Cir. 2010).

The Court must also uphold the ALJ's interpretation of the record if his

interpretation is reasonable, even if other rational interpretations are supported by the evidence.
Batson v. Comm 'r ofSoc. Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).

Here, there is a difference between an ALJ's intention to reject an opinion and an intention
to inte1pret and account for the opinion in the RFC, and there is no reason to think that the latter is
unacceptable or didn't happen in this case. Thus, I find that the opinions of the State Psychologists
were appropriately incorporated into the RFC.
Plaintiff also contends that the ALJ failed to account for Plaintiffs need for a predictable
work environment in his VE hypotheticals during the administrative hearing. But, as explained
above, the ALJ reasonably took this limitation into account by limiting Plaintiff to routine tasks.
Additionally, even if the ALJ should have explicitly referenced the need for a predictable work
environment in the VE hypotheticals, the failure is harmless error.
The VE testified that janitors, recyclers, and laboratory helpers would be appropriate jobs
for Plaintiff. Under Plaintiffs view, presumably there is a world in which the VE would no longer
suggest janitors, recyclers, and laboratory helpers as appropriate jobs for Plaintiff had the ALJ
made clear that Plaintiff needs a predictable work environment. Or, maybe the ALJ would not
believe that janitors, recyclers, and laboratory helpers, are appropriate jobs for Plaintiff if he had
referenced this limitation more liberally throughout his opinion. This is not sensible. When
considering job duties, comts may rely on common experience and common sense. See Gutierrez
v. Colvin, 844 F.3d 804,808 (9th Cir. 2016) ("But anyone who's made a trip to the corner grocery

store knows that while a clerk stocking shelves has to reach overhead frequently, the typical cashier

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never has to."). Common sense tells us that janitors, recyclers and laboratory workers generally
work in the same building, around the same people, with consistent work hours, i.e., in a
predictable work environment.
Plaintiff believes that the Court would be speculating if it concludes as such. But applying
common sense is not legally forbidden speculation. Gutierrez, 844 F.3d at 808. And Plaintiffs
criticism that since laboratory helpers could be working in both a "dry environment" and "wet
environment," and therefore cannot be said to necessarily work in a "predictable" environment is
unconvincing. PJ's. Reply Br. 7. Because all three jobs exist in significant number in the national
economy, even if not all of them are performed in a predictable work environment, at least one
type of job almost certainly generally is and that is all that the ALJ had to legally identify to meet
the significant number standard. See Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519,529 (9th
Cir. 2014) (stating that 25,000 jobs in the national economy is a significant number). The ALJ
found that there were 2,000,000 janitorial jobs, 55,000 laboratory helper jobs, and 44,000 recycling
jobs in the national economy. All these positions are reasonably understood as having a predictable
work environment with daily tasks that are sufficiently routine by any measure. Therefore, I find
that the ALJ' s failure to specify a need for a predictable work environment to the VE to be harmless
error.
Plaintiff also analogizes this case to Bartlett v. Benyhill, 6: 16-CV-0 I 069-CL, 2018 WL
1903137, at *6 (D. Or. Mar. 28, 2018). Plaintiff states that in Bartlett the consulting psychologists
opined that the claimant needed a predictable job setting and the comt found legal error because
the RFC only included a reference to simple and routine tasks. However, the Magistrate Judge in
that case did not assess whether the error was harmful and a review of the parties' briefs indicates
that the argument was never put forward. Finally, there is no law of the district and this intra-

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district case is not binding upon this Court. See Starbuck v. City ofSan Francisco, 556 F.2d 450,
457 n.13 (9th Cir. 1977) ("The doctrine of stare decisis does not compel one district cou1t judge
to follow the decision of another."). Therefore, I don't find the reasoning in Bartlett to be
dispositive of this issue in Plaintiffs favor.

Jil

The ALJ's Consideration of the lvfedical Opinion Evidence
Plaintiff also argues that the ALJ e1Ted by failing to properly weigh the opinions of

Charlene Sabin, M.D., Scott Alvord, Psy.D., Tasha Miniszewski, LCSW, as well as the opinions
ofDrs. Scott Kaper and Ben Kessler, the State psychological consultants. I disagree.

