considering the claimant’s 3 |l failure to show significantly probative evidence as failing to trigger the ALJ’s duty to 4 specifically explain which symptoms he discounted
How later courts described this case
- considering the claimant’s 3 |l failure to show significantly probative evidence as failing to trigger the ALJ’s duty to 4 specifically explain which symptoms he discounted
- considering a doctor’s . -30- 1 statement as not significantly probative because the statement was speculative
- requiring the ALJ to explain the reasons for rejecting the treating physician’s determination of medical -24- I As stated, it is well established that the ultimate decision of disability is reserved for 2. ALJ. McLeod, 640 F.3d at 884-85; 20 C.F.R. § 404.1527(d)(1
- noting that “[s}ummary judgment is the appropriate vehicle in the Ninth Circuit 9 for reviewing an administrative agency’s final determination”
Written by the judges who cited it.
The opinion
2 | SEP 9 9 2020 |
go STK Bache oF cata
4
5
8 UNITED STATES DISTRICT COURT -— ©
SOUTHERN DISTRICT OF CALIFORNIA
10 .
11 || CLARA ANN K.,, ) Case No.: 3:19-cv-01099-BEN-NLS
Plaintiff, )
"2 “™ ) ORDER:
13 |v. ) .
) G) DENYING PLAINTIFF CLARA
ANDREW SAUL, Commissioner of) _ ANN KELLEY’S MOTION FOR
15 || > CUE ) SUMMARY JUDGMENT; and
16 Defendant. ) .
) (2) GRANTING DEFENDANT
17 . ) ANDREW SAUL’S CROSS-MOTION
18 ) FOR SUMMARY JUDGMENT
19 ) [ECF Nos. 11, 12]
20 | INTRODUCTION oe
21 Plaintiff Ciara Ann K.' (“Plaintiff”) brings this action under the Social Security Act,
22 ||42 U.S.C. § 405(g), and seeks judicial review of the final decision denying her claim for
23 disability insurance benefits by Defendant Andrew Saul, Commissioner of Social Security
24 || (“Defendant”). ECF No. |. Before the Court are Plaintiff’ s Motion for Summary Judgment
25
26 In accordance with S.D. Cal. Civ. R. 7.1(e)(6)(b), which provides that “[o]pinions
27 the court in these [Social Security cases] will refer to any non-government parties by
28 using only their first name and last initial,” the Court has redacted Plaintiffs last name and |
requests that the parties do so as well in any future filings.
1.
(the “Motion”), ECF No. 11, and Defendant’s Cross-Motion for Summary Judgment and
2 Opposition to Plaintiff's Motion for Summary Judgment of (the “Cross-Motion”), ECF No.
3 | 12, Defendant opposed Plaintiff's Motion. ECF No. 12. Plaintiff replied. ECF No. 13.
4 || The motions were submitted on the papers without oral argument pursuant to Civil Local
. Rule 7.1(d)(1). After considering the papers submitted, administrative record, and_|
6 applicable law, the Court DENIES Plaintiffs Motion for Summary Judgment, ECF No.
TWh 1, and GRANTS Defendant’s Cross-Motion for Summary Judgment, ECF No, 12.
8 ll. BACKGROUND
9 On June 4, 20157, Plaintiff filed a Title II application for Social Security Disability
10 Insurance, alleging a disability onset date of October 30, 20123. AR 154-55. □□□□□□□□□□□
1] disability allegations arose out of “neurocognitive problems resulting from a 2009 car
12 accident,” superimposed on pre-existing cognitive limitations. ECF No. 11 at 2:19-23. On
13: |! June 12, 2019, Plaintiff timely commenced this action in federal court seeking judicial
14
15 ||? While the Complaint, ECF No. 1, Plaintiff's Motion, ECF No. 11 at 2:4, Defendant’s
16 Cross-Motion, ECF No. 12-1 at 2:2-3, and the May 23, 2018 decision of the Administrative
Law Judge (the “ALJ”’), Administrative Record, ECF No. 8 (“AR”) at 15, all refer to
17 ||Plaintiff filing for disability on February 19, 2015, the Court notes that □□□□□□□□□□□
18 Application Summary for Disability Insurance Benefits has a date of June 4, 2015, AR 154.
That being said, this discrepancy does not appear to impact the outcome of Plaintiffs
19 || Motion in any regard.
While Plaintiff stated on her Application Summary for Disability Insurance Benefits
that she became unable to work because of a disabling condition on October 30, 2012,
21 || when Plaintiff was 58 years old, see AR 154-55, a June 4, 2015 Field Office Disability
Report, Form SSA-3367 EDCS, lists Plaintiffs alleged onset date as February 1, 2010, see
22 AR at 196 (stating “Claimant’s Alleged Onset Date: 02/01/2010), “when she was days
23 of being age 56,” AR at 252. As discussed in further detail below, the relevant
4 adjudicatory period for determining social security benefits is the period after the alleged
2 onset and before the date last insured. Accord Carmickle v. Comm’r, Soc. Sec. Admin. 533
25 {| F.3d 1155, 1165 (9th Cir, 2008); Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587,
26 590 (9th Cir. 1998). Because using the alleged onset date of October 30, 2012 would mean
no records would fall within the relevant adjudicatory period as the alleged onset date
27 (October 30, 2012) would arise after the date last insured (June 30, 2012), the Court defers
to the ALJ’s decision using an alleged onset date of February 1, 2010 rather than the
October 30, 2012 date provided by Plaintiff in her Application.
Le : -2. . .
I review of the August 24, 2015 denial, November 20, 2015 denial on reconsideration, May
2113 1, 2018 decision after a hearing before an Administrative Law Judge (“ALJ”), and April
3 15, 2019 Appeals Council decision, all denying Plaintiff's right to social security insurance
4 lI benefits. AR 1-3, 15, 23, 29, 72-93, and 152-53*; see also ECF No. 1.
A. Statement of Facts .
6 Plaintiff was born on February 17, 1954 and is currently 66 years old. AR 80.
7 || Plaintiff has four or more years of college, AR 201, as well as a master’s degree in
8 marketing, ECF No. 11 at 2; AR 324. Plaintiff held several jobs concurrently in different
? || fields since 2000. AR 200.
10 From 1978 until 2012, Plaintiff worked as a licensed commercial real estate agent.
Il 44; see also AR 201. Concurrently, from January 2000 to January 2006, she also
12 || owned a business that sold and licensed software games. AR 201.. From June 2006 to
13 November 2012, she owned a photography lab business, named “Photo Works.” AR 42.
14 || Plaintiff refers to Photo Works as an investment that she did not actively manage. Jd. From
15 || Tune 2009 to January 2010, Plaintiff worked as an industrial leasing agent. AR 46; AR
16 From 20 1 to sometime in 2015,° Plaintiff worked as a self-employed photographer.
17.|| AR 201. Plaintiff testified that her last job involved photo restoration and taking photos of
18 || individuals. AR 57-58.
19 On June 27, 2007, when Plaintiff was 53 years old, working as a real estate agent,
20 || and owned Photo Works, Plaintiff was involved in a bicycle accident. AR 328. Plaintiff
21 || underestimated the size of a curve in front of her, causing her tire to hit the curb and
22 || throwing her forward over the handlebars. Jd. Plaintiff had been wearing a helmet at the
93
24 For clarity, all references to pages in the AR are to the bold number on the bottom
25 ||right-hand corner of ECF No. 8 rather than the ECF page number at the top of the pages.
26 In Exhibit 3E — Disability Report from Claimant, when asked to list recent job
history and the dates worked, Plaintiff indicated she worked as a self-employed
27 ||photographer from 2011 to “PRESENT.” AR 200. According to the Court transcript
Index, Exhibit 3E was dated June 4, 2015. Thus, the Court references 2015 as the date of
last employment for Plaintiffs photography job.
3.
time of the accident and did not experience loss of consciousness. Id. A computerized
2 tomography (“CT”) scan of the face showed soft tissue swelling but no fractures; however,
3 || she was diagnosed with a closed radial head fracture on the left that was displaced an occult
4 scaphoid fracture. Jd, Plaintiff later advised her physicians that “she eventually totally
> recovered from this problem.” Id.
6 On July 11, 2009, while Plaintiff was working as a real estate and leasing agent, a
7 || driver rear-ended Plaintiff while she was driving on the freeway, resulting in roll-over car
8 accident, which resulted in Plaintiff being taken to Sharp Memorial Hospital. AR 267-68.
9 The following day, July 12, 2009, the hospital discharged Plaintiff. Id.
10 Inher Disability Report, Plaintiff claims the following physical or mental conditions:
11 «traumatic brain injury, cognitive deficits, impa[i]red memory, problem with multi-
12 tasking, problem finding correct word, get confused, imp[Jaired recall, [and] problems with
13 concentration.” AR 200. When the ALJ asked Plaintiff why she could no longer work,
14 |! plaintiff indicated that she could no longer work because of her forgetful memory. AR 50.
