Deats v. Colvin
Filing
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ORDER granting 19 Defendant's Motion for Summary Judgment. Plaintiff's 14 Motion for Summary Judgment is denied. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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NOYA DEATS,
No. 1:16-CV-03129-JTR
Plaintiff,
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
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v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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BEFORE THE COURT are cross-motions for summary judgment. ECF
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No. 14, 19. Attorney D. James Tree represents Noya Deats (Plaintiff); Special
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Assistant United States Attorney Jennifer Ann Kenney represents the
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Commissioner of Social Security (Defendant). The parties have consented to
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proceed before a magistrate judge. ECF No. 7. After reviewing the administrative
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record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for
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Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment.
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JURISDICTION
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Plaintiff filed an application for Disability Insurance Benefits (DIB) on
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October 19, 2011, Tr. 174, alleging disability since January 17, 2006, Tr. 160-163,
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due to social anxiety, panic attacks, depression, suicidal ideation, explosive
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outbursts, general learning disability, dyslexia, and anxiety, Tr. 177. The
ORDER GRANTING DEFENDANT’S MOTION . . . - 1
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application was denied initially and upon reconsideration. Tr. 102-104, 106-107.
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Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing on April 2,
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2014 and heard testimony from Plaintiff, witness, Lawrence M. Deats, and
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vocational expert, Kimberly Mullinax. Tr. 37-84. The ALJ issued an unfavorable
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decision on November 20, 2014. Tr. 19-32. The Appeals Council denied review
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on April 28, 2016. Tr. 1-4. The ALJ’s November 20, 2014 decision became the
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final decision of the Commissioner, which is appealable to the district court
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pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on
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July 1, 2016. ECF No. 1, 4.
STATEMENT OF FACTS
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The facts of the case are set forth in the administrative hearing transcript, the
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ALJ’s decision, and the briefs of the parties. They are only briefly summarized
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here.
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Plaintiff was 27 years old at the alleged date of onset. Tr. 160. Plaintiff
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graduated from high school in 1997. Tr. 178. She received her certificate in early
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childhood development in 2007 or 2008. Tr. 48-49. Her work history includes the
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positions of special education classroom aid and daycare worker. Tr. 204.
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STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in
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medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,
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1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo,
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deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d
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1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is
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not supported by substantial evidence or if it is based on legal error. Tackett v.
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Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as
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being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put
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another way, substantial evidence is such relevant evidence as a reasonable mind
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might accept as adequate to support a conclusion. Richardson v. Perales, 402
ORDER GRANTING DEFENDANT’S MOTION . . . - 2
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U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational
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interpretation, the court may not substitute its judgment for that of the ALJ.
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Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative
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findings, or if conflicting evidence supports a finding of either disability or non-
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disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d
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1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by
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substantial evidence will be set aside if the proper legal standards were not applied
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in weighing the evidence and making the decision. Brawner v. Secretary of Health
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and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).
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SEQUENTIAL EVALUATION PROCESS
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The Commissioner has established a five-step sequential evaluation process
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for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen
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v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of
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proof rests upon the claimant to establish a prima facie case of entitlement to
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disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the
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claimant establishes that physical or mental impairments prevent her from
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engaging in her previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant
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cannot do her past relevant work, the ALJ proceeds to step five, and the burden
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shifts to the Commissioner to show that (1) the claimant can make an adjustment to
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other work, and (2) specific jobs exist in the national economy which the claimant
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can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194
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(9th Cir. 2004). If the claimant cannot make an adjustment to other work in the
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national economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v).
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ADMINISTRATIVE DECISION
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On November 20, 2014, the ALJ issued a decision finding Plaintiff was not
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disabled as defined in the Social Security Act from January 17, 2006, the alleged
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onset date, through June 30, 2008, the date Plaintiff was last insured.
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At step one, the ALJ found Plaintiff had not engaged in substantial gainful
ORDER GRANTING DEFENDANT’S MOTION . . . - 3
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activity during the relevant time period. Tr. 21.
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At step two, the ALJ determined Plaintiff had the following severe
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impairments during the relevant time period: learning disorder and/or attention
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deficit disorder (ADD), anxiety disorder not otherwise specified (NOS), affective
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disorder NOS, and personality disorder NOS. Tr. 22.
