Opinion
6:22-cv-01839-JR
02-08-2024
HENRY M.,[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff Henry M. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Title II Disability Insurance Benefits under the Social Security Act. For the reasons set forth below, the Commissioner's decision should be affirmed, and this case should be dismissed.
The record before the Court constitutes more than 2100 pages, but with some incidences of duplication. Where evidence occurs in the record more than once, the Court will generally cite to the transcript pages on which that information first appears in its entirety.
Born in February 1972, plaintiff alleges disability as of November 1, 2014, due to diabetes, neuropathy, learning disability, attention deficit/hyperactivity disorder (“ADHD”), depression, color blindness, hearing loss, and asthma. Tr. 242, 290. His application was denied initially and upon reconsideration. On June 27, 2018, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert (“VE”) and two medical experts (“ME”) - i.e., Lynne Jahnke, M.D., and Ellen Rozenfeld, Ph.D. Tr. 47-93. On July 19, 2018, the ALJ issued a decision finding plaintiff not disabled. Tr. 27-40.
Plaintiff timely filed an appeal and, on July 30, 2021, District Judge Hernandez reversed the ALJ's decision and remanded the case for further proceedings. Tr. 1316; see also Tr. 1324 (Appeals Council remand order). In particular, Judge Hernandez found that the ALJ erred in assessing plaintiff's subjective symptom testimony by “failing to identify any reasons in her decision” and instead simply “summar[izing] the medical opinion and lay witness testimony.” Tr. 1318. Additionally, Judge Hernandez resolved that the ALJ erred in regard to the opinion of examining source Robert Weniger, Ph.D. Tr. 1318-19. In so finding, Judge Hernandez denoted that conflicts between Dr. Weniger's report and those of ME Rozenfeld and examining physician Seth Williams, Psy.D., were “insufficient to discount Dr. Weniger's opinion as to Plaintiff's cognitive functioning.” Id. Judge Hernandez then denoted “it is unclear from the [VE] testimony whether the academic limitations [identified by Dr. Weniger] would require” a finding of disability. Tr. 1320.
On June 16, 2022, a second ALJ hearing was held. Tr. 1256-83. On July 7, 2022, the ALJ issued another decision finding plaintiff not disabled. Tr. 1225-45.
THE ALJ'S FINDINGS
At step one of the five step sequential evaluation process, the ALJ found plaintiff had not engaged in substantial gainful activity “from his alleged onset date of November 1, 2014 through his date last insured of September 30, 2020.” Tr. 1228. The ALJ did note, however, that plaintiff worked on-and-off during that time period and also “received unemployment benefits for five of the six quarters during the period from the second quarter of 2020 through the third quarter of 2021.” Id. At step two, the ALJ determined the following impairments were medically determinable and severe: “diabetes mellitus controlled with medication; morbid obesity; peripheral neuropathy; bilateral carpal tunnel syndrome, status-post bilateral releases; adjustment disorder; and [ADHD].” Id. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 1229.
Because he did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved that plaintiff had the residual function capacity (“RFC”) to perform light exertion work as defined by 20 C.F.R. § 404.1567(b) except:
[He] could stand or walk for up to one hour at a time and for a total of four hours per day, so he needed the ability to alternate sitting/standing every sixty minutes to accommodate this limitation. [He] could perform postural activities frequently except never climb ladders, ropes or scaffolds and never balance. [Plaintiff] could handle/finger bilaterally frequently [and] feel bilaterally occasionally. [He] required the use of a cane/walking stick to ambulate at times [and] ambulated more slowly than others. [Plaintiff] should have avoided concentrated exposure to extreme cold, heavy industrial vibration, and respiratory irritants. [Plaintiff] should have avoided all hazards, such as dangerous moving machinery and unprotected heights. [He] was able to understand, remember and carry out simple, repetitive, routine tasks. [He] was able to maintain concentration, persistence and pace on simple, routine tasks for the two-hour intervals between regularly scheduled breaks.
