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Cindy J. v. Commissioner of Social Security

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

January 16, 2020

CINDY J., Plaintiff,



         Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's application for disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 3.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) did not err in assessing the opinion of examining psychologist Dr. Weiss. Accordingly, the ALJ's finding of non-disability is supported by substantial evidence, and the Commissioner's decision is affirmed.


         On August 7, 2013, Plaintiff filed an application for disability insurance benefits, alleging a disability onset date of June 22, 2009. AR 15, 140-44. Her application was denied upon initial administrative review and on reconsideration. AR 15, 75-77, 79-83, 84-88. A hearing was held before ALJ Jo Hoenninger on January 24, 2018. AR 30-39. Plaintiff did not appear, saying that she underwent a liver biopsy the day before the hearing. AR 15, 33. Plaintiff did not respond to a Notice to Show Cause letter, and the ALJ found that Plaintiff had constructively waived her right to appear at the hearing. AR 15-16.

         In a decision dated May 2, 2018, ALJ Hoenninger found that Plaintiff was not disabled. AR 12-26. The Social Security Appeals Council denied Plaintiff's request for review on March 7, 2019. AR 1-6. The ALJ's decision of May 2, 2018 is the final decision of the Commissioner subject to judicial review. See 20 C.F.R. § 404.981.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to properly assess opinion evidence from examining psychologist William Weiss, Ph.D. Dkt. 8, pp. 3-9.


         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if 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 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         I. Whether the ALJ properly considered Dr. Weiss' opinion.

         In assessing an acceptable medical source, an ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician's opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

         Dr. Weiss conducted a psychological evaluation of Plaintiff on December 30, 2013. AR 232-37. Dr. Weiss' evaluation consisted of a clinical interview, a mental status examination, and psychological testing. Id. Based on this evaluation, Dr. Weiss diagnosed Plaintiff with bipolar disorder. AR 236. Dr. Weiss stated that Plaintiff had problems with reasoning, poor judgment when she was in a manic state, and required further understanding of methods she could use to control her symptoms. AR 237. Dr. Weiss opined that Plaintiff's ability to adapt and sustain concentration and persistence were “severely” impaired by her bipolar disorder. Id. Dr. Weiss further opined that Plaintiff's ability to engage in social interaction was “markedly” limited. Id. Dr. Weiss stated that Plaintiff would not be able to maintain gainful employment due to the long-term nature of her bipolar disorder, and that it was “unlikely” that Plaintiff would be able to work in the future. Id.

         The ALJ assigned “little weight” to Dr. Weiss' opinion, reasoning that: (1) Dr. Weiss relied heavily on Plaintiff's unreliable subjective allegations; (2) Dr. Weiss conducted little in the way of objective testing; (3) Plaintiff's statements to Dr. Weiss were inconsistent with the record, which indicates that Plaintiff did not complain of similar symptoms to her treating psychiatrist; and (4) Dr. Weiss incorrectly relied on Plaintiff's statement that she had been diagnosed with bipolar disorder even though Plaintiff's treatment provider appears to have explicitly ruled out bipolar disorder as a diagnosis. AR 23.

         With respect to the ALJ's first two reasons, an ALJ may reject a physician's opinion “if it is based ‘to a large extent' on a claimant's self-reports that have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm'r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)). This situation is distinguishable from one in which the doctor provides her own observations in support of her assessments and opinions. See Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008). “[W]hen an opinion is not more heavily based on a patient's self-reports than on ...

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