Opinion
CV-21-00007-TUC-JCH (EJM)
06-22-2022
Sara Christensen, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovich, United States Magistrate Judge.
Plaintiff Sara Christensen brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises two issues on appeal: 1) the Administrative Law Judge (“ALJ”) failed to conduct a full and fair hearing by failing to ask Plaintiff whether she thought she could work on a regular and consistent basis; and 2) the ALJ erred by improperly discounting the psychological consultative examiner opinion, which was supported by the lay witness statement from Plaintiff's mother. (Doc. 23).
Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 23, 24, & 27). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, affirm the Commissioner's decision.
I. Procedural History
Plaintiff filed an application for Supplemental Security Income on February 21, 2019. (Administrative Record (“AR”) 139). Plaintiff alleged disability beginning on February 1, 2019 based on PTSD, anxiety, and schizotypal personality disorder. (AR 6869, 81-82, 139). Plaintiff's application was denied upon initial review (AR 80) and on reconsideration (AR 93). A hearing was held on May 18, 2020 (AR 25), after which ALJ John D. Sullivan found, at Step Five, that Plaintiff was not disabled because she was capable of performing other work existing in significant numbers in the national economy (AR 62-63). On December 1, 2020 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).
Plaintiff initially alleged an onset date of April 2, 2015. (AR 68). In a letter Plaintiff sent to the SSA, Plaintiff stated that the agency representative who helped her complete paperwork instructed her to list her onset date as the beginning of the month that she filed in. (AR 217). However, Plaintiff alleged that her onset occurred prior to the last time she applied for benefits and was denied in 2015. Id. The record indicates that Plaintiff's previous application was denied at the initial level on December 29, 2015. (AR 165). As the ALJ noted in his decision, SSI benefits are not payable until the month following the month in which the application is filed. (AR 55). Thus, because Plaintiff's SSI application was filed February 21, 2019, it appears the agency representative instructed her to list February 1, 2019 as the onset date, as SSI benefits would not be payable until March 2019.
While the undersigned has reviewed the entirety of the record in this matter, the following summary includes only the information most pertinent to the Court's decision on Plaintiff's claims on appeal.
Plaintiff was born on December 1, 1980, making her 38 years old at the alleged onset date of her disability. (AR 81). She has a bachelor's degree in behavioral science and attended one year of law school, and taught one year of middle school and one semester as an adjunct at a university. (AR 32-33, 339).
A. Medical Evidence
On January 24, 2019 Plaintiff was seen at Northwest Allied Quickmed to establish care. (AR 330). She reported debilitating PTSD and depression and admitted she was not functional at times. Plaintiff also said she had her baby at home because she has significant fear of hospitals and doctors. Plaintiff was suicidal at times but had no plan to act on her thoughts. She was seeing a therapist twice weekly and requested a referral so that she could continue to attend therapy and her insurance would cover it. On exam Plaintiff appeared alert, nervous, disheveled, and had body odor, judgment and insight were intact, affect was normal, and memory was not impaired. (AR 331).
On September 18, 2019 Plaintiff was seen at Banner Behavioral Health for an intake appointment. (AR 346). Plaintiff reported anxiety, depression, PTSD from past sexual trauma, loss of energy, and hypersomnia. Stressors were an inability to work and support herself financially due to PTSD symptoms, and large crowds, being touched, and strong smells triggering her symptoms. (AR 347). On exam Plaintiff had appropriate appearance, delayed speech, lethargic and tearful behavior, anxious and depressed affect with constricted affect range, anxious mood, coherent thought content and circumstantial and intact thought process, intact memory, and distracted concentration. (AR 352). Plaintiff was observed to be possibly struggling with activities of daily living as evidenced by her body odor, showed symptoms of anxiety by fidgeting, and was guarded when discussing suicidal ideation and refused to complete a suicide risk assessment. (AR 352-53). It was determined that Plaintiff met the criteria for PTSD, depression, generalized anxiety disorder, and mild substance use disorder. (AR 355). She did not meet the criteria for inpatient admission and was discharged home with a recommendation for outpatient services: individual therapy, psychological evaluation, psychiatrist visit, peer support, case management, and primary care provider visit. (AR 354, 356).
