“[A]n error is harmless so long as 2 ||there remains substantial evidence supporting the ALJ’s decision and the error ‘does not 3 ||negate the validity of the ALJ’s ultimate conclusion.’” (citation omitted)
How later courts described this case
- “[A]n error is harmless so long as 2 ||there remains substantial evidence supporting the ALJ’s decision and the error ‘does not 3 ||negate the validity of the ALJ’s ultimate conclusion.’” (citation omitted)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DANIEL H., Case No.: 22-cv-1573-DDL
12 Plaintiff,
ORDER ON PLAINTIFF’S MOTION
13 v. FOR JUDICIAL REVIEW
14 KILOLO KIJAKAZI, Acting
[Dkt. No. 14]
Commissioner of Social Security,
15
Defendant.
16
17 On October 13, 2022, Plaintiff Daniel H. (“Plaintiff” or “claimant”) filed a complaint
18 challenging Defendant Kilolo Kijakazi, Acting Commissioner of Social Security’s
19 (“Commissioner”) denial of his application for disability benefits. Dkt. No. 1. Before the
20 Court are Plaintiff’s motion to reverse and remand (“Motion”) and the Commissioner’s
21 opposition thereto (“Opposition”). Dkt. Nos. 14, 16. After carefully considering the
22 parties’ briefing, the certified administrative record (“AR”) and the applicable law, the
23 Court concludes that the Commissioner’s determination is free of legal error and supported
24 by substantial evidence. For the reasons explained further below, the Court AFFIRMS
25 the Commissioner’s decision and DENIES Plaintiff’s Motion.
26 / / /
27 / / /
28 / / /
1 I.
2 BACKGROUND
3 A. Plaintiff’s Application for Disability Benefits
4 Plaintiff is a 57-year-old male who alleges disability beginning on December 12,
5 2019, due to anxiety, bipolar disorder, hypertension, and cholesterol. AR 85-86, 251.1 On
6 September 22, 2020, Plaintiff filed an application for Supplemental Security Income under
7 Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f. Id. at 238-50.
8 On September 25, 2020, Plaintiff also applied for Disability Insurance Benefits under Title
9 II of the Act, 42 U.S.C. §§ 401-433. Id. at 251-54. Plaintiff’s applications were initially
10 denied on December 29, 2020, and again upon reconsideration on April 20, 2021.
11 Id. at 155-62, 169-71.
12 Per Plaintiff’s request, the Administrative Law Judge (“ALJ”) held a telephonic
13 hearing on October 5, 2021. AR 195. On October 26, 2021, the ALJ issued a written
14 decision denying Plaintiff’s claims, and the decision became final when the Appeals
15 Council denied Plaintiff’s request for review on September 14, 2022. Id. at 1-8, 17-36.
16 See 42 U.S.C. § 405(h). This action followed.
17 B. Summary of ALJ’s Findings
18 The ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R.
19 § 404.1520(a)(4).2 AR 23-32. At step one, the ALJ found that Plaintiff had not engaged
20 in substantial gainful activity since the alleged onset of his disability. Id. at 26.
21
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23 1 The Court adopts the parties’ pagination of the AR. All other record citations are to
the page numbers generated by the Court’s CM/ECF system.
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25 2 First, the ALJ must determine whether the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(i). Second, the ALJ must determine whether the
26
claimant suffers from a “severe” impairment within the meaning of the regulations.
27 Id. § 404.1520(a)(4)(ii). Third, if the claimant suffers from a severe impairment, the ALJ
must determine whether that impairment meets or is medically equal to one of the
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1 At step two, the ALJ found Plaintiff had the following severe impairments which
2 significantly limited Plaintiff’s ability to perform basic work activities: depression, bipolar
3 disorder, and anxiety. AR 26. The ALJ also found Plaintiff’s hypertension and
4 hypercholesterolemia were not severe so as to significantly limit Plaintiff’s ability to
5 perform basic work activities. Id.