[He] could adapt to simple changes in his work routine and make simple work-related judgments. [Plaintiff] could not perform at assembly line pace or similarly fast paced work. [He] could occasionally interact with the public, coworkers, and supervisors. Reading and writing could not be an essential function of the job.Tr. 1231-32.
At step four, the ALJ determined plaintiff was unable to perform any past relevant work. Tr. 1243. At step five, the ALJ concluded there were a significant number of jobs in the national economy that plaintiff could perform despite his impairments, such as small parts assembler and hand packager inspector. Tr. 1243-44.
DISCUSSION
Plaintiff argues the ALJ erred by: (1) discrediting his subjective symptom statements; and (2) improperly assessing the medical opinion of Dr. Weniger.
Plaintiff also contends the ALJ “violat[ed] the law of the case” by affording weight to the opinions of ME Rozenfeld and Dr. Williams. Pl.'s Opening Br. 17-18 (doc. 18). According to plaintiff, Judge Hernandez concluded “it was improper for the ALJ to rely on” these sources. Id. However, as the Commissioner aptly observes, “the district court did not direct the ALJ to reconsider the opinions of Dr. Rozenfeld or Dr. Williams on remand [or] find error in the ALJ's evaluation of these opinions.” Def.'s Resp. Br. 7 (doc. 20). Rather, consistent with the regulations and case law in effect at the time of plaintiff's application, Judge Hernandez held that the ALJ erred by discounting Dr. Weniger's assessment because it was contravened by the opinions of ME Rozenfeld and Dr. Williams, and the only remaining reason proffered - i.e., that Dr. Weniger's assessment was “inconsistent with . . . Plaintiffs claimed abilities” - was not separately addressed. Tr. 1318-19; see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between an examining doctor's and another doctor's opinion does not warrant immediate rejection; instead, a lesser standard applies to the examining doctor's opinion); Morgan v. Comm'r, Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (a non-examining doctor's opinion “cannot by itself constitute substantial evidence that justifies the rejection of an examining or a treating physician”); Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (pursuant to the law of the case doctrine, the ALJ generally need not reconsider earlier findings unless directed to do so on remand).
I. Plaintiff's Testimony
Plaintiff contends the ALJ erred by discrediting his testimony concerning the extent of his impairments. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). In other words, the “clear and convincing” standard requires an ALJ to “show [their] work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).
Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual's character” or propensity for truthfulness, and instead assesses whether the claimant's subjective symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL 1119029. If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted). The question is not whether the ALJ's rationale convinces the court, but whether the ALJ's rationale “is clear enough that it has the power to convince.” Smartt, 53 F.4th at 499.
At the 2018 hearing, plaintiff testified that he was unable to work due to depression and “throbbing” pain in his hands and feet. Tr. 78. Regarding his mental impairments, plaintiff testified he takes enough medication to “get through.” Tr. 85. When the ALJ asked for clarification, plaintiff explained he is “not able to work or perform simple tasks [or] even [his] hobbies.” Id. Concerning his physical impairments, plaintiff acknowledged having carpal tunnel release surgeries performed on both wrists but stated that he was still unable to “swing the golf club and [open] a jar.” Tr. 7980. Plaintiff wears orthotics on his feet but they become “uncomfortable at times” so he “take[s] them off.” Tr. 80-81. Plaintiff “can be up and active” for “about 30 minutes” at one time before needing to sit or lay down and remove his braces. Tr. 81-82. Even with braces, plaintiff stated that he “needs to focus on the ground” while walking to avoid falling. Tr. 82. He reported that he spends “[h]ours” in bed everyday “daydreaming, dealing with [his] pain, [and] dwelling.” Id.
