# Nathan Kogen v. Nancy A. Berryhill

> District Court, C.D. California · September 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10035682

## Case

- **Court:** District Court, C.D. California
- **Decided:** September 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10035682

## How later opinions describe it (automated extraction)

- finding doctor’s opinion 13 assessing functional limitations inconsistent with treatment 14 notes and objective findings that were within normal limits, 15 which was specific and legitimate reason for assigning it “little 16 weight”
- finding that 28 ALJ did not err by placing support for step-three determination 31 1 |}elsewhere in decision
- finding that ALJ properly 22 translated moderate mental limitations assessed by one doctor 23 into “concrete restriction[]” of limitation to “simple tasks”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
NATHAN K.,1 ) Case No. CV 18-3518-JPR
11
)
Plaintiff, )
12
) MEMORANDUM DECISION AND ORDER
v. ) AFFIRMING COMMISSIONER
13
)
ANDREW SAUL, Commissioner )
14
of Social Security,2 )
)
15
Defendant. )
)
16
)
17
18 I. PROCEEDINGS
19 Plaintiff seeks review of the Commissioner’s final decision
20 denying his application for Social Security disability insurance
21 benefits (“DIB”). The parties consented to the jurisdiction of
22 the undersigned under 28 U.S.C. § 636(c). The matter is before
23 the Court on the parties’ Joint Stipulation, filed August 27,
24
1 Plaintiff’s name is partially redacted in compliance with
25
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
26 recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.
27
2 Andrew Saul is substituted in as the correct Defendant.
28 See Fed. R. Civ. P. 25(d).
1
1 2019, which the Court has taken under submission without oral
2 argument. For the reasons stated below, the Commissioner’s
3 decision is affirmed.
4 II. BACKGROUND
5 Plaintiff was born in 1986. (Administrative Record (“AR”)
6 464.) He has a high-school education and attended some college.
7 (AR 336, 1021.) He last worked as an internet sales manager at a
8 car dealership, a security officer, and a salesperson. (AR 336-
9 39, 485.) On October 21, 2016, he applied for DIB, alleging that
10 he had been unable to work since October 23, 2015, because of
11 depression, anxiety, ADHD, “ankylosing spondylitis,”3 and type-
12 two bipolar disorder. (AR 464, 484.) After Plaintiff’s
13 application was denied (AR 379, 382-83), he requested a hearing
14 before an Administrative Law Judge (AR 390-91). A hearing was
15 held on November 21, 2017, at which Plaintiff, who was
16 represented by counsel, testified, as did a vocational expert.
17 (AR 331-68.) In a written decision issued December 22, 2017, the
18 ALJ determined that he was not disabled. (AR 15-28.) On March
19 22, 2018, the Appeals Council denied his request for review.
20 (AR 1-5.) This action followed.
21 III. STANDARD OF REVIEW
22 Under 42 U.S.C. § 405(g), a district court may review the
23 Commissioner’s decision to deny benefits. The ALJ’s findings and
24 decision should be upheld if they are free of legal error and
25
26
3 Ankylosing spondylitis is a type of arthritis that causes
27 pain, stiffness, and inflammation in the spine. See Ankylosing
Spondylitis (AS), WebMD, https://www.webmd.com/arthritis/
28 what-is-ankylosing-spondylitis#1 (last visited Sept. 25, 2019).
2
1 supported by substantial evidence based on the record as a whole.
2 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.
3 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence
4 means such evidence as a reasonable person might accept as
5 adequate to support a conclusion. Richardson, 402 U.S. at 401;
6 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It
7 is “more than a mere scintilla but less than a preponderance.”
8 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
9 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the
10 meaning of ‘substantial’ in other contexts, the threshold for
11 such evidentiary sufficiency is not high.” Biestek v. Berryhill,
12 139 S. Ct. 1148, 1154 (2019). To determine whether substantial
13 evidence supports a finding, the reviewing court “must review the
14 administrative record as a whole, weighing both the evidence that
15 supports and the evidence that detracts from the Commissioner’s
16 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
17 1998). “If the evidence can reasonably support either affirming
18 or reversing,” the reviewing court “may not substitute its
19 judgment” for the Commissioner’s. Id. at 720-21.
20 IV. THE EVALUATION OF DISABILITY
21 People are “disabled” for purposes of receiving Social
22 Security benefits if they are unable to engage in any substantial
23 gainful activity owing to a physical or mental impairment that is
24 expected to result in death or has lasted, or is expected to
25 last, for a continuous period of at least 12 months. 42 U.S.C.
26 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
27 1992).
28
3
1 A. The Five-Step Evaluation Process
2 The ALJ follows a five-step sequential evaluation process in
3 assessing whether a claimant is disabled. 20 C.F.R.
4 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th
5 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the
6 Commissioner must determine whether the claimant is currently
7 engaged in substantial gainful activity; if so, the claimant is
8 not disabled and the claim must be denied. § 404.1520(a)(4)(i).
9 If the claimant is not engaged in substantial gainful
10 activity, the second step requires the Commissioner to determine
11 whether the claimant has a “severe” impairment or combination of
12 impairments significantly limiting his ability to do basic work
13 activities; if not, a finding of not disabled is made and the
14 claim must be denied. § 404.1520(a)(4)(ii), (c).
15 If the claimant has a “severe” impairment or combination of
16 impairments, the third step requires the Commissioner to
17 determine whether the impairment or combination of impairments
18 meets or equals an impairment in the Listing of Impairments
19 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix
20 1; if so, disability is conclusively presumed and benefits are
21 awarded. § 404.1520(a)(4)(iii), (d).
22 If the claimant’s impairment or combination of impairments
23 does not meet or equal an impairment in the Listing, the fourth
24 step requires the Commissioner to determine whether the claimant
25 has sufficient residual functional capacity (“RFC”)4 to perform
26
27 4 RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 404.1545(1); see Cooper v.
28 (continued...)
4
1 his past work; if so, the claimant is not disabled and the claim
2 must be denied. § 404.1520(a)(4)(iv). The claimant has the
3 burden of proving he is unable to perform past relevant work.
4 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a
5 prima facie case of disability is established. Id.
6 If that happens or if the claimant has no past relevant
7 work, the Commissioner then bears the burden of establishing that
8 the claimant is not disabled because he can perform other
9 substantial gainful work available in the national economy, the
10 fifth and final step of the sequential analysis.
11 §§ 404.1520(a)(4)(v), 404.1560(b); Drouin, 966 F.2d at 1257.
12 B. The ALJ’s Application of the Five-Step Process
13 At step one, the ALJ found that Plaintiff met the insured
14 status requirements through December 31, 2020, and had not
15 engaged in substantial gainful activity since October 23, 2015.
