# Grace Ellen Frederick v. Nancy A. Berryhill

> District Court, C.D. California · November 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10036152

## Case

- **Court:** District Court, C.D. California
- **Decided:** November 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 GRACE E. F.,1 Case No. 2:18-cv-09905-AFM
12 Plaintiff,
MEMORANDUM OPINION AND
13 v.
ORDER AFFIRMING DECISION
14 ANDREW M. SAUL, OF THE COMMISSIONER
15 Commissioner of Social Security,
16 Defendant.
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Plaintiff filed this action seeking review of the Commissioner’s final decision
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denying her application for disability insurance benefits. In accordance with the
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Court’s case management order, the parties have filed memorandum briefs
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addressing the merits of the disputed issues. The matter is now ready for decision.
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BACKGROUND
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In January 2015, Plaintiff applied for disability insurance benefits. Plaintiff
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originally alleged disability beginning July 1, 2007, but subsequently amended her
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alleged onset date to July 30, 2012. (Administrative Record [“AR”] 15, 61-62, 186-
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194.) Plaintiff’s application was denied. (AR 111-116.) Thereafter, a hearing took
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27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
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1 place before an Administrative Law Judge (“ALJ”). Plaintiff, who was represented
2 by counsel, and a vocational expert (“VE”) testified at the hearing. (AR 32-91.)
3 In a decision dated February 13, 2018, the ALJ found that Plaintiff suffered
4 from the severe impairments of degenerative disc disease of the lumbar spine and
5 arthritis of the left and right thumbs. (AR 18.) The ALJ assessed Plaintiff’s residual
6 functional capacity (“RFC”) as including the ability to: lift and carry 20 pounds
7 occasionally and 10 pounds frequently; stand and walk for two hours in an eight-hour
8 workday; sit for six hours in an eight-hour workday; push and pull 20 pounds
9 occasionally and 10 pounds frequently; frequently operate hand controls; frequently
10 handle and finger bilaterally; occasionally climb ramps and stairs; never climb
11 ladders, ropes or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl;
12 occasionally be exposed to unprotected heights, moving mechanical parts; and
13 frequently be exposed to extreme cold and vibration. (AR 22.) Relying on the
14 testimony of the VE, the ALJ concluded that Plaintiff could perform her past relevant
15 work. Accordingly, the ALJ found Plaintiff not disabled. (AR 25-26.)
16 The Appeals Council subsequently denied Plaintiff’s request for review (AR
17 1-6), rendering the ALJ’s decision the final decision of the Commissioner.
18 DISPUTED ISSUES
19 1. Whether the ALJ erred in finding that Plaintiff did not suffer from a
20 severe mental impairment prior to her last date insured (June 30, 2015).
21 2. Whether the ALJ properly rejected Plaintiff’s subjective complaints.
22 3. Whether the ALJ properly rejected lay testimony.
23 4. Whether the ALJ properly rejected the opinion of Plaintiff’s treating
24 physician.
25 5. Whether the ALJ erred in determining that Plaintiff could perform her
26 past relevant work.
27 ///
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1 STANDARD OF REVIEW
2 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
3 determine whether the Commissioner’s findings are supported by substantial
4 evidence and whether the proper legal standards were applied. See Treichler v.
5 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial
6 evidence means “more than a mere scintilla” but less than a preponderance. See
7 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
8 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a
9 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
10 U.S. at 401. This Court must review the record as a whole, weighing both the
11 evidence that supports and the evidence that detracts from the Commissioner’s
12 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more
13 than one rational interpretation, the Commissioner’s decision must be upheld. See
14 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
15 DISCUSSION
16 I. The ALJ’s non-severity finding
17 Plaintiff makes several arguments in support of her contention that the ALJ
18 erred by concluding that she did not have a severe mental impairment prior to
19 June 30, 2015. (ECF No. 25 at 5-9.) For the following reasons, Plaintiff’s contentions
20 lack merit.
21 A. Relevant Law
22 At Step Two of the sequential evaluation process, the claimant has the burden
23 to show that she has one or more “severe” medically determinable impairments. See
24 Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 148 (1987); Webb v. Barnhart, 433 F.3d
25 683, 686 (9th Cir. 2005). An impairment is “not severe if it does not significantly
26 limit [a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R.
27 § 20 C.F.R. § 404.1522; see Webb, 433 F.3d at 686.
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1 In determining whether a claimant’s mental impairment is severe, an ALJ is
2 required to evaluate the degree of mental limitation in the following four areas:
3 (1) understand, remember, or apply information; (2) interact with others;
4 (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. If the
5 degree of limitation in these four areas is determined to be “mild,” a claimant’s
6 mental impairment is generally not severe, unless there is evidence indicating a more
7 than minimal limitation in her ability to perform basic work activities. See 20 C.F.R.
8 § 404.1520a(c)-(d).
9 B. The ALJ’s decision
10 The ALJ found that Plaintiff’s medically determinable impairment of
11 depression caused no limitations in understanding, remembering, or applying
12 information; no limitations in interacting with others; no limitations in concentrating,
13 persisting, or maintaining pace; and a mild limitation in adapting or managing
14 herself. (AR 20). Because he found that Plaintiff’s mental impairment caused no
15 more than minimal limitation in her ability to perform basic mental work activities,
16 the ALJ concluded that it was not severe. (AR 18-20.) In reaching this conclusion,
17 the ALJ considered the following evidence.
18 In September 2010, Plaintiff underwent a consultative psychiatric evaluation
19 by Stephan Simonian, M.D. (AR 19, citing AR 344-348.) Plaintiff told Dr. Simonian
20 that she was laid off in September 2009 and was later diagnosed with hepatitis and
21 diabetes. She had recently completed treatment with Interferon,and she was “feeling
22 tired and rather anxious.” (AR 344.) Plaintiff indicated that she had no past
23 psychiatric history and had never seen a psychiatrist. (AR 345.)She reported a history
24 of alcohol abuse, but had stopped drinking in January 2010. (AR 345.)
