The Court “must uphold [the agency’s decision] if the 4 agency’s path may reasonably be discerned.”
How later courts described this case
- The Court “must uphold [the agency’s decision] if the 4 agency’s path may reasonably be discerned.”
- “We have established a two-step analysis for determining 25 the extent to which a claimant’s symptom testimony must be credited.”
- Finding substantial evidence “means— 17 and means only—such relevant evidence as a reasonable mind might accept as adequate 18 to support a conclusion.”
- Courts “may not reweigh the evidence or substitute our 22 judgment for that of the ALJ.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 CRISTIAN N., Case No.: 20-cv-1498-BGS
12 Plaintiff,
ORDER
13 v. (1) DENYING PLAINTIFF’S
MOTION FOR SUMMARY
14 KILOLO KIJAKAZI, Commissioner of
JUDGMENT and
Social Security,1
15 (2) GRANTING DEFENDANT’S
Defendant. MOTION FOR SUMMARY
16
JUDGMENT
17
18 [ECF 14-15]
19
20 I. INTRODUCTION
21 Plaintiff Cristian N. (“Plaintiff”) filed a Complaint seeking judicial review of the
22 Commissioner of the Social Security Administration’s (“Commissioner” or “Defendant”)
23 denial of disability insurance benefits under the Social Security Act, (ECF 1), and the
24 Commissioner has filed the Administrative Record (ECF 13).
25
26
27 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021 and is
therefore substituted for Andrew Saul as Defendant. See 42 U.S.C. § 405(g); Fed. R. Civ.
28
1 Plaintiff’s Motion for Summary Judgment seeks reversal of the final decision
2 denying benefits and an order for the payment of benefits or, in the alternative that the
3 Court remand the case for further administrative proceedings. (ECF 14.) Plaintiff argues
4 the Administrative Law Judge (“ALJ”) failed to provide clear and convincing reasons
5 supported by substantial evidence for rejecting Plaintiff’s testimony. (ECF 14 at 4-16.2)
6 The Commissioner’s Opposition to Plaintiff’s Motion argues that the ALJ provided
7 numerous reasons for discounting Plaintiff’s allegations, including the objective medical
8 evidence, Plaintiff’s treatment history, Plaintiff’s activities of daily living, and that the
9 ALJ also properly relied on the medical-opinion evidence. (ECF No. 15.) Plaintiff did not
10 file a Reply brief.3
11 After careful consideration of the parties’ arguments, the Administrative Record and
12 the applicable law and for the reasons discussed below, Plaintiff’s Motion for Summary
13 Judgment is DENIED and the Commissioner’s Cross Motion for Summary Judgment is
14 GRANTED.
15 II. PROCEDURAL HISTORY4
16 Plaintiff’s applications for disability benefits, alleging disability commencing on
17 January 18, 2018, were denied initially on July 17, 2018 and on reconsideration on
18 October 2, 2018. (AR 57-69 (initially); AR 71-83 (reconsideration).) At Plaintiff’s
19 request, a hearing was held before an ALJ on August 2, 2019. (AR 33-56 (hearing
20 transcript), 99-100 (request for hearing).) The ALJ issued an unfavorable decision on
21 September 6, 2019. (AR 21-31.) Plaintiff’s request for Appeals Council review was
22
23
2 Unless otherwise noted, the Court cites the CM/ECF electronic pagination for the
24
parties’ briefs and the Administrative Record pagination for cites to it.
25 3 Plaintiff did file a Notice of New Authority related to the constitutionality of the
appointment of the Commissioner of Social Security (ECF 16) that the Court briefly
26
addresses below. (See Section V.)
27 4 The following procedural history is drawn largely from Plaintiff’s summary of the case
and Defendant’s introduction and procedural background. (ECF 14-1 at 2; ECF 15 at 3.)
28
1 denied on June 4, 2020. (AR 2-8 (denial), 175 (request for review).)
2 III. ALJ DECISION
3 The decision explains the five-step evaluation process for determining whether an
4 individual is eligible for disability benefit and then proceeds through steps one through
5 five of the evaluation process. (AR 21-31.5) At step two, the ALJ found Plaintiff had the
6 following medically determinable severe impairments: “neurocognitive disorder
7 secondary to childhood petroleum ingestion; borderline intellectual functioning; and
8 major depressive disorder.” (AR 24.) The ALJ found other medically determinable
9 impairments were not severe. (AR 24.)
10 The ALJ found Plaintiff did not meet a listing at step three, specifically
11 considering listings 12.02, 12.04, and 12.11 and evaluating the “paragraph B” criteria.
12 (AR 24-25.) The ALJ found Plaintiff had moderate limitation as to understanding,
13 remembering, or applying information; mild limitation in interacting with others;
14 moderate limitation in concentrating, persisting, or maintaining pace; and mild limitation
15 in adapting or managing himself. (AR 24-25.)
16 In conducting this analysis, the ALJ made findings that identified Plaintiff’s
17 reports of difficulties, including with memory and his ability to follow written
18 instructions, (AR 24), and being unable to maintain concentration to complete tasks (AR
19 25). Then, as to each of these areas and two others—interacting with others and adapting
20 or managing oneself—the ALJ made findings as to what Plaintiff could do in each area
21 with detailed citations of the record. (AR 24-25.)
22 After clarifying that the “paragraph B criteria” are not a residual functional
23 capacity (“RFC”), the ALJ then assessed the following RFC:
24 After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform a full range of work at all
25
26
27 5 The Court only briefly summarizes the ALJ decision here. Relevant portions of the
decision, including discussion of the specific records the ALJ cited and relied on for the
28
1 exertional levels but with the following non-exertional limitations:
noncomplex routine tasks that are goal oriented, can be taught with visual
2
demonstration, and do not require a fast production pace, such as conveyor
3 belt or assembly line jobs; simple work-related decisions; and maintain
concentration for two-hour periods with normal breaks in the workday to
4
address lapses in concentration.
5
(AR 25-26.)
6
The decision then explains that in making this finding as to Plaintiff’s RFC,
7
the ALJ has considered all Plaintiff’s symptoms taking into account their
8
consistency with the objective medical evidence and other evidence as well as the
9
medical opinions. (AR 26.)
10
The ALJ then explains the two-step process to evaluate Plaintiff’s
11
symptoms. (AR 26.) The decision identifies the first step as determining if an
12
underlying impairment could reasonably be expected to produce Plaintiff’s
13
symptoms. (AR 26.) The ALJ describes the second step as an evaluation of the
14
intensity, persistence and limiting effects of Plaintiff’s symptoms to determine the
15
extent to which they limit Plaintiff’s functional limitations. (AR 26) The ALJ notes
16
that whenever Plaintiff’s statements about the severity of his “symptoms are not
17
substantiated by objective medical evidence, [the ALJ] must consider other
18
evidence in the record to determine if the claimant’s symptoms limit the ability to
19
do work-related activities.” (AR 26.)
20
The decision summarizes Plaintiff’s allegations and testimony as follows:
21
The claimant alleges disability due to depression, anxiety, borderline
22
intellectual functioning, and neurocognitive disorder secondary to
23 childhood petroleum ingestion. At the hearing, the claimant testified
that he experiences depressed and anxious mood, sleep disturbance,
24
short term memory loss, and cognitive deficits. The claimant also
25 testified that these symptoms limit the ability to engage in daily
activities that involve short-term memory and adaptive functioning,
26
such as maintaining personal hygiene, preparing meals, managing his
27 medication, traveling, and making plans for himself independently of
28
1 his spouse. Furthermore, the claimant testified that he is unable to
leave his home without getting lost.
2
3 (AR 26.)
