# Ralph Burrachio v. Andrew Saul

> District Court, C.D. California · June 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10038136

## Case

- **Court:** District Court, C.D. California
- **Decided:** June 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10038136

## How later opinions describe it (automated extraction)

- discussing the standards applicable to evaluating 28 prejudice
- finding any Step 2 error harmless where ALJ considered the impairment at Step 4

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 RALPH B., ) NO. ED CV 19-1695-E
)
12 Plaintiff, )
)
13 v. ) MEMORANDUM OPINION
)
14 ANDREW SAUL, Commissioner of )
Social Security, )
15 )
Defendant. )
16 ____________________________________)
17
18 PROCEEDINGS
19
20 Plaintiff, then represented by counsel, filed a complaint on
21 September 5, 2019, seeking review of the Commissioner’s denial of
22 benefits. On October 3, 2019, the parties consented to proceed before
23 a United States Magistrate Judge. On February 3, 2020, the Court
24 granted Plaintiff’s counsel leave to withdraw. Plaintiff, now, pro
25 se, filed a motion for summary judgment on February 26, 2020.
26 Defendant filed a motion for summary judgment on April 27, 2020.
27 Plaintiff filed opposition to Defendant’s motion for summary judgment
28 on May 20, 2020 (“Plaintiff’s Opposition”). The Court has taken the
1 motions under submission without oral argument. See L.R. 7-15;
2 “Order,” filed September 6, 2019.
3
4 BACKGROUND
5
6 Plaintiff, a former janitor, filed an application for
7 Supplemental Security Income on or about March 6, 2015, asserting
8 disability since July 28, 2014, based on, inter alia, alleged
9 rheumatoid arthritis, anxiety, high blood pressure, high cholesterol,
10 scoliosis, schizophrenia, tachycardia, angina, diabetes (type 2),
11 hypoglycemia, osteogenesis imperfecta (brittle bone disease), Osgood-
12 Schlatter disease, depression and multiple concussions (Administrative
13 Record (“A.R.”) 24, 142, 149-51, 238, 306-14, 332-33). An
14 Administrative Law Judge (“ALJ”) reviewed the record and heard
15 testimony from Plaintiff, Plaintiff’s mother and a vocational expert
16 (A.R. 24-35, 145-95).
17
18 The ALJ found that Plaintiff has severe degenerative changes of
19 the cervical, thoracic and lumbar spine with lumbar radiculopathy and
20 sensory-motor peripheral neuropathy of the lower extremities, as well
21 as a mental impairment “varyingly diagnosed as bipolar disorder and
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
1 major depressive disorder” (A.R. 26).1 However, the ALJ also found
2 that Plaintiff retained the residual functional capacity to perform
3 medium work, limited to: (1) sitting no more than six hours and
4 standing and/or walking no more than six hours in an eight-hour
5 workday with normal breaks; (2) frequent climbing of stairs and ramps;
6 (3) occasional climbing of ladders and scaffolds; (4) frequent
7 balancing, stooping, kneeling, crouching and crawling; (5) no
8 unprotected heights, heavy vibrations and workplace hazards; (6) no
9 more than occasional exposure to extreme cold; (7) no operating motor
10 vehicles commercially; and (8) performing routine, repetitive tasks
11 without high production quotas in a non-fast-paced environment. See
12 A.R. 30-34 (giving significant weight to internal medicine
13 consultative examiner’s opinion and state agency physicians’ opinions,
14 but also giving Plaintiff the benefit of doubt regarding his mental
15 ///
16 ///
17 ///
18 ///
19
20
1 The ALJ found “nonsevere” Plaintiff’s alleged
21
hypertension, scoliosis, angina, tachycardia, hypoglycemia,
22 Osgood-Schlatter disease, rheumatoid arthritis and osteogenesis
imperfecta, reasoning that: (1) Plaintiff assertedly had not
23 alleged any work-related limitations attributable to these
conditions; (2) Plaintiff’s hypertension was well controlled;
24 (3) there assertedly was no evidence of tachycardia or angina
persisting beyond one hospital visit on July 29, 2014; and
25
(4) there assertedly was no objective evidence of hypoglycemia,
26 Osgood-Schlatter disease, rheumatoid arthritis or osteogenesis
imperfecta in the record (A.R. 26-27). As for Plaintiff’s
27 alleged schizophrenia, the ALJ acknowledged a previous diagnosis
of schizophrenia but stated there was no such diagnosis “dating
28
1| impairment(s) in limiting Plaintiff to routine repetitive tasks) .’
2
3 The ALJ identified certain jobs Plaintiff assertedly could
perform. See A.R. 34-35 (adopting vocational expert testimony at A.R.
5| 189-91, identifying several medium and light jobs that could be
6| performed) .* Accordingly, the ALJ denied benefits (A.R. 35). The
Appeals Council considered additional evidence but denied review (A.R.
6-11).
9
10 STANDARD OF REVIEW
11
12 Under 42 U.S.C. section 405(g), this Court reviews the
13] Administration’s decision to determine if: (1) the Administration’s
14] findings are supported by substantial evidence; and (2) the
15] Administration used correct legal standards. See Carmickle v.
16] Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,
17] 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,
18
19 ? In finding this capacity, the ALJ discounted
50 Plaintiff’s statements regarding his subjective symptomatology as
“not entirely consistent with the medical evidence and other
evidence in the record,” including Plaintiff’s conservative
treatment with over-the-counter pain medications and his
“relatively high level of daily activity, including vacuuming,
carrying out trash and washing dishes” (A.R. 30-34). The ALJ
also gave little weight to the testimony of Plaintiff’s mother as
DA concerning many asserted impairments unsupported by the post-
alleged onset date medical record (A.R. 33).
25 ice
3 The vocational expert testified that, if a person were
26| further limited to superficial interaction with the public,
several jobs would be precluded, but other medium and light jobs
would still be performable (A.R. 191-93). The vocational expert
also testified that, if a person were off task more than 10
28 percent of the work day, all work would be precluded (A.R. 193).
fl