16 (AR 17.) At step two, she determined that he had the severe
17 impairments of “bipolar affective disorder, depressed, without
18 psychotic features; generalized anxiety disorder; attention
19 deficit disorder (ADHD), predominantly inattentive type;
20 ankylosing spondylitis; and cervical spine degenerative disc
21 disease.” (Id.)
22 At step three, she determined that Plaintiff’s impairments
23 did not meet or equal any of the impairments in the Listing. (AR
24 18-20.) At step four, she found that Plaintiff had the RFC to
25 perform light work with additional limitations:
26
27
4 (...continued)
28 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
5
1 [he] can occasionally lift and/or carry 20 pounds and
2 frequently lift and/or carry 10 pounds; occasionally
3 climb ramps and stairs; never climb ladders, ropes, or
4 scaffolds; occasionally stoop, kneel, crouch, and crawl;
5 and can perform simple, routine tasks without any contact
6 with the public, and only occasional, superficial contact
7 with coworkers.
8 (AR 20.) Based on the testimony of the vocational expert, the
9 ALJ concluded that Plaintiff was unable to perform his past
10 relevant work. (AR 26.)
11 At step five, considering Plaintiff’s age, education, work
12 experience, and RFC and the VE testimony, she found that
13 Plaintiff could perform several jobs existing in significant
14 numbers in the national economy. (AR 27.) Accordingly, she
15 found him not disabled. (AR 27-28.)
16 V. DISCUSSION5
17 Plaintiff contends that the ALJ erred in assessing the
18 opinion of his treating psychologist and in evaluating his
19 subjective symptom statements. (J. Stip. at 4-14, 16-20.) For
20 the reasons discussed below, remand is not warranted on either
21
22 5 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme
Court held that ALJs of the Securities and Exchange Commission
23 are “Officers of the United States” and thus subject to the
Appointments Clause. To the extent Lucia applies to Social
24 Security ALJs, Plaintiff has forfeited the issue by failing to
raise it during his administrative proceedings. (See AR 331-68,
25
458); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as
26 amended) (plaintiff forfeits issues not raised before ALJ or
Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918,
27 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff
did not raise it during administrative proceedings), cert.
28 denied, 139 S. Ct. 2013 (2019).
6
1 basis.
2 A. The ALJ Gave a Specific and Legitimate Reason for
3 Discounting the Opinion of Plaintiff’s Treating
4 Psychologist
5 Plaintiff argues that the ALJ improperly discounted the
6 April 2017 opinion of his treating psychologist that his mental
7 impairments resulted in many extreme and marked functional
8 limitations that prevented him from working. (See J. Stip. at 4-
9 14.) As explained below, however, the ALJ appropriately found
10 that Dr. Bell’s opinion merited “little weight.” (AR 24.)
11 1. Applicable law
12 Three types of physicians may offer opinions in Social
13 Security cases: those who directly treated the plaintiff, those
14 who examined but did not treat the plaintiff, and those who did
15 neither. See Lester, 81 F.3d at 830. A treating physician’s
16 opinion is generally entitled to more weight than an examining
17 physician’s, and an examining physician’s opinion is generally
18 entitled to more weight than a nonexamining physician’s. See
19 id.; § 404.1527(c)(1).6
20
21
6 For claims filed on or after March 27, 2017, the rules in
22 § 404.1520c (not § 404.1527) apply. See § 404.1520c (evaluating
opinion evidence for claims filed on or after Mar. 27, 2017).
23 The new regulations provide that the Social Security
Administration “will not defer or give any specific evidentiary
24 weight, including controlling weight, to any medical opinion(s)
or prior administrative medical finding(s), including those from
25
your medical sources.” Id. § 404.1520c(a). Thus, the new
26 regulations eliminate the term “treating source” as well as what
is customarily known as the treating-source or treating-physician
27 rule. See id. Plaintiff’s claim was filed before March 27,
2017, and the Court therefore analyzes it under the treating-
28 (continued...)
7
1 This is so because treating physicians are employed to cure
2 and have a greater opportunity to know and observe the claimant.
3 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If a
4 treating physician’s opinion is well supported by medically
5 acceptable clinical and laboratory diagnostic techniques and is
6 not inconsistent with the other substantial evidence in the
7 record, it should be given controlling weight. § 404.1527(c)(2).
8 If it is not given controlling weight, its weight is determined
9 by length of the treatment relationship, frequency of
10 examination, nature and extent of the treatment relationship,
11 amount of evidence supporting the opinion, consistency with the
12 record as a whole, the doctor’s area of specialization, and other
13 factors. § 404.1527(c)(2)-(6).
14 When a physician’s opinion is not contradicted by other
15 evidence in the record, it may be rejected only for a “clear and
16 convincing” reason. See Carmickle v. Comm’r, Soc. Sec. Admin.,
17 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at
18 830-31). When a doctor’s opinion is contradicted, the ALJ must
19 provide only a “specific and legitimate reason” for discounting
20 it. Id. (citing Lester, 81 F.3d at 830-31). The weight given an
21 examining physician’s opinion, moreover, depends on whether it is
22 consistent with the record and accompanied by adequate
23 explanation, among other things. § 404.1527(c)(3)-(6).
24 Furthermore, “[t]he ALJ need not accept the opinion of any
25 physician, including a treating physician, if that opinion is
26
27
6 (...continued)
28 source rule set out in § 404.1527.
8
1 brief, conclusory, and inadequately supported by clinical
2 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
3 2002); accord Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
4 1190, 1195 (9th Cir. 2004).
5 2. Relevant background
6 a. Plaintiff’s treating doctors
7 Plaintiff was treated on and off at Azimuth Mental Health
8 from May 26, 2015, through June 21, 2017, totaling almost 20
9 visits.7 (AR 721-31, 957-60.) His initial psychiatric
10 evaluation, in May 2015, listed his “current symptoms” as
11 depressed mood, poor concentration, and “altered” attention span.
12 (AR 729.) But he had no fatigue, impairment in functioning,
13 anxiety, racing thoughts, or many other symptoms. (Id.) He
14 slept seven hours a day. (Id.) Mental-status-examination
15 results — including appearance, behavior, speech, level of
16 consciousness, affect, thought processes, perception,
17 orientation, cognition, judgment, and insight — were all normal
18 or appropriate. (AR 730-31.) As to “thought content,” someone
19 wrote “see form” (AR 730), but no such attachment is in the
20 record. He was diagnosed with bipolar disorder and was taking
21 Lamictal.8 (AR 728, 731.) At all subsequent visits, his mental-
22
23
7 The treatment notes from Azimuth do not list a provider,
24 but the index in the Administrative Record indicates that they
are from “Azimuth Mental Health Assoc.” (See also AR 720.)