4 The ALJ then finds Plaintiff’s “statements concerning the intensity,
5 persistence and limiting effects of these symptoms are not entirely consistent with
6 the medical evidence and other evidence in the record for the reasons explained in
7 this decision.” (AR 26.) The decision identifies evidence in the record indicating a
8 history of “depressed mood, sleep disturbance, and cognitive deficits—i.e.,
9 forgetfulness as well as difficulty with reading and writing—associated with
10 neurocognitive disorder secondary to childhood petroleum ingestion, borderline
11 intellectual functioning, and major depressive disorder.” (AR 26.) The ALJ then
12 finds Plaintiff’s testimony inconsistent with the record, making findings as to
13 decreases in the severity of symptoms with treatment and summarizing numerous
14 normal findings in medical reports and a consultive examination. (AR 27.) The
15 ALJ also addresses Plaintiff’s daily activities. (AR 27.)
16 The decision then addresses four medical opinions. (AR 27-28.) The ALJ
17 explains the extent to which each is persuasive based primarily on the degree they
18 are supported by the medical records and consistent with other evaluations of
19 Plaintiff. (AR 27-28.) The decision then finds Plaintiff’s spouse’s testimony not
20 persuasive because of its inconsistency with Plaintiff’s psychological evaluation
21 and results of an intelligence test, as well as conflicting with her hearing testimony
22 that Plaintiff is able to stay home by himself while she is at work. (AR 28.)
23 Relying in part on testimony from a vocational expert, the ALJ determined
24 at step four that Plaintiff could do his past relevant work as a hospital food service
25 worker or housekeeping cleaner. (AR 29.) The ALJ found, in the alternative, that at
26 step five, there were other jobs in the national economy that Plaintiff was also able
27 to perform: industrial cleaner, laundry worker, and kitchen helper. (AR 29-30.)
28
1 IV. DISCUSSION
2 Plaintiff argues the ALJ failed to provide clear and convincing reasons for
3 rejecting Plaintiff’s testimony regarding the severity of his symptoms. (ECF 14-1 at 4-
4 14.) Plaintiff argues: (1) the ALJ’s findings that Plaintiff’s treatment had been successful
5 in managing the severity of his symptoms failed to acknowledge that the treatment did
6 not completely resolve or fully manage the severity of his symptoms (id. at 6-9); (2) the
7 ALJ’s reliance on normal findings in an MRI6 and a consultive examination did not
8 consider contrary portions of the records or limitations of them (id. at 9-11); (3) the
9 ALJ’s analysis of Plaintiff’s daily activities relied on particular treatment notes to the
10 exclusion of others and did not explain how the activities he could actually do contradict
11 his testimony (id. at 11-16).
12 Defendant argues Plaintiff’s symptoms are simply not as severe as Plaintiff claims
13 and the ALJ provided numerous reasons supported by substantial evidence for finding
14 Plaintiff’s symptom allegations were not as severe as he asserted. (ECF 15 at 5-10.)
15 Defendant argues the ALJ appropriately relied on: Plaintiff’s treatment history, conflicts
16 between Plaintiff’s daily activities and his testimony; and numerous medical opinions,
17 unchallenged by Plaintiff, that all found Plaintiff was more capable than he alleged. (Id.
18 at 5-10.) Defendant also emphasizes that the ALJ did not find Plaintiff’s treatment
19 completely resolved his symptoms as Plaintiff suggests, but instead that they improved
20 with treatment. (Id. at 8-9.)
21 A. Applicable Legal Standard
22 The ALJ must engage in “a two-step analysis to determine whether a claimant’s
23 testimony regarding subjective pain or symptoms is credible.” Trevizo v. Berryhill, 871
24 F.3d 664, 678 (9th Cir. 2017) (“We have established a two-step analysis for determining
25 the extent to which a claimant’s symptom testimony must be credited.”); Garrison v.
26
27
6 The Court notes that the report cited by Plaintiff and relied on by the ALJ is from a “CT
28
1 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citing Lingenfelter v. Astrue, 504 F.3d 1028,
2 1035-36 (9th Cir. 2007)); 20 C.F.R. § 404.1529 (Describing how the Commissioner
3 evaluates symptoms); see also SSR 16-3p, 2017 WL 5180304, at *2-3 (Detailing the
4 Commissioner’s two-step process for evaluating symptoms).
5 At the first step, “the ALJ must determine whether the claimant has presented
6 objective medical evidence of an underlying impairment which could reasonably be
7 expected to produce the pain or other symptoms alleged.” Garrison, 871 F.3d at 678.
8 When the claimant satisfies the first step and there is no determination of
9 malingering by the ALJ, at the second step, “the ALJ must provide ‘specific, clear, and
10 convincing reasons for’ rejecting the claimant’s testimony regarding the severity of the
11 claimant’s symptoms.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102
12 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); Smith v.
13 Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021); Garrison, 759 F.3d at 1014-15; Parra v.
14 Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citations omitted). Plaintiff accurately
15 indicates, and Defendant does not dispute, the ALJ found that Plaintiff satisfied the first
16 step. (ECF 14-1 at 5; AR 26 (“I find that the claimant’s medically determinable
17 impairments could reasonably be expected to cause the alleged symptoms”).)
18 “[T]he ALJ must identify the specific testimony that he discredited and explain the
19 evidence undermining it.” Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020); see also
20 Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is
21 not credible and what facts in the record lead to that conclusion.”). The ALJ’s findings
22 must be “sufficiently specific to permit the court to conclude that the ALJ did not
23 arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039
24 (9th Cir. 2008).
25 In assessing a claimant’s characterization of their symptoms, the “ALJ may weigh
26 inconsistencies between the claimant’s testimony and his or her conduct, daily activities,
27 work record” and “testimony from physicians and third parties concerning the nature,
28 severity and effect of the symptoms of which he complains.” Bray v. Comm’n of Soc.
1 Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009) and Light v. Soc. Sec. Admin., 119
2 F.3d 789, 792 (9th Cir. 1997) (citations omitted); 20 C.F.R. § 404.1529; SSR 16-3p at *6-
3 8.7
4 Courts “reverse only if the ALJ’s decision was not supported by substantial
5 evidence in the record as a whole or if the ALJ applied the wrong legal standard.” Ahearn
6 v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). “If the ALJ’s finding is supported by
7 substantial evidence, the court ‘may not engage in second-guessing.’” Tommasetti, 533
8 F.3d at 1039 (quoting Thomas v Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). Substantial
9 evidence “means—and means only—such relevant evidence as a reasonable mind might
10 accept as adequate to support a conclusion.” Ahearn, 988 F.3d at 1115 (quoting Biestek v.
11 Berryhill, 139 S. Ct. 1148, 1154 (2019)). “[T]he threshold for such evidentiary
12 sufficiency is not high.” Biestek, 139 S. Ct. at 1154. “The ‘evidence must be more than a
13 mere scintilla but not necessarily a preponderance.’” Tommasetti, 533 F.3d at 1038
14 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Ahearn, 988
15 F.3d at 1115 (“The evidence must be more than a mere scintilla but may be less than a
16 preponderance.”). “To determine whether substantial evidence supports the ALJ’s
17 determination, we must assess the entire record, weighing the evidence both supporting
18 and detracting from the agency’s conclusion.” Ahearn, 988 F.3d at 1115 (citing Mayes v.
19 Massanari, 276 F.3d 453 459 (9th Cir. 2001)). However, courts “may not reweigh the
20
21
7 The Court notes that some cases articulating the analysis under the second step use the
22
term credibility, and SSR 16-3p explicitly removed the term “credibility” from the
23 Commissioner’s sub-regulatory policy. However, the Ninth Circuit has explained that
SSR 16-3p “makes clear what our precedent already require: the assessments of an
24
individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence
25 of symptoms after the ALJ finds that the individual has a medically determinable
impairment(s) that could reasonably be expected to produce those symptoms,” not to
26
delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.”