1 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such
2 relevant evidence as a reasonable mind might accept as adequate to
3 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
4 (1971) (citation and quotations omitted); see also Widmark v.
5 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
6
7 If the evidence can support either outcome, the court may
8 not substitute its judgment for that of the ALJ. But the
9 Commissioner’s decision cannot be affirmed simply by
10 isolating a specific quantum of supporting evidence.
11 Rather, a court must consider the record as a whole,
12 weighing both evidence that supports and evidence that
13 detracts from the [administrative] conclusion.
14
15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and
16 quotations omitted).
17
18 Where, as here, the Appeals Council “considers new evidence in
19 deciding whether to review a decision of the ALJ, that evidence
20 becomes part of the administrative record, which the district court
21 must consider when reviewing the Commissioner’s final decision for
22 substantial evidence.” Brewes v. Commissioner, 682 F.3d at 1163.
23 “[A]s a practical matter, the final decision of the Commissioner
24 includes the Appeals Council’s denial of review, and the additional
25 evidence considered by that body is evidence upon which the findings
26 and decision complained of are based.” Id. (citations and quotations
27 ///
28 ///
1] omitted).* Thus, this Court has reviewed the evidence submitted for
2| the first time to the Appeals Council.
3
4 DISCUSSION
5
6 After consideration of the record as a whole, Defendant’s motion
is granted and Plaintiff’s motion is denied. The Administration’s
findings are supported by substantial evidence and are free from
9] material® legal error. Plaintiff’s contrary arguments are unavailing.
10
11] I. Summary of the Testimony and Statements of Plaintiff and His
12 Mother
13
14 Plaintiff’s mother testified that Plaintiff had a schizophrenic
15] “episode” that started in April of 2014 and culminated in Plaintiff
16] hitting her in July of 2014, for which Plaintiff was arrested (A.R.
17] 172-73). The mother claimed that, at the time of the arrest,
18] Plaintiff was paranoid, thought people were following him, thought
19
20 ‘ And yet, the Ninth Circuit sometimes had stated that
there exists “no jurisdiction to review the Appeals Council’s
decision denying [the claimant’s] request for review.” See,
e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir.
2011); but see Smith v. Berryhill, 139 S. Ct. 1765 (2019) (court
23) has jurisdiction to review Appeals Council’s dismissal of request
DA for review as untimely); see also Warner v. Astrue, 859 F. Supp.
2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming
irony of reviewing an ALJ’s decision in the light of evidence the
ALJ never saw).
26
° The harmless error rule applies to the review of
administrative decisions regarding disability. See Garcia v.
Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v.
28] astrue, 640 F.3d 881, 886-88 (9th Cir. 2011).
Cc

1 people were tapping his phone lines, and thought people at work were
2 putting things in his food and drink (A.R. 172). After his arrest,
3 Plaintiff was taken to Behavioral Health at Arrowhead Regional Medical
4 Center, then to West Valley jail, and then to a board and care
5 facility where he stayed until October of 2017 (A.R. 173-75).
6 According to the mother, Plaintiff had eight previous inpatient
7 hospitalizations for mental health issues, but had gone 15 years
8 without an incident (A.R. 174). Plaintiff was living with his mother
9 at the time of the hearing, and reportedly had been clean and sober
10 since the July, 2014 incident (A.R. 171, 176).
11
12 Plaintiff testified that he had not worked since he had been
13 released from jail (A.R. 151-52). Although Plaintiff had considered
14 getting a job, Plaintiff said he had not looked for work because he
15 has a felony conviction, which he was attempting to get reduced to a
16 misdemeanor (A. R. 153). Plaintiff said he was concerned he would not
17 be hired because of his felony record (A.R. 153). Plaintiff also
18 testified that he could not work because he has severe back pain,
19 knots in his knees, pain in his feet, hands and legs (which he thought
20 could be due to arthritis) and a mental illness which began when he
21 was 18 years old (A.R. 156-58, 160-63). Plaintiff treated his back
22 pain with ibuprofen and over-the-counter creams (A.R. 158-61).
23 Plaintiff was taking Depakote, Abilify and Benadryl for his mental
24 illness (A.R. 164).
25
26 Plaintiff testified that his condition limits his ability to lift
27 objects and handle tools (A.R. 161). Plaintiff also said that his
28 medication makes his mind “foggy” (AR. 166). Plaintiff said he could
1 lift up to 20 pounds, sit for 15 minutes before needing to get up to
2 stretch, and stand for 15 minutes before needing to sit down (A.R.
3 168-69). Plaintiff said he spent his days sitting, walking, taking
4 care of himself and doing household chores (washing dishes, taking out
5 the trash, vacuuming) (A.R. 169).6
6
7 Plaintiff testified that he thought he could do a simple, low
8 stress job where he could move around, not have to lift more than 20
9 pounds and not have to sit or stand all day (A.R. 169-70). Plaintiff
10 said that he had not looked for such a job because of his felony
11 record (A.R. 170).
12
13 Plaintiff’s mother testified that Plaintiff had not worked since
14 the July, 2014 incident because he assertedly is very lethargic, has a
15 hard time with his back, diverticulitis, frequent urination (every
16
6 In a Function Report dated October 25, 2015, Plaintiff
17
and his mother reported that Plaintiff was living in a group home
18 and had lost his job as a janitor due to schizophrenic symptoms
(A.R. 351-61). Plaintiff reportedly: (1) could not lift more
19 than 10 pounds without extreme pain in his hands and back;
(2) could not use his back, arms, legs, feet or hands more than
20 15 minutes at a time without extreme pain; (3) could not sit or
lie down more than 20 minutes at a time without pain and must
21
change positions constantly through the night; and (4) had
22 drowsiness, dizziness, tremors, muscle weakness, palpitations,
confusion and fatigue from his medications which greatly affect
23 his cognitive skills and keep him “half awake” (A.R. 351).
Plaintiff reported that his days consisted of taking his
24 medications, showering, eating breakfast, lunch and dinner,
watching television, assisting with cleanup after dinner and
25
resting (A.R. 352). Once a week, he attended a mandatory
26 behavioral health class by taking a bus to and from the class
(A.R. 352). He was able to manage his personal care, do his own
27 laundry, and help with clearing dishes after meals (A.R. 352-54).
He reported that he had no problems getting along with his family
28
1 15-20 minutes) due to an enlarged prostate, borderline diabetes,
2 hypoglycemia, neuropathy in his legs and hands, a herniated disc,
3 Smorels [sic] nodules in his spine (a degenerative condition),
4 scoliosis and pain (A.R. 176-77). She stated that, because of
5 Plaintiff’s drug abuse history, he is unable to take anything other
6 than Tylenol or ibuprofen for his pain (A.R. 177-78). He manages his
7 pain by changing positions, but supposedly still has discomfort (A.R.
8 178). She said Plaintiff has a hard time holding things in his hands,
9 has hearing loss, is nearsighted, is very forgetful and has difficulty
10 completing tasks (A.R. 178-79). She said Plaintiff spends his days
11 doing a “variety” of things, like making his bed, feeding their three
12 large dogs and letting the dogs in and out of the house (A.R. 179-80).
13 She claimed to think that Plaintiff would not be able to work more
14 than four hours a day and would have difficulty doing even simple and
15 repetitive tasks for more than an hour (A.R. 180). She said Plaintiff
16 does not like to be nagged, is easily agitated, and does not see
17 things that need to be done and do them without being prompted (A.R.
18 180). Plaintiff’s mother claimed to think that Plaintiff’s extreme
19 lethargy was a side effect of the medications he was taking, and said
20 that he vacillates between extreme lethargy and agitation (A.R.
21 181-82). Plaintiff’s friends and family reportedly had been
22 apprehensive about being around Plaintiff since he had hit his mother
23 (A.R. 183).
24 ///
25 ///
26 ///
27 ///
28 ///
1 Plaintiff had not had a prior violent incident (A.R. 184).7
2
3 II. Summary of the Relevant Medical Record
4
5 Plaintiff went to the emergency room on July 29, 2014, for body
6 aches, shortness of breath and intermittent chest pain for the
7 previous five days, with his family reporting that he was a recovering
8 alcoholic and methamphetamine user with 18 years of sobriety who had
9 bipolar disorder/schizophrenia and hypertension (A.R. 593). Plaintiff
10 reportedly drank alcohol heavily the night before and was acting
11 unusually (A.R. 593). On examination, Plaintiff reportedly had
12 tachycardia (A.R. 594, 600). Plaintiff did not want to wait for lab
13 results and was discharged on his own for “non-specific chest pain”
14 (A.R. 594). He was ordered to follow up with the behavioral health
15 unit for psychiatric consultation (A.R. 594).
16
17 Plaintiff was brought back to the emergency room on July 31,
18 2014, for a possible psychiatric hold after he had punched his mother
19 in the face (A.R. 583). Plaintiff admitted that he had punched his
20 mother in the face several times, claiming he had been scared she
21 would hurt him and make him pee on the floor (A.R. 591-92).
22 Reportedly, Plaintiff had been in fear of people coming after him and
23 had experienced auditory and visual hallucinations (A.R. 583).
24
25
7 Plaintiff’s mother submitted a lengthy letter to the
26 Appeals Council addressing missing medical records and alleging
errors in the ALJ’s decision (A.R. 474-556). She previously had
27 submitted to the ALJ medical records and a summary regarding
Plaintiff’s health beginning with Plaintiff’s birth (A.R.
28
1 Plaintiff claimed that he had a history of paranoid schizophrenia and
2 recurrent depression, anxiety, insomnia and poor impulse control, but
3 he denied any current substance or alcohol abuse, although he admitted
4 he had started drinking again (A.R. 589, 591-92).
5
6 On examination, he reportedly was disheveled, alert, depressed,
7 labile, had circumstantial, tangential and disorganized thought, was
8 both cooperative and reluctant (reporting fear that he would be
9 attacked by staff), had both poor and good eye contact, had pressured
10 speech, and had auditory hallucinations and delusional thoughts
11 (paranoid and grandiose delusions about people wanting to hurt him)
12 (A.R. 584, 590, 592). Plaintiff reportedly was “very delusional” and
13 “very paranoid” (A.R. 590-91). Plaintiff was diagnosed with psychotic
14 disorder (not otherwise specified), and he was returned to jail on
15 August 1, 2014, with prescriptions for Risperdal and Depakote
16 prescriptions (A.R. 585, 592).
17
18 Plaintiff’s jail intake evaluation reported that he was scared
19 but did not want to hurt anyone else, and Plaintiff was placed on
20 suicide watch (A.R. 559, 574). Later, he was cleared to continue with
21 behavioral health (id.). Plaintiff reported that he was drinking a
22 few beers a day (A.R. 560). Plaintiff denied having any problems with
23 mood swings, depression or hearing voices (A.R. 560, 573). On
24 examination, Plaintiff reportedly was cooperative, calm with
25 appropriate speech, depressed, had flat affect and answered some
26 questions with confusion (A.R. 569). He was given Depakote, Risperdal
27 and Benadryl while he was in jail (A.R. 561, 831-44).
28 ///
1 By August 18, 2014, Plaintiff reportedly denied any psychiatric
symptoms or depression, his affect was appropriate, mental status
3|| examination was normal and he was assessed with a Global Assessment of
Functioning (“GAF”) score of 55 (A.R. 576, 578-79).° Plaintiff
5|| reported a remote history of drug use (i.e., over 12 years prior) and
6| claimed that he last used alcohol one month earlier (A.R. 578).
7
8 On October 3, 2014, Plaintiff reported that his “meds are good”
and that he thought he had schizophrenia (A.R. 572). He reported a
10] history of anxiety, excess worry, nervousness and anger, but denied
11] any hallucinations or delusional thinking (A.R. 572). He reportedly
12] was cooperative, had slow speech, a flat affect, and concrete thinking
13] with limited insight (A.R. 572). Plaintiff said he had two prior
14] hospitalizations from using drugs (A.R. 572). He admitted a history
15] of using cocaine and methamphetamine, but claimed that he had not used
16) in 60 days (A.R. 572). Plaintiff reportedly had been noncompliant
with medications prior to his incarceration (A.R. 572). Plaintiff was
18] diagnosed with a mood disorder (not otherwise specified), with a note
19] to rule out schizoaffective disorder, and his medications were
continued (A.R. 572).
21] ///
22] ///
23
24 8 The GAF scale is used by clinicians to report an
25 individual’s overall level of functioning. See American
Psychological Association, Diagnostic and Statistical Manual of
26| Mental Disorders 34 (4th ed. 2000) (“DSM”). A GAF of 51-60
indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g.,
28 temporarily falling behind in schoolwork) .” Id.
19