13 |! To this end, Plaintiff testified she can count up to “three or four, maybe five,” then she will
16 |/ have to ask for help. AR 49-50. Plaintiff also testified that her poor memory sometimes.
17 || manifested when involved in simple tasks, such as heating water. See id.
18 1. Documentary Medical Evidence
19 Because Plaintiff's only dispute involves the ALJ’s characterization of her cognitive
20 ability, the Court only summarizes medical information relevant to this point.
21 In 1996, while attending Washington State University, Plaintiff was tested for
22 auditory processing deficiencies.. AR 387-99. A speech-language pathologist administered
23 || several tests and concluded the tests did not suggest auditory processing disorder but
24 suggested a difficulty synthesizing speech sounds. AR 390. Further testing was
25 recommended. Id.
26 _ As discussed above, Plaintiff experienced two head-related trauma events related to
27 alleged disability. The first event involved a bicycle accident in June of 2007, during
28 which Plaintiff had been wearing a helmet and did not lose consciousness. AR 328. The
-4-
I second event was a car accident on or about J uly 11,2009. AR 266. As Plaintiff recounts,
2 li she was driving on the Interstate 15 when another vehicle bumped into the rear of her
3 livehicle. AR 40. The bump caused her car to spin out-of-control and roll several times,
4 ultimately landing on its roof. Id; see also AR 248-49 (showing images of the car after the
5 crash). A post-crash emergency report indicated Plaintiff suffered muitiple abrasions and
6 pain in her neck, right shoulder, and right hand. AR 266-68.
7 On July 22, 2009, eleven days after the car accident, Abraham S.C. Chyung, M.D.
8 met with Plaintiff regarding Plaintiff's concerns about memory issues stemming from the
? |laccident. AR 419. Dr. Chyung’s report indicated Plaintiff reported that she (1) “has been
10 having persisting memory difficulty following the incident,” (2) “is forgetful and
frequently misplaces items,” (3) “has trouble coming up with words during conversations,”
12 (4) “is becoming very much dependent on her daily planner to keep track of her
13 activities.” Id. “(Despite her complaints, the patient reports that she is still able to perform
14 | her work duties at a satisfactory level.” Jd. Upon examination, Dr. Chyung noted □□□□□□
15 patient does appear to have some mild degree of word-finding difficulty when she speaks,”
16 aligning with Plaintiff's complaints to him. AR 420. Dr. Chyung also reviewed the July
17 111, 2009 CT scan and reported it as “unremarkable,” but suspected Plaintiff may be
18 suffering from postconcussion syndrome. Jd.
19 On September 02, 2009, Plaintiff visited Dr. Chyung for a follow-up appointment.
20 416. Plaintiff represented that “her overall condition is improving with time, but that
21 she is not yet back to her baseline.” AR 416. Dr. Chyung again noted that Plaintiff had
22 || mild word-finding difficulty and suggested further diagnostic testing. AR 417. -
23 On November 13, 2009, Plaintiff next saw Dr. Chyung, and his progress notes
24 indicate similar word-finding difficulty. AR 411. According to Dr. Chyung, because
25 || Plaintiff continued to report memory difficulty, “questions are raised with regard to the
26 || underlying nature of her cognitive difficulty.” AR 412. “To clarify matters in that regard,
27 || she was advised to proceed with formal neuropsychological testing.” Jd. □
28 On June 14 and 15, 2010, Michael H. Kabat, M.D. conducted a neuropsychological
-5-
| examination of Plaintiff.6 AR 351-60. Dr. Kabat’s examination revealed the following:
2 Exam results were significant for impairment in aspects of
3 temporal orientation, sustained attention, phonemic oral word
production, and confrontation naming. Inconsistencies (within
4 _ normal limits and below expectations performance within a
5 single domain of functioning) were noted in focused/flexible
6 attention, working memory acquisition of new information, and
aural comprehension .. . . Overall, the examination results are
7 not consistent with a neurodegenerative disorder at this time. . .
. This case was complicated by the number of factors that are
8 potentially contributing to the patient’s neurocognitive
9 functional status. Specifically, the patient reported a history of
io pervasive attention/concentration problems, a verbal learning
disorder impacting the process of consonants as well as the
11 comprehension of phonics, pervasive reading difficulties, an
injury secondary to a fall from her bicycle in 2008, and injury
_ secondary to a motor vehicle accident in 2009. The profile of
results does not appear to be an exact match with any of the
14 potential contributing variables. The neurocognitive profile □
. obtained during this examination contained elements that are
15 somewhat congruent with the expected presentation of an □
. untreated pervasive attention disorder. However, the profileis
16 not an exact. fit with this factor. As such, this variable was.
17 considered contributory and not sufficient to entirely explain the
_ patient’s neurocognitive findings .... Given [Plaintiff's] history,
18 the profile of results, limitations in the availability of salient □
19 formal medical records, and following baseline examination, □
most appropriate diagnostic determination at the present time is
20 Cognitive Disorder NOS. The precise mechanism for the latter
21 remains unclear. Specifically, her current presentation and | □
profile is not an exact fit with any one of the potential salient
22 factors. Furthermore, there was an absence of pertinent
23 information that is essential in an effort to parse out the potential
contribution of preexistent variables. While it is possible that a
24 combination of the variables discussed above is responsible for
25
26 ||6 The examination tested: temporal orientation, general intellectual functioning,
27 □□□□□□□□□□□□□□□□□□□□□□□□□□ acquisition and memory, language functioning, visual:
processing/reproduction/construction, aspects of executive functioning, processing speed,
28 aspects of motor functioning, and psychiatric considerations. AR 354-57.
6.
1 _ her current neurocognitive profile, further investigation via
> interval examination is imperative in an effort to further refine
the diagnostic conclusions. □
3 AR 357-60. Dr. Kabat recommended that Plaintiff attend cognitive remediation as a
4 necessary tool for compensating with Plaintiffs difficulties. AR 360. Plaintiff attended
two cognitive remediations with Dr. Kabat. AR 347. During the first session, Dr. Kabat
6 stated that Plaintiff “demonstrated anxiety with a restricted range of affect during the
7 session” and pressured speech was evident. Jd. Dr. Kabat also reported similar results
8 during the second session. See id.
° On August 1, 2012, almost two years later, Michael A. Lobatz, M.D. performed an
10 | independent medical evaluation (“IME”) on Plaintiff. AR 323-30. Dr. Lobatz did not
have all of Plaintiff's medical records before him, but nonetheless, believed there to be a
12 possibility of an enduring post-concussive syndrome. AR 329. On May 5, 2013, Dr.
13 Lobatz prepared a supplemental report after receiving additional records. AR 331-32. In
this report, Dr. Lobatz found “the preponderance of evidence in [Plaintiffs] case to
ID support a diagnosis of mild traumatic brain injury with persistent cognitive complaints.”
16 |! AR 334,
On June 21, 2013, Plaintiff, whose last neurology visit with Dr. Chyung had not
18 been since July 8, 2010, visited Dr. Chyung witha chief complaint of hallucinations. AR
19 425. Plaintiff's hallucinations involved “visions of people with her eyes closed.”? Id. On
20 August 27, 2013, after Dr. Chyung’s referral, Saeed Yadegar, M.D, conducted an MRI of
plaintiffs brain, AR 424. Dr. Yadegar concluded the exam was “[uJnremarkable except
22 for a few punctate nonspecific areas of abnormal signal within the white matter of the left
23 frontal and left parietal region.” Jd.
24 On September 04, 2013, after the MRI of her brain, Plaintiff followed up with Dr.
25 □
27 Regarding the hallucinations, Plaintiff also visited Dr. Ha Bich Mistry. AR 342.
28 Plaintiff reported the same hallucinations to Dr. Mistry as she did to Dr. Chyung, Compare
AR 425, with AR 342, Dr. Mistry diagnosed Plaintiff with anxiety. AR 343.
I ||[Chyung. AR 407. Dr. Chyung reviewed the MRI with Plaintiff, and according to Dr.
2 ||Chyung, Plaintiff responded poorly to being advised that the MRI was negative for
3 || significant abnormality: . .
4 Recently completed brain MRI scan result was reviewed with the
5 patient. She became upset by the absence of significant
abnormality despite her history of head trauma. The scan did
6 find mild degree of white matter changes consistent with small
7 _ vessel disease. She insisted that the report be modified to claim □
that these white matter changes are the consequence of the head
8 trauma history and that it is the underlying cause of her
9 symptoms. Unfortunately, it is not possible to comply with that
request. It is more likely that the documented signal anomalies
10 are indeed reflective of future stroke risk. On the other hand,
posttraumatic changes from the car accident must be subtle and
below the threshold of detection by magnetic resonance.
12 || AR 207.
13 Dr. Chyung tried to offer his assistance to Plaintiff by discussing stroke prevention
14 measures with her, but he noted that Plaintiff became “visibly upset and tearful due to the
15 ‘disappointing’ MRI result,” and instead, “elected not to continue her medical evaluation.”