27 Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p). Regardless of the use of the term
credibility, the Court’s application of Ninth Circuit authority here is consistent with
28
1 evidence or substitute our judgment for that of the ALJ.” Id. “Where the evidence is
2 susceptible to more than one rational interpretation, one of which supports the ALJ’s
3 decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954 (citing Morgan
4 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
5 B. Analysis
6 Plaintiff’s Moti on is organized into three main issues: (1) Plaintiff’s treatment
7 (ECF 14-1 at 6-9); (2) no abnormality assessed in MRI nor at the consultive examination
8 (id. at 9-11); and (3) activities of daily living (id. at 11-14). Defendant addresses each of
9 these issues and also raises an additional reason the ALJ decision should be affirmed that
10 was unaddressed by Plaintiff—numerous medical opinions that did not find him as
11 limited as he alleged. (ECF 15 at 7-8, 10.) The Court largely follows this organization of
12 the issues.
13 1. Objective Medical Evidence8
14 Plaintiff identifies the following errors in the ALJ’s analysis of the objective
15 medical evidence: (1) relying on the lack of intracranial abnormality in brain imaging; (2)
16 relying on treatment reports for normal findings without addressing other portions
17 showing only minimal improvement; and (3) cherry picking portions of the consultive
18 examination report. (ECF 14-1 at 9-11.) Defendant counters that the ALJ did not cherry
19 pick the medical evidence relied on. (ECF 15 at 8.) Rather, the ALJ appropriately
20 assessed mild-to-moderate limitations from depression, anxiety, sleep disturbance, and
21 cognitive deficits and identified normal findings indicating Plaintiff was capable of the
22 range of mental functioning assessed in the RFC. (ECF 15 at 6-7, 8 (citing AR 24-29
23 (ALJ decision) and AR 357, 381, 399, 493-95.)
24
25
8 Plaintiff’s second issue is “No abnormality assessed in MRI nor at the consultive
26
examination.” However, given Defendant raises the objective medical evidence as a
27 reason the ALJ properly relied on for discounting Plaintiff’s testimony, the Court
addresses both parties’ arguments regarding the objective medical evidence in this
28
1 The ALJ begins the analysis of the objective medical evidence by identifying
2 Plaintiff’s allegations of disabling limitation in mental functioning. (AR 27.) This is
3 consistent with the ALJ’s summary of his testimony that he was unable to engage in
4 activities “involv[ing] short-term memory and adaptive functioning” and an inability to
5 “leave home without getting lost.” (AR 26.) The ALJ then goes on to identify a list of
6 normal findings in brain imaging, mood, affect, intact long-term memory, and ability to
7 follow verbal commands. (AR 27 (citing AR 415 [Ex. 3F at 24], AR 337 [Ex. 14E at 2],
8 AR 381 [Ex. 2F at 3], AR 493-94 [Ex. 8F at 3-4].9) The ALJ also relies on a consultive
9 examination report provided by Dr. Whitehead indicating Plaintiff has normal thought
10 processes, normal thought content, adequate general memory, the ability to perform
11 simple mathematical calculations, and is in the borderline range in an assessment of
12 nonverbal intelligence. (AR 27 (citing AR 493-95 [Ex. 8F at 3-5]).) The Court’s own
13 review of the records cited by the ALJ indicates that each of them supports the
14 proposition they are cited for and provides substantial evidence in support of the ALJ’s
15 finding that they do not support the level of disabling limitation in mental functioning
16 that Plaintiff alleges. Biestek, 139 S. Ct. at 1154 (Finding substantial evidence “means—
17 and means only—such relevant evidence as a reasonable mind might accept as adequate
18 to support a conclusion.”) (citations omitted).
19 Plaintiff asserts that the ALJ was “simply not qualified to interpret raw medical
20 data in functional terms” as to the finding of no intracranial abnormality. (ECF 14-1 at 9.)
21 However, the ALJ did not interpret Plaintiff’s CT scans. The record cited is a radiology
22 report (“CT report”) with findings as to numerous areas of the brain followed by a
23
24
25 9 The ALJ also discusses these findings, among others, earlier in the decision in
addressing limitations in: understanding, remembering, or applying information (AR 24-
26
25); concentrating, persisting, or maintaining pace (AR 25); and adapting or managing
27 oneself (AR 24). The ALJ addresses Plaintiff’s allegations of difficulty with memory and
being unable to follow written instruction as well as his reports of being unable to
28
1 “Conclusion” section that indicates “no intracranial abnormality.” (AR 415 [Ex. 3F at
2 24].) The ALJ appropriately relied on it for that conclusion. (AR 27 (“no intracranial
3 abnormality was revealed by diagnostic imaging of the brain in November 2017.”).)
4 Plaintiff argues the “ALJ fails to identify that a neurologist (Dr. Kristoffer)
5 interpreted the normal brain scan that it is reassuring and therefore was able to create a
6 plan to help [Plaintiff] with his worsening cognitive limitations.” (ECF 14-1 at 9 (citing
7 AR 359 [Ex. 1F at 10]).) Plaintiff does not explain why the ALJ was required to discuss
8 Dr. Kristoffer’s treatment note interpreting the CT scans or, more importantly, how it
9 would have undermined the ALJ’s reliance on this normal finding in the CT report. The
10 Court assumes Plaintiff is arguing this portion of the treatment note was of significance
11 because Dr. Kristoffer also identified the need to address Plaintiff’s cognitive deficits.
12 However, as explained below, the ALJ did not find Plaintiff did not have cognitive
13 deficits. (AR 26.) Additionally, as to interpretation of the brain scan, Dr. Kristoffer’s
14 treatment note supports rather than undermines the ALJ’s quoted conclusion from the CT
15 report. It adds additional positive findings from the CT report, “virtually no atrophy or
16 white matter changes” which Dr. Kristoffer finds “reassuring.” (AR 359, AR 415 (CT
17 report).) This interpretation reiterates some of the specific findings from the CT report
18 and, like the ALJ, interprets it favorably. (AR 359.)
19 Additionally, the lack of explicit acknowledgement that Plaintiff has cognitive
20 deficits in this specific paragraph of the ALJ’s decision does not undermine the ALJ’s
21 assessment of the objective medical evidence. The ALJ already found “[t]he evidence
22 within the record reflects a history of depressed and anxious mood, sleep disturbance, and
23 cognitive deficits—i.e., forgetfulness as well as difficulty with reading and writing—
24 associated with neurocognitive disorder secondary to childhood petroleum ingestion,
25 borderline intellectual functioning, and major depressive disorder.” (AR 26.) The ALJ did
26 not mischaracterize Plaintiff’s condition or cherry pick this CT report. The ALJ cited it as
27 a normal finding, along with numerous other normal findings, to support the conclusion
28 that Plaintiff’s allegations of disabling limitations in mental functioning were not
1 consistent with this objective medical evidence. (AR 27.) The ALJ did not indicate
2 Plaintiff had no deficits because of this normal finding, nor was that necessary. Rather,
3 the ALJ indicates his mental functioning is not as severe as alleged because of this and
4 other normal finding in the objective medical evidence. (AR 24-25, 27.)
5 As to the treatment reports the ALJ cited for normal mood and affect, intact long-
6 term memory, and Plaintiff’s ability to follow verbal command’s appropriately, Plaintiff
7 seems to argue that the ALJ should not have relied on these findings because the
8 treatment notes also indicated Plaintiff had only minimal improvement in sleep, waking
9 at 3:00 AM, and ongoing depression. (ECF 14-1 at 10.) However, those symptoms do not
10 change that Plaintiff was assessed as having normal mood and affect, his long-term
11 memory was intact, and that he followed commands appropriately. (AR 337 [Ex. 14E at
12 2], AR 381 [Ex 2F at 3].) If anything, that Plaintiff was suffering from insomnia and
13 depression, but still demonstrated normal mood and affect, intact long-term memory, and
14 the ability to follow verbal commands, might support rather than undermine the ALJ’s
15 findings because the findings are still normal despite those remaining issues. Again, the
16 ALJ did not conclude that these findings meant Plaintiff did not suffer from insomnia,
17 depression, anxiety, and cognitive deficits. (AR 26.) The ALJ simply found Plaintiff’s
18 allegations of disabling limitations in mental functioning were not consistent with these
19 normal findings in his treatment reports. The lack of support in medical evaluations for a
20 plaintiff’s complaint undermines those complaints. See Morgan, 169 F.3d at 600
21 (Approving ALJ’s reliance on inconsistency between a plaintiff’s complaints and
22 physicians’ reports).
