Soukup v. Colvin

Filing 16

ORDER AFFIRMING THE COMMISSIONER by Hon. James P. Donohue. Pursuant to FRCP 25(d), Nancy A. Berryhill (now Acting Commissioner of Social Security) is substituted for Carolyn W. Colvin as defendant in this suit. All future filings by the parties should reflect this change. (KMP)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 8 9 10 11 12 Plaintiff, v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 13 14 NO. C16-1512-JPD DELORI SOUKUP, Plaintiff Delori Soukup appeals the final decision of the Commissioner of the Social 15 Security Administration (“Commissioner”) that denied her applications for Disability 16 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI 17 of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an 18 administrative law judge (“ALJ”). For the reasons set forth below, the Court AFFIRMS the 19 ALJ’s decision. 20 21 22 23 24 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin as defendant in this suit. The Clerk is directed to update the docket, and all future filings by the parties should reflect this change. ORDER - 1 I. 1 2 FACTS AND PROCEDURAL HISTORY Plaintiff is a 53-year-old woman with a college degree. Administrative Record (“AR”) 3 at 45, 47. Her past work experience includes employment as a property and acquisition 4 specialist. AR at 47-49, 232. At the time of the administrative hearing, Plaintiff was working 5 as a substitute middle school teacher. AR at 52-53. 6 On September 20, 2013, Plaintiff protectively filed a claim for DIB, alleging an onset 7 date of June 30, 2011. AR at 191-94. She protectively applied for SSI in June 2014. AR at 8 209-14. Plaintiff asserts that she is disabled due to bipolar disorder, paranoia, anxiety, mood 9 swings, and psychosis. AR at 231. 10 The Commissioner denied Plaintiff’s claims initially and on reconsideration. AR at 11 116-22, 129-36. Plaintiff requested a hearing, which took place on December 18, 2014. AR at 12 39-87. On March 29, 2015, the ALJ issued a decision finding Plaintiff not disabled and denied 13 benefits based on her finding that Plaintiff could perform a specific job existing in significant 14 numbers in the national economy. AR at 23-33. Plaintiff’s administrative appeal of the ALJ’s 15 decision was denied by the Appeals Council, AR at 1-5, making the ALJ’s ruling the “final 16 decision” of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On September 17 27, 2016, Plaintiff timely filed the present action challenging the Commissioner’s decision. 18 Dkt. 1, 3. II. 19 20 21 Jurisdiction to review the Commissioner’s decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). III. 22 23 24 JURISDICTION STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social security benefits when the ALJ’s findings are based on legal error or not supported by ORDER - 2 1 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th 2 Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is 3 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 4 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 5 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in 6 medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 7 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a 8 whole, it may neither reweigh the evidence nor substitute its judgment for that of the 9 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 10 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 11 must be upheld. Id. IV. 12 13 EVALUATING DISABILITY As the claimant, Ms. Soukup bears the burden of proving that she is disabled within the 14 meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th 15 Cir. 1999) (internal citations omitted). The Act defines disability as the “inability to engage in 16 any substantial gainful activity” due to a physical or mental impairment which has lasted, or is 17 expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 18 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if her impairments 19 are of such severity that she is unable to do her previous work, and cannot, considering her age, 20 education, and work experience, engage in any other substantial gainful activity existing in the 21 national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098- 22 99 (9th Cir. 1999). 23 24 The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ ORDER - 3 1 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At 2 step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at 3 any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step 4 one asks whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. 