16 |! AR 207.
17 On February 03, 2014, Plaintiff returned to Dr. Lobatz for a consultation after last
18 being seen by Dr. Lobatz in 2013 for the IME regarding her mild traumatic brain injury.
19 1 AR 313. Dr. Lobatz referred Plaintiff for cognitive remediation due to her continuing
20 || issues and ordered an electroencephalogram due to Plaintiff's visual complaints. AR 315.
21 | In the interim, however, on June 6, 2014, Jessica Hague, MCD, CCC-SLP,
22 performed a speech pathology evaluation. AR 370. This evaluation found mild cognitive-
23 linguistic deficits complicated by short-term memory loss, decreased processing speed for
24 complex verbal information (lengthy or new instructions), and decreased working memory
25 || for “4+ units.” AR 370. Results from Woodcock-Johnson III tests of Cognitive Abilities
26 ||“indicated mild impairments for working memory, visual-auditory learning, numbers
27 reversed, and delayed recall. Ja.
28 On March 28, 2015, Glenn H. Tsukada, M.D. performed the MRI Dr. Lobatz had
. -8- □ .
il requested. AR 303-05. Dr. Tsukada concluded that Plaintiff demonstrated (1)
2 “[a]bnormal diffusion tensor imaging in the corpus callosum suggestive of loss in
3 || microstructural white matter integrity... likely ... secondary to previous trauma if there
4 were no neurological abnormalities prior to the traumatic event”; (2) “(bJorderline
5 |i abnormal MR spectroscopy of the right frontal white matter’; and (3) “[iJncidental
6 significant asymmetry of the amygdala of uncertain significance or etiology and may
7 merely represent a normal variant.” AR 304. On May 19, 2015, Dr. Lobatz reviewed the
8 || MRI and concluded that his opinions “remain unchanged” and were “reinforced by MRI
9 findings.” AR 319,
10 Shortly thereafter, on June 2, 2015, Dr. Lobatz performed a mental residual □
11 | functional capacity assessment (“MRFC”) on Plaintiff's cognitive abilities. AR 336-39.
12 ||Dr. Lobatz found a medically determinable impairment and a disabling condition of
!3 ||*traumatic brain injury, cognitive deficits.” AR 336. Dr. Lobatz described the condition
14 presenting “significant difficulty with multi-tasking, word-finding, recall and impaired
13 || memory.” Jd, Dr. Lobatz opined that Plaintiff had (1) “no significant limitation” on
16 sitting, standing, walking, or lifting; (2) “difficulty with remembering tasks and chores,
17 writing, speaking”; (3) “difficulty with concentration, cognitive tasks, [] memory
18 || deficits”; (4) “limitations f] correlated with her concentration/cognitive/memory deficits”;
19 (5) “difficulty with sustained attention as well as difficulty with comprehension of
20 orally presented information.” AR 336, 339, Further, “based on neuropsych [sic] testing,
memory and concentration deficits were seen with more complex tasks and delayed
22 recall.” AR 339. On the form, Dr. Lobatz check “yes” when asked if the applicant has a
23 || medically determinable physical or mental impairment that prevents the applicant form
24 || engaging in any substantial gainful activity, in any field of work.” AR 336. However,
25 Lobatz also checked the box for “Not Significantly Limited” with respect to Plaintiff's
26 ||“ability to interact appropriately with the general public.” AR 338.
27 On July 22, 2015, Dr. Lobatz provided another supplemental report which indicated:
28 |/that his final diagnostic impression included “[plersistent cognitive and memory loss
- 9.
I consistent with an enduring mild neurocognitive disorder.” AR 361, 364.
2 Additionally, on June 2, 2015, Norman Zukowsky, M.D., and on November 17,
3 2015, Phaedra Caruso-Radin, M.D., both state agency physicians, reviewed □□□□□□□□□□□
4 record and concluded Plaintiff's impairment was medically determinable but not disabling.
3 See, e.g., AR 78, 87 (concluding Plaintiff was“[njot [dJisabled,” and that her “condition
6 | did not result in significant limitations in [her] . . . ability to perform basic work activities
7 Il on or before June 30, 2012”),
8 2. Vocational Expert's Testimony
9 Vocational Expert (“VE”) John P. Kilcher testified at Plaintiff's hearing before the
10 |/ ALJ. AR 30, 51. Because of Plaintiff's varied employment: history, he characterized
11 Plaintiff's vocational background as the following: (1) a real estate agent at the light level
12 || and skilled, with Specific Vocational Preparation (“SVP”) of 5; (2) a leasing agent at the
13 || light level and skilled, with SVP of 5, (3) a sales representative—i.e. Plaintiff's job selling
14 |/and licensing software games—at the light level and skilled, with SVP of 6; and (4)
15 || photography at the light level and skilled, with SVP of 1. AR 52.
16 The first hypothetical posed by the ALJ was whether, assuming no exertional
“17 limitations, someone who could understand, remember, and carry out detailed but not
18 || complex instruction could do any of Plaintiff's past work. AR 59. The VE opined that
19 Plaintiff's past jobs were all highly skilled, and thus, unsuitable for someone with
20 |} Plaintiffs limitations. Jd. The ALJ then asked if other work was available. Jd. The VE
21 || answered that unskilled work was available and provided a list of jobs: hand packager,
22 room attendant, and “markers.” Id. Hand packager is classified at the medium level,
23 unskilled, with SVP of 2 and.an estimated 95,000 such jobs in the U.S. labor market. /d,
24 |; Linen room attendant is classified at the medium level, unskilled, with SVP of 2 and an
25 estimated 42,000 such jobs in the U.S. labor market. Jd. “Markers” are classified at the
26 ||medium level, unskilled, with SVP of 2 and an estimated 35 000 such jobs in the U.S. labor
27 market. Id.
28 Then, the ALJ restricted the hypothetical to include detailed but not complex
-10- .
| llinstructions with few workplace decisions and only occasional and superficial public
2 interaction. AR 59-60. The VE’s answer did not change: the same jobs would be
3 |/available. AR 60. The ALJ further restricted a new hypothetical to include only simple
4 instructions for routine tasks and asked whether the jobs at SVP 2 would satisfy this new
> criterion. AR 60. The VE affirmed. Jd. Ina fourth hypothetical, restricted to just simple
© llinstructions and only occasional superficial interaction with the general public, the VE
7 Indicated the same jobs were still available. Id A fifth hypothetical posed by the ALJ
8 asked the VE to consider what jobs were available for someone who would be off task for
9 |i fifteen minutes of each hour due to distractions or symptoms of impairment. Jd. At this
10 point, the VE stated that someone in. this condition could not work because of “[t]he
AT excessive time off task.” Id. “Fifteen percent [time off task] would be the max allowed,”
12 || and fifteen minutes off task “would be approximately 25 percent.” Jd.
13 The ALJ continued with another hypothetical, asking whether an individual at light
14 exertion, needing to understand, remember, and carry out simple instructions with few
15 workplace decisions, occasional and superficial interactions with the general public, and
16 requirement for a high production quota, could find a job. AR 62. The VE stated the
17 jobs garment sorter, stock checker, and hand bander were available for this hypothetical
18 individual. AR 62-63. Garment sorter is classified at the light level, unskilled, with SVP
19 || of 2 and an estimated 35,000 such jobs in the U.S. labor market. AR 62. Stock checker is
20 || classified at the light level, unskilled, with SVP of 2 and an estimated 31,000 such jobs in
21 U.S. market. AR 63. Hand bander is classified at the light level, unskilled, with an
22 of 2 and an estimated 18,000 such jobs in the U.S. labor market. Id
23 The ALJ proceeded to allow Plaintiff’s attorney to ask the VE questions. Plaintiff's
24 attomey asked whether, “[u]sing either of your [VE’s] two groups of three jobs [i.e. hand
25 || packager, linen room attendant, and markers and garment sorter, stock checker, and hand
26 || bander], if the hypothetical individual were 25 percent slower at performing that job than
27 other workers, is that vocationally unacceptable?” AR 64. The VE confirmed this
28 || would be unacceptable. Id.
-11-
I _ Inthe final hypothetical, the ALJ asked whether an individual would be able to retain
2 work if the individual missed two days of work a month—regardless of whether the missed
3 day was the result of distractions, memory loss, or the individual forgetting he or she even
4 work on a given day. AR 68. The VE stated this hypothetical individual could not
> work. Jd.
6 B. Procedural History
1. Proceedings before the Commissioner of Social Security —
8 As stated, on June 4, 2015, Plaintiff filed a Title II application for Social Security
9 Disability Insurance. AR at 154-55. On August 24, 2015, the Commissioner denied
10 || Plaintiff's claim. AR 72-93. On November 20, 2015, the Commissioner again denied the
||claim on reconsideration. Id.
12 2. Proceedings before the ALJ
13 || On December 3, 2015, Plaintiff’ s requested re-hearing before the ALJ took place.
