Opinion

Tyi Rai Francis v. Martin O'Malley

Court
District Court, C.D. California
Filed
Aug 23, 2024
Cited by
0 cases
Authority
More cited than 31.2%

“[W]e leave it to the ALJ to determine 4 credibility, resolve conflicts in the testimony, and resolve 5 ambiguities in the record.”

How later courts described this case

  • “[W]e leave it to the ALJ to determine 4 credibility, resolve conflicts in the testimony, and resolve 5 ambiguities in the record.”
  • where the opinions of non-examining 7 physicians do not contradict “all other evidence in the record,” 8 such opinions may furnish substantial evidence
  • daily activities may be used to discount 27 subjective complaints where the daily activities “contradict [her] 28 other testimony” or “meet the threshold for transferrable work 1 skills”
  • “The revised social security regulations are clearly irreconcilable with our 24 caselaw according special deference to the opinions of treating and examining physicians on account of their relationship with the 25 claimant.”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

10

11 TYI RAI F.,1 Case No. CV 23-07594-AS

12 Plaintiff,

MEMORANDUM OPINION

13 v.

14 MARTIN O’MALLEY, Commissioner

of Social Security,

15

Defendant.

16

17

18

19 For the reasons discussed below, IT IS HEREBY ORDERED that,

20 pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s

21 decision is affirmed.

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24

25

26

1 Plaintiff’s name is partly redacted in accordance with

27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation

of the Committee on Court Administration and Case Management of

28 the Judicial Conference of the United States.

1 PROCEEDINGS

2

3 On September 12, 2023, Plaintiff filed a Complaint seeking

4 review of the Commissioner’s denial of Plaintiff’s application for

5 supplemental security income under Title XVI of the Social Security

6 Act. (Dkt. No. 1). On November 13, 2023, Defendant filed an Answer

7 consisting of the Administrative Record (“AR”). (Dkt. No. 11). The

8 parties subsequently filed opposing briefs setting forth their

9 respective positions regarding Plaintiff’s claims (“Pl. Brief” and

10 “Def. Brief”), followed by a reply brief from Plaintiff (“Pl.

11 Reply”). (Dkt Nos. 17, 20-21). The parties have consented to

12 proceed before a United States Magistrate Judge. (Dkt. Nos. 10,

13 14).

14

15 The Court has taken this matter under submission without oral

16 argument. See C.D. Cal. C. R. 7-15.

17

18 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

19

20 On May 18, 2018, Plaintiff protectively filed an application

21 for supplemental security income alleging a disability onset date

22 of February 9, 2013. (AR 10, 240-70). Plaintiff alleged disability

23 based on, inter alia, diabetes, neuropathy, gastroparesis,

24 rheumatoid arthritis, irritable bowel syndrome, bipolar disorder,

25 post traumatic stress disorder (“PTSD”), agoraphobia, attention

26 deficit hyperactivity disorder (“ADHD”), schizoaffective disorder,

27 cirrhosis of the liver, anxiety, and addiction. (AR 293, 303, 310,

28 341-52). Plaintiff had previously applied for and been denied

1 disability benefits through March 16, 2017, by Administrative Law

2 Judge (“ALJ”) Steven A. De Monbreum. See AR 72-84 (Judge De

3 Monbreum’s decision); see also AR 98, 306 (summaries of prior

4 claims). Plaintiff subsequently amended her alleged disability

5 onset date for her current claim to May 1, 2018. (AR 33-34).

6

7 The Administration denied Plaintiff’s current claim initially

8 on August 24, 2018, and upon reconsideration on May 2, 2019. (AR

9 97-140). On August 25, 2022, ALJ Laura Fernandez heard testimony

10 from Plaintiff (who was represented by counsel) and vocational

11 expert (“VE”) Lawrence Haney. (AR 26-61). On October 11, 2022, ALJ

12 Fernandez issued a decision denying Plaintiff’s application. (AR

13 10-20).