At the 2022 hearing, plaintiff testified that, in the past four years, his biggest impediments to employment were diabetic neuropathy and retinal issues. Tr. 1262. Plaintiff estimated that he could walk “about one city block” and stand for “maybe five to ten minutes” at a time with his braces on, and reiterated that he has problems with “stumbling,” “walk[ing] really slow,” and wearing braces for extended durations. Tr. 1263-64, 1267. He endorsed chronic tingling in his hands and rated his current pain at about a 2 or 3 out of 10 (with 10 being the worst pain imaginable), but remarked that his hands “get more weak and tired” as the day progresses. Tr. 1265-66. As a result, plaintiff stated that he has problems picking things up and “drop[s] things all the time.” Tr. 1266. Nonetheless, plaintiff indicated that, although he can take his nerve pain medication during the day, he only takes it at night because he “need[s] to drive [and] do errands.” Tr. 1266. Plaintiff also endorsed new vision problems relating to his diabetes: last year during his annual exam the retinal surgeon said, “it's early . . . don't worry about it” but “this year he didn't say that, he's like we will put you on the schedule in six months to follow up because we're starting to see more damage.” Tr. 1273.
As plaintiff acknowledged at the hearing, the medical record does not reflect any significant vision problems prior to the date last insured. Tr. 1273, 1552, 2064; see also Tr. 1903 (plaintiff indicating in December 2020 that his annual vision exam showed “his eyesight is unchanged from the year before”). Likewise, any new symptoms that emerged after September 2020 - such as back pain or diabetic neuropathy in the hands/fingers - are simply not the proper subjects of this appeal. See O'Neal v. Astrue, 2010 WL 4386937, *4 (D. Or. Oct. 29, 2020) (reversal was not warranted where “the only suggestion of [a particular impairment] arises after plaintiff's date last insured”); Clara Ann K. v. Saul, 2020 WL 5658720, *1 n.3 (S.D. Cal. Sept. 22, 2020) (“the relevant adjudicatory period for determining social security benefits is the period after the alleged onset and before the date last insured”); compare Tr. 1211 (plaintiff reporting in April 2017 that his “right side is markedly improved from [his 2013 carpal tunnel] surgery”), 916 (plaintiff continued to do “well with his right carpal tunnel release surgery” as of May 2017), 1203 (plaintiff reporting in June 2017 immediately post-left-sided carpal tunnel release that his “numbness and tingling has resolved” and his “finger motion has been fairly well restored,” although he was still having some hand weakness following a recent fall), 1199 (as of August 2017, plaintiff was “doing well” and his left-sided “numbness and tingling is essentially resolved”), with Tr. 1516 (plaintiff reporting “a four month history of tingling in digits 2-5 of both hands, especially during the night,” in October 2021), 1528 (plaintiff's medical provider explaining in December 2021 that, based on recent nerve conduction studies, his hand symptoms “are most likely due to his diabetes and do not require surgery at this time”).
Lastly, plaintiff detailed ongoing depression, ADHD, and anxiety. Tr. 1267. Counseling had helped but he still “do[es] a lot of daydreaming” and can only focus “for 20 or 30 minutes” at a time. Tr. 1271. Plaintiff denoted that, during his year-plus at college, he had accommodations in the form of tutors and audiobooks. Tr. 1267-68. Even with those aids, plaintiff “failed [his two] major courses” and overall maintained just under “a C average.” Tr. 1268.
After summarizing his hearing testimony, the ALJ determined that plaintiff's medically determinable impairments could reasonably be expected to produce some degree of symptoms, but his “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 1233. The ALJ specifically cited to plaintiff's activities of daily living, treatment history, and the objective medical record. Tr. 1233-42.
In particular, the ALJ relied on plaintiff's employment after the alleged onset date and ability to drive a car, attain a regular high school diploma and attend some college, pay bills, use a computer, attend church, socialize, hunt, hike, fish, golf, gold pan, and exercise regularly. Tr. 1236-41. “Even where [daily] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (superseded by statute on other grounds). Here, the record reflects that plaintiff endorsed exercising several days per week throughout the adjudication period - doing a variety of activities such as swimming, water aerobics, and walking (“a couple of miles” at a time time). See, e.g., Tr. 553, 663, 710, 778, 888, 908, 987, 996, 1155-56, 1601, 1850, 2071, 2075. For instance, in April 2015, plaintiff reported “walking 18 holes of golf” - the only downside being low blood sugar - and “exercis[ing] regularly . . . walking twice a week and swimming 3 times a week at the KROC center.” Tr. 644.