25
26 8 Lamictal is an antiepileptic medication that is also used
to prevent mood swings in adults with bipolar disorder. See
27 Lamictal Tablet, WebMD, https://www.webmd.com/drugs/2/
drug-8486-7217/lamictal-oral/lamotrigine-oral/details (last
28 visited Sept. 25, 2019).
9
1 status-examination results remained within normal limits for all
2 areas assessed. (See AR 721-25, 727, 957-60.) Treatment notes
3 state that by December 21, 2015, he was “doing much better.” (AR
4 724.) On January 20, 2016, his anxiety had increased, but in
5 April and July 2016 he was “doing well.” (AR 722-23.)
6 Plaintiff was admitted to an outpatient treatment program at
7 Community Hospital from February 12 through April 26, 2016, where
8 he attended group therapy, activity therapy, and training and
9 education sessions. (J. Stip. at 7; AR 556-719.) Treatment
10 notes from group therapy indicate that his mood was generally
11 depressed and anxious as well as sometimes labile, guarded, or
12 irritable or sad, always with a congruent affect. (See, e.g., AR
13 558-59, 570-71, 592-94, 607, 609, 623-24, 640-41, 653-55, 666-69,
14 690-92, 710-12.) He actively participated in the therapy, was
15 focused, and responded well to the discussions. (See, e.g., AR
16 556, 558, 574, 592, 599, 607, 623-24, 650.) His cognitive
17 behavior during the sessions was generally alert and oriented and
18 was frequently “appropriate” and “problem solving.” (See, e.g.,
19 574, 589, 593-94, 598-600, 603, 611-15, 629-31, 650-51, 667-69,
20 699.)
21 At an individual consultation on March 29, 2016, a
22 registered nurse noted that Plaintiff was “making progress” and
23 that he had recently started taking Vistaril, which was helping
24 his anxiety “throughout the day.”9 (AR 649.) During therapy in
25
26
9 Vistaril is an antihistamine that is also used short-term
27 to treat anxiety. See Vistaril, WebMD, https://www.webmd.com/
drugs/2/drug-6144/vistaril-oral/details (last visited Sept. 25,
28 2019).
10
1 April 2016, he shared that he was able to go out with friends,
2 was laughing with the group, and was using coping skills he had
3 learned to manage stress. (AR 699-701.) He also noted meeting
4 his goal of attending a family dinner and feeling good about his
5 discharge from the program because he had made “lots of
6 progress.” (AR 714.)
7 Plaintiff saw psychologist Vera Bell for regular weekly
8 visits beginning in June 2015 through at least April 2017. (AR
9 732-37, 871-74, 886-953.) Her treatment notes indicate that he
10 generally complained of depression, mood swings, and anxiety and
11 occasionally of isolation, anger, problems with his attention
12 span, or physical pain. (See AR 887-953.) Dr. Bell’s mental-
13 status-examination notes show that he usually had normal
14 appearance, thought process, and speech but impaired
15 concentration, a depressed and anxious mood, and labile affect.
16 (See id.) In July 2015, she twice checked a box indicating that
17 he had delusions. (AR 891-92.) And in May 2016, she noted his
18 rapid speech. (AR 932.) Her treatment plan was consistently the
19 same during the course of his treatment — that he continue with
20 outpatient cognitive psychotherapy and see a psychiatrist or
21 specialist for medication. (See AR 887-953.)
22 On November 26, 2016, Dr. Bell completed a mental-disorder
23 questionnaire about him, noting that his chief complaints were
24 shakes, inability to sleep, depression, crying easily, anxiety,
25 headaches, upset stomach, mood swings, poor concentration, and
26 anger. (AR 733-37.) She assessed his current mental status as
27 depressed; easily discouraged, upset, and distracted; and
28 “extremely dependent.” (AR 734-35.) He had a negative attitude
11
1 and mood swings, but he was oriented to time, place, and person,
2 with no delusions, hallucinations, or paranoid thoughts. (Id.)
3 In assessing his current level of functioning, Dr. Bell explained
4 that he needed “constant assistance from his parents” with money,
5 paying bills, and maintaining his residence; he had trouble
6 communicating with his father and lacked motivation; he took a
7 long time to complete tasks because of trouble focusing and
8 following directions; and he had lost jobs because of his
9 “disability.” (AR 735-36.) She opined that he was unable to
10 work. (AR 737.) She indicated that he was taking Lamictal and
11 bupropion and that he frequently changed his medications.10 (AR
12 737.)
13 On April 15, 2017, Dr. Bell completed a medical-source
14 statement concerning Plaintiff’s ability to do work-related
15 activities. (AR 868-70.) She assessed him with “[e]xtreme”
16 limitations in the following areas: making judgments on simple
17 and complex work-related decisions, performing at a consistent
18 pace without more than regular breaks in a workday, interacting
19 appropriately with supervisors and coworkers, sustaining an
20 ordinary routine without special supervision, and responding
21 appropriately to changes in a routine work setting.11 (AR 868-
22
23 10 Bupropion treats depression by helping restore the
balance of neurotransmitters in the brain. See Bupropion Hcl,
24 WebMD, https://www.webmd.com/drugs/2/drug-13507-155/
bupropion-hcl-oral/bupropion-oral/details (last visited Sept. 25,
25
2019).
26
11 The assessment form defines an “[e]xtreme” limitation as
27 “major,” with “no useful ability to function in th[at] area.”
(AR 868.) A “[m]arked” limitation “seriously interferes with the
28 (continued...)
12
1 69.) He had “[m]arked” limitations in carrying out short, simple
2 instructions; understanding, remembering, and carrying out
3 detailed instructions; and maintaining attendance and punctuality
4 during a workday and workweek. (Id.) He had “[m]oderate”
5 limitations in interacting appropriately with the public and
6 “[s]light” limitations in understanding and remembering short,
7 simple instructions. (Id.) Mental-status-examination results
8 from that day indicate that he was easily discouraged, upset, and
9 distracted and unable to find a way of resolving his emotional
10 issues. (AR 872.) But he was cooperative, pleasant, and
11 oriented to time, place, and person. (Id.)
12 On April 5, 2017, Plaintiff was admitted to a 14- to 21-day
13 “partial hospitalization” outpatient program at College Hospital,
14 where he complained of increased depression, anxiety,
15 distraction, and trouble sleeping. (AR 1021-22, 1110.) He
16 stated that he was “constantly depressed” because his “fiancee
17 left” and he was having “financial issues.” (AR 1052.) He
18 reported taking Wellbutrin, Lamictal, and Latuda.12 (AR 1021.)