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At step three, the ALJ found that through the date last insured Plaintiff did
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not have an impairment or combination of impairments that met or medically
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equaled the severity of one of the listed impairments. Tr. 22.
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At step four, the ALJ assessed Plaintiff’s residual function capacity and
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determined that through the date last insured, she could perform a full range of
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work at all exertional levels and “[s]he was able to perform simple and routine
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tasks, consistent with unskilled work. She was able to tolerate occasional
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interaction with the public.” Tr. 25. The ALJ identified Plaintiff’s past relevant
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work as childcare attendant and found that Plaintiff was not able to perform this
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work during the relevant time period. Tr. 30.
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At step five, the ALJ determined that through the date last insured,
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considering Plaintiff’s age, education, work experience and residual functional
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capacity, and based on the testimony of the vocational expert, there were other jobs
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that exist in significant numbers in the national economy Plaintiff could perform,
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including the jobs of industrial cleaner, cleaner II, laundry worker, assembler,
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packing line worker, and cleaner/housekeeper. Tr. 31. The ALJ concluded
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Plaintiff was not under a disability within the meaning of the Social Security Act at
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any time from January 17, 2006, the alleged onset date, through June 30, 2008, the
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date last insured. Tr. 31.
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ISSUES
The question presented is whether substantial evidence supports the ALJ’s
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decision denying benefits and, if so, whether that decision is based on proper legal
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standards. Plaintiff contends (1) the ALJ erred by failing to consider whether
ORDER GRANTING DEFENDANT’S MOTION . . . - 4
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Plaintiff was disabled after her date last insured and failing to have a medical
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expert testify to infer an alleged onset date, (2) the Appeals Council erred by
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failing to consider and incorporate medical evidence submitted after the date of the
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ALJ’s determination, (3) the ALJ erred in her treatment of the opinion of Sandra
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Saffran, Ph.D., ARNP, (4) the ALJ erred in her treatment of lay witness testimony,
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and (5) the ALJ erred in her credibility determination. 1
DISCUSSION
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A.
Disability Determination
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Plaintiff asserts that there is evidence supporting a finding of disability after
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the date last insured and that the ALJ was required to call a medical expert to infer
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an onset date. ECF No. 14 at 5-6.
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Social Security Regulation 83-20 speaks to how the Commissioner
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establishes a disability onset date. “How long the disease may be determined to
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have existed at a disabling level of severity depends on an informed judgment of
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the facts in the particular case. This judgment, however, must have a legitimate
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medical basis.” S.S.R. 83-20. In the case of mental disorders, determining the
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exact date of onset can be difficult. “Mental disorders may manifest themselves
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over a period of time. Consequently, the precise date of onset of a disabling
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psychological impairment may be difficult, or impossible, to ascertain.” Morgan v.
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Sullivan, 945 F.2d 1079, 1081 (9th Cir. 1991). “If the ‘medical evidence is not
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definite concerning the onset date and medical inferences need to be made, SSR
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83-20 requires the administrative law judge to call upon the services of a medical
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advisor and to obtain all evidence which is available to make the determination.’”
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Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998)
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When Plaintiff identified the issues in her briefing, she listed four. ECF
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No. 14 at 4-5. The Court has separated out the issues of the ALJ’s treatment of
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medical opinions and lay witness evidence.
ORDER GRANTING DEFENDANT’S MOTION . . . - 5
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(quoting DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991)); see also
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Morgan, 945 F.2d at 1082-1083. More specifically, “[a]t the hearing, the
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administrative law judge (ALJ) should call on the services of a medical advisor
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when onset must be inferred.” S.S.R. 83-20. While this regulation states that the
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ALJ “should” obtain testimony from a medical expert, the Ninth Circuit has
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interpreted the “should” as a “must.” Armstrong, 160 F.3d at 590 (citing DeLorme,
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924 F.2d at 848). When the medical testimony is insufficient to determine an onset
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date, the ALJ can fulfill her responsibilities by “exploring lay evidence including
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the testimony of family, friends, or former employers to determine the onset date.”
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Armstrong, 160 F.3d at 590.