25 Dr. Simonian’s mental status examination revealed normal speech, thought
26 process, affect, thought content, intellectual functioning, memory, comprehension,
27 abstract thinking, and calculations. (AR 346-347.) Plaintiff’s mood “was somewhat
28 anxious.” (AR 346.) Dr. Simonian diagnosed Plaintiff with generalized anxiety
1 disorder with avoidant personality features. In Dr. Simonian’s opinion, Plaintiff was
2 able to perform both simple and complex job instructions, maintain concentration
3 and attention on a consistent basis, maintain attendance and perform work activities
4 on a consistent basis, and perform work without special supervision. However, he
5 opined that Plaintiffwas moderately limited in herability to interact with supervisors,
6 co-workers, and the public and moderately limited in her ability to adapt to the
7 stresses common to a normal work environment. (AR 347-348.)
8 In October 2010, State Agency medical consultant F. L. Williams, M.D.,
9 reviewed the medical evidence and opined that Plaintiff’s mental impairment
10 moderately limited her ability to understand, remember, and carry out detailed
11 instructions, but did not result in limitations in any other functional ability, including
12 her ability to interact with coworkers, supervisors, or the general public. (AR 362-
13 365.)
14 In July 2015, Plaintiff underwent a consultative psychiatric examination by
15 Raymond Yee, M.D. Plaintiff reported feeling anxious and depressed. She told
16 Dr. Yee that she took a “low dose” of Ativan (.5 mg) to help with anxiety. (AR 505-
17 506, 508.) Plaintiff denied ever seeing any outpatient mental health professional and
18 denied any psychiatric hospitalization. (AR 508.) Dr. Yee’s mental status
19 examination revealed that Plaintiff had good eye contact; a polite, cooperative, and
20 friendly presentation; normal speech, mannerisms, and expressions; appropriate
21 mood and affect; and no abnormalities in thought content. Plaintiff’s fund of
22 knowledge, ability to perform calculations, concentration, abstract thinking, and
23 judgment were all intact. Plaintiff’s memory was largely intact. (AR 19, 509-510.)
24 Dr. Yee diagnosed Plaintiff with adjustment disorder with anxiety and depressive
25 features,and alcohol abuse. (AR 510.) Dr. Yee opined that Plaintiff is able to perform
26 simple as well as detailed, complex tasks; accept instructions from supervisors;
27 interact with coworkers and the public; perform work activities on a consistent basis
28 without special attention or supervision; maintain regular attendance in the
1 workplace; and deal with the usual stress that can be encountered in a competitive
2 workplace environment. (AR 511.)
3 In August 2015, the State Agency medical consultant reviewed the record and
4 opined that Plaintiff had no severe mental impairment. (AR 98-103.)
5 On January 13, 2017, Plaintiff was placed on a psychiatric hold. Plaintiff
6 reported feeling destitute and suicidal. She explained that her father had died, she had
7 no income, and her stepmother wanted her out of her home. (AR 545, 603.)
8 Thereafter, Plaintiff received psychiatric treatment from April 2017 to August 2017.
9 (AR 532, 538, 758-829.)
10 In making his Step Two finding, the ALJ afforded great weight to Dr. Yee’s
11 opinion. The ALJ reasoned that Dr. Yee’s finding that Plaintiff had no mental
12 limitations was consistent both with the record as a whole and with Dr. Yee’s clinical
13 examination results. (AR 19.) The ALJ also attributed great weight to the State
14 Agency medical consultant’s opinion that Plaintiff’s mental impairment was not
15 severe, reasoning that the opinion was consistent with the record and the consultant
16 “had a strong understanding of the applicable Social Security rules and regulations
17 when formulating this opinion.” (AR 19.)
18 The ALJ observed that other than evidence that Plaintiff was prescribed
19 Ativan, the record contained no evidence of any mental health treatment between
20 July 30, 2012 (the date of alleged onset) and June 30, 2015 (the date last insured). He
21 emphasized the absence of any treatment records showing that Plaintiff received
22 psychotherapy, counseling, outpatient treatment, medical intervention, or other
23 mental health services from a psychiatrist, psychologist, counselor, or mental health
24 expert during the relevant period. The ALJ found that the absence of evidence of
25 mental health treatment supported Dr. Yee’s opinion that Plaintiff suffered no mental
26 limitations. (AR 19.)
27 The ALJ gave little weight to Dr. Simonian’s opinion. In addition to finding
28 that opinion was not supported by the record, the ALJ found that Dr. Simonian’s
1 assessment provided “no insight into [Plaintiff’s] functional ability during the
2 applicable period” because it reflected Plaintiff’s condition in 2010 – long before the
3 alleged onset date. The ALJ further noted that Dr. Simonian had not been able to
4 review the records available at the hearing level. (AR 19.) Likewise, the ALJ gave
5 little weight to the opinion of Dr. Williams because it pre-dated the disability onset
6 date. (AR 20.)
7 Finally, the ALJ discussed the evidence of “significant mental issues after the
8 period at issue” – namely, evidence that Plaintiff was placed on a psychiatric hold in
9 January 2017 and that she received mental health treatment between April and
10 August 2017. (AR 19, citing AR 662-685, 758-828.) The ALJ found that this
11 evidence lacked relevance to Plaintiff’s mental functional ability during the period at
12 issue. (AR 19-20.)
13 C. Analysis
14 First, Plaintiff argues that the ALJ erred in rejecting the 2010 opinions of
15 Dr. Simonian and State Agency medical consultant Dr. Williams that Plaintiff had
16 moderate limitations in one or more areas of mental function. (ECF No. 25 at 7-8.)