From 2019-2020 Plaintiff was treated at Arizona Oncology for iron deficiency anemia. On September 24, 2019 she was seen for an initial consultation and reported that she received blood transfusions during her pregnancy in 2018 for severe anemia and was currently taking oral iron 3x/day. (AR 393). Plaintiff reported fatigue, anxiety, and depression, and had a normal psychiatric exam. (AR 394). IV iron infusions were recommended. (AR 395). On October 29, 2019 Plaintiff was seen for a follow-up and reported feeling well. (AR 385). She had fatigue and anxiety but no depression and her psychiatric exam was normal. (AR 386-87). On March 9, 2020 Plaintiff reported feeling very fatigued and had periods of dizziness and feeling easily winded. (AR 377). After she had her last infusion 6 months ago, she had increased energy and felt overall improved. Plaintiff reported no depression or anxiety, her psychiatric exam was normal, and she reported that she was seeing a therapist and it was helpful. (AR 378-79). On April 24, 2020 Plaintiff reported feeling much better after the infusions and said they significantly helped her fatigue and energy. (AR 368). She had fatigue and anxiety but no depression and her psychiatric exam was normal. (AR 369). Lab work showed her ferritin and hemoglobin were at normal levels, and it was recommended that Plaintiff get her labs checked regularly and receive iron infusions as needed. (AR 370).
B. Consultative Examination
On May 13, 2019 Plaintiff saw Dr. MaryAnne Belton for a psychological consultative examination. (AR 337). Plaintiff described a childhood history of sexual and physical abuse by her stepfather and a series of traumas in 2012: she got divorced, mugged, raped, and burglarized, then took a year and a half off to live in the woods alone and had to get away from everything. (AR 338-39). When she returned to the city, she got a job but experienced severe sexual harassment. (AR 338). She filed a claim with the EEOC and was told she had reason to sue, then was terminated from her job and filed a retaliation claim. Plaintiff said she fell into a deep depression and went to live in the woods again.
Plaintiff described two episodes of what she called “dissociative fugue” in 2012 and 2015: she woke up in the hospital with no underwear, a dislocated jaw, and all her money missing from her wallet; and she had sex with someone and woke up to the police questioning her because she supposedly choked the guy. (AR 338). Plaintiff has had trouble sleeping since 2012, which Dr. Belton noted coincided with her history of traumatic events. She described a “weird” sleep pattern with sometimes being up for 2 days, then sleeping for 16 hours straight, and had ongoing nightmares and flashbacks.
In 2018 Plaintiff moved back in with her mom and found out she was pregnant. (AR 338). She stated that it was hard for her to be examined and she did not like to be touched, so she delayed seeking prenatal care until her fourth month of pregnancy. She was experiencing symptoms from severe anemia and needed blood transfusions, and from that point she maintained regular medical care until her baby was born in November 2018.
Plaintiff described her mood as “happy” and said her baby gave her a will to live. (AR 339). She denied suicidal and homicidal ideation or hallucinations of any sort, and had no intent or plan for self-harm. She reported making 7 calls to initiate therapy but did not receive a call back and was not currently working with a counselor. Plaintiff was independent with personal care, chores, and managing money. Plaintiff stated she was not prescribed any medications and that she doesn't trust prescription drugs. (AR 337).
Dr. Belton observed that Plaintiff had appropriate and consistent eye contact, was well-groomed and appropriately dressed, and was a reliable historian. Her speech was fluent, thought process coherent and intact, attention, cooperation, and effort levels appropriate and consistent, and there was no evidence of difficulty with comprehension skills. (AR 339-40). Dr. Belton reported that Plaintiff was active, friendly, and engaged in tasks during the evaluation, but also presented with a sad, dysphoric disposition and was tearful. (AR 340). Plaintiff scored 28/30 on the Mini Mental Status Examination, which was average for her age and education.
Dr. Belton's diagnostic impression was features of schizoid personality disorder and PTSD. (AR 341). She opined that Plaintiff's presentation appeared acute at present and chronic overall, and recommended therapy services with an emphasis on trauma work. In summary, Dr. Belton stated that based on Plaintiff's self-report, records reviewed, and clinical observation, Plaintiff's “presentation is complicated by multiple co-occurring conditions and ongoing experience of noteworthy symptomology[,]” suggesting a diagnosis of PTSD. (AR 342). Further, “[w]hile allegations and self-report indicated schizotypal traits . . . she did not endorse or present with magical thinking, unusual perceptual experiences odd speech or thinking patterns, and/or eccentric behavior. As such, a diagnosis of features involving schizoid personality disorder seemed more appropriate.”
Dr. Belton also completed a Psychological/Psychiatric Medical Source Statement. (AR 343). As to understanding and memory, Dr. Belton opined that Plaintiff could comprehend and carry out simple directions when her symptoms were not active, but that as she experienced exacerbation of affective distress, she would have difficulty with carrying out and remembering multi-step or complex directions. As to sustained concentration and persistence, Dr. Belton opined that given Plaintiff's “current experience of affective symptomology, [her] ability to focus and attend to novel stimuli will be variable at the present time dependent upon exacerbation of her conditions.” As to social interaction, Dr. Belton stated that Plaintiff struggled with social reciprocity: “While she demonstrated appropriate eye contact . . . her affect was dysphoric, and she was tearful throughout the evaluation.” (AR 344). As Plaintiff reported “needing to be alone and away from people,” Dr. Belton opined that she would have “challenges with adhering to social norms and rules of interaction.” As to adaptation, Dr. Belton opined that when Plaintiff's symptoms were active, she was likely to have difficulty making adjustments and changes within an environment quickly. Plaintiff could likely take necessary precautions when faced with a new situation, but additional processing time was recommended. Finally, she could navigate to a new location independently, evidenced by Plaintiff driving herself and arriving early to the appointment with Dr. Belton.
