Gary Wayne Bushee v. Nancy A. Berryhill

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 GARY W. B.,1 Case No. 5:18-cv-02355-AFM

12 Plaintiff,

MEMORANDUM OPINION AND

13 v.

ORDER AFFIRMING DECISION

14 ANDREW SAUL, Commissioner of OF THE COMMISSIONER

15 Social Security,

16 Defendant.

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Plaintiff seeks review of the Commissioner’s final decision denying his

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applications for disability insurance benefits and supplemental security income. In

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accordance with the Court’s case management order, the parties have filed briefs

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addressing the merits of the disputed issues. This matter is now ready for decision.

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BACKGROUND

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In July 2014, Plaintiff applied for disability insurance benefits and

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supplemental security income, alleging disability since August 4, 2013. Plaintiff’s

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claims were denied initially and on reconsideration. (Administrative Record (“AR”)

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1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure

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5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case

28 Management of the Judicial Conference of the United States.

1 619-623, 629-640.) An Administrative Law Judge (“ALJ”) held a hearing at which

2 Plaintiff, his attorney, and a Vocational Expert (“VE”) were present. (AR 519-554.)

3 The ALJ issued a decision on September 19, 2017. The ALJ found that

4 Plaintiff suffered from the following severe impairments: diabetes mellitus; lumbar

5 spine degenerative disc disease; left ankle osteoarthritis and history of fracture of the

6 left distal fibula in 2001, status post open reduction internal fixation; psychosis, not

7 otherwise specified; depression, not otherwise specified; and personality disorder,

8 not otherwise specified. (AR 24.) He determined that Plaintiff retained the residual

9 functional capacity (“RFC”) to perform light work with the following limitations:

10 Plaintiff can stand and walk for two hours out of an eight-hour workday with regular

11 breaks; can perform simple tasks that require only simple work-related decisions with

12 only occasional changes in a routine work setting; can have occasional interaction

13 with coworkers and supervisors; and can have no interaction with the general public.

14 (AR 24.) Relying on the testimony of the VE, the ALJ concluded that there were jobs

15 that existed in significant numbers in the national economy that Plaintiff could

16 perform. (AR 29.) Accordingly, the ALJ determined that Plaintiff was not disabled.

17 (AR 31.) The Appeals Council denied review, thereby rendering the ALJ’s decision

18 the final decision of the Commissioner. (AR 1-7.)

19 DISPUTED ISSUE

20 1. Whether the ALJ properly evaluated Plaintiff’s subjective complaints.

21 STANDARD OF REVIEW

22 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to

23 determine whether the Commissioner’s findings are supported by substantial

24 evidence and whether the proper legal standards were applied. See Treichler v.

25 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial

26 evidence means “more than a mere scintilla” but less than a preponderance. See

27 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d

28 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

1 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402

2 U.S. at 401. Where evidence is susceptible of more than one rational interpretation,

3 the Commissioner’s decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630

4 (9th Cir. 2007); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir.

5 2004) (“When evidence reasonably supports either confirming or reversing the ALJ’s

6 decision, [the court] may not substitute [its] judgment for that of the ALJ.”).

7 DISCUSSION

8 Plaintiff contends that the ALJ improperly discounted his subjective symptom

9 testimony.

10 A. Plaintiff’s Subjective Complaints

11 Plaintiff testified that he was unable to work based upon a combination of

12 symptoms. He began by noting that he suffered from bipolar depression and paranoid

13 schizophrenia, explaining that his “social skills aren’t what they used to be, and I

14 have a really bad temper problem.” (AR 535-536.) Regarding his temper, Plaintiff

15 testified that sometimes he began to cuss at random people. (AR 536-537.) Plaintiff

16 noticed this problem for about four to six months, although he also said that he was

17 not sure because he did not “remember any of it.” (AR 536.) The ALJ asked Plaintiff

18 if his medication helped with his temper issue. Plaintiff answered, “a little bit,” and

19 then added, “when I take it, at first, till it wears off.” (AR 538.)

20 Plaintiff testified that his schizophrenia was “pretty well under control,” and

21 seemed to be okay. Further, the medications he took did not cause side effects. (AR

22 537.) Plaintiff also suffered from “pretty bad” depression. He experienced depression

23 daily. When the ALJ asked how the depression affected his behavior, Plaintiff

24 responded that it made him “quiet.” (AR 537-538.) Regarding his paranoia, Plaintiff

25 testified that he believed the government follows everybody. (AR 538.) In his

26 Function Report, Plaintiff indicated that he was unable to work with the public due

27 to paranoia. (AR 764.)

