Tara M. Long v. Andrew M. Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 EASTERN DIVISION

11 TARA M. L.,1 ) Case No. 5:19-cv-01331-JDE

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Plaintiff, ) MEMORANDUM OPINION AND

13 ) ORDER

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14 v. )

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15 ANDREW M. SAUL, ) )

Commissioner of Social Security, )

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17 Defendant. )

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19 Plaintiff Tara M. L. (“Plaintiff”) filed a Complaint on July 19, 2019,

20 seeking review of the Commissioner’s denial of her application for

21 supplemental security income (“SSI”). The parties filed a Joint Submission (“Jt.

22 Stip.”) regarding the issues in dispute on May 19, 2019. The matter now is

23 ready for decision.

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1 Plaintiff's name has been partially redacted in accordance with Fed. R. Civ. P.

27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and

Case Management of the Judicial Conference of the United States.

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1 I.

2 BACKGROUND

3 Plaintiff protectively filed her application for SSI on November 25, 2015,

4 alleging disability commencing on September 22, 2015. AR 15, 226. On June

5 19, 2018, after her application was denied initially and on reconsideration (AR

6 79, 97), Plaintiff, represented by counsel, testified before an Administrative Law

7 Judge (“ALJ”), as did a vocational expert (“VE”). AR 35-53.

8 On July 12, 2018, the ALJ concluded Plaintiff was not disabled. AR 15-

9 26. The ALJ found that Plaintiff had not engaged in substantial gainful activity

10 since November 25, 2015, the application date. AR 17. The ALJ found Plaintiff

11 had severe impairments of: status post left ankle fracture; seizures, possibly

12 controlled; and anxiety/depression. AR 17. The ALJ also found Plaintiff did

13 not have an impairment or combination of impairments that met or medically

14 equaled a listed impairment and had the residual functional capacity (“RFC”)

15 to perform a range of light work as defined in 20 C.F.R. § 416.967(b)2,

16 specifically, Plaintiff:

17 [C]an lift and/or carry 20 pounds occasionally and 10 pounds

18 frequently; sit for six hours out of an eight hour workday; stand

19 and/or walk for six hours out of an eight hour workday; push/pull

20 as much as lift/carry; and occasionally work with moving

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2 “Light work” is defined as

23 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

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lifted may be very little, a job is in this category when it requires a good

25 deal of walking or standing, or when it involves sitting most of the time

with some pushing and pulling of arm or leg controls. To be considered

26 capable of performing a full or wide range of light work, you must have

27 the ability to do substantially all of these activities.

20 C.F.R. § 416.967(b); see also Rendon G. v. Berryhill, 2019 WL 2006688, at *3 n.6

28 (C.D. Cal. May 7, 2019).

1 mechanical parts. The [Plaintiff] is precluded from climbing ladders,

2 ropes, or scaffolds; working at unprotected heights; and operating a

3 motor vehicle. Additionally, the [Plaintiff] is limited to performing

4 simple, routine tasks; and making simple work related decisions.

5 AR 18-19.

6 The ALJ found Plaintiff had no past relevant work. AR 24. However,

7 considering her age, education, work experience, and RFC, the ALJ concluded

8 she was capable of performing jobs that exist in significant numbers in the

9 national economy, including the jobs of: Cleaner (Dictionary of Occupational

10 Titles [“DOT”] 323.687-014), Bagger (DOT 920.687-018), and Advertising

11 distributor (DOT 230.687-010). AR 25. Thus, the ALJ concluded Plaintiff was

12 not under a “disability,” as defined in the Social Security Act, since November

13 25, 2015, the date the application was protectively filed. AR 26. Plaintiff’s

14 request for review of the ALJ’s decision by the Appeals Council was denied,

15 making the ALJ’s decision the agency’s final decision. AR 1-6.

16 II.

17 LEGAL STANDARDS

18 A. Standard of Review

19 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s

20 decision to deny benefits. The ALJ’s findings and decision should be upheld if

21 they are free from legal error and supported by substantial evidence based on

22 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.

