ALJ had no duty to 13 request more information from two physicians where their records 14 from the relevant period were before the ALJ, and there “was nothing 15 unclear or ambiguous about what they said”
How later courts described this case
- ALJ had no duty to 13 request more information from two physicians where their records 14 from the relevant period were before the ALJ, and there “was nothing 15 unclear or ambiguous about what they said”
- ALJ’s duty to develop the record is triggered only when 10 there is “ambiguous evidence” or when “the record is inadequate to 11 allow for proper evaluation of the evidence”
- an ALJ’s decision will not be 28 reversed for errors that are harmless
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
10
11 ROSE M.1, Case No. CV 19-7681-AS
12 Plaintiff,
MEMORANDUM OPINION
13 v.
14 ANDREW M. SAUL, Commissioner
of Social Security,
15
Defendant.
16
17
18 For the reasons discussed below, IT IS HEREBY ORDERED that,
19 pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s
20
decision is affirmed.
21
22
23
24
25 1 Plaintiff’s name is partially redacted in accordance with
26 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation
of the Committee on Court Administration and Case Management of
27 the Judicial Conference of the United States.
28
1 Proceedings
2
On September 5, 2019, Plaintiff filed a Complaint seeking
3
review of the Commissioner’s denial of Plaintiff’s application for
4
a period of disability and disability insurance benefits (“DIB”)
5
under Title II of the Social Security Act. (Dkt. No. 1). On
6
7 February 25, 2020, Defendant filed an Answer and the Administrative
8 Record (“AR”). (Dkt. Nos. 15-16). The parties have consented to
9 proceed before a United States Magistrate Judge. (Dkt. Nos. 10,
10 12). On June 11, 2020, the parties filed a Joint Stipulation
11
(“Joint Stip.”) setting forth their respective positions regarding
12
Plaintiff’s claims. (Dkt. No. 19).
13
14 The Court has taken this matter under submission without oral
15 argument. See C.D. Cal. C. R. 7-15.
16
17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
18
19 On May 31, 2016, Plaintiff, previously employed as a bank
20 collection clerk (see AR 241), filed a DIB application alleging a
21 disability onset date of July 6, 2015. (AR 144-45). Plaintiff’s
22 application was denied initially on October 19, 2016 (AR 65, 81-
23 84), and upon reconsideration on December 8, 2016 (AR 78, 86-90).
24
25 On September 14, 2018, Administrative Law Judge (“ALJ”) Edward
26 T. Bauer heard testimony from Plaintiff, who was represented by
27 counsel, and vocational expert (“VE”) Elizabeth G. Ramos. (AR 35-
28
1 53). On November 21, 2018, the ALJ issued a decision denying
2 Plaintiff’s application. (See AR 15-30).
3
4 The ALJ applied the requisite five-step process to evaluate
5 Plaintiff’s case. At step one, the ALJ found that Plaintiff has
6 not been engaged in substantial gainful activity since July 6,
7 2015, the alleged onset date. (AR 18). At step two, the ALJ found
8 that Plaintiff has the following severe impairments: diabetes
9 mellitus, obesity, hypertriglyceridemia, migraine, major
10 depressive disorder, anxiety disorder, panic disorder, and
11 insomnia. (AR 18). At step three, the ALJ determined that
12 Plaintiff’s impairments do not meet or equal a listing found in 20
13 C.F.R Part 404, Subpart P, Appendix 1. (AR 18). Next, the ALJ
14 found that Plaintiff has the following Residual Functional Capacity
15 (“RFC”):2
16
17 [Plaintiff can] perform medium work as defined in 20 CFR
18 404.1567(c)[3] except that she can lift and carry 50
19 pounds occasionally and 25 pounds frequently; can stand
20 and/or walk for six hours; can sit without limitation;
21 can perform all climbing activities frequently; is
22 limited to simple, routine tasks; can have no public
23 contact; can have only occasional contact with
24
2 A Residual Functional Capacity is what a claimant can
25 still do despite existing exertional and nonexertional limitations.
See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1).