1 On October 16, 2014, Plaintiff reportedly was stable on his
2 medications (A.R. 613). On October 28, 2014, Plaintiff presented to
3 the San Bernardino County Department of Behavioral Health for a
4 medication assessment (A.R. 652-55). Plaintiff had been released from
5 jail to a board and care facility and was seeking regular treatment
6 (A.R. 652). Plaintiff said he was taking his medications as
7 prescribed and felt fatigued and sleepy after taking them (A.R. 652).
8 On mental status examination, Plaintiff reported being forgetful and
9 having difficulty remembering and focusing, with poor insight and
10 judgment (A.R. 655).
11
12 On November 17, 2014, a therapist reported observing symptoms of
13 sadness, sleeplessness, anxiety, irritability, racing thoughts,
14 inability to focus and feeling worthless (A.R. 748). On mental status
15 examination, Plaintiff reportedly had a reserved mood and quiet affect
16 and said he was forgetful and having difficulty remembering and
17 focusing, with paranoid thoughts, poor insight and poor judgment (A.R.
18 751). Plaintiff was diagnosed with major depressive disorder
19 (recurrent, severe with psychotic features), relational problems and
20 alcohol abuse, with a GAF of 33 (A.R. 753).9
21 ///
22 ///
23
24 9 A GAF score of 31–40 indicates “[s]ome impairment in
reality testing or communication (e.g., speech is at times
25
illogical, obscure, or irrelevant) OR major impairment in several
26 areas, such as work or school, family relations, judgment,
thinking, or mood (e.g., depressed man avoids friends, neglects
27 family, and is unable to work; child frequently beats up younger
children, is defiant at home, and is failing at school).” See
28
1 On November 25, 2014, Plaintiff stated that his medications were
2 working for him and that he wanted to continue his treatment (A.R.
3 614). On mental status examination, Plaintiff reportedly had
4 depressed and irritable mood, auditory hallucinations, loose thought
5 process, and paranoid delusions (A.R. 617, 619). He was diagnosed
6 with schizophrenia and alcohol dependence, and assigned a GAF of 40
7 (id.).
8
9 On December 1, 2014, Plaintiff reportedly had a diagnosis of
10 bipolar disorder (not otherwise specified), alcohol dependence in
11 early full remission and a GAF of 50 (A.R. 624).10 On mental status
12 examination, Plaintiff reportedly was polite, withdrawn, spoke slowly,
13 and was “uptight,” with flat affect, fair insight and fair judgment
14 (A.R. 726).
15
16 Dr. Shyam Kumbhani completed an Adult Psychiatric Evaluation
17 dated December 9, 2014 (A.R. 640-41). Plaintiff reported that he
18 suffered from schizophrenia and depression and had been under
19 psychiatric treatment since he was 18 years old (A.R. 640). Plaintiff
20 denied having any psychotic symptoms following a brief psychotic
21 episode at age 18, and stated, “drugs bring out that stuff” (A.R.
22 640). Plaintiff reportedly had become noncompliant with treatment and
23 had experienced a series of drug problems (A.R. 640). Plaintiff had
24 received inpatient treatment twice when he was 18 years old, and again
25
26 10 A GAF score of 41-50 indicates “[s]erious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent
27 shoplifting), OR any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).”
28
1 at age 35 when he was intoxicated with methamphetamine (A.R. 640).
2 Plaintiff admitted methamphetamine use from age 30 to 35, and cocaine
3 use from age 18 to 30 (A.R. 640). On mental status examination,
4 Plaintiff reportedly was within normal limits, except for depressed
5 mood, fair insight and fair judgment (A.R. 641). Plaintiff was
6 diagnosed with a mood disorder (not otherwise specified) and a GAF of
7 55 (A.R. 622-23).11
8
9 On December 30, 2014, a therapist completed an evaluation to
10 comply with Plaintiff’s criminal justice system requirements,
11 reporting that Plaintiff’s problem was drinking and that he was on
12 probation for 36 months (A.R. 648-49). He was assessed with a GAF of
13 40, with “significant improvement” reported since his admission date
14 of November 17, 2014, when his GAF was 33 (A.R. 648-50). Plaintiff
15 was discharged to the Probation Department (A.R. 649).
16
17 On January 13, 2015, Plaintiff reported to Dr. Kumbhani that he
18 was feeling a little better and Plaintiff said his medications keep
19 him calm, but also make him sleepy (A.R. 627). His mental status
20 examination was within normal limits, and his Benadryl dose was
21 lowered (A.R. 627).
22 ///
23
11 Plaintiff’s mother stated that, contrary to Plaintiff’s
24 reports to his providers, Plaintiff’s hospitalization in July of
2014 was the eighth psychiatric episode associated with his
25
alleged schizophrenia, which dated back to when Plaintiff was 18
26 years old (A.R. 737). Plaintiff’s mother stated that Plaintiff
would usually deny any history of mental illness or symptoms, and
27 would attribute his aberrant behaviors to drug and alcohol use,
which Plaintiff’s mother felt only exacerbated his mental
28
1 On February 24, 2015, Plaintiff reported that he was feeling less
2 drowsy since reducing the Benadryl (A.R. 626). Plaintiff said that he
3 had some anxiety and situational stressors and sometimes cannot sleep
4 (A.R. 626). His mental status examination was within normal limits,
5 and his medications were continued (A.R. 626).
6
7 On August 26, 2015, Plaintiff reported that he had been feeling
8 well and his mood had been “a little down but okay” (A.R. 732).
9 Plaintiff denied any anger or hallucinations, and stated that he was
10 getting along well with others at his boarding house (A.R. 732).
11 Plaintiff’s mental status examination was within normal limits, with
12 fair insight and fair judgment (A.R. 732).
13
14 An initial psychiatric evaluation by an unknown provider dated
15 August 31, 2015, states that Plaintiff needed documentation for social
16 security (A.R. 633-35). Plaintiff reported depressed mood, mood
17 swings and feeling lethargic, but Plaintiff denied experiencing any
18 hallucinations (A.R. 633). Plaintiff was worried about losing his
19 housing (A.R. 633). He was taking Depakote, Risperdal and Benadryl
20 (A.R. 633). On mental status examination, Plaintiff reportedly was
21 withdrawn with a flat affect, fair grooming, fair concentration,
22 average intelligence, fair memory, limited insight, fair judgment and
23 poor impulse control (A.R. 635). He was diagnosed with bipolar
24 disorder and assessed with a GAF of 65, with a highest GAF for the
25 ///
26 ///
27 ///
28 ///
1 past year of 68 (A.R. 635).12
2
3 On September 7, 2015, Plaintiff reported to Dr. Kumbhani that he
4 had been sleeping better and his mood had been “good” (A.R. 625). He
5 denied any anger, mania or hallucinations, and stated that he was
6 getting along well with others at his boarding house (id.). On mental
7 status examination, Plaintiff reportedly was malodorous and
8 disheveled, with poor hygiene, flat/blunted affect, fair insight and
9 fair judgment (A.R. 625).
10
11 On October 21, 2015, Plaintiff reported to Dr. Kumbhani that he
12 was feeling well and his mood had been “pretty good” with his
13 medications keeping him “pretty balanced out” (A.R. 681). He denied
14 any psychiatric symptoms and reported getting along well with others
15 (A.R. 681). On mental status examination, Plaintiff reportedly was
16 withdrawn, with flat affect, fair insight and fair judgment (A.R.
17 681).
18
19 Subsequent medication management treatment notes through March of
20 2018 indicate that Plaintiff denied active psychiatric symptoms and
21 reported that his symptoms were stable and well controlled with
22 medication compliance (A.R. 665-66, 669-80, 1147-48, 1300). Mental
23 status examinations were within normal limits, but for some notations
24
25
12 A GAF score of 61-70 indicates “[s]ome mild symptoms
26 (e.g., depressed mood and mild insomnia) OR some difficulty in
social, occupational, or school functioning (e.g., occasional
27 truancy, or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal
28
1 of soft speech and flat affect (A.R. 665-66, 669-80, 1147-48, 1300).
2 Plaintiff was prescribed Risperdal, Depakote and Benadryl until June
3 of 2016, when his Risperdal was replaced with Abilify (A.R. 659-63).13
4
5 There are relatively few treatment records for Plaintiff’s
6 alleged physical problems during the relevant time period.14
7
13 Plaintiff also received weekly group counseling with
8
the San Bernardino County Department of Behavioral Health from
9 January of 2015 through September of 2017 for depression, mood
swings, anxiety and agitation (A.R. 58-133, 775-812). In
10 February of 2015, Plaintiff reported he had an altercation with
the house manager where he lived and that he had been upset
11 thereafter (A.R. 782). In March of 2015, Plaintiff reported that
he was doing better where he lived (A.R. 786). In July of 2015,
12
Plaintiff reported mood fluctuations, impulsivity, isolation,
13 racing thoughts, paranoia, homelessness, inability to obtain
employment and a history of substance abuse (A.R. 67). By
14 December of 2015, Plaintiff had been diagnosed with psychosis,
based on reports of delusions of the mafia being after him,
15 feeling his supervisor in the past was in the mafia, and beating
his mother because he supposedly thought she was in the mafia
16
(A.R. 82). Plaintiff’s commitments included staying clean and
17 sober (see, e.g., A.R. 102). Plaintiff was on probation
throughout the time he attended group counseling (A.R. 132).
18
14 Records from a 1993 workers’ compensation claim for a
19 conveyor belt injury reflected complaints of low back pain
radiating to the right lower extremity, neck pain, headaches and
20 chest pain (A.R. 1097-1113). Plaintiff reportedly had a prior
work injury to his back in 1988 (A.R. 1099). He was diagnosed
21
with a cervical and thoracolumbar strain, chest pain of unknown
22 etiology and post-traumatic headaches for which he was placed on
light duty work (A.R. 1101, 1113).
23
A treatment note from 1999 reported that Plaintiff was
24 diagnosed with chronic back pain and schizophrenia (A.R. 932-33).
Plaintiff apparently had an inpatient hospital stay in 1999, but
25
the records had since been destroyed (A.R. 964-66). Plaintiff
26 had hernia surgery in 2000 (A.R. 912-13, 916-26). Plaintiff
reported progressively worsening low back pain in 2000 and 2006
27 (A.R. 904, 908-09, 911). Plaintiff went to the emergency room
complaining of chest pain in 2007, for which testing was normal
28
1 Plaintiff treated with Dr. David Hernandez-Rodriguez from July of 2015
2 through at least December of 2015 (A.R. 981-86). Plaintiff initially
3 complained of a cough and pain in his hands and back (A.R. 986). By
4 December of 2015, Dr. Rodriguez-Hernandez had mentioned severe chronic
