ALJ had 21 “germane reasons for discounting [physician’s assistant’s] opinions . . . [which] 22 consisted primarily of a standardized, check-the-box form . . . [that] . . . failed to provide 23 supporting reasoning or clinical findings . . . .”
How later courts described this case
- ALJ had 21 “germane reasons for discounting [physician’s assistant’s] opinions . . . [which] 22 consisted primarily of a standardized, check-the-box form . . . [that] . . . failed to provide 23 supporting reasoning or clinical findings . . . .”
- concluding that any error ALJ committed 20 at step two was harmless where the step was resolved in claimant’s favor
- “If 22 the evidence can support either affirming or reversing the ALJ’s conclusion, we may not 23 substitute our judgment for that of the ALJ.”
- the 18 step-two finding is “merely a threshold determination” that “only raises a prima facie 19 case of a disability”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 ALBERT C., an Individual, Case No.: 8:18-02164 ADS
12 Plaintiff,
13 v.
MEMORANDUM OPINION AND ORDER
14 ANDREW M. SAUL, Commissioner of
Social Security,
15
Defendant.
16
17 I. INTRODUCTION
18 Plaintiff Albert C.1 (“Plaintiff”) challenges Defendant Andrew M. Saul2,
19 Commissioner of Social Security’s (hereinafter “Commissioner” or “Defendant”) denial
20 of his applications for a period of disability and disability insurance benefits (“DIB”),
21
22
1 Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil
Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
23
Administration and Case Management of the Judicial Conference of the United States.
2 On June 17, 2019, Saul became the Commissioner of Social Security. Thus, he is
24
automatically substituted as the defendant under Federal Rule of Civil Procedure 25(d).
1 and supplemental security income (“SSI”). Plaintiff contends that the Administrative
2 Law Judge (“ALJ”) improperly considered his mental impairments, improperly
3 discounted the opinion of a nurse practitioner, and makes other challenges to the
4 administrative process. For the reasons stated below, the decision of the Commissioner
5 is affirmed, and this matter is dismissed with prejudice.
6 II. FACTS RELEVANT TO THE APPEAL
7 A review of the entire record reflects certain uncontested facts relevant to this
8 appeal. Prior to filing his applications for social security benefits, Plaintiff worked as a
9 driver, roofer, and “lead man” for construction companies from 2002 to 2009.
10 (Administrative Record “AR” 40, 42, 57, 220, 235-36, 281). From 2013 to 2015, he
11 worked as a prep cook for a restaurant. (AR 40-41, 220, 235, 237). Plaintiff also did
12 maintenance, repair, and landscaping for a hotel in 2015. (AR 225, 238, 281). He
13 stopped working on March 20, 2015, the alleged onset date. (AR 178, 182, 219, 254).
14 He alleges he can no longer perform any work based on his anxiety, depression,
15 hyperactivity, sleep deprivation, hives, back locking up, foot swelling, and burning in his
16 knee. (AR 219, 226, 244-45, 248, 257, 260). Regarding his knee and back, he explained
17 that he was shot in the California Department of Corrections and thrown down a flight
18 of stairs by a corrections officer. (AR 232). Consequently, he wears a knee brace, uses a
19 “walking stick,” and fears the police. (AR 232, 265).
20 From March 2015 through July 2017, Plaintiff saw nurse practitioner Mumbi
21 Ngunjiri for complaints of anxiety attacks, insomnia, violent thoughts, and paranoid
22 thoughts. During his appointments, he explained to her the effects of his history of
23 incarceration and being harassed by police due to his tattoos. (AR 24, 315-17, 320, 333-
24 46, 386-401, 404-14.) On March 4, 2016, Ms. Ngunjiri completed a “MENTAL
1 IMPAIRMENT QUESTIONNAIRE (Listings).” (AR 26, 381-84). She stated that
2 Plaintiff’s “DSM-IV Multiaxial Evaluation” was “PTSD.” (AR 381). She said he was
3 treated with psychotropic medication with “minimal – moderate response,” but left the
4 prognosis section of the questionnaire blank. (Id.). She opined that Plaintiff had
5 “None-Mild” restriction of activities of daily living. (AR 383). She further opined that
6 he had “Moderate” difficulties in maintaining social functioning and in maintaining
7 concentration, persistence, or pace. (Id.). She estimated that he had four or more
8 episodes of decompensation within a 12-month period. (Id.) She further estimated that
9 Plaintiff would miss about four days a month due to his impairments or treatment. (AR
10 384). Finally, she concluded that Plaintiff had the ability to manage benefits in his own
11 best interest. (Id.).