26
27 3 “Medium work involves lifting no more than 50 pounds at
a time with frequent lifting or carrying of objects weighing up to
28 25 pounds.” 20 C.F.R. 404.1567(c).
1 supervisors and co-workers; and is limited to low stress
2 work, which is defined to mean work involving no strict
3 production deadlines or quotas.
4
5 (AR 21).
6
7 At step four, the ALJ found that Plaintiff is unable to perform
8 her past relevant work as a collection clerk. (AR 28). At step
9 five, based on Plaintiff’s RFC, age, education, work experience,
10 and the VE’s testimony, the ALJ determined that there are jobs that
11 exist in significant numbers in the national economy that Plaintiff
12 can perform, including machine feeder, factory helper, and laundry
13 worker I. (AR 29). Accordingly, the ALJ concluded that Plaintiff
14 is not disabled. (AR 30).
15
16 On July 25, 2019, the Appeals Council denied Plaintiff’s
17 request to review the ALJ’s decision. (AR 1-3). Plaintiff now
18 seeks judicial review of the ALJ’s decision, which stands as the
19 final decision of the Commissioner. See 42 U.S.C. § 405(g).
20
21 STANDARD OF REVIEW
22
23 This Court reviews the Administration’s decision to determine
24 if it is free of legal error and supported by substantial evidence.
25 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).
26 “Substantial evidence” is more than a mere scintilla, but less than
27 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
28 2014). To determine whether substantial evidence supports a
1 finding, “a court must consider the record as a whole, weighing
2 both evidence that supports and evidence that detracts from the
3 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033,
4 1035 (9th Cir. 2001) (internal quotation omitted). As a result,
5 “[i]f the evidence can support either affirming or reversing the
6 ALJ’s conclusion, [a court] may not substitute [its] judgment for
7 that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
8 (9th Cir. 2006).
9
10 DISCUSSION
11
12 Plaintiff claims that the ALJ erred in considering the medical
13 opinions of two treating psychiatrists, Dr. Alicia Desai Kohm and
14 Dr. Novellyn Heard. (Joint Stip. at 2-13, 20-21). After
15 consideration of the record as a whole, the Court finds that the
16 Commissioner’s findings are supported by substantial evidence and
17 are free from material legal error.4
18
19 A. Legal Standard for ALJ’s Assessment of Medical Opinions
20
21 In an ALJ’s assessment of medical opinions, a treating
22 doctor’s opinion is generally afforded the greatest weight, though
23 it is not binding on an ALJ with respect to the existence of an
24 impairment or the ultimate determination of disability. Batson v.
25
4 The harmless error rule applies to the review of
26
administrative decisions regarding disability. See McLeod v.
27 Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be
28 reversed for errors that are harmless).
1 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004);
2 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “Generally,
3 a treating physician’s opinion carries more weight than an
4 examining physician’s, and an examining physician’s opinion carries
5 more weight than a reviewing physician’s.” Holohan v. Massanari,
6 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. Chater, 81
7 F.3d 821, 830 (9th Cir. 1995). The weight given a treating
8 physician’s opinion depends on whether it is supported by
9 sufficient medical data and is consistent with other evidence in
10 the record. 20 C.F.R. § 416.927(c)(2); see Trevizo v. Berryhill,
11 871 F.3d 664 (9th Cir. 2017). When a treating physician’s opinion
12 is not controlling, it is weighted based on factors such as the
13 length of the treatment relationship and the frequency of
14 examination, the nature and extent of the treatment relationship,
15 supportability, consistency with the record as a whole, and
16 specialization of the physician. 20 C.F.R. § 416.927(c)(2)-(6).
17 If a treating or examining doctor’s opinion is contradicted by
18 another doctor, the ALJ must provide “specific and legitimate
19 reasons” for rejecting the opinion. Orn v. Astrue, 495 F.3d 625,
20 632 (9th Cir. 2007); Lester, 81 F.3d at 830-31.