28 Plaintiff testified that he had broken his left ankle 17 years earlier and since

1 that time, the hardware placed inside had become progressively more bothersome.

2 Plaintiff was scheduled to have surgery to remove the hardware, which might help

3 with the pain. (AR 540-541.) He also said that his back hurts when he walks; it feels

4 like it is “going to break” or is crooked. (AR 542.) Plaintiff opined that he can walk

5 for a half hour or forty-five minutes. (AR 541.)

6 As a result of his diabetes, Plaintiff would “crash” two or three times a week,

7 but then he would drink soda or eat, and his blood sugar would return to normal. (AR

8 543.)

9 Plaintiff lived with friends. He would stay at “a couple” different houses with

10 different friends that he had known for a while. (AR 526, 544.) When the ALJ

11 inquired about Plaintiff’s alleged problem getting along with people, Plaintiff

12 distinguished people that he trusts. (AR 544.) Plaintiff testified that he has to have

13 somebody with him when he goes to the store because “the paranoia is too much for

14 – when I get around people.” (AR 539.) In his Function Report, Plaintiff stated that

15 he had no problems getting along with family, friends, neighbors, or others. (AR

16 769.) At the same time, he wrote that he is “unable to function around people.” (AR

17 769.)

18 With regard to daily activities, Plaintiff is able to prepare his own meals; do

19 laundry, “mowing,” other yard work, and house cleaning; and take care of dogs. (AR

20 538-539, 765-766.) Plaintiff goes out approximately twice a week to the store. In his

21 Function Report, Plaintiff indicated that he is able to go out alone (AR 767) but also

22 indicated that he needed someone to accompany him. (AR 768.)

23 B. Relevant Law

24 Where, as here, a claimant has presented evidence of an underlying impairment

25 that could reasonably be expected to produce pain or other symptoms, the ALJ must

26 “evaluate the intensity and persistence of [the] individual’s symptoms ... and

27 determine the extent to which [those] symptoms limit his ... ability to perform work-

28 related activities ....” SSR 16–3p, 2016 WL 1119029, at *4. Absent a finding that the

1 claimant is malingering, an ALJ must provide specific, clear and convincing reasons

2 before rejecting a claimant’s testimony about the severity of his symptoms. Trevizo

3 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (citing Garrison v. Colvin, 759 F.3d

4 995, 1014-1015 (9th Cir. 2014)). “General findings [regarding a claimant’s

5 credibility] are insufficient; rather, the ALJ must identify what testimony is not

6 credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin,

7 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th

8 Cir. 1995)). The ALJ’s findings “must be sufficiently specific to allow a reviewing

9 court to conclude the adjudicator rejected the claimant’s testimony on permissible

10 grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.”

11 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v.

12 Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1991) (en banc)). An ALJ’s written

13 decision must provide “explanation” or “specific reasons” to allow that decision to

14 be reviewed meaningfully and to “ensure that the claimant’s testimony was not

15 arbitrarily discredited.” Brown-Hunter, 806 F.3d at 494; see also Laborin v.

16 Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (ALJ’s statement that claimant’s

17 testimony regarding the intensity, persistence, and limiting effects of his symptoms

18 was not credible to the extent his testimony is “inconsistent with the above residual

19 functional capacity assessment” is an insufficient basis for discrediting testimony).

20 Factors an ALJ may consider when making such a determination include the

21 objective medical evidence, the claimant’s treatment history, the claimant’s daily

22 activities, unexplained failure to pursue or follow treatment, and inconsistencies in

23 testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Molina v.

24 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

25 C. Analysis

26 Plaintiff contends that the ALJ improperly rejected his testimony “that the pain

27 and limitation he suffers from the severe impairments limits and prevents him from

28 performing work activity on a sustained basis.” (ECF No. 22 at 6.) In support of this

1 contention, Plaintiff cites the entirety of his testimony at the evidentiary hearing and

2 his Function Report.