C. Plaintiff's Testimony
On a Disability Report dated February 22, 2019 Plaintiff reported that she stopped working on May 1, 2015 because of her conditions. (AR 168). She reported that she saw Peggy Davis for therapy in December 2018 and was seen at Northwest Allied Quickmed in January 2019 to get a referral for therapy. (AR 171-72). She also reported seeing Mindy Simon for therapy from December 2014 to sometime in 2015. (AR 172). From 2014-2016, she received cash assistance from the Utah Department of Workforce Services but could not remember the names of her therapist or case workers. (AR 173). Plaintiff stated that she was very much in need of psychiatric treatment but that she could not afford it and her insurance would not cover a therapist. (AR 174). She was living with her mother now and was homeless for 2 years before that. She applied for benefits a few years ago and was denied for not paying enough into the system and didn't know it was a separate process for disability.
The record indicates Plaintiff received financial assistance from the Family Employment Program from approximately June 2014 to April 2016. (AR 235-81).
On a Function Report dated March 27, 2019 Plaintiff stated that she could not work because she had severe anxiety in public places that could manifest as panic attacks or violent behavior. (AR 175). She spent her days taking care of her infant, doing laundry, cleaning the house, and grocery shopping once a week. (AR 176, 178). She had problems sleeping with nightmares and occasional sleep walking. Plaintiff reported no problems with personal care or preparing her own meals, did not need reminders to care for herself, and did not need help with housework. (AR 177-78). She went outside daily but not usually where there were people around, could go out alone, and could drive and use public transportation. (AR 178). Plaintiff reported she liked to read and liked hobbies where she could be secluded, and she spent time with her mom daily. (AR 179). She indicated she had problems getting along with others because she was a private person and only spent time with people who came to visit her. (AR 180). She had no problems paying attention, following written or spoken instructions, or handling stress or changes in a routine, but did not like authority figures and tried to avoid them. (AR 180-81). Plaintiff reported that 5 or 6 years ago, she was raped, sexually assaulted, and burglarized within a 12-month period. (AR 182). It took a year for her to be well and stable enough to return to work, and then she was severely sexually harassed at work. She was in therapy for 2 years after that job but had not been able to resume working.
Plaintiff's mother completed a third-party Function Report and reported similar limitations and daily activities. (AR 184-91).
On a Disability Report dated May 29, 2019 Plaintiff stated that she had an increase in nightmares, intrusive thoughts, and depression, and she was not able to leave her home without a gun. (AR 198). She needed therapy but she could not afford it and her insurance would not cover it.
On a Disability Report dated July 8, 2019 Plaintiff stated that the SSA had not considered her records of two years of therapy with Mindy Simon and had not considered that her agoraphobia prevented her from leaving the house for days or weeks at a time. (AR 207).
On May 8, 2020 Plaintiff submitted a Social Security Brief. (AR 282). Plaintiff stated that she received cash assistance from the Utah Department of Workforce Services in 2015 because she was unable to work due to agoraphobia and PTSD and was ordered to attend weekly therapy. (AR 283). She lost her benefits when she was unable to continue therapy. Plaintiff reported periods of extreme fatigue and hypersomnia due to mental health issues and iron deficiency anemia. Her fear of being around doctor's offices, hospitals, and crowds prevented her from getting medical treatment and she had her baby at home in 2018. (AR 284-85). Agoraphobia prevented her from leaving the house to go to work, interviews, or the grocery store, and her symptoms had gotten worse since the pandemic due to fear of getting sick.
The record indicates that Plaintiff had an intake appointment on July 8, 2014 and was applying for financial assistance due to a recent layoff from her employer; she was a single mother of three and unable to pay rent or other expenses without cash assistance. (AR 274 -75).
The record indicates that Plaintiff was discharged from therapy with Mindy Simon in March 2016 after missing appointments and not maintaining contact, and that her case with the Family Employment Program was closed on April 19, 2016 due to non-participation. (AR 235-37).
At the hearing before the ALJ, Plaintiff explained that she had attributed a lot of her symptoms such as staying in bed and feeling exhausted to her PTSD and depression. (AR 33-34). But she found out that she has extremely severe anemia and her body doesn't absorb iron, and the symptom of iron deficiency anemia is extreme fatigue. Plaintiff stated that the anemia is actually the root cause of what she had attributed to just severe depression. She receives iron infusion treatments with improvement, but her levels decrease back down after a few months. (AR 35). Oral iron supplements and daily red meat did not help her. (AR 36).