17 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted
18 medical opinion based on clear and convincing reasons.” Trevizo v. Berryhill, 871
19 F.3d 664, 675 (9th Cir. 2017) (citing Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194,
20 1198 (9th Cir. 2008)). “Where such an opinion is contradicted, however, it may be
21 rejected for specific and legitimate reasons that are supported by substantial evidence
22 in the record.” Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3d at 1198). Because
23 Dr. Simonian’s opinion was contradicted by the opinion of Dr. Yee, the ALJ was
24 required to provide specific and legitimate reasons for rejecting it.
25 As set forth above, the ALJ provided several reasons for discounting
26 Dr. Simonian’s opinion. Among others, the ALJ found that Dr. Simonian’s opinion
27 lacked probative value with respect what limitations Plaintiff experienced due to her
28 mental impairment during the period from July 2012 to June 2015. As Plaintiff
1 concedes, Dr. Simonian’s opinion was based upon an examination he conducted in
2 September 2010. Dr. Simonian noted that Plaintiff had no past psychiatric history
3 and her present illness consisted of general anxiety stemming from having been laid
4 off of work and undergoing treatment with Interferon. (AR 344-348.) The ALJ’s
5 conclusion that Dr. Simonian’s opinion did not shed light upon Plaintiff’s mental
6 limitations nearly two years later was reasonable interpretation of the evidence. That
7 is, nothing in Dr. Simonian’s report or opinion suggested that Plaintiff’s symptoms
8 or limitations were part of an ongoing or progressive mental impairment. Indeed, the
9 as the Ninth Circuit has explained, “[m]edical opinions that predate the alleged onset
10 of disability are of limited relevance.” Carmickle v. Comm’r, Soc. Sec. Admin., 533
11 F.3d 1155, 1165 (9th Cir. 2008) (citing Fair v. Bowen, 885 F.2d 597, 600 (9th Cir.
12 1989));see also Burkhart v. Bowen, 856 F.2d 1335, 1340 n.1 (9th Cir. 1988)(medical
13 opinion is not probative when it predates onset date). The ALJ considered
14 Dr. Simonian’s opinion and reasonably concluded that it failed to illuminate
15 Plaintiff’s mental limitations more than a year and a half later during the relevant
16 period. Thus, the ALJ provided a specific and legitimate reason for rejecting it. See
17 Carmickle, 533 F.3d at 1158, 1165 (finding medical opinions limited in relevance
18 because they predated the alleged onset of disability by a few weeks); Akbary v.
19 Astrue, 2012 WL 294908, at *7 (C.D. Cal. Jan. 30, 2012) (ALJ provided legally
20 sufficient reason for rejecting physician opinion where opinion predated disability
21 onset date and, therefore, was of limited relevance); Ingham v. Astrue, 2010 WL
22 1875651, at *4 (C.D. Cal. May 10, 2010) (it was within the ALJ’s discretion to give
23 discount treating physician opinion because report reflected medical opinion more
24 than a year prior to alleged onset of disability). The foregoing conclusion is equally
25 applicable to Dr. Williams’s opinion, which was rendered in October 2010 and based
26 primarily upon Dr. Simonian’s report.
27 Next, Plaintiff argues that the ALJ erred in relying on Dr. Yee’s opinion
28 because his opinion that she has no mental limitations is internally inconsistent with
1 his diagnosis of “adjustment disorder with anxiety features and depressive features”
2 and inconsistent with the GAF score he assessed – namely, a score of 55-60. (ECF
3 No. 25 at 8; see AR 511.) Contrary to Plaintiff’s assumption, however, Dr. Yee’s
4 opinion was not internally inconsistent. The existence of an impairment, diagnosis,
5 or symptoms does not equate to a significant limitation in the ability to perform work
6 activities. Rather, standing alone, a mere diagnosis is insufficient to demonstrate
7 severity at Step Two. See Carmickle, 533 F.3d at 1164-1165 (ALJ did not err at step
8 two by failing to classify carpal tunnel syndrome as a severe impairment where the
9 medical record did not establish work-related limitations); Draiman v. Berryhill,
10 2018 WL 895445, at *7 (C.D. Cal. Feb. 13, 2018) (claimant’s “diagnoses of Major
11 Depressive Disorder and Generalized Anxiety Disorder are insufficient to
12 demonstrate that she has a severe mental impairment” at step two).
13 Similarly, assigning a GAF score of 55 to 60 is not necessarily inconsistent
14 with the conclusion that Plaintiff’s mental impairment resulted in no significant
15 limitations. See Draiman, 2018 WL 895445, at *7 (noting that “GAF scores have
16 limited probative value at step two,” and finding that plaintiff’s GAF scores of 55
17 and 60 were insufficient to demonstrate impairment was severe at Step Two) (citing
18 McFarland v. Astrue, 288 F. App’x 357, 359 (9th Cir. 2008) (“The Commissioner
19 has determined the GAF scale ‘does not have a direct correlation to the severity
20 requirements in [the Social Security Administration’s] mental disorder listings.’”)
21 (quoting 65 Fed. Reg. 50746, 50765 (Aug. 21, 2000)); see also Craig v. Colvin, 659
22 F. App’x 381, 382 (9th Cir. 2016) (ALJ did not err in finding that the claimant did
23 not have a severe mental impairment despite consistent GAF scores of 55).