5 §§ 404.1520(b), 416.920(b).2 If she is, disability benefits are denied. If she is not, the 6 Commissioner proceeds to step two. At step two, the claimant must establish that she has one 7 or more medically severe impairments, or combination of impairments, that limit her physical 8 or mental ability to do basic work activities. If the claimant does not have such impairments, 9 she is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe 10 impairment, the Commissioner moves to step three to determine whether the impairment meets 11 or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 12 416.920(d). A claimant whose impairment meets or equals one of the listings for the required 13 twelve-month duration requirement is disabled. Id. 14 When the claimant’s impairment neither meets nor equals one of the impairments listed 15 in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s 16 residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the 17 Commissioner evaluates the physical and mental demands of the claimant’s past relevant work 18 to determine whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If 19 the claimant is able to perform her past relevant work, she is not disabled; if the opposite is 20 true, then the burden shifts to the Commissioner at step five to show that the claimant can 21 perform other work that exists in significant numbers in the national economy, taking into 22 23 24 2 Substantial gainful activity is work activity that is both substantial, i.e., involves significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R. § 404.1572. ORDER - 4 1 consideration the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§ 2 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the 3 claimant is unable to perform other work, then the claimant is found disabled and benefits may 4 be awarded. V. 5 DECISION BELOW 6 On March 20, 2015, the ALJ found: 7 1. The claimant meets the insured status requirements of the Act through December 31, 2017. 2. The claimant engaged in substantial gainful activity after the alleged onset date. 3. The claimant’s bipolar disorder with psychosis is a severe impairment. 4. The claimant does not have an impairment that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 5. The claimant has the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can understand, remember, and carry out simple, routine tasks. She should not work with the general public. She can have occasional, superficial contact with co-workers, but should work independently, not on tandem tasks. She is able to accept supervisory instructions. She needs a routine and predictable environment. 6. The claimant is unable to perform any past relevant work. 7. Considering the claimant’s age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that she can perform. 8. The claimant has not been under a disability, as defined in the Act, from June 30, 2011, through the date of the decision. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 AR at 25-33. VI. 22 ISSUES ON APPEAL 23 The principal issues on appeal are: 24 1. ORDER - 5 Whether the ALJ erred in assessing medical opinion evidence; and 2. 1 2 Whether the ALJ erred in discounting Plaintiff’s subjective testimony. Dkt. 11 at 1.3 VII. 3 4 5 A. DISCUSSION The ALJ did not err in discounting Plaintiff’s subjective testimony. The ALJ discounted Plaintiff’s subjective testimony for a number of reasons: (1) the 6 medical evidence was inconsistent with her allegations; (2) her activities were inconsistent 7 with her allegations; and (3) her lack of candor about her work activity at the hearing. AR at 8 28-30. Plaintiff argues that the ALJ’s reasoning was not clear and convincing, as required in 9 the Ninth Circuit. 10 1. 11 As noted above, it is the province of the ALJ to determine what weight should be Legal standards 12 afforded to a claimant’s testimony, and this determination will not be disturbed unless it is not 13 supported by substantial evidence. A determination of whether to accept a claimant’s 14 subjective symptom testimony requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; 15 Smolen, 80 F.3d at 1281. First, the ALJ must determine whether there is a medically 16 determinable impairment that reasonably could be expected to cause the claimant’s symptoms. 17 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces 18 medical evidence of an underlying impairment, the ALJ may not discredit the claimant’s 19 testimony as to the severity of symptoms solely because they are unsupported by objective 20 21 22 23 24 3 Although Plaintiff also challenges the ALJ’s step-five findings, in doing so she reiterates arguments addressed elsewhere. Dkt. 11 at 15. Thus, this issue will not be addressed separately. Plaintiff also challenges the ALJ’s step three findings, arguing that if a challenged medical opinion had been credited, it could have supported a finding that Plaintiff met Listing 12.03. Dkt. 11 at 1, 9-11. Because this issue is enveloped within Plaintiff’s challenges to the ALJ’s assessment of that medical opinion, this issue need not be addressed separately. ORDER - 6 1 medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick v. 2 Chater, 157 F.3d 715, 722 (9th Cir. 1988). Absent affirmative evidence showing that the 3 claimant is malingering, the ALJ must provide “clear and convincing” reasons for rejecting the 4 claimant’s testimony. Burrell v. Colvin 775 F.3d 1133, 1136-37 (9th Cir. 2014) (citing Molina 5 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). See also Lingenfelter v. Astrue, 504 F.3d 6 1028, 1036 (9th Cir. 2007). 7 When evaluating a claimant’s subjective symptom testimony, the ALJ must specifically 8 identify what testimony is not credible and what evidence undermines the claimant’s 9 complaints; general findings are insufficient. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 10 722. The ALJ may consider “ordinary techniques of credibility evaluation,” including a 11 claimant’s reputation for truthfulness, inconsistencies in testimony or between testimony and 12 conduct, daily activities, work record, and testimony from physicians and third parties 13 concerning the nature, severity, and effect of the alleged symptoms. Thomas, 278 F.3d at 958- 14 59 (citing Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)). 