However, when an ALJ determines that a claimant was not disabled at any
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time through the date of the ALJ decision, the question of onset date does not arise
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and S.S.R. 83-20 is not triggered. Sam v. Astrue, 550 F.3d 808, 810 (9th Cir.
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2008). An ALJ must comply with S.S.R. 83-20 to develop the record to determine
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an onset date when there is “either an explicit ALJ finding or substantial evidence
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that the claimant was disabled at some point after the date last insured,” id., and
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when there is ambiguity as to the date of onset, see Armstrong, 160 F.3d at 590.
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In the Armstrong, 160 F.3d at 589, and Morgan, 945 F.2d at 1080, there was
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an explicit finding by an ALJ that Plaintiff was disabled after the date last insured.
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Here, there is no such finding by an ALJ. Instead Plaintiff simply asserts there is
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substantial evidence that Plaintiff was disabled at some point, pointing to the
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opinion of Sandra Saffran, Ph.D., ARNP penned after the date last insured. ECF
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No. 17 at 5-6. If there is substantial evidence that the claimant was disabled at
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some point after the date last insured, the question of onset date is raised. Sam,
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550 F.3d at 810-811 citing DeLorme, 924 F.2d at 849. As discussed at length
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below, the ALJ gave the opinion of Dr. Saffran “minimal weight” and provided
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legally sufficient reasons to support her determination. Tr. 30. As such, the record
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does not contain substantial evidence that Plaintiff was disabled after the date last
ORDER GRANTING DEFENDANT’S MOTION . . . - 6
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insured. Therefore, the question of onset date under Sam is not triggered and the
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ALJ was not required to call a medical expert.
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B.
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Evidence Submitted to the Appeals Council
Plaintiff argues that the Appeals Council erred in failing to consider and
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incorporate an evaluation from Dr. Velkamp and treatment notes from Dr. Saffran
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into the record. ECF No. 14 at 6-7. Plaintiff contends that Dr. Velkamp’s
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evaluation and Dr. Saffran’s treatment notes that she submitted to the Appeals
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Council should be part of the administrative record before this Court. The Appeals
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Council did not associate Plaintiff’s new medical evidence with the record, finding
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that they did not affect the ALJ’s decision because they pertained to a period after
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the ALJ’s decision. Tr. 2.
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As an initial matter, the Appeals Council’s denial of Plaintiff’s request for
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review is not subject to judicial review. 42 U.S.C. § 405(g); Brewes v. Comm’r of
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Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (“We have held that we do
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not have jurisdiction to review a decision of the Appeals Council denying a request
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for review of an ALJ’s decision, because the Appeals Council decision is a non-
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final agency action.”).
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Secondly, because the Appeals Council did not associate this new medical
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evidence with the record, this evidence did not become part of the administrative
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record before this Court. See Brewes, 682 F.3d at 1161-1163 (concluding that new
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evidence became part of the record for judicial review where the Appeals Council
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incorporated the new evidence into the record and considered it in deciding
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whether to review the ALJ’s decision). As such, this Court has nothing before it to
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review to determine if the evidence pertained to the period on or before the ALJ’s
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decision as asserted by Plaintiff. ECF No. 14 at 6.
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Because this Court does not have jurisdiction to review the Appeals
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Council’s decision, and even if it had, there is nothing in the record to support
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Plaintiff’s assertions, this argument fails.
ORDER GRANTING DEFENDANT’S MOTION . . . - 7
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C.
Plaintiff asserts that the ALJ failed to properly consider the opinion of Dr.
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Opinion of Sandra Saffran, Ph.D., ARNP
Saffran. ECF No. 14 at 7-13.
In her decision, the ALJ gave “minimal weight” to the December 2013
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opinion of Dr. Saffran, because (1) there was no documented treatment involving
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Dr. Saffran in the record, (2) the reasons Dr. Saffran provided in support of her
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opinion were vague and conclusory, and (3) the opinion was inconsistent with
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evidence in the record. Tr. 30.
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Before addressing the legal sufficiency of the reasons the ALJ provided for
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rejecting Dr. Saffran’s opinions, the Court must first determine whether or not Dr.