24 Moreover, even if there was some inconsistency in Dr. Yee’s report, it is the
25 ALJ’s province to resolve ambiguous evidence. See Lingenfelter, 504 F.3d at 1042
26 (“When evaluating the medical opinions of treating and examining physicians, the
27 ALJ has discretion to weigh the value of each of the various reports, to resolve
28 conflicts in the reports, and to determine which reports to credit and which to
1 reject.”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999)
2 (holding that the ALJ was “responsible for resolving conflicts” and “internal
3 inconsistencies” within the treating psychiatrist’s and examining psychologist’s
4 reports); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (ALJ is responsible
5 for resolving conflicts and ambiguities in medical evidence). Thus, so long as the
6 ALJ’s interpretation of the evidence is rational – as it is here – the ALJ’s decision
7 must be upheld. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
8 Plaintiff also argues that the lack of evidence of mental health treatment prior
9 to June 2015 was not a “legitimate reason” for the ALJ to conclude that her mental
10 impairment was non-severe.(ECF No. 25 at 9.) As support for her argument, Plaintiff
11 relies upon Nguyen v. Chater, 100 F.3d 1462 (9th Cir. 1996), but that case is
12 inapposite. In Nguyen, the Ninth Circuit held that “not seek[ing] treatment for a
13 mental disorder until late in the day is not a substantial basis on which to conclude
14 that [a doctor’s] assessment of claimant’s condition is inaccurate.” Nguyen, 100 F.3d
15 at 1465. The ALJ here did not rely upon the absence of mental health treatment from
16 2012 to 2015 as a reason to rejectDr. Simonian’s opinionregarding Plaintiff’s mental
17 condition as of 2010. Rather, he relied upon the absence of medical evidence as
18 support for the conclusion that her mental impairment was not severe during the
19 relevant period – that is, from July 2012 through June 2015.
20 To the extent Plaintiff contends that the ALJ was not permitted to consider the
21 absence of evidence of mental health treatmentduring the relevant period in reaching
22 his conclusion, Plaintiff’s argument is contrary to law. An ALJ may rely upon the
23 absence of medical evidence to conclude that the claimant did not suffer from a
24 severe impairment. See Carmickle, 533 F.3d at 1164-1165 (ALJ did not err in
25 classifying a claimant’s carpal tunnel syndrome as a “non-severe” impairment at Step
26 Two where the only medical evidence addressing such impairment was a letter dated
27 well before the claimant’s alleged onset of disability); Young v. Berryhill, 2018 WL
28 5099669, at *2 (C.D. Cal. Oct. 18, 2018) (“The total absence of objective medical
1 evidence of a severe medical impairment supported the ALJ’s step two
2 determination.”); Mohorko v. Berryhill, 2017 WL 2938192, at *3 (C.D. Cal. July 10,
3 2017) (ALJ did not err in finding plaintiff’s depression and anxiety were non-severe
4 where there was no evidence plaintiff received treatment from a mental health
5 professional and where mental status examination showed plaintiff exhibited good
6 mood and affect, intact memory, and good judgment and insight).
7 Finally, Plaintiff contends that the ALJ erred by finding that the 2017
8 psychiatric records were not relevant to her mental limitations prior to June 30, 2015.
9 It is true that medical evidence post-dating the date last insured may be relevant in
10 determining the claimant’s pre-expiration condition. See Taylor v. Comm’r of Soc.
11 Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011); Lester v. Chater, 81 F.3d 821, 832
12 (9th Cir. 1996)). Plaintiff, however, does not explain how the evidence from 2017 is
13 probative of mental limitations existing on or before June 30, 2015, and nothing in
14 the records suggest that it is. Broadly, the records demonstrate that on January 13,
15 2017, Plaintiff was admitted to a psychiatric hospital due to suicidal ideation. She
16 was discharged on January 25, 2017 with the following final diagnosis: “Anxiety
17 disorder, unspecified; Cannabis use, unspecified, uncomplicated; Chronic pain
18 syndrome; Major depressive disorder single episode, unspecified; Suicidal
19 ideations.” (AR 532.) According to the records, Plaintiff’s suicidal thoughts had been
20 exacerbated by her father’s recent death (AR 538) and Plaintiff’s major depressive
21 disorder was “single episode.” (AR 542.) Thus, the records are fairly construed as
22 reflecting Plaintiff’s mental state after a major event as opposed to the continuation
23 of a prior existing condition. The remaining records indicate that Plaintiff began
24 therapy at Didi Hirsch Mental Health Services in April 2017 and continued therapy
25 through August 2017. Plaintiff identifies no retrospective opinion or any other
26 treatment note which purports to relate to Plaintiff’s mental impairment limitations
27 on or before June 30, 2015. (See AR 759-828). Cf.Taylor, 659 F.3d at 1232 (medical
28 opinion was relevant to disability determination even though statement was dated
1 after the date last insured because the opinion concerned status of plaintiff’s
2 impairments and limitations before the expiration of his insured status); Ward v.
3 Colvin, 2014 WL 4925274, at *3 (E.D. Cal. Sept. 30, 2014) (treating physician’s
4 opinion related back to relevant period because it was based, in part, on treatment
5 during the relevant period). Thus, the ALJ’s determination that the records were not
6 relevant to Plaintiff’s mental limitations during the relevant time period was a rational
7 one. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (holding
8 that ALJ properly did not address a social worker’s post-insured-date opinion
9 regarding a claimant’s ability to work); O’Neal v. Astrue, 2010 WL 4386937, at *3
10 (D. Or. Oct. 29, 2010) (diagnoses of depression and anxiety made three years after
11 date last insured failed to constitute relevant evidence that plaintiff suffered severe
12 mental impairment prior to date last insured).
13 For the foregoing reasons, the ALJ did not err in finding that Plaintiff failed to
14 establish that she had a severe mental impairment.See Ruth G. v. Berryhill, 2019 WL
15 134532, at *10 (C.D. Cal. Jan. 8, 2019) (a record of “cursory psychiatric treatment,”
16 with diagnoses of depression and a GAF of 65, was insufficient to demonstrate
17 plaintiff suffered from mental impairment that significantly limited ability to perform
18 basic work activity).
19 II. The ALJ’s credibility determination
20 Plaintiff contends that the ALJ erred in rejecting her testimony regarding her
21 subjective symptoms and limitations. (ECF No. 25 at 10-17.)