15 2. 16 Plaintiff contends that the ALJ did not specifically explain how the medical evidence Medical evidence 17 contradicted her testimony, and that the ALJ’s summary of the evidence fails to constitute a 18 clear and convincing reason to discount her testimony. Dkt. 11 at 13. 19 The Court disagrees. The ALJ summarized the medical evidence in order to show that 20 despite Plaintiff’s conditions and occasional flares of symptoms, she nonetheless retained 21 functionality. AR at 28, 30 (“While the treatment record shows that the claimant has paranoia 22 and has experienced brief periods of intense symptomology, it also shows that she has 23 maintained a robust regiment of daily activities including school and work.”). The ALJ 24 ORDER - 7 1 pointed to evidence showing that medication and counseling resolved Plaintiff’s symptoms. 2 Id. 3 Plaintiff argues that her symptoms simply waxed and waned, and that the ALJ ignored 4 that cycle when finding that her symptoms improved. Dkt. 15 at 6. But as the ALJ found, the 5 medical evidence actually demonstrates that Plaintiff’s symptoms flared during periods of 6 2011 and 2012, and then stabilized via medication and counseling since that time. See AR at 7 28, 30. Improvement with treatment is a clear and convincing reason to discount a claimant’s 8 subjective testimony. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (medications, treatments 9 or other methods used to alleviate symptoms are “an important indicator of the intensity and 10 persistence of your symptoms”); Warre v. Comm’r of Social Sec. Admin., 439 F.3d 1001, 1006 11 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not 12 disabling for the purpose of determining eligibility for SSI benefits.”). Plaintiff does not point 13 to any evidence showing that her symptoms continued to flare during a time that she was 14 compliant with her medication and counseling regimen, or explain how the ALJ’s 15 interpretation of the medical evidence was otherwise not based on substantial evidence or 16 drawn from reasonable inferences. Accordingly, the court finds that this reason supports the 17 ALJ’s determination regarding Plaintiff’s subjective testimony. 18 3. 19 The ALJ found that Plaintiff’s activities were inconsistent with her allegations of Activities 20 disabling functional limitations. AR at 30. Although Plaintiff contends that the ALJ did not 21 explain how her activities contradicting her testimony (Dkt. 11 at 13), the ALJ noted some 22 specific inconsistencies. For example, the ALJ stated that Plaintiff reported at the hearing that 23 she yells at others and experiences ongoing paranoia, but that the record showed that Plaintiff 24 participated in many social activities throughout the adjudicated period, and that Plaintiff’s ORDER - 8 1 providers noted that despite her paranoia, she maintained a high level of functioning. AR at 2 29-30 (citing AR at 296). The ALJ also noted that Plaintiff was working at the time of the 3 hearing, which contradicted her testimony that she was unable to interact with others. AR at 4 29. 5 Plaintiff argues that the ALJ’s findings overlook the difficulties she experienced at 6 school, which demonstrate that she did have social limitations. Dkt. 15 at 7 (citing AR at 51 7 (describing a complaint made against Plaintiff that led her to withdraw from school)). The 8 increase in symptoms that led Plaintiff to withdraw from school apparently occurred during a 9 time that she was not taking her medication. AR at 381. Plaintiff’s increased symptoms while 10 not taking medication does not undermine the ALJ’s reasoning regarding her ability to 11 participate in school activities. 12 Plaintiff also alleges that her school provided accommodations for her. Dkt. 11 at 13 13 (citing AR at 591 (a treatment note indicating that Plaintiff brought “paper to get special 14 consideration at school”)). Another provider’s report mentions that Plaintiff was allowed extra 15 time and privacy during tests. AR at 621. These accommodations are not relevant to the 16 ALJ’s reasoning regarding Plaintiff’s school activities, which is that Plaintiff was able to 17 interact with other people at school, despite allegations of an inability to interact. Furthermore, 18 as noted by the Commissioner, the school accommodations are arguably consistent with the 19 ALJ’s RFC assessment, and thus do not show that the ALJ erred in evaluating Plaintiff’s 20 symptoms. See Dkt. 14 at 14. 21 4. 22 The ALJ found that Plaintiff’s 23 current work history is inconsistent with her allegations. Not only is the work itself inconsistent, the claimant initially did not disclose her current work activity during the hearing. She only admitted to her current work after being 24 ORDER - 9 Plaintiff’s current work questioned several times and appeared to be attempting to hide this work activity. 1 2 3 4 5 6 AR at 29. Plaintiff’s opening brief discusses prior work, which is not relevant to the ALJ’s reasoning, which focuses only on her current work. Dkt. 11 at 14. Regarding her current work, Plaintiff argues that “the ALJ did not even find that this work rose to the level o[f] substantial gainful activity[,]” and thus was not a convincing basis to reject her reports. Dkt. 11 at 14-15. 