A. Charlene Sabin, lYJD.
With respect to Dr. Sabin, Plaintiff argues that the ALJ rejected Dr. Sabin's diagnosis of
ADHD, while the Commissioner argues that the diagnoses of ADHD is captured within the broader
umbrella term of neurodevelopmental disorders.
Even if ADHD is a correct diagnosis for Plaintiff, the ALJ appears to have fully considered
it. The ALJ's opinion explicitly credits Plaintiff with having a neurodevelopmental disorder. The
ALJ also noted that Plaintiffs psychiatric disorders were given various labels but that all of his
psychiatric symptoms were considered in his decision. ADI-ID is listed as a neurodevelopmental
disorder under the American Psychiatric Association's Diagnostic & Statistical Manual Mental

Disorders. (5th ed. 2013) ("DSM-5"). It is thus captured within the broader umbrella term of
neurodevelopmental disorders, which the ALJ clearly considered. Therefore, I find no error.

B. Scott Alvord, Psy.D.
Plaintiff argues that the ALJ erred by discounting Dr. Alvord's opinion by only giving it
"some weight."
ALJs are responsible for resolving conflicts in the medical record, including conflicts
among physicians' opinions. Carmickle v. Comm'r of Soc. Sec., 533 F.3d 1157, 1164 (9th Cir.
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2008). The Ninth Circuit distinguishes between the opinions of three types of physicians: treating
physicians, examining physicians, and non-examining physicians.

Generally, "a treating

physician's opinion carries more weight than an examining physician's, and an examining
physician's opinion canies more weight than a reviewing physician's."

Holohan v.

lvfassanari, 246 F.3d 1195, 1202 (9th Cir. 2001 ). If a treating physician's opinion is supported by
medically acceptable techniques and is not inconsistent with other substantial evidence in the
record, the treating physician's opinion is given controlling weight. Id.; see also 20 C.F.R. §
404.1527(d)(2). A treating doctor's opinion that is not contradicted by the opinion of another
physician can be rejected only for "clear and convincing" reasons. Ryan v. Comm 'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor's opinion is contradicted by the
opinion of another physician, the ALJ must provide "specific and legitimate reasons" for
discrediting the treating doctor's opinion. Id. The same "clear and convincing" standard applies
to rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d
502, 506 (9th Cir. 1990). If the opinion of an examining physician is contradicted the ALJ must
provide "specific, legitimate reasons" for discrediting the examining physician's opinion. Lester

v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may reject an examining, non-treating
physician's opinion "in favor of a nonexamining, nontreating physician when he gives specific,
legitimate reasons for doing so, and those reasons are supported by substantial record
evidence." Roberts v. Shala/a, 66 F.3d 179, 184 (9th Cir. 1995), as amended (Oct. 23, 1995).
Specific, legitimate reasons for rejecting a physician's opinion may include its reliance on
a claimant's discredited subjective complaints, inconsistency with medical records, inconsistency
with a claimant's testimony, and inconsistency with a claimant's daily activities. Tommasetti v.

As/rue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43.

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Dr. Alvord was Plaintiffs examining psychologist whose opinion was found by the ALJ
to be contradicted by other evidence in the record. The ALJ gave Dr. Alvord's opinion reduced
weight because Dr. Alvord opined that Plaintiff has a "borderline" IQ even though fmmal testing
indicated that Plaintiffs IQ was notmal. The ALJ also noted that Dr. Alvord failed to provide a
rationale for the nature and extent of his assessed limitations. All of the ALJ' s stated reasons meet
the "specific and legitimate reasons" standard. See Tommaselfi, 533 F.3d at 1040; see also, Bray
v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding no etTor where the ALJ

considered inconsistencies between the claimant's testimony and objective medical evidence as
one of many reasons for discounting the testimony). Therefore, I find no error.
C. Tasha Miniszewski, LCSW

Plaintiff argues that greater weight should have been given to Ms. Miniszewski' s opinion
because "the record as a whole" suppmts her limitation opinion.
Under the applicable regulations, only licensed physicians and certain other qualified
specialists are considered"[a]cceptable medical sources." 20 C.F.R. § 404.15 B(a); see also Social
Security Ruling ("SSR") 06-03p, available at 2006 WL 2329939 (Aug. 9, 2006) (defining
"acceptable medical sources" as licensed physicians, licensed or certified psychologists, licensed
optometrists, licensed podiatrists, and qualified speech pathologists). Other health care providers
who are not "acceptable medical sources," such as "nurse practitioners, physician assistants,
licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists," are still
considered "medical sources" under the regulations, and the ALJ can use these other medical
source opinions in determining the "severity of the individual's impairment(s) and how it affects
the individual's ability to function." 20 C.F.R. § 404.1513(d). Because Ms. Miniszewski is a
licensed clinical social worker, she is considered an "other" medical source.