23 The Court is also not persuaded that the ALJ erred in relying on certain findings
24 from Dr. Whitehead’s evaluation without discussing the findings cited by Plaintiff.
25 Plaintiff argues the ALJ cherry picked the positive findings supportive of her assessment.
26 (ECF 14-1 at 10.) Plaintiff points to the examination indicating anxious mood with a flat
27 affect showing few signs of emotional expression, Plaintiff’s inability to count down
28 from ten to one, and the evaluator’s reliance on mathematical calculations instead of
1 serial threes or sevens. (Id. at 10.) Plaintiff also asserts the assessment of adequate
2 general memory conflicted with the memory for designs test where Plaintiff was at the
3 borderline intellect level. (Id. at 10.)
4 Again, the Court is not persuaded that the ALJ was required to explicitly discuss
5 every finding in the evaluation in order to rely on it for the propositions that Plaintiff was
6 “fully alert and oriented with normal thought processes, normal thought content, and
7 adequate general memory during his psychological consultive examination,” that the
8 “examination report documents the claimant’s ability to perform mathematical
9 calculations,” and shows Plaintiff scored in the borderline range on a standardized test of
10 nonverbal intelligence. (AR 27.) The ALJ appropriately relied on findings from a
11 psychologist’s report. (AR 28.)
12 Additionally, to address other points raised by Plaintiff further, the Court is not
13 persuaded the ALJ erred in not specifically discussing Plaintiff’s claimed inability to
14 count down from ten. Dr. Whitehead’s report indicates “[h]e reports that he was not able
15 to perform a countdown from ten to one.” (AR 494 [Ex. 8F at 4].) And then states,
16 “[h]owever, I did not have much confidence that the claimant was putting forth much
17 effort.” (AR 494.10) While the Court need not speculate, because the ALJ was not
18 required to discuss every detail of the report to rely on it, it is possible the ALJ did not
19 discuss that information because the report itself indicates it might be an unreliable
20 finding.
21 The Court is also not persuaded the ALJ erred in relying on the report because
22 serial threes and sevens were not part of the exam. (ECF 14-1 at 10.) Although serial
23 threes or sevens might be commonly used for mental status exams, as asserted by
24
25
10 In the assessment portion of the report, it indicates “his scores are viewed with a lower
26
level of confidence than in some cases, due to what seemed to be less than full effort such
27 as giving up without trying or just stating that the testing tasks could not be performed,
possibly resulting in lower scores than the claimant is truly capable of.” (AR 495 [Ex. 8F
28
1 Plaintiff, he fails to cite the Court to any authority that would allow this Court to
2 substitute its judgment for that of a psychologist as to what tests should be used. Nor can
3 the Court find the ALJ erred in relying on the report because the psychologist
4 administering the exam decided not to use serial threes or sevens. Additionally, although
5 Plaintiff argues there is a contradiction in the psychologist’s assessment of adequate
6 general memory and the borderline intellect level on the Memory for Designs Test
7 (MFD), (ECF 14-1 at 10 (citing AR 493 and 495), the report itself addresses this test and
8 Plaintiff’s lack of memory issues. (AR 495). It states, “[h]e performed in the borderline
9 range on the TONI-4 today, with MFD scores consistent with that. Thus, there is no
10 indication of memory problems, since his memory and intellectual abilities are
11 borderline, and this is likely a life-long level of function.” (AR 495.) The ALJ did not err
12 in relying on Dr. Whitehead’s report for these findings.
13 Collectively, the ALJ did not err in her reliance on the objective medical evidence
14 cited nor can the Court find the ALJ cherry picked the medical evidence cited to the
15 exclusion of contradictory medical evidence.
16 2. Treatment
17 Plaintiff asserts that the ALJ’s finding that Plaintiff’s depression, anxiety, and
18 sleep disturbance decreased in severity with medication and that his cognitive deficits
19 improved and stabilized with management of these conditions is not a clear and
20 convincing reason. (ECF 14-1 at 6-7.) In support of this argument, Plaintiff discusses
21 each exhibit cited by the ALJ. As detailed below, Plaintiff argues the exhibits do not
22 support the ALJ’s finding because other portions of each treatment record disclose that
23 the treatment was only partially effective or the ALJ’s analysis of them lacked important
24
25
11 The website identified in Plaintiff’s brief is an abstract of an article reporting on a study
26
of the benefits of standardizing the use of these tests. (ECF 14-1 at 10 n.2.) It also notes
27 the lack of uniform administration has led some to conclude they are not useful. There is
nothing that would indicate these tests are required or whether they are better or worse
28
1 information. (ECF 14-1 at 6-7 (discussing AR 336 [Ex. 14E at 1], AR 359 [Ex. 1F at 10],
2 AR 380-81 [Ex. 2F at 2-3], AR 427 [Ex. 3F at 36], AR 442 [Ex. 5F at 4]).)
3 Defendant, relying primarily on the same records Plaintiff addressed, argues the
4 ALJ properly relied on Plaintiff’s longitudinal treatment records to conclude treatment
5 was effective in managing the severity of Plaintiff’s symptoms. (ECF 15 at 7.) Defendant
6 notes, relying on AR 336, 359, and 381, that Plaintiff began medication in December
7 2017, just a month before his alleged onset date, and almost immediately reported some
8 improvement. (ECF 15 at 7.) Defendant argues the ALJ was not finding Plaintiff’s
9 impairments were resolved by treatment, as Plaintiff suggests. (ECF 15 at 8-9
10 (Explaining that “the ALJ nowhere found medication cured Plaintiff’s mental
11 impairments or otherwise rendered him symptom free.”).) Defendant then points out that
12 even with medication, the ALJ found “Plaintiff’s neurocognitive disorder, borderline
13 intellectual functioning, and major depressive disorder continued to be severe
14 impairments that rendered him unable to perform more” than the RFC assessed by the
15 ALJ. (ECF 15 at 9 (citing AR 24, 26).) As discussed further below, Defendant does not
16 specifically address Plaintiff’s argument regarding AR 442 or AR 487, the June 14, 2018
17 treatment notes that address Plaintiff’s medication change.
18 Plaintiff argues AR 336, part of a treatment note relied on by the ALJ, indicates
19 that medication helps with his anxiety, but also indicates he still has anxiety and it only
20 partially helps. (ECF 14-1 at 7 (discussing AR 336 [Ex. 14E at 1].) Plaintiff asserts that
21 the ALJ presented the anxiety as completely resolved and this is incorrect given the note
22 indicates medication only partially helps. (ECF 14-1 at 7.) As to two other treatment
23 notes the ALJ cited, Plaintiff acknowledges that they indicate Plaintiff’s sleep has
24 improved with medication. (ECF 14-1 at 8 (discussing AR 380-81 [Ex. 2F at 2-3] and AR
25 427 [Ex. 3F at 36]).) However, he argues, as to AR 380-81 that “[c]onveniently missing
26 from the ALJ’s assessment of that treatment note is that although [Plaintiff] stated that
27 the medication has improved his sleeping, it continues to be poor.” (ECF 14-1 at 8.) And,
28 as to AR 427, Plaintiff argues the ALJ relied on the subjective portion of the statement
1 that indicated “its helping.” (ECF 14-1 at 8.) Plaintiff also argues AR 359, another
2 portion of a treatment note relied on by the ALJ, did not say that the medication would
3 improve Plaintiff’s symptoms to a normal level or that the severity was managed. (ECF
4 14-1 at 7-8 (discussing AR 359 [Ex. 1F]).) Plaintiff points to the portion of the note that
5 says Plaintiff’s “depression and anxiety may result in worsening cognitive deficits due to
6 impairment in attention and concentration.” (ECF 14-1 at 7-8 (citing AR 359).)