3 As set forth in detail above, Plaintiff alleges that he is disabled by his mental

4 and physical impairments in the following specific ways: (1) he has a “bad temper,”

5 limited social skills, and paranoia, all of which make it impossible for him to be

6 around people; (2) he suffers from depression which makes him “quiet”; and (3) he

7 suffers from back and ankle pain which limits his ability to walk to approximately 30

8 to 45 minutes at a time and then needs to sit for one hour. A careful review of the

9 ALJ’s decision makes clear that although the ALJ discredited Plaintiff’s general

10 allegation that he was disabled, the ALJ did not necessarily reject Plaintiff’s specific

11 allegations regarding his pain or other symptoms. In fact, in large part, the ALJ’s

12 RFC is consistent with Plaintiff’s testimony. In particular, the restriction against any

13 contact with the public and only occasional interaction with coworkers and

14 supervisors arguably takes into account Plaintiff’s difficulty being around people.

15 Similarly, the restriction to standing and/or walking for a total of two hours in an

16 eight-hour day is arguably consistent with Plaintiff’s allegation that he can walk for

17 30 to 45 minutes before needing a one-hour break. Similarly, it is not clear how the

18 ALJ’s RFC is inconsistent with Plaintiff’s vague allegation that he becomes “quiet.”

19 Nevertheless, to the extent that the ALJ discounted Plaintiff’s subjective

20 complaints, the Court concludes that he provided the following legally sufficient

21 reasons for doing so.

22 (1) Objective medical evidence

23 So long as it is not the only reason for doing so, an ALJ permissibly may rely

24 on a lack of objective medical evidence to discount a claimant’s allegations of

25 disabling pain or symptoms. See Burch v. Barnhart, 400 F.3d 676, 681 (2005)

26 (“Although lack of medical evidence cannot form the sole basis for discounting pain

27 testimony, it is a factor the ALJ can consider in his [or her] credibility analysis.”);

28 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (same); see also SSR 16-3p,

1 2016 WL 1119029, at *4 (Mar. 16, 2016) (“[O]bjective medical evidence is a useful

2 indicator to help make reasonable conclusions about the intensity and persistence of

3 symptoms, including the effects those symptoms may have on the ability to perform

4 work-related activities ...”).

5 Here, the ALJ summarized Plaintiff’s subjective complaints, including his

6 allegations that he experienced depression and anger issues, had difficulty walking

7 longer than 30 to 45 minutes due to pain, and had trouble being around people due to

8 paranoia. The ALJ then considered the positive clinical and diagnostic findings and

9 concluded that, although they showed that Plaintiff suffered from severe back and

10 ankle impairments as well as severe mental impairments, they were not consistent

11 with Plaintiff’s allegations of disabling pain and other symptoms. (AR 25-28.)

12 In summarizing the medical record, the ALJ began with the evidence related

13 to Plaintiff’s diabetes, back pain, and left ankle pain. (AR 25.) Treatment notes from

14 June 2014 indicated that Plaintiff complained of lower back and left ankle pain, but

15 physical examination was generally normal, and Plaintiff was noted to be “physically

16 well.” (AR 972-975.) Based upon Plaintiff’s complaints of pain, an x-ray was

17 obtained, revealing status post open reduction and internal fixation with degenerative

18 changes. (AR 980.) An examination conducted in September 2014 was unremarkable

19 but for “mild” left ankle pain. (AR 978-979.)

20 As the ALJ noted, “progress notes and imaging in 2014 showed that

21 [Plaintiff’s] ankle condition was stable.” (AR 26.) Specifically, in October 2014,

22 Plaintiff recounted a history of left ankle pain but had “no complaints at present

23 time.” (AR 1059.) While Plaintiff complained of chronic back pain, he reported that

24 the pain occurred “occasionally” and that the problem was stable. (AR 1062.)

25 Another x-ray of Plaintiff’s left ankle was obtained in October 2014, with an

26 impression of stable postsurgical changes, mild osteoarthritic changes at the tibiotalar

27 joint space, and small well corticated plantar calcaneal spur formation. (AR 1067.)

28 X-ray of Plaintiff’s lumbar spine revealed multilevel advanced moderate

1 degenerative disc disease at L4-L5 and L5-S1 and spondylosis. (AR 1068.)

2 In November 2014, Plaintiff reported that his pain was moderate. Physical

3 examination was unremarkable. (AR 1064-1066.)

4 Plaintiff was prescribed medications for diabetes. The ALJ remarked that

5 progress notes from 2015 indicated that Plaintiff had been noncompliant with his

6 medications and his diabetes was not well controlled. He was restarted on his

7 medication. (AR 26; see AR 1129, 1139.) In February 2016, Plaintiff’s diabetes

8 medications were adjusted. (AR 1126-1128.) Plaintiff’s diabetes improved the

9 following month. (AR 1125.)