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To reject the competent testimony of "other" medical sources like Ms. Miniszewski, the
ALJ need only give "reasons gemmne to each witness for doing so." Molina, 674 F.3d at 1111
(quoting Tumer, 613 F.3d at 1224). In rejecting such testimony, the ALJ need not cite the specific
record so long as "arguably germane reasons" for dismissing the testimony are noted, even though
the ALJ does "not clearly link his determination to those reasons," and substantial evidence
suppo1ts the ALJ's decision. Lewis v. Apfel, 236 F.3d 503,512 (9th Cir. 2001).
At the time of the administrative hearing, Ms. Miniszewski had been Plaintiffs therapist
since April of 2016. The ALJ gave "little weight" to Ms. Miniszewski' s opinion because her
opinion was unsupported by her own treatment records and inconsistent with the Plaintiffs
performance on consultative mental status exams in 2016 and 2017. With respect to the treatment
record inconsistency, Ms. Miniszewski submitted a questionnaire indicating that Plaintiff had
marked limitations in every assessed domain, but her treatment records indicate that she believes
Plaintiffs appearance, behavior, and reactions towards the interviewer were appropriate and
within the reasonable range. With respect to Plaintiffs performance on mental status exams, the
results indicated that Plaintiffs performance was generally within the normal range and therefore
did not support the "marked" limitations assessed by Ms. Miniszewski. These are germane reasons
under 1vfolina. To the extent that germane reasons are provided and the ALJ's interpretation of the
record is reasonable, the ALJ' s assessment is not legally deficient. Because I find these standards
to be met, the ALJ did not err.

D. State Agency Psychological Consultants
Plaintiff argues that the ALJ erred in giving "great weight" to the opinions of the State
agency's psychological consultants because the record they reviewed was incomplete, i.e., it did
include information about Plaintiffs condition subsequently worsening.

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State agency reviewing doctors are highly qualified experts in disability evaluations. 20
C.F.R. § 404.1527(e)(2)(i). An ALJ may not ignore the opinions of State agency medical and
psychological consultants regarding the nature and severity of impahments and must explain the
weight given to them. SSR 96-6P(l)-(2), available at 1996 WL 374180, at* 1~2 (Jul. 2, 1996); see
also 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (because State agency medical and
psychological consultants are highly qualified experts in Social Security disability evaluation, an
ALJ must consider their findings as opinion evidence); Sawyer v. Astrue, 303 F.App'x 453, 455
(9th Cir. 2008). "[T]he proposition that the most recent medical report is the most probative ...
applies where a claimant's condition is progressively deteriorating, and the ALJ is attempting to
determine whether a claimant is disabled at all." ,vfagal/anes v. Bowen, 881 F.2d 747, 754-55 (9th
Cir. 1989).
Here, the ALJ reasonably assessed the opinions of the State Psychologists. They opined
that Plaintiff remains able to sustain attention and persistence for simple tasks, that he is limited to
occasional public and workplace contact, that he is able to appropriately interact with supervisors,
and that he needs a predictable work environment. The ALJ found that their opinions were
consistent with Plaintiffs assessed social functioning and mental status exams and therefore
accorded their opinion "great weight."
The fact that further evidence was introduced into the record after the State Psychologists
gave their opinion is not a reason to discount their professional opinion as a matter of law. The
ALJ's opinion indicates that he assessed the opinions of the State Psychologist in light of the
record, which indicates that the evidence introduced subsequent to their assessment was
considered. Plaintiff argues that because his PTSD worsened in 2017, after the State Psychologists
conducted their review of the Plaintiffs records, that it was "harmful legal error" for the ALJ to

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rely on the State Psychologists' opinion. Pl. 's Br. 25. But the ALJ did not simply adopt the opinion
of the State Psychologists. He reviewed their opinions and assessed their consistency with other
evidence in the record, such as Plaintiffs limited social functioning and the mental status exam
administered in May of 2017. Thus, there is no legal error.

IV.

Testimony ofPlaintiff and His Jvlother
Plaintiff also argues that the ALJ failed to properly evaluate the credibility of his testimony

and that of his mother, Kimberly L.
To determine whether a claimant's testimony regarding his symptoms are reliable the ALJ
must engage in two-step analysis. Tommasetti, 533 F.3d at 1039. 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 If the claimant produces this
evidence and there is no evidence of malingering, the ALJ can reject the claimant's testimony
about the severity of his symptoms only with specific clear and convincing reasons. Id (internal
quotation marks omitted). "In determining credibility, an ALJ may engage in ordinary techniques
of credibility evaluation, such as considering ... inconsistencies in claimant's testimony." Burch

v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).
Here, the ALJ found that the medical evidence did to not corroborate the severity Plaintiffs
alleged symptoms. Although subjective complaints cannot be rejected simply because they lack
full objective medical support, the ALJ can consider the credibility of claimant's allegations.