22 A. Plaintiff’s Testimony
23 Plaintiff alleged problems using her hands, lifting, sitting, standing, and
24 walking. She also alleged problems with memory, completing tasks, and
25 concentration. At the hearing, Plaintiff testified that she had two surgeries on her
26 right thumb – first in 2007 and the second in 2010. She had another surgery on her
27 left thumb in July 2012, after which she stopped working. (AR 65-66.) Plaintiff
28 developed back pain in 2012, but was unable to obtain medical treatment until 2014,
1 when she became eligible for Medi-Cal. (AR 39, 54-55, 69.) Plaintiff underwent
2 surgery for her back in June 2015. She was placed in a convalescent facility for two
3 weeks and then had a caregiver for three hours a day, five days a week. (AR 38-39,
4 74.)
5 According to Plaintiff, she has “pretty bad” pain in her left thumb and pain that
6 comes and goes in her right thumb. (AR 68.) She is unable to lift more than five
7 pounds due to weakness and cramps in her hands. Her impairment causes her to lose
8 her grip and drop things. (AR 70.) Plaintiff also testified that she is unable to sit for
9 longer than 20 minutes without needing to change positions or stand. She has
10 difficulty standing or walking for “prolonged periods.” (AR 70-72.) According to
11 Plaintiff, she has trouble remembering, concentrating, and focusing. Although the
12 trouble began in 2012, it became worse after her 2015 back surgery. (AR 66, 73-75;
13 see AR 276.)
14 B. Relevant Law
15 Where, as here, a claimant has presented objective medical evidence of an
16 underlying impairment that could reasonably be expected to produce pain or other
17 symptoms and the ALJ has not made an affirmative finding of malingering, an ALJ
18 must provide specific, clear and convincing reasons before rejecting a claimant’s
19 testimony about the severity of his symptoms. Trevizo, 871 F.3d at 678 (citing
20 Garrison v. Colvin, 759 F.3d 995, 1014-1015 (9th Cir. 2014)). “General findings
21 [regarding a claimant’s credibility] are insufficient; rather, the ALJ must identify
22 what testimony is not credible and what evidence undermines the claimant’s
23 complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester,
24 81 F.3d at 834). The ALJ’s findings “must be sufficiently specific to allow a
25 reviewing court to conclude the adjudicator rejected the claimant’s testimony on
26 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding
27 pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell
28 v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1991) (en banc)).
1 Factors an ALJ may consider when making such a determination include the
2 objective medical evidence, the claimant’s treatment history, the claimant’s daily
3 activities, unexplained failure to pursue or follow treatment, and inconsistencies in
4 testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Molina v.
5 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
6 C. Analysis
7 The ALJ concluded that Plaintiff’s impairments resulted in significant
8 functional limitations. Nevertheless, he found that Plaintiff’s allegations of more
9 severe limitations than those assessed were not credible. The ALJ provided three
10 reasons supporting his credibility determination: Plaintiff’s subjective complaints
11 were (1) not supported by the objective medical record; (2) inconsistent with
12 Plaintiff’s conservative treatment; and (3) inconsistent with evidence showing
13 Plaintiff experienced improvement after surgery. (AR 24.)
14 1. Objective Evidence
15 The ALJ summarized the medical record before concluding that although
16 Plaintiff’s physical impairmentsresulted in some functional limitations, the objective
17 evidence did not support the severity of Plaintiff’s allegations. (AR 24.) With regard
18 to Plaintiff’s back impairment, an October 2014 MRI of Plaintiff’s lumbar spine
19 showed herniation with erosion of the anterosuperior lumbar vertebrae, degenerative
20 disc disease with bony articular facet hypertrophy and grade II spondylolisthesis,
21 central disc extrusion with mild compromise of the lumbar spinal canal at L4-L5, and
22 degenerative disc disease with a disc bulge at L5-S1. (AR 530-531.)
23 A January 2015 EMG study showed “a little bit of sensory conduction delay,
24 probably not clinically significant” and “a little bit of denervation in the left leg
25 distally.” (AR 489.)
26 On June 15, 2015, Plaintiff underwent a lumbar laminectomy procedure. (AR
27 496-499.) Approximately six weeks later, on August 29, 2015, Warren Yu, M.D.,
28 conducted a consultative orthopedic evaluation. Plaintiff reported that she had
1 residual pain in her thumbs, but that her primary issue was her low back. Plaintiff
2 reported that after her back surgery, the pain down her left leg improved, but she
3 experienced residual numbness in her left foot. Her back pain also improved,
4 although Plaintiff indicated that she still needed to “undergo rehabilitation.” (AR
5 515.) Dr. Yu noted that Plaintiff moved freely in and out of the office and exam room
6 without the use of an assistive device. She walked with a “mild limp” on the left side
7 and was not able to toe or heel walk on the left side. Plaintiff was able to squat and
8 rise. (AR 516.)
9 Physical examination of Plaintiff’s cervical and thoracic spine was normal.
10 Plaintiff’s lumbar spine revealed reduced range of motion, moderate tenderness to
11 palpation, but no spasm. Straight-leg raising was negative bilaterally in both the
12 supine and seated position. (AR 517.) Physical examination of Plaintiff’s thumbs
13 revealed prominent MCP joint with no deformities, fusion of the right thumb,
14 tenderness upon palpation, and decreased pinch strength bilaterally. Plaintiff was
15 able to make full fists, and there was no atrophy of the intrinsic muscles. Her grip
16 strength was 45pounds bilaterally.Abduction and adduction of the thumbs were full,
17 and range of motion of the fingers was full and painless. (AR 517.)
18 Plaintiff’s left EHL and tibialis anterior motor strength was -5/5. Otherwise,
19 her motor strength in the upper and lower extremities at 5/5. Dr. Yu found decreased
20 sensation on the lateral aspect of the dorsum of the left foot and lateral aspect of the
21 left leg, but sensation in the rest of the extremities was “well preserved.” (AR 518.)
22 Dr. Yu diagnosed Plaintiff with (1) two months status post L4-L5 fusion with
23 residual L4-L5 neuritis and (2) MCP arthritis in the thumbs that is status post
24 metacarpophalangeal fusion on the right. (AR 518.)