12 At the administrative hearing, Plaintiff testified about his impairments, including
13 shoulder pain, left ankle/foot injury from his 1998 gunshot wound, anxiety, and PTSD.
14 He reported that he used pain and psychotropic medications, and that the latter were
15 “helpful” and “relieves” him. (AR 49). He said he cannot lift, is easily distracted, and
16 feels anxious around police and groups of people. He testified about living with his two
17 sons, driving them to school, and feeding them. (AR 24, 40-56).
18 III. PROCEEDINGS BELOW
19 A. Procedural History
20 Plaintiff protectively filed applications for DIB under Title II and SSI under Title
21 XVI on April 3, 2015, alleging disability beginning March 20, 2015. (AR 18, 178-87,
22 215). Plaintiff’s applications were denied initially on September 21, 2015 (AR 85-86),
23 and upon reconsideration on January 14, 2016 (AR 105-06). A hearing was held before
24 ALJ Alan J. Markiewicz on November 7, 2017. (AR 35-62). Plaintiff, represented by
1 counsel, appeared and testified at the hearing (AR 40-56), as did vocational expert Kelly
2 Winn (AR 56-60).
3 On February 27, 2018, the ALJ found that Plaintiff was “not disabled” within the
4 meaning of the Social Security Act (“SSA”).3 (AR 18-29). The ALJ’s decision became the
5 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for
6 review on October 26, 2018. (AR 1-6). Plaintiff, now representing himself, filed this
7 action in District Court on December 6, 2018, challenging the ALJ’s decision. [Docket
8 (“Dkt.”) No. 1].
9 On May 30, 2019, Defendant filed an Answer, as well as a copy of the Certified
10 Administrative Record. [Dkt. Nos. 18, 18]. After issuing two orders to show cause why
11 the case should not be dismissed for failure to prosecute and obey Court orders [Dkt.
12 Nos. 21, 25], the parties filed a Joint Stipulation on January 6, 2020 [Dkt. No. 29]. The
13 case is ready for decision.4
14 B. Summary of ALJ Decision After Hearing
15 In the decision, the ALJ followed the required five-step sequential evaluation
16 process to assess whether Plaintiff was disabled under the SSA.5 20 C.F.R.
17
3 Persons are “disabled” for purposes of receiving Social Security benefits if they are
18
unable to engage in any substantial gainful activity owing to a physical or mental
impairment expected to result in death, or which has lasted or is expected to last for a
19
continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
4 The parties filed consents to proceed before the undersigned United States Magistrate
20
Judge, pursuant to 28 U.S.C. § 636(c), including for entry of final Judgment. [Dkt. Nos.
13, 14].
21
5 The ALJ follows a five-step sequential evaluation process to assess whether a claimant
is disabled: Step one: Is the claimant engaging in substantial gainful activity? If so, the
22
claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant
have a “severe” impairment? If so, proceed to step three. If not, then a finding of not
23
disabled is appropriate. Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1?
24
If so, the claimant is automatically determined disabled. If not, proceed to step four.
1 §§ 404.1520(a)(4), 416.920(a)(4). At step one, the ALJ found that Plaintiff had not
2 engaged in substantial gainful activity since his alleged onset date. (AR 21). At step
3 two, the ALJ found that Plaintiff had the following severe impairments:
4 (a) degenerative joint disease of the right shoulder; (b) post-traumatic stress disorder
5 (“PTSD”); (c) depression; and (d) history of polysubstance disorder. (Id.) At step
6 three, the ALJ found that Plaintiff “does not have an impairment or combination of
7 impairments that meets or medically equals the severity of one of the listed impairments
8 in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
9 416.920(d), 416.925[,] and 416.926).” (AR 21-23).
10 The ALJ then found that Plaintiff had the residual functional capacity (“RFC”)6 to
11 perform light work defined in 20 C.F.R. §§ 404.1567(b), 416.967(b)7, further restricted
12 as follows:
13 can lift and/or carry 20 pounds occasionally and 10 pounds
frequently; can stand and/or walk for 6 hours out of an 8-hour
14
15 Step four: Is the claimant capable of performing his past work? If so, the claimant is not
disabled. If not, proceed to step five. Step five: Does the claimant have the residual
16 functional capacity to perform any other work? If so, the claimant is not disabled. If
not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995)
17 (citing 20 C.F.R. § 404.1520).