19
20 11 (...continued)
ability to function independently, appropriately, effectively,
21
and on a sustained basis.” (Id.) A “[m]oderate” limitation is
22 “signifcant” and means that “[d]eficiencies could not be ignored
by a supervisor, coworker, peer, or the public.” (Id.) And a
23 “[s]light” limitation means “some mild limitations . . . but the
individual can generally function well.” (Id.)
24
12 Wellbutrin is name-brand bupropion. See Wellbutrin,
25
WebMD, https://www.webmd.com/drugs/2/drug-13509/wellbutrin-oral/
26 details (last visited Sept. 25, 2019). Latuda is used to treat
certain mood disorders, such as schizophrenia or depression
27 associated with bipolar disorder. See Latuda, WebMD, https://
www.webmd.com/drugs/2/drug-155134/latuda-oral/details (last
28 (continued...)
13
1 Psychiatrist James Pratty performed a psychiatric and mental-
2 status examination when Plaintiff was admitted, and results show
3 that he was within normal limits in all categories except that
4 his mood was “slightly anxious and depressed” and he had “mild to
5 moderate ease of distractibility.” (AR 1021-22.) He diagnosed
6 bipolar affective order, depressed, without psychotic features,
7 cannabis dependence, methamphetamine dependence, generalized
8 anxiety disorder, and ADHD.13 (AR 1022.)
9 Dr. Pratty made progress notes every few days during
10 Plaintiff’s treatment at College Hospital, and they indicate that
11 he remained somewhat anxious and preoccupied and “at times” was
12 “somewhat easily overwhelmed.” (See AR 1064-65, 1073, 1076,
13 1080, 1085, 1089, 1096.) But he was sleeping “reasonably well”
14 (AR 1064, 1073, 1080, 1089, 1096) and was “oriented to person,
15 place, time and purpose” (AR 1065, 1076, 1085, 1093). On April
16 21, 2017, a therapist conducted a “psychosocial evaluation” and
17 concluded that he “ha[d] adequate functioning and [would] benefit
18 from [the] program by learning coping skills, medication, [and]
19 symptom management.” (AR 1042.) Plaintiff was discharged from
20 the program on May 5, 2017, at his own request, and records show
21 he was deemed “non-compliant with attendance.” (AR 1020, 1106.)
22 b. Examiners and reviewers
23
24 12 (...continued)
visited Sept. 25, 2019).
25
26 13 The ALJ found that Plaintiff’s statements at the hearing
and in the record about methamphetamine and cannabis use
27 established that any impairments from dependence on those
substances were “nonsevere.” (AR 18.) Plaintiff has not
28 challenged that finding.
14
1 On February 10, 2016, psychologist Robert J. Craig performed
2 a “Millon Clinical Multiaxial Inventory II/III” on Plaintiff.
3 (AR 859-66.) His report noted “mild” cognitive dysfunction and
4 depression that were not enough to impair daily functioning and
5 “[p]ossible” diagnoses of generalized anxiety, dysthymic, and
6 other disorders. (AR 862, 864-65.)
7 On January 3, 2017, consulting psychiatrist Ernest A. Bagner
8 performed a complete psychiatric evaluation of Plaintiff, who
9 complained of depression, anxiety, ADHD, mood swings, low
10 motivation and energy, and feelings of helplessness and
11 hopelessness. (AR 790-94.) He indicated that he was taking
12 Wellbutrin, Lamictal, Adderall, and Seroquel.14 (AR 791.)
13 Mental-status-examination results show that he was within normal
14 or appropriate limits in all areas except that his mood was a
15 “little sad.” (AR 792-93.) Dr. Bagner diagnosed attention
16 deficit disorder and bipolar disorder in remission, with a GAF
17 score of 70.15 (AR 793.) He assessed Plaintiff with no
18
19 14 Adderall is a stimulant used to treat ADHD. See
Adderall, WebMD, https://www.webmd.com/drugs/2/drug-63163/
20 adderall-oral/details (last visited Sept. 25, 2019).
21
Seroquel is used to treat certain mental or mood conditions,
22 such as schizophrenia, bipolar disorder, or sudden episodes of
mania or depression associated with bipolar disorder. See
23 Seroquel, WebMD, https://www.webmd.com/drugs/2/drug-4718/
seroquel-oral/details (last visited Sept. 25, 2019).
24
15 GAF scores assess a person’s overall psychological
25
functioning on a scale of 1 to 100. See Diagnostic and
26 Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000).
A GAF score of 61 to 70 indicates “some mild symptoms (e.g.,
27 depressed mood and mild insomnia) OR some difficulty in social,
occupational, or school functioning . . . but generally
28 (continued...)
15
1 functional limitations at all. (Id.)
2 On February 13, 2017, Dr. L. Mallare reviewed Plaintiff’s
3 medical history and diagnosed him with ADHD and depressive,
4 bipolar, and related disorders.16 (AR 374.) He found only mild
5 limitations in all areas of functioning. (AR 375.)
6 3. Analysis
7 Unlike Dr. Bell, Drs. Bagner and Craig assessed Plaintiff
8 with no functional limitations (AR 793, 864-65), and the ALJ
9 assigned Dr. Bagner’s opinion “[g]reat weight” (AR 23).17
10 Because Dr. Bell’s April 2017 opinion was contradicted, the ALJ
11 needed to provide only a “specific and legitimate reason” for
12
15 (...continued)
13
functioning pretty well, has some meaningful interpersonal
14 relationships.” Id. at 34. The Commissioner has declined to
endorse GAF scores, Revised Medical Criteria for Evaluating
15 Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50764-
65 (Aug. 21, 2000) (codified at 20 C.F.R. pt. 404) (GAF score
16 “does not have a direct correlation to the severity requirements
in our mental disorders listings”), and the most recent edition
17
of the DSM “dropped” the GAF scale, citing its lack of conceptual
18 clarity and questionable psychological measurements in practice,
DSM-V at 16 (5th ed. 2013). Because GAF scores continue to be
19 included in claimant medical records, however, the Social
Security Administration has clarified that they are “medical
20 opinion evidence under 20 C.F.R. §§ 404.1527(a)(2) and
416.927(a)(2) if they come from an acceptable medical source.”
21
Wellington v. Berryhill, 878 F.3d 867, 871 n.1 (9th Cir. 2017)
22 (citation omitted). Here, the ALJ gave “little weight” to the
GAF ratings in the record. (AR 25.)
23
16 Dr. Mallare used a medical-specialty code of “37” (see AR
24 374), which indicates that he is a psychiatrist. See Soc. Sec.
Admin. Program Operations Manual System (POMS) DI 24501.004,
25
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (last
26 updated May 5, 2015).
