Shipman v. Berryhill

Filing 13

ORDER affirming the Commissioner's decision; directing the Clerk of Court to enter judgment in favor of defendant and against plaintiff. Signed by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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STEVEN LEE SHIPMAN,
Plaintiff,

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v.

11 NANCY A. BERRYHILL, Deputy

Case No. C17-6042 RSL
ORDER AFFIRMING
DEFENDANT’S DECISION TO
DENY BENEFITS

Commissioner of Social Security for
12 Operations,
Defendant.

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Plaintiff, Steven Lee Shipman, appeals the final decision of the Commissioner of

15 the Social Security Administration (“Commissioner”), which denied his application for
16 Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the
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“Act”), 42 U.S.C. §§ 1381-83f, after a hearing before an administrative law judge
(“ALJ”). For the reasons set forth below the Commissioner’s decision is AFFIRMED.
I.

FACTS AND PROCEDURAL HISTORY

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Plaintiff is currently 51 years old, has a high school education, and has worked as
a lot attendant. Administrative Record (“AR”) at 492. Plaintiff protectively filed an
application for SSI on March 9, 2012, alleging disability as of December 31, 2000. AR at

ORDER AFFIRMING DEFENDANT’S
DECISION TO DENY BENEFITS - 1

1 60, 87. Plaintiff asserted he was disabled due to HIV, back pain, fibromyalgia, hepatitis
2 C, depression and hypertension. AR at 60.
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The Commissioner denied plaintiff’s claims initially and on reconsideration. AR
at 89, 95. Plaintiff requested a hearing, which took place on March 11, 2014. AR at 29.
On June 4, 2014, the ALJ issued a decision finding that plaintiff was not disabled based
on her finding that plaintiff could perform work available in significant numbers in the

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national economy. AR at 16-24. Plaintiff’s request for review by the Appeals Council
was denied on December 29, 2015. AR at 1. On February 22, 2016, plaintiff filed an
action in this district challenging the Commissioner’s decision. AR at 577. On July 28,

11 2016, based on the stipulation of the parties, United States District Judge Robert J. Bryan
12 reversed the Commissioner’s decision and remanded the case to the Commissioner for a
13 de novo hearing pursuant to sentence four of 42 U.S.C. § 405(g). AR at 580-81. The
14 Appeals Council vacated the Commissioner’s decision and remanded it to the ALJ. AR
15 at 549-50.
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The ALJ held a new hearing on March 7, 2017. AR at 513. On August 30, 2017,
the ALJ issued a decision finding plaintiff disabled but finding that plaintiff’s substance
use disorder was a contributing factor because plaintiff would not be disabled if he
stopped the substance use, and therefore plaintiff was not disabled within the meaning of

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the Act. AR at 506. Because plaintiff did not ask the Appeals Council for review and the
Council did not assume jurisdiction, the ALJ’s ruling became the “final decision” of the
Commissioner as that term is defined by 42 U.S.C. § 405(g). On December 13, 2017,

ORDER AFFIRMING DEFENDANT’S
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1 plaintiff filed the present action challenging the Commissioner’s decision. Dkt. 1.
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II.

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 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 (9th Cir. 2005). “Substantial evidence” is more than a scintilla, less than a

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preponderance, and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for

11 determining credibility, resolving conflicts in medical testimony, and resolving any other
12 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
13 While the Court is required to examine the record as a whole, it may neither reweigh the
14 evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart,
15 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one
16 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id.
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III.

EVALUATING DISABILITY

As the claimant, plaintiff bears the burden of proving that he is disabled within the
meaning of the Act. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The Act

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defines disability as the “inability to engage in any substantial gainful activity” due to a
physical or mental impairment that has lasted, or is expected to last, for a continuous
period of not less than 12 months or is expected to end in death. 42 U.S.C.