5 back pain (severe degenerative joint disease) with cervical
6 radiculopathy and schizophrenia, and the doctor had ordered testing,
7 prescribed Soma, lidocaine patches and motrin and referred Plaintiff
8 to various specialists (A.R. 981, 983-85).15
9
10 Neurologist Dr. Raj Karnani evaluated Plaintiff on November 16,
11 2015, for reports of radiating neck and low back pain that supposedly
12 had been going on for years (A.R. 44). Plaintiff reportedly was not
13
14 14(...continued)
and Plaintiff was given Ativan, Toradol and Vicodin (A.R.
15 953-63).
16 15 A November, 2016 left foot x-ray showed chronic changes
at the IP and PIP joint of the fourth toe, and a possible
17
non-displaced old fracture of the fifth toe (A.R. 1123).
18 January, 2016 bone density testing for osteoporosis screening
showed osteopenia at the left femoral neck and at L1-L4 with
19 moderate risk of fracture (A.R. 1114-15). A January, 2016 CT
chest scan reported mild diffuse thickening of the proximal third
20 of the esophagus, mild bullous disease, and a few pulmonary
nodules (A.R. 1117-18). A June, 2016 follow-up CT chest scan
21
showed multiple subcentimeter pulmonary nodules that were stable
22 and findings suggestive of bilateral adrenal gland hyperplasia,
greater on the left (A.R. 1119-20). A February, 2017 follow-up
23 CT chest scan showed stable pulmonary nodules as compared to the
previous scan for which follow-up was recommended in one year
24 (A.R. 1121-22). August, 2017 PET CT tumor imaging from the skull
base to the mid thigh showed no new suspicious pulmonary nodules
25
and circumferential wall thickening of the terminal ileum, which
26 might represent inflammatory/infectious process for which a
colonoscopy was recommended (A.R. 1124-25). An April, 2018
27 follow-up CT chest scan showed no acute cardiopulmonary process,
stable pulmonary nodules, and bilateral adrenal nodules
28
1 then taking any pain medication, but he was taking Depakote, Risperdal
2 and Benadryl (A.R. 44). Plaintiff’s mother then said that Plaintiff
3 had been diagnosed with schizophrenia when Plaintiff was 19 years old,
4 was on medication and had not had any “episodes” lately (A.R. 44).
5 Dr. Karnani reviewed Plaintiff’s spine x-rays showing degenerative
6 changes (A.R. 44).16 Plaintiff reported a history of headache,
7 depression, lethargy, anxiety, fatigue, weight change, hypertension,
8 diabetes, arthritis, schizophrenia, hernia surgery, bunionectomy and
9 hospitalization for chest pain in 2006-07 (A.R. 44). On examination,
10 Plaintiff reportedly had diminished bilateral grip strength (4+/5),
11 reduced pinprick, proprioception, temperature sensations and vibration
12 in the lower extremities, but otherwise normal findings (A.R. 44-45).
13 Dr. Karnani diagnosed cervical and lumbar radiculopathy, ligament
14 sprain in the cervical spine, and sprain of “other parts” of the
15 lumbar spine and pelvis (A.R. 45). Dr. Karnani ordered EMG/nerve
16 conduction studies (id.).17
17
18 Rheumatologist Dr. Bikramjit Ahluwalia evaluated Plaintiff on
19 February 1, 2016, for suspected osteoarthritis of the spine (A.R.
20 1141). Plaintiff reportedly had arthritis and numbness in his
21
22 16 August, 2015 cervical, lumbar and thoracic spine x-rays
showed severe degenerative changes primarily at C5-C6, C6-C7,
23 L3-L4, L4-L5, L5-S1, and at the thoracolumbar junction (A.R. 636-
38; see also A.R. 902, 905 (October and November, 2006 lumbar and
24
cervical spine x-rays also showing degenerative changes)).
25
17 January, 2016 EMG/nerve conduction studies showed
26 evidence of bilateral carpal tunnel syndrome, sensory-motor
peripheral neuropathy in the lower extremities, and L4-L5
27 radiculopathy on the right side, for which clinical correlation
was recommended (A.R. 46-48). Dr. Karnani recommended carpal
28
1 fingers, with no detailed examination findings (A.R. 1141). Although
2 the handwriting for this note is difficult to decipher, it appears
3 that Dr. Ahluwalia assessed “OA” (osteoarthritis), “HTN”
4 (hypertension), pre-diabetes,18 osteogenesis imperfecta and
5 schizophrenia (A.R. 1142). Plaintiff followed up with Dr. Ahluwalia
6 on February 22, 2016, reporting pain in his hands and back that
7 supposedly limited his activities (A.R. 1138). On examination,
8 Plaintiff reportedly had Heberden’s and Bouchard’s nodes on his hands
9 and crepitus in both knees (A.R. 1138). Dr. Ahluwalia diagnosed
10 Heberden’s nodes with arthropathy, primary generalized osteoarthritis,
11 other intervertebral disc degeneration in the lumbar spine and carpal
12 tunnel syndrome (A.R. 1138-39). Dr. Ahluwalia referred Plaintiff for
13 pain management and also referred him to a surgeon for possible carpal
14 tunnel release surgery (id.).
15
16 Orthopedist Dr. Matthew J. Pautz evaluated Plaintiff on
17 February 22, 2016 (A.R. 1058-59). Plaintiff complained of a more than
18 30 years history of back pain and sought a pain management referral
19 (A.R. 1058). On examination, Plaintiff reportedly had tenderness on
20 palpation over the SI joint and paravertebral spasm with positive
21 Waddell signs (A.R. 1058). Lumbar spine x-rays reportedly showed
22 diffuse facet arthropathy without spondylosis or spondylolisthesis or
23 significant disc space settling (A.R. 1058). Dr. Pautz diagnosed
24 chronic pain syndrome, lumbago, lumbosacral spondylosis without
25
26
18 January, 2016 hemoglobin A1c testing was high at 5.9 in
27 the “pre-diabetes” range (A.R. 1127; see also A.R. 1303 (March,
2018 testing also showing hemoglobin A1c in pre-diabetes range at
28
1 myelopathy lumbago and possible lumbar sprain, for which Dr. Pautz
2 recommended pain management and physical therapy (A.R. 1058-59).
3
4 Orthopedic surgeon Dr. Rajiv Puri evaluated Plaintiff on July 20,
5 2016 (A.R. 43). Plaintiff reported a history of numbness and tingling
6 in both hands for the past several months, and spine pain without
7 significant radiation to the upper or lower extremities (A.R. 43).
8 Plaintiff reportedly had been diagnosed by Dr. Karnani with bilateral
9 carpal tunnel syndrome and some lower extremity radiculopathy based on
10 recent EMG studies (A.R. 43). On examination, Plaintiff reportedly
11 had good range of motion, right-sided thoracic rib hump due to
12 scoliosis, and decreased sensation in the median nerve distribution
13 for both hands (A.R. 43; see also A.R. 898 (May, 2007 chest x-ray
14 showing mild scoliosis)). X-rays reportedly showed degenerative disc
15 disease in the cervical spine at C5-C6 and C6-C7, right-sided mild
16 thoracic scoliosis, but no remarkable lumbar spine findings (A.R. 43).
17 Dr. Puri diagnosed carpal tunnel syndrome and cervical spine arthritis
18 and recommended left carpal tunnel release surgery (A.R. 43).
19
20 Despite the recommendations of Drs. Ahluwalia, Pautz and Puri,
21 there are no reports in the record of physical therapy, specialized
22 pain management or carpal tunnel release surgery. Plaintiff next
23 consulted with Dr. Shima Hadidchi on June 29, 2017, for alleged loss
24 of memory (A.R. 1279). Plaintiff asserted that he had lost
25 consciousness approximately a month earlier and claimed he had
26 worsening memory loss (A.R. 1279). On examination, Plaintiff had no
27 abnormalities (A.R. 1279). Dr. Hadidchi diagnosed pre-diabetes,
28 anxiety, loss of consciousness, depression screening and ordered blood
1 tests (A.R. 1279-80).
2
3 Consultative examiner Dr. Seung Ha Lim prepared an Internal
4 Medicine Consultation dated June 10, 2015 (A.R. 628-32). Plaintiff
5 complained of hypertension, joint pain in the hands and feet, lower
6 back pain radiating to the chest with scoliosis, heart palpitations
7 with dizziness and shortness of breath, hypercholesterolemia, daily
8 radiating chest pain with some shortness of breath, hypoglycemia with
9 dizziness and weakness, blurry vision and multiple concussions with
10 headaches (A.R. 628-29). Plaintiff denied a history of diabetes (A.R.
11 629). On examination, Plaintiff reportedly had lesser grip strength
12 on the left non-dominant hand, normal spine curvature, pain on range
13 of motion in the back, and normal motor strength and tone without
14 atrophy (A.R. 630-31). Dr. Lim found Plaintiff’s normal blood
15 pressure reading indicated his hypertension was well controlled, and
16 Plaintiff did not present any signs of congestive heart failure (A.R.
17 631). Plaintiff had normal range of motion in his hands and feet, no
18 signs of radiculopathy, regular heart beat, non-specific chest pain by
19 history, mildly decreased visual acuity in both eyes, and no signs of
20 intracranial bleeding (A.R. 631-32). Dr. Lim opined that Plaintiff
21 was capable of performing medium work with no other impairment-related
22 limitations (A.R. 632).
23
24 State agency physicians reviewed the medical record in August of
25 2015 and found Plaintiff capable of medium work, giving “great weight”
26 to Dr. Lim’s opinion (A.R. 196-206). Plaintiff’s affective disorder
27 was deemed nonsevere due to normal mental status examinations and
28 stable symptoms, with a note that Plaintiff’s past hallucinations were
1] likely due to “DAA [drug and alcohol] involvement” (A.R. 201). On
2|| reconsideration in February of 2016, state agency physicians agreed
3] with the initial findings in the August, 2015 review (A.R. 208-19).
4
III. Substantial Evidence Supports the Conclusion that Plaintiff Can
6 Work.
7
8 Substantial evidence supports the conclusion Plaintiff is not
9) disabled. Significantly, no treating physician ever opined Plaintiff
10) is disabled from all work. See Matthews v. Shalala, 10 F.3d 678, 680
11] (9th Cir. 1993); Curry v. Sullivan, 925 F.2d 1127, 1130 n.1 (9th Cir.
1990). As summarized above, consultative examiner Dr. Lim endorsed a
13] residual functional capacity generally consistent with the physical
14] residual functional capacity the ALJ assessed. Compare A.R. 30
15] (residual functional capacity) with A.R. 632 (Dr. Lim’s opinion). Dr.
16] Lim’s opinion constitutes substantial evidence to support the □□□□□
determination of non-disability. See Orn v. Astrue, 495 F.3d 625,
18] 631-32 (9th Cir. 2007) (opinion of examining physician based on
19] independent clinical findings can provide substantial evidence to
20|| support administrative conclusion of non-disability). Additionally,
21] the state agency physicians’ opinions further support the
22|| Administration’s decision (A.R. 196-206, 208-19). See Tonapetyan v.
23| Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining
physician “may constitute substantial evidence when it is consistent
25| with other independent evidence in the record”); Andrews v. Shalala,
53 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of
non-examining physicians do not contradict “all other evidence in the
record” an ALJ properly may rely on these opinions) (citation and
DA