6 An RFC is what a claimant can still do despite existing exertional and nonexertional
18 limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
7 “Light work” is defined as
19 lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be
20 very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing
21 and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do
22 substantially all of these activities.
20 C.F.R. §§ 404.1567(b), 416.967(b); see also Rendon G. v. Berryhill, 2019 WL
23 2006688, at *3 n.6 (C.D. Cal. May 7, 2019).
24
1 workday with regular breaks; can sit for 6 hours out of an 8-hour
workday with regular breaks; can occasionally reach overhead with
2 the right upper extremity; is limited to simple repetitive tasks; and is
limited to work involving no more than occasional contact with
3 coworkers and the public.
4 (AR 23; see also AR 27).
5 At step four, based on Plaintiff’s RFC, vocational background, and the
6 vocational expert’s testimony, the ALJ found that Plaintiff is unable to perform his past
7 relevant work as a kitchen helper (Dictionary of Occupational Titles (“DOT”) 318.687-
8 010) or construction worker (DOT 869.664-014). (AR 24-25).
9 At step five, the ALJ found that, considering Plaintiff’s age as a “younger
10 individual,” along with his education, work experience, and RFC, he could perform other
11 jobs that exist in significant numbers in the national economy. (AR 27-28). The ALJ
12 accepted the vocational expert’s testimony that Plaintiff would be able to perform the
13 representative occupations of: small products assembler (DOT 706.684-022) and hand
14 packager (DOT 559-687-074). (AR 28). As such, the ALJ found that Plaintiff was “not
15 under a disability,” as defined in the SSA, from March 20, 2015, through the date of the
16 decision, February 27, 2018. (AR 29).
17 IV. ANALYSIS
18 A. Issues on Appeal
19 Plaintiff does not identify the disputed issues as required by the Court’s case
20 management order. [See Dkt. No. 6 at 6-7]. Instead, his portion of the Joint Stipulation
21 generally challenges the following, whether the ALJ: (1) considered his PTSD;
22 (2) considered the opinion of nurse practitioner Ngunjiri; (3) considered that he was on
23 medication for his shoulder surgery during the hearing; and (4) improperly found he
24 could lift 50 to 60 pounds. [Dkt. No. 29 (Joint Stipulation), pp. 1-4, 14-16].
1 B. Standard of Review
2 A United States District Court may review the Commissioner’s decision to deny
3 benefits pursuant to 42 U.S.C. § 405(g). The District Court is not a trier of the facts but
4 is confined to ascertaining by the record before it if the Commissioner’s decision is
5 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)
6 (District Court’s review is limited to only grounds relied upon by ALJ) (citing Connett v.
7 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). A court must affirm an ALJ’s findings of
8 fact if they are supported by substantial evidence and if the proper legal standards were
9 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). An ALJ can satisfy
10 the substantial evidence requirement “by setting out a detailed and thorough summary
11 of the facts and conflicting clinical evidence, stating his interpretation thereof, and
12 making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation
13 omitted).
14 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a specific
15 quantum of supporting evidence. Rather, a court must consider the record as a whole,
16 weighing both evidence that supports and evidence that detracts from the Secretary’s
17 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations and
18 internal quotation marks omitted). “‘Where evidence is susceptible to more than one
19 rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc.
20 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679
21 (9th Cir. 2005)); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“If
22 the evidence can support either affirming or reversing the ALJ’s conclusion, we may not
23 substitute our judgment for that of the ALJ.”). However, the Court may review only “the
24 reasons provided by the ALJ in the disability determination and may not affirm the ALJ
1 on a ground upon which [s]he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2 2007) (citation omitted).
3 C. The ALJ Properly Considered Plaintiff’s Mental Impairments
4 Plaintiff contends that the ALJ “over[]looked” and failed to consider his PTSD,
5 individually and in combination with his other impairments. [Dkt. No. 29, p. 2-3, 15].
6 Plaintiff also points out that he takes medication for PTSD, depression, and anxiety and
7 has been diagnosed with these disorders. [Id.].