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1 § 1382c(a)(3)(A). A claimant is disabled under the Act only if her impairments are of
2 such severity that she is unable to do her previous work, and cannot, considering her age,
3 education, and work experience, engage in any other substantial gainful activity existing
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in the national economy. 42 U.S.C. § 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d
1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five-step sequential evaluation process for

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determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R.
§ 416.920. The claimant bears the burden of proof during steps one through four. At
step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled

11 at any step in the sequence, the inquiry ends without the need to consider subsequent
12 steps. Step one asks whether the claimant is presently engaged in “substantial gainful
13 activity.” 20 C.F.R. § 416.920(b).1 If she is, disability benefits are denied. If she is not,
14 the Commissioner proceeds to step two. Id. At step two, the claimant must establish that
15 she has one or more medically severe impairments, or combination of impairments, that
16 limit her physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c).
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If the claimant does not have such impairments, she is not disabled. Id. If the claimant
does have a severe impairment, the Commissioner moves to step three to determine
whether the impairment meets or equals any of the listed impairments described in the

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regulations. 20 C.F.R. § 416.920(d). A claimant whose impairment meets or equals one

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Substantial gainful activity is work activity that is both substantial, i.e., involves
23 significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R.
§ 416.972.
ORDER AFFIRMING DEFENDANT’S
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1 of the listings for the required 12-month duration is disabled. Id.
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When the claimant’s impairment neither meets nor equals one of the impairments

3 listed in the regulations, the Commissioner must proceed to step four and evaluate the
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claimant’s residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). Here, the
Commissioner evaluates the physical and mental demands of the claimant’s past relevant
work to determine whether she can still perform that work. 20 C.F.R. § 416.920(f). If

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the claimant is able to perform her past relevant work, she is not disabled; if the opposite
is true, then the burden shifts to the Commissioner at step five to show that the claimant
can perform other work that exists in significant numbers in the national economy, taking

11 into consideration the claimant’s RFC, age, education, and work experience. 20 C.F.R.
12 § 416.920(g); Tackett, 180 F.3d at 1099-1100. If the Commissioner finds the claimant is
13 unable to perform other work, then the claimant is found disabled.
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If the Commissioner finds the claimant is disabled and there is medical evidence

15 of a substance use disorder, the Commissioner must determine if the substance use
16 disorder is a contributing factor material to the determination of disability. In making
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this determination, the Commissioner must evaluate the extent to which the claimant’s
mental and physical limitations would remain if the claimant stopped the substance use.
If the remaining limitations would not be disabling, the substance use disorder is a

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contributing factor material to the determination of disability, and the claimant is not
disabled. 20 C.F.R. § 416.935.
IV.

ORDER AFFIRMING DEFENDANT’S
DECISION TO DENY BENEFITS - 5

DECISION BELOW

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On August 30, 2017, the ALJ issued a decision finding the following:

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1.

The claimant has not engaged in substantial gainful activity since
March 9, 2012, the application date (20 C.F.R. § 416.971 et seq.).

2.

The claimant has the following severe impairments: degenerative
disc disease, left lateral epicondylitis, status post excision of right
radial head for capitellar arthritis, HIV, depression, anxiety, and
alcohol abuse (20 C.F.R. § 416.920(c)).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. § 416.920(d), 416.925, and 416.926).

4.

Based on all of the impairments, including the substance use
disorder, the claimant has the RFC to perform light work as defined
in 20 C.F.R. § 416.967(b) except he can lift and carry 10 pounds
frequently and 20 pounds occasionally; can stand and walk for at
least six hours in an eight-hour workday and can sit for at least six
hours in an eight-hour workday but would need to alternate sitting
and standing (i.e., can sit for an hour and then stand for five to ten
minutes or could stand for an hour and then sit for five to ten
minutes) without needing to leave the workstation. He can
occasionally balance, stoop, kneel, crouch, and crawl. He can
occasionally perform overhead reaching bilaterally and can
frequently handle and finger bilaterally. He should avoid exposure
to excessive vibration, hazards such as unprotected heights, and
dangerous machinery. He can understand, remember, and carry out
tasks or instructions consistent with occupations with a specific
vocational preparation (SVP) level of 1 or 2. He can have
occasional, superficial incidental contact with the public and can
work in proximity to coworkers but should not perform tasks that
require teamwork. The claimant would need to take frequent
unscheduled breaks such that he would miss 16 hours of work per
month.

5.

The claimant is unable to perform any past relevant work (20 C.F.R.
§ 416.965).

6.

Considering the claimant’s age, education, and work experience, and
RFC, there are no jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R.

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§§ 416.960(c) and 416.966).
7.

If the claimant stopped the substance use, the remaining limitations
would cause more than a minimal impact on his ability to perform
basic work activities; therefore, the claimant would continue to have
a severe impairment or combination of impairments.

8.