21
22 B. ALJ’s Assessment of Dr. Kohm’s Opinion
23
24 Psychiatrist Alicia Desai Kohm, M.D., treated Plaintiff on
25 two occasions – first on August 13, 2015 (AR 569-84), and then
26 about a month later, on September 17, 2015 (AR 624-35). On both
27 dates, Dr. Kohm assessed Plaintiff’s “mental functional
28
1 impairments” (AR 575, 628), and extended Plaintiff’s disability
2 leave (which began prior to Dr. Kohm’s treatment) (AR 576-77, 629).
3
4 On August 13, 2015, Dr. Kohm opined that Plaintiff had
5 moderate-to-severe limitations in the following areas: “[a]bility
6 to control emotions and maintain composure, free of crying spells,
7 anger outbursts”; and “[a]bility to deal with the usual stressors
8 encountered in the workplace, maintain regular attendance, and
9 complete a normal workday or work week.” (AR 575). Dr. Kohm
10 stated, moreover, that Plaintiff was moderately impaired in her
11 “[a]bility to perform detailed and complex tasks”; “[a]bility to
12 maintain concentration, attention, persistence, and pace”; and
13 “[e]nergy level.” (AR 575). Dr. Kohm found that Plaintiff had
14 mild-to-moderate limitations in the following areas: “[a]bility to
15 perform simple and repetitive tasks”; “[p]roblem solving &
16 [d]ecision-making i.e. ability to plan, organize and do things”;
17 “[a]bility to perform activities without special or additional
18 supervision”; and “[a]bility to drive or take public
19 transportation.” (AR 575). Finally, Dr. Kohm opined that
20 Plaintiff was only mildly impaired in her “[a]bility to relate and
21 interact with co-workers and the public,” and she had no impairment
22 in her “[h]ygiene and grooming”; “[a]bility to accept instructions
23 from supervisors”; “[a]bility to control threatening or dangerous
24 behaviors”; and “[a]wareness of hazards.” (AR 575).
25
26 On September 17, 2015, Dr. Kohm’s assessment was somewhat less
27 restrictive. (AR 628). Among other things, Dr. Kohm found
28 Plaintiff had only a moderate impairment (as opposed to moderate-
1 to-severe) in her “[a]bility to control emotions and maintain
2 composure, free of crying spells, anger outbursts”; and “[a]bility
3 to deal with the usual stressors encountered in the workplace,
4 maintain regular attendance, and complete a normal workday or work
5 week.” (AR 628). Dr. Kohm also found Plaintiff had a mild-to-
6 moderate limitation (as opposed to moderate) in her “[e]nergy
7 level” and “[a]bility to maintain concentration, attention,
8 persistence, and pace”; and no limitation (as opposed to mild) in
9 her “[a]bility to relate and interact with co-workers and the
10 public.” (AR 628). Despite the apparent improvements, Dr. Kohm
11 still extended Plaintiff’s disability leave. (AR 629). Dr. Kohm
12 additionally noted Plaintiff should continue her current dosage of
13 Paxil that she had been taking for just the past week, and advised
14 Plaintiff to follow up with a therapist (or group therapy) and
15 return for a follow-up psychiatry appointment in one to two months,
16 but with a different provider because Dr. Kohm was leaving the
17 office at the end of September. (AR 628-29).
18
19 The ALJ gave Dr. Kohm’s assessments “limited” or “partial
20 weight.” (AR 24). Among other things, the ALJ determined that
21 Dr. Kohm’s August 2015 assessment, which included some severe
22 limitations, was not “intended to last for 12 months,” given that
23 Dr. Kohm’s subsequent assessment, in September, showed improvement
24 and included only “moderate” limitations, at most. (AR 24; see AR
25 575 (August), 628 (September)). Overall, the ALJ determined that
26 Dr. Kohm’s assessments were not “fully consistent with the
27 longitudinal medical records and other evidence,” as discussed in
28 the decision (AR 24). The ALJ included the following mental
1 limitations in the RFC: “[Plaintiff] is limited to simple, routine
2 tasks; can have no public contact; can have only occasional contact
3 with supervisors and co-workers; and is limited to low stress work,
4 which is defined to mean work involving no strict production
5 deadlines or quotas.” (AR 21).
