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Donna J. v. Commissioner of Social Security

United States District Court, W.D. Washington, Tacoma

September 4, 2019

DONNA J., Plaintiff,



         Donna 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.


         1. Did the ALJ provide adequate reasons to reject the opinions of an examining psychologist and a treating psychologist?

         2. Did the ALJ err in determining that plaintiff's mental-health conditions did not meet the criteria for a listed impairment?

         Did the ALJ provide adequate reasons to discount plaintiff's testimony?


         Plaintiff 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.


         The 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).

         The 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. Id.

         “If 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)).


         The 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).

         A. Medical Opinion Evidence

         An ALJ 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 evidence.” Id.

         For the 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.

         1. Examining Psychologist C. Michael Regets, Ph.D.

         Plaintiff 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.

         Plaintiff 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.

         Dr. 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 abilities.” Id.

         In its 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.

         The 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.

         On 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.

         AR 1370.

         The ALJ 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 1383.

         Plaintiff 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.

         Thus, 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).

         Finally, 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 perform ...

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