7 The Court agrees that the ALJ did not find Plaintiff’s symptoms resolved based on
8 these or any other treatment records. In discounting Plaintiff’s statements regarding the
9 intensity, persistence, and limiting effects of his symptoms, the ALJ found Plaintiff’s
10 “treatment . . . successful in managing the severity of the claimant’s disabling
11 conditions.” (AR 27 (emphasis added).) Then, the ALJ states, [s][pecifically, treatment
12 records reveal that [Plaintiff’s] depression, anxiety, and sleep disturbance decreased in
13 severity with the use of medication—sedatives and antidepressants—which were first
14 prescribed on December 28, 2017.” (AR 27 (citing AR 336-37 [Ex. 14E at 1-2], AR 380-
15 81 [Ex. 2F at 2-3], AR 427 [Ex. 3F at 36]) (emphasis added).)
16 In this respect, these records are not “conveniently missing” important information
17 related to the medication only helping partially or that sleep is still poor despite helping.
18 As to AR 336, 380-81, and 427, the indications in the treatment notes that Plaintiff still
19 experienced symptoms or that the medication only partially resolved them does not, in
20 isolation, undermine the ALJ’s finding that medication managed the severity of his
21 symptoms.
22 As to AR 359, the language Plaintiff quotes—Plaintiff’s “overlying depression and
23 anxiety may result in worsening cognitive deficits due to impairment in attention and
24 concentration”—also does not undermine the ALJ’s finding. (ECF 14-1 at 7-8 (citing AR
25 359 [Ex. 1F at 10]).) Not only is this a forward-looking statement explaining why the
26 physician plans to “address his mood symptoms and insomnia to uncover if any true
27 progressive deficits exist,” but it also suggests that decreasing the severity of symptoms is
28 anticipated with medication. (AR 359.) This December 28, 2017 visit appears to be
1 Plaintiff’s first with Dr. Kristoffer. (Id. ) While it does not indicate improvement, it
2 states his mood symptoms and insomnia are being addressed, conveys the expectation
3 that these symptoms will improve with medication, and identifies this as the point when
4 Plaintiff started receiving medication to treat depression and anxiety. (AR 359 (“Will
5 proceed by treating depression and anxiety. Start citalopram 10 mg po qd x 14 days, the
6 increase to 20mg po qd until next visit . . . Start melatonin 5mg po qhs for sleep”).)13
7 Although not a record indicating symptoms are already managed or decreasing with
8 treatment, the ALJ did not err in citing it, along with other records, to support these
9 findings.
10 Plaintiff’s argument as to AR 442 is different. Plaintiff argues that it does not
11 support the ALJ’s finding because it actually indicates Plaintiff had to stop taking one
12 medication because of a suboptimal response to it and start another. (ECF 14-1 at 8
13 (discussing AR 442 [Ex. 5F at 4]) and citing AR 487 [Ex. 6F at 31]).) Plaintiff also
14 argues it should not be relied on because it was incomplete and not signed. (ECF 14-1 at
15 8 (citing AR 441-43).) Overall, Plaintiff argues the ALJ ignored or misstated important
16 evidence in these treatment notes that did not support the ALJ’s RFC instead of
17 considering the record as a whole. (ECF 14-1 at 9 (citing Gallant v. Heckler, 753 F.2d
18 1450, 1456 (9th Cir. 1984)).)
19 This particular treatment note was not explicitly addressed by Defendant. It is not
20 clear if the note is incomplete or a version of it that lacks information provided in a more
21 complete duplicate treatment note for the same visit. (AR 442 [Ex. 5F at 4] (cited by the
22 ALJ), AR 487 [Ex. 6F at 31] (cited by Plaintiff).) Regardless, it does not indicate that
23 Plaintiff has been helped by, seen a decrease in the severity of symptoms, or otherwise
24
25
12 The treatment note indicates Plaintiff was referred for “evaluation and management of
26
cognitive changes” (AR 352) and later in the same treatment record indicates “this patient
27 was new to me and my clinic.” (AR 368.)
13 A later treatment record confirms this assessment. (AR 487 (“I believe his [cognitive
28
1 suggest he is benefiting from taking medication with the exception of simply indicating
2 he is taking medication. (AR 442.) However, it indicates that he is switching from one
3 medication to another and identifies a new medication added for sleep. (AR 442.) A
4 different record cited by Plaintiff from the same doctor covering the same visit explains
5 the change. (AR 487.) It indicates that “[u]nfortunately he has had a suboptimal response
6 to citalopram even at 40 mg po qd. It is reasonable to try another SSRI in attempt to
7 obtain a more robust response.” (AR 487.) The ALJ does not specifically address the
8 medication change disclosed in the record the ALJ cited (AR 442) or address the reason
9 for the medication change in a treatment record for the same visit, i.e. the “suboptimal
10 response” to the existing medication that required a change to “obtain a more robust
11 response.” (AR 487.)
12 These two records alone do not support the ALJ’s finding that medication was
13 managing the severity of his symptoms. They indicate only that he was taking medication
14 and it was being changed. (AR 442, AR 359 (December 2017 visit where medications
15 were started).) The question then is whether these records undermine the ALJ’s overall
16 finding that medication was decreasing the severity of Plaintiff’s symptoms based on the
17 prior treatment records and one subsequent treatment record also cited by the ALJ.
18 “While ALJs obviously must rely on examples to show why they do not believe that a
19 claimant is credible, the data points they choose must in fact constitute examples of
20 broader development to satisfy the applicable ‘clear and convincing’ standard.” Garrison,
21 759 F.3d at 1018 (emphasis in original). The records must be sufficient that a “reasonable
22 mind might accept them as adequate to support” the finding that the severity of his
23 symptoms decreased from this treatment. See Tommasetti, 533 F.3d at 1038 (“Substantial
24 evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to
25 support a conclusion.”) (quoting Thomas, 278 F.3d at 958).
26 One interpretation might view AR 487’s identification of a suboptimal response to
27 existing medication as casting doubt on the efficacy of all his medications up to that
28 point. Plaintiff’s physician found his medication regimen produced a suboptimal response
1 that required a change could be interpreted as an indicator he was not improving with
2 medication. And as to the subsequent record indicating improvement, it is only minimal,
3 and he still wakes early. (AR 337 [Ex. 14E at 2] (“minimal improvement, sleep still
4 interrupted waking at 3am. Early morning awakenings are consistent with ongoing
5 depression.”) However, it also says sleep initiation has improved. (AR 337 (“Zolpidem
6 helps with sleep initiation.”)
7 However, falling short of “optimal” and changing for a “more robust response”
8 does not necessarily mean the treatment up to that point, or even at that point, was not
9 decreasing the severity of his symptoms. As discussed above, the ALJ did not find
10 Plaintiff’s depression, anxiety, and sleep disturbance symptoms were resolved; only that
11 the severity was decreased to a manageable level. (AR 27.) These treatment records could
12 mean his doctor simply sought a better outcome. This would be consistent with the
13 physician’s explanation that “[i]t is reasonable to try another SSRI in an attempt to obtain
14 a more robust response.” (AR 337 (emphasis added).) And, as noted above, the treatment
15 record following this medication change, also relied on by the ALJ, while indicating only
16 minimal improvement, does indicate improvement and that the added medication helps
17 with sleep initiation. (AR 337.)
18 The Court might find one of these interpretations more compelling, but when
19 evidence is “susceptible to more than one rationale interpretation, one of which supports
20 the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954;
21 Ahearn, 988 F.3d at 1115 (Courts “may not reweigh the evidence or substitute our
22 judgment for that of the ALJ.”). Here, the ALJ relied on a series of treatment notes, in the
23 short period of time Plaintiff had been receiving treatment, and overall the ALJ found
24 they showed improvement to a level that decreased the severity of Plaintiff’s symptoms.