27 17 The ALJ rejected Dr. Craig’s “‘possible’ diagnoses” but
did not evaluate his finding that Plaintiff’s “daily functioning”
28 was not impaired. (AR 22.)
16
1 discounting it. See Carmickle, 533 F.3d at 1164 (citing Lester,
2 81 F.3d at 830-31). As explained below, she did so, and remand
3 is not warranted on this basis.
4 a. Inconsistency with record evidence
5 The ALJ found that Dr. Bell’s April 2017 opinion was
6 “generally inconsistent with the evidence of record as a whole,”
7 including mental-status examinations from Azimuth Mental Health
8 and Dr. Bagner and with Dr. Bell’s own progress notes. (AR 24.)
9 Inconsistency with the medical evidence, including a doctor’s own
10 treatment notes, is a specific and legitimate reason to discount
11 a treating physician’s opinion. See Tommasetti v. Astrue, 533
12 F.3d 1035, 1041 (9th Cir. 2008); Connett v. Barnhart, 340 F.3d
13 871, 875 (9th Cir. 2003) (physician’s opinion was properly
14 rejected when his own treatment notes “provide[d] no basis for
15 the functional restrictions he opined should be imposed on
16 [plaintiff]”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.
17 2001) (ALJ permissibly rejected physician’s opinion when it was
18 “implausible” and “not supported by any findings made by any
19 doctor,” including herself).
20 The records from Azimuth indicate that at each of nearly 20
21 visits spanning a 25-month period, including those noted by the
22 ALJ, Plaintiff’s mental-status-examination results were within
23 normal limits.18 (See AR 22-23 (citing AR 721-25); AR 727, 729,
24
25
18 Plaintiff complains that the ALJ gave an incorrect
26 citation to the Azimuth records containing normal results of his
mental-status examinations. (J. Stip. at 12.) But that
27 typographical error has no significance because, as he concedes,
the test results were normal at all his visits to Azimuth,
28 (continued...)
17
1 957-60.) And as the ALJ pointed out, Dr. Bagner’s January 3,
2 2017 psychiatric evaluation also showed entirely normal mental-
3 status-examination results except that Plaintiff’s mood was a
4 “little sad.” (AR 23 (citing 792-93).) Similarly, Dr. Craig’s
5 February 2016 assessment found only mild cognitive dysfunction
6 and impairment, with Plaintiff reporting no impact on his daily
7 functioning. (AR 865.) Thus, the ALJ appropriately discounted
8 Dr. Bell’s April 2017 opinion as inconsistent with the largely
9 normal mental-status-examination results of record. See Shultes
10 v. Berryhill, 758 F. App’x 589, 591-92 (9th Cir. 2018) (finding
11 that ALJ appropriately rejected two doctors’ opinions of
12 claimant’s functional limitations because they were inconsistent
13 with normal mental-status-examination results); Scott v.
14 Berryhill, No. C17-1452-JPD, 2018 WL 2298638, at *6 (W.D. Wash.
15 May 21, 2018) (inconsistency between doctor’s opinion of
16 plaintiff’s severe and marked functional limitations and
17 longitudinal record showing mostly normal mental-status
18 examinations was specific and legitimate reason for rejecting
19 that opinion). Indeed, no other doctor assessed mental
20 limitations even approaching Dr. Bell’s.
21 The ALJ noted much other evidence that is inconsistent with
22 the severe functional limitations assessed by Dr. Bell. (See AR
23 19, 22-26.) For example, Plaintiff reported to Dr. Craig in
24 February 2016 that he was having only “some mild signs of
25 depression” that were not “severe enough to impair his daily
26
27 18 (...continued)
spanning well before and after his outpatient “hospitalizations.”
28 (See AR 721-25, 727, 729, 730-31, 957-60.)
18
1 functioning.” (AR 22 (citing AR 859-66).) Mental-status-
2 examination results during his treatment at Community Hospital
3 show that even when depressed and anxious, he was well-oriented
4 and had adequate judgment, intact memory, good eye contact, clear
5 speech, a neat and clean appearance, and no hallucinations or
6 delusions. (AR 22 (citing AR 575-78).) And in January 2017, Dr.
7 Bagner assessed Plaintiff with no functional limitations at all.
8 (AR 23 (citing AR 790-96).) The inconsistency between this
9 evidence and Dr. Bell’s opinion of Plaintiff’s many extreme or
10 marked functional limitations was a specific and legitimate
11 reason for discounting that opinion. See Maestas v. Berryhill,
12 692 F. App’x 868, 869 (9th Cir. 2017) (finding doctor’s opinion
13 assessing functional limitations inconsistent with treatment
14 notes and objective findings that were within normal limits,
15 which was specific and legitimate reason for assigning it “little
16 weight”); Baker v. Colvin, Case No.: 16-cv-01048-CAB(JMA), 2017
17 WL 2889302, at *10-11 (S.D. Cal. July 7, 2017) (ALJ properly
18 discounted treating psychiatrist’s opinion on plaintiff’s mental
19 limitations as inconsistent with clinical findings by examining
20 psychiatrist, who found no significant cognitive defects),
21 accepted by 2017 WL 3457189 (S.D. Cal. Aug. 11, 2017).
22 The ALJ also permissibly discounted Dr. Bell’s opinion on
23 Plaintiff’s mental limitations because it was inconsistent with
24 her own progress notes. (AR 24); see Connett, 340 F.3d at 875
25 (treating physician’s opinion properly rejected when treatment
26 notes “provide[d] no basis for the functional restrictions he
27 opined should be imposed on [claimant]”); Rollins, 261 F.3d at
28 856 (ALJ properly rejected treating physician’s opinion that was
19
1 contradicted by or inconsistent with treatment reports). As she
2 explained, Dr. Bell’s “progress notes since 2015 indicat[e that
3 Plaintiff] was generally within normal limits on all of his
4 mental status examinations, with the exception of a depressed,
5 labile, and anxious mood.” (AR 24 (citing AR 886-953).) Yet Dr.
6 Bell assessed him in April 2017 as entirely unable to function in
7 seven areas, including making judgments on even “simple work-
8 related decisions” and having any appropriate interaction at all
9 with coworkers. (See AR 868-89.) Her progress notes hardly
10 suggest that level of functional restriction.