6 At step three, the ALJ found Plaintiff did not have an impairment or combination of
7 impairments that met or medically equaled the severity of those included in the
8 Commissioner’s Listing of Impairments. AR 26-28. The ALJ determined that Plaintiff
9 had a mild limitation in understanding, remembering, and applying information; a
10 moderate limitation in interacting with others; a moderate limitation in concentrating,
11 persisting, or maintaining pace; and a moderate limitation in adapting and managing
12 oneself. Id. at 27. Because Plaintiff’s mental impairments did not cause at least two
13 “marked” limitations or one “extreme” limitation in these areas, the “paragraph B” criteria
14 of listings 12.04 (depressive, bipolar and related disorders) and 12.06 (anxiety and
15 obsessive-compulsive disorders) were not satisfied. Id.
16 The ALJ further determined that the evidence failed to satisfy the “paragraph C”
17 criteria for these listings because the record did not reflect that Plaintiff “had only marginal
18 adjustment, that is, a minimal capacity to adapt to changes in the claimant’s environment
19 or to demands that are not already part of the claimant’s daily life.” AR 27. Additionally,
20 the ALJ noted “there was insufficient evidence to establish that the claimant’s mental
21 disorder(s) were ‘serious and persistent.’” Id. As the ALJ explained, the evidence
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impairments identified in the regulations’ Listing of Impairments. Id. § 404.1520(a)(4)(iii).
25 Fourth, if the impairment does not meet or equal a listing, the ALJ must determine the
claimant’s residual functional capacity (“RFC”) based on all impairments (including those
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that are not severe) and whether that RFC is sufficient for the claimant to perform his or
27 her past relevant work. Id. § 404.1520(a)(4)(iv). Fifth, the ALJ must determine whether
the claimant can make an adjustment to other work based on his or her RFC.
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1 specifically failed to show that “despite the claimant’s diminished symptoms and signs, the
2 claimant achieved only marginal adjustment,” and it also failed to show “that changes or
3 increased demands have led to exacerbation of the claimant’s symptoms and signs and to
4 deterioration in the claimant’s functioning.” Id.
5 Before proceeding to step four, the ALJ determined Plaintiff had the RFC to perform
6 a full range of work at all exertional levels, subject only to certain nonexertional limitations
7 concerning Plaintiff’s workplace activities and interactions with supervisors, coworkers,
8 and members of the public. See AR 28-30. In so doing, the ALJ found unpersuasive the
9 opinion of Plaintiff’s treating psychiatrist, Belen Davila, M.D., that the severity of
10 Plaintiff’s alleged symptoms and mental functional limitations rendered him unable to
11 work. Id. at 29-30. First, the ALJ considered Plaintiff’s subjective testimony that he
12 suffered from “bipolar disorder, depression, and anxiety,” and that he “stay[ed] in bed and
13 cr[ied] a lot.” Id. at 28. The ALJ also considered that Plaintiff “stated his wife gave him
14 his medications because he forgot to take them but denied medication noncompliance.” Id.
15 The ALJ concluded that although Plaintiff’s “medically determinable impairments could
16 reasonably be expected to cause some of the alleged symptoms,” his statements regarding
17 the limiting effects of his symptoms were “not entirely consistent with the medical
18 evidence and other evidence in the record.” Id. Specifically, “[t]he medical records
19 revealed a history of mental health treatment beginning prior to the alleged disability onset
20 date,” as well as a history of contrasting effects when Plaintiff was compliant or
21 noncompliant with medications. Id. The ALJ also noted Plaintiff’s overall mental status
22 examinations were “normal” except when he was noncompliant with medications. Id.
23 Second, the ALJ considered the prior administrative medical findings of state agency
24 psychological consultants Kim Morris, Psy.D. and Ben G. Kessler, Psy.D., who each
25 determined that Plaintiff had “mild limitations in understanding, remembering, or applying
26 information and moderate limitations interacting with others,
27 concentrating/persisting/maintaining pace, and adapting or managing himself.” AR 29; see
28 generally AR 85-118, 121-154. Dr. Morris and Dr. Kessler opined on initial review and
1 on reconsideration, respectively, that “the claimant could understand, remember, and carry
2 out simple instructions and tasks; respond appropriately to supervisors and coworkers in a
3 task-oriented setting where contact with others was casual and infrequent; could perform
4 work at a normal pace without production quotas; and could not work in a setting which
5 included constant/regular contact with the general public or more than infrequent handling
6 of customer complaints.” AR 29. The ALJ found their assessments to be “persuasive”
7 because they “were based on the objective medical evidence they reviewed in the file” and
8 “were consistent with the evidence from other medical sources.” Id. The ALJ went on to
9 explain that “evidence from other medical sources” referred to Dr. Davila’s “routinely
10 noted normal mental status examinations through [her] treatment history with the
11 claimant.” Id. at 29-30.