10 In March 2015, Plaintiff appeared for an office visit, complaining of heel pain

11 and low back pain. He reported taking two Norco a day for pain, indicated that he

12 was under “reasonable analgesic control with current pain regimen,” and requested a

13 prescription for three a day. (AR 1072.) Physical examination was normal with the

14 exception of “mild pain w/motion” of Plaintiff’s lumbar spine and left ankle. (AR

15 1074.) An April 2015 examination also revealed normal findings (AR 1150-1151),

16 as did physical examinations conducted throughout 2016. (See, e.g., AR 1113

17 (January 2016), AR 1124 (March 2016), AR 1118-1119 (April 2016), AR 1110-1111

18 (July 2016), AR 1106 (November 2016), AR 1096 (March 2017). A physical

19 examination in February 2017 revealed normal findings, including no back

20 tenderness, and normal range of motion. (AR 1100-1101.) Examination in March

21 2017 also included no significant findings. (AR 1096.)

22 In May 2015, Herman Schoene, M.D., conducted a complete orthopedic

23 evaluation of Plaintiff. Physical examination revealed no abnormal findings. In

24 particular, Plaintiff’s gait was normal; the dorsiflexors and plantar flexors of both of

25 his ankles were strong; he had normal range of motion in all joints, including his back

26 and ankles; there was no pain on palpation of the lumbar spine; and there was no

27 evidence of swelling, palpable mass, inflammation tenderness, muscle atrophy, or

28 spasm. A neurological examination showed normal motor strength, sensation, and

1 reflexes. Dr. Schoene diagnosed Plaintiff with lumbago and a healed fracture of the

2 left ankle. As the ALJ noted that Dr. Schoene opined that Plaintiff is able to perform

3 work at the medium exertional level, including among other things, the ability to

4 stand/walk for six hours in an eight-hour workday. (AR 1082-1086.)

5 In April 2017, Plaintiff was seen by Daniel J. Patton, M.D., an orthopedic

6 specialist, for evaluation of left ankle pain. Dr. Patton took x-rays of Plaintiff’s left

7 ankle, which revealed retained hardware and arthritis. He discussed the option of

8 removing the hardware surgically. As the ALJ noted, Dr. Patton offered Plaintiff a

9 cortisone injection, but Plaintiff declined. (AR 1155-1158.)

10 With regard to Plaintiff’s mental impairments, the ALJ began by noting

11 Plaintiff’s history of psychosis. Plaintiff was admitted to the hospital in 2013 based

12 upon auditory hallucinations and symptoms of psychosis. He was treated with

13 medication and therapy. The ALJ observed that Plaintiff “responded well and was

14 released in improved condition.” (AR 25.)

15 The ALJ then noted that Plaintiff began outpatient treatment in August 2013

16 and notes from that treatment date through 2014 demonstrated that Plaintiff had made

17 significant progress. (AR 25; see AR 982-1052.) More specifically, in September

18 2013 Plaintiff reported hearing voices and feeling like the police were watching him.

19 (AR 1003.) By January 2014, Plaintiff reported feeling better on the medication,

20 although he continued to hear voices at least once a day. (AR 1018.)2 By February

21 2014, Plaintiff reported that the audio hallucinations had decreased to every other

22 day. (AR 1024.) In March 2014, Plaintiff stated that the medications “are working

23 for me.” (AR 1026.) Treatment notes from May 2014 indicate that Plaintiff was

24 “doing well.” Plaintiff’s auditory hallucinations occurred only twice a week and

25 sounded “like mumbles.” (AR 1037-1039). In June 2014, Plaintiff again reported

26 doing well and indicated that he heard voices about once a week, but that they

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2 Although the precise date is not clear, at some point Plaintiff began receiving medication by

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1 sounded “like a mumble.” Plaintiff’s mood was stable, and he denied paranoia or

2 angry outbursts. (AR 1042.) In July 2014, Plaintiff reported that he was feeling better,

3 things were going well, and he had not heard voices in the past month. (AR 1044.)

4 In August 2014, Plaintiff again denied hearing voices. His mood was noted to be

5 “stable with no anger reported,” and he was “verbal, friendly and cooperative.” (AR

6 1046.) Plaintiff also denied hearing voices in September 2014, though he did report

7 “some episodes of depression.” (AR 1046-1047.)