If the claimant stopped the substance use, the claimant would not
have an impairment or combination of impairments that meets or
medically equals any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. § 416.920(d)).

9.

If the claimant stopped the substance use, the claimant would have
the same RFC, except that he would not need to take frequent
unscheduled breaks such that he would miss 16 hours of work per
month.

10.

If the claimant stopped the substance use, the claimant would
continue to be unable to perform past relevant work (20 C.F.R.
§ 416.965).

11.

If the claimant stopped the substance use, considering the claimant’s
age, education, work experience, and residual functional capacity,
there would be a significant number of jobs in the national economy
that the claimant could perform (20 C.F.R. §§ 416.920(c) and
416.966).

12.

The substance use disorder is a contributing factor material to the
determination of disability because the claimant would not be
disabled if he stopped the substance use (20 C.F.R. §§ 416.920(g)
and 416.935). Because the substance use disorder is a contributing
factor material to the determination of disability, the claimant has
not been disabled, as defined in the Act, from the application date
through the date of the ALJ’s decision.

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AR at 489-506.

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V.

ISSUES ON APPEAL

The issues on appeal are:
A.

Whether the ALJ erred in rejecting plaintiff’s testimony.

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DECISION TO DENY BENEFITS - 7

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B.

Whether the ALJ erred in rejecting the opinions of Erum Khaleeq, M.D.

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C.

Whether the ALJ erred in rejecting the opinions of Wendy Hartinger,

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Psy.D., and Renee Eisenhauer, Ph.D.
D.

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Whether the ALJ erred in rejecting the opinions of Alysa A. Ruddell,
Ph.D., and Aaron Burdge, Ph.D.

E.

Whether the ALJ erred in rejecting the testimony of lay witness Dennise

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Grochow.

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Dkt. 10 at 1.
VI.

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DISCUSSION

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A. Plaintiff’s Testimony

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Plaintiff argues that the ALJ erred in rejecting his testimony on the severity of his

13 symptoms. See Dkt. 10 at 15.
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If the claimant has presented objective medical evidence of an impairment that

15 could reasonably be expected to produce the pain or other symptoms alleged, and there is
16 no evidence of malingering, the ALJ may only reject the claimant’s testimony “‘by
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offering specific, clear and convincing reasons for doing so. This is not an easy
requirement to meet.’” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting
Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). In evaluating the ALJ’s

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determination at this step, the court may not substitute its judgment for that of the ALJ.
Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). As long as the ALJ’s decision is
supported by substantial evidence, it should stand, even if some of the ALJ’s reasons for

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1 discrediting a claimant’s testimony fail. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th
2 Cir. 2012) (ALJ’s decision to discredit the claimant’s testimony should be upheld if the
3 ALJ provided valid reasons supported by the record even if the ALJ also provided one or
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more invalid reasons).
Here, plaintiff reported he cannot stand, sit, lift or walk much. AR at 203.
Plaintiff testified that he gets anxious around big crowds and sometimes even at home.

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AR at 528. Headaches make it difficult to concentrate on a book or movie and caused
him to drop out of community college. AR at 528-29. He has learned to use his left hand
to reinforce his right, because in the past he has dropped glasses when using his right

11 hand only. AR at 530. On a scale of one to ten, his pain is always a four and about once
12 a month it goes up to eight or nine. AR at 531. The ALJ found that plaintiff’s medically
13 determinable impairments could reasonably be expected to cause the alleged symptoms,
14 but the ALJ discounted the severity of the alleged limitations because the limitations
15 were inconsistent with plaintiff’s activities, the medical record showed improvement with
16 minimal treatment, and medical findings reflected generally modest impairments. AR at
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496, 499, 500.
First, an ALJ may use a claimant’s activities to form the basis of an adverse
credibility determination if they “contradict his other testimony.” See Orn v. Astrue, 495

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F.3d 625, 639 (9th Cir. 2007). Here, as the ALJ noted, in July 2016 plaintiff reported
“filling [his] time riding [his] bike and fishing.” AR at 1050. The ALJ reasonably
inferred that this contradicted plaintiff’s March 2017 testimony that he had only ridden

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1 his bike twice, for ten minutes maximum. See AR at 537. Also, in April 2016 plaintiff
2 shared in group therapy that he was “returning to school full time.” AR at 1034. At the
3 March 2017 hearing, plaintiff testified that he took three classes, passing two of them,
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then dropped out the following quarter. AR at 528-29. The ALJ reasonably inferred that
this required “an ability to adhere to a schedule and also to be in public settings,” at least
enough to pass two classes, contradicting plaintiff’s allegations of disabling anxiety in

