Epperson v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DONALD R. E.,1 6:19-cv-01537-BR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

KATHERINE EITENMILLER

MARK A. MANNING

Harder Wells Baron & Manning

474 Willamette Street

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1021

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case.

1 - OPINION AND ORDER

MICHAEL W. PILE

Acting Regional Chief Counsel

FREDERICK D. FRIPPS

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-3892

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Donald R. E. seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which he denied Plaintiff's application

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for DIB on July 14, 2016,

alleging a disability onset date of February 28, 2015. Tr. 188.2

The application was denied initially and on reconsideration. An

Administrative Law Judge (ALJ) held a hearing on August 9, 2018.

Tr. 63-83. Plaintiff was represented at the hearing. Plaintiff

2 Citations to the official transcript of record filed by

the Commissioner on March 13, 2020, are referred to as "Tr."

2 - OPINION AND ORDER

and a vocational expert (VE) testified.

The ALJ issued a decision on October 25, 2018, in which she

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 13-26. Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on

August 5, 2019, when the Appeals Council denied Plaintiff's

request for review. Tr. 1-6. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND

Plaintiff was born on March 12, 1983, and was 35 years old

at the time of the hearing. Tr. 188. Plaintiff graduated from

high school. Tr. 208. Plaintiff has past relevant work

experience as a security guard, tractor-trailer driver, police

officer, stock clerk, janitor, and heavy-equipment operator.

Tr. 24-25.

Plaintiff alleges disability during the relevant period due

to post-traumatic stress disorder (PTSD); panic attacks;

depression; insomnia; back, neck, and shoulder injuries;

migraines; and arthritis. Tr. 85-86.

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 20-23.

3 - OPINION AND ORDER

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden a claimant must demonstrate his

inability “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)).

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing Valentine,

574 F.3d at 690).

4 - OPINION AND ORDER

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 404.1520. Each step is potentially

dispositive.

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.

5 - OPINION AND ORDER

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R.

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments).

If the Commissioner proceeds beyond Step Three, he must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

6 - OPINION AND ORDER

F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work he has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, he must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since his February 28, 2015, alleged

onset date. Tr. 15.

At Step Two the ALJ found Plaintiff has the severe

impairments of “cervical strain with minimal degenerative disc

7 - OPINION AND ORDER

disease,” lumbar degenerative disc disease, “lumbago with

sciatica, right carpal tunnel syndrome status-post release, right

shoulder rotator cuff tear with minor degenerative joint

disease,” anxiety, PTSD, obstructive sleep apnea, and obesity.

Tr. 15. The ALJ found Plaintiff’s impairments of left-knee pain

and hypouricemia are not severe and Plaintiff’s insomnia “is

a symptom of his anxiety and not a distinct impairment.”

Tr. 15-16.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, appendix

1. Tr. 16. The ALJ found Plaintiff has the RFC to perform light

work with the following limitations:

[Plaintiff] can lift and carry 20 pounds

occasionally and 10 pounds frequent [sic]. He can

stand and/or walk for approximately 6 hours and

sit for approximately 6 hours, in an 8-hour

workday, with normal breaks. He cannot climb

ladders, ropes, or scaffolds and can frequently

climb of stairs and ramps. He can frequently

stoop, kneel, and crouch. [Plaintiff] can

occasionally crawl and reach overhead bilaterally.

He can frequently handle and finger with the right

upper extremity. He can have no exposure to

moving mechanical parts and high, unprotected

places [or] hazards and occasional exposure to

extreme cold and vibrations, all as rated by the

DOT. He is limited to understanding, remembering,

and carrying out uninvolved and routine

instructions that require only occasional

predictable variations from standard procedures

(consistent with reasoning level 2). He can

perform isolated work, defined as having no public

contact, occasional direct coworker interaction

and no group tasks (no limitation on incidental

8 - OPINION AND ORDER

coworker contact), and occasional supervisor

contact. He should perform a low stress job,

defined as requiring only occasional changes in

work setting and work duties and no conveyor belt

pace work.

Tr. 18.

At Step Four the ALJ found Plaintiff cannot perform his past

relevant work. Tr. 24.

