United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING THE COMMISSIONER AND DISMISSING THE
A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE
appeals the ALJ's decision finding her not disabled. Dkt.
13. The ALJ found depression, bipolar disorder, anxiety
disorder, osteoarthritis and obesity are severe impairments;
plaintiff has the residual functional capacity (RFC) to
perform light work with additional limitations; and plaintiff
is not disabled because she can perform past relevant work as
a billing clerk and telemarketer and alternatively other jobs
in the national economy. Tr. 11-22.
contends the ALJ misevaluated her testimony and that the
evidence she submitted post-hearing require the Court to
remand the matter either for an award of benefits or for
further administrative proceedings. For the reasons below,
the Court AFFIRMS the Commissioner's
final decision and DISMISSES the case with
discounted plaintiff's testimony about her limitations
first finding plaintiff's testimony about her physical
limitations is inconsistent with the medical record. Tr. 17.
Plaintiff contends the ALJ erred arguing the medical record
shows plaintiff consistently suffers from foot, knee, and leg
pain, that she is treated with pain medications, braces and
injections, and that she has been diagnosed with chronic pain
syndrome. Dkt. 10 at 4-6. The ALJ acknowledged the medical
records shows plaintiff suffers from pain but found the
record did not support the limitations plaintiff claimed.
Court cannot say the ALJ's assessment is unreasonable.
During the relevant time period, plaintiff was primarily
treated with pain medications, wore a brace and had
injections. Surgery was not indicated. Tr. 300.
Plaintiff's treating doctor did not opine during the
relevant period plaintiff could not walk or work; if she
walked or stood she needed to rest for days; or there was
some type of medical problem preventing plaintiff from
working. Rather, by and large, Donald Dillinger, M.D.,
reported plaintiff was doing fairly well pain-wise; plaintiff
was either working or attending classes full time, and that
she walked for one hour every other day. Given the record,
even assuming the evidence is susceptible to more than one
rational interpretation, the Court is required to uphold the
ALJ's findings. Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008). The Court accordingly affirms the
ALJ's determination as to plaintiff's physical and
also rejected plaintiff's testimony about her mental
limitations. The ALJ noted the record showed plaintiff
appeared at the Everett Clinic “visibly shaking and
tearful, ” expressed increased suicidal thoughts and
was diagnosed with depression and anxiety disorder. Tr. 17.
The ALJ noted when plaintiff went to the Clinic she was not
participating in any mental health counseling. Id.
The ALJ found in some instances plaintiff endorsed depressed
mood and a lack of motivation but in other instances showed
normal mood and affect. Id. at 17-18. The ALJ
further found plaintiff's mental conditions do not
“appear to affect her ability to engage in social
settings, ” and plaintiff's condition improved
while “on Cymbalta and Wellbutrin.” Tr. 18. The
ALJ concluded an RFC that does not require production pace
work and allows for being off task 10 percent accounts for
limitations caused by plaintiff's mental conditions.
argues the record shows on July 13, 2015, plaintiff was
visibly shaking and tearful denied suicidal thoughts, that
mental health treatment stopped, and then resumed after the
relevant period. Tr. 279-280. Plaintiff argues the ALJ erred
in rejecting plaintiff's mental health testimony on the
grounds the record lacked any opinions from any mental health
treating source and should have developed the record further.
Dkt. 10 at 6.
arguments fail. Plaintiff argues the ALJ's rationale is
erroneous citing to a portion of the ALJ's decision not
directed to plaintiff's testimony but to the ALJ's
assessment of the medical evidence. Id. citing to
Tr. 19 (“Under Social Security Regulations, medical
opinions are statements from Physicians and psychologists . .
. . In the present case the undersigned found no treating
source opinions . . .”). Plaintiff has not assigned
error to the ALJ's assessment of the medical evidence and
thus plaintiff's citation to the portion of the decision
regarding the medical opinions do not establish reversible
to plaintiff's argument about the adequacy of the record,
the ALJ's duty to develop the record is triggered only if
there is ambiguous evidence or if the record is inadequate to
allow for proper evaluation of the evidence. Mayes v.
Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The
record shows, as plaintiff acknowledges, she was seen in July
2015, and did not receive much mental health treatment until
after the relevant period. There is no
ambiguity in the record that during the relevant period,
there is virtually no evidence supporting plaintiff's
mental health claims. The ALJ thus had no duty to further
develop the medical record and the Court accordingly rejects
the argument the ALJ erred in failing to develop the record
to essentially support plaintiff's testimony that her
depression caused fatigue, loss of focus, the need to lie
down and going off task. Dkt. 10 at 9.
Evidence Presented to the Appeals Council
also contends the Court should remand the case for further
proceedings or benefits because she submitted a letter to the
Appeals Council that undermines the ALJ's decision. Dkt.
10 at 10. In this letter dated February 1, 2019, Jessica Lund
DPM, TEC Podiatry stated:
[Plaintiff] was seen at the Everett Clinic for bilateral foot
pain. She has been diagnosed with chronic pain from plantar
fasciitis of both feet and arthritis of the right foot. Even
with custom ankle-foot-orthotics she is not able to tolerate
prolonged standing for work. She notes that prolonged
standing cause swelling of her lower extremities and at time
this can prevent her from wearing the braces. The braces do
help, but not enough to allow her to work without pain. Since
2012 she has failed numerous treatment options including
injections, custom foot orthotics, exercises, change ...