25 With respect to Plaintiff’s thumb impairments, the record contains evidence
26 that Plaintiff underwent a release procedure of her right thumb in December 2010 to
27 correct a prior surgery. (AR 375-377, 475-476.) In July 2012, Plaintiff underwent a
28 repair procedure on her left thumb. (AR 381-400.) Treatment notes from a follow-up
1 visit with Raymond Raven, M.D. (the surgeon who performed Plaintiff’s thumb
2 surgeries) on October 2, 2012 revealed hypermobility of the metacarpophalangeal
3 joint with insufficiency of the ulnar collateral ligament. Dr. Raven diagnosed Plaintiff
4 with status post repair of ulnar collateral ligament with recurring instability and status
5 post arthrodesis of the right thumb metacarpophalangeal joint secondary to failed
6 ulnar collateral ligament repair. (AR 379.) He opined that the treatment options
7 included observation or arthrodesis of the metacarpophalangeal joint, and
8 recommended observation. He noted, “we can fuse the joint at any time. I will see
9 her as needed.” (AR 379.) The record contains no further follow-ups with Dr. Raven.
10 A nerve conduction study performed in January 2015 showed mild distal
11 bilateral sural sensory conduction delay. (AR 485.)
12 The record also contains treatment notes from Herach Yadegarian, M.D.,
13 Plaintiff’s treating physician. Dr. Yadegarian treated Plaintiff from April 2014 to
14 February 2017. (AR 690-755.) As Plaintiff’s counsel conceded at the hearing before
15 the ALJ, Dr. Yadegarian’s notes are “hard to read.” (AR 43.) Plaintiff does not
16 identify any clinical findings or imaging results within these treatment records. (See
17 AR 43.) As best the Court can discern from the legible portions of Dr. Yadegarian’s
18 treatment records, Dr. Yadegarian treated Plaintiff for hypertension, hyperlipidemia,
19 sleep disorder, anxiety disorder, and Hepatitis C. (See AR 698, 700, 704, 719-740,
20 743-757.)
21 The foregoing record supports the ALJ’s conclusion with regard to each of
22 Plaintiff’s alleged limitations. With regard to Plaintiff’s back impairment, the record
23 contains the October 2014 positive MRI findings. In June 2015, Plaintiff underwent
24 surgery. Notably, there is no clinical evidence suggesting that Plaintiff’s back
25 impairment severely limited her ability to stand, walk, or sit. Indeed, six weeks after
26 surgery, Plaintiff appeared for an orthopedic examination and was able to ambulate
27 without an assistive device and able to squat and stand. With regard to Plaintiff’s
28 thumbs, the objective evidence revealed that Plaintiff underwent surgery in 2010 and
1 2012. Otherwise, the clinical findings were minimal – i.e., a mild sensory conduction
2 delay, decreased pinch strength, and mild tenderness on palpation. None of the
3 clinical evidence suggests that Plaintiff suffers cramps in her hands precluding her
4 from lifting or holding objects. To the contrary, the record indicates that her grip
5 strength was 45 pounds bilaterally. Finally, as discussed in detail above, the evidence
6 regarding Plaintiff’s mental impairment revealed minimal findings at best (i.e.,
7 Plaintiff was “somewhat anxious”).
8 “Although lack of medical evidence cannot form the sole basis for discounting
9 pain testimony, it is a factor that the ALJ can consider in his credibility analysis.”
10 Burch, 400 F.3d at 681; see Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d
11 1190, 1197 (9th Cir. 2004) (lack of objective medical evidence to support claimant’s
12 subjective complaints constitutes substantial evidence in support of an ALJ’s adverse
13 credibility determination). Based upon the foregoing, the ALJ properly relied upon
14 the lack of objective evidence as one reason to discount the credibility of Plaintiff’s
15 subjective complaints.
16 2. Conservative treatment
17 The Commissioner contends that the ALJ properly relied upon Plaintiff’s
18 conservative treatment in making his credibility determination. (ECF No. 26 at 7.)
19 Although not entirely clear, the Commissioner’s contention appears to be based upon
20 the ALJ’s finding that,
21 while [Plaintiff] attended multiple doctor’s appointments between 2012
22 and 2015, the treatment records from these appointments imply that
23 [her] doctors had no overarching treatment plan nor that these doctors
24 found that [Plaintiff] needed any specific treatment, aside from managed
25 medication, for her impairments. In addition, [Plaintiff’s] treating
26 doctors prescribed medications to treat her impairments, including
27 Soma, Vicodin, and Percocet.
28 (AR 24, citing AR 385, 831.)
1 The Commissioner is correct that an ALJ may properly rely on evidence of
2 conservative treatment in support of his adverse credibility determination. See Parra
3 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Here, however, in addition to being
4 prescribed narcotic pain medication, Plaintiff underwent back surgery and multiple
5 thumb surgeries,2 and the record suggests that another thumb surgery was
6 contemplated. On this record, the Court is not convinced that the ALJ’s
7 characterization of Plaintiff’s treatment as conservative is supported by substantial
8 evidence. See, e.g., Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010)
9 (treatment with narcotic pain medication, occipital nerve blocks, triggerpoint
10 injections, and cervical-fusion surgery not conservative); Diaz v. Berryhill, 2018 WL
11 4998120, at *6 (C.D. Cal. Oct. 15, 2018) (“Surgery is generally not a ‘conservative’
12 treatment….”); Mattis v. Berryhill, 2018 WL 2077856, at *13 (C.D. Cal. May 1,
13 2018) (“Three back surgeries followed by continued pain management through
14 strong opioid medications, is neither routine nor conservative treatment.”).
