United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
J. has brought this matter for judicial review of
defendant's denial of her applications for disability
insurance and supplemental security income (SSI) benefits.
The parties have consented to have this matter heard by the
undersigned Magistrate Judge. 28 U.S.C. § 636(c);
Federal Rule of Civil Procedure 73; Local Rule MJR 13. For
the reasons below, the Court affirms defendant's decision
to deny benefits.
ISSUES FOR REVEW
the ALJ provide adequate reasons to reject the opinions of an
examining psychologist and a treating psychologist?
the ALJ err in determining that plaintiff's mental-health
conditions did not meet the criteria for a listed impairment?
ALJ provide adequate reasons to discount plaintiff's
filed an application for disability insurance benefits in
July 2006, alleging she became disabled as of February 10,
2006. Dkt. 10, Administrative Record (AR) 1357.
Plaintiff's date-last-insured was September 30, 2011, so
the relevant period for determining disability is between
February 10, 2006, and September 30, 2011. AR 204, 1360;
see 20 C.F.R. § 404.130. This case has been
appealed before, and the detailed procedural history will
only be described as necessary in the analysis below.
STANDARD OF REVIEW
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error; or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a
mere scintilla, '” though “‘less than a
preponderance'” of the evidence. Id.
(quoting Desrosiers, 846 F.2d at 576).
Court must consider the administrative record as a whole.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). The Court is required to weigh both the evidence that
supports, and evidence that does not support, the ALJ's
conclusion. Id. The Court may not affirm the
decision of the ALJ for a reason upon which the ALJ did not
rely. Id. Only the reasons identified by the ALJ are
considered in the scope of the Court's review.
the evidence admits of more than one rational interpretation,
” that decision must be upheld. Allen v.
Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That is,
“‘[w]here there is conflicting evidence
sufficient to support either outcome, '” the Court
“‘must affirm the decision actually
made.'” Id. (quoting Rhinehart v.
Finch, 438 F.2d 920, 921 (9th Cir. 1971)).
Commissioner uses a five-step sequential evaluation process
to determine whether a claimant is disabled. 20 C.F.R. §
404.1520. At step four of that process, the claimant's
residual functional capacity (RFC) is assessed to determine
whether past relevant work can be performed, and, if
necessary, at step five to determine whether an adjustment to
other work can be made. Kennedy v. Colvin, 738 F.3d
1172, 1175 (9th Cir. 2013). At step five, the Commissioner
has the burden of proof, which can be met by showing a
significant number of jobs exist in the national economy that
the claimant can perform. Tackett v. Apfel, 180 F.3d
1094, 1099 (9th Cir. 1999); 20 C.F.R. § 404.1520(e).
Medical Opinion Evidence
must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of either a treating or
examining physician. Trevizo v. Berryhill, 871 F.3d
664, 675 (9th Cir. 2017). Even when a treating or examining
physician's opinion is contradicted, an ALJ may only
reject that opinion “by providing specific and
legitimate reasons that are supported by substantial
reasons below, the Court concludes that the ALJ offered
sufficient reasons to discount the medical opinions of an
examining psychologist and a treating psychologist regarding
plaintiff's mental-health limitations.
Examining Psychologist C. Michael Regets, Ph.D.
challenges the ALJ decision to partially discount Dr.
Regets's opinion. But plaintiff does not identify any
error in the ALJ's evaluation of Dr. Regets's opinion
regarding plaintiff's IQ limitations.
first contends that her former coworker's testimony that
plaintiff required help in her work as a nursing assistant
undermines the ALJ's conclusion that plaintiff can
perform the mental requirements of unskilled work. Dkt. 15,
p. 7. She contends that it was unreasonable for the ALJ to
conclude that her ability to retain a semi-skilled job, while
receiving help, “confirms her capacity to perform the
unskilled work described in the [RFC] on a consistent
basis.” AR 1383; Dkt. 15, p. 8.
Regets performed cognitive testing on plaintiff in October
2007. AR 960-70. He found, among other results, that
plaintiff had an “Extremely Low” verbal IQ score.