At Step Five the ALJ found Plaintiff can perform other work

that exists in the national economy. Tr. 26. Accordingly, the

ALJ concluded Plaintiff is not disabled. Tr. 27.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) partially

rejected Plaintiff’s testimony; (2) partially rejected the

opinion of Jan Harrell, Ph.D., examining psychologist;

(3) partially rejected the opinions of Susan Aviotti, L.P.C.,

treating counselor; and (4) gave less than “great weight” to the

Veteran’s Administration (VA) determination that Plaintiff is

disabled.

I. The ALJ did not err when she partially rejected Plaintiff’s

testimony.

Plaintiff alleges the ALJ erred when she partially rejected

Plaintiff’s testimony.

The ALJ engages in a two-step analysis to determine whether

a claimant's testimony regarding subjective pain or symptoms is

credible.

9 - OPINION AND ORDER

“First, the ALJ must determine whether the claimant has

presented objective medical evidence of an underlying impairment

‘which could reasonably be expected to produce the pain or other

symptoms alleged.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th

Cir. 2014)(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36

(9th Cir. 2007)). The claimant need not show his “impairment

could reasonably be expected to cause the severity of the symptom

[he] has alleged; [he] need only show that it could reasonably

have caused some degree of the symptom.” Garrison, 759 F.3d at

1014 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.

1996)). A claimant is not required to produce “objective medical

evidence of the pain or fatigue itself, or the severity thereof.”

Garrison, 759 F.3d at 1014.

If the claimant satisfies the first step of this analysis

and there is not any affirmative evidence of malingering, “the

ALJ can reject the claimant's testimony about the severity of

[his] symptoms only by offering specific, clear and convincing

reasons for doing so.” Garrison, 759 F.3d at 1014-15. See also

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)

(same). General assertions that the claimant's testimony is not

credible are insufficient. Parra v. Astrue, 481 F.3d 742, 750

(9th Cir. 2007). The ALJ must identify “what testimony is not

credible and what evidence undermines the claimant's complaints.”

Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).

10 - OPINION AND ORDER

In his August 14, 2016, Function Report Plaintiff noted he

was unable to work due to back and shoulder injuries; “tennitis”;

and PTSD, which “affects [his] interactions with other people,

[his] ability to focus, and [his ability to] feel safe.”

Tr. 216. Plaintiff stated he has nightmares and insomnia.

Plaintiff noted he often watches television and plays video games

and “rarely” plays sports or goes hunting. Plaintiff also stated

he is able to prepare sandwiches and frozen foods, to do light

house work, and to shop for food and clothing in stores and by

computer. Plaintiff is able to spend time with family,

therapists, and other individuals in group therapy, but he has

“problems getting along with . . . hippies, liberals, democrats,

idiots, [and] criminals.” Tr. 221. Plaintiff stated he can walk

for 20 feet before he has to rest for “a couple minutes” and can

pay attention for five minutes. Tr. 221. Plaintiff noted he

follows written instructions “well”; follows spoken instructions

“okay”; gets along “well” with “authority figures (for example,

police, bosses, landlords, or teachers)”; and has never been

fired from a job “because of problems getting along with other

people.” Tr. 221. Plaintiff handles stress and changes in

routine “poorly.” Tr. 221. Plaintiff reported he is afraid of

“strange people, must sit facing the door to leave, [and]

check[s] for shooters/bombers.” Tr. 222.

Plaintiff testified at the hearing that he quit his last job

11 - OPINION AND ORDER

as one of the security personnel at a casino in February 2015 at

the request of his wife because he was “having a breakdown. [He]

constantly was fighting with everybody. [He] wasn't sleeping.

[He] was falling asleep behind the wheel. [He] had anxiety

attacks going to work. [His wife] just had enough of watching

[him] do that. She very forcefully told [him that he] needed to

stop doing that. [He] was very destructive. Even at work [he]

wasn't really functioning.” Tr. 69. Plaintiff stated he also

had problems at the truck-driving job he had before his security

job. Specifically, Plaintiff had “difficulty with other drivers

on the road and toll workers. . . . They threatened to fire me

several times because I was not very cooperative.” Tr. 69.