12 At step four, the ALJ concluded that Plaintiff was unable to perform any of his past
13 relevant work as a plasterer. AR 30. The vocational expert testified that plasterer work is
14 a medium, skilled occupation that Plaintiff allegedly performed as heavy work. Id.
15 Although Plaintiff’s work as a plasterer qualified as substantial gainful activity, was
16 performed long enough for Plaintiff to achieve average performance, and was performed
17 within the relevant period, the ALJ relied on the vocational expert’s indication that “this
18 job required the performance of duties precluded by the maximum [RFC] adopted herein.”
19 Id. Therefore, the ALJ concluded Plaintiff was unable to perform past relevant work. Id.
20 At step five, the ALJ accepted the vocational expert’s testimony that an individual
21 of Plaintiff’s age, education, work experience, and RFC could perform the requirements of
22 occupations that exist in significant numbers in the national economy. AR 31-32. The
23 ALJ noted that Plaintiff was 53 years old at the time of the decision and had a “limited
24 education.” Id. at 31. Pursuant to the framework set forth in section 204.00 of the Medical-
25 Vocational Guidelines, which applies to claimants who have solely nonexertional
26 limitations, the ALJ heard testimony from the vocational expert regarding the range of jobs
27 available in the national economy that a person of Plaintiff’s age, education, work
28 experience, and RFC could perform. Id.; see 20 C.F.R. Part 404, Subpart P, Appendix 2.
1 Specifically, the vocational expert testified that such available occupations include a
2 cleaner, kitchen helper, and hand packager. AR 31. Given the availability of jobs that
3 Plaintiff could perform, the ALJ concluded that Plaintiff was not disabled and therefore
4 denied the requested benefits. Id. at 32.
5 II.
6 ISSUE PRESENTED
7 The issue is whether substantial evidence supports the ALJ’s finding that Dr.
8 Davila’s opinion was unpersuasive.3
9 III.
10 STANDARD OF REVIEW
11 The Court’s review of the Commissioner’s final decision is “highly deferential.”
12 Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023).4 The Court “will disturb the denial
13 of benefits only if the decision contains legal error or is not supported by substantial
14 evidence.” Id. “Substantial evidence is such relevant evidence that a reasonable mind
15 might accept as adequate to support a conclusion, and must be more than a mere scintilla,
16 but may be less than a preponderance.” Id.
17 This Court must review the entire record and consider adverse as well as supporting
18 evidence. See Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). The Court “may not
19 reweigh the evidence or substitute [its] judgment for that of the ALJ.” Id. Moreover, “[t]he
20 ALJ is responsible for determining credibility, resolving conflicts in medical testimony,
21 and for resolving ambiguities.” Id. If the evidence is susceptible of more than one rational
22 interpretation, the ALJ’s decision must be upheld. See id. at 1115-16. However, the Court
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25 3 Plaintiff frames the issue as being “[w]hether the ALJ properly rejected the opinion
of the treating psychiatrist in lieu of the opinions of reviewing doctors.” Dkt. No. 14 at 4.
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However, this framing is based on an outdated legal standard, as discussed further herein.
