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Smith-Dukes v. Commissioner of Social Security

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

October 23, 2019




         This matter comes before the Court on the report and recommendation of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. No. 29). Having considered the report and recommendation, Plaintiff's objections (Dkt. No. 30), and the relevant record, the Court ADOPTS the report and recommendation, OVERRULES Plaintiff's objections, and AFFIRMS the administrative law judge's decision to deny Plaintiff social security disability benefits.

         I. BACKGROUND

         Plaintiff is a 29-year-old woman with a documented history of mental health issues and chronic pain. (See, e.g., Dkt. No. 12 at 401, 458, 463, 554.) She filed an application for supplemental social security income, alleging that she was disabled due to a combination of bipolar affective disorder, depression, and fibromyalgia. (Id. at 103.) The Social Security Administration denied that application on July 22, 2014, (id. at 149-52), and rejected Plaintiff's request for reconsideration on May 26, 2015, (id. at 166-68). Following those rejections, Plaintiff requested a hearing before an ALJ. (Id. at 172-74.) The ALJ held the hearing on April 6, 2017, (id. at 38-92), and subsequently issued an unfavorable decision, (id. at 17-37). Although the ALJ recognized that Plaintiff's impairments were “severe, ” (see Id. at 22), the ALJ found they were not so severe as to make Plaintiff disabled, (see Id. at 17-24). The Appeals Council declined to review the ALJ's decision. (Id. at 6.)

         After Plaintiff's request for review was denied, she filed a complaint in this Court seeking judicial review of the ALJ's decision. (Dkt. No. 6.) Judge Creatura has reviewed the complaint and recommends that the Court affirm the ALJ's decision. (See generally Dkt. No. 29.)


         Plaintiff raises the following issues: (1) whether the ALJ improperly weighed the medical evidence using the incorrect standard; (2) whether the ALJ improperly discounted Plaintiff's testimony about the severity of her symptoms; (3) whether the ALJ erroneously discounted the testimony of Plaintiff's mother and boyfriend; (4) whether the ALJ erred in concluding that Plaintiff could perform work existing in the national economy; (5) whether the ALJ improperly “parsed” the evidence; and (6) whether Plaintiff qualifies for Title II benefits. (See Dkt. No. 21 at 1.) The Court finds that the first five issues are without merit and that the sixth issue is moot.

         A. Standard of Review

         A court may reverse an ALJ's denial of benefits “only if it is based upon legal error or is not supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Twidell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). If the evidence “is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         B. Medical Evidence

         Plaintiff raises two objections to how the ALJ evaluated the opinion of Plaintiff's treating medical provider, Karen Fuller. First, Plaintiff asserts that the ALJ erroneously failed to assign Fuller's opinion controlling weight because the ALJ applied the wrong standard for evaluating medical evidence. (See Dkt. No. 21 at 7.) Second, Plaintiff appears to argue that even if the ALJ applied the correct standard, the ALJ should have given Fuller's opinion controlling weight because of the length of Fuller's clinical relationship with Plaintiff. (See Dkt. No. 30 at 2, 7.) After reviewing Plaintiff's objections, Judge Creatura concluded that the ALJ properly evaluated Fuller's opinion as lay testimony. (See Dkt. No. 29 at 4-7.)

         For claims filed before March 27, 2017, 20 C.F.R. §§ 404.1527 and 416.927 govern how an ALJ must weigh medical evidence. Those regulations afford “treating sources” controlling weight in certain circumstances. See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (citing SSR 96-2p, 1996 WL 374188 (July 2, 1996)). And even when treating sources are not given controlling weight, “treating source medical opinions are still entitled to deference.” Id. (quoting SSR 96-2p, 1996 WL 374188 at *4). But not all opinions are considered “treating source medical opinions”: “only ‘acceptable medical sources' can [provide] medical opinions [and] only ‘acceptable medical sources' can be considered treating sources.'” SSR 06-3p, 2006 WL 2329939 at *2 (Aug. 9, 2006). “Acceptable medical sources” are limited to (1) licensed physicians, (2) licensed or certified psychologists, (3) licensed optometrists, (4) licensed podiatrists, and (5) qualified speech-language pathologists. See SSR 06-03p, 2006 WL 2329939 at *1.

         Here, Fuller is not an “acceptable medical source” because she does not fall under one of the five categories listed in Social Security Ruling 06-03p. While Plaintiff may be correct that “Fuller is no unaccredited slouch, ” (Dkt. No. 30 at 7), she is not a licensed physician or a licensed psychologist; she is a mental health counselor. (See Dkt. No. 3 at 6-7); Wash. Admin. Code § 246-809-220(1). Consequently, Plaintiff is simply incorrect when she states, “by the time of [the] hearing Karen Fuller's status had elevated to an acceptable source.” (See Dkt. No. 3 at 4.)

         Because Fuller is not an “acceptable medical source, ” her opinion is considered lay testimony. See Turner v. Comm'r of Soc. Sec., 613 F.3d 1216, 1224 (9th Cir. 2010). Lay testimony is generally entitled to less weight than treating source medical opinions. See SSP 06-03p, 2006 WL 2329939 at *5. In addition, an ALJ may disregard a lay witness's testimony “if the ALJ ‘gives reasons germane to each witness for doing so.'” Turner, 613 F.3d at 1224 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). However, the weight to be given to lay testimony “depend[s] on the particular facts of the case, ” and “an opinion from a medical source who is not an ...

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