Plaintiff explained:

They wanted me to team up with other drivers. I

didn't get along with other drivers. I couldn't

match up with anybody so I couldn't share my

space. I was ineffective on the road[,] stopped a

lot and teaming up with someone wasn't good for me

or that other person.

Tr. 70. Plaintiff testified his primary impediment to working is

that he has “difficulty working around crowds of people. [He]

shut[s] down.” Tr. 70. For example, Plaintiff stated he worked

the graveyard shift when he had his security job.

For the first 2-3 hours, I was usually in the

office. I was out of the way. I would be on the

floor for a few minutes and then I'd be right back

off the floor. If the casino was pretty much

empty, I could actually get out and walk around.

That job was walking around for 30 minutes and

sit[ting] down for [a] half hour. Even with a

12 - OPINION AND ORDER

little bit of interaction, I was just stressed out

all the time. My interactions weren't a very good

environment. . . . I would have to have the

supervisor constantly keeping me on track.

Luckily for me, he was a former police officer and

he had a soft spot for me. So he wasn't

constantly on me. He would guide me. But there

were always parts he would have to fill in for me,

stuff I should have been able to do, stuff that I

was very capable of doing before.

Tr. 71. Plaintiff, however, noted “[w]hen [he] was working as a

farmhand, they gave [him] very basic jobs, things that someone

wouldn't have to think about. [He] would just do it. [He] was

working at simple, simple projects and [he] couldn't come up with

solution of things.” Tr. 71.

Plaintiff testified he goes to the VA for group therapy

“periodically” to get out of the house. Plaintiff stated he

spends “all day every day in the house. [He] do[es not] go out.

It's hard to get out. [His] wife will drag [him] out to go

grocery shopping with her to get [him] out of the house.”

Tr. 73. Plaintiff stated he can shop at Walmart “[i]f [he]

get[s] one object, that one thing [he] need[s] to get, [he] can

go straight in and come back out. [He is] usually okay, but if

[he] ha[s] to spend periods of time, [he] can’t.” Tr. 73.

Plaintiff testified his other “biggest issue” keeping him

from working is focus. “When people talk to [him] for long

periods of time, [he] do[es not] hear a lot of what they're

saying. [He] . . . can't focus on what's going on. [He] ha[s]

flashbacks where [he] go[es] back to some of [his] buddies in

13 - OPINION AND ORDER

Iraq. [He] can't function at all.” Tr. 72. Plaintiff explained

he had flashbacks two or three times a week before he began

attending “PTSD meetings and [became] aware of what’s actually

going on.” Tr. 72. Plaintiff noted his flashbacks were “not

nearly as frequent” at the time of the hearing due to PTSD group

meetings and counseling. Plaintiff stated he has made “dramatic

strides. A couple of years ago, [he] wouldn’t have been able to

walk into the social security office, but now [he] can. It’s a

lot of improvement.” Tr. 73.

Plaintiff testified his usual day consists of helping his

wife “get out to work,” eating cereal, watching television,

“interact[ing] with [his] girls a little bit,” and “try[ing] to

help somebody in the house” if they need something. Tr. 74.

Plaintiff stated he does not get out of the house for social

activities, and he does not participate in any of his children’s

activities. Plaintiff stated he has tried to go to his son’s

football games, but “there are just too many people. People

always want to come up and talk and want to stand by me. If I

can stay back in the distance and stay away from the crowds of

people, I’m okay.” Tr. 68.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

alleged symptoms,” but Plaintiff’s “statements concerning the

intensity, persistence and limiting effects of [his] symptoms are

14 - OPINION AND ORDER

not entirely consistent with the medical evidence and other

evidence in the record.” Tr. 20. Specifically, the ALJ noted

Plaintiff testified he does not participate in any of his

children’s activities. For example, Plaintiff stated he has

tried to go to his son’s football games, but “there are just too

many people.” Tr. 68. In August 2017, however, Plaintiff

reported to Rory Austin, N.P., treating mental-health nurse

practitioner, that he “is usually reclusive in the summers, but

comes out of his shell in the school year with activities for his

kids.” Tr. 796. N.P. Austin recommended Plaintiff return in six

weeks because she believed Plaintiff’s “reclusiveness” might

“resolve when he gets more involved in sports with kids and

school activities.” Tr. 797.