8 The ALJ noted that the record indicated that through 2015, Plaintiff’s

9 symptoms were well controlled by his medication. (AR 26.)3 An annual reassessment

10 dated August 6, 2015 reported that Plaintiff’s symptoms – including auditory

11 hallucinations, paranoia, mood swings, and anxiety “are currently well controlled on

12 meds.” (AR 1193.) The assessment also noted Plaintiff’s mood, affect, thought

13 process, cognition, and thought content were all appropriate. (AR 1194.)

14 Finally, the ALJ noted that Plaintiff underwent two psychiatric consultative

15 examinations. The first, conducted in November 2014, by Rama Nadella, M.D.,

16 revealed two positive findings: Plaintiff endorsed hearing voices, and his mood was

17 anxious and dysphoric. Otherwise, the mental status evaluation was unremarkable.

18 (AR 1053-1056.) The second examination was conducted in June 2015 by Bushra

19 Akber, M.D. Dr. Akber noted the following positive findings: Plaintiff appeared to

20 be under the influence of pain mediation and had some tremors and shakes in his

21 legs; his mood was depressed; he was not able to correctly perform Serial Sevens.

22 Otherwise, the examination was normal. Dr. Akber diagnosed Plaintiff with

23 polysubstance dependence, alcohol dependence, depression, and personality

24 disorder. (AR 1089-1094.)

25 Considering the foregoing objective medical evidence, the ALJ limited

26 Plaintiff to light work, restricted him to standing/walking for two hours in an eight-

27 3 As support for this statement, the ALJ cited Exhibit 13F. That exhibit consists of 52 pages of

medication history. One page of that exhibit includes the notation that Plaintiff’s paranoia, mood

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1 hour workday, precluded him from interacting with the public and more than

2 occasional interaction with coworkers or supervisors, and limited him to simple tasks

3 with only occasional changes in a routine work setting. The ALJ reasonably could

4 conclude that the objective evidence was inconsistent with Plaintiff’s allegations that

5 he was disabled due to an inability to walk or “function” around other people.

6 Although Plaintiff argues that the medical evidence actually supports his

7 subjective complaints (see ECF No. 22 at 8-9), the Court may not second guess the

8 ALJ’s reasonable determination to the contrary. See Saavedra v. Berryhill, 2019 WL

9 1171271, at *4 (C.D. Cal. Mar. 12, 2019) (“Although plaintiff argues that the medical

10 evidence actually supports his subjective complaints …, again the Court may not

11 second guess the ALJ’s reasonable determination to the contrary, even if the evidence

12 could give rise to inferences more favorable to plaintiff.”) (citing Chaudhry v. Astrue,

13 688 F.3d 661, 672 (9th Cir. 2012). In sum, the ALJ’s conclusion that Plaintiff’s

14 allegations of disabling pain and symptoms beyond those included in his RFC were

15 inconsistent with the medical evidence is supported by substantial evidence. Thus,

16 the ALJ was entitled to rely upon the lack of evidence in assessing the credibility of

17 Plaintiff’s allegations.

18 (2) Symptoms effectively treated

19 The effectiveness of treatment is a relevant factor in determining the severity

20 of a claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also

21 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

22 (“Impairments that can be controlled effectively with medication are not disabling

23 for the purpose of determining eligibility for ... benefits.”). Substantial evidence of

24 effective treatment may provide a specific, clear, and convincing reason to discount

25 a claimant’s subjective symptom testimony. See Youngblood v. Berryhill, 734

26 F. App’x 496, 499 (9th Cir. 2018) (affirming ALJ decision citing “instances where

27 treatment and medication alleviated [the claimant’s] symptoms” to discount

28 claimant’s testimony).

1 The ALJ here found that “mental health treatment records demonstrate

2 symptom improvement and a stable mood.” (AR 25.) Plaintiff contends that the ALJ

3 erred by relying on evidence of his improvement, pointing out that evidence showing

4 Plaintiff appeared stable “at times” is consistent with an individual suffering from a

5 mental impairment. (ECF No. 22 at 9.)