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Saffran qualifies as an acceptable or non-acceptable medical source. Plaintiff
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asserts that Dr. Saffran is an acceptable medical source and qualified as an
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uncontradicted treating physician, requiring the ALJ to provide clear and
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convincing reasons to reject her opinion. ECF No. 14 at 8-9. In contrast,
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Defendant asserts Dr. Saffran is not an acceptable medical source and the ALJ was
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only required to provide germane reasons for rejecting her opinion. ECF No. 19 at
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17.
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Dr. Saffran’s signature was followed by “Ph.D., ARNP,” indicating she has
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a doctorate degree and is a nurse practitioner. Tr. 489. Defendant’s briefing even
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provided a citation to the State of Washington’s licensing website. This is not the
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first time Dr. Saffran’s status as an acceptable medical source has been considered
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by this Court and she has been deemed a nonacceptable medical source. See
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Catron v. Colvin, No. 13-CV-03122, 2014 WL 5307459, at *5 (E.D. Wash.
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October 16, 2014); Catron v. Colvin, No. CV-12-3008-CI, 2013 WL 3884030, at
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*5, at *5 ((E.D. Wash. July 26, 2013); Alexanderson v. Colvin, No. 1:14-CV-3119-
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LRS, at *5 (E.D. Wash. May 13, 2015). Plaintiff argues that this Court has
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previously found a doctorate degree in psychology to be equivalent to a certified
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psychologist. ECF No. 20 at 1 citing Wiltse v. Astrue, No. CV-10-00154-CI, at *6
ORDER GRANTING DEFENDANT’S MOTION . . . - 8
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(E.D. Wash. October 4, 2011). However, the issue with Dr. Saffran’s credentials is
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not her degree, but her licensing. See 20 C.F.R. § 404.1502(a)2. (The term
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“acceptable medical source” includes licensed physicians, psychologists,
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optometrists, podiatrists or speech-language pathologists.). While Dr. Saffran has
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a Ph.D., it does not appear that she is a licensed psychologist as required under the
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regulations. As such, her opinion must be treated as the opinion of a nurse
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practitioner, which results in the ALJ only needing to provide germane reasons for
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rejecting her opinion. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
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1.
Documented Treatment
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The ALJ found that there was no documented treatment in the record
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showing that Dr. Saffran had any treating or examining relationship with Plaintiff.
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Tr. 30.
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Examining relationship, treatment relationship, supportability, consistency,
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and specialization are all factors an ALJ is to consider when addressing the
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medical opinion of a non-acceptable medical source. 20 C.F.R. § 404.1527(f).
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Plaintiff alleges that treatment records were submitted to the Appeals Council,
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which were erroneously excluded from the record. ECF No. 14 at 9-10. As
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discussed above, this Court does not have jurisdiction to address errors on the part
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of the Appeals Council in its refusal to review the newly submitted treatment
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records. However, as the record currently stands before this Court, there is no
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treatment documentation from Dr. Saffran. As such, the ALJ’s determination is
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The Social Security Administration has recently amended the Social
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Security Regulations so that advanced practice registered nurses and physician
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assistants are considered acceptable medical sources for claims brought after
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March 27, 2017. See 20 C.F.R. § 404.1502(a) (2017). Because Plaintiff filed her
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claim before this date, the amended version of the Social Security Regulations does
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not apply.
ORDER GRANTING DEFENDANT’S MOTION . . . - 9
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supported by substantial evidence and meets the germane standard.
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2.
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The ALJ found Dr. Saffran’s “opinion of psychological disability consisted
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Vague and Conclusory Statements
of vague and conclusory statements.” Tr. 30.
The Ninth Circuit has held that an ALJ may discredit treating physicians’
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opinions that are conclusory, brief, and unsupported by the record as a whole,
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Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Here, Dr. Saffran is not a
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physician or psychologist and her opinion is contained on a three page form
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without treatment records supporting her conclusions. Tr. 487-489. As addressed
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above, the ALJ is not required to meet the clear and convincing standard to reject
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her opinion. Additionally, the ALJ identified phrases used by Dr. Saffran that she
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deemed vague and conclusory: “[the claimant] tends to be quick to anger and
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leaves the session to calm down. She is difficult to treat using psychotropic
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medication due to her genetic profile.” Tr. 30. Therefore, the ALJ’s conclusion is
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supported by substantial evidence.