The ALJ also noted Plaintiff testified he spends “all day

every day in the house,” his wife has to “drag” him out to do

grocery shopping, he cannot spend any time in the grocery store,

and he has difficulty with crowds of people. On May 9, 2018,

however, Plaintiff reported in group therapy that he “was

traveling in Las Vegas and saw USO shows and [a] Toby Keith

[concert].” Tr. 851.

In addition, the ALJ pointed out that Plaintiff testified he

left his job as a casino security officer in February 2015

because he was “having a breakdown[,] . . . constantly was

fighting with everybody[,] . . . wasn't sleeping[,] . . . was

15 - OPINION AND ORDER

falling asleep behind the wheel[,] . . . had anxiety attacks

going to work[, and] . . . wasn't really functioning.” Tr. 69.

The ALJ pointed out that the record reflects Plaintiff was not

undergoing mental-health treatment from January 2015 through May

2015, and on May 5, 2015, Plaintiff reported to Amy Bodreau,

M.D., Ph.D., treating psychiatrist, that his “anxiety [was] in

remission [and he was] coping with his father’s illness well.”

Tr. 408. Dr. Bodreau transferred Plaintiff’s care back to his

primary-care physician and “invited [him to return] at any point

in the future if [his] sx worsen.” Tr. 408.

Plaintiff did not report for mental-health treatment again

until November 2015. The ALJ noted on November 12, 2015,

Plaintiff reported to Stacy Johnson, L.P.C., treating counselor,

that he stopped working at the casino “due to disability related

to back issues as well as chronic pain.” Tr. 393. Plaintiff

stated he was “the primary caregiver of his children and [a]

homemaker” and “denied recent [and historic] aggression towards

persons, animals, or property.” Tr. 393. Johnson conducted a

review of Plaintiff’s ability to perform 20 activities of daily

living. Johnson found Plaintiff had mild or “very mild

impairment or problems in functioning” in 14 areas including

family relationships, problem solving, communications, leisure,

social network, coping skills, and “behavioral norms.” Tr. 395.

Plaintiff had moderate impairment in 6 areas: (1) “Managing

16 - OPINION AND ORDER

Time: Follows regular schedule for bedtime, wake-up, meal times,

rarely tardy or absent for work, day programs, appointments,

scheduled activities”; (2) Managing Money: Manages money wisely.

Has an independent source of funds. Controls spending habits”;

(3) “Nutrition: Eats at least two basically nutritious meals

daily”; (4) “Productivity: Independently working, volunteering,

homemaking, or learning skills for financial self support”;

(5) “Care for personal cleanliness, such as bathing, brushing

teeth”: and (6) “Housing maintenance: Maintains stable housing.

Organizes possessions. Cleans. Abides by rules and contributes

to maintenance if living with others.” Tr. 395. Plaintiff

maintained similar scores on each review throughout November and

December 2015 when he stopped attending mental-health treatment.

In addition, on November 24, 2015, Plaintiff reported he took a

trip to Coos Bay for his wife to go to a job interview and “to

visit with family and friends.” Tr. 384. On December 22, 2015,

Plaintiff asked to decrease his number of mental-health

appointments, and his counselor agreed “given [Plaintiff’s]

recent successes with symptom management.” Tr. 373. On May 31,

2016, Plaintiff was discharged from mental-health treatment

because he reported he had achieved all of his goals, and his

treatment provider deemed his treatment complete. Tr. 367. At

that time Plaintiff’s mental-health provider noted Plaintiff had

only “mild impairment or problems in functioning” in all 20

17 - OPINION AND ORDER

activities of daily living. Tr. 368.

The ALJ also pointed out that the record reflects

Plaintiff’s symptoms improved when he consistently underwent

therapy and took medication. For example, on April 13, 2017,

Plaintiff reported to N.P. Austin that “quetiapine works well for

sleep with no side effects” and he did not have any “side effects

from lamotrigine.” Tr. 826. Plaintiff reported he did not “feel

any changes [from lamotrigine], which he likes, but . . . he and

his family notice[d] a lot less blow ups.” Tr. 826. On

October 11, 2017, Plaintiff reported to N.P. Austin that “doxepin

helps [Plaintiff to] sleep well . . . and prazosin helps reduce

nightmares.” Tr. 783. On March 20, 2018, Plaintiff reported to

N.P. Austin that “temazepam works for sleeping 5+ hours[,] . . .

prazosin reduce[d] [his] nightmares well[, and] . . . the

addition of topiramate worked well and [he] report[ed] he is no

longer feeling angry or irritable.” Tr. 699.