6
7 Plaintiff claims that the ALJ failed to provide specific and
8 legitimate reasons for giving less than significant weight to Dr.
9 Kohm’s opinion. (Joint Stip. at 6-13). Plaintiff contends, first,
10 that the ALJ mischaracterized the difference between Dr. Kohm’s
11 August and September assessments, particularly by failing to
12 consider that Dr. Kohm still found that Plaintiff was unable to
13 return to work in September 2015, despite some improvements from
14 the earlier assessment. (Id. at 6-7). Thus, Plaintiff asserts
15 that the ALJ had no basis for assuming that Dr. Kohm’s August 2015
16 opinion was not intended to last for twelve months. (Joint Stip.
17 at 7). Instead, Plaintiff argues, the ALJ had a duty to develop
18 the record on this issue. (Id.).
19
20 However, Plaintiff has failed to show that the ALJ misstated
21 or overlooked anything in Dr. Kohm’s assessments. To the contrary,
22 the ALJ accurately described the two assessments and drew
23 reasonable inferences from them. Specifically, in light of the
24 reduced limitations in the September assessment, it was reasonable
25 to infer that the more severe limitations opined in the August
26 assessment were intended only to describe Plaintiff’s functioning
27 during that particular assessment and not over a long-term period
28 (i.e., more than twelve months). Plaintiff may interpret the
1 opinion differently, but “[w]here evidence is susceptible to more
2 than one rational interpretation, it is the ALJ’s conclusion that
3 must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
4 2005). Moreover, notwithstanding Plaintiff’s contention, the fact
5 that Dr. Kohm still extended Plaintiff’s disability leave in
6 September 2015 does not render Dr. Kohm’s assessments “ambiguous”
7 or insufficiently clear so as to trigger the ALJ’s duty to develop
8 the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
9 Cir. 2001) (ALJ’s duty to develop the record is triggered only when
10 there is “ambiguous evidence” or when “the record is inadequate to
11 allow for proper evaluation of the evidence”); see also McLeod v.
12 Astrue, 640 F.3d 881, 884 (9th Cir. 2011) (ALJ had no duty to
13 request more information from two physicians where their records
14 from the relevant period were before the ALJ, and there “was nothing
15 unclear or ambiguous about what they said”).
16
17 Plaintiff contends that the ALJ erred “by stating that the
18 limitations suggested by Dr. Kohm in September of 2015 are not
19 ‘inconsistent’ with plaintiff’s RFC.” (Joint Stip. at 9) (citing
20 AR 24). In particular, Plaintiff asserts that the ALJ failed to
21 include in the RFC any limitations related to being off-task or
22 missing workdays, despite Dr. Kohm’s opinion that Plaintiff was
23 moderately limited in her ability to maintain regular attendance,
24 complete a normal workweek, and control her emotions and maintain
25 composure. (Joint Stip. at 9) (citing AR 21, 628). Plaintiff also
26 claims that the RFC’s restriction to “simple routine tasks” is less
27 limited than Dr. Kohm’s assessment of a moderate impairment in
28
1 performing “simple and repetitive tasks.” (Joint Stip. at 9)
2 (citing AR 21, 628).
3
4 However, even to the extent that the RFC may diverge from the
5 limitations in Dr. Kohm’s September 2015 assessment, Plaintiff has
6 failed to demonstrate any error because the ALJ did not purport to
7 adopt Dr. Kohm’s assessments in any respect. Instead, the ALJ
8 merely remarked that the moderate limitations in Dr. Kohm’s
9 September 2015 assessment were not “clearly inconsistent” with the
10 RFC. (AR 24). At the same time, the ALJ expressly stated: “I do
11 not find [Dr. Kohm’s assessments] to be fully consistent with the
12 longitudinal medical records and other evidence . . . .” The ALJ
13 thus gave Dr. Kohm’s assessments only “limited weight to the extent
14 that they are in line with” the RFC finding. (AR 24). The ALJ
15 provided specific and legitimate reasons for this determination.