23 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

24 Substantial evidence means such relevant evidence as a reasonable person

25 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504

26 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a

27 preponderance. Id. To determine whether substantial evidence supports a

28 finding, the reviewing court “must review the administrative record as a whole,

1 weighing both the evidence that supports and the evidence that detracts from

2 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th

3 Cir. 1998). “If the evidence can reasonably support either affirming or

4 reversing,” the reviewing court “may not substitute its judgment” for that of

5 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104,

6 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one

7 rational interpretation, [the court] must uphold the ALJ’s findings if they are

8 supported by inferences reasonably drawn from the record.”).

9 Lastly, even if an ALJ errs, the decision will be affirmed where such

10 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to

11 the ultimate nondisability determination,” or if “the agency’s path may

12 reasonably be discerned, even if the agency explains its decision with less than

13 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted).

14 B. Standard for Determining Disability Benefits

15 When the claimant’s case has proceeded to consideration by an ALJ, the

16 ALJ conducts a five-step sequential evaluation to determine at each step if the

17 claimant is or is not disabled. See Ford v. Saul, 950 F.3d 1141, 1148-49 (9th

18 Cir. 2020); Molina, 674 F.3d at 1110.

19 First, the ALJ considers whether the claimant currently works at a job

20 that meets the criteria for “substantial gainful activity.” Id. If not, the ALJ

21 proceeds to a second step to determine whether the claimant has a “severe”

22 medically determinable physical or mental impairment or combination of

23 impairments that has lasted for more than twelve months. Id. If so, the ALJ

24 proceeds to a third step to determine whether the claimant’s impairments

25 render the claimant disabled because they “meet or equal” any of the “listed

26 impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404,

27 Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d

28 996, 1001 (9th Cir. 2015). If the claimant’s impairments do not meet or equal a

1 “listed impairment,” before proceeding to the fourth step the ALJ assesses the

2 claimant’s RFC, that is, what the claimant can do on a sustained basis despite

3 the limitations from her impairments. See 20 C.F.R. § 416.920(a)(4); Social

4 Security Ruling (“SSR”) 96-8p.

5 After determining the claimant’s RFC, the ALJ proceeds to the fourth

6 step and determines whether the claimant has the RFC to perform her past

7 relevant work, either as she “actually” performed it when she worked in the

8 past, or as that same job is “generally” performed in the national economy. See

9 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot

10 perform her past relevant work, the ALJ proceeds to a fifth and final step to

11 determine whether there is any other work, in light of the claimant’s RFC, age,

12 education, and work experience, that the claimant can perform and that exists

13 in “significant numbers” in either the national or regional economies. See

14 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can

15 do other work, she is not disabled; but if the claimant cannot do other work

16 and meets the duration requirement, the claimant is disabled. See id. at 1099.

17 The claimant generally bears the burden at each of steps one through

18 four to show she is disabled, or she meets the requirements to proceed to the

19 next step; and the claimant bears the ultimate burden to show she is disabled.

20 See, e.g., Ford, 950 F.3d at 1148; Molina, 674 F.3d at 1110. However, at Step

21 Five, the ALJ has a “limited” burden of production to identify representative

22 jobs that the claimant can perform and that exist in “significant” numbers in

23 the economy. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett,

24 180 F.3d at 1100.

25 III.

26 DISCUSSION

27 The parties present one disputed issue: did the ALJ properly consider the

28 consultative psychiatric opinion of Dr. Divy Kikani. See Jt. Stip. at 4.

1 A. Applicable Law

2 In setting an RFC, an ALJ must consider all relevant evidence, including

3 medical records, lay evidence, and “the effects of symptoms, including pain,

4 that are reasonably attributable to the medical condition.” Robbins v. Soc. Sec.

5 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citation omitted).

6 “There are three types of medical opinions in social security cases: those

7 from treating physicians, examining physicians, and non-examining

8 physicians.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th

9 Cir. 2009). “As a general rule, more weight should be given to the opinion of a

10 treating source than to the opinion of doctors who do not treat the claimant.”

11 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The opinion of an

12 examining physician is, in turn, entitled to greater weight than the opinion of a

13 nonexamining physician.” Id. “[T]he ALJ may only reject a treating or

14 examining physician’s uncontradicted medical opinion based on clear and

15 convincing reasons” supported by substantial evidence in the record.