8 1. Legal Standard for Consideration of Impairments In the Disability
Evaluation
9
10 At step two of the sequential evaluation, the ALJ determines whether the
11 claimant has a severe, medically determinable impairment or combination of
12 impairments that meets the durational requirement. See 20 C.F.R.
13 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). In assessing severity, the ALJ must determine
14 whether the claimant’s medically determinable impairment or combinations of
15 impairments significantly limits his ability to do basic work activities. See Webb v.
16 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). Step two is a “de minimis screening device
17 to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
18 An impairment or combination of impairments may be found “not severe only if the
19 evidence establishes a slight abnormality that has no more than a minimal effect on an
20 individual’s ability to work.” Webb, 433 F.3d at 686 (quoting Smolen, 80 F.3d at 1290).
21 The ALJ “may find that a claimant lacks a medically severe impairment or combination
22 of impairments only when [that] conclusion is ‘clearly established by medical evidence.’”
23 Id. at 687 (citation omitted). Harmless error analysis applies to the step two
24
1 determination. Davenport v. Colvin, 608 F. App’x 480, 481 (9th Cir. 2015); Burch, 400
2 F.3d at 682.
3 At step three, the ALJ determines whether the claimant’s impairment or
4 combination of impairments is of a severity to meet or medically equal a listed
5 impairment. Before turning to step four, the ALJ fashions the claimant’s RFC. A
6 district court must uphold an ALJ’s RFC assessment when the ALJ has applied the
7 proper legal standard and substantial evidence in the record as a whole supports the
8 decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In making an RFC
9 determination, the ALJ may consider those limitations for which there is support in the
10 record and need not consider properly rejected evidence or subjective complaints. Id.
11 An ALJ is not obligated to discuss “every piece of evidence” when interpreting the
12 evidence and developing the record. See Howard ex rel. Wolff v. Barnhart, 341 F.3d
13 1006, 1012 (9th Cir. 2003) (citation omitted). Similarly, an ALJ is also not obligated to
14 discuss every word of an opinion or include limitations not actually assessed by the
15 medical professional. See Fox v. Berryhill, 2017 WL 3197215, *5 (C.D. Cal. July 27,
16 2017); Howard, 341 F.3d at 1012.
17 2. The ALJ Properly Considered Plaintiff’s Mental Impairments.
18 At step two, the ALJ found that, in addition to a severe physical impairment,
19 Plaintiff has the severe mental impairments of PTSD and depression. (AR 21). The ALJ
20 also specifically stated at this step that he “considered the functional limitations
21 resulting from all of [Plaintiff]’s medically determinable impairments” in his fashioning
22 of the RFC later in the decision. (Id. (emphasis added)).
23 Next, the ALJ proceeded to his consideration of Plaintiff’s mental impairments,
24 “singly and in combination,” under the four functional areas known as the “paragraph
1 B” criteria. (AR 21-23). The ALJ found, as to each criterion, there was insufficient
2 evidence to establish that Plaintiff was “seriously limited.” (AR 21-22). The ALJ found
3 Plaintiff was moderately limited in understanding, remembering, or applying
4 information. (AR 22). Regarding his ability to interact with others, the ALJ found
5 Plaintiff had “no/mild/moderate” limitation. (Id.). The ALJ pointed out that Plaintiff
6 reported he had “good relationships with family and friends,” but also noted that he felt
7 paranoid in groups of people. (Id.). The ALJ then gave Plaintiff “the benefit of the
8 doubt” and found that he had moderate limitation in the area of concentrating,
9 persisting, or maintaining pace. (Id.). The ALJ addressed Plaintiff’s mental status
10 examination, noting, in addition to other findings, Plaintiff’s normal functioning in
11 concentration and attention, and Plaintiff’s statements that he was able to perform
12 normal concentration functioning in his daily activities. (Id.). Finally, the ALJ found
13 Plaintiff had only a mild limitation in the area of adapting or managing oneself. (Id.).
14 The ALJ again referenced consultative-examiner findings, including Plaintiff’s
15 cooperativeness and appropriate dress and grooming. (Id.). The ALJ concluded that
16 because Plaintiff’s mental impairments did not cause at least two “marked” limitations,
17 or one “extreme” limitation, the “paragraph B” criteria were not satisfied. (Id.).