16
17 Plaintiff disputes the ALJ’s finding that Plaintiff’s mental
18 “impairments are generally managed with conservative treatment
19 measures.” (Joint Stip. at 10-11; AR 26). Plaintiff asserts that
20 her psychiatrists have prescribed her “a variety of psychotropic
21 medications, and changed the dosages frequently, since the alleged
22 onset date.” (Joint Stip. at 10). Plaintiff points out, for
23 example, that one psychiatrist, Dr. Sultana Ikramullah, had
24 prescribed Trazodone and Paxil as of August 27, 2017 (AR 3797),
25 and then increased the Paxil dosage at the next visit, on October
26 5, 2017, when Plaintiff complained of increasing depression (AR
27 3799). About a month later, on November 2, 2017, Dr. Ikramullah
28 increased the Paxil and Trazodone dosages. (AR 3800). Later, on
1 January 25, 2018, Dr. Ikramullah switched Plaintiff from Paxil to
2 Prozac after Plaintiff complained of feeling “spaced out” and
3 unable to concentrate. (AR 3801). Plaintiff points out that she
4 has also “required treatment with various psychologists, as well
5 as group therapy.” (Joint Stip. at 11) (citing AR 674-678, 702-
6 706, 848, 886, 3845-3856).
7
8 Regardless of these facts, substantial evidence in the record
9 supports the ALJ’s finding that Plaintiff’s mental conditions were
10 generally well managed with conservative treatments, such as
11 therapy and antidepressant medications such as Trazodone and Paxil.
12 The ALJ referenced treatment records noting that Plaintiff
13 “[t]hinks the paxil has helped reduce her anxiety” (AR 625
14 (September 2015)), that she “[r]eports better sleep since
15 [Plaintiff] increased trazadone to 100 mg qhs for the past week”
16 (AR 637 (October 2015)), and that she reportedly “attended
17 depression group in the past which was helpful” (AR 989 (September
18 2016)), and noted that there was no indication that Plaintiff’s
19 mental impairments have required more aggressive interventions,
20 such as inpatient hospitalizations.
21
22 The ALJ noted that even “to the extent that any of
23 [Plaintiff’s] impairments have ever been described as less than
24 well managed with conservative measures, this state of affairs may
25 be due at least in part to [Plaintiff’s] frequent failures and/or
26 refusals to comply fully with treatment advice.” (AR 27). The
27 ALJ pointed to numerous examples from the treatment records
28 indicating that Plaintiff was apparently skipping some prescribed
1 medications, taking less than recommended dosage amounts, and
2 missing scheduled appointments. (AR 27) (citing, e.g., AR 278,
3 284, 327, 760, 802, 868, 970, 989, 3802, 3850, 3853). This finding,
4 which Plaintiff does not dispute, further supports the ALJ’s
5 decision to give only limited weight to Dr. Kohm’s opinion.
6
7 Plaintiff also disputes the ALJ’s finding that Dr. Kohm’s
8 opinion is not “well-supported by the objective data and other
9 evidence – including [Plaintiff’s] modest clinical findings . . .
10 as well as her treatment notes[.]” (Joint Stip. at 11-12; AR 23).
11 Plaintiff contends that the objective findings overall support Dr.
12 Kohm’s opinion. (Joint Stip. at 12). As examples, Plaintiff
13 points to three mental status exams between 2016 and 2018. (Joint
14 Stip. at 12). In the first, on August 17, 2016, Plaintiff’s
15 therapist, Wendy Elizabeth Marinoff, noted a depressed mood,
16 psychomotor retardation, fatigue, and low motivation. (AR 918-
17 19). In the second, on April 26, 2017, Dr. Ikramullah noted
18 agitated psychomotor activity, slow and emotional speech, depressed
19 mood, slow thought processes, impaired concentration, phobias of
20 heights, and compulsions. (AR 3793-2794). Finally, in the third,
21 on May 30, 2018, Plaintiff’s therapist, Jennifer Fog, Ph.D., noted
22 suicidal ideation with a plan, tired mood, decreased concentration,
23 and short-term memory loss. (AR 3854). Plaintiff contends that
24 the ALJ’s account of the objective evidence of mental impairments
25 is “far off the mark,” and particularly “seems to rely upon evidence
26 showing plaintiff’s improvement in the short-term, without
27 considering the longitudinal treatment record.” (Joint Stip. at
28 12).