Plaintiff stated that she was recently diagnosed with agoraphobia by Dr. Middleman and he prescribed an anti-anxiety medication that she takes when she goes to appointments because she has an extremely difficult time with going to the doctor. (AR 38-39). She does not like to be around people or crowds, which manifests as her living alone, and for years she lived in a motorhome in the woods. (AR 39). Her therapist said that her difficulty being around people is probably part of how she deals with her PTSD and trauma. Plaintiff reported that her concentration was pretty good but that it was difficult for her to really concentrate when she took the anti-anxiety medication, but she had to take it to go anywhere. (AR 39-40).
Plaintiff lives in a motorhome with her baby on a friend's property. (AR 41). She described a normal day as doing all of the household chores like cooking, cleaning, and laundry, and cleans her friend's house once a week in exchange for the friend allowing her to stay in the motorhome. Plaintiff goes grocery shopping twice a month and said it was a lot easier now with social distancing. Besides caring for her child, she reads and sleeps a lot, does some writing, and is not involved in any activities outside the home. (AR 42).
D. Vocational Testimony
At the hearing before the ALJ, Vernon Arne testified as a vocational expert. (AR 43). The ALJ asked Arne to assume an individual who could perform a range of work at any exertional level but was limited to performing simple and routine tasks, could make simple work-related decisions and dealing with changes in the workplace setting would be limited to simple work-related decisions, could have only occasional contact with supervisors, coworkers, and the public, and time off-task would be accommodated by normal breaks. (AR 46). Arne testified such an individual could perform the jobs of rental storage attendant, mold machine attendant, and marker position. (AR 46-47).
Arne testified to the following customary workplace tolerances: an individual would be expected to miss no more than 16 hours or 2 days a month; an individual could be off task no more than 8 percent of the time, which would be about 20-24 minutes; and normal breaks and rest periods would be a 10-15 minute break in the morning, a 30-60 minute break at lunch, and a 10-15 minute break in the afternoon. (AR 48). If an individual exceeded any of those customary limits, it would eliminate all work. (AR 48-49).
E. ALJ's Findings
The ALJ found that Plaintiff had the severe impairments of a schizoid personality disorder, PTSD, depression, and a generalized anxiety disorder with agoraphobia. (AR 57). The ALJ also considered the Paragraph B criteria set out in the social security disability regulations for evaluating mental disorders and found that Plaintiff had moderate restrictions in understanding, remembering, or applying information, moderate difficulties in interacting with others, moderate difficulties in concentrating, persisting, or maintaining pace, and moderate restrictions in adapting or managing oneself. (AR 58). Because the ALJ did not find “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental functioning, the Paragraph B criteria were not satisfied and the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. (AR 58-59).
The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence of record for the reasons explained in the decision. (AR 60). The ALJ specifically noted that overall, Plaintiff's treatment had been very conservative, and she had not generally received the type of medical treatment one would expect for a totally disabled individual. (AR 61). Further, Plaintiff's alleged limitations were not fully supported by her reported activities, and her ability to care for herself, cook, clean, and go to the store indicated a higher level of functioning than she alleged.
The ALJ was “somewhat but not entirely” persuaded by Dr. Belton's consultative examiner opinion because it was based on a one-time examination of Plaintiff and the opinion was not entirely supported by or consistent with the overall evidence of record. (AR 61).
The ALJ found that Plaintiff had the RFC to perform a full range of work at all exertional levels with the following non-exertional limitations: can perform simple, routine tasks and make simple work-related decisions; can have only occasional interaction with supervisors, coworkers, and the public; and time off-task can be accommodated by normal breaks. (AR 59). Based on the testimony by the VE, the ALJ found that Plaintiff was capable of performing jobs existing in significant numbers in the national economy. (AR 62-63). The ALJ therefore concluded that Plaintiff was not disabled. (AR 63).
III. Standard of Review
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) the claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As set forth in 42 U.S.C. § 405(g), “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (internal quotations and citation omitted), and is “more than a mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035. The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998). “Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland, 257 F.3d at 1035 (internal quotations and citations omitted).