7 8 9 10 11 12 13 Plaintiff misstates the ALJ’s findings. The ALJ indeed found that Plaintiff’s current work constituted substantial gainful activity, but nonetheless proceeded through the remainder of the five-step disability inquiry because the work was performed sporadically throughout the adjudicated period. See AR at 25. Furthermore, the ALJ’s findings regarding Plaintiff’s lack of candor is a clear and convincing reason to discount her subjective testimony. See Lira v. Astrue, 2010 WL 3789564, at *7 (C.D. Cal. Sep. 27, 2010) (citing Thomas, 278 F.3d at 959; and Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). 14 15 16 17 18 19 20 21 22 23 Because the ALJ provided multiple clear and convincing reasons to discount Plaintiff’s subjective testimony, the ALJ’s findings in this regard are affirmed. B. The ALJ did not err in assessing the medical opinion evidence. Plaintiff challenges the ALJ’s assessment of opinions written by examining psychiatrist Sara Clark, M.D.; treating physician Saritha Reddy, M.D.; and the State agency reviewing consultants. The Court will address each disputed opinion in turn. 1. Legal standards As a matter of law, more weight is given to a treating physician’s opinion than to that of a non-treating physician because a treating physician “is employed to cure and has a greater opportunity to know and observe the patient as an individual.” Magallanes, 881 F.2d at 751; 24 ORDER - 10 1 see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating physician’s opinion, 2 however, is not necessarily conclusive as to either a physical condition or the ultimate issue of 3 disability, and can be rejected, whether or not that opinion is contradicted. Magallanes, 881 4 F.2d at 751. If an ALJ rejects the opinion of a treating or examining physician, the ALJ must 5 give clear and convincing reasons for doing so if the opinion is not contradicted by other 6 evidence, and specific and legitimate reasons if it is. Reddick, 157 F.3d at 725. “This can be 7 done by setting out a detailed and thorough summary of the facts and conflicting clinical 8 evidence, stating his interpretation thereof, and making findings.” Id. (citing Magallanes, 881 9 F.2d at 751). The ALJ must do more than merely state his/her conclusions. “He must set forth 10 his own interpretations and explain why they, rather than the doctors’, are correct.” Id. (citing 11 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). Such conclusions must at all times 12 be supported by substantial evidence. Reddick, 157 F.3d at 725. 13 The opinions of examining physicians are to be given more weight than non-examining 14 physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Like treating physicians, the 15 uncontradicted opinions of examining physicians may not be rejected without clear and 16 convincing evidence. Id. An ALJ may reject the controverted opinions of an examining 17 physician only by providing specific and legitimate reasons that are supported by the record. 18 Bayliss, 427 F.3d at 1216. 19 Opinions from non-examining medical sources are to be given less weight than treating 20 or examining doctors. Lester, 81 F.3d at 831. However, an ALJ must always evaluate the 21 opinions from such sources and may not simply ignore them. In other words, an ALJ must 22 evaluate the opinion of a non-examining source and explain the weight given to it. Social 23 Security Ruling (“SSR”) 96-6p, 1996 WL 374180, at *2 (Jul. 2, 1996). Although an ALJ 24 generally gives more weight to an examining doctor’s opinion than to a non-examining ORDER - 11 1 doctor’s opinion, a non-examining doctor’s opinion may nonetheless constitute substantial 2 evidence if it is consistent with other independent evidence in the record. Thomas, 278 F.3d at 3 957; Orn, 495 F.3d at 632-33. 4 2. 5 Dr. Clark examined Plaintiff in November 2013, and her medical source statement 6 7 8 9 10 11 12 13 14 15 Drs. Clark & Reddy reads as follows, in pertinent part: The claimant does have the ability to perform very simple and repetitive tasks that have to do with [activities of daily living], however, she would have more difficulty completing detailed and complex tasks. This is based on her concrete thinking, difficulties with concentration, and difficulty performing a simple, 3step command. The claimant cannot accept instructions from supervisors consistently, as well as interact with coworkers and the public at this time. This is based on her overall affect and demeanor and paranoid ideation. The claimant cannot perform work activities on a consistent basis with or without additional supervision. This is based on her subjective psychiatric symptoms and her interactions with me today. The claimant cannot complete a normal workday and workweek without interruptions from her psychiatric condition. I anticipate that the claimant would not be able to deal well with the usual stress encountered in a competitive work environment at this time. AR at 596-601. Plaintiff’s treating physician Dr. Reddy completed a form checkbox opinion, indicating 16 that Plaintiff’s bipolar disorder causes moderate limitations when not symptomatic, and 17 marked/extreme limitations when symptomatic. AR at 627-34. 