16 Carmickle v. Comm’r Sec. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)

17 (citation omitted). “Where such an opinion is contradicted, however, it may be

18 rejected for specific and legitimate reasons that are supported by substantial

19 evidence in the record.” Id. at 1164 (citation omitted).

20 B. Analysis

21 On March 8, 2016, Dr. Kikani conducted consultative psychiatric

22 evaluation of Plaintiff based on a one-time meeting with her. AR 559-62. He

23 stated his source of information was Plaintiff, “in entirety.” AR 559. He

24 relayed her history of her present illness, her past psychiatric history, medical

25 history, and family/social history. AR 559-60. His “review of systems”

26 included “[h]istory of seizure disorder [and] health care problems due to

27 alcohol abuse.” AR 560. The doctor reviewed Plaintiff’s activities of daily

28 living, and noted she reported the ability to care for her personal needs such as

1 feeding, dressing, bathing, toileting, and that she could do household chores

2 such as cook and clean. AR 560. The doctor’s mental status examination

3 included notations that Plaintiff’s grooming was “unkempt” and that she

4 ambulated with a walker. AR 560. He stated that her speech is low in volume

5 and her affect “blunted.” AR 560. Her thought content reflected feelings of

6 despair, helplessness, and hopelessness. AR 560. The doctor stated that “in

7 [his] opinion she was suffering from schizoaffective disorder, unspecified.” AR

8 561. The doctor noted that Plaintiff had been seeing a psychiatrist and she was

9 being managed with medication. AR 561. He found that Plaintiff showed

10 moderate impairment in nearly all areas of mental functioning, except he

11 opined that “she will have no problems remembering, understanding, and

12 carrying out simple instructions,” and had moderate-to-marked impairment

13 “in persisting at normal work situations under customary work pressure.” AR

14 561. He concluded by stating that in his opinion Plaintiff was “moderately

15 psychiatrically impaired.” AR 561.

16 The ALJ set forth a detailed summary of Dr. Kikani’s examination (AR

17 22-23), and he gave the opinion “little” weight based on: (1) Plaintiff’s

18 admissions; (2) recent mental health records; and (3) its inconsistency with the

19 medical record. AR 24.

20 The ALJ conducted a proper assessment of the opinion. Preliminarily,

21 the Court notes that the ALJ did not reject the opinion in its entirety. By

22 providing a summary of the opinion and assigning “little” weight, the ALJ

23 necessarily gave consideration and credited aspects of the opinion. AR 24.

24 Indeed, the ALJ limited Plaintiff’s RFC to light work, restricted her from

25 certain tasks that could be affected by her mental limitations, such as precluding

26 her from operating a vehicle, and limited her “to performing simple, routine

27 tasks” and “making simple work[-]related decisions.” AR 19. These restrictions

28 at least partially reflected Dr. Kikani’s opinion. See, e.g., Reddick, 157 F.3d at

1 725 (ALJ can satisfy substantial evidence requirement “by setting out a detailed

2 and thorough summary of the facts and conflicting clinical evidence, stating his

3 interpretation thereof, and making findings”); Waldner v. Colvin, 2015 WL

4 711020, at *6 (D. Or. Feb. 18, 2015) (no error in RFC finding that specifically

5 included limitations tailored to claimant).

6 To the extent the ALJ did not accept the more-restrictive mental

7 limitations in the opinion, he gave proper reasons for doing so. First, the ALJ

8 noted that Plaintiff admitted she had no problems with socialization. AR 24.

9 Indeed, by the time of the hearing, Plaintiff generally denied many of the

10 impairments that initially formed the basis of her claim of disability (see, e.g.,

11 AR 37-38, 41-42, 44), including testifying that she does not have any problems

12 dealing with other people, that she does not get into fights or arguments with

13 people where she lives, and that she does not have any problems when someone

14 tells her what to do (AR 44). This, for example, conflicted with Dr. Kikani’s

15 findings that Plaintiff was moderately impaired in her ability to respond

16 appropriately to coworkers, supervisors, and the public, or that she had a

17 moderate impairment in her ability to respond appropriately to usual work

18 situations. AR 561. The ALJ properly relied on the discrepancy between the

19 opinion and Plaintiff’s admissions. See Shavin v. Comm’r Soc. Sec. Admin.,

20 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may reject physician’s opinion by

21 noting conflicting testimony); Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.