emphasis omitted); Curry v. Sullivan, 925 F.2d at 1130 n.2 (same).
2
3 The vocational expert testified that a person with the residual
4|| functional capacity the ALJ found to exist could perform certain light
5| and medium jobs existing in significant numbers in the national
6|| economy (A.R. 189-93). The ALJ properly relied on this testimony in
7|| denying disability benefits. See Barker v. Secretary of Health and
8|| Human Services, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v.
9] Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986).
10
11 To the extent any of the medical evidence is in conflict, it was
12) the prerogative of the ALJ to resolve such conflicts. See Lewis v.
13] Apfel, 236 F.3d 503, 509 (9th Cir. 2001); see also Treichler v.
14] Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to
15] the ALJ” “to resolve conflicts and ambiguities in the record”). When
16] evidence “is susceptible to more than one rational interpretation,”
the Court must uphold the administrative decision. See Andrews v.
18] Shalala, 53 F.3d at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947,
19} 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.
20] 1997). The Court will uphold the ALJ’s rational interpretation of the
21| evidence in the present case notwithstanding any conflicts in the
evidence.
23] ///
24] ///
25] ///
26] ///
///
28] ///
OG

1] Iv. Plaintiff’s Remaining Arguments are Unavailing.*’
2
3 Plaintiff faults the Administration for failing to obtain medical
records concerning events occurring prior to the alleged onset date.
5| See Plaintiff’s Motion, pp. 4-5; Plaintiff’s Opposition, pp. 1-2. The
6| ALJ appropriately focused on the period at issue, which ran from the
7|| March 6, 2015 application date through the date of the ALJ’s decision.
8] As summarized above, the ALJ appropriately included in the
9] administrative record medical reports dating back to one year prior to
10] the application date. See A.R. 24; see also 20 C.F.R. §§ 416.335,
11] 416.501 (Title XVI benefits are available from the month after the
12) month the application is filed); 20 C.F.R. § 416.912 (agency will
13] develop claimant’s medical history for at least 12 months preceding
the month in which the claimant files his application); compare A.R.
15] 739-41 (Plaintiff’s list of medical providers with dates of service,
16] which reflects records summarized above for the relevant time period).
17] Furthermore, the ALJ also expressly considered Plaintiff’s “complete
18] medical history” - which included a summary provided by Plaintiff and
19] hundreds of pages of records, detailed above, dating back to 1993.
See A.R. 24; see also A.R. 148 (ALJ admitting Exhibits through 17F at
21] the administrative hearing); A.R. 932-33 (Exhibit 14F, records from
22] 1999); A.R. 1097-1113 (Exhibit 15F, records from 1993); A.R. 683-1297
23
+9 The Court has considered and rejected all of the
24 arguments raised in Plaintiff’s motion for summary judgment and
25 in Plaintiff’s Opposition. The Court discusses Plaintiff's
principal arguments herein. Neither Plaintiff's arguments nor
26|| the circumstances of this case show any “substantial likelihood
of prejudice” resulting from any error allegedly committed by the
27] See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th
Cir. 2011) (discussing the standards applicable to evaluating
28 prejudice).
76