25 There was no error in the ALJ’s conclusion and it is supported by substantial evidence.
26 3. Activities of Daily Living
27 Plaintiff raises a number of issues with the ALJ’s findings regarding Plaintiff’s
28 daily activities. (ECF 14-1 at 11-13.) In addition to disputing some findings and the
1 evidence the ALJ relied on, Plaintiff also argues the ALJ should have addressed other
2 evidence not addressed by the ALJ. (ECF 14-1 at 11-13.) Plaintiff also argues the ALJ
3 was required to establish a nexus between the daily activities identified and full-time
4 work. (ECF 14-1 at 12.) Defendant asserts that the ALJ did not find these daily activities
5 were equivalent to the rigors of full-time work, (ECF 15 at 9), but rather reasonably
6 found the degree of limitation alleged by Plaintiff conflicted with his daily activities
7 based on evidence in the record (ECF 15 at 7).
8 An “ALJ [is] permitted to consider daily living activities in his credibility
9 analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see also Molina v.
10 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) superseded on other grounds by 20 C.F.R.
11 § 404.1502(a). Daily activities “form the basis for an adverse credibility determination”
12 when: (1) the daily activities meet the threshold for transferable work skills or (2) the
13 daily activities contradict the claimant’s other testimony. Orn v. Astrue, 495 F.3d 625,
14 639 (9th Cir. 2007); see also Trevizo, 871 F.3d at 682. As discussed further below, the
15 ALJ relied on the second here; Plaintiff’s daily activities undermined his testimony.
16 Even when a plaintiff’s daily activities might be interpreted more favorably, if the
17 ALJ’s interpretation is rational, it must be upheld. Burch, 400 F.3d at 680-81 (“Although
18 the evidence of [plaintiff’s] daily activities may also admit of an interpretation more
19 favorable to [plaintiff], the ALJ’s interpretation was rational, and we must uphold the
20 ALJ’s decision where the evidence is susceptible to more than one rational
21 interpretation.”). If the ALJ’s credibility finding is supported by substantial evidence in
22 the record, we may not engage in second-guessing. See Thomas, 278 F.3d at 959 (citing
23 Morgan, 169 F.3d at 600)).
24 The ALJ found Plaintiff’s daily activities “reveal[] that the claimant is able to
25 engage in a level of daily activity and interaction that supports the ability to perform
26
27
28
1 simple, routine, and noncomplex tasks that are goal oriented, can be taught with visual
2 demonstration, and do not require a fast production pace,” i.e. the RFC.14
3 Before addressing Plaintiff’s specific arguments, the Court notes that the ALJ
4 addressed Plaintiff’s daily activities multiple times in the decision. (AR 24-25, 27.) The
5 Court’s analysis here focuses primarily on the portion of the decision specifically
6 addressing Plaintiff’s testimony. (AR 27.) However, because Plaintiff raises challenges
7 associated with Plaintiff’s function report, (AR 240-25 [Ex. 4E]), that the ALJ addressed
8 earlier in the decision, and that analysis also supports the ALJ’s findings as to Plaintiff’s
9 testimony, some of the Court’s analysis relies on the earlier discussion of Plaintiff’s daily
10 activities and the function report. In that portion of the decision, the ALJ identifies daily
11 activities that undermined Plaintiff’s claims regarding difficulty with memory, (AR 24),
12 and being unable to maintain concentration to complete tasks, (AR 25). The ALJ also
13 found that he had only mild limitations in interacting with others and adapting and
14 managing oneself. (AR 25.)
15 The ALJ did not err in relying on Dr. Whitehead’s evaluation report as to
16 Plaintiff’s activities at home or taking public transportation. The psychologist’s report,
17 cited by the ALJ, indicates that Plaintiff reported “he can still perform the tasks of
18 picking up and straightening out around the house, taking out the trash, dusting, general
19 cleaning mopping, sweeping, vacuuming, laundry, dishes, and other general household
20 tasks and duties.” (AR 493 [Ex. 8F at 3].) “He also indicates he can cook and prepare
21 simple foods, requires no assistance showering, dressing, bathing, toileting, or other
22
23
14 The Court notes that if this were the entirety of the ALJ’s analysis it would be
24
insufficient because saying only that daily activities are not consistent with the RFC is
25 insufficient. Schultz v. Colvin, 32 F. Supp. 3d 1047, 1059 (N.D. Cal. 2014) (citing Taylor
v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011)). However, as noted
26
above, the ALJ had already explained how Plaintiff’s reports were undermined by his
27 daily activities in the earlier portion of the decision. (AR 24-25.) And, as discussed in
addressing Plaintiff’s challenges, the ALJ goes on to identify daily activities that conflict
28
1 person hygiene activities.” (AR 493.) He indicates “he is able to drive and take public
2 transportation.” (AR 493.) As to the activities other than driving, addressed separately
3 below, Plaintiff argues these activities do not meet the threshold for a workplace and that
4 evidence a claimant can participate in basic human function is not determinative of
5 disability. (ECF 14-1 at 13 (citing Orn, 495 F.3d at 639 and Magallanes v. Bowen, 881
6 F.2d 747, 756 (9th Cir. 1989)).) Plaintiff also argues these activities should not have been
7 relied on because he had some difficulty with them and could only do them on his own
8 schedule. (ECF 14-1 at 11, 13.) Plaintiff also asserts the ALJ should have instead relied
9 on his inability to track medical appointments, manage his medication, pay bills, or use a
10 remote. (ECF 14-1 at 12-13.)
11 Here, as Defendant points out, the ALJ did not find these activities were
12 transferrable to the workplace. (ECF 15 at 9.) Rather, the ALJ found they undermined the
13 degree of limitation Plaintiff alleged. (ECF 15 at 9 (citing AR 24-25, 27).) This is
14 apparent from the ALJ’s discussion of them in finding Plaintiff’s reports of memory
15 difficulties and being unable to concentrate to complete tasks were undermined by his
16 reports of being able to engage in these activities. (AR 24-25.) It is also evident this was
17 the ALJ’s reason for relying on them because most of these activities, i.e. maintaining
18 personal hygiene and preparing meals, were listed in the summary of his testimony as
19 things he could not do because of his claimed limitations in short-term memory and
20 adaptive functioning. (AR 26.) These activities conflicted with his testimony as to the
21 severity of his symptoms, and the ALJ was permitted to rely on them to discount his
22 testimony. Nor is the Court persuaded the ALJ erred because Plaintiff could only do these
23 activities on his own schedule. As noted above, they were not relied on as transferrable to
24 a work setting, but as undermining his testimony. Additionally, even where daily
25 activities suggest some difficulty functioning, “they may be grounds for discrediting the
26 claimant’s testimony to the extent that they contradict a claim of totally debilitating
27 impairment.” Molina, 674 F.3d at 1110.