14 15, 29. Plaintiff was represented by counsel at the hearing. /d. Plaintiff and vocational
15 || expert John P. Kilcher testified at the hearing. AR 29-30.
16 On May 23, 2018, the ALJ issued a decision denying PlaintifP s request for benefits,
17 || finding that Plaintiff was not disabled under sections 216(i) and 223(d) of the Social
18 Security Act through June 30, 2012, the last date insured. AR 23.
19 On July 23, 2018, Plaintiff filed a Request for Reconsideration. AR 152-53. On
20 || April 15, 2019, the Appeals Council denied Plaintiff's request for review, making the
21 || ALJ’s decision the final decision of the Commissioner for the judicial review purposes.
22 || AR 1-3.
23 3. District Court Action
24 On June 12, 2019, Plaintiff filed her complaint regarding denial of benefits under
25 || the Social Security Act, initiating the present lawsuit before the Court. ECF No. 1. □
26 After the Court granted Plaintiff's Motion for Extension of Time to File □□□□□□□□□□
27 Motion for Summary Judgment, ECF Nos. 9, 10, Plaintiff filed her Motion on November
28 ||22, 2019, ECF No. 11. On January 10, 2020, Defendant filed a Cross-Motion. ECF No.
-12-
| On January 24, 2020, Plaintiff filed a reply. ECF No. 13.
2 STANDARDS OF REVIEW
3 The Social Security Act provides for judicial review of a final agency decision
4 denying a claim for disability benefits. 42 U.S.C. §§ 405(g), 1383(c)(3). While the parties
> Ilhave filed cross-motions for summary judgment, the usual legal standard for summary
6 judgment generally does not apply where the Court is asked to review the decision of an
7 ALJ. See, e.g., Nw. Motorcycle Ass'n v, US. Dept of Agriculture, 18 F.3d 1468, 1472 (9th
8 | Cir, 1994) (noting that “[s}ummary judgment is the appropriate vehicle in the Ninth Circuit
9 for reviewing an administrative agency’s final determination”); Ordway v. Metro. Life Ins.
10 |! Co., 634 F, Supp. 2d 1120, 1122-23 (S.D. Cal. 2007) (stating that in the analogous case of
11 |/ERISA actions, “where the plaintiff is challenging the Plan administrator’s denial of
12 benefits, ‘a motion for summary judgment is merely the conduit to bring the legal question
13 |/before the district court and the usual tests of summary judgment, such as whether a
14 genuine dispute of material fact exists, do not apply’”). “Thus, a summary judgment
13 || motion resting on the administrative record is not a typical summary judgment, but rather,
16 | is a procedural vehicle for determining whether benefits were properly granted or denied.”
17 Id. | □
18 |} A reviewing court must affirm the denial of benefits if the agency’s decision is
supported by substantial evidence and applies the correct legal standards. Batson v.
20 || Comm’r of Soc. Sec. Admin. 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence
21 || means more than a mere scintilla,” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995),
22 and signifies “such relevant evidence as a reasonable mind might accept as adequate to
23 support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); see also Molina
24 |Iy. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quotation and citation omitted). It is a
25 “highly deferential” standard of review. Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir.
26 ||2009). However, the Court “may not affirm simply by isolating a specific quantum of
27 supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court must
28 consider the record as a whole, weighing both the evidence that supports and detracts from
-13-
lithe ALI’s conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.
2 2001); Desrosiers v. Sec 'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).
3 “The ALJ is responsible for determining credibility, resolving conflicts in medical
4 testimony, and for resolving ambiguities.” Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th
> 2008) (internal quotations and citation omitted). If the evidence is susceptible to more
6 Il than one reasonable interpretation, the agency’s decision must be upheld. Molina, 674
7 at 1111. It is not the Court’s role to reinterpret or re-evaluate the evidence, even if a
8 || re-evaluation may reasonably result in a favorable outcome for the plaintiff. Batson, 359
? at 1193. Moreover, the Court may not uphold an ALJ’s decision on a ground not
10 actually relied on by the ALJ, Molina, 674 F.3d at 1121. Finally, the Court may not reverse
I |jan ALJ’s decision on account of an error that is harmless. Jd. at 1111; see also Brown-
12 || Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (providing that “[e]ven when the ALI
13 || commits legal error, we uphold the decision where that error is harmless,” meaning that “it
14 lis inconsequential to the ultimate nondisability determination,” or that, despite the legal.
Id error, “the agency’s path may reasonably be discerned, even if the agency explains its
16 decision with less than ideal clarity”). |
17 DISCUSSION
18 To qualify for disability benefits under the Social Security Act, an applicant must
19 || show that he or she cannot engage in any substantial gainful activity because of a medically
20 || determinable physical or mental impairment that has lasted or can be expected to last at
21 ||least twelve months. 42 U.S.C. §§ 423(d), 1382c(a)(3). In establishing a disability claim,
22 claimants must establish evidence not only before the last date insured but also after the
23 alleged onset date. Accord Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d.1155, 1165
24 || (9th Cir. 2008). “Medical opinions that predate the alleged onset of disability are of limited
25 ||relevance,” especially “in cases such as this where disability is allegedly caused by a
26 discrete event.” See, e.g., id (holding that the ALJ did not err in giving little weight to
27 ||medical evidence from a physician because it was provided before the alleged onset of
28 || disability at a time when the claimant “was working two jobs that he never indicated having
. -14-
1 |\trouble performing before his on-the-job injury”). The Ninth Circuit has also held that
2 || disability insurance benefits claimants have a “burden to prove disability before expiration
3 llof disability insured states.” Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590
4 || (9th Cir. 1998). As a result, evidence of disability arising after the last date insured also
5 relevance to the determination of disability. See, e.g., Penny v. Sullivan, 2 F.3d 953,
6 || 956 (9th Cir.1993) (finding that the claimant, who suffered from degenerative disc disease,
7 ||needed to show disability before, rather than after, the last date insured); see also SSR 83-
8 (S.S.A. January 1, 1983). Thus, in this case, and as the ALJ noted, the relevant
adjudicatory period runs from Plaintiff's alleged onset date of disability, February 1, 20 10,
10 || through her date last insured, June 30, 2012. AR 15, 19, 154-55. However, while Plaintiff
argues that by considering evidence after the date of last insured, the ALJ forfeited “any
12 || objection to this [Dr. Lobatz’s] opinion post-dating the DLI by years,” ECF No. 11 at 3:24-
13 ||28, that argument fails to note the ALJ’s explanation for doing so. Rather, the ALJ “read
14 ||and considered all of the medical evidence in the record, including evidence from the
15 period prior to the claimant’s alleged onset date” and after the date last insured because
16 “[t]here is no evidence to support any disabling functional limitation prior to the claimant’s
17 || date last insured.” AR 19. In sum, the ALJ correctly noted that Plaintiff lacks evidence to
18 support a disability® from the relevant adjudicatory period (e.g., after the alleged onset date
19 || and before the date last insured), and as a result, considered medical records from outside
20 || the relevant adjudicatory period. .
21 The Social Security regulations establish a five-step sequential evaluation to
22 |i determine whether an applicant is disabled under this standard. 20 C.F.R. §§ 404.1520(a),
23 ||416.920(a); Batson, 359 F.3d at 1194. First, the ALJ determines whether the applicant is
24 || engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(b). If not,
.
26 For the sake of clarity, the record contains medical records during the relevant
27 || adjudicatory period (e.g., between February 1, 2010 and June 30, 2012), such as □□□□□□□□□□□
2g visits to Dr. Kabat, but the ALJ did not view these records to as supporting a finding of
disability, and as such, considered additional records outside the relevant period.
-15-
1 at step two, the ALJ must determine whether the applicant suffers from a severe impairment
2 |for a combination of impairments. Jd. §§ 404.1520(a)(4)(ii), 416.920(c). Third, if the
3 |}impairment is severe, the ALJ must determine. whether the applicant’s impairment or
4 combination of impairments meets or equals an impairment contained under 20 C.F.R. Part
5 404, Subpart P, Appendix 1. Id. §§ 404.1520(a)(4\(iii), 416.920(d). If the applicant’s
6 impairment meets or equals a listing, he or she must be found disabled. Jd. If the
7 |}impairment does not meet or equal a listing, the ALJ must determine the applicant’s
8 ||residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(a)(4){iv), 416.920(e).
9 Fourth, the ALJ must determine whether the applicant retains the ‘residual functional
10 || capacity to perform past relevant work. Id. §§ 404, 1520(a)(4)(iv), 416.920(f). Fifth, ifthe
11 applicant cannot perform past relevant work, the ALJ must consider whether the applicant
12 perform any other work that exists in the national economy. Jd. §§ 404.1520(a)(4)(v),
13 ||416.920(g). .