11 Plaintiff contends that Dr. Bell’s progress notes were not
12 generally within normal limits and thus support the functional
13 limitations she assessed in April 2017. (J. Stip. at 9-11.) But
14 all of her progress notes during the relevant period indicate at
15 most that he was anxious and depressed, with a labile affect and
16 sometimes impaired concentration. (See AR 733-37, 871-74, 886-
17 953.) The ALJ noted these impairments and accounted for them in
18 the RFC, limiting him to simple, routine tasks, no contact with
19 the public, and limited contact with coworkers, findings he does
20 not challenge. (AR 20, 26); see Stubbs-Danielson v. Astrue, 539
21 F.3d 1169, 1173-74 (9th Cir. 2008) (finding that ALJ properly
22 translated moderate mental limitations assessed by one doctor
23 into “concrete restriction[]” of limitation to “simple tasks”);
24 Schaefer v. Colvin, No. 6:13-cv-00157-JE., 2014 WL 468915, at *7-
25 8 (D. Or. Feb. 3, 2014) (finding RFC limiting plaintiff to work
26 requiring no close contact with general public, only occasional
27 interaction with coworkers, and no more than simple, repetitive
28 tasks adequately accounted for his mental impairments, including
20
1 depression, anxiety, and cognitive disorder). As Plaintiff
2 notes, Dr. Bell twice indicated that he was having delusions.
3 (J. Stip. at 11 (citing AR 891-92 (July 13 and 21, 2015 progress
4 notes)).) But those alleged delusions happened several months
5 before the October 23, 2015 onset date and never resumed. See
6 Carmickle, 533 F.3d at 1165 (opinion issued before onset date is
7 of “limited relevance”).19
8 Plaintiff further contends that the ALJ failed to consider
9 the entire record and ignored other evidence showing that his
10 condition had at times deteriorated, including records from his
11 treatment at Community and College hospitals. (J. Stip. at 7-8,
12 11-12.) He is correct that an ALJ must “review the
13 administrative record as a whole, weighing both the evidence that
14 supports and the evidence that detracts from the Commissioner’s
15 conclusion.” Reddick, 157 F.3d at 720. But the ALJ did so here.
16 She gave a detailed recitation of the mental-health evidence and
17 carefully considered all of it. (See AR 19-26.) Indeed, she
18 explicitly weighed treatment notes from his participation in the
19 programs at both hospitals. (See AR 22 (citing AR 575-78), 24-25
20 (citing AR 1021-22).) Although the notes from College Hospital
21 indicated that he was anxious, depressed, and distracted, mental-
22 status-examination results from there were generally within
23
24 19 Moreover, as Defendant argues (see J. Stip. at 16), the
ALJ was entitled to reject Dr. Bell’s opinion to the extent it
25
was premised on Plaintiff’s subjective complaints, which, as
26 explained below, she properly discounted. See Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (when ALJ properly
27 discounted claimant’s credibility, he was “free to disregard”
doctor’s opinion that was premised on claimant’s subjective
28 complaints).
21
1 normal limits. (See AR 24-25 (citing AR 1021-22).) Similarly,
2 although he had an anxious mood upon admission to the program at
3 Community Hospital, those mental-status-examination results were
4 all within normal limits also. (See AR 22 (citing AR 575-78).)
5 Even if Plaintiff had been disabled during those short periods
6 immediately before and when he participated in the outpatient
7 programs, that would not satisfy the 12-month requirement of
8 § 423(d)(i)(A).
9 To the extent Plaintiff claims the ALJ erred by making a
10 “conclusory statement” that Dr. Bell’s opinion was inconsistent
11 with the record as a whole, he is mistaken. (J. Stip. at 7.) As
12 explained above, the ALJ pointed to much specific evidence that
13 was inconsistent with Dr. Bell’s opinion. (See AR 19-26.) That
14 she did not expressly compare and contrast each and every piece
15 of evidence with Dr. Bell’s findings is not significant, as the
16 Court may draw logical inferences from the ALJ’s opinion. See
17 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
18 b. Dr. Bell’s conservative treatment
19 recommendations
20 The ALJ found that Dr. Bell’s “own conservative course of
21 treat[ing]” Plaintiff was another reason for giving her April
22 2017 opinion little weight. (AR 24.) This can be a valid reason
23 to reject a treating provider’s opinion. See Rollins, 261 F.3d
24 at 856. But it does not apply here. As Plaintiff points out (J.
25 Stip. 8-9), Dr. Bell provided weekly cognitive psychotherapy for
26
27
28
22
1 over two years.20 (See AR 737, 886-953.) The ALJ failed to
2 explain what additional treatment she, a licensed psychologist
3 but not a physician, could have provided. See Tammy L.O. v.
4 Comm’r, Soc. Sec. Admin., No. 3:17-cv-774-SI, 2018 WL 3090196, at
5 *10 (D. Or. June 20, 2018) (finding that ALJ erred in rejecting
6 therapist’s opinion as inconsistent with her conservative
7 treatment of plaintiff when it was unclear that she could have
8 provided plaintiff with any more intensive treatment).
9 In addition, considering the treatment Plaintiff received
10 from all his providers since the alleged onset in October 2015 —
11 weekly therapy, psychiatric care, various psychiatric
12 medications, and two outpatient hospitalizations — his overall
13 care was not routine or conservative. See Delores A. v.
14 Berryhill, No. ED CV 17-254-SP, 2019 WL 1330314, at *6 (C.D. Cal.
15 Mar. 25, 2019) (finding treatment not conservative when plaintiff
16 attended monthly psychiatric sessions and took psychotropic
17 medications); Tammy L.O., 2018 WL 3090196, at *13 (finding that
18 ALJ erred in characterizing treatment as conservative when
19 plaintiff was in therapy, took various medications for anxiety
20 and depression, and underwent three intensive outpatient
21 hospitalizations).
22 Thus, the ALJ’s rejection of Dr. Bell’s opinion based on her
23 “conservative course of treatment” for Plaintiff is not supported
24
25
20 Plaintiff claims that Dr. Bell managed his medication.
26 (See J. Stip. at 9 (citing AR 749, 871, 874).) But her notes
indicate that a psychiatrist was doing that (see AR 871
27 (“medication management by psychiatrist”)), and Plaintiff
previously stated that also (see AR 546 (Dr. Pratty worked with
28 Plaintiff to monitor and adjust medication)).
23
1 by substantial evidence. (AR 24.) But because she stated a
2 valid reason supported by substantial evidence for rejecting it —
3 its inconsistency with other evidence — her erroneous
4 conservative-treatment rationale was harmless.
5 B. The ALJ Did Not Err in Discounting Plaintiff’s
6 Subjective Symptom Statements
7 Plaintiff claims that the ALJ failed to articulate a clear
8 and convincing reason for rejecting his testimony about his
9 mental-impairment symptoms. (J. Stip. at 16-20.) As explained
10 below, remand is not warranted on this basis.
11 1. Applicable law
12 An ALJ’s assessment of a claimant’s allegations concerning
13 the severity of his symptoms is entitled to “great weight.”