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large groups. AR at 501. The Court concludes the ALJ reasonably discounted plaintiff’s
testimony because it was contradicted by his activities.
Other activities the ALJ cited did not, however, contradict plaintiff’s alleged

11 limitations. Plaintiff once reported “caretaking his Dad due to his heart condition” but
12 there is no evidence on what tasks this caretaking entailed. AR at 1059. Plaintiff said
13 “he would be willing to take a job if it would not make him too fatigued.” AR at 329.
14 The statement is so conditional that it is virtually meaningless. Plaintiff told a treatment
15 provider in January 2014 that he was “going to start a new job in a convenience store
16 soon.” AR at 378. The record reflects a brief, unsuccessful work attempt in 2014 that
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ended due to plaintiff’s pain. AR at 519-20. The ALJ points to a substance abuse
treatment discharge plan requiring plaintiff to seek employment, but the plan does not
purport to consider plaintiff’s pain or other impairments to determine if he is capable of

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working. AR at 734. Plaintiff testified he walks around a lake that is a quarter or an
eighth of a mile around, but this is not inconsistent with his testimony that he can walk
for 20 minutes before needing to rest. AR at 1212, 524. The ALJ cited plaintiff’s reports

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1 that he volunteered with his church, “went to appointments, had lunch at the Salvation
2 Army, grocery shopped, attended AA, and did chores” but, with no further information,
3 none of those activities are necessarily inconsistent with plaintiff’s testimony. AR at 501
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(citing AR at 740, 1144). The erroneous inclusion of these examples, however, is
harmless. See Molina, 674 F.3d at 1115.
Second, impairments that can be managed effectively are not disabling. See

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Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)
(“Impairments that can be controlled effectively with medication are not disabling for the
purpose of determining eligibility for SSI benefits.”). Plaintiff’s anxiety and depression

11 were “stable” on Zoloft, which suggests at least modest improvement. AR at 906. And
12 plaintiff testified that when he feels “really anxious and overwhelmed” he takes
13 Hydroxyzine and ten minutes later he is “okay.” AR at 528. Other treatments the ALJ
14 identified were not effective, however. Plaintiff had right elbow surgery in October
15 2013, but reported continued elbow pain and hand numbness months later. AR at 498
16 (citing AR at 442, 428). Neck pain and headaches, after unsuccessful treatment with
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ibuprofen, were treated with sumatriptan but the record does not show whether
sumatriptan worked. AR at 479-80, 477-78. Cervical steroid injection reduced neck
pain, but the pain gradually returned. AR at 847. Again, inclusion of erroneous

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examples was harmless error.
Third, an ALJ may discount a claimant’s testimony in part due to a lack of
supporting objective medical findings. See Rollins v. Massanari, 261 F.3d 853, 857 (9th

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1 Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground that it
2 is not fully corroborated by objective medical evidence, the medical evidence is still a
3 relevant factor in determining the severity of the claimant’s pain and its disabling
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effects.”); see also 20 C.F.R. § 416.929(c)(2). Here, however, several clinicians
documented numerous abnormal clinical findings. The ALJ noted that several doctors
found normal gait, strength and sensation, but failed to explain why these outweighed

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their findings of radiculopathy, crepitus, positive straight leg raise test, and abnormalities
in range of motion, reflexes and balance. AR at 497, 322. Merely listing the normal and
abnormal findings does not explain why the ALJ considered the normal results more

11 significant. See Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988) (“The ALJ
12 must do more than offer his conclusions. He must set forth his own interpretations and
13 explain why they, rather than the doctors’, are correct.”).
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The Court concludes the ALJ did not err by discounting plaintiff’s symptom

15 testimony. The inclusion of erroneous reasons was harmless error because the ALJ
16 provided the clear and convincing reasons, supported by substantial evidence, that
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plaintiff’s activities contradicted his alleged limitations and that his mental impairments
were effectively treated with medication. See Carmickle v. Comm’r, Soc. Sec. Admin.,
533 F.3d 1155, 1162-63 (9th Cir. 2008) (where an ALJ provides at least one valid reason

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supported by substantial evidence to discount a claimant’s credibility, inclusion of other
erroneous reasons is harmless).
B. Medical Opinion Evidence