18 The ALJ then explained that: “[t]he limitations identified in the ‘paragraph B’
19 criteria are not a[n RFC] assessment but are used to rate the severity of mental
20 impairments at steps 2 and 3 of the sequential evaluation process. The mental [RFC]
21 assessment used at steps 4 and 5 . . . requires a more detailed assessment.” (AR 23).
22 The ALJ concluded by stating that “the following [RFC] reflects the degree of limitation
23 the undersigned has found in the ‘paragraph B’ mental function analysis” and then
24 assessed Plaintiff’s RFC. (Id.).
1 As mentioned above, in addition to limiting Plaintiff in the RFC physically to a
2 restricted range of light work, the ALJ found Plaintiff was limited to “simple repetitive
3 tasks” and to work “involving no more than occasional contact with coworkers and the
4 public.” (AR 23). The ALJ repeated that he considered “all symptoms” in fashioning the
5 RFC. (Id.). In doing so, the ALJ considered Plaintiff’s subjective statements and
6 testimony about his PTSD, anxiety, treatment, psychotropic medications, distraction,
7 and anxiousness around police officers and groups of people.8 (AR 24-25, 47-52). The
8 ALJ discussed Plaintiff’s mental health records, including with nurse practitioner
9 Ngunjiri, again addressed the psychiatric consultative examination and evaluation, and
10 addressed the State agency psychologists’ opinions. (AR 24-26).
11 Plaintiff has failed to show how this exhaustive consideration of his mental health
12 issues was in error. As mentioned, the ALJ found Plaintiff’s PTSD and depression to be
13 severe impairments. (AR 21). To the extent Plaintiff contends that the ALJ erred by
14 failing to also find his anxiety severe, any error, if there was any, was harmless because
15 step two was resolved in Plaintiff’s favor, i.e., the ALJ found Plaintiff’s claim survived
16 the “gatekeeping” step designed to dispose of groundless claims by finding another
17 impairment to be severe. See Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (the
18 step-two finding is “merely a threshold determination” that “only raises a prima facie
19 case of a disability”); Burch, 400 F.3d at 682 (concluding that any error ALJ committed
20 at step two was harmless where the step was resolved in claimant’s favor); Kemp v.
21 Berryhill, 2017 WL 3981195, at *5 (C.D. Cal. Sept. 8, 2017) (any error in declining to find
22
23
8 The ALJ gave Plaintiff’s subjective complaints the “benefit of the doubt” at times, but
ultimately found them not entirely credible, a determination Plaintiff does not challenge
24
in this appeal. (AR 24-27).
1 impairments severe is harmless because step two is the “gatekeeping” step, and the ALJ
2 continued the analysis).
3 Moreover, the ALJ considered all of Plaintiff’s mental health issues in assessing
4 his RFC, including his PTSD, depression, and anxiety. As mentioned, the ALJ
5 considered Plaintiff’s mental health condition in a highly detailed analysis immediately
6 before fashioning the RFC, acknowledged that the “paragraph B” criteria and RFC are
7 separate findings, and specifically found that the RFC reflected the degree of limitation
8 he had already found in the “paragraph B” mental function analysis. (AR 20). The ALJ
9 stated on at least two occasions that he considered “all” of Plaintiff’s symptoms and
10 impairments in assessing the RFC. (AR 22-23). The ALJ also stated he “considered
11 opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.926”
12 and proceeded to discuss those opinions in the decision. (AR 23). Accordingly, Plaintiff
13 has not shown that the ALJ omitted consideration of his mental impairments in
14 assessing the RFC.
15 To the extent Plaintiff also contends that the ALJ should have included even
16 more restrictive limitations in the RFC based on his mental limitations, Plaintiff has
17 failed demonstrate he is entitled to relief. He has not explained how any of his mental
18 limitations are sufficiently restrictive to ultimately preclude him from performing work.
19 See, e.g., Hoopai, 499 F.3d at 1077 (explaining the Ninth Circuit has not “held mild or
20 moderate depression to be a sufficiently severe non-exertional limitation that
21 significantly limits a claimant’s ability to do work beyond the exertional limitation.”);
22 Ball v. Colvin, 2015 WL 2345652, at *3 (C.D. Cal. May 15, 2015) (“As the ALJ found that
23 Plaintiff’s mental impairments were minimal, the ALJ was not required to include them
24 in Plaintiff’s RFC.”); Sisco v. Colvin, 2014 WL 2859187, at *7-8 (N.D. Cal. June 20,
1 2014) (ALJ not required to include in RFC assessment mental impairment that imposed
2 “no significant functional limitations”).