6 Plaintiff is correct that an ALJ may not reject a claimant’s testimony regarding

7 mental health issues “merely because symptoms wax and wane in the course of

8 treatment.” Garrison, 759 F.3d at 1017. As the Ninth Circuit has explained, “[c]ycles

9 of improvement and debilitating symptoms are a common occurrence, and in such

10 circumstances it is error for an ALJ to pick out a few isolated instances of

11 improvement over a period of months or years and to treat them as a basis for

12 concluding a claimant is capable of working.” Garrison, 759 F.3d at 1017; see

13 Ghanim, 763 F.3d at 1164 (ALJ may not rely upon isolated instances of improved

14 psychological symptoms when the record as a whole demonstrates longstanding

15 psychological impairment). Here, however, the ALJ did not cherry-pick the record

16 by highlighting the few periods where Plaintiff’s symptoms had temporarily waned.

17 Instead, the ALJ recounted the longitudinal record, explaining that it showed that

18 Plaintiff’s symptoms began to improve as soon as he began treatment in September

19 2013 and continued to improve until Plaintiff’s symptoms were well-controlled. As

20 set forth in detail above, Plaintiff’s mood became stable in June 2014, and none of

21 the treatment notes after that date reflects it declined. (AR 1042.) Beginning in June

22 2014, Plaintiff denied continuing paranoia or angry outbursts (AR 1042), and no

23 records thereafter reflect renewed complaints of those symptoms. Finally, in July

24 2014, Plaintiff reported that he had not heard voices for a month (AR 1044), and

25 Plaintiff continued to deny auditory hallucinations in the ensuing two months. (AR

26 1046-1047). Plaintiff points to no evidence in the record indicating that these

27 symptoms returned, and the Court’s review reveals none. In fact, the annual

28 assessment completed in August 2015 confirms that Plaintiff’s symptoms – including

1 auditory hallucinations, paranoia, mood swings, and anxiety – “are currently well

2 controlled on meds.” (AR 1193-1194.) Thus, the ALJ properly relied upon evidence

3 that Plaintiff’s symptoms were effectively treated to discount the credibility of

4 Plaintiff’s subjective complaints.

5 (3) Plaintiff declined a cortisone injection

6 The ALJ found it significant that Plaintiff was offered, but declined, a

7 cortisone injection for his ankle. (AR 25, 1157.) The ALJ could properly rely upon

8 Plaintiff’s failure to pursue treatment as a reason to discount the credibility of his

9 subjective complaints. See Chaudhry, 688 F.3d at 672 (“[I]f a claimant complains

10 about disabling pain but fails to seek treatment, or fails to follow prescribed

11 treatment, for the pain, an ALJ may use such failure as a basis for finding the

12 complaint unjustified....”) (citation omitted); Molina, 674 F.3d at 1113 (ALJ may

13 properly consider “unexplained or inadequately explained failure to seek treatment

14 or to follow a prescribed course of treatment” when evaluating claimant’s subjective

15 complaints) (citations and internal quotation marks omitted); SSR 16-3p, 2016 WL

16 1119029, at *7-*8 (ALJ may give less weight to subjective statements where “the

17 frequency or extent of the treatment sought by an individual is not comparable with

18 the degree of the individual’s subjective complaints, or if the individual fails to follow

19 prescribed treatment that might improve symptoms....”).

20 (4) Conservative treatment

21 The ALJ found that the medical evidence “regarding [Plaintiff’s] back and

22 ankle pain and mental impairments shows conservative treatment and mild to

23 moderate findings.” (AR 25.)

24 With regard to Plaintiff’s back impairment, this conclusion was reasonable. As

25 set forth above, Plaintiff’s back impairment was treated with prescription medication,

26 and Plaintiff did not report suffering side effects from the medication. Courts have

27 considered treatment to be fairly characterized as conservative – and this is true even

28 when a narcotic pain medication is paired with additional treatment such as epidural

1 injections. See Martin v. Colvin, 2017 WL 615196, at *10 (E.D. Cal. Feb. 14, 2017)

2 (“[T]he fact that Plaintiff has been prescribed narcotic medication or received

3 injections does not negate the reasonableness of the ALJ’s finding that Plaintiff’s

4 treatment as a whole was conservative, particularly when undertaken in addition to

5 other, less invasive treatment methods.”); Zaldana v. Colvin, 2014 WL 4929023, at

6 *2 (C.D. Cal. Oct. 1, 2014) (a treatment regimen including Tramadol, ibuprofen, and

7 “multiple steroid injections” was “a legally sufficient reason on which the ALJ could

8 properly rely in support of his adverse credibility determination because the record

9 reflects that plaintiff was treated on the whole with conservative care for her foot pain

10 with good results and improvement.”); see also Huizar v. Comm’r of Social Sec., 428

11 F. App’x 678, 680 (9th Cir. 2011) (noting that the claimant responded favorably to

12 conservative treatment, which included “the use of narcotic/opiate pain

13 medications”).