14 |} The claimant carries the initial burden of proving a disability in steps one through
15 of the analysis.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation
16 || omitted). “However, if a claimant establishes an inability to continue her past work, the
17 || burden shifts to the Commissioner in step five to show that the claimant can perform other
18 || substantial gainful work.” Shaibi v. Berryhill, 883 F.3d 1102, 1106-07 (9th Cir. 2017).
19 || Applicants not disqualified at step five are eligible for disability benefits. Celaya v. Halter,
20 332 F.3d 1177, 1180 (9th Cir. 2003). .
21 In the present case, at step one, the ALJ found Plaintiff not engaged in substantial
22 || gainful activity during the period from her alleged onset date of February 1, 2010 through
23 date last insured of June 30, 2012. AR 17. At step two, the ALJ determined Plaintiff
24 suffered from mild neurocognitive disorder constituted severe impairments. AR 18. At
25 two, the ALJ determined Plaintiff's history of closed head injury, status post cervical
26 ||strain, resolved, with sequelae of mild neurocognitive disorder constituted severe
27 ||impairments. At step three, the ALJ found Plaintiff did not have an impairment or
28 |Icombination of impairments that met or medically equaled the severity of one of the listed
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1 |!impairments that met or medically equaled the severity of one of the listed impairments,
2 the ALJ evaluated Plaintiff's RFC. AR 19. The ALJ determined she retained the RFC
3 perform a range of work at all exertional levels but with certain nonexertional
4 || limitations.. AR 19. The limitations were: “the claimant can understand, remember, and
5 out simple instructions for simple, routine tasks; and can have occasional, superficial
6 || contact with the general public.” Jd. At step four, the ALJ determined that Plaintiff was
7 |junable to perform any past relevant work. AR 21. At step five, relying on the VE’s
8 |/testimony, the ALJ concluded that a significant number of jobs existed in the national
9 || economy that Plaintiff could perform. AR 22. As such, the ALJ concluded Plaintiff was
10 disabled,” as defined in the Social Security Act, from February 1, 2010, the alleged
11 || onset date, through June 30, 2012, the date of last insured. AR
12 In challenging the ALJ’s denial of benefits, Plaintiff argues the ALJ committed two
13 |/reversible errors. First, Plaintiff argues that the decision lacked substantial evidence by
14 ||misconstruing Dr. Lobatz’ opinion and failing to explain Plaintiff's MRFC. Defendant
15 responded by arguing, inter alia, that the ALJ’s RFC assessment was proper, noting in
16 || particular, that “REC is an administrative, not medical finding.” ECF No, 12-1 at 4:1
17 || (citing 20 C.F.R. § 404.1527(d)(2) and SSR 96-8p, 1996 WL 374184 (July 2, 1996) (“RFA
18 |lis an administrative assessment”). Second, Plaintiff contends that the ALJ erred by
19 ||improperly rejecting Plaintiff's subjective symptom testimony. ECF No. 1 at 8:23-25.
20 || Defendant responded by arguing that “the ALJ both identified Plaintiff's pertinent claims
21 explained why he partially discounted them.” ECF No. 12-1 at 7:3-4. Inreply, Plaintiff
22 argued that (1) an unexplained MRFC must be reversed and (2) the ALJ failed to provide
23 || adequate reasons for discounting Plaintiff's subjective symptoms. ECF No. 13 at 1:20,
24 |/51t-12,0
25 | A. The ALJ’s RFC Assessment was Supported by Substantial Evidence
26 Plaintiff argues that the decision lacked substantial evidence by misconstruing Dr.
27 ||Lobatz’s opinion and failing to explain Plaintiff's MRFC. In advancing this argument,
28 ||Plaintiff avers that the ALJ inverted Dr. Lobatz’s opinion to reach a conclusion
| -17-
1 || unsubstantiated by the medical evidence. ECF No. 11 at 5:3-14. Plaintiff elaborates that
2 ALJ implicitly rejected the opinion of the Agency’s doctors at step two by listing
3 ||Plaintiff's mild neurocognitive disorder as “severe” because that listing as severe is
4 contrary to the Agency doctors’ opinions, which found Plaintiff's impairments medically
5 || determinable but not disabling. See id. at 3:18-24-4:1-10. Therefore, Plaintiff argues that
6 the ALJ rejected the agency doctors, that leaves only Dr, Lobatz’s determination that
7 || Plaintiff is disabled as the sole medical opinion left upon which the ALJ could rely. See
8 || id. at 3 :21-23—4:1-10. Additionally, Plaintiff argues that “[t]he decision’s MREC rests on
9 ||impermissible sleight-of-hand” because it “cherry picks” from Dr. Lobatz’s opinion to
10 |! conclude Plaintiff is not disabled.. ECF No. 11 at 6-8. Plaintiff also argues that the ALJ’s
Il || more restrictive/more favorable assessment is not an unreviewable, harmless error because
12 ALJ’s significant work-related interactional limitation was not explained. /d. at 5.
13 1. The ALJ’s Step Two Decision Finding Severe Impairments □□□
14 Proper
15 The Court will first address the argument that Dr. Lobatz’s opinion was the only
16 || opinion left standing after step two. Again, step two requires the ALJ to “consider the
17 ||medical severity of’ the impairment. 20 C.F.R. § 404.1520(a)(4)(i1). The Court disagrees
18 that because the ALJ found Plaintiff had “severe impairments” at step two, he necessarily
19 ||must have wholesale rejected the agency doctor’s opinions—because those doctors did not
20 || deem Plaintiff disabled, and therefore, and only relied on Dr. Lobatz.
21 _ Step two of the disability determination process is a threshold inquiry meant to
22 || screen out weak claims. Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (emphasis
23 ||added) (quoting Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987)). A “finding that a
24 ||claimant[‘s disability] is severe at step two only raises a prima facie case of disability.”
25 ||Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). As the Supreme Court has
26 ||recognized, an overly stringent application of the severity requirement does not serve the
27 purposes of the Social Security Act. Corrao y. Shalala, 20 F.3d 943, 949 (9th Cir. 1994)
28 {citing to Yuckert, 482 U.S. at 156-58 (O’Connor, J. concurring)).
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| Despite the “gate keeper role” step two serves and the preference for a resolution of
2 ||the claimant’s alleged disability, Plaintiff argues that the ALJ’s threshold determination at
3 .|| step two should limit the ALJ’s use of the evidence at a further stage in the evaluation. See
4 ||/ECF No. 11 at 3. Plaintiff's argument is unpersuasive. .
5 First, step two serves to dispose of unsubstantiated claims, so attributing a complete
6 ||disposal. of the Agency doctors’ opinions during this initial inquiry is incorrect. See
7 || Hoopai, 499 F.2d at 1076; Luther y. Astrue, 2010 U.S. Dist. LEXIS 91752 at *16 (E.D.
8 2010) (describing step two “as a gatekeeping mechanism to dispose of groundless
9 || claims”); see also SSR 96-3P, 1996 WL 374181, *2 (July 2, 1996) (requiring the step two
10 ||determination to ask whether the medically determinable impairments could be
11 ||‘“reasonably expected” to produce the symptoms). Second, even if “the adjudicator is
12 unable to determine clearly the effect of an impairment(s) on the individual’s ability to do
13 ||basic work activities, the adjudicator must continue to follow the sequential evaluation
14 process until a determination or decision about. disability can be reached.” □□□□
15 || Additionally, it is not obvious whether the ALJ, in fact, implicitly and entirely disposed of
}|the Agency doctors’ opinions as Plaintiff suggests, let alone at this preliminary stage in the
17 ||sequential evaluation. Cf AR 21 (“The [ALJ] has considered but has not given great
18 weight to the determination of the State agency physical and mental medical consultants
19 [in determining the RFC]”).
20 2. The ALJ Did Not “Invert” Dr. Lobatz’s Medical Opinion
~—~Pilaintiff next argues the ALJ wrongly inverted Dr. Lobatz’s opinion, or in lamen’s
22 ||terms, turned the opinion upside down. ECF No. 11 at 6-8. For example, Plaintiff claims
23 ALJ’s decision “improperly detached” treating neurologist Dr. Lobatz’s statement,
24 ||"“[w]hen involving simple tasks, she is able to perform within normal limits,” from its
25 || proper context. ECF No. 11 at 6:3-4 (citing AR 339). According to Plaintiff, Dr. Lobatz’s
26 more general disability conclusion, and not just the specific opinions supporting that
27 conclusion, should apply to the instant matter because the definitions are identical and his
28 || opinion unambiguously finds a disability present. ECF No. 11 at 6-7. In sum, Plaintiff
-19-
1 |/argues the ALJ’s decision was not supported by substantial evidence because the ALJ
2 || undermined the opinion he used to conclude Plaintiff was, in fact, disabled. See id. at 8.