1 The Court disagrees. The ALJ gave a fairly detailed account
2 of the objective medical evidence, and did not overlook the fact
3 that Plaintiff’s treating sources noted Plaintiff’s anxious or
4 depressed moods and dysphoric affect. (AR 23). The ALJ reasonably
5 found, however, that aside from these moderate mental status
6 impressions, the record was “largely lacking in data of clinical
7 significance,” as there are “no significantly abnormal cognitive
8 function tests, repeatedly dire mental status examination findings
9 (‘MSE’), or other such data to establish major memory loss,
10 attention and concentration deficits, mood disturbances, social
11 difficulties, or other issues.” (AR 23) (citing, e.g., AR 266,
12 279, 284, 290, 294-95, 306, 326-27, 330, 345, 356, 869, 899, 969,
13 990-91, 3792-3856). Substantial evidence in the record thus
14 supports the ALJ’s determination that the objective evidence and
15 data as a whole fail to demonstrate mental limitations beyond those
16 included in the RFC.
17
18 Plaintiff additionally contends that the ALJ erred to the
19 extent he discounted Dr. Kohm’s opinion based on Plaintiff’s
20 purported ability to engage in exercise and daily activities.
21 (Joint Stip. at 9-10). Plaintiff asserts that her ability to
22 exercise “for some part of the day does not prove that she is able
23 to work eight hours per day, five days per week.” (Joint Stip. at
24 10). Plaintiff contends that the ALJ did not “cite any evidence
25 showing plaintiff exercised after 2016, and there is substantial
26 evidence showing she lays down for a significant part of the day.”
27 (Joint Stip. at 10) (citing AR 637, 842, 898, 3379, 3799, 3845,
28 3849, 3852).
1 However, the ALJ does not appear to have considered
2 Plaintiff’s ability to exercise or engage in daily activities as a
3 basis for discounting Dr. Khom’s opinion or otherwise determining
4 Plaintiff’s mental limitations. Instead, the ALJ merely mentioned
5 Plaintiff’s ability to engage in exercise and daily activities in
6 the course of generally noting that he considered all the opinion
7 evidence in the record in reaching his overall conclusions.
8 Specifically, the ALJ stated that in addition to considering the
9 “formal opinions of treating providers,” such as Dr. Kohm’s two
10 assessments in August and September 2015, he also considered “the
11 less formal opinion evidence - such as the remarks from treating
12 sources (including Dr. Kohn and others) that suggest [Plaintiff]
13 has been advised that she should (and thus, presumably can) engage
14 in at least some forms of exercise.” (AR 23) (citing, e.g., AR
15 577, 629, 809, 853, 858, 3857). Regardless, Plaintiff does not
16 dispute that her treatment records do contain indications that she
17 engages in exercise and was encouraged to do so, which the ALJ
18 correctly noted.
19
20 Accordingly, Plaintiff has failed to demonstrate any error in
21 the ALJ’s consideration of Dr. Kohm’s medical opinion, which is
22 grounded in specific and legitimate reasons, supported by
23 substantial evidence in the record.
24
25 C. ALJ’s Assessment of Dr. Heard’s Opinion
26
27 Plaintiff contends the ALJ erred by failing to address an
28 opinion of Dr. Novellyn Heard, M.D., a psychiatrist who treated
1 Plaintiff from October 2015 through September 2016. (Joint Stip.
2 at 20-21; AR 637, 990-92). Specifically, Plaintiff argues that
3 the ALJ should have addressed Dr. Heard’s notation, in several
4 treatment notes, that Plaintiff was “[u]nable to keep a regular
5 schedule.” (Joint Stip. at 20-21; AR 711, 842, 989). Plaintiff
6 asserts that Dr. Heard’s notation qualifies as a “medical opinion”
7 under 20 C.F.R. § 404.1527, which defines “medical opinions” as
8 “statements from acceptable medical sources that reflect judgments
9 about the nature and severity of your impairment(s), including your
10 symptoms, diagnosis and prognosis, what you can still do despite
11 impairment(s), and your physical or mental restrictions.” (Joint
12 Stip. at 21) (quoting 20 C.F.R. § 404.1527(a)(1)).
13
14 However, as Defendant points out, Dr. Heard’s notation – that
15 Plaintiff was “[u]nable to keep a regular schedule” – seems to
16 refer to Plaintiff’s subjective allegations, not Dr. Heard’s
17 opinion of Plaintiff’s limitations or abilities. (See Joint Stip.