The evidence before the Court also shows that plaintiff engaged in a number of hobbies -including hunting, hiking, and fishing, and working on his truck - and was especially active in those pursuits during the summer months. See, e.g., Tr. 492, 551, 709, 1155-56, 1184, 1199, 1569, 1574, 1601, 1623, 1640, 1791, 1885. From May through August 2016, plaintiff worked full-time for a vest fabricating company, a position which required him to stand the “majority” of the time; he was terminated due to his “failure to meet production standards” and an “unacceptable scrap rate.” Tr. 75-76, 366-69, 830, 844. In February 2017, plaintiff began working part-time - anywhere from two to ten hours per week - for Foster Grant setting up sunglasses displays. Tr. 505, 511, 749-50, 759, 769, 1072, 1129, 1794, 1821. He sought additional hours and indicated at the hearing that this job ended only due to the COVID-19 pandemic. Tr. 507, 1129, 1269.
Further, plaintiff was active in his church, attending services and a weekly men's group.Tr. 551, 598, 1035, 1814, 1834. In addition, there is some indication that plaintiff provided caregiving or assistance to his parents. Tr. 1054, 1090, 1110, 1127, 1486. Although the record is replete with evidence suggesting that plaintiff struggled with reading and writing, he was able to complete the paperwork necessary to obtain medical treatment and vocational rehabilitation services, and to use the computer to shop, play games, connect via Facebook, etc. Tr. 300-01, 30809, 550, 710, 1586, 1630, 1639. The ALJ reasonably inferred from the aforementioned activities that plaintiff's physical and mental functional abilities were greater than alleged. See Febach v. Colvin, 580 Fed.Appx. 530, 531 (9th Cir. 2014) (ALJ is not required to accept a claimant's attempt to characterize activities as consistent with disability where those activities “could also reasonably suggest” greater functional abilities) (citing Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004)).
After the date last insured, plaintiff also began volunteering at his church as a “greeter.” Tr. 1499.
Moreover, concerning the medical evidence, while plaintiff's ADHD appeared to wax and wane, he generally reported that Adderall was effective at managing his symptoms. See, e.g., Tr. 749-54, 763, 774, 786, 797, 814, 816, 821, 1049, 1061, 1077, 1095, 1107, 1120, 1133, 1812, 183943, 1932, 1949; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (“whether the alleged symptoms are consistent with the medical evidence” and the type and dosage of the claimant's medications are relevant considerations). The record also reflects that plaintiff was able to stay on task approximately 4 hours per dose, but may have only been taking this medication when needed for work purposes. See Tr. 1090 (plaintiff stating in August 2017 “he has only been taking the Adderall once a day instead of twice a day which has been okay because he has only been working 5 hours at a time [but when] he needs his focus and concentration to last longer during the day he will take the second dose”), 1821 (plaintiff reporting in February 2019 that “Adderall is helpful to manage his ADHD [symptoms] when he works [but he] does not take it every day, just when he needs to be able to stay focused and on task”).
In sum, because the ALJ cited at least one legally sufficient reason, supported by substantial evidence, her decision is affirmed as to plaintiff's subjective symptom testimony. See Batson, 359 F.3d at 1197 (ALJ's evaluation of the claimant's subjective symptom testimony may be upheld even if all the reasons proffered are not valid).
II. Medical Opinion Evidence
Plaintiff next asserts the ALJ improperly discredited the opinion of Dr. Weniger. At the time of plaintiff's application, there were three types of acceptable medical opinions in Social Security cases: those from treating, examining, and non-examining doctors. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In general, the opinions of treating doctors are accorded greater weight than those of examining doctors, and the opinions of examining doctors are entitled to greater weight than those of a non-examining doctors. Id. To reject the uncontroverted opinion of a treating or examining doctor, the ALJ must present clear and convincing reasons supported by substantial evidence. Bayliss, 427 F.3d at 1216 (citation omitted). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons supported by substantial evidence. Id.