14 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended)
15 (citation omitted); see Nyman v. Heckler, 779 F.2d 528, 531 (9th
16 Cir. 1985) (as amended Feb. 24, 1986). “[T]he ALJ is not
17 ‘required to believe every allegation of disabling pain, or else
18 disability benefits would be available for the asking, a result
19 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina v.
20 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v.
21 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
22 In evaluating a claimant’s subjective symptom testimony, the
23 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d
24 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16,
25 2016).21 “First, the ALJ must determine whether the claimant has
26
27 21 The Commissioner applies SSR 16-3p to all
“determinations and decisions on or after March 28, 2016.” Soc.
28 (continued...)
24
1 presented objective medical evidence of an underlying impairment
2 [that] ‘could reasonably be expected to produce the pain or other
3 symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (citation
4 omitted). If such objective medical evidence exists, the ALJ may
5 not reject a claimant’s testimony “simply because there is no
6 showing that the impairment can reasonably produce the degree of
7 symptom alleged.” Smolen, 80 F.3d at 1282 (emphasis in
8 original).
9 If the claimant meets the first test, the ALJ may discount
10 the claimant’s subjective symptom testimony only if she makes
11 specific findings that support the conclusion. See Berry v.
12 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or
13 affirmative evidence of malingering, the ALJ must provide a
14 “clear and convincing” reason for rejecting the claimant’s
15 testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
16
17
21 (...continued)
18 Sec. Admin., Policy Interpretation Ruling, SSR 16-3p n.27,
https://www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html
19 (last visited Sept. 25, 2019). Thus, it applies here. Though
the new ruling eliminates the term “credibility” and focuses on
20 “consistency” instead, id., Plaintiff refers to credibility (see
J. Stip. at 18), and much of the relevant case law uses that
21
language too. But as the Ninth Circuit has clarified, SSR 16-3p
22
makes clear what our precedent already required: that
23 assessments of an individual’s testimony by an ALJ are
designed to “evaluate the intensity and persistence of
24 symptoms after [the ALJ] find[s] that the individual has
a medically determinable impairment(s) that could
25
reasonably be expected to produce those symptoms,” and
26 not to delve into wide-ranging scrutiny of the claimant’s
character and apparent truthfulness.
27
Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as
28 amended) (alterations in original) (quoting SSR 16-3p).
25
1 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036);
2 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th
3 Cir. 2014). The ALJ may consider, among other factors, (1) the
4 claimant’s reputation for truthfulness, prior inconsistent
5 statements, and other testimony by the claimant that appears less
6 than candid; (2) unexplained or inadequately explained failure to
7 seek treatment or to follow a prescribed course of treatment; (3)
8 the claimant’s daily activities; (4) the claimant’s work record;
9 and (5) testimony from physicians and third parties. Rounds v.
10 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as
11 amended); Thomas, 278 F.3d at 958-59. If the ALJ’s evaluation of
12 a plaintiff’s alleged symptoms is supported by substantial
13 evidence in the record, the reviewing court “may not engage in
14 second-guessing.” Thomas, 278 F.3d at 959.
15 Contradiction with the medical record is a “sufficient
16 basis” for rejecting a claimant’s subjective symptom testimony.
17 Carmickle, 533 F.3d at 1161; see also Morgan v. Comm’r of Soc.
18 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (finding that
19 “conflict between [plaintiff’s] testimony of subjective
20 complaints and the objective medical evidence in the record” was
21 “specific and substantial” reason undermining statements). But
22 it “cannot form the sole basis for discounting pain testimony.”
23 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins,
24 261 F.3d at 857 (citing then-current version of
25 § 404.1529(c)(2)).
26 2. Plaintiff’s statements
27 Plaintiff completed a function report on November 15, 2016.
28 (AR 500-08.) He described his “memory and concentration issues”
26
1 as making it “very hard” for him to be productive. (AR 500.)
2 During the day he had coffee, took care of his dog, read, played
3 instruments, took care of his hygiene, cooked, spent time with
4 his girlfriend, watched television, and went to bed. (AR 501.)
5 He indicated no problems with personal care, such as dressing,
6 bathing, shaving, feeding himself, or using the toilet. (Id.)
7 He needed reminders for hygiene and to take his medicine. (AR
8 502.) He prepared full meals, such as soup, pasta, and chili,
9 four or five days a week. (Id.) He cleaned and did laundry,
10 yard work, and household repairs. (Id.) He drove a car twice a
11 week when he went out. (AR 503.) He shopped in stores one or
12 two times a week, but he had impulsive spending habits and was
13 disorganized. (Id.) Once a week he went to “others’ houses” for
14 dinner, and once or twice a month he went to his parents’ house.
15 (AR 504.) His anxiety made social interaction stressful. (Id.)
16 He followed written and spoken instructions well, but he had
17 trouble when criticized. (AR 505-06.) He handled stress poorly
18 and became overly aggressive. (AR 506.) Depression and his
19 physical impairments made sleep difficult. (AR 507.)
20 Plaintiff testified at the November 21, 2017 hearing about
21 the symptoms from his mental impairments that limited his ability
22 to work. (AR 340-50.) His anxiety was so severe that he could
23 not make phone calls or deal with conflict, and he stopped
24 working at two jobs because of it. (AR 340.) His ADHD caused
25 concentration problems. (AR 341-42.) When he was in a manic
26 phase of his bipolar disorder he was unpredictable, and when he
27 was in a depressive state he became unproductive and had trouble
28 maintaining good hygiene, which made it hard to leave the house.
27
1 (AR 341.) He took bipolar medication, which he was “always
2 tweaking.” (AR 344.) At home, he read, went on the internet,
3 watched television, napped, and stretched. (AR 345-46.) He had
4 lost weight from depression and arthritis pain. (AR 346.) His
5 lawyer observed that during his testimony his hands and legs
6 shook and his voice trembled from anxiety. (AR 342, 346.)
7 3. Analysis
8 Plaintiff claims that the ALJ improperly rejected his
9 subjective symptom statements because she merely recited
10 boilerplate and then summarized the medical evidence without
11 specifically identifying the statements she found not credible or
12 what evidence undermined them. (J. Stip. at 16-20.) As
13 explained below, however, he is mistaken. A careful reading of
14 her decision shows that she outlined specific inconsistencies
15 between his subjective symptom statements and the objective
16 medical evidence and his activities of daily living. (See AR 19,
17 21-26.)
18 Plaintiff relies on Brown-Hunter to argue that the ALJ did
19 not give sufficiently specific reasons for rejecting his
20 statements. (J. Stip. at 18-20.) First, the ALJ did not fully
21 reject his claims of mental impairments. Rather, she found his
22 symptom statements “not entirely consistent” with the evidence,
23 which indicates that she gave them some weight. (AR 21.)