18 at 22). This is evident because the notation appears in the
19 treatment notes as part of Plaintiff’s account of her condition
20 and activities at the time of the respective treatment sessions.
21 Indeed, the first time the notation appears, on December 16, 2015,
22 it is in a section labeled “Subjective,” which reads as follows:
23
24 [Plaintiff’s] grandmother died on 12/13/’15.
25 [Plaintiff’s] brother is dying of AIDS. [Plaintiff] is
26 only taking half the prescribed dose of Paxil.
27 [Plaintiff’s] husband is against her taking meds.
28 [Plaintiff] feels depressed. Denies [suicidal ideation,
1 homicidal ideation]. Sleeps well when takes trazodone.
2 Sleeps poorly when doesn’t take trazodone. Appetite-
3 baseline. Conc, energy, interests-below baseline. Denies
4 recent panic attacks. Often feels worried and irritable.
5
6 Better, but still impaired [functioning]. Spends less
7 time in bed. Better, but below baseline bathing and
8 grooming.
9
10 Poor stress tolerance. [Plaintiff] still struggles with
11 chores. Unable to keep a regular schedule. difficulty
12 controling [sic] her emotions. [Plaintiff’s] mother
13 still assists her.
14
15 Last worked in 7/’15. [Plaintiff] is employed in a call
16 center for Bank of America.
17
18 Denies side effects. No [complaints of] headaches.
19
20 (AR 711) (emphasis added). In later treatment notes, the section
21 is labeled “Current,” rather than “Subjective,” but it remains
22 clear from the context that this is still intended to represent
23 Plaintiff’s subjective account, not Dr. Heard’s own impression of
24 Plaintiff’s abilities. For example, a treatment note from May 25,
25 2016 reads:
26
27 [Complains of] increased stress. Feels depressed and
28 anxious. Denies panic attacks, [suicidal ideation,
1 homicidal ideation]. Often feels worried and irritable.
2 Appetite, conc, energy, interests-below baseline. Sleep-
3 better. Impaired [functioning]-spends a lot of time in
4 bed. Below baseline bathing and grooming. Poor stress
5 tolerance. [Plaintiff] is still not mopping and ironing.
6
7 Unable to keep a regular schedule. Difficulty controling
8 [sic] her emotions. [Plaintiff’s] family still assist
9 her. [Plaintiff] didn’t resume attending depression
10 group. Better med compliance.
11
12 Currently on DMI until 6/30/’16. [Plaintiff] is employed
13 in a call center for Bank of America. Last worked in
14 7/’15. [Plaintiff] is considering applying for SSI. Side
15 effects?-forgetfulness. Denies daytime sedation. Has
16 long [history of] migraines prior to taking meds.
17 Migraine medication helps.
18
19 (AR 842) (emphasis added).
20
21 Because Dr. Heard’s notations about Plaintiff’s inability to
22 “keep a regular schedule” refer to Plaintiff’s subjective
23 statements, they do not constitute a medical opinion under 20
24 C.F.R. § 404.1527(a)(1). Accordingly, the ALJ did not err in
25 failing to consider these statements as Dr. Heard’s treating
26 medical opinion.
27
28
1 CONCLUSION
2
3 For the foregoing reasons, the decision of the Commissioner
4 is AFFIRMED.
5
LET JUDGMENT BE ENTERED ACCORDINGLY.
6
7
8 Dated: September 10, 2020
9
10 ______________/s/_____________
ALKA SAGAR
11 UNITED STATES MAGISTRATE JUDGE
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