3 Accordingly, for the reasons outlined above, the Court finds no harmful error at
4 step two or in fashioning the RFC, and concludes that the ALJ duly considered Plaintiff’s
5 mental impairments in the decision.
6 D. The ALJ Properly Considered the Nurse Practitioner’s Opinion
7 Next, Plaintiff objects to the ALJ’s rejection of Ms. Ngunjiri’s opinion9. [Dkt. No.
8 29, p. 3].
9 1. Legal Standard for Consideration of “Other Source” Opinions
10 “[A]n [ALJ] may disregard a medical opinion that is brief, conclusory, and
11 inadequately supported by clinical findings.” Britton v. Colvin, 787 F.3d 1011, 1012 (9th
12 Cir. 2015) (per curiam); see also Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014).
13 However, “only licensed physicians and certain other qualified specialists are considered
14 ‘[a]cceptable medical sources.’” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)
15 (quoting 20 C.F.R. § 404.1513(a)). Nurse practitioners and physician assistants are not
16 considered acceptable medical sources and are instead defined as “other sources” that
17 are not entitled to the same deference as acceptable medical sources. See Dale v. Colvin,
18 823 F.3d 941, 943 (9th Cir. 2016); Britton, 787 F.3d at 1013; Molina, 674 F.3d at 1104.
19 “An ALJ may discount the opinion of an ‘other source,’ such as a nurse practitioner, if
20 she provides ‘reasons germane to each witness for doing so.’” Popa v. Berryhill, 872
21 F.3d 901, 906 (9th Cir. 2017) (citation omitted).
22
23
9 Plaintiff initially refers to Ms. Ngunjiri as a “doctor,” but then later concedes she is a
24
nurse practitioner. [Dkt. No. 29, pp. 1, 3].
1 2. The ALJ Provided Germane Reasons, Supported by Substantial Evidence,
for Discounting the Opinion
2
3 Preliminarily, the Court notes the ALJ did not reject Ms. Ngunjiri’s opinion in its
4 entirety. By providing a summary of her treatment notes and opinion, and then
5 assigning “low” weight, the ALJ necessarily gave consideration and credited aspects of
6 the opinion. (AR 24, 26). Indeed, the ALJ made similar findings as assessed by Ms.
7 Ngunjiri in the areas of Plaintiff’s social functioning, and concentration, persistence, and
8 maintenance of pace. (Compare AR 22 with AR 383). Further, as mentioned, the ALJ
9 limited Plaintiff to simple repetitive tasks and limited his contact with coworkers and
10 the public, which at least partially reflected Ms. Ngunjiri’s opinion. (AR 23).
11 To the extent the ALJ did not fully adopt the limitations in the opinion, he
12 provided germane reasons for doing so that are supported by the record. The ALJ
13 assigned “low” weight to the opinion because:
14 The mental limitations [Ms. Ngunjiri] assessed are excessive compared
to her clinical notes of record, showing overall normal mental status
15 examination findings with improving mood and affect ([Citing 315-17,
320, 388, 410, 412]). In addition, the medical records do not show that
16 [Plaintiff] had multiple episode[s] of decompensation or marginal
adjustment. Also, Ms. Ngunjiri did not provide any significant rationale
17 to indicate why [Plaintiff] should have a large number of absences from
work. Lastly, little weight is given to her opinion because she is a nurse
18 practitioner and is not an acceptable medical source as defined in the
Regulations (20 CFR 404.1513(a)(e)).
19
20 (AR 26; see also AR 24).
21 Plaintiff has not attempted to show that any of these reasons are illegitimate or
22 otherwise inadequate. The record supports the ALJ’s conclusion that many of
23 Ms. Ngunjiri’s treatment notes reflected normal mental status findings with improving
24 mood and affect. (See, e.g., AR 315 (finding Plaintiff cooperative, intact speech, goal-
1 directed thought process, intact thought content, no suicidal or homicidal ideations),
2 316 (describing “good effects” of taking Klonopin every other day), 317 (Plaintiff reports
3 “moderate improvement” with medications, denies side-effects), 386 (same;
4 improvement of mood/affect); 387 (same); 388 (reports “moderate improvement”’;
5 improvement of mood/affect); 393 (reports “moderate improvement”; “still having
6 anxiety . . . without medication, with medication better”; improvement of mood/affect;
7 “[n]o significant change in diagnostic results”); 395 (“reports moderate improvement as
8 a result of medications”); 398 (same); 410-12 (same). Accordingly, the ALJ properly
9 relied on this factor. See Wilhelm v. Comm’r Soc. Sec. Admin., 597 F. App’x 425, 425
10 (9th Cir. 2015) (ALJ properly rejected opinion because it contradicted treatment notes);
11 Shavin v. Comm’r Soc. Sec. Admin., 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may
12 reject opinion by “noting legitimate inconsistencies and ambiguities in the analysis or
13 conflicting lab test results, reports, or testimony” (internal citation omitted)).