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Considering the Ninth Circuit has recognized this as a sufficient reason to
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reject the opinion of a treating physician, it meets the standard necessary to reject a
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non-acceptable medical source. As such, this Court finds the ALJ’s rationale
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sufficient.
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3.
Inconsistent with the Evidence
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The third and final reason the ALJ provided for rejecting the opinion of Dr.
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Saffran, that her statements were inconsistent with Plaintiff’s treatment records,
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examination findings, and activities, is legally sufficient. Inconsistency with the
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medical evidence is a germane reason. Bayliss v. Barnhart, 427 F.3d 1211, 1218
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(9th Cir. 2005).
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Here, the ALJ provided a citation to her decision in which Plaintiff’s
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treatment records, examination findings, and activities were summarized and
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concluded that Dr. Saffran’s statements were not consistent with these records. Tr.
ORDER GRANTING DEFENDANT’S MOTION . . . - 10
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30. Plaintiff argued that the evidence was not inconsistent and that the ALJ failed
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to set forth a detailed summary of the facts and the conflicting clinical evidence
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and state her interpretations. ECF No. 14 at 11-12.
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However, the need to set out “a detailed and through summary of the facts
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and conflicting clinical evidence, stating [her] interpretation thereof, and making
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findings,” is how an ALJ meets the specific and legitimate standard, See Thomas,
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278 F.3d at 957, and not the germane standard. Here, the ALJ’s summarization of
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the treatment records and her conclusion that it was inconsistent with treatment
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records is sufficient.
In conclusion, the Court finds no error in the ALJ’s treatment of Dr.
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Saffran’s opinion.
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D.
Lay Witness Testimony
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Plaintiff asserts that the ALJ failed to properly consider the statements from
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her husband, her mother, and her math tutor. ECF No. 14 at 14-17. Here, the ALJ
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considered the statements of Plaintiff’s husband, Matthew Deats, mother, Rhonda
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Hill, and math tutor, Charlotte Kelly. Tr. 28-29. The ALJ gave “some weight” to
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these statements finding that the statements were inconsistent with the medical
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evidence and Plaintiff’s activities. Id.
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The ALJ can reject the testimony of a lay witness by providing germane
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reasons. Dodrill, 12 F.3d at 919. Inconsistency with the medical evidence is a
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germane reason for discrediting the testimony of lay witnesses. Bayliss, 427 F.3d
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at 1218.
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Here, the ALJ pointed to specific medical records and activities that she
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found inconsistent with the lay witnesses’ statements of Plaintiff’s anxiety,
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attention, learning delays, and adaptation skills. Tr. 29. Plaintiff argues that the
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record can be read differently and the citations to the record the ALJ provided do
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not support her conclusions. ECF No. 14 at 17-18. However, it is not the Court’s
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role to second-guess the ALJ’s decision. Morgan v. Comm’r of Soc. Sec. Admin,
ORDER GRANTING DEFENDANT’S MOTION . . . - 11
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169 F.3d 595, 600 (9th Cir. 1999). Here, the ALJ provided legally sufficient
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reasons supported by substantial evidence to support her determination. As such,
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this Court will not disturb her findings.
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E.
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Credibility
Plaintiff contests the ALJ’s adverse credibility determination in this case.
ECF No. 14 at 17-20.
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It is generally the province of the ALJ to make credibility determinations,
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Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific
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cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent
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affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s
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testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d
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1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).
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“General findings are insufficient: rather the ALJ must identify what testimony is
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not credible and what evidence undermines the claimant’s complaints.” Lester, 81
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F.3d at 834.
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The ALJ found Plaintiff less than fully credible concerning the intensity,
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persistence, and limiting effects of her symptoms. Tr. 26. The ALJ reasoned that
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Plaintiff was less than fully credible because her symptom reporting was contrary
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to (1) her education records, (2) her medical records, and (3) her work history. Tr.
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26-28.
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1.
Education Records
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The ALJ’s first reason for finding Plaintiff less than fully credible, that
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Plaintiff’s allegations are inconsistent with her education records, is a specific,
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clear, and convincing reason to undermine Plaintiff’s credibility.