14

15 The ALJ applied the requisite five-step process to evaluate

16 Plaintiff’s case. See AR 10-19 (noting that the presumption of

17 continuing non-disability under Chavez v. Bowen, 844 F.2d 691 (9th

18 Cir. 1988), did not apply). At step one, the ALJ found that

19 Plaintiff had not engaged in substantial gainful activity since

20 the May 8, 2018 application date. (AR 12). At step two, the ALJ

21 found that Plaintiff has the following severe impairments: PTSD,

22 borderline personality disorder, and amphetamine use disorder in

23 reported remission. See AR 13 (discussing Plaintiff’s obesity and

24 diabetes and noting that the ALJ had considered all of Plaintiff’s

25 medically determinable impairments, including those that were not

26 severe, in assessing Plaintiff’s residual functional capacity). At

27 step three, the ALJ determined that Plaintiff’s impairments did

28 not meet or equal a listing found in 20 C.F.R. Part 404, Subpart

1 P, Appendix 1 (the “Listings”). (AR 13-16 (finding Plaintiff’s

2 mental impairments caused “moderate” limitation in all four

3 “Paragraph B” criteria of psychological functioning for Listings

4 12.00, 12.08, and 12.15).

5

6 Next the ALJ found that Plaintiff has a residual functional

7 capacity (“RFC”)2 for light work as defined in 20 C.F.R. §

8 416.967(b), limited to: (1) occasional postural activities; (2) no

9 concentrated exposure to vibrations, unprotected heights, and

10 dangerous machinery; and (3) understanding, remembering, and

11 carrying out simple instructions with no public contact. See AR

12 14-18 (finding “persuasive” and “partially persuasive” the

13 available medical opinion evidence).

14

15 At step four, the ALJ found that Plaintiff was unable to

16 perform her past relevant work. (AR 18). At step five, based on

17 Plaintiff’s age, education, work experience, RFC, and the VE’s

18 testimony, the ALJ determined that there are jobs that exist in

19 significant numbers in the national economy that Plaintiff can

20 perform, i.e., “marker,” “router,” and “housekeeping cleaner.” (AR

21 19). The ALJ concluded that Plaintiff had not been disabled since

22 the May 8, 2018 application date. (AR 19-20).

23

24 On July 5, 2023, the Appeals Council denied Plaintiff’s

25 request to review the ALJ’s decision. (AR 1-5). Plaintiff now seeks

26

27 2 A residual functional capacity is what a claimant can

still do despite existing exertional and nonexertional limitations.

28 See 20 C.F.R. § 416.945(a)(1).

1 judicial review of the ALJ’s decision, which stands as the final

2 decision of the Commissioner. See 42 U.S.C. § 405(g).

3

4 STANDARD OF REVIEW

5

6 This Court reviews the Commissioner’s decision to determine

7 if it is free of legal error and supported by substantial evidence.

8 See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).

9 “Substantial evidence” is more than a mere scintilla, but less than

10 a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

11 2014). “It means such relevant evidence as a reasonable mind might

12 accept as adequate to support a conclusion.” Revels v. Berryhill,

13 874 F.3d 648, 654 (9th Cir. 2017) (citation and internal quotation

14 omitted).

15

16 To determine whether substantial evidence supports a finding,

17 “a court must consider the record as a whole, weighing both evidence

18 that supports and evidence that detracts from the [Commissioner’s]

19 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

20 2001) (internal quotation omitted). As a result, “[i]f the evidence

21 can support either affirming or reversing the ALJ’s conclusion, [a

22 court] may not substitute [its] judgment for that of the ALJ.”

23 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

24

25 DISCUSSION

26

27 Plaintiff contends that the ALJ erred by: (1) providing

28 reasons for not fully crediting psychological consultative examiner

1 Dr. Lindsay Hailston’s opinion that are not supported by

2 substantial evidence; (2) adopting a mental RFC that is not

3 supported by substantial evidence; and (3) failing to properly

4 evaluate Plaintiff’s subjective complaints. See Pl. Brief at 9-22;

5 Pl. Reply at 1-9. After consideration of the record as a whole,

6 the Court finds that the Commissioner’s findings are supported by

7 substantial evidence and are free from material legal error.3

8

9 A. Summary of the Medical Record

10

11 Since Plaintiff’s claims primarily concern the ALJ’s

12 consideration of her mental impairments, the Court will set forth

13 those portions of the medical record concerning her mental

14 impairments in more detail. The medical record reflects several

15 treatment visits for diabetes, diabetic gastroparesis with

16 abdominal pain, obesity, hepatitis C, and joint pain from a

17 popliteal cyst in the knee (treated with a steroid injection, home

18 exercises, and a short course of anti-inflammatories), and some

19 single visits for dizziness/migraines, arthritis, a skin abscess,

20 constipation related to methamphetamine use, nonspecific chest pain

21 and nausea, diabetic neuropathy, a broken toe, and left arm pain

22 associated with cervical radiculopathy (which was followed up with

23 some physical therapy). (AR 540-43, 545-73, 619-78, 679-778, 940-

24 44, 954-69, 1142-49, 1180-95, 1196-1219, 1238-1301, 1358, 1360-74,

25

3 The harmless error rule applies to the review of

26

administrative decisions regarding disability. See McLeod v.