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Plaintiff argues the ALJ erred by discounting the opinions of examining doctors

2 Erum Khaleeq, M.D., Wendy Hartinger, Psy.D., and Alysa A. Ruddell, Ph.D., and
3 nonexamining doctors Renee Eisenhauer, Ph.D., and Aaron Burdge, Ph.D. Dkt. 10 at 1.
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The ALJ is responsible for resolving any conflicts or ambiguities in the medical evidence.
See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the medical evidence
in the record is not conclusive, “questions of credibility and resolution of conflicts” are

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solely the functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
In such cases, the ALJ’s conclusion must be upheld as long as it is supported by
substantial evidence. Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir.

11 1999).
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An ALJ may only reject the contradicted opinion of an examining doctor based on

13 specific and legitimate reasons that are supported by substantial evidence in the record.
14 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). An ALJ “may reject the opinion of
15 a non-examining physician by reference to specific evidence in the medical record.”
16 Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citing Gomez v. Chater, 74 F.3d
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967, 972 (9th Cir. 1996)).
1.

Erum Khaleeq, M.D.

Dr. Khaleeq performed a psychological examination of plaintiff on May 26, 2012.
AR at 324. Dr. Khaleeq diagnosed plaintiff with “[d]epression due to general medical
condition.” AR at 326. She opined that he “may not be able to interact with supervisors
or the public,” “may have difficulty maintaining regular attendance in the workplace,”

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1 “could not perform work activities on a consistent basis,” and “may have difficulty
2 performing repetitive and complex tasking….” AR at 327. She further opined that the
3 “[u]sual stress encountered in the workplace would further aggravate his psychiatric
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condition.” AR at 327. The ALJ gave Dr. Khaleeq’s opinions “little weight” because
they were based primarily on plaintiff’s self-reports, which the ALJ found were
inconsistent with “modest mental status examination findings and improvements with

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minimal treatment”; and because the opinions were inconsistent with plaintiff’s activities
and appropriate interpersonal interactions. AR at 503.
a)

Based on Self-Reports

An ALJ may discount a treating provider’s opinion if it is “based ‘to a large
extent’ on an applicant’s self-reports and not on clinical evidence, and the ALJ finds the

13 applicant not credible.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quoting
14 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)). However, “the rule
15 allowing an ALJ to reject opinions based on self-reports does not apply in the same
16 manner to opinions regarding mental illness.” Buck v. Berryhill, 869 F.3d 1040, 1049
17 (9th Cir. 2017). Psychiatric evaluations “will always depend in part on the patient’s self18
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report” because “unlike a broken arm, a mind cannot be x-rayed.” Id. at 1049 (internal
quotation marks omitted) (quoting Poulin v. Bowen, 817 F.2d 865, 873 (D.C. Cir. 1987)).
As discussed above, the ALJ reasonably discounted plaintiff’s self-reports of
symptom severity. And the ALJ reasonably concluded Dr. Khaleeq’s opinions were
based largely on plaintiff’s self-reports. For example, her opinion that plaintiff may have

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1 difficulty maintaining attendance was expressly premised on plaintiff’s self-report that
2 “he spends most of his time laying around watching television or sleeping” and does not
3 address whether plaintiff does so by choice or is capable of more. AR at 327 (“He may
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have difficulty maintaining regular attendance in the workplace, as he spends most of his
time laying around watching television or sleeping away.”). Dr. Khaleeq’s opinion that
plaintiff may not be able to interact with supervisors was based on his self-report that he

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tried to work about two years prior but it only lasted for a day. Id. (“He may not be able
to interact with supervisors or the public, as he tried to work which lasted for a day about
two years ago.”). The Court concludes the ALJ properly discounted Dr. Khaleeq’s

11 opinions as based largely on plaintiff’s properly discredited self-reports.
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b)

Plaintiff’s Activities

A material inconsistency between a doctor’s opinion and a claimant’s activities

14 can furnish a specific, legitimate reason for rejecting the treating physician’s opinion.
15 See, e.g., Rollins, 261 F.3d at 856 (upholding ALJ’s decision to discredit treating
16 physician where his opinions were “inconsistent with the level of activity that [plaintiff]
17 engaged in”); Morgan, 169 F.3d at 601-02 (upholding ALJ’s rejection of treating
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physician’s opinion where it was contradicted by plaintiff’s activities).
As the ALJ noted, plaintiff reportedly “demonstrated pro-social leadership skills
as a mentor for new clients coming into [substance abuse] treatment.” AR at 724, AR
501. As discussed above, plaintiff also attended community college full time for at least
one quarter. AR at 1034. The ability to adhere to a schedule, to be in public settings, and