The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, [the court] must defer to the ALJ's conclusion.” Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Additionally, “[a] decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The claimant bears the burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (citing Shinseki v. Sanders, 556 U.S. 396 (2009)). An error is harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a); see also Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). “[I]n each case [the court] look[s] at the record as a whole to determine whether the error alters the outcome of the case.” Molina, 674 F.3d at 1115. In other words, “an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Id. (internal quotations and citations omitted). Finally, “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
IV. Discussion
Plaintiff argues that the ALJ failed to conduct a full and fair hearing by failing to specifically ask her whether she thought she could work on a regular and continuous basis by not missing more than 2 days of work per month, be productive 92% of the time, and occasionally interact with supervisors, coworkers, and the public. Plaintiff contends that the ALJ had a duty to be especially diligent in this case because she was unrepresented at the hearing. Plaintiff also argues that the ALJ erred by discounting Dr. Belton's opinion, which was supported by the lay witness statement from Plaintiff's mother. Based on these alleged errors, Plaintiff requests that the Court remand this matter for a new hearing.
The Commissioner contends that the ALJ thoroughly questioned Plaintiff about her limitations and that Plaintiff's belief about whether she could perform the ALJ's RFC finding would be inherently subjective. The Commissioner further states that there is no indication from the record that Plaintiff did not receive a full and fair hearing, as the ALJ advised Plaintiff of her right to representation and Plaintiff affirmed that she wished to proceed without an attorney, and the ALJ allowed Plaintiff to fully respond to questions. The Commissioner also argues that substantial evidence supports the ALJ's evaluation of the medical evidence and that Plaintiff's argument on this point wrongly relies on outdated agency regulations and case law. Thus, the ALJ properly considered the medical evidence of record under the new regulations based on the factors of supportability and consistency.
The undersigned has considered the parties' arguments and thoroughly reviewed the record in this matter. For the reasons explained below, the undersigned finds that the ALJ did not fail to conduct a full and fair hearing on Plaintiff's SSI disability claim. The undersigned further finds no harmful error in the ALJ's assessment of Dr. Belton's opinion. Accordingly, because the ALJ's decision is supported by substantial evidence of record, the undersigned recommends that the Commissioner's decision be affirmed.
A. Duty to Conduct a Full and Fair Hearing
“In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel.” Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). “The ALJ must be especially diligent when the claimant is not represented and scrupulously and conscientiously probe into, inquire of, and explore all the relevant facts.” De Botello v. Astrue, 2011 WL 3292401, at *7 (D. Ariz. Aug. 1, 2011) (internal quotations and citations omitted). “The ALJ's duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect her own interests.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). However, an ALJ's duty to conduct an appropriate inquiry is only triggered when there is ambiguous evidence, or the ALJ makes a “finding that the record is inadequate to allow for proper evaluation of the evidence.” Id.; 20 C.F.R. § 404.1520b.
Here, the record documents that Plaintiff received written notice of her right to representation, that the ALJ fully explained Plaintiff's legal rights to her, that Plaintiff affirmed that she understood her rights, and that Plaintiff unambiguously stated that she wanted to waive her right to representation and proceed pro se. (AR 28-29, 109, 123, 12829). While the ALJ has a heightened duty to conduct a full and fair proceeding when the claimant is unrepresented, “[l]ack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings.” Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981). There is no indication from the record that Plaintiff lacked the capacity to understand her right to have representation at the hearing or that she did not knowingly and voluntarily waive that right. Cf Harmon v. Saul, 850 Fed.Appx. 485, 487 (9th Cir. 2021) (“The record does not indicate that Harmon lacked the capacity to understand the notice he received or the waiver he signed.”). Rather, when asked if she understood her rights, Plaintiff unequivocally stated: “Yes, I do, and I do wish to proceed today without representation.” (AR 29). When the ALJ again asked: “You're certain about that?” Plaintiff replied: “Yes.” Id.
Further, it does not appear that the record in this case was ambiguous or inadequate for the ALJ to make a decision. The ALJ had medical records from the applicable time period, written statements from Plaintiff and her mother, and records from the Utah Department of Workforce Services. Plaintiff testified at the hearing and the ALJ questioned her about her physical and psychological conditions. At the close of Plaintiff's testimony, the ALJ asked whether there was anything else she wanted to tell him that he hadn't already asked, and Plaintiff responded, “I don't think so.” (AR 42). Plaintiff then stated that she had just wanted to explain that before she knew what was going on with her anemia, she had attributed her fatigue to her mental illness, but she now knew that there was physically something wrong. (AR 42-43). Thus, “[t]here is no evidence of missing but relevant pieces of the puzzle, such as missing reports or ambiguous conclusions.” De Botello, 2011 WL 3292401, at *8.