The Court concludes on this record that the ALJ did not err

when she partially rejected Plaintiff’s testimony regarding the

intensity, persistence, and limiting effects of his symptoms

because the ALJ provided clear and convincing reasons supported

by substantial evidence in the record for doing so.

II. The ALJ did not err when she partially rejected

Dr. Harrell’s opinion.

Plaintiff asserts the ALJ erred when she partially rejected

the opinion of Dr. Harrell, examining psychologist.

18 - OPINION AND ORDER

An ALJ may reject an examining physician's opinion when it

is inconsistent with the opinions of other treating or examining

physicians if the ALJ makes "findings setting forth specific,

legitimate reasons for doing so that are based on substantial

evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002). When the medical opinion of an examining

physician is uncontroverted, however, the ALJ must give "clear

and convincing reasons" for rejecting it. Thomas, 278 F.3d at

957. See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.

1996).

On May 12, 2018, Dr. Harrell conducted a telephonic

psychological evaluation of Plaintiff. Plaintiff told

Dr. Harrell that he is “afraid to be among other people[,] . . .

isolates himself at his home[, and] . . . does not seek out

company.” Tr. 832. Plaintiff also stated he is “constantly in a

low level alertness and fearfulness,” is “always depressed,” “has

irritable behavior and anger outburst[s] with little or no

provocation,” suffers from anxiety, has difficulty falling

asleep, has flashbacks, has nightmares, has problems with

concentration, and experiences paranoia. Dr. Harrell found

Plaintiff suffers from PTSD that “causes clinically significant

distress and impairment in social and occupational areas of

functioning. . . . Only by being able to seclude himself and

radically eliminate all social and societal contacts has he been

19 - OPINION AND ORDER

able to manage his emotional reactions so that he is not

overwhelmed by stimuli and catalysts which trigger more memories

and emotions than he can contain or control.” Tr. 837-38.

Dr. Harrell also stated Plaintiff “suffers from extreme

nightmares, barely able to get enough sleep to function during

the day,” and his daily activities are “severely limited by the

intense outbursts of anger that he is unable to control.”

Tr. 838. Dr. Harrell concluded she did “not believe that much

improvement in his adjustment or mental status is possible.”

Tr. 838.

The ALJ gave Dr. Harrell’s opinion “little weight” on the

grounds that she did not review Plaintiff’s records before the

evaluation, the evaluation was conducted over the telephone, she

relied solely on Plaintiff’s subjective complaints, and her

findings are not supported by the record. For example, as noted,

on May 9, 2018, which was three days before Dr. Harrell’s

evaluation, Plaintiff reported he “was traveling in Las Vegas and

saw USO shows and [a] Toby Keith [concert].” Tr. 851. The

record also reflects on March 20, 2018, Plaintiff reported

“temazepam works for sleeping 5+ hours[,] . . . prazosin

reduce[d] [his] nightmares well[, and] . . . the addition of

topiramate worked well and . . . he is no longer feeling angry or

irritable.” Tr. 699. Similarly, on May 31, 2016, Plaintiff was

discharged from mental-health treatment because he reported he

20 - OPINION AND ORDER

had achieved all of his goals, and his treatment provider deemed

his treatment completed. Tr. 367. At that time Plaintiff’s

mental-health provider noted Plaintiff had only “mild impairment

or problems in functioning” in all 20 activities of daily living.

Tr. 368. On April 13, 2017, Plaintiff reported “quetiapine works

well for sleep with no side effects” and that he did not have any

“side effects from lamotrigine.” Tr. 826. Plaintiff stated he

did not “feel any changes [from lamotrigine], which he likes, but

. . . he and his family notice[d] a lot less blow ups.” Tr. 826.