27
4 All citations, internal quotation marks, and subsequent history are omitted unless
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1 cannot affirm “on a ground upon which [the ALJ] did not rely.” Garrison v. Colvin, 759
2 F.3d 995, 1010 (9th Cir. 2014).
3 Where the ALJ commits legal error, the Court may affirm the decision if the error is
4 harmless, meaning that “it is inconsequential to the ultimate nondisability determination,
5 or that, despite the legal error, the agency’s path may reasonably be discerned, even if the
6 agency explains its decision with less than ideal clarity.” Brown-Hunter v. Colvin, 806
7 F.3d 487, 492 (9th Cir. 2015).
8 IV.
9 DISCUSSION
10 A. The ALJ’s Decision is Free of Legal Error
11 Plaintiff contends the ALJ “improperly rejected the well supported opinion of
12 Plaintiff’s long time treating specialist, in favor of the opinions of two reviewing doctors,”
13 and “[t]o reject Dr. Davila’s opinion in favor of the opinions of these two reviewing doctors
14 is legal error.” Dkt. No. 14 at 4, 7. The Court disagrees.
15 Until 2017, the “treating physician rule” required the ALJ to give greater weight to
16 the opinion of a claimant’s treating physician than to the opinion of a doctor who does not
17 treat the claimant. See, e.g., Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). However,
18 in 2017, the Social Security Administration abrogated the treating physician rule. See
19 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). For claims filed after March 27,
20 2017—including Plaintiff’s—the ALJ “will not defer or give any specific evidentiary
21 weight, including controlling weight, to any medical opinion(s) . . . , including those from
22 [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). Instead, the ALJ must
23 evaluate the persuasiveness of each opinion in relationship to the record.
24 See 20 C.F.R. § 404.1527(b) (explaining that “[i]n determining whether [a claimant is]
25 disabled, [the Administration] will always consider the medical opinions in [the] case
26 record together with the rest of the relevant evidence [it] receive[s]”). The “most important
27 factors” the ALJ must consider in doing so are “supportability” (i.e., whether the provider
28 supported his or her opinion with citations to objective findings) and “consistency” (i.e.,
1 whether the opinion is consistent with other evidence in the record).
2 20 C.F.R. § 404.1520c(a); see id. § 404.1520c(c)(1) and (2) (defining “supportability” and
3 “consistency”). With these considerations in mind, the Court turns to the ALJ’s evaluation
4 of the opinions and findings in the record.
5 B. The ALJ’s Decision is Supported by Substantial Evidence
6 The ALJ found that “the medical opinions of Dr. Davila [were] unpersuasive
7 because they were not supported by objective evidence, were inconsistent with [her] own
8 treatment records, and failed to specify the basis of [her] speculation as to the anticipated
9 number of days the claimant would miss per month if he returned to work in the future.”
10 AR 30. Substantial evidence supports this finding.
11 First, the ALJ observed that “[a] review of Dr. Davila’s mental health treatment
12 reflected fairly normal mental status examinations throughout the claimant’s treatment
13 history.” AR 30. In assessing Plaintiff’s RFC, the ALJ noted that “[o]verall, the mental
14 status examinations were normal except for the occasional constricted and dysphoric affect
15 when he was noncompliant with Lamictal.” Id. at 29. In support of this determination, the
16 ALJ cited to Dr. Davila’s progress notes dated June 21, 2019; November 12, 2019;
17 February 14, 2020; and July 13, 2021. Id. at 29; see id. at 406, 408, 412, 466. In the mental
18 status section of each of these progress notes, Dr. Davila characterized Plaintiff’s
19 functioning as “normal” in the categories of memory, concentration and attention,
20 behavior, speech, mood, and thought process. See AR 406, 408, 412, 466.
21 The ALJ then compared these progress notes between June 2019 and July 2021,
22 which indicate a pattern of Plaintiff’s “normal” mental status, to Dr. Davila’s August 2021
23 and September 2021 assessments of Plaintiff’s mental functional limitations:
24 On August 2, 2021, Dr. Davila filled out a check box-type form
indicating that the claimant had mostly marked mental functional
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limitations and some moderate mental functional limitations,
26 would be off task 30 to 40% of the workday, and would be absent
four to six days a month. [She] expressed even greater functional
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limitations on September 7, 2021, indicating that the claimant
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1 would be off task 75 to 80% of the workday and be absent seven
to ten days per month.
2
3 AR 29-30. The ALJ further observed that “Dr. Davila did not cite to specific objective
4 findings to support an increase of functional limitations as of September 2021.” Id. at 30.