27 Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,

400 F.3d 676, 679 (9th Cir. 2005) (An ALJ’s decision will not be

28 reversed for errors that are harmless).

1 1448-59, 1493-97, 1727-28, 1729-41). Despite complaints of joint

2 pain during a visit on January 17, 2018, (see AR 550), Plaintiff

3 reportedly had normal gait and range of motion at that visit and

4 subsequent visits in September, October, and November. 2018. (AR

5 550, 1181, 1183, 1198, 1275, 1303).

6

7 The medical record also reflects treatment for mental

8 impairments including PTSD, amphetamine use disorder, opioid use

9 disorder (mild), schizoaffective disorder, bipolar disorder,

10 borderline personality disorder, and major depressive disorder (AR

11 496, 615, 916, 1312, 1447), with reports that Plaintiff was and

12 had been using methamphetamine for the past 20 years. See, e.g.,

13 AR 435, 438, 448, 454, 546, 552, 566, 572, 581, 588, 594, 597, 600,

14 601, 603, 607, 796, 804).

15

16 Plaintiff was hospitalized for a psychiatric hold from June

17 12 to 28, 2017, following a suicide attempt, reporting that she

18 had last used methamphetamine on the morning of her emergency room

19 visit and had not been leaving the house except to get

20 methamphetamine. (AR 435, 438-536, 508). Plaintiff presented as

21 disheveled, angry, distressed, appeared paranoid, and stated that

22 she wanted to leave the hospital to kill herself. (AR 524-25). By

23 June 26, 2017, Plaintiff reported that she was feeling better but

24 did not know what she would do if she was out in the community

25 again. (AR 492). She had no hallucinations or delusions, was

26 sleeping and eating okay, and had no behavioral issues. Id. At the

27 time of her discharge, Plaintiff was calm, cooperative, less

28 depressed, alert and oriented, had fair insight and judgment and

1 was in no apparent distress. (AR 484, 486-87). Plaintiff no longer

2 posed a risk to herself or others, but substance abuse was noted

3 as a “modifiable” risk factor and she was advised not to use. (AR

4 484, 488).

5

6 Plaintiff transferred to residential psychiatric treatment

7 where she stayed until July 5, 2017, and maintained her sobriety.

8 (AR 864-902). Her mental status examination noted that she had

9 normal appearance, behavior, speech, thought content, insight,

10 judgment, attention, concentration, memory, and cognition, made

11 good eye contact and was cooperative and pleasant. (AR 864). She

12 was encouraged not to use and to attend psychotherapy. (AR 867).

13

14 Plaintiff attended outpatient behavior health treatment from

15 July 2017 through January 2018. (AR 580-616). Plaintiff reported

16 that she was “not okay” when she is sober and admitted that she

17 was using methamphetamine daily. (AR 597, 600, 604, 607). Records

18 from this time period also reflect continued methamphetamine use.

19 In November 2017, Plaintiff reported that she had only used

20 methamphetamine five times since her visit the previous month. (AR

21 594). On November 17, 2017, her psychiatrist noted that she may

22 continue to deteriorate with daily methamphetamine use and assessed

23 “other psychotic disorder: most likely due to chronic meth use.”

24 (AR 598, 603). In December of 2017, Plaintiff reported sobriety,

25 (AR 592) but also admitted during another visit earlier that month

26 that had used methamphetamine the night before (AR 566). In January

27 2018, Plaintiff reported that she was depressed and having

28 hallucinations, and admitted to using methamphetamine daily but

1 not for the past two weeks. (AR 588-89; but see AR 572 (Plaintiff

2 admitting at another visit on the same day that she continued to

3 use methamphetamine but was cutting back).4

4

5 In April and May 2018, Plaintiff returned to residential

6 psychiatric treatment, (AR 785-859), reporting, at the time of her

7 admission on April 27, 2018, that she had been clean for 19 days

8 (AR 850).5 When she was discharged on May 9, 2018, Plaintiff was

9 “calm and fine,” cooperative, appropriate, responsive, well

10 groomed, made eye contact, had normal speech, and had been

11 compliant with treatment by taking medication, attending therapy,

12 completing activities of daily living, and participating in the

13 program. (AR 789).