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Plaintiff argues that the ALJ misrepresented her education records and they
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actually support her assertions disability. ECF No. 14 at 17-18. However, a
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review of the records show that the ALJ was accurate. Her intelligence testing puts
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her in the low average range, but Dr. Lewis stated that “because of Noya’s wide
ORDER GRANTING DEFENDANT’S MOTION . . . - 12
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range of subtest scores, her Full Scale Verbal and Performance Index scores are an
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underestimate of her true abilities. Her Verbal Comprehension score of 98
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suggests that her general intelligence level is clearly within the normal range for
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her age.” Tr. 249. She contributed positively to class and was receiving grades
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ranging from A to C. Tr. 251. While Plaintiff makes repeated citations to the
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record to support her interpretation of the evidence, this Court will not disturb the
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ALJ’s determination. See Tackett, 180 F.3d at 1097 (If the evidence is susceptible
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to more than one rational interpretation, the court may not substitute its judgment
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for that of the ALJ.).
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2.
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The ALJ found that Plaintiff was less than fully credible, because the
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Medical Records
medical evidence was inconsistent with her allegations. Tr. 26-27.
Although it cannot serve as the sole ground for rejecting a claimant’s
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credibility, objective medical evidence is a “relevant factor in determining the
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severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261
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F.3d 853, 857 (9th Cir. 2001). Again, Plaintiff argues that in favor of a different
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interpretation of the evidence. ECF No. ECF No. 14 at 18-19. However, the ALJ
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made repeated citations to the record in support of her determination, Tr. 26-27,
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and this Court will not disturb a legally sufficient determination supported by
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substantial evidence. See Tackett, 180 F.3d at 1097.
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3.
Work History
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The ALJ found that Plaintiff’s ability to work prior to her onset date,
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complete her certification in early childhood education during the relevant time
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period, and babysit for multiple individuals during the relevant time period was
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inconsistent with her alleged disability. Tr. 28.
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Generally, a claimant’s ability to work can be considered in assessing
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credibility. Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
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2009). But the fact that a claimant tried to work for a short period of time and
ORDER GRANTING DEFENDANT’S MOTION . . . - 13
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failed because of her impairments should not be used to discredit the claimant.
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Lingenfelter v. Astrue, 504 F.3d 1028, 1038-1039 (9th Cir. 2007). In fact,
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evidence that a claimant tried to work and failed may support the claimant’s
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allegations of disabling pain. Id. at 1038.
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Here, Plaintiff testified that during the relevant time period, she attended
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college and received her certificate in early childhood education. Tr. 48-49. She
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also testified that she was babysitting in 2008. Tr. 45. Her husband reported that
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she was fired from this job. Tr. 338. She also testified that she attempted to work
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twice during the relevant time period and abruptly left both jobs after being hired
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due to feeling overwhelmed. Tr. 51-52. Her husband testified that she stayed
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home with their 21 month old son. Tr. 76. Despite the ALJ’s assertions to that
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these activities are inconsistent with her reported disability, these activities show
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that Plaintiff attempted to work and that these attempts were unsuccessful. As
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such, this reason does not meet the specific, clear and convincing standard. See
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Lingenfelter, 504 F.3d at 1038-1039. However, any error resulting from the ALJ’s
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reliance on this reason for finding Plaintiff less than fully credible is harmless error
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as the ALJ provided the previously discussed legally sufficient reasons for her
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determination. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (An
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error is harmless when “it is clear from the record that the . . . error was
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inconsequential to the ultimate nondisability determination.”).
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CONCLUSION
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Having reviewed the record and the ALJ’s findings, the Court finds the
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ALJ’s decision is supported by substantial evidence and free of harmful legal error.
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Accordingly, IT IS ORDERED:
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1.
Defendant’s Motion for Summary Judgment, ECF No. 19, is
GRANTED.
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2.
Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED.
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The District Court Executive is directed to file this Order and provide a copy
ORDER GRANTING DEFENDANT’S MOTION . . . - 14
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to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant
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and the file shall be CLOSED.
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DATED September 6, 2017.
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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE
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ORDER GRANTING DEFENDANT’S MOTION . . . - 15
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