AR 965. He concluded that plaintiff's “nonverbal
reasoning abilities and her abilities to process visual
information quickly are much better developed than her verbal
comprehension skills and her working memory abilities,
” and that “[t]hese relative strengths may help
[her] to engage in problem-solving tasks which are not
language-based and process more complex information.”
AR 966. He found that “[a] relative weakness in her
working memory abilities may make it more difficult for her
to perform mental operations.” Id.
“Overall, ” he wrote, “her performance
across these domains suggests some variability in her
prior remand order, this Court considered an ALJ's
decision to discount Dr. Regets's finding regarding
plaintiff's verbal IQ score. AR 1521. The Court held that
the ALJ erred in discounting that opinion based on
plaintiff's “tendency to exaggerate and/or feign
symptoms.” AR 1521.
Court observed that Dr. Regets based his opinion on objective
findings and not plaintiff's subjective complaints. AR
1521 (citing Ryan v. Comm'r of Soc. Sec. Admin.,
528 F.3d 1194, 1199-1200 (9th Cir. 2008)). The Court found
that the ALJ also erred in discounting Dr. Regets's
opinions based on the observations of examining psychologist
Andrea Shadrach, Psy.D.-in administering another IQ test,
four years later-that plaintiff's responses were invalid
on that test. AR 1520, 1522.
remand, in the ALJ's decision that is now being reviewed
by the Court, the ALJ gave Dr. Regets's opinions
“partial weight.” AR 1383. He analyzed the
opinion differently than the prior ALJ: rather than finding
these test results were based on unreliable self-reporting,
the ALJ “considered [that] evaluation and assessed IQ
scores in limiting the complexity of [plaintiff's]
allowable work tasks.” AR 1383. In assessing
plaintiff's RFC, the ALJ found in part that she had the
following cognitive limitations during the relevant period:
The claimant was able to perform simple, routine, repetitive
tasks consistent with unskilled work. She required low-stress
work, defined as work requiring few decisions and few changes
throughout the workday. . .. [I]nstruction regarding assigned
work tasks must be one-on-one hands-on instruction, not
written instruction. The claimant was capable of work
performance at a standard/ordinary pace but not at a strict
production-rate pace in which the individual has no control
over the speed of the work.
also found, “that the severity of the cognitive
issues” about which Dr. Regets opined, “is not
entirely consistent with the claimant's semi-skilled work
history.” AR 1383. The ALJ explained that he credited
plaintiff's coworker's testimony that plaintiff
required help in charting at her previous job as a nursing
assistant, AR 1793, but found that plaintiff's
“ability to retain the job until stopped by physical
impairments, confirms her capacity to perform the unskilled
work described in the [RFC] on a consistent basis.” AR
asserts that her former coworker's testimony shows that
plaintiff “did not perform unskilled work on a
regular and continuing basis, but continually obtained help
from her friend.” Dkt. 15, p. 7 (emphasis added). Yet
it is undisputed that the work in question was semiskilled,
not unskilled. See AR 1392 (ALJ finding), 1451
(vocational expert testimony). The ALJ acknowledged and
credited the coworker's testimony. AR 1383.
in the unskilled work that the RFC contemplates, plaintiff
would be required to perform only “simple, routine,
repetitive tasks.” AR 1370. Plaintiff does not identify
any error in the ALJ's decision to discount Dr.
Regets's opinion based in part on plaintiff's ability
to maintain a semi-skilled job. See Morgan v. Comm'r
of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir.
1999) (inconsistency with daily activities is valid reason to
discount opinion); Drouin v. Sullivan, 966 F.2d
1255, 1258 (9th Cir. 1992) (working with impairment supports
finding that impairment is not disabling).
plaintiff notes Dr. Regets opined that she would qualify for
accommodations in some types of job: “work environments
where her limitations impair her ability to learn or
demonstrate her knowledge, skills, and abilities.” AR
967. Plaintiff asserts that this shows that she cannot