28
1 Plaintiff argues the ALJ’s analysis is missing discussion of other daily activities
2 (tracking appointments, managing medication, paying bills, and using a remote) arguing
3 these activities have more application in a work setting that those relied on by the ALJ,
4 and then points to Plaintiff’s own function report as to his abilities. (ECF 14-1 at 13
5 (citing AR 353 (treatment note), AR 243-44 (Plaintiff’s function report)).) The Court
6 recognizes that the ALJ may not rely on evidence of certain daily activities a claimant
7 can do and ignore other evidence to the contrary. See Diedrich v. Berryhill, 874 F.3d 634,
8 642-43 (9th Cir. 2017) (citing Gallant, 753 F.2d at 1456). However, here, the primary
9 evidence Plaintiff points to is Plaintiff’s own function report that the ALJ had already
10 discounted in the decision. The ALJ did not ignore this evidence. The ALJ found the
11 daily activities discussed above along with his ability to perform mathematical
12 calculations, carry out test evaluation instructions without major difficulty, complete a
13 standardized test of nonverbal intelligence and score in the borderline range, and
14 demonstrate normal thought processes and the ability to successfully perform mental
15 calculations, undermined his claims in the function report. (AR 24-25.) It is not surprising
16 the ALJ did not address the function report again given the earlier discounting of it. And,
17 as to the additional daily activities the ALJ did not discuss, they do not contradict the
18 ALJ’s findings. The ALJ’s analysis might have benefited from a discussion of the
19 activities, but they are not contrary to the daily activities the ALJ relied on to discount
20 Plaintiff’s testimony.
21 Plaintiff also challenges the ALJ’s finding that Plaintiff could travel independently
22 to medical appointments. (ECF 14-1 at 12 (citing AR 27).) Plaintiff argues first that this
23 is not a transferrable work activity, but also argues the evidence cited is insufficient to
24 support the finding and points to three different appointments where Plaintiff was
25 accompanied by his spouse. (Id. (citing AR 492, 411, 352).) Plaintiff also argues there is
26 a significant difference between being able to travel independently to get to appointments
27 and being accompanied to them, but not having the accompanying person come into the
28 room for treatment. (Id.)
1 The ALJ found Plaintiff “is able to travel independently in medical appointments”
2 and cited three records. (AR 27 (citing AR 336 [Ex. 14E at 1], AR 380 [Ex. 2F at 2], and
3 AR 397 [Ex. 3F at 6]).) Each record is a treatment note indicating either that that Plaintiff
4 “returns to the visit unaccompanied,” (AR 336) or “presents to the appointment
5 unaccompanied” (AR 397, 380). Plaintiff accurately points out that two, AR 380 and 397,
6 are for the same visit on February 28, 2018. The ALJ’s phrasing, “travel independently in
7 medical appointments” might suggest the ALJ is finding Plaintiff was able to handle his
8 appointments himself independently not necessarily travel to them alone. However, the
9 Court can understand how Plaintiff has interpreted it as finding actual travel to get to the
10 appointments given the use of the word travel.
11 Assuming, as Plaintiff does, the ALJ meant Plaintiff could travel to the
12 appointments alone based on these medical records, the ALJ still did not err. Although
13 Plaintiff speculates that he might have been accompanied traveling there and not into the
14 room for his appointment, it would not be unreasonable for the ALJ to conclude he both
15 traveled there independently and went into the room alone based on medical records
16 indicating the claimant was “unaccompanied.” Additionally, that it was only two
17 appointments and Plaintiff points to other appointments where his wife was there, does
18 not negate the ALJ’s finding. The ALJ is not finding he travels to all his appointments
19 independently, she is finding he is “able to travel independently in medical
20 appointments.” (AR 27 (emphasis added).) The ALJ did not err in this finding or relying
21 on it to discount Plaintiff’s testimony.
22 Plaintiff also challenges the ALJ’s reliance on Dr. Whitehead’s report to find
23 Plaintiff could drive. (ECF 14-1 at 11 (citing AR 493 [Ex. 8F at 3].) Plaintiff argues the
24 ALJ should have addressed the function report completed by Plaintiff in which he
25 indicated he did not drive because of a driving incident; an incident he explained more at
26 his hearing. (Id. (citing AR 245 [Ex. 4E at 6] (function report), AR 44-45 (testimony).)
27 Defendant counters that the ALJ did not err in relying on Dr. Whitehead’s report
28
1 regarding Plaintiff’s ability to drive because Plaintiff reported this ability at his June 6,
2 2018 examination. (ECF 15 at 9 (citing AR 493 [Ex. 8F at 3]).)
3 As noted above, Plaintiff’s assertion the ALJ erred by not explicitly addressing
4 Plaintiff’s function report is not persuasive given the ALJ had already addressed it at
5 length. However, Plaintiff accurately points out that one of Plaintiff’s treatment record,
6 AR 408, also notes his inability to drive, and Plaintiff’s testimony regarding a particular
7 incident while driving that stopped him from driving is rather specific.
8 Even assuming the ALJ should have analyzed the conflict between Plaintiff’s
9 claim he could not drive and his reports to Dr. Whitehead that he could more thoroughly,
10 any deficiency in not explicitly addressing it is harmless.15 The extremely limited RFC
11 assessed by the ALJ does not require that he drive. And, the ALJ identifies numerous
12 other daily activities Plaintiff reported engaging in that the ALJ properly relied on to
13 discount his testimony. (AR 26.) As discussed above, the ALJ identifies his ability to
14 independently shower, dress, bathe and take care of personal hygiene activities, prepare
15 simple meals and perform household cleaning chores, such as taking out the trash,
16 dusting, mopping, sweeping, laundry, and washing dishes, and “travel independently in
17 medical appointments” and use public transportation. (AR 27 (citing AR 353 [Ex. 1F at
18 4], AR 493 [Ex. 8F at 3]) .) These findings are from Plaintiff’s reports to Dr. Whitehead
19 and a treatment note cited by the ALJ. (AR 27 (citing AR 493, 353).)
20
21
22
23 15 This particular point, Plaintiff’s ability to drive, is a closer question than all the other
daily activities the ALJ relies on because his claimed inability to drive is supported by
24
evidence other than his own claims to the agency through his function report and
25 testimony. (AR 408 (medical note cited by Plaintiff).) The Court is not finding the ALJ
erred in relying on Dr. Whitehead’s report. It clearly indicates that he could drive and the
26
ALJ is permitted to rely on evidence in the record, particularly a psychologist’s
27 evaluation. (AR 493.) The close question is whether the ALJ should have discussed his
inability to drive further given there was more evidence he did not drive beyond his
28
1 4. Identification of Testimony and Evidence Undermining
2 Plaintiff generally asserts that the ALJ “must specifically identify the testimony
3 she finds not credible and must explain what evidence undermines the testimony.” (ECF
4 14-1 at 6 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)).) Plaintiff
5 does not expand on this argument other than as to the specific issues already discussed
6 above, however, the Court briefly addresses it further.
7 The Court agrees that the ALJ is required “to specifically identify the testimony
8 from a claimant [the ALJ] finds not to be credible and . . . explain what evidence
9 undermines this testimony.” Treichler, 775 F.3d at 1102. ALJs are “not require[d] to
10 perform a line-by-line exegesis of the claimant’s testimony, nor [are] they require[d] . . .
11 to draft dissertations when denying benefits.” Lambert, 980 F.3d at 1277 (citing
12 Treichler, 775 F.3d at 1103).
13 Here, the ALJ’s analysis of Plaintiff’s testimony is sufficient that the Court can
14 determine “the ALJ did not arbitrarily discredit claimant’s testimony.” Tommasetti, 533
15 F.3d at 1039 (ALJ’s finding must be “sufficiently specific to permit the court to conclude
16 that the ALJ did not arbitrarily discredit claimant’s testimony.”); see also Treichler, 775
17 F.3d at 1103 (“Explaining “the ALJ’s analysis need not be extensive” but “must provide
18 some reasoning in order for [the Court] to meaningfully determine whether the ALJ’s
19 conclusions were supported by substantial evidence.”).
20 As noted above, the ALJ’s summary of Plaintiff’s testimony included his
21 testimony that “he experiences depressed and anxious mood, sleep disturbance, short
22 term memory loss and cognitive deficient” that “limit [his] ability to engage in daily
23 activities that involve short-term memory and adaptive functioning such as personal
24 hygiene, preparing meals, managing his medication, traveling, and making plans for
25 himself independently of his spouse.” (AR 26.) The ALJ also notes his testimony that “he
26 is unable to leave his home without getting lost.” (AR 26.) The ALJ sufficiently
27 identified Plaintiff’s testimony.