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1 to mentor unfamiliar people was inconsistent with Dr. Khaleeq’s assessment that plaintiff
2 may have difficulty maintaining regular attendance and may not be able to interact with
3 supervisors or the public. AR at 327. Inconsistency with plaintiff’s activities was
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another specific and legitimate reason the ALJ provided to discount Dr. Khaleeq’s
opinions.
The Court concludes the ALJ did not err by discounting Dr. Khaleeq’s opinions.

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2.

Wendy Hartinger, Psy.D., and Renee Eisenhauer, Ph.D.

Dr. Hartinger conducted a psychological examination on November 18, 2016. AR
at 768. Dr. Eisenhauer reviewed her evaluation and concurred with her diagnoses and
opinions in a report dated December 14, 2016. AR at 773. Dr. Hartinger diagnosed
plaintiff with generalized anxiety disorder, persistent depressive disorder, alcohol use

13 disorder in remission by self-report, and methamphetamine use disorder in full sustained
14 remission. AR at 770. She opined that he had marked limitations in his ability to
15 maintain punctual attendance, maintain appropriate behavior in a work setting, and
16 complete a normal workday and workweek without interruptions from psychologically
17 based symptoms. AR at 770-71. The ALJ gave Dr. Hartinger’s and Dr. Eisenhauer’s
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opinions “little weight” because they were unsupported by and inconsistent with the
medical evidence, based largely on plaintiff’s discredited self-reports, and inconsistent
with plaintiff’s activities. AR at 504.
Like inconsistency with a claimant’s activities, inconsistency with the medical
record or a doctor’s own findings is a specific and legitimate reason to reject a medical

ORDER AFFIRMING DEFENDANT’S
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1 opinion. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.
2 2004); Tommasetti, 533 F.3d at 1041. Here, the ALJ properly discounted the opinions as
3 inconsistent with the medical evidence and with plaintiff’s activities. Dr. Hartinger’s
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own mental status examination results were entirely normal except for anxious mood and
deficits in fund of knowledge and concentration tasks. AR at 772. Other examiners
found minimal deficits as well. For example, in a January 2014 psychological evaluation

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by Charles Quinci, Ph.D., all results on the mental status examination were entirely
within normal limits. AR at 476. With regard to activities, Dr. Hartinger noted plaintiff
“cannot focus on what he is doing when others are around [and] feels nervous around

11 others,” which is inconsistent with plaintiff’s regular attendance at addiction group
12 meetings, church and school, volunteering with his church, and Dr. Hartinger’s own
13 description of plaintiff as friendly and cooperative. AR at 770, 504, 772.
14

The ALJ improperly discounted the opinions as based on plaintiff’s self-report,

15 however. Although psychiatric evaluations depend in part on self-report, clinical
16 interviews and mental status evaluations “are objective measures and cannot be
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discounted as a ‘self-report.’” Buck, 869 F.3d at 1049. Dr. Hartinger performed a
professional clinical interview and mental status examination. “[W]hen an opinion is not
more heavily based on a patient’s self-reports than on clinical observations, there is no

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evidentiary basis for rejecting the opinion.” Ghanim, 763 F.3d at 1162.
Inclusion of an erroneous reason was harmless error because the ALJ provided the
specific and legitimate reasons that the opinions were inconsistent with the medical

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1 record and inconsistent with plaintiff’s activities. See Molina, 674 F.3d at 1115 (error is
2 harmless if inconsequential to the ultimate nondisability determination). The Court
3 concludes the ALJ did not err by discounting the opinions of Dr. Hartinger and Dr.
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Eisenhauer.
3.

Alysa A. Ruddell, Ph.D. and Aaron Burdge, Ph.D.