1 (Exhibits 13F-15F, provided by Plaintiff). Additionally, as Plaintiff
2 admits, many of the records supposedly reflecting Plaintiff’s
3 schizophrenia diagnosis and hospitalizations do not exist because they
4 are too old (A.R. 691-94). Plaintiff has not demonstrated that the
5 ALJ materially erred in failing to develop the medical record more
6 fully.
7
8 Plaintiff also argues that Plaintiff’s claimed 36-year history of
9 paranoid schizophrenia was not reported to the ALJ. See Plaintiff’s
10 Motion, p. 3. Contrary to this argument, the medical record the ALJ
11 reviewed contained several reports by both Plaintiff and his mother
12 that he had a history of schizophrenia with several related
13 hospitalizations dating back to when Plaintiff was 18 or 19 years old
14 (A.R. 44, 134, 592-93, 737). The ALJ was aware of Plaintiff’s claimed
15 mental health history, but stated that: (1) Plaintiff’s mother
16 testified that Plaintiff had no schizophrenic “incidents” for the past
17 15 years until the July, 2014 incident, when Plaintiff was drinking
18 (A.R. 28-29, 174, 176); and (2) the record since January of 2015
19 suggests that Plaintiff’s mental impairments are well controlled by
20 medication (A.R. 28-29, 665-82, 1147-48). In light of these
21 statements and the medical evidence summarized above, the ALJ’s
22 failure expressly to acknowledge the post-July, 2014 references to
23 schizophrenia in the record was, at most, harmless error.
24
25 Plaintiff also argues that the ALJ did not understand
26 osteogenesis imperfecta, a “rare inherited brittle bone disease,”
27 which assertedly is related to Plaintiff’s other physical conditions
28 (i.e., scoliosis, osteoarthritis, chronic back pain, and “escalating
cardiac and respiratory issues”). See Plaintiff’s Motion at 3. The
2| ALJ found that Plaintiff had severe degenerative changes to the spine
with radiculopathy, but found that the other conditions were not
adequately documented in the record and were nonsevere impairments
5| because Plaintiff assertedly had not alleged any work-related
6| limitations based on osteogenesis imperfecta, scoliosis, arthritis,
angina or tachycardia (A.R. 26-27; but see A.R. 351-61 (Plaintiff’s
October 16, 2015 Function Report detailing his alleged limitations,
9] discussed, supra, n.6)).*° The state agency physicians reviewed the
10] medical records and considered Plaintiff's alleged osteogenesis
11] imperfecta and related conditions, but found Plaintiff capable of
medium work nevertheless (A.R. 196-204, 208-17). Dr. Lim also
13] considered Plaintiff’s related conditions in finding Plaintiff capable
14] of medium work (A.R. 628-32). As discussed above, these opinions
15] furnished substantial evidence supporting the ALJ’s decision, and the
16
17
20 Notwithstanding this finding, in accordance with Social
18] Security Ruling 16-3p and 20 C.F.R. § 416.929, the ALJ considered
all of Plaintiff's alleged symptoms in determining Plaintiff’s
19] residual functional capacity (A.R. 30-32). To the extent
Plaintiff may argue that the ALJ erred in finding certain of
20] plaintiff's alleged conditions nonsevere because Plaintiff
51) actually alleged specific limitations from all of his conditions
(see Plaintiff's Motion, p. 10; Plaintiff’s Opposition, pp. 4-5),
22|| any error is harmless. See Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007) (finding any Step 2 error harmless where ALJ
considered the impairment at Step 4); see also Buck v. Berryhill,
869 F.3d 1040, 1049 (9th Cir. 2017) (because the ALJ considers
24 al impairments both severe and nonsevere in determining a
25 claimant’s residual functional capacity, “the [residual
functional capacity] therefore should be exactly the same
26|| regardless of whether certain impairments are considered ‘severe’
or not”) (emphasis original); Gray v. Commissioner, 365 Fed.
App’x 60, 61-62 (9th Cir. 2010) (finding any Step 2 error
harmless where ALJ considered nonsevere mental impairments in
28 determining claimant’s residual functional capacity).
52