15 3. Evidence showing Plaintiff had a good response to surgery
16 The effectiveness of treatment is a relevant factor in determining the severity
17 of a claimant’s symptoms. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-1040 (9th
18 Cir. 2008); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
19 2006). Consequently, evidence of effective treatment may provide a specific, clear,
20 and convincing reason to discount a claimant’s subjective symptom testimony. See
21 Youngblood v. Berryhill, 734 F. App’x 496, 499 (9th Cir. 2018).
22 Here, the ALJ found that Plaintiff’s allegations of disabling pain and
23 limitations was inconsistent with evidence that she had a good response to her thumb
24 and back surgeries. As support for this conclusion, the ALJ cited the August 2015
25 orthopedic examination. (AR 24.) As discussed in detail above, Dr. Yu performed a
26
2 Although Plaintiff’s thumb surgeries were performed prior to the alleged onset date, this Court
27 must review the record as a whole, weighing both the evidence that supports and the evidence that
detracts from the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035; Rodriguez v.
28
1 complete orthopedic evaluation, which revealed some positive findings – i.e.,
2 Plaintiff’s lumbar spine had reduced range of motion,tenderness upon palpation, and
3 residual neuritis at L4-L5; and her thumb had tenderness upon palpation and
4 decreased pinch strength. Notably, however, Plaintiff was able to move freely in and
5 out of the office and the exam room without the use of an assistive device, was able
6 to squat and rise, was able to make full fists, there was no atrophy of the intrinsic
7 muscles in Plaintiff’s hands, her grip strength was 45 pounds bilaterally, and range
8 of motion of the fingers was full and painless. (AR 517-518.) Based upon his
9 examination, Dr. Yu did not find Plaintiff was restricted to the degree she alleged in
10 her testimony. Rather, in Dr. Yu’s opinion, Plaintiff was able to lift and carry 20
11 pounds occasionally and 10 pounds frequently; frequently push and pull; walk and
12 stand two hours in an eight-hour day; sit for up to six hours out of an eight-hour
13 workday; occasionally bend, crouch, stoop, and crawl; occasionally climb ladders
14 and work at heights; frequently use her hands for fine and gross manipulations; and
15 did not need an assistive device. (AR 519.) Dr. Yu’s clinical findings several years
16 after Plaintiff’s last thumb surgery and eight weeks after Plaintiff’s back surgery
17 supports the ALJ’s conclusion that Plaintiff responded well to her surgeries.
18 Plaintiff argues that the ALJ misstated the record. In support of this contention,
19 Plaintiff points to Dr. Yu’s positive findings and assessment of MCP arthritis in the
20 thumbs, as well as Dr. Raven’s October 2012 treatment note reflecting “recurring
21 instability” and a failed ulnar collateral ligament repair. (ECF No. 25 at 16, citing AR
22 379, 517-518.) The continued existence of a diagnosed impairment, however, does
23 not contradict the ALJ’s conclusion that those impairments improved after surgery
24 to the extent that that they were not consistent with Plaintiff’s allegations. Plaintiff
25 also attempts to support her claim by relying upon Dr. Yadegarian’s opinion
26 regarding her functional limitations. But, as discussed below, the ALJ properly
27 rejected Dr. Yadegarian’s opinion.
28
1 Although Plaintiff offers an alternative interpretation of the evidence, the
2 ALJ’s interpretation was rational, and therefore, the Court must affirm it. See Orn,
3 495 F.3d at 630 (where evidence is susceptible of more than one rational
4 interpretation, the Commissioner’s decision must be upheld).
5 III. The ALJ’s consideration of lay witness testimony
6 Plaintiff contends that the ALJ improperly discounted the third-party statement
7 of Plaintiff’s friend, Erica Jules. (ECF No. 25 at 17.) On April 9, 2015, Ms. Jules
8 completed a Function Report – Adult – Third Party on a form approved by the Social
9 Security Administration. Ms. Jules stated that she spent four hours a day, five days a
10 week with Plaintiff. According to Ms. Jules, Plaintiff is couch/bed bound most of the
11 day and night; is unable to “do buttons, zipper, and tie shoes”; needs help
12 remembering to take her medication; cannot stand for more than 5 to 10 minutes
13 without severe pain; cannot sit longer than 15 minutes; and “more or less” cannot
14 leave her residence to participate in outdoor activities. Ms. Jules further indicated
15 that Plaintiff has difficulty lifting, walking, standing, climbing stairs, squatting,
16 sitting, kneeling, bending, and reaching. (AR 250-258.)
17 “In determining whether a claimant is disabled, an ALJ must consider lay
18 witness testimony concerning a claimant’s ability to work.” Bruce v. Astrue, 557 F.3d
19 1113, 1115 (9th Cir. 2009) (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d
20 1050, 1053 (9th Cir. 2006)). Friends and family members in a position to observe
21 symptoms and activities are competent to testify as to a claimant’s condition. See
22 Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). When rejecting lay witness
23 testimony, an ALJ must give specific reasons germane to that witness. Valentine v.
24 Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
25 Here, the ALJ considered Ms. Jules’s third-party function report, but rejected
26 it. The ALJ provided three reasons for doing so: Plaintiff did not present Ms. Jules
27 as a witness so that she could be cross-examined; (2) Ms. Jules did not live with
28 Plaintiff, so she had insufficient contact with Plaintiff to provide a probative account;
1 and (3) Ms. Jules’s account conflicted with the medical evidence. (AR 25.)
2 The ALJ’s first two reasons are likely inadequate bases for dismissing third-
3 party testimony. See Valentine, 574 F.3d at 694 (friends and family members in a
4 position to observe a plaintiff's symptoms and daily activities are competent to testify
5 to condition); Kelli C. S. v. Berryhill, 2019 WL 1330890, at *4–6 (C.D. Cal. Mar. 25,
6 2019) (ALJ may not reject third-party statements merely because they were not given
7 under oath where they were submitted on Social Security Administration’s “Function
8 Report – Adult-Third Party”). The ALJ’s third reason, however, is germane.
9 Although an ALJ may not reject lay testimony simply because it is
10 unsupported by medical evidence, he may reject testimony if it is inconsistent with
11 medical evidence. Compare Diedrich, 874 F.3d at 640 (a lack of support from the
12 medical evidence is not a proper basis for disregarding lay observations) with Lewis
13 v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One reason for which an ALJ may
14 discount lay testimony is that it conflicts with medical evidence.”) (citing Vincent v.