The crux of Plaintiff's argument on this point is that the ALJ erred by failing to specifically ask her whether she thought she could perform work consistent with the ALJ's RFC assessment and the VE's testimony: work on a regular and consistent basis by not missing more than 2 days of work a month, be productive for 92% of the time, and occasionally interact with supervisors, coworkers, and the public. But the regulations impose no such requirement. Plaintiff is ultimately responsible for providing the evidence to be used in making the RFC finding, and the ALJ's duty to develop the record does not allow a claimant to shift the claimant's own burden of proving disability to the ALJ. Mayes, 276 F.3d at 459-60; Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995); 20 C.F.R. § 404.1512(a). Further, the Commissioner retains the ultimate responsibility for assessing a claimant's RFC, 20 C.F.R. § 416.946, and “[t]he law reserves the disability determination to the Commissioner.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). The regulations require the ALJ to evaluate a claimant's RFC based on all the record evidence, including medical sources, examinations, and information provided by the claimant. 20 C.F.R. §§ 404.1545(a)(1)-(3), 416.945(a)(1)-(3); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). But the regulations do not require the ALJ to specifically question a claimant as to whether she subjectively believes that she can do any or all of the things that the ALJ assesses in the RFC. Nor has Plaintiff shown that additional oral testimony was needed here to allow the ALJ to properly evaluate the evidence and determine her RFC. Cf Allums v. Colvin, 649 Fed.Appx. 420, 422 (9th Cir. 2016) (claimant did not show that record was ambiguous such that oral testimony from his brothers was needed to allow the ALJ to properly evaluate the evidence). While Plaintiff contends that the ALJ ignored opportunities during her testimony to ask whether she could perform the type of work activities he assessed, Plaintiff's argument is really just an invitation for the Court to reweigh the evidence and substitute its judgment for that of the ALJ-something the Court plainly cannot do. Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
The undersigned notes that the ALJ took Plaintiff's mental health conditions into consideration, stating that the RFC assessment reflected the medical findings by limiting Plaintiff to performing only simple routine tasks and making simple work-related decisions with restrictions on interacting with others. (AR 61).
In sum, the record demonstrates that the ALJ provided Plaintiff with a full and fair hearing and that there was sufficient and adequate evidence for the ALJ to rely on in adjudicating Plaintiff's application for SSI benefits. As the Court stated in McLeod, which Plaintiff relies on: “The words are clear and unambiguous: an ‘ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.'” 640 F.3d at 885 (quoting Mayes, 276 F.3d at 459-60). That is simply not the case here, and the undersigned finds no error on this point.
B. Evaluation of Medical Testimony
For disability claims filed on or after March 27, 2017, medical opinions are evaluated pursuant to the factors set forth in 20 C.F.R. § 416.920c. Pursuant to the new regulations, the Commissioner does “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s) . . . .” Id. § 416.920c(a). Rather, medical opinions are evaluated pursuant to the factors set forth in § 416.920c(c)(1)-(5), with the most important factors being supportability and consistency:
As this Court has explained: “Since 1991, the Ninth Circuit has distinguished between the opinions of treating physicians, examining physicians, and non-examining physicians. This distinction was known as the ‘treating physician rule.' In March of 2017, The Social Security Administration amended their regulations to abrogate the treating physician rule, among other changes.” Alonzo v. Comm'r Soc. Sec. Admin., 2020 WL 1000024, at *3 (D. Ariz. Mar. 2, 2020) (internal quotations and citations omitted). “Although it was debated for years, recently, the Ninth Circuit definitively ruled that the ‘specific and legitimate' standard does not apply to Social Security cases after the regulations were revised.” Noderer v. Comm'r of Soc. Sec. Admin., 2022 WL 1839102, at *3 (D. Ariz. June 3, 2022) (citing Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant. Our requirement that ALJs provide ‘ specific and legitimate reasons' for rejecting a treating or examining doctor's opinion, which stems from the special weight given to such opinions is likewise incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain sources necessarily favors the evidence from those sources- contrary to the revised regulations.”)); see also Steele v. Saul, 520 F.Supp.3d 1198, 1209-10 (D. Alaska 2021) (“The Commissioner's new regulations still require the ALJ to explain his or her reasoning, and to specifically address how he or she considered the supportability and consistency of the opinion. Obviously the ALJ's reasoning must remain legitimate, meaning lawful or genuine, as it must still be supported by substantial evidence and free from legal error.” (citation omitted)).
(1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.
The regulations specifically require the ALJ to explain how he or she considered supportability and consistency in evaluating medical opinions and making the disability determination. Id. § 416.920c(b)(2). Other relevant factors that the ALJ may, but is not required to, discuss include a medical source's specialization and “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements.” Id. § 416.920c(c)(4)-(5).
Here, the ALJ stated that he was “somewhat but not entirely persuaded” by Dr. Belton's opinion because it was based on a one-time examination of Plaintiff and it was not entirely supported by or consistent with the overall evidence of record. (AR 61). He noted that: “For example, [while Plaintiff] demonstrated a dysphoric affect, was tearful throughout the evaluation, and reported ‘needing to be alone and away from people,' she was able to demonstrate[] appropriate eye contact with the examiner[.]” Id. The ALJ further noted that “the overall evidence of record generally demonstrated alertness, orientation, friendly, and cooperative demeanor, with good eye-contact, appropriate behavior, good understanding, and good communication.” Id. Dr. Belton's own notes similarly document that Plaintiff was well-groomed, appropriately dressed, active, friendly, and engaged; speech was fluent, thought process coherent and intact; attention, cooperation, and effort levels appropriate and consistent; and there was no evidence of difficulty with comprehension skills. (AR 339-40). Thus, the ALJ properly complied with the requirements of § 416.920c by explaining how he considered the factors of supportability and consistency in evaluating Dr. Belton's opinion.