5 Substantial evidence supports the ALJ’s finding that Dr. Davila’s medical opinions
6 were unpersuasive. First, Dr. Davila’s prior examination notes regarding Plaintiff’s normal
7 mental status—including her notes from a July 13, 2021, examination—are not consistent
8 with her opinions in the August 2021 and September 2021 check box forms that Plaintiff
9 has moderate and marked limitations that would result in him being off task or absent from
10 work a significant portion of the time.
11 Additionally, the ALJ considered each of Dr. Davila’s opinions regarding the
12 proportion of time Plaintiff would be off task or absent from work. The ALJ first
13 considered the August 2021 form, in which Dr. Davila wrote:
14 Patient experiences drastic changes in his mood, noticeable to
those around him. Such episodes last several days up to one
15
week at times and are associated with distractibility, cognitive
16 dysfunction, sleep disturbances, high energy levels, severe
anxiety, psychomotor agitation. Such symptoms impair his
17
ability to relate well with others, complete, tasks, and function in
18 work setting. In addition, patient has a long history of affective
instability, limited distress tolerance, poor impulse control and
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poor structure at home.
20
21 AR 490-91. The ALJ then considered the September 2021 form, in which Dr. Davila
22 wrote:
23 Patient experiences drastic changes in mood. Mood changes are
also associated with sleep disturbances, cognitive dysfunction,
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energy fluctuations, severe anxiety, distractibility. Such
25 episodes last several days up to one week; at times multiple
episodes per month.
26
27 In addition, patient often depends on others to keep his life in
order, often has trouble paying attention to others even when
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1 being spoken directly to, often procrastinates, often has difficulty
remembering appointments and obligations, requiring reminders
2
and redirection; often has trouble waiting his turn and often
3 restless and fidgety.
4
Patient has a long history of emotional dysregulation, limited
5 distress tolerance, poor impulse control.
6
Symptoms mentioned above impair him socially, vocationally
7 and completing [activities of daily living].
8
Id. at 492-95. As the ALJ concluded, Dr. Davila’s notes do not include citations “to
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objective findings to support an increase of functional limitations as of September 2021.”
10
Id. at 30. This evidence supports the ALJ’s conclusion that Dr. Davila’s opinions are
11
unpersuasive.
12
Finally, the ALJ found Dr. Davila’s opinions unpersuasive because she “ignored
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evidence of [Plaintiff’s medication] noncompliance,” and her own progress notes reflected
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“improvement of the claimant’s condition in August of 2020.” AR 30 (citing AR 402).
15
The ALJ summarized evidence of Plaintiff’s noncompliance, as follows:
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When compliant with medications, the claimant was “doing
17 pretty good” and when noncompliant the claimant admitted to
increased exacerbation of mental symptoms, including mood
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lability, crying spells, fluctuations in energy, sleep, and
19 cognition. . . . It was also notable that the claimant reported
gradual mental improvement since increasing the dose of
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Lamictal.
21
Id. at 29 (citing AR 410, 472). The ALJ cited to Dr. Davila’s progress notes, which contain
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the following comments: “[G]radual improvements since increasing dose of Lamictal,”
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(AR 402); “Adequate response with current medication regimen in the context of
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compliance. Admits to noncompliance with Lamictal about 1.5-2 months ago for several
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weeks. Since this, notes exacerbation of symptoms including mood lability, crying spells,
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fluctuation in activity, energy and sleep and cognition,” (AR 410); and “States he is doing
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pretty good, compliant with medications, occasionally misses a dose. . . . States overall he
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1 feels stable,” (AR 472). Accordingly, substantial evidence supports the ALJ’s observation
2 that, while Dr. Davila’s progress notes reflect Plaintiff’s history of noncompliance with
3 medications and the effects associated with Plaintiff’s compliance or noncompliance, her
4 opinion regarding Plaintiff’s functional limitations fails to take this information into
5 consideration.