ALJ appropriately relied on these doctors’ interpretation of the
2| evidence.
3
4 Plaintiff faults Dr. Lim’s opinion as assertedly not containing
5] sufficient detail regarding Plaintiff’s conditions to: (1) conform to
6] the Social Security Administration’s guidelines (i.e., “Part IV -
7) Adult Consultative Examination Report Content Guidelines” also known
as the “Green Book,” available at https://www.ssa.gov/disability/
9] professionals/greenbook/ce-adult.htm), listing the minimum contents
10] required for consultative examiner reports; and (2) address Listing
1.00 from 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (the “Listings”).
12) See Plaintiff’s Motion, pp. 5-7; Plaintiff’s Opposition, pp. 3-4.
13] Plaintiff has failed to demonstrate any material discrepancy between
14] Dr. Lim’s report and the Green Book’s guidelines. In any event, the
15] Green Book is not legally binding on the Administration or this Court.
16] See, e.g., Stitely v. Commissioner, 2014 WL 5834700, at *5 (D. Md.
17] Nov. 10, 2014), aff'd, 621 Fed. App’x 148 (4th Cir. 2015) (rejecting
18] claim that consultative examination did not comply with Green Book) ;
19] accord Schweiker v. Hansen, 450 U.S. 785, 789 (1980) (the Social
Security Claims Manual “is not a legal regulation. It has no legal
21| force, and it does not bind the SSA.”). The ALJ was free to rely on
22| Dr. Lim’s opinion as substantial evidence to support the non-
disability determination.
24
25 Plaintiff may be arguing that the ALJ erred in failing to find
that he meets or equals Listings 1.04 (disorders of the spine), 12.03
(schizophrenia spectrum and other psychotic disorders), 12.04
(depressive, bipolar and related disorders), 12.06 (anxiety and
YNQa