3 Defendant defends the ALJ’s decision as supported by substantial evidence,
4 ||corroborated with specific and legitimate reasons that explain how the evidence was
5 || weighed. ECF No. 12-1 at 3. First, Defendant contends that the ALJ gave sufficient weight
6 || to the treating physician, Dr. Lobatz. Id. Second, Defendant-defends the ALJ’s synthesis
7 ||of Dr. Lobatz’s medical opinion. Jd. To this point, Defendant references Dr. Lobatz’s
8 || assessment of Plaintiff's abilities to understand, remember, carry out simple instructions,
9 || interact appropriately with peers and supervisors, which were each listed as “not
10 significantly limited.” Jd. at 3-4 (citing to AR 337-38). Additionally, Defendant cites
It Plaintiffs activities of daily living as consistent with the RFC delineated in the decision.
12 || Id. at 4.
Defendant also argues that Dr. Lobatz’s conclusion on the issue of disability is a
14 conclusion reserved for the ALJ. Id. at 5 (citing to McLeod v. Astrue, 640 F.3d 881, 885
15 (Oth Cir. 201 1) (discussing how “[aJn impairment is a purely medical condition,” while
16 disability is an administrative determination of how an impairment, in relation to
17 |jeducation, age, technological, economic, and social factors, affects ability to engage in
18 || gainful activity”)). Specifically, Defendant argues that the ALJ appropriately discounted
19 Dr. Lobatz’s ultimate conclusion, and instead, relied on Dr. Lobatz’s specific assessment
20 || of Plaintiff's functional capacity.
21 “The law reserves the disability determination to the Commissioner.” McLeod, 640
22 F.3d at 885. “A disability is an administrative determination of how an impairment, in
23 ||relation to education, age, technological, economic, and social factors, affects ability to:
24 |) engage in gainful activity.” McLeod, 640 F.3d at 885. “Although a treating physician’s
25 || opinion is generally afforded the greatest weight in disability cases, it is not binding on an
26 with respect to the existence of an impairment or the ultimate determination of
27 || disability.” TYonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). As Plaintiff
|| correctly points out in her Motion, however, the ALJ may not “cherry-pick” evidence that
~-20-
1 {supports his conclusion while ignoring the totality of the medical evidence presented.
2 || Torquato v. Berryhill, 2018 U.S. Dist. LEXIS 104318 at *22 (S.D. Cal. June 20, 2018)
3 || (Bashant, J.). . □
4 As a preliminary matter, it is important to revisit the basis for the ALJ’s assessment
5 |} of Plaintiff's RFC, particularly given the Court may only affirm the ALJ’s decision based
6 |/on the reasons set forth by the ALJ. Molina, 674 F.3d at 1121. Here, the ALJ’s decision
7 |jrendered the following RFC: “the claimant can understand, remember, and carry out simple
8 || instructions for simple, routine tasks; and can have occasional, superficial contact with the
9 || general public.” AR 19, The ALJ cites to multiple examples to support the decision’s
10 (1) an unremarkable neurological exam after the Plaintiff's July 2009 car accident,
11 || AR 266-70, (2) progress notes from September 2009 that indicated mild word finding
12 || difficulty, AR 416-17, (3) a June 2010 neuropsychologist examination that showed
13 impairment in the aspects of temporal orientation, sustained attention, phonemic oral word
14 || production, and confrontation naming inconsistencies, AR 351-60, (4) two
15 neuropsychology appointments in November 2010 and March 2011 that noted anxiety with
16 j|restricted affect and disorganization with memory difficulties, AR 347, and (5) two
17 || separate opinions from Dr. Lobatz, AR 336-39 (June 2, 2015), 361-65 (July 22, 2015). AR
18 || 20.
19 The ALJ gave significant weight to Dr. Lobatz’s opinion. Jd. The relevant portion
20 || of the ALJ’s decision follows as such,
21 Dr. Lobatz’s opinion regarding the claimant’s functional
22 limitations is highly regarded because it is well-supported by the
53 objective medical evidence and it is consistent with the record a
whole, including the claimant’s activities of daily living.’
24 Although the final responsibility for determining the issue of
disability is reserved to the Commissioner, this opinion of the □
25 treating physician is well-supported by clinical and diagnostic
26
27 According to Dr. Lobatz, the Plaintiff is “able to perform all of her normal basic
activities of daily living, including bathing, dressing and grooming, driving, meal
preparation and other things.” AR 324.
. -21- :
1 findings and is not inconsistent with the other substantial .
2 evidence of record. The doctor indicated that the claimant can
perform simple tasks. That opinion is consistent with the
3 assessed [RFC].
4 The ALJ then explains why he did not give great weight to the opinions of the Agency’s
5 doctors, before concluding that the RFC is supported by the evidence as a whole. AR 21.
6 ||Because the ALJ relied on Dr. Lobatz’s medical opinion, it is important to review this
7 || material.
8 The first opinion from Dr. Lobatz that the ALJ relied on was Dr. Lobatz’s June 2,
112015 Mental Residual Functional Capacity Assessment regarding Plaintiff's ability to pay
10 | back her student loans. AR 20. This assessment required Dr. Lobatz to determine whether
I I Plaintiff could engage in substantial gainful activity, defined similarly to the definition set
12 || forth in the Social Security Regulations. Compare AR 336 (defining “substantial gainful
‘13 activity” as “a level of work performed for pay or profit that involves doing significant
14 || physical or mental activities, or a combination of both”) with 20 C.F.R. § 404.1510
15 || (defining “substantial gainful activity” as work that “fijnvolves doing significant and
16, productive: physical or mental duties” and “[i]s done (or intended) for pay or profit”).
17 Lobatz determined there was a medically determinable impairment stemming from
18 “traumatic brain injury [and] cognitive deficits.” AR 336. The severity of the impairments
19 |iwas described as “significant difficulty with multi-tasking, word-finding, recall and
20 ||impaired memory.” Jd. .
21 When prompted to list the Plaintiff's limitations, Dr. Lobatz found Plaintiff had: (1)
22 significant limitation” in regard to sitting, standing, walking, or lifting; (2) “difficulty
23 |) with remembering tasks and chores, writing, speaking” in regard to activities of daily
24 living; (3) “difficulty with concentration, cognitive tasks, [] memory deficits” in regard to
25 |lresidual functionality; and (4) social/behavioral limitation “correlated with her
26 concentration/cognitive/memory deficits.” AR 336.
27 When prompted to determine the extent of Plaintiff's limitations in the category of
28 “understanding and memory,” Dr. Lobatz found Plaintiff was “moderately limited” in “the
-22- .
I ability to understand and remember detailed instructions.” AR 337. However, in both “the
2 ability to remember locations and work-like procedures” and “the ability to understand and
3 || remember very short and simple instructions,” Dr. Lobatz concluded that Plaintiff was “not
4 significantly limited.” AR337.
5 When prompted to determine the extent of Plaintiff's limitations in the category of
© |isustained concentration and persistence,” Dr. Lobatz found Plaintiff was “moderately
7 || limited” in: “the ability to maintain attention and concentration for extended periods;” “the
8 ability to perform activities within a schedule, maintain regular attendance, and be punctual
> |) within customary tolerances;” and “the ability to complete a normal workday and
10 || workweek without interruptions from psychologically based symptoms and to perform at
11 consistent pace without an unreasonable number and length of rest periods,” AR 337-
12 However, Dr. Lobatz found Plaintiff was “not significantly limited” in the following:
13 |/*the ability to.sustain an ordinary routine without special supervision,” “the ability to work
14 in coordination with or proximity to others without being distracted by them;” and “the
15 ability to make simple work-related decisions.”"" Id.
16 Dr. Lobatz concluded his assessment with the following: □
V7 The Patient appears to have some difficulty with memory and
18 concentration. When involving simple tasks, she is able to
perform within normal limits. However, based on neuropsych
19 [sic] testing, her memory and concentration deficits were seen
with more complex tasks and delayed recall. She also appears to
20 _ have difficulty with sustained attention as well as difficulty with
1 comprehension of orally presented information. Due to her
difficulties, she relies heavily on an employee to help complete
22 tasks for her business and she even had to close.two stores and
3 reduce to only her home-based business.
2
24 || AR 339. The second opinion from Dr. Lobatz that the ALJ relied on was a supplemental
25 || report to Plaintiff’ s lawyer. AR 20; 361-65. In relevant part, this report reads:
26
27 Dr. Lobatz also assessed Plaintiff's abilities in the categories of “social interaction”
58 and “adaption.” AR 338. For each subcategory within these two .aforementioned
|| categories, Dr. Lobatz concluded Plaintiff was “not significantly limited.” Jd.
-23- .
1 Neuropsychological testing done by Dr. Kabat suggests the
possibility of a mixed picture of preexisting neuropsychological
dysfunction as well as acquired abnormalities and the patient did
3 have some pre-injury neuropsychological testing that did not
4 demonstrate any significant learning disabilities or problems as
compared to abnormalities seen by the most recent testing and_
5 appear to correlate with the patient’s impressions of a significant
6 change that has occurred following the most recent injury.
7 || AR 364.