22 1995) (ALJ may reject opinion that conflicts with claimant’s testimony).

23 Second, the ALJ found that Dr. Kikani’s restrictive limitations were not

24 supported by more-recent mental health records that showed she was doing

25 well on medications, had stable mood, and logical thought process. AR 24.

26 Progress notes reflected the ALJ’s finding. AR 567 (3/16/16 – Plaintiff stable

27 on medications); 618 (9/21/16 - Plaintiff “seems to be doing well”); AR 618

28 (10/19/16 (same)); AR 619 (11/11/16 (same)); AR 619 (12/14/16 Plaintiff

1 “denies having mental illness”); 620 (1/23/17 Plaintiff “continues to enjoy

2 participating” at adult day health care center; Plaintiff “counseled and given

3 positive feedback”); 621 (2/8/17 Plaintiff “is doing well,” she “engaged and

4 smiled”); 622 (3/24/17 Plaintiff “seems to be doing well” and “seems to enjoy

5 both attending and participating” at adult day health care center; denies feelings

6 of sadness); 622 (4/17/17 Plaintiff “seems to be doing well”); 623 (5/12/17

7 (same)); 623 (6/19/17 (same)); 7/12/17 (Plaintiff “continues to enjoy both

8 attending and participating” at adult day health care center). Accordingly, the

9 ALJ properly relied on this factor. See, e.g., Shavin, 488 F. App’x at 224 (ALJ

10 may reject physician’s opinion by “noting legitimate inconsistencies and

11 ambiguities in the doctor’s analysis or conflicting lab test results[ or] reports . .

12 .” (internal citation omitted)); Warre v. Comm’r Soc. Sec. Admin., 439 F.3d

13 1001, 1006 (9th Cir. 2006) (impairments that can be controlled with treatment

14 are not disabling).

15 Finally, the ALJ pointed to Dr. Kikani’s notations that Plaintiff was

16 unkempt and ambulated with a walker. AR 24. However, the ALJ noted that

17 two weeks before Dr. Kikani’s examination Plaintiff admitted to doing well on

18 medications, and just a week after the examination findings indicated Plaintiff

19 had adequate grooming and hygiene, normal gait, and was logical and alert.

20 AR 24. The ALJ properly determined that these findings, which bookended in

21 close proximity Dr. Kikani’s examination, were in stark contrast with findings

22 in the opinion. See AR 571 [treating physician Dr. Edwin De Leon’s 2/18/16

23 progress note stating “[Plaintiff] is doing well on the current medication; no

24 acute issues; mood has been stable . . .”], 568 [De Leon’s 3/16/16 progress note

25 indicating “Appropriate Dress[,] Adequate Grooming[,] and Hygiene,” and

26 findings showing normal gait, “Logical” thought content, and “Alert/Awake”

27 consciousness]; See Ford, 950 F.3d at 1156 (conflicting medical professional

28 findings a valid consideration in discounting an opinion); Batson v. Comm’r

1 ||Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (“[I]t was permissible for

2 ALJ to give [opinions] minimal evidentiary weight, in light of . . . opinions

3 observations of other doctors.”). While Plaintiff contends the ALJ’s

4 || reasoning fails to appreciate that mental health impairments “wax and wane”

5 ||(Jt. Stip. 7-8), these conflicting findings nonetheless are substantial evidence

6 ||supporting the ALJ’s decision. See Ford, 950 F.3d at 1156 (“Although

7 [claimant] argues that the ALJ failed to recognize the inherently variable nature

8 ||of mental illness, ‘[t]he court will uphold the ALJ’s conclusion when the

9 || evidence is susceptible to more than one rational interpretation.’” (citation

10 omitted)).

11 The Court finds that the ALJ did not in his assessment of Dr. Kikani’s

12 |}opinion. Accordingly, reversal is not warranted.

13 IV.

14 ORDER

15 IT THEREFORE IS ORDERED that Judgment be entered affirming

16 decision of the Commissioner and dismissing this action with prejudice.

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18 || Dated: June 29, 2020

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21 nited States Magistrate Judge

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