1|| obsessive-compulsive disorders) or 12.15 (trauma and stressor-related
disorders) (see Plaintiff's Motion, pp. 7-8, 11-12; Plaintiff’s
3] Opposition, pp. 6-8; see also A.R. 477, 484-518 (Plaintiff's argument
4| re same presented to the Appeals Council)).
5
6 Plaintiff has the burden of demonstrating disability under the
Listings. See Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995),
8] cert. denied, 517 U.S. 1122 (1996); see Sullivan v. Zebley, 493 U.S.
9] 521, 530-31 (1990), superseded by statute on other grounds as stated
10] in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013) (burden is
11] on the claimant to show that his or her impairment meets all of the
12] specified medical criteria for a Listing, or present medical findings
13] equal in severity to all the criteria for the most similar listed
14] impairment). An impairment or combination of impairments that
15] manifests only some of the criteria, no matter how severely, does not
16) qualify. Sullivan v. Zebley, 493 U.S. at 530. Here, Plaintiff failed
17] to carry this burden.
18
19 Under Listing 1.04, Plaintiff must demonstrate that his spine
20|| disorder “result[s] in compromise of a nerve root .. . or the spinal
21] cord” with:
22
23 A. Evidence of nerve root compression characterized by
24 neuro-anatomic distribution of pain, limitation of motion of
25 the spine, motor loss (atrophy with associated muscle
26 weakness or muscle weakness) accompanied by sensory or
27 reflex loss and, if there is involvement of the lower back,
28 positive straight-leg raising test (sitting and supine); OR
Qn

1 B. Spinal arachnoiditis, confirmed by an operative note or
2 pathology report of tissue biopsy, or by appropriate
3 medically acceptable imaging, manifested by severe burning
4 or painful dysesthesia, resulting in the need for changes in
5 position or posture more than once every 2 hours; OR
6
7 C. Lumbar spinal stenosis resulting in pseudoclaudication,
8 established by findings on appropriate medically acceptable
9 imaging, manifested by chronic nonradicular pain and
10 weakness, and resulting in inability to ambulate
11 effectively.
12
13 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.04. The ALJ found that
14 Plaintiff did not meet Listing 1.04 because he: (1) does not have
15 motor loss (having repeatedly exhibited 5/5 motor strength in all
16 extremities, see A.R. 44-45, 630-31, 1058 (reporting “5/5” or normal
17 motor strength)) (1.04A); (2) does not have a diagnosis of spinal
18 arachnoiditis and has not experienced “severe burning or painful
19 dysesthesia” (1.04B); and (3) there are no findings of
20 pseudoclaudication or the need to use an assistive device for
21 ambulating (1.04C) (A.R. 28). The record supports this determination.
22 Plaintiff’s arguments to the contrary fail to demonstrate that he
23 meets or equals Listing 1.04.
24
25 To meet the mental disorders listings at issue (i.e., Listings
26 12.03, 12.04, 12.06 and 12.15), Plaintiff must demonstrate that he
27 fulfills the requirements of paragraphs A and B, or paragraphs A and
28 C:
1 Paragraph A of each listing . . . includes the medical
2 criteria that must be present in [the] medical evidence. []
3 Paragraph B of each listing . . . provides the functional
4 criteria [assessed], in conjunction with a rating scale
5 . . . to evaluate how [the claimant’s] mental disorder
6 limits [his or her] functioning [in four areas (i.e., the
7 ability to (1) understand, remember or apply information;
8 (2) interact with others; (3) concentrate, persist or
9 maintain pace; and (4) adapt or manage oneself)]. . . . To
10 satisfy the paragraph B criteria, [a claimant’s] mental
11 disorder must result in “extreme” limitation of one, or
12 “marked” limitation of two, of the four areas of mental
13 functioning. . . . [] Paragraph C of Listings 12.02,
14 12.03, 12.04, 12.06, and 12.15 provides the criteria [used]
15 to evaluate “serious and persistent mental disorders” * * *
16 [i.e.,] when there is a medically documented history of the
17 existence of the mental disorder. . . . over a period of at
18 least 2 years . . . and [1] [a claimant relies] on an
19 ongoing basis, upon medical treatment, mental health
20 therapy, psychosocial support(s), or a highly structured
21 setting(s), to diminish the symptoms and signs of [the]
22 mental disorder[; and 2] when the evidence shows that,
23 despite [a claimant’s] diminished symptoms and signs, [the
24 claimant has] achieved only marginal adjustment. “Marginal
25 adjustment” means that [] adaptation to the requirements of
26 daily life is fragile; that is, [the claimant has] minimal
27 capacity to adapt to changes in [the claimant’s] environment
28 or to demands that are not already part of [the claimant’s]
1 daily life.
2
3] 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00 et seq. The ALJ found
4) that Plaintiff did not meet the Listings for a mental disorder
5| because: (1) Plaintiff’s impairment does not cause at least one
6| extreme or two marked limitations in the four areas of functioning for
the paragraph B criteria (i.e., Plaintiff has at most moderate
8] limitations in the four areas) (A.R. 28-29 (concluding same based
9) largely on Plaintiff’s normal mental status examinations since January
of 2015 at A.R. 665-82, 1147-48); see also A.R. 201, 214 (state agency
11] physicians finding at most mild limitations in the four areas of
functioning based on their review of the medical records)); and
13] (2) Plaintiff testified to performing a wide variety of activities of
daily living and admitted that he could perform simple work in a low
15] stress environment (A.R. 169-70), which suggests he is capable of more
16] than a “minimal capacity to adapt to changes in [his] environment or
17] to demands that are not already part of [his] daily life” for the
18] paragraph C criteria (A.R. 29-30; see also A.R. 201, 214 (state agency
19] physicians also concluding that Plaintiff does not meet the paragraph
20] C criteria)). Again, the record supports the ALJ’s conclusions.
21] Again, Plaintiff's arguments to the contrary do not demonstrate that
22| he meets or equals any of these listings.
23
24 While Plaintiff argues contrary interpretations of the record
25|| evidence and relies heavily on his mother’s report of Plaintiff's
functioning, it was for the ALJ to interpret the evidence, evaluate
credibility and resolve any conflicts in the evidence. See Treichler
v. Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014); Lewis v. Apfel,
22

1 236 F.3d 503, 509 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 1035,
2 1039-40 (9th Cir. 1995). As previously stated, the Court will uphold
3 the ALJ’s rational interpretation of the evidence notwithstanding any
4 conflicts therein.
5
6 CONCLUSION
7
8 For all of the foregoing reasons, Plaintiff’s motion for summary
9 judgment is denied and Defendant’s motion for summary judgment is
10 granted.
11
12 LET JUDGMENT BE ENTERED ACCORDINGLY.
13
14 DATED: June 9, 2020.
15
16 /s/
CHARLES F. EICK
17 UNITED STATES MAGISTRATE JUDGE
18
19
20
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10038136. Public record. Not legal advice.