To the extent that Plaintiff argues the ALJ erred by failing to provide specific and legitimate reasons to discount Dr. Belton's opinion, that standard is no longer the law. See supra n.8. To the extent that Plaintiff attempts to insert an argument here that the ALJ erred in rejecting her subjective symptom testimony, the Court declines to address this point further. Plaintiff did not present a challenge to the ALJ's evaluation of her testimony as an issue for review, nor did the ALJ state that he was discounting Dr. Belton's opinion on this basis, and the Court will not read something into the ALJ's decision that he did not actually say.
While Plaintiff contends that the ALJ may not cherry pick evidence from the record to suggest that her mental health problems are not as limiting as Dr. Belton assessed, neither may Plaintiff cherry pick such findings to suggest that her conclusion, rather than the ALJ's, is correct. The Court recognizes that “a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about her overall condition[,]” Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011), and that “it is error to reject a claimant's testimony merely because symptoms wax and wane,” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). In this case, while the medical evidence is sparse, the record demonstrates that Plaintiff's providers documented both normal and significant findings, and that Plaintiff's self-reported symptoms of anxiety and depression actually improved with treatment for her iron-deficiency anemia. The undersigned also finds that the ALJ was sensitive to Plaintiff's mental health complaints, as reflected in the Step Three finding of moderate limitations in each of the Paragraph B criteria and the RFC assessment limiting Plaintiff to a work setting with reduced social contact. Plaintiff essentially asks the Court to reweigh the evidence more favorably to her, but Plaintiff's alternate interpretation is not enough to assign error to the ALJ's findings. “While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the [ALJ].” Flaten, 44 F.3d at 1457.
Plaintiff also argues that the ALJ erred in discounting Dr. Belton's opinion that she would have problems with social interaction and responding to changes in a work setting because her mother's lay witness statement supports Dr. Belton's opinion. As an initial matter, the undersigned notes that the ALJ did not specify which parts of Dr. Belton's opinion he found more or less persuasive. The ALJ's RFC assessment limiting Plaintiff to only occasional interaction with supervisors, coworkers, and the public reasonably incorporates Dr. Belton's opinion that, because Plaintiff stated she needed to be alone and away from people, Plaintiff would have challenges with adhering to social norms and rules of interaction. Dr. Belton's opinion is also consistent with the ALJ's Step Three finding that Plaintiff had a moderate limitation in interacting with others. (AR 58). In addition, the ALJ's hypothetical to the VE included a limitation to using judgment to make simple, work-related decisions, and dealing with changes in a workplace setting was also limited to simple, work-related decisions. Dr. Belton opined that when Plaintiff's symptoms were active, she would likely have difficulty making adjustments and changes within an environment quickly. Plaintiff could likely take necessary precautions when faced with a new situation, but additional processing time was recommended. The undersigned cannot say that the RFC fails to account for these opinions, as the ALJ determined that Plaintiff was limited to only dealing with changes in a workplace setting that relate to simple, work-related decisions.