In April 2015, plaintiff underwent a “Neuropsychological Evaluation” with Dr. Weniger at the request of “his vocational rehabilitation counselor.” Tr. 549. As part of that evaluation, “[i]t was requested that [Dr. Weniger] clarify diagnostic options, address functional strengths and limitations, identify best learning modalities, and provide recommendations for intervention, accommodation, and compensation.” Id. Dr. Weniger's assessment was based on a clinical interview, objective testing, and the review of a 2010 neuropsychological evaluation, then-existent counseling chart notes, and records related to plaintiff's physical ailments. Tr. 549-50.
During the clinical interview, plaintiff “generally denied concern regarding his cognition,” endorsing the ability “to focus and concentrate reasonably well.” Tr. 550. Accordingly, plaintiff did “not consider himself to be easily distracted by activity in his environment” and “indicated that he is able to effectively initiate and maintain task activity.” Id. Plaintiff also endorsed the ability to perform multi-tasking demands, retain important information, and manage daily demands, and “denied significant forgetfulness.” Id. Plaintiff therefore did “not believe that his work performance has ever been negatively impacted by cognitive limitations” and instead “largely attributed his prior vocational difficulties to ‘problems keeping up with the pace' due to physical limitations related to diabetes.” Id. At that time, plaintiff was not taking any medications related to his mental health - stating “I don't need it” - and attributed the remittance in his mood symptoms to counseling. Tr. 553-54.
In the “Summary and Impressions” section, Dr. Weniger wrote:
[Plaintiff's] performance during the evaluation indicated that his general intellectual ability was in the low average range . . . He demonstrated wide variability across the broad cognitive skills assessed . . . He demonstrated relative strength in verbal aspects of intellectual ability, including verbal knowledge and reasoning [but] reduced proficiency in verbal intellectual skills, including spatial organization and perceptual reasoning. He experienced particular difficulty organizing and integrating complex spatial information. His weakest performances were in several complex aspects of information processing. His mental processing of new information was markedly slow and inefficient. He similarly struggled to regulate his attention. He experienced particular difficulty mentally manipulating information, alternating his attention between multiple demands, and sustaining focused attention over time. His performances on memory tasks were somewhat contingent upon the nature and modality of the information presented. While he was able to effectively learn and retain rote verbal information on an unstructured list learning task, he struggled to retain more contextualized verbal information presented in a conversational format. His improved performance on the former task may have been partially reflective of the opportunity for repetition and rehearsal on that task. He seemed overwhelmed by the large quantity of information presented that latter task. He similarly struggled with several complex executive functioning skills, most notably planning, organization, mental flexibility, and novel problem-solving. He was observed to approach several tasks in a somewhat disorganized,
inflexible, and concrete manner, resulting in poor task accuracy. He seemed unaware of his errors, suggestive of poor self-monitoring.
Taken collectively, [plaintiff] exhibited low average intellectual ability, with pronounced weakness in several complex information processing skills, most notably mental speed, attention, memory, and executive functioning. Those weaknesses deviated sufficiently from expectations, suggestive of a neurocognitive disorder. It was difficult to discern the precise etiology of his cognitive limitations. That was largely due his difficulty articulating the nature, onset, and progression of his cognitive symptoms. He generally denied historical cognitive challenges. The weaknesses exhibited during the evaluation seemed to exceed his perception of his cognitive capabilities . . .While he was previously diagnosed with ADHD, given his vague account of his history and several alternate factors that may account for his cognitive challenges, the examiner was not sufficiently confident in the accuracy of a diagnosis of ADHD . . . Regardless of the etiology, it is anticipated that he experiences considerable difficulty performing complex cognitive tasks and activities in daily life. He likely experiences particular difficulty efficiently processing information, attending to his environment, learning new information, organizing effective approaches to tasks, and solving practical problems . . .