8 Plaintiff wrongly argues that the ALJ “inverted” Dr. Lobatz’s opinion. For
9 || Plaintiff's argument to hold water, there would need to be contradictory evidence in the
10 || record that opposes the ALJ’s determination that Plaintiff was not under a disability under
11 ||the framework of the Medical-Vocational Guidelines"! See AR 22-23. Attempting to
12 }|show such contrary evidence, Plaintiff cites to Dr. Lobatz’s statement that Plaintiff has
13 difficulty comprehending orally presented information and required assistance from an
14 || employee to help with her home business. ECF No. 11 at 7. However, this evidence.is not
15 inconsistent with the ALJ’s RFC. The ALJ concluded “the claimant can understand,
16 ||remember, and carry out simple instructions for simple, routine tasks.” AR 20. This
17 assessment does not contradict Dr. Lobatz’s medical opinion that Plaintiff was “moderately
18 || limited” in “the ability to understand and remember detailed instructions” but “not
19 ||significantly limited” in the ability to understand and remember very short and simple
20 || instructions.” AR 337. As such, Plaintiff's real issue is not that the ALJ was “picking and
21 }| choosing” evidence, but that the ALJ did not ultimately adopt Dr. Lobatz’s conclusion on
22 |\disability2
24 As discussed below, the possible inconsistency in the ALJ’s RFC is amore favorable
25 || work-related social interaction limitation. See infra pp.19—21.
26 12 Thus, the cases that Plaintiff cites do not help her position. See e.g., Denton v. Astrue,
F.3d 419, 425 (7th Cir. 2010) (analyzing whether the ALJ in fact “cherry-picked”
27 |\information where the ALJ did not assign significant weight to potentially contradicting
evidence); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) (requiring the ALJ
to explain the reasons for rejecting the treating physician’s determination of medical
-24-
I As stated, it is well established that the ultimate decision of disability is reserved for
2. ALJ. McLeod, 640 F.3d at 884-85; 20 C.F.R. § 404.1527(d)(1). An impairment is
3 || purely a medical condition; a disability is an administrative determination. McLeod, 640
4 ||F.3d at 884-85. Here, Dr. Lobatz determined there were medical impairments, and the
5 || ALJ followed Dr, Lobatz’s medical opinion regarding these impairments. AR 19-21.
6 ||However, the ALJ diverged from Dr. Lobatz’s conclusion as to the ultimate issue of
7 whether Plaintiff was disabled, id, which was appropriate given the law reserves such a
8 || determination for the ALJ, 20 C.F.R. § 404.1527(d)(1). Because the ALJ’s determination
9 ||is supported by substantial evidence, the Court cannot sustain Plaintiff's Motion on this
10 ||basis."3 See Molina, 674 F.3d at 1110.
11 3. The ALJ’s More Favorable Social Interaction Limitation is Not a
12 Harmful Error
13 The ALJ concluded that “[iJn interacting with others, the claimant had a moderate
14 || limitation,” AR 18, and could “have occasional, superficial contact with the general
15 |i public,” AR 19, Plaintiff argues that “[t]he decision should be reversed for utterly failing
16 ||to explain its interactional limitations.” ECF No. 11 at 5:14-16. Plaintiff argues that
17 || because “the decision did find significant work-related interactional limitations, this Court
18 |lcannot consider the decision’s utterly unreviewable error harmless.” Jd. at 5:20-11.
19 ||Plaintiff also argues the ALJ’s more favorable work-related social limitation is not a
20 || harmless error because it is not explained in the decision. ECF No. 11 at 5:15-18 (arguing
21 “[nJot a word is said there about work-related social interactions”). Defendant
22 ||responds by noting that even though Plaintiff takes issue with the ALJ’s RFC, it is unclear
23 || why seeing as the ALJ’s decision that Plaintiff had a moderate limitation in her ability to
24 j/interact with others was, in fact, more favorable than that of Plaintiff's own treating
25
26 || impairments); Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (same).
27 || At worst, the evidence is subject to multiple interpretations. If, arguendo, the
38 evidence is, in fact, open to multiple interpretations, the Court is still required to affirm the
ALJ’s conclusions where substantiated by the evidence. Molina, 674 F.3d at 1111.
-25-
1 || physician, Dr. Lobatz, who concluded that “the claimant had a mild cognitive disorder and
2 || was able to perform simply tasks within normal limits” and “had no limitations in social
3 || functioning.” ECF No. 12-1 at 6:1-2 (citing AR 20, 338).
4 It is true that the ALJ does not explicitly state his reasons for the work-related social
5 |Ilimitation. See AR 19-21. However, Plaintiff wrongly asserts that the more favorable
6 Ilrestriction constitutes a harmful and reversible error. An error is harmless where “it is
7 |/inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115.
8 ||(quoting Carmickle, 533 F.3d at 1162). In assessing whether the error is harmless, the
9 looks to the record as a whole to determine whether the error alters the outcome of
10 case. Jd. Generally, if the ALJ assesses a more restrictive RFC, even if the ALJ erred
the assessment, the error is harmless because the additional restriction is more favorable’
12 the plaintiff. See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055 (applying the
13 ||harmless error doctrine where the mistake was non-prejudicial to the claimant); Torres v.
14 || Berryhill, 2018 U.S. Dist. LEXIS 124710 at *10 (S.D. Cal. July 25, 2018) (Huff, J.)
15 || (applying Stout). Although the burden of showing that the error was not harmless rests
16 with the party attacking the agency’s determination, the reviewing court can decide
17 |;whether further administrative review is necessary to determine whether. there was
18 || prejudice from the error. McLeod, 640 F.3d at 888 (quoting Shineski v. Sanders, 556 U.S.
19 409-10 (2009). Critically, “where harmlessness is clear and not a ‘borderline
20 question,”” remand for reconsideration is not appropriate. Jd.
21 || Here, the ALJ did not render a disabling RFC for Plaintiff despite imposing a strict |
22 || limitation on the Plaintiffs work-related social interactions. It is difficult to see how this
23 ||stricter limitation constitutes a consequential or prejudicial error to Plaintiff. Even
24 |/assuming the ALJ erred in giving Plaintiff a stricter limitation than her own physician, the
25 || ALJ’s more restrictive RFC reduced the amount of potential jobs available in the domestic
26 economy that Plaintiff could perform. Such a reduction makes it more—not less likely—
27 ||that Plaintiff would be disabled. Because the error rendered Plaintiff more likely to be
28 disabled and the ALJ still did not render a favorable disability finding, the error proved
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1 ||“inconsequential to the ultimate nondisability determination.” See Molina, 674 F.3d at
2 1115. The reviewing court need not make an independent finding based on the evidence
3 conclude this error was harmless. See Brown-Hunter, 806 F.3d at 492. For the foregoing
4 || reasons, Plaintiff does not establish a reversible error on this point.
5 In sum, the Court concludes that substantial evidence supports the ALJ’s
6 determination, Therefore, the Court denies Plaintiff's Motion on these grounds and grants.
7 || Defendant’s Cross-Motion.
8 B. The ALJ Did Not improperly Reject Plaintiff's Subjective Allegations
9 Plaintiff next argues that the ALJ wrongly rejected Plaintiff's subjective symptom
10 ||testimony. ECF No. 11 at 8-10. Defendant argues that “the ALJ both identified Plaintiff s
11 pertinent claims and explained why he partially discounted them.” ECF No. 12-1 at 8:4-5.
12 ||In her Reply Brief, Plaintiff responds that Defendant’s argument tries to draw a distinction
13 {| between lacking support from medical evidence and contradicting medical evidence, and
14 plaintiffs testimony may only be rejected where medical evidence contradicts with the
15 ||claimant’s testimony. ECF No. 13 at 6:6-7, 15-18, 7:1-6. As a result, Plaintiff argues that
16 ||“[b]ecause the decision found Ms. Kelley’s allegations ‘could reasonably be expected’
17 || from her ‘medically determinable’ (supported by objective medical evidence) impairments
18 ||... and merely were ‘not entirely consistent with it’,” ECF No. 13 at 6:15-18, □□□□□□□□□□□
19 |/testimony should have been accepted because lacking support does not □□□□□□ to
20 ||conflicting with medical evidence.
21 To determine whether Plaintiff's subjective symptom testimony regarding pain or
22 ||symptoms is credible, an ALJ engages in a two-step analysis. This analysis requires the
23 || ALJ to examine the entire record, including the plaintiff 5 subjective symptoms. SSR 16-
24 ||3P, 2017 WL 5180304 (Oct. 25, 2017); 20 C.F.R. g 1529(c)(1)-(4), First, the ALJ
25 ||“determine[s] whether the individual has a medically determinable impairment that could
26 ||reasonably be expected to produce the individual’s alleged symptoms.” SSR 16-3P; 20
27 ||C.F.R. § 404,.1529(b). Second, once an underlying impairment can be expected to produce
28.|| the plaintiff's symptoms, the ALJ must evaluate the intensity, persistence, and limiting
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1 ||effects of the claimant’s symptoms to determine the extent to which they limit the
2 || claimant’s functional limitations. SSR 16-3p; 20 C.F.R. § 1529(c)(1).