6 Plaintiff complains the ALJ “never even mentioned Dr. Davila’s opinion in her
7 responses to a California Department of Social Services form (AR 460).” Dkt. No. 14 at
8 4. The California Department of Social Services (“CDSS”) forms, which Dr. Davila
9 completed on July 17, 2020, and on September 29, 2020, contain broad descriptions of the
10 severity and purported causes of Plaintiff’s impairments in the areas of Present Daily
11 Activities, Social Functioning, Task Completion, and Adaptation to Work or Work-like
12 Situations. See AR 460, 464. Plaintiff further relies on Dr. Davila’s comments in the
13 July 17 CDSS form to support his contention that “the ALJ’s rejection on the basis [Dr.
14 Davila] ‘failed to specify the basis for her speculation’ regarding the impact of Plaintiff’s
15 mental impairment on his work capacity is untrue.” Dkt. No. 14 at 6. Plaintiff states that
16 “Dr. Davila specifically hand writes that Plaintiff’s adaptation to work or work-like
17 situations is ‘Severely impaired due to forgetfulness, distractibility, inflexible ways and
18 irritability’ (AR 460).” Id. at 7.
19 The Court disagrees with Plaintiff’s contentions. First, “[w]here a single doctor
20 provides multiple medical opinions, the regulations contemplate that the ALJ will perform
21 just one analysis of that source’s opinions and not articulate how [the ALJ] considered each
22 medical opinion ... from one medical source individually.” Rafael G. v. Kijakazi, No.
23 21cv522-MMA (MSB), 2022 WL 3019935, at *4 (S.D. Cal. July 29, 2022) (citing 20
24 C.F.R. § 404.1520c(b)(1)) (internal quotation marks omitted). Thus, the applicable
25 regulations only require the ALJ to analyze Dr. Davila’s medical opinions collectively in a
26 single analysis. Second, even if the ALJ did err by failing to address Dr. Davila’s
27 comments in the CDSS forms, the error would be harmless because, as previously
28 discussed, substantial evidence in the record supports the ALJ’s ultimate decision. See
1 || Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[A]n error is harmless so long as
2 ||there remains substantial evidence supporting the ALJ’s decision and the error ‘does not
3 ||negate the validity of the ALJ’s ultimate conclusion.’” (citation omitted)), superseded on
4 || other grounds by 20 C.F.R. § 404.1520a.
5 Finally, the ALJ concluded Dr. Davila’s opinion that Plaintiff was unable to work
6 || was “inherently unpersuasive” because “[t]he determination of disability is reserved to the
7 |{Commissioner.” AR 29. “An ALJ need not analyze non-medical opinions on issues
8 ||reserved to the Commissioner because they are ‘inherently neither valuable nor
9 || persuasive.’ (Citation omitted). ‘[T]he opinion that [the plaintiff] 1s unable to work is not
10 medical opinion, but is an opinion about an issue reserved for the Commissioner.’”
11 || Susan F. v. Kijakazi, No. 20-cv-2201-BAS-DEB, 2022 WL 1694460, at *4 (S.D. Cal. May
12 2022) (quoting Martinez v. Astrue, 261 F. App’x. 33, 35 (9th Cir. 2007)); 20 C.F.R. §
13 404.1520b(c)(3)G). Thus, the ALJ properly concluded Dr. Davila’s opinion regarding
14 || Plaintiffs capacity to work was “unpersuasive.” AR 29.
15 For the foregoing reasons, substantial evidence in the record supports the ALJ’s
16 || conclusion that Dr. Davila’s medical and non-medical opinions were unpersuasive.
17 V.
18 CONCLUSION
19 The Court concludes that the ALJ’s decision is free of legal error and is supported
20 substantial evidence. Plaintiff’s Motion for reversal and remand for payment, or
21 alternatively, to remand for further proceedings, is DENIED. The Court hereby
22 || AFFIRMS the final decision of the Commissioner of Social Security. The Clerk of Court
23 ||is respectfully requested to enter judgment accordingly and terminate the case.
24 IT IS SO ORDERED.
25 ||Dated: December 18, 2023
26 Lh, a
27 Hon.DavidD.Leshner ——t—ts—S
28 United States Magistrate Judge
12