14 With regard to Plaintiff’s ankle impairment, the Court notes the evidence that

15 in February 2017, surgery was discussed or recommended. (AR 1157.) Even

16 assuming the ALJ erred by relying upon Plaintiff’s generally conservative treatment

17 for his ankle impairment to discount Plaintiff’s credibility, any error was harmless in

18 light of the other legally sufficient reasons for the ALJ’s determination. See Molina,

19 674 F.3d at 1115 (where one or more reasons supporting ALJ’s credibility analysis

20 are invalid, error is harmless if ALJ provided other valid reasons supported by the

21 record); Batson, 359 F.3d at 1197 (even if the record did not support one of the ALJ’s

22 stated reasons for disbelieving a claimant's testimony, the error was harmless where

23 ALJ provided other valid bases for credibility determination).

24 Likewise, the record does not support the ALJ’s characterization of Plaintiff’s

25 mental health treatment as conservative. Plaintiff argues that the ALJ erred in this

26 regard because Plaintiff had been admitted to a psychiatric hospital pursuant to 5150

27 of the California Health & Welfare Code. According to Plaintiff, “admission to a

28 hospital based on a triage level of a risk of harm to self and others is certainly not

1 routine or conservative.” (ECF No. 22 at 10, citing AR 946-955). Plaintiff, however,

2 cites no authority for the proposition that placement on a psychiatric hold precludes

3 a finding that treatment post-dating that hold is conservative. Other decisions indicate

4 to the contrary. See, e.g., Heard v. Colvin, 2015 WL 12532321, at *5 (S.D. Cal.

5 Jan. 20, 2015) (ALJ properly relied upon conservative treatment history even though

6 plaintiff had undergone a psychiatric hospital admission under section 5150 prior to

7 treatment); see also Shaw v. Colvin, 2016 WL 1715058, at *7 (C.D. Cal. Apr. 26,

8 2016) (ALJ properly discredited plaintiff’s testimony based upon evidence that

9 plaintiff’s mental condition was stable when taking his prescribed medication and

10 refraining from abusing illicit drugs, despite evidence that plaintiff had been twice

11 placed on 5150 hold), report and recommendation adopted, 2016 WL 1715057 (C.D.

12 Cal. Apr. 27, 2016).

13 The Court also notes that Plaintiff’s treatment involves prescriptions of Prozac,

14 Latuda, Depakote, Risperdal, Seroquel, and other medications. (See AR 1189-1190,

15 1231.) Some courts have recognized that treatment involving several of these

16 medications is not “conservative.” See e.g., Wilson v. Berryhill, 2018 WL 6321629,

17 at *4 (C.D. Cal. July 9, 2018) (treatment with Prozac, Trazodone, Wellbutrin,

18 Seroquel, Remeron, Zoloft, Ativan, Geodon, Paxil, and Buspirone was not

19 conservative); Childress v. Colvin, 2015 WL 2380872, at *14 (C.D. Cal. May 18,

20 2015) (treatment including years of talk therapy, prescription antidepressants –

21 citalopram and trazodone – and prescription antipsychotics – aripiprazole – was not

22 properly characterized as conservative treatment); Carden v. Colvin, 2014 WL

23 839111, at *3 (C.D. Cal. Mar. 4, 2014) (mental health treatment not conservative

24 where claimant's prescription medications had included Zyprexa, Depakote, Geodon,

25 Remeron, Lithium, Zoloft, Risperdal, Wellbutrin, Seroquel, Trazodone and

26 Buspirone). Even assuming the ALJ mischaracterized Plaintiff’s treatment as

27 conservative, the error was harmless because the ALJ provided other legally

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1 || sufficient reasons for his credibility determination. See Molina, 674 F.3d at 1115;

2 || Batson, 359 F.3d at 1197.

3 CONCLUSION

4 IT IS THEREFORE ORDERED that Judgment be entered affirming the

5 || decision of the Commissioner of Social Security and dismissing this action with

6 || prejudice.

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8 || DATED: 10/2/2019

(by MokK—

ALEXANDER F. MacKINNON

11 UNITED STATES MAGISTRATE JUDGE

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