# Tara M. Long v. Andrew M. Saul

> District Court, C.D. California · June 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10038281

## Case

- **Court:** District Court, C.D. California
- **Decided:** June 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 EASTERN DIVISION
11 TARA M. L.,1 ) Case No. 5:19-cv-01331-JDE
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12 )
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10038281. Public record. Not legal advice.