Further, Plaintiff's argument on this point focuses on an examination finding rather than a specific functional limitation assessed by a medical source-stated another way, a qualitative versus a quantitative limitation. See Shaibi v. Berryhill, 883 F.3d 1102, 110607 (9th Cir. 2017) (claimant argued that ALJ wrongly evaluated the medical opinions by gleaning from the “qualitative” limitations the doctors identified-that claimant would be “moderately limited” in his interactions with coworkers and could “relate to others on a superficial work basis”-a “quantitative” limitation that the claimant was capable of “occasional” interaction with coworkers; court found “no obvious inconsistency between the two physicians' opinions regarding [claimant's] capability for interaction with colleagues and the ALJ's [RFC]” assessment). Dr. Belton did not opine to a certain amount of social interaction during the work day such as no contact, occasional contact, or frequent contact. That Plaintiff interprets Dr. Belton's statement as requiring a greater than occasional limitation to interaction with supervisors, coworkers, and the public does not make the ALJ's assessment of Dr. Belton's opinion wrong, nor does it require a finding of error in the RFC assessment. See Schneider v. Comm'r Soc. Sec. Admin., 433 Fed.Appx. 507, 510 (9th Cir. 2011) (Finding no error in ALJ's RFC assessment where doctor “testified generally about [claimant's] ‘significant difficulties in terms of maintaining normal social interactions,' and the ALJ reasonably translated that diagnosis into a hypothetical claimant ‘limited to unskilled work with no public contact and minimal social interactions with coworkers.'”). Finally, to the extent that Plaintiff argues that the ALJ erred in discounting Dr. Belton's opinion because the ALJ did not address how the lay witness statement of Plaintiff's mother supported Dr. Belton's opinion, the Court finds no error on this point. While the regulations require evidence from nonmedical sources to be considered in determining eligibility for SSI benefits, the regulations do not require the ALJ to articulate how he considered the evidence from nonmedical sources. 20 C.F.R. §§ 416.913(a)(4), 416.920c(d); see also Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (While the Commissioner is required to “make fairly detailed findings in support of administrative decisions to permit courts to review those decisions intelligently[, the Commissioner] . . . need not discuss all evidence presented to her. Rather, she must explain why significant probative evidence has been rejected.” (internal quotations and citations omitted)); Owen v. Saul, 808 Fed.Appx. 421, 423 (9th Cir. 2020) (rejecting claimant's argument that other evidence supported medical opinion that ALJ discounted, stating “this simply highlights a conflict in the evidence[, and r]esolving conflicts is the ALJ's responsibility and prerogative”). Here, the ALJ stated that he considered the lay witness statements and observations regarding Plaintiff's “impairments and associated decreased work capacity when determining” the RFC. (AR 61). The regulations require nothing more. See Roy v. Comm'r of Soc. Sec. Admin., 2022 WL 34678, at *7 (D. Ariz. Jan. 4, 2022) (“The applicable regulations require the ALJ to consider testimony from a claimant's family and friends. The regulations, however, ‘do not require the ALJ to provide express reasons for rejecting testimony from each lay witness.'” (quoting Molina, 674 F.3d at 1114 (clarifying that contrary to the statement in Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993), that “[i]f the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness,” an ALJ is not required to “discuss every witness's testimony on a[n] individualized, witness-by-witness basis”))); see also Molina, 674 F.3d at 1122 (where lay testimony did not describe any limitations beyond those the claimant herself described, ALJ's failure to discuss lay witness testimony was “inconsequential to the ultimate nondisability determination” in the context of the record as a whole); Doddridge v. Comm'r of Soc. Sec. Admin., 2022 WL 682621, at *6 (D. Ariz. Mar. 8, 2022) (assuming without deciding that even if ALJ was required to give germane reasons to discount lay witness testimony under the new regulations, failure to do so was harmless because ALJ gave clear and convincing reasons to discount claimant's testimony, “so it follows that the ALJ had germane reasons to reject the lay witness testimony”); Thomas v. Comm'r of Soc. Sec. Admin., 2022 WL 292547, at *7 (D. Ariz. Feb. 1, 2022) (same).
The same reasoning applies to Plaintiff's ability to respond to changes in the workplace: The ALJ found that Plaintiff was limited to only dealing with changes in a workplace setting that relate to simple, work-related decisions. While Dr. Belton opined that Plaintiff would likely have difficulty making adjustments and changes quickly when her symptoms were active, Dr. Belton did not opine to anything more specific than that.
In sum, the undersigned finds no error in the ALJ's assessment of Dr. Belton's opinion. While the evidence before the ALJ may be subject to more than one rational interpretation, the Court may not substitute its judgment for that of the ALJ. “The medical evidence presented perhaps would permit a reasonable mind to make a finding of disability. It also would permit a finding of no disability. When there is evidence sufficient to support either outcome, we must affirm the decision actually made.” Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985); see also Burch, 400 F.3d at 680-81 (“[W]e must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation.”); Shaibi, 883 F.3d at 1108 (claimant argued ALJ could have come to a different conclusion, but court must affirm ALJ's findings of fact if they are supported by substantial evidence and decision is free from legal error; where court could not “say that the ALJ's interpretation of the available evidence was not rational, the ALJ's conclusions were supported by substantial evidence”).
V. Remedy
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ's findings, this Court is required to affirm the ALJ's decision. After considering the record as a whole, this Court simply determines whether there is substantial evidence for a reasonable trier of fact to accept as adequate to support the ALJ's decision. Valentine, 574 F.3d at 690. “[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). Here, the undersigned finds that the ALJ's decision is supported by substantial evidence and is free from legal error. See Batson, 359 F.3d at 1196 (“When evidence reasonably supports either confirming or reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ.”); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ”); Missell v. Colvin, 2014 WL 2048082, *6 (D. Ariz. May 19, 2014) (“This Court cannot substitute its judgment for the ALJ simply because the evidence could be given more than one possible meaning.”).
VI. Recommendation
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, affirm the decision of the Commissioner of Social Security.
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No reply to any response shall be filed. See id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).