14 Moreover, as mentioned, the opinion was incomplete in several areas, there is no
15 indication how Ms. Ngunjiri calculated the episodes of decompensation, and she did not
16 explain how she reached the conclusion that Plaintiff would have many absences from
17 work. (AR 281-84). The ALJ properly considered these deficiencies of the opinion. See,
18 e.g., Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (citation
19 omitted) (ALJ need not accept opinion “that opinion is brief, conclusory, and
20 inadequately supported by clinical findings.”); Molina, 674 F.3d at 1111-12 (ALJ had
21 “germane reasons for discounting [physician’s assistant’s] opinions . . . [which]
22 consisted primarily of a standardized, check-the-box form . . . [that] . . . failed to provide
23 supporting reasoning or clinical findings . . . .”).
24
1 Finally, the ALJ was entitled to consider the source of the opinion, and because
2 he provided germane reasons for discounting it, he was entitled to give it less weight.
3 See Rusten v. Comm'r of Social Sec. Admin., 468 F. App’x 717, 720 (9th Cir. 2012) (“A
4 nurse practitioner is an ‘other source’ for the purposes of medical testimony, and as
5 such, his opinion cannot be used to establish a medical impairment. An ALJ can give
6 less weight to an ‘other source’ medical opinion by providing reasons germane to each
7 witness for doing so.”) (internal citations and quotations omitted); Popa, 872 F.3d at
8 906. Accordingly, Plaintiff has not shown the ALJ improperly discounted the nurse
9 practitioner’s opinion.
10 E. Remaining Contentions
11 Plaintiff is not entitled to relief on his remaining contentions. Regarding
12 Plaintiff’s allegation that he was on medication for shoulder surgery during the hearing,
13 there is nothing in the transcript indicating he was unable to participate effectively and
14 testify competently. (AR 40-56). Moreover, Plaintiff was represented by counsel at the
15 time, who presented argument on his behalf, elicited testimony from him regarding his
16 conditions, and posed a hypothetical question to the vocational expert. (AR 37-40, 52-
17 56, 60-61). To the extent Plaintiff suggests that the ALJ failed to consider his shoulder
18 condition, the ALJ heard testimony about his impairment and noted Plaintiff was
19 wearing a sling (AR 39, 43-46), found degenerative joint disease of the right shoulder to
20 be a severe impairment (AR 21), and, as mentioned, limited Plaintiff to a restricted
21 range of light work with only occasional overhead reaching with the right upper
22 extremity (AR 23). Plaintiff has failed to explain how this inadequately addressed his
23 condition. Finally, contrary to Plaintiff’s assertion [Dkt. No. 29, p. 2], the ALJ did not
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1 find he could lift 50 to 60 pounds.10 (Id.). Accordingly, Plaintiff has failed to show any
2 harmful error in the ALJ’s decision.
3 V. CONCLUSION
4 For the reasons stated above, the decision of the Social Security Commissioner is
5 AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered
6 accordingly.
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8 DATE: March 25, 2020
9
/s/ Autumn D. Spaeth
10 THE HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge
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10 The Court declines to address Plaintiff’s additional, cursory claims raised for the first
time in the reply. See, e.g., Figueroa v. Berryhill, 2018 WL 2176386, at *4 n.3 (C.D. Cal.
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May 10, 2018) (declining to address arguments raised for first time in reply portion of
joint stipulation); Shaw v. Colvin, 2016 WL 1715058, at *2 n.4 (C.D. Cal. Apr. 26, 2016)
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(same). Ulloa v. Colvin, 2015 WL 9455557, at *6 n.9 (C.D. Cal. Dec. 23, 2015) (same).