Dr. Ruddell performed a psychological assessment on December 16, 2015. AR at
739. Dr. Burdge reviewed her evaluation and concurred with Dr. Ruddell’s opinions in a
report dated January 20, 2016. AR at 754. Dr. Ruddell diagnosed plaintiff with anxiety
disorder and opined that he would have marked limitations in his ability to adapt to
changes in a routine work setting, complete a normal workday and workweek without
interruptions from psychologically based symptoms, and set realistic goals and plan

13 independently. AR at 740-41.
14

The ALJ gave little weight to Dr. Ruddell’s and Dr. Burdge’s opinions because the

15 opinions are inconsistent with the largely-unremarkable findings by Dr. Ruddell and in
16 the overall medical record, and inconsistent with plaintiff’s activities. AR at 504.
17 Inconsistency with the medical record was a specific and legitimate reason to discount
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the opinions. As discussed above, multiple psychological evaluations resulted in largely
normal clinical findings. Dr. Hartinger’s testing revealed only minor abnormalities, and
Dr. Quinci’s testing showed no abnormal results.
However, the ALJ’s conclusions that the opinions were inconsistent with
plaintiff’s activities and with Dr. Ruddell’s findings are not supported by substantial

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1 evidence. Dr. Ruddell’s mental status examination results showed normal appearance,
2 motor and psychomotor activity, attitude, social behavior, orientation, insight and fund of
3 knowledge, but anxious mood, paranoid thought content, and impairments in recent
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memory, concentration tasks, abstract thinking, and problem solving. AR at 742. The
ALJ described these results as “largely unremarkable aside from some impairment in
memory” and did not explain why the normal results outweighed the normal ones. AR at

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504.
The only activity the ALJ specifically noted as inconsistent with the opinions was
“complying with the terms of his probation such as attending daily meetings and

11 treatment,” yet the ALJ cited no support in the record. AR at 504. Plaintiff’s “aftercare
12 plan” after completing substance abuse treatment required three support group meetings
13 per week and the record does not show whether plaintiff met this requirement. AR at
14 733. The ALJ’s finding is thus not supported by substantial evidence. Regardless, the
15 inclusion of erroneous reasons is harmless because inconsistency with the overall medical
16 record was a specific, legitimate reason to discount these opinions. See Molina, 674 F.3d
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at 1115.
The Court concludes the ALJ did not err by discounting the opinions of Dr.
Ruddell and Dr. Burdge.

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C. Lay Witness Testimony
Plaintiff’s friend Dennise Grochow wrote in a statement dated March 5, 2017, that
plaintiff has difficulty walking for more than 10-15 minutes, sitting, turning his head,

ORDER AFFIRMING DEFENDANT’S
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1 sleeping, lifting, and riding in a car. AR at 715-16.
2

In order to discount competent lay witness testimony, the ALJ must give

3 “germane” reasons supported by substantial evidence. Bayliss, 427 F.3d at 1218. Here,
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the ALJ accepted some of Ms. Grochow’s testimony but discounted the extent of it
because her statement was inconsistent with medical evidence and because she relied
primarily on plaintiff’s discredited self-reports. AR at 505. The ALJ provided at least

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one germane reason, namely that some of Ms. Grochow’s statements appeared to be
based primarily on plaintiff’s self-reports. For example, she stated his sleep is fitful, but
there is no indication that she observed his sleep. AR at 715. She said that he lifts no

11 more than 25 pounds, but she must have relied on his self-report unless she was with him
12 at all times. AR at 715.
13

Inconsistency with the medical record, however, was not a germane reason here.

14 The ALJ stated that the medical record “does not contain objective findings that would
15 support the extent of the walking, standing, and sitting limitations [Ms. Grochow] notes.”
16 AR at 505. Lay witness testimony may be rejected if contradicted by medical or other
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evidence, but it may not be rejected on the grounds that it lacks support from medical
evidence. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017); Bayliss, 427 F.3d at
1218. The ALJ cited only a lack of supporting medical evidence, which was not a

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germane reason to discount Ms. Grochow’s testimony. “The fact that lay testimony …
may offer a different perspective than medical records alone is precisely why such
evidence is valuable” in a disability determination. Diedrich, 874 F.3d at 640.

ORDER AFFIRMING DEFENDANT’S
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1

The inclusion of an erroneous reason was harmless error, and the Court concludes

2 the ALJ did not err by discounting Ms. Grochow’s testimony.
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VII.

CONCLUSION

For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment in favor of defendant and against plaintiff.
DATED this 6th day of August, 2018.

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A
Robert S. Lasnik

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United States District Judge 

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ORDER AFFIRMING DEFENDANT’S
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