3 Where the ALJ determines the plaintiff is not malingering!* and has produced
4 || objective medical evidence of an underlying impairment, the ALJ must provide “specific,
5 and convincing reasons” for rejecting the plaintiff's subjective testimony regarding
6 ||the severity of the symptoms. Treichler v. Comm ’r of SSA, 775 F.3d 1090, 1102 (9th Cir.
7 ||2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “General findings
|lare insufficient.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir, 1995), The “clear and
9 || convincing” standard requires the ALJ to “state specifically which symptom testimony is
10 credible and what facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284,
I1 ||The ALJ’s decision must explain its reasoning to ensure meaningful appellate review.
12 || Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 2002). □□
13 Here, Plaintiff primarily argues that the ALJ rejected her symptom allegations by
14 || finding them mild. During the hearing before the ALJ, Plaintiff testified that she (1) had
15 ||trouble counting (for example, having to ask her husband what number she was on when
16 ||she got to five), AR 49-50, (2) suffered from memory problems (for example, forgetting
17 || what step she is on of her morning coffee-making process if she gets interrupted), AR 50,
18 || and (3) had trouble sorting checks by numbers, AR 50-51.
19 At step one, requiring determination of whether the individual has a medically
20 determinable impairment that could reasonably be expected to produce the alleged
21 ||symptoms, the ALJ identified memory and concentration difficulties, poor short-term
22 ||memory, and anxiety as Plaintiff? s symptom allegations. AR 19. The ALJ determined (1)
23 Plaintiff was not malingering, and (2) “the claimant’s medically determinable impairments
24 : □
25 Malingering has been “defined in the DSM-IV as the ‘intentional production of false
26 or grossly exaggerated physical or psychological symptoms, motivated by external
incentives such as avoiding military duty, avoiding work, obtaining financial
27 ||compensation, evading criminal prosecution, or obtaining drugs.’” United States v.
28 Wilbourn, 336 F.3d 558, $59 (7th Cir.2003) (citing American. Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 739 (rev. 4th ed.2000)).
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1 |}could reasonably be expected to cause the alleged symptoms,” See AR 19-21. Asa result,
2 ||the ALJ proceeded to step two, which requires evaluation of “the intensity, persistence,
3 |/and limiting effects of the claimant’s symptoms to determine the extent to which they limit
4 ||the claimant’s functional limitations.” SSR 16-3p; 20 C.F.R. § 1529(c)(1). In undertaking
5 step two evaluation, the ALJ determined that Plaintiff's “statements about the intensity,
6 || persistence, and limiting effects of ... her symptoms .. . are inconsistent because the
7 ||medical evidence of record regarding the claimant’s cognitive disorder shows conservative
8 ||treatment and mild findings.” AR 20. The ALJ explained his reasons for discounting
9 || Plaintiff's testimony as follows: □
10 Despite the claimant’s subjective complaints, however, the
1 medical evidence of record reveals mild. medical findings.
Neurological examinations found only mild word finding
12 difficulty. Testing showed some difficulty with memory and
B concentration. The claimant’s treating physician opined that the
claimant had a mild cognitive disorder and was able to perform □
14 _ simple tasks within normal limits. Accordingly, the undersigned
15 finds that the objective evidence regarding the claimant’s
cognitive disorder was mild and supports the [RFC].
16
Id. The decision then summarizes the medical evidence in support of the RFC. Jd.
17
The Court finds the ALJ’s decision here supported by sufficient reasoning. The ALJ
18
identified Plaintiff's issues with memory and concentration. Then, the ALJ provided
19 we □□
reasons for why he did not fully credit her subjective testimony (e.g., a history of
20 .
conservative treatment and mild findings).
21 ae □□
To support the mild findings, the ALJ explained that Plaintiffs testing showed mild
22 word-finding difficulty, some difficulty with memory and concentration, and her treating
23 physician opined that she had a mild cognitive disorder and.was able to perform simple
24 tasks within normal limits. Specifically, the ALJ referenced Dr. Chyung’s September 2,
2 2009 examination, well before Plaintiff's alleged onset date albeit after her car accident,
26 where claimant also reported issues with memory and “mild word finding difficulty”;
27 however, those issues were assessed to be mild and “the examination was otherwise
28
. . : -29-
unremarkable.” AR 20 (referring to AR 413-415). If, in 2009, Plaintiff had the same
2 allegedly disabling conditions and was able to work, then, similar conditions arising after
3 || the date of disability should not make her unable to work after the alleged onset date. The
4 Il ALJ also refetenced Dr. Lobatz’s opinion as consistent with finding that Plaintiff could
5 perform simple tasks within normal limits. AR 20 (citing to Plaintiff's MRFC Assessment,
6 ||AR 337, which showed Plaintiffs “ability to make simple work-related decisions” was
7 “[nJot [s]ignificantly [l]imited”). To support the conservative treatment finding, the ALJ
8 pointed out that the treatment Plaintiff received after her car accident, including the
9 neurological examination (July 22, 2009) and CT (July 11, 2009), was unremarkable and
10 | did not show significant evidence of injury. AR 20 (citing to AR 420). In addition, the
1! || ALJ referenced Plaintiffs March 18, 2011 appointment with Joanna T. Savarese, Ph.D.,
12 || during which Plaintiff “reported that she has slightly improved her organizational skills.”
13 || AR 20 (referring to the March 2011 appointment documented on AR 347).
14 Plaintiff also argues that the ALJ committed a harmful error by omitting to analyze
15 severity of her alleged anxiety during step two of the of the RFC assessment. ECF No.
16 at9: 1-6. Defendant responds that “the ALJ .. . identified Plaintiff's reported symptoms
17 |l of anxiety,” ECF No. 12-1 at 9:15-16 (citing to AR 19, in which the ALJ stated that
18 “claimant reported symptoms of anxiety”), but does not disagree that the ALJ does not
19 || specifically discuss the severity of anxiety, ECF No. 12-1 at 9. Defendant argues that the
20 || failure to discuss the severity of the anxiety does not constitute reversible error as the ALJ
21-|| need only discuss evidence that is significantly probative. See id. at 9 (citing to Howard v.
22 || Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)). Defendant also cites to evidence in the
23 || record of Plaintiff denying a history of significant clinical anxiety. Id. at 9:21-23 (citing to
24 || AR 353, 332, in which Plaintiff denied a history of significant anxiety).
25 The ALJ need not discuss every piece of evidence in the record. Howard, 341 F.3d
26 1012. “Rather, the ALJ must explain why significant probative evidence has been
27 rejected.” Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir, 1984) (citation omitted); see
28 || also Parker v. Barnhart, 67 F. App’x 495, 497 (9th Cir. 2003) (considering a doctor’s
. -30-
1 statement as not significantly probative because the statement was speculative); Houghton
2 Comm 'r SSA, 493 F. App’x 843, 845-46 (9th Cir. 2013) (considering the claimant’s
3 |l failure to show significantly probative evidence as failing to trigger the ALJ’s duty to
4 specifically explain which symptoms he discounted); cf York-Spann v. Astrue, 400 F.
5 App’x 207, 208 (9th Cir. 2010) (considering the ALJ’s failure to reference claimant’s
6 bipolar disorder as a harmful error because the symptom was substantiated by the medical
7 record). Further, the ALJ’s failure to cite specific evidence does not indicate that such
8 || evidence was not considered. Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995).
9 Here, Plaintiff fails to demonstrate her anxiety is significant probative evidence.'? As such,
10 |! the Court does not find this omission as indicative of a harmful error.
1 Plaintiff plainly disagrees with the ALJ’s final determination and attributes that to
12 the ALJ ignoring her symptom testimony. However, the Court finds that the ALJ did
13 Il discuss the issues with memory and concentration that Plaintiff complained about to not
14 only the ALJ, but also to many of her doctors. The ALJ gave sufficient reasons for
15 supporting his finding that the difficulties were mild. Accordingly, the Court denies
16 |! Plaintiff's motion for summary judgment on these grounds and grants Defendant’s motion.
17 lly, CONCLUSION | □□
18 | The Court finds that the ALJ’s decision to deny Plaintiff's benefits as supported by
19 substantial evidence. Accordingly, the Court DENIES Plaintiff's motion for summary
|| judgment and GRANTS Defendant’s motion for summary judgment. The administrative
|i law judge’s decision is AFFIRMED. The Clerk is directed to enter judgment in favor of
|| Defendant and against Plaintiff, and to close the docket pursuant to 28 U.S.C. § 636(b)
(NAN(C}I). □
IT IS SO ORDERED.
|| DATED: September Z£,2020 MM BEANE 7
HON. ROGER T. BENITEZ
€ United States District Judge
15 Plaintiff's only argument to this point is that “according to common sense, [anxiety]
|| would interact with” her principal impairment. ECF No. 11 at 9:4-6.
31.