24 Indeed, she tailored the RFC to his claims of poor concentration
25 and anxiety around people, limiting him to “simple, routine
26 tasks” and “[no] contact with the public, and only occasional,
27 superficial contact with coworkers.” (AR 20.)
28 Second, Brown-Hunter is distinguishable. In that case, the
28
1 ALJ “stated only that she found, based on unspecified claimant
2 testimony and a summary of medical evidence, that ‘the functional
3 limitations from the claimant’s impairments were less serious
4 than she ha[d] alleged.’” 806 F.3d at 493 (citation omitted).
5 The Ninth Circuit held that the ALJ’s analysis was erroneous,
6 noting that it could not “discern the agency’s path because the
7 ALJ made only a general credibility finding without providing any
8 reviewable reasons why she found [the claimant’s] testimony to be
9 not credible.” Id. at 494.
10 Here, the ALJ did not make “only a general credibility
11 finding without providing any reviewable reasons for doing so.”
12 Id. Rather, she carefully outlined how Plaintiff’s subjective
13 symptom statements in the November 2016 function report were
14 inconsistent with his activities of daily living and the
15 objective medical records. (See AR 19.) She noted that his
16 statement in the function report that he was self-conscious
17 around family and strangers was inconsistent with his revelation
18 in group therapy just a few months later that he had attended his
19 niece’s birthday party at a restaurant and was able “to be around
20 others and engage appropriately.” (Id.) Similarly, he told Dr.
21 Bagner in January 2017 that he had a good relationship with
22 family and a fair one with friends. (Id. (citing AR 790-96).)
23 And he acknowledged in his November 2016 function report that he
24 went to nonfamily members’ homes once a week for dinner and
25 regularly shopped in stores. (Id. (citing AR 503-04).) The ALJ
26 also found that although he claimed in the report to have reduced
27 memory and concentration, he was able to repeat three digits
28 forward and backward, perform serial sevens and threes, and spell
29
1 the word “music” forward and backward at his examination with Dr.
2 Bagner. (AR 19 (citing AR 790-96).) This level of specificity,
3 expressly linking specific statements in the function report to
4 particular pieces of inconsistent evidence, is significantly more
5 than the “conclusory statement” and summary of medical evidence
6 found wanting in Brown-Hunter. 806 F.3d at 493.
7 The ALJ also satisfied Brown-Hunter by discussing
8 Plaintiff’s subjective symptom testimony at the hearing and the
9 specific evidence that was inconsistent with it. (See AR 21-26.)
10 She recounted his testimony, then immediately found that the
11 statements were “not entirely consistent with the medical
12 evidence and other evidence in the record, for the reasons
13 explained in this decision.” (AR 21.) She then began a detailed
14 explanation of the reasons supporting that conclusion, even using
15 the signpost “[f]or instance” to start the discussion. (AR 21-
16 26.) As explained above in section V.A, she noted (1) the normal
17 mental-status-examination results from Azimuth, Dr. Bagner,
18 Community Hospital, and College Hospital (AR 22-24 (citing AR
19 575-78, 721-25, 792-93, 1021-22)); (2) his report to Dr. Craig in
20 February 2016 that he was having only “some mild signs of
21 depression” that were not “severe enough to impair his daily
22 functioning” (AR 22 (citing AR 858-66)); and (3) Dr. Bagner’s
23 assessment in January 2017 that he had no functional limitations
24 at all (AR 23 (citing AR 790-96)). She then concluded that “[a]s
25 discussed above,” Plaintiff’s “subjective complaints” were
26 “inconsistent with the medical evidence of record,” which did not
27 support “the alleged severity of [his] symptoms.” (AR 26.)
28 Although that portion of the decision could have more
30
1 clearly linked the contrary evidence to each inconsistent
2 statement, both the structure and substance of it allow the Court
3 to “reasonably discern” the ALJ’s path. Despinis v. Comm’r Soc.
4 Sec. Admin., No. 2:16–cv–01373–HZ, 2017 WL 1927926, at *6-7 (D.
5 Or. May 10, 2017) (finding claimant’s reliance on Brown–Hunter
6 “unavailing” for similar reason); see also Fisher v. Berryhill,
7 No. 1:17-cv-01189-GSA, 2018 WL 5979457, at *8 (E.D. Cal. Nov. 14,
8 2018) (distinguishing Brown-Hunter when “ALJ did not simply
9 summarize medical records but considered the interaction between
10 the medical evidence of record and Plaintiff’s corresponding pain
11 and dysfunction”); Jones v. Colvin, No. 15-cv-01900-WHO, 2016 WL
12 1461945, at *6-7 (N.D. Cal. Apr. 14, 2016) (rejecting plaintiff’s
13 claim that ALJ did not give sufficiently specific reasons under
14 Brown-Hunter for discrediting his subjective symptom testimony
15 because, although “the ALJ did not specifically address”
16 plaintiff’s claims about certain limitations, “her decision as a
17 whole provide[d] adequately specific, clear, and convincing
18 reasons for rejecting [his] subjective testimony about his
19 disabling limitations” (emphasis in original)).
20 The ALJ identified two clear and convincing reasons for
21 partially rejecting Plaintiff’s symptom statements — their
22 inconsistency with objective evidence and with some activities of
23 daily living. (See AR 19, 21-26); Carmickle, 533 F.3d at 1161;
24 Rounds, 807 F.3d at 1006. Although they do not appear in the
25 same place in the decision, there is no requirement that she
26 structure her analysis in any particular format. See, e.g.,
27 Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (finding that
28 ALJ did not err by placing support for step-three determination
31
1 |}elsewhere in decision) .**
2 Accordingly, remand is not warranted on this basis.
3
CONCLUSION
5 Consistent with the foregoing and under sentence four of 42
61U.S.C. § 405(g),** IT IS ORDERED that judgment be entered
7 || AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s
request for remand, and DISMISSING this action with prejudice.
9
10 || DATED: September 27, 2019 Rrerhlatl~
JEAW ROSENBLUTH
11 U.S. MAGISTRATE JUDGE
12
13
14
15
16
17
18
19
20 eee
21 *2 Plaintiff also takes issue with the ALJ’s failure to
discuss his work history as a factor in assessing his
22 ||credibility. (J. Stip. at 20.) But “in interpreting the
evidence and developing the record, the ALJ does not need to
23 || ‘discuss every piece of evidence.’” Howard ex rel. Wolff v.
Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation omitted) ;
24! see also Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393,
25 || 1394-95 (9th Cir. 1984) (per curiam).
26 * That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
27 judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
28 || cause for a rehearing.”
32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10035682. Public record. Not legal advice.