18 The ALJ discounted the opinions of Drs. Clark and Reddy, finding them to be 19 inconsistent with Plaintiff’s longitudinal treatment history, her mental status examinations, and 20 her daily activities. AR at 29. Specifically, the ALJ noted that the opinions were inconsistent 21 with Plaintiff’s “consistent reports as calm, cooperative, and euthymic moods[.]” Id. (citing 22 AR at 580-95). The ALJ also found the opinions to be inconsistent with Plaintiff’s ability to 23 live independently, and work in 2014. AR at 29. Lastly, the ALJ noted that Plaintiff reported 24 ORDER - 12 1 that “things are going well and denied depression, anxiety, or psychosis throughout 2013 and 2 2014[.]” Id. (citing AR at 580-95, 639-76). 3 Plaintiff argues that the ALJ’s reasoning was erroneous because Dr. Clark did not rely 4 only on Plaintiff’s self-report. Dkt. 11 at 4. This argument is inapposite, because the ALJ did 5 not discount Dr. Clark’s opinion on that basis. See AR at 29. Plaintiff also argues that the 6 ALJ’s reasoning was not sufficiently specific because the ALJ did not explain how the 7 treatment record or Plaintiff’s activities were contradicted by Dr. Clark’s opinion, but she 8 overlooks the specific examples provided by the ALJ. Dkt. 11 at 4-5; AR at 29 (addressing 9 how Plaintiff was described in her treatment records, and what symptoms Plaintiff reported to 10 providers, as well as her ability to live independently and work). The ALJ did not simply use 11 boilerplate language, as Plaintiff suggests, but identified the inconsistencies she had in mind. 12 Plaintiff also argues that the ALJ erred in failing to give proper deference to Dr. 13 Reddy’s opinion, because she is Plaintiff’s treating physician. Dkt. 11 at 11. But an ALJ does 14 not err in discounting an opinion, even that of a treating physician, that is inconsistent with the 15 record. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 16 Finally, Plaintiff argues that the ALJ erred in failing to consider that her symptoms 17 waxed and waned, and by focusing only on evidence during an isolated period of 18 improvement. Dkt. 11 at 11. She cites medical records that she contends contradict the ALJ’s 19 finding that her symptoms improved in 2013 and 2014, but the records cited do not support 20 Plaintiff’s argument. Dkt. 15 at 3 (citing AR at 599, 670, 668). The first record, which 21 Plaintiff contends is an examining physician’s report that dates to a few months before Dr. 22 Clark’s exam (Dkt. 15 at 3), but the citation leads instead to Dr. Clark’s report, which indicates 23 some paranoia but no delusions. See AR at 599. Next, Plaintiff refers to a treatment note that 24 she contends establishes the existence of a psychotic delusions, but the treatment note mentions ORDER - 13 1 only delusions in the past and specifically indicates that Plaintiff was not experiencing 2 delusions at that time. AR at 670, 674. Likewise, although Plaintiff did report feeling “out of 3 control” in January 2014, she did not report any psychosis. AR at 668. Thus, Plaintiff’s 4 citations to the record do not show that her psychosis flared in 2013 or 2014. 5 4. 6 The ALJ gave significant weight to the opinions of State agency psychological State agency consultants 7 consultants, finding the opinions to be consistent with the treatment record as well as 8 Plaintiff’s current work as a substitute teacher. AR at 29. Plaintiff argues that the ALJ erred in 9 purporting to credit the State agency opinions, but in failing to explain why she did not account 10 for their opinion that Plaintiff would have some difficulty maintaining concentration, 11 persistence, and pace for a normal workday/workweek. See AR at 97, 110. Although the State 12 agency consultants concluded that Plaintiff would be able to persist for the majority of the 13 time, Plaintiff posits that the opinions insinuate that she could not persist for an entire workday 14 and would be therefore disabled, in light of vocational expert (“VE”) testimony that a person 15 who is off-task for 15% or more of a day is unemployable. Dkt. 11 at 12 (referencing AR at 16 85-86). 17 Plaintiff’s interpretation of the State agency opinion could be plausible, but it is also 18 reasonable to interpret the State agency opinions as the ALJ did, to indicate that Plaintiff could 19 persist sufficiently to maintain employment, given that the consultants opined that she was not 20 disabled. See AR at 99, 113. Furthermore, Plaintiff only speculates that the State agency 21 opinion amounts to an indication that she would be off-task for 15% of a workday; the State 22 agency consultants did not quantify the amount of time during which Plaintiff would have 23 difficulty maintaining concentration, persistence, and pace. Thus, it is not clear that the VE 24 testimony pertains to the consultants’ opinions. Because Plaintiff has not shown that the ALJ’s ORDER - 14 1 interpretation of the State agency opinions was unreasonable, the ALJ’s interpretation must be 2 affirmed. See Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) 3 (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s 4 conclusion that must be upheld.”). VIII. 5 CONCLUSION 6 For the foregoing reasons, the Court AFFIRMS the Commissioner’s decision. 7 DATED this 13th day of April, 2017. A 8 9 JAMES P. DONOHUE Chief United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER - 15

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?