15 Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984); see Carlos L. v. Berryhill, 2019 WL
16 1433723, at *8–11 (C.D. Cal. Mar. 28, 2019) (ALJ may reject lay testimony because
17 it is inconsistent with medical evidence, but not merely because it is unsupported by
18 medical evidence); Guinn v. Berryhill, 2018 WL 2670629, at *14 (C.D. Cal. May 25,
19 2018) (same). Here, because Ms. Jules’s statements were inconsistent with the
20 medical evidence – for example, evidence that Plaintiff was able to ambulate without
21 difficulty during her orthopedic evaluation and was able to squat – the ALJ provided
22 a sufficient reason for rejecting it. See Greger v. Barnhart, 464 F.3d 968, 972 (9th
23 Cir. 2006) (ALJ provided germane reason for rejecting third-party testimony on the
24 ground that it was inconsistent with plaintiff’s presentation to treating physicians
25 during the period at issue).
26 IV. The ALJ’s consideration of Dr. Yadegarian’s opinion
27 Plaintiff contends that the ALJ failed to provide legally sufficient reasons for
28 rejecting the opinion of Dr. Yadegarian. (ECF No. 25 at 19-22.)
1 Dr. Yadegarian completed a Physical Residual Functional Capacity
2 Questionnaire on March 16, 2016. He opined that due to severe low back pain and
3 bilateral hand pain, Plaintiff is limited to: occasionally lift less than 10 pounds; stand
4 and/or walk for less than two hours in and eight-hour workday; sit less than six hours
5 in an eight-hour workday; perform handling only occasionally; never perform
6 reaching or fingering. Dr. Yadegarian opined that Plaintiff required a cane for
7 ambulation. In addition, he opined that she would miss work more than three times a
8 month. (AR 686-689.)
9 A. Relevant Law
10 The medical opinion of a claimant’s treating physician is entitled to controlling
11 weight so long as it is supported by medically acceptable clinical and laboratory
12 diagnostic techniques and is not inconsistent with other substantial evidence in the
13 record. Trevizo, 871 F.3d at 675. Where, as here, a treating physician’s opinion is
14 contradicted, the ALJ must provide specific and legitimate reasons supported by
15 substantial evidence in the record before rejecting it. Trevizo, 871 F.3d at 675;
16 Ghanim, 763 F.3d at 1160-1061; Garrison, 759 F.3d at 1012. The ALJ can meet the
17 requisite specific and legitimate standard “by setting out a detailed and thorough
18 summary of the facts and conflicting clinical evidence, stating his interpretation
19 thereof, and making findings.” Trevizo, 871 F.3d at 675 (citations and internal
20 quotation marks omitted).
21 B. Analysis
22 The ALJ afforded little weight to Dr. Yadegarian’s opinion. Among the
23 reasons for doing so, the ALJ pointed out that Dr. Yadegarian failed to provide an
24 explanation for his assessment and failed to cite specific supporting diagnostic or
25 objective evidence.3 (AR 24.)
26
3 The ALJ also observed that Dr. Yadegarian did not review the record available at the hearing.
27 (AR 24.) Because the Court finds that the ALJ provided a specific and legitimate reason for
rejecting Dr. Yadegarian’s opinion, the Court need not address the adequacy of this additional
28
1 An ALJ may properly reject a treating physician’s opinion that is conclusory
2 or unsupported by clinical findings. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir.
3 2012); Batson, 359 F.3d at 1195. Reference to Dr. Yadegarian’s functional
4 assessment confirms the absence of any reference to supportive clinical or objective
5 evidence. Plaintiff attempts to bolster Dr. Yadegarian’s opinion by citing clinical
6 findings like her MRI and her multiple thumb surgeries, which she believes support
7 it.(ECF No. 25 at 21.) Nevertheless, Plaintiff does not contend that Dr. Yadegarian’s
8 functional assessment actually includes any clinical support for his opinion.4 On this
9 record, the absence of clinical findings supporting Dr. Yadegarian’s opinion was a
10 valid reason for the ALJ to reject it. See Bray v. Comm’r of Soc. Sec. Admin., 554
11 F.3d 1219, 1228 (9th Cir. 2009) (“[T]he ALJ need not accept the opinion of any
12 physician, including a treating physician, if that opinion is brief, conclusory, and
13 inadequately supported by clinical findings.”); Rivera v. Berryhill, 2017 WL
14 2233619, at *7 (C.D. Cal. May 22, 2017) (ALJ properly rejected treating physician’s
15 opinion on ground that it was “not probative or significant because it was not based
16 on any apparent objective or clinical findings”).
17 V. The ALJ’s determination that Plaintiff could perform her past relevant
18 work
19 Plaintiff contends that the ALJ erroneously concluded that she could perform
20 her past relevant work. According to Plaintiff, the ALJ’s hypothetical was flawed
21 because it did not incorporate all of the limitations testified to by Plaintiff and
22 Ms. Jules and assessed by Drs. Simonian and Yadegarian. (ECF No. 25 at 23.) This
23 claim is premised upon Plaintiff’s underlying contentions which the Court already
24 has rejected. As a result, this separate claim presents nothing further to discuss.
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27
4 It is noteworthy that none of the objective or clinical findings Plaintiff contends support
28
1 ORDER
2 IT IS THEREFORE ORDERED that Judgment be entered affirming the
3 || decision of the Commissioner of Social Security and dismissing this action with
4 || prejudice.
5
6 || DATED: 11/19/2019
7 Mex :
8 (by kK&—~
9 ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10036152. Public record. Not legal advice.