His reading and written language skills were broadly commensurate with a third to fourth grade ability level. He demonstrated comparable proficiency across measures of rote, applied, and fluency skills in those academic domains. His pattern of performance was suggestive of significant phonological processing weaknesses
[He] reported recent emotional distress related to several cumulative stressors, including a separation from his spouse, relocation into his parents' residence, and a restraining order filed by his wife. He initiated individual counseling several months ago. He denied significant emotional distress or mood disturbance at the present time . . . On structured questionnaires, he endorsed minimal mood symptoms. His response pattern was suggestive of an excessively favorable selfportrayal and minimization of symptoms .... The examiner perceives that he attempts to cope with emotional distress through psychological suppression and avoidance behavior. That was reflective in the language he used during the evaluation. When questioned regarding his emotional responses to situational stress or his deteriorating health, he repeatedly replied, “I just don't worry about it.” While that may represent a self-protective means of maintaining emotional stability, it will make it challenging to precisely identify and effectively address those factors that have contributed to his historical functional difficulties. He seems to assume limited responsibility for and invest minimal effort into remediating his impediments. That is exemplified by the manner in which he has managed his diabetes in recent years. He has admittedly struggled to maintain compliance with recommended interventions, resulting in worsening health complications . . . His expressed indifference and disregard for his health was suggestive of a possible depressed mood and behavioral apathy. His recent initiation of behavioral health
treatment seemed promising, as counseling may help him gain increased insight into and promote improved management of his functional impediments.
It was difficult to assess [plaintiff's] interpersonal skills. He characterized himself as reasonably social. He denied significant interpersonal difficulties. His description of prior vocational difficulties was suggestive of questionable social insight and judgment. The examiner perceives the cognitive challenges observed during the evaluation may have social implications as well. He may specifically struggle to flexibly adapt to social demands, discern appropriate social responses, effectively solve social problems, and inhibit social impulses. His descriptions of prior workplace social interactions were suggestive of possible passive-aggressive interpersonal features.Tr. 558-60.
Dr. Weniger ultimately diagnosed plaintiff with an unspecified neurocognitive disorder, severe learning disorders in reading and written expression, and an unspecified adjustment disorder. Tr. 561. The doctor then went on to list plaintiff's vocational strengths and concluded his report with a number of “functional limitations” and “recommendations” which, in relevant part, indicated that plaintiff:
• may work best in a “reasonably calm and quiet vocational environment . . . Vocational demands that allow him to focus his attention on one task or activity at a time will be helpful.”
• “should be presented [new information] in ‘small doses,' as he may be easily overwhelmed by large quantities of information.”
• “may require frequent repetition for new skills to become routine. He will benefit from memory aids to remember important information, such as verbal reminders, written instructions, and task checklists. Given reading limitations, written memory aids should utilize pictures or diagrams that depict task instructions. It may also be helpful to record task instructions for repeated reference.”
• “may require occasional assistance to organize, initiate, and maintain task activity.”
• should avoid “[v]ocational demands that require complex decision-making or problem-solving.”
• would benefit from “very specific [verbal instructions that can be] presented in single-steps.”
• “may require occasional explanation or social situations and feedback regarding social interactions. He may perform most effectively at vocational responsibilities with limited interpersonal demands.”
• “may benefit from technological assistive devices to compensate for his academic limitations.”
• “will perform most effectively at somewhat routine and procedural vocational tasks, with limited reading or writing demands. The provision of structure and predictability will enhance his vocational potential.”
• should continue counseling, as it “may help him cope effectively with workplace stress, solve practical problems in the workplace, and interact appropriately with others.”
• “may [be helped by a job coach]” given “his cognitive and academic difficulties.”
• should be “encouraged to engage in behaviors that promote improved management of his chronic health conditions, including complying with recommended medical interventions.”
• “may benefit from a medication considered efficacious for treating ADHD.”Tr. 561-64.
After discussing and summarizing Dr. Weniger's evaluation and report, the ALJ afforded his opinion “little weight” as follows:
[I]t is not consistent with the overall objective medical evidence. For example, [plaintiff's] general intellectual ability was found during this exam be in the low average range. In addition, the undersigned notes [plaintiff] reported to Dr. Weniger that he had successfully graduated high school with a regular diploma which is not consistent with reading/writing abilities at the third-fourth grade level. Regardless, the undersigned notes the jobs provided by the [VE] at Step 5 of the sequential evaluation process have a language level 1, which is the lowest level available and thus commensurate with Dr. Weniger's opinion that [plaintiff's] language skills are broadly commensurate with a third-fourth grade ability level. The jobs provided by the [VE] also do not require reading and writing as essential functions of the job, consistent with this opinion. Finally, the undersigned notes that Dr. Weniger is not a treating provider, but rather a one-time examiner after being referred by DVR to see if state DVR services would be beneficial for [plaintiff]. These recommendations are what would be best, help [plaintiff] the most, and not an estimation of the most [plaintiff] can do, which is what is what the undersigned is required to determine under Social Security Rules and Regulations.Tr. 1238-39.