On October 11, 2017, Plaintiff reported “doxepin helps [him to]

sleep well . . . and prazosin helps reduce nightmares.” Tr. 783.

In Turner v. Commissioner of Social Security the Ninth

Circuit held an ALJ did not err by partially rejecting the

opinion of a treating physician even though that physician “had

not had any . . . interaction with the claimant” before offering

his opinion and the opinion was “based almost entirely on the

claimant's self-reporting . . . without any independent

analysis.” 613 F.3d 1217, 1223 (9th Cir. 2010).

On this record the Court concludes the ALJ did not err when

she partially rejected Dr. Harrell’s opinion because the ALJ

provided clear and convincing reasons for doing so based on

substantial evidence in the record.

III. The ALJ did not err when she partially rejected the opinions

of Susan Aviotti, L.P.C., treating counselor.

Plaintiff contends the ALJ erred when she partially rejected

21 - OPINION AND ORDER

the opinions of Susan Aviotti, treating counselor.

Medical sources are divided into two categories:

"acceptable" and "not acceptable." 20 C.F.R. § 416.902.

Acceptable medical sources include licensed physicians and

psychologists. 20 C.F.R. § 416.902. Medical sources classified

as "not acceptable" include, but are not limited to, . . .

therapists [and] licensed clinical social workers. SSR 06-03p,

at *2. Factors the ALJ should consider when determining the

weight to give an opinion from those "important" sources include

the length of time the source has known the claimant and the

number of times and frequency that the source has seen the

claimant, the consistency of the source's opinion with other

evidence in the record, the relevance of the source's opinion,

the quality of the source's explanation of his opinion, and the

source's training and expertise. SSR 06-03p, at *4. On the

basis of the particular facts and the above factors, the ALJ may

assign a not-acceptable medical source either greater or lesser

weight than that of an acceptable medical source. SSR 06-03p, at

*5-6. The ALJ, however, must explain the weight assigned to such

sources to the extent that a claimant or subsequent reviewer may

follow the ALJ's reasoning. SSR 06-03p, at *6.

On March 23, 2017, Aviotti provided a letter to the

Department of Veterans Affairs in which she stated Plaintiff has

PTSD. Aviotti reported Plaintiff “is experiencing anxiety, is

22 - OPINION AND ORDER

‘wound tight,’ is depressed, has problems concentrating, has no

energy to take on tasks, has a hard time getting going, and has

intrusive thoughts.” Tr. 624. Plaintiff reported to Aviotti

that he “doesn't sleep much, has nightmares, night sweats, rage,

anger, high irritability, is cynical and suspicious of others,

has a high startle reaction, and is hyper-vigilant.” Tr. 624.

Plaintiff told Aviotti that he

had to quit his security night shift job at the

Casino because he was losing the ability to be

professional and moderate his responses when

dealing with trouble makers. Night work was

slower and had less people in the Casino but he

was overwhelmed with anxiety, sweating, panic

attacks. He would become confused and target in

on the person with menace in mind.

Tr. 624. Plaintiff also reported he is able to do simple tasks

“with a supervisor available,” but he is unable to concentrate

sufficiently to complete complex tasks. Tr. 624. Plaintiff

stated “[a]nything not in place sends him into high alert [and]

. . . he reacts with anxious survival techniques when stressed or

confronted.” Tr. 624. Aviotti stated it was her opinion “that

due to the severity of PTSD he should not be in the work force

because negative consequences would happen [and] . . . [d]ue to

the severity of his PTSD anxiety it is doubtful that he could

function in any employment situation.” Tr. 624.

On April 26, 2018, Aviotti provided a Medical Source

Statement in which she noted she saw Plaintiff weekly in group

therapy. As noted, Aviotti found Plaintiff had PTSD and “can’t

23 - OPINION AND ORDER

deal with people outside or inside his family and withdraws from

their presence, highly anxious, vigilant, angry.” Tr. 628.

Aviotti stated Plaintiff has mild restrictions in his ability to

understand and to remember simple instructions and to interact

appropriately with supervisors; moderate restrictions in his

ability to carry out simple instructions, to make simple work-

related decisions, and to interact appropriately with the public

and coworkers; and marked restrictions in his ability to

understand and to remember complex instructions, to carry out

complex instructions, to make complex work-related decisions, and

to respond appropriately to usual work situations or to changes

in routine work settings. Tr. 630-31. Aviotti did not answer

the question that directed her to “identify the factors (e.g.,

the particular medical signs, laboratory findings, or other

factors described above) to support your assessment.” Tr. 632.