28
1 The decision proceeds through step one of the credibility analysis, finding
2 Plaintiff’s impairments could cause the symptoms alleged and citing evidence of
3 “depressed and anxious mood, sleep disturbance, and cognitive deficits” as well as
4 “borderline intellectual functioning and major depressive disorder.” (AR 26.) The ALJ
5 then indicates generally that Plaintiff’s statements regarding the intensity persistence, and
6 limiting effects of his symptoms are inconsistent with the record because the record
7 evidence establishes Plaintiff “retains the capacity to perform simple, routine, and
8 noncomplex tasks that are goal oriented, can be taught with visual demonstration, and do
9 not require fast production pace,” i.e. Plaintiff’s RFC.16
10 The ALJ then proceeds to provide reasons to discredit Plaintiff’s testimony
11 regarding the severity of his symptoms, including as detailed above, Plaintiff’s treatment
12 decreasing the severity of his depression, anxiety, and sleep disturbance, the objective
13 medical evidence, and Plaintiff’s daily activities. (AR 27.) Each of these are discussed in
14 detail above in addressing Plaintiff’s specific challenges. For purposes of this analysis,
15 the ALJ has identified the testimony being discredited and the evidence that undermines
16 it sufficiently for the Court “to determine whether the ALJ’s conclusions were supported
17 by substantial evidence.” Treichler, 775 F.3d at 1103 (“Although the ALJ’s analysis need
18
19
16 The phrasing of this statement could also have been problematic without the additional
20
analysis that follows (AR 27) and the analysis that preceded it regarding Plaintiff’s
21 allegations as to his limitations (AR 24-25). The Ninth Circuit has explained that
boilerplate language that discredits “testimony regarding the intensity, persistence, and
22
limiting effects of . . . symptoms to the extent that testimony [is] ‘inconsistent with the
23 above residual functional capacity assessment’” is error and illogical because a
claimant’s testimony must be considered in determining the RFC. Laborin v. Berryhill,
24
867 F.3d. 1151, 1152-54 (9th Cir. 2017) (emphasis added) (quoting boilerplate language
25 from an ALJ decision and describing it as “put[ting] the cart before the horse.”). The
language here is different than the prohibited boilerplate language because the ALJ
26
indicates Plaintiff’s testimony is being rejected for being inconsistent with the record,
27 however, the ALJ also states that the record supports the capabilities equivalent to the
RFC. (AR 27.) Even if it were not different, “[t]he use of this generic language itself is
28
1 not be extensive, the ALJ must provide some reasoning in order for us to meaningfully
2 determine whether the ALJ’s conclusions were supported by substantial evidence.”); see
3 also Molina, 674 F.3d at 1121 (The Court “must uphold [the agency’s decision] if the
4 agency’s path may reasonably be discerned.”).
5 The Court finds the ALJ provided clear and convincing reasons—objective
6 medical evidence, treatment history, and daily activities—supported by substantial
7 evidence for discounting Plaintiff’s symptom testimony.
8 5. Medical Opinions
9 Plaintiff’s Motion for Summary Judgment did not raise any issues with the ALJ’s
10 analysis of or reliance on the medical opinion evidence as to Plaintiff’s symptom
11 testimony or in arriving at Plaintiff’s RFC. However, in Defendant’s Cross Motion and
12 Opposition to Plaintiff’s Motion, Defendant argues the ALJ properly relied on the
13 medical opinion evidence, noting that no physician found that Plaintiff was more
14 restricted than the RFC assessed by the ALJ. (ECF 15 at 8.) Defendant summarizes the
15 opinions of Dr. Whitehead discussed above, and three additional physician opinions, Dr.
16 Chahal, Dr. Dalton, and Dr. Nissinen, with all of them finding Plaintiff retained the
17 ability to perform a restricted range of work consistent with his RFC. (ECF 15 at 8 (citing
18 AR 27-28 (ALJ discussion of the medical opinions); AR 66-67 (Dr. Chahal); AR 77 (Dr.
19 Dalton); AR 432 (portion of Dr. Nissinen’s form completed for Plaintiff’s waiver for
20 exception from U.S. citizenship test); AR 495-96 (Dr. Whitehead).) Defendant argues
21 “Plaintiff’s failure to address the ALJ’s reliance on the medical opinions further warrants
22 affirming the ALJ decision.” (ECF 15 at 10.) Defendant argues the RFC assessed by the
23 ALJ was narrowly tailored to accommodate Plaintiff’s reported limitations and Plaintiff
24 failed to show that the ALJ was required to include further limitations in his RFC. (ECF
25 15 at 10.)
26 The parties in this case followed the briefing schedule set out in the Local Rules
27 that provide for plaintiff’s filing of their merits brief within 35 days of the Administrative
28 Record being filed, defendant’s opposition 35 days later, and plaintiff’s reply 14 days
1 later. CivLR 7.1.e.6.e). Despite Defendant’s argument regarding the medical opinions,
2 Plaintiff did not file a reply addressing this argument.
3 Although the Court need not reach this issue given the Court is affirming the ALJ
4 decision, the Court notes the issue was raised by Defendant in their cross motion for
5 summary judgment and Plaintiff did not address it despite the option to file a brief in
6 response. Additionally, having reviewed the medical opinions, the Court find the ALJ’s
7 RFC was consistent with and supported by the medical opinions.
8 V. Notice of New Authority
9 After the summary judgment briefing was complete, Plaintiff filed a two-page
10 Notice of New Authority with citation to Collins v. Yellen, 141 S. Ct. 1761, 1783-84 (2021).
11 The Notice indicates that Collins applies Seila Law LLC v CFPB, 140 S. Ct. 2183, 2192
12 (2020). (ECF 16.)
13 Plaintiff notes these decisions and an Office of Legal Counsel (OLC) decision “casts
14 significant doubt onto the constitutionality of the appointment of the Commissioner of
15 Social Security.” (ECF 16 at 1 (citing Constitutionality of the Commissioner of Social
16 Security’s Tenure Protection, 45 Op. O.L.C. (July 8, 2021).) Plaintiff indicates that
17 “Andrew Saul held the office of Commissioner of Social Security as the sole person
18 dischargeable only for cause between July 17, 2019 and July 11, 2021” and that Plaintiff
19 “filed this claim on February 8, 2018, participated in a hearing on August 2, 2019, received
20 a decision dated September 6, 2019, and received a denial of request for review dated June
21 4, 2020.” (ECF 16 at 1-2.)
22 Although not explicitly stated, the Court can deduce Plaintiff is arguing that
23 because Andrew Saul’s appointment was unconstitutional, he lacked the authority to
24 issue decisions, like the one issued here, as to eligibility for benefits. The Ninth Circuit
25 addressed this issue in an opinion issued on April 27, 2022. Kaufman v. Kijakazi, 32
26 F.4th 843 (9th Cir. 2022). While the court found the removal provision “violates
27 separation of powers principles,” it also found it severable and that a “[c]laimant . . . must
28 demonstrate that the unconstitutional provision actually caused her harm.” Id. at 849
1 || ‘(Unless a claimant demonstrates actual harm, the unconstitutional provision has no
2 || effect on the claimant’s case.”).
3 Plaintiff has relied only on Andrew Saul being Commissioner at the time decisions
4 || were made regarding her claim for disability. (ECF 16 at 1-2.) There is no basis for
5 || finding actual harm to claimant from the removal provision. When, as here, “[n]Jothing in
6 || the record suggests any link whatsoever between the removal provision and the
7 || claimant’s case,” the removal provision does not impact the validity of the ALJ decision.
8 || Kaufman, 32 F Ath at 850.
9 CONCLUSION
10 Plaintiff's Motion for Summary Judgment is DENIED and Defendant’s Cross
11 || Motion for Summary Judgment is GRANTED. The ALJ’s decision is affirmed. The
12 ||Clerk shall close the case.
13 IT IS SO ORDERED.
14 || Dated: September 12, 2022 p / /
15 on. Bernard G. Skomal
16 United States Magistrate Judge
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ah