The Court finds that the ALJ's decision as to this issue was based on the proper legal standards and is supported by substantial evidence. An ALJ may reject a medical opinion that is inconsistent with the medical record. Ford v. Saul, 950 F.3d 1141, 1154-55 (9th Cir. 2020). And an ALJ is “not required to incorporate limitations phrased equivocally into the RFC.” Collum v. Colvin, 2014 WL 3778312, *4 (D. Or. July 30, 2014) (citing Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009)); see also Griffith v. Colvin, 2014 WL 1303102, *5 n.3 (D. Or. Mar. 30, 2014) (“Dr. Carrello's statements that Ms. Griffith may have difficulty completing work without interference from her mental impairments or performing work activities on a consistent basis without additional instructions do not represent work-related limitations of function that need to be reflected in the RFC”) (citations and internal quotations and brackets omitted).
Significantly, Dr. Weinger's objective testing, as well as his narrative report, suggest that plaintiff is capable of performing simple, repetitive, routine tasks in a non-production-pace setting, provided those tasks did not necessitate significant reading and writing. Tr. 555-58. Although he questioned the veracity of plaintiff's reporting regarding his social life and employment history, Dr. Weniger observed that plaintiff responded to social queues and interacted appropriately with the examiner. Tr. 554.
Evidence subsequent to Dr. Weinger's assessment further reflects that plaintiff is capable of work consistent with the RFC. Notably, with the exception of two isolated incidents (one from September 2020 involving plaintiff's leg braces and the other relating to a perceived lack of communication from vocational rehabilitation services approximately two years after the date last insured lapsed), the record before the Court - which spans a seven-plus year period - does not evince any problems getting along with medical or other service providers. Tr. 1498, 2021-22 Likewise, plaintiff's unsuccessful work attempt in 2016, as well as the part-time work performed from 2017 through 2020, do not reveal any problems interacting with coworkers, supervisors, or the general public. Consistent therewith, plaintiff's longitudinal treatment records generally describe him as having an appropriate affect and dress, and pleasant demeanor. See, e.g., Tr. 604, 710-11, 717, 751, 761, 768, 870, 1594-96. And plaintiff was sufficiently able to learn the tasks required of his part-time work in an environment that apparently did not correspond with the “functional limitations” outlined by Dr. Weniger. See Tr. 75, 749-50 (after receiving initial job training, plaintiff independently would check in at the front desk, sign paperwork, and then be provided information to restock sunglasses at the participating grocery store).
Moreover, plaintiff continued with counseling and eventually began taking medication to treat his mental impairments. As discussed in Section I, counseling and medication were effective in managing plaintiff's symptoms, except when situational stressors emerged (such as conflict with his ex-wife, the end of a potential romantic relationship, his older daughter's academic problems, the pandemic, etc.). In other words, while plaintiff occasionally experienced an increase in depression and ADHD, the record reflects that he rarely experienced a significant disruption in functioning due to his mental health symptoms (especially when he was compliant with his medications and engaging in self-care). Also, as discussed in Section I, plaintiff engaged in a wide slate of daily activities that bely Dr. Weniger's statements from the beginning of the adjudication period concerning substantial cognitive and social difficulties.
Finally, the ALJ formulated an RFC that, in relevant part, limited plaintiff to jobs requiring non-essential reading and writing to account for Dr. Weniger's academic restrictions. Tr. 1231-32, 1238-39, 1318-20. The ALJ's decision is affirmed in this regard.
RECOMMENDATION
For the foregoing reasons, the Commissioner's decision should be affirmed and this case should be dismissed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.