The ALJ gave partial weight to Aviotti’s letter and Medical

Source Statement to the extent that the ALJ “included [in her

evaluation of Plaintiff’s RFC a] limitation to simple tasks with

minimal changes in routine, and significant limitations in social

interaction.” Tr. 21. The ALJ gave “less weight” to that

portion of Aviotti’s opinions in which she indicated Plaintiff

has “extreme functional limitations” because those limitations

are not supported by “her own observations and mental status

findings” or the record. For example, the ALJ noted Aviotti

24 - OPINION AND ORDER

prepared a Veteran Assessment report in August 2016 that

reflected largely normal mental-status findings, including

Plaintiff’s ability to maintain concentration throughout the 60-

minute interview. In addition, the record does not reflect

Plaintiff had any problems interacting with treatment providers,

and there is not any evidence from his previous employer that he

had psychological difficulties with his work situation. As

noted, Plaintiff was not fired from his job as casino security

personnel. Moreover, although Aviotti states Plaintiff “can’t

deal with people outside or inside his family and withdraws from

their presence, highly anxious, vigilant, angry,” the record

reflects Plaintiff improved with medication and therapy and he

reported visiting with friends and family, traveling to Las

Vegas, and going to USO concerts and a Toby Keith concert.

On this record the Court concludes the ALJ did not err when

she partially rejected the opinions of Aviotti because the ALJ

provided specific and legitimate reasons for doing so based on

substantial evidence in the record.

IV. The ALJ did not err when she gave less than “great weight”

to the VA determination that Plaintiff is disabled.

Plaintiff contends the ALJ erred when she gave less than

“great weight” to the VA determination that Plaintiff is

disabled.

A Social Security disability determination is similar to a

VA disability determination in that both are made by federal

25 - OPINION AND ORDER

agencies that provide benefits to those who cannot work due to

disability. McCartey v. Massinari, 298 F.3d 1072, 1076 (9th Cir.

2002). “[A]lthough a VA rating of disability does not

necessarily compel the SSA to reach an identical result, 20

C.F.R. § 404.1504, the ALJ must consider the VA's finding in

reaching his decision.” Id. “[A]n ALJ must ordinarily give

great weight to a VA determination of disability.” McCartey, 298

F.2d at 1076. “Because the VA and SSA criteria for determining

disability are not identical, however, the ALJ may give less

weight to a VA disability rating if he gives persuasive,

specific, valid reasons for doing so that are supported by the

record.” Id. (citing Chambliss v. Massanari, 269 F.3d 520, 522

(5th Cir. 2001)(ALJ need not give great weight to a VA rating if

he “adequately explain[s] the valid reasons for not doing so”)).

At some point the VA found Plaintiff to be 60% disabled due

to PTSD (50%) and “lumbosacral or cervical strain and tinnitus

(together 10%).” Tr. 654. In June 2018 the VA increased

Plaintiff’s disability rating for PTSD to 70% and found Plaintiff

to have a total disability rating of 100%.

The ALJ gave the VE rating “little weight” on the ground

that it is not supported by the record. As noted, the record

reflects Plaintiff’s symptoms improved with therapy and

medication; Plaintiff was able to travel and to attend concerts;

and Plaintiff was able to understand and to remember simple

26 - OPINION AND ORDER

instructions, to perform simple tasks with minimal changes in

routine, and to interact appropriately with supervisors. In

addition, Plaintiff engaged in group and individual therapy

despite his claim that he was unable to leave his home, and his

mental-health therapy records do not indicate any of the symptoms

or limitations that were described in the V.A. findings.

On this record the Court concludes the ALJ did not err when

she did not give “great weight” to the VA’s disability

determination because the ALJ provided “persuasive, specific,

[and] valid reasons” to support her decision.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 28th day of September, 2020.

/s Anna J. Brown

ANNA J. BROWN

United States Senior District Judge

27 - OPINION AND ORDER