Garrison, 759 F.3d at 1009 (internal citation omitted). In this case, in addition to the lack of
objective medical evidence, there were significant disagreements between the examining
physicians retained by the Commissioner and Plaintiff.
With respect to the objective tests, almost none c01Toborated the degree of limitations that
Plaintiff alleged. To the extent that Plaintiff was diagnosed with a creditable condition under the
Page 20 - OPINION AND ORDER

Social Security disability rules, his condition seems to have improved when it was properly treated

e.g., by taking antidepressant medication.

For example, in December 2015, Plaintiff was

hospitalized for suicidal ideation but his symptoms improved after he was prescribed anti-anxiety
and antidepressant medication.
In March 2016, Dr. Reynolds examined Plaintiff and conducted a medical exam with
formal testing. Dr. Reynolds concluded that Plaintiffs condition was largely normal with respect
to both memory and IQ. Dr. Reynolds suggested Plaintiff would benefit from a regular schedule
and routine, including consistent bedtime and therapy for his PTSD symptoms. The following
month, Plaintiff attempted to overdose with antidepressant medication but after waking up in the
hospital, he had a normal mood and affect. He was noted to have had a quick turnaround and a
subsequent visit in September 2016 indicated that his mood and affect were still n01mal. In
January 2017, he was hospitalized again after an overdose of medication in an attempt to "get
high." But he stated that it was not a suicide attempt and that he was simply using his medication
recreationally.

The Emergency Documentation notes indicated that Plaintiffs mental status

examination results appear to be more consistent with recreational drug use than a suicide attempt.
Subsequent mental status examinations over the next few months again demonstrated normal
mood and affect without any behavioral abnormalities. See e.g., Tr. 514,539,544. In the face of
this gyration between issues and hospitalizations, the ALJ noted that treatment seems to return
Plaintiff back to normalcy-a legally sound reason for discounting the severity of symptoms
alleged by Plaintiff.
Additionally, the ALJ also found that Plaintiffs activities were inconsistent with the degree
of limitation he alleged. For example, Plaintiff alleged that he only left the house once or twice
per week and "never, never, never, never, never" went out alone because of anxiety. Tr. 48. He

Page 21 - OPINION AND ORDER

also claimed that he would have a panic attack ifhe did not have someone that he trusted with him
constantly. However, he testified to regularly riding his bicycle, taking his dog for a walk, meeting
his friends out, and riding the train by himself. The ALJ found that although Plaintiff has social
limitations, his activities were inconsistent with the degree of limitation he alleged. This was a
reasonable finding and as such, the ALJ did not en·.
Plaintiff also alleges that the ALJ inappropriately discounted the statements of his mother,
Mrs. L.
With respect to lay witnesses, an ALJ only needs to give germane reasons for discounting
their testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). One such reason is
inconsistency with medical evidence. Id. The ALJ discounted Mrs. L.' s statements because he
found that her statements conflicted with mental status examination results discussed above. The
exams simply don't support the level of dysfunction that Mrs. L. testified to, e.g., she testified that
Plaintiff did not communicate well, is anxious and nervous, and can't handle stress. Under the
germane reason standard, inconsistency with medical evidence suffices as a reason for discounting
the testimony of a lay witness. Additionally, Mrs. L. 's testimony was undermined by concerns of
Plaintiffs fonner principal about Plaintiffs manipulative behavior. Plaintiffs principal remarked
several times that she had seen manipulative behavior directed at his parents and staff members.

See Tr. 226,228,230. She wrote that Plaintiff would be capable of graduating and holding down
a full-time job if he were in a different living environment. Her concerns about manipulative
behavior involving medical issues directed toward his parents, as well as her concems that
Plaintiffs home environment significantly contributed to his issues, provide another gerniane
reason for discounting the statement from Plaintiffs mother about the extent of his limitations.
Therefore, the ALJ' s treatment of Mrs. L.' s testimony is not legal error.

Page 22 - OPINION AND ORDER

CONCLUSION
The Commissioner's decision is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.
Dated this,#"'day of January, 2019.

aCWA_Qc,,f~/i,\
Ann Aiken
United States District Judge

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OPINION AND ORDER

j