14

15 In June 2018, Plaintiff started another residential drug

16 treatment program but was discharged in August 2018 after she

17 relapsed. (AR 908-28, 981). Plaintiff had another psychiatric hold

18 from August 17 to 23, 2018, after another suicide attempt. (AR 981-

19 1000, 1340-51, 1460-85). Plaintiff then transferred to residential

20 psychiatric treatment where she stayed until at least August 25,

21 2018. (AR 1115-35).

22

23

24 4 During visits for other conditions in January and March

2018, Plaintiff denied substance abuse and reportedly had normal

25 mood and affect. (AR 662-63, 739-40).

26

5 Earlier in April 2018, Plaintiff had been brought to the

27 emergency room by her husband, after she reportedly overdosed on

insulin at home, and she was diagnosed with amphetamine

28 intoxication. (AR 1498-1514).

1 In September 2018, Plaintiff presented to the emergency room

2 for seizure like activity, chest pain, and altered mental status.

3 (AR 1442-47). Plaintiff admitted using methamphetamine but denied

4 feeling suicidal and wanted to be home to visit with her daughter.

5 (AR 1447).

6

7 In October 2018, Plaintiff presented to the emergency room

8 complaining of chest pain, hearing voices, hypothermia, and

9 hypoglycemia. (AR 1196-1224). She admitted using methamphetamine

10 and tested positive for such use. (AR 1197, 1203, 1210, 1217,

11 1226). When she was discharged, she was noted to be in fair/improved

12 condition and instructed to follow up with mental health. (AR

13 1199).

14

15 Plaintiff had another psychiatric hold from November 19 to

16 27, 2018, after another suspected suicide attempt. (AR 1153-79,

17 1311-39). Her toxicology screens at the time were negative for

18 amphetamines, (AR 1172), but earlier that month, Plaintiff’s drug

19 screen was positive for methamphetamine. (AR 1360). On November

20 27, 2024, Plaintiff left the facility against her doctor’s advice.

21 (AR 1328).

22

23 There are no mental health treatment records from December

24 2018 to June of 2022, when Plaintiff presented in Oregon for

25 outpatient counseling for PTSD, borderline personality disorder,

26

27

28

1 and stimulant dependence in remission. (AR 1754-69).6 Plaintiff

2 reported that she last attempted suicide the Sunday before, when

3 she tried to cut her wrist and throat. (AR 1755). She was living

4 in a shelter. (AR 1755). During subsequent visits, Plaintiff said

5 that she “accidently” learned where to purchase heroin but had so

6 far avoided that environment and was not using. (AR 1756, 1759-

7 60).

8

9 In early July 2022, Plaintiff had acquired a studio apartment

10 and it was noted that she was making progress. (AR 1761). On July

11 7, 2022, she reported that she had attempted to overdose on insulin

12 the week before following an altercation with her ex-husband over

13 money and was trying to get home health care. (AR 1762). On July8,

14 2022, Plaintiff reported dissociative states where she “checks

15 out,” and denied substance abuse, but admitted to spending time

16 with people using drugs and said it was possible that a neighbor

17 had drugged her. (AR 1763). A rapid urine methamphetamine test

18 showed a faint line. Id.

19

20 On July 21, 2022, Plaintiff reported that she had obtained

21 work from family members and was able to purchase a new computer

22 with her earnings. (AR 1766). On July 25, 2022, Plaintiff reported

23 that she was able to take a bus to her daughter’s house in another

24 town, was helping her sister move after a divorce, had been asked

25

26

27 6 Plaintiff had moved to Oregon after filing her

application and reportedly had been sober since May 2022. (AR 47-

28 51).

1 to provide additional office work, had “discovered cooking” for

2 healthier living and was taking daily beach walks. (AR 1767).

3

4 On August 4, 2022, Plaintiff reported that her new computer

5 would help her “generate better workflow,” and while she was making

6 progress and feeling value in herself, she was still having

7 depression and dysregulated emotions. (AR 1768). At her last

8 reported appointment, on August 11, 2022, Plaintiff said her

9 emotional state was more “even,” and she had fought off a craving

10 to use the week before with the help of her sponsor. (AR 1769).

11

12 The Opinion Evidence

13

14 Consultative examining clinical psychologist, Dr. Lindsey

15 Hailston, provided a Psychological Assessment Report dated April

16 19, 2019. (AR 1720-23). Dr. Hailston reviewed some medical records

17 from 2018 for an emergency room visit and hospital stay for drug

18 overdose suicide attempts. (AR 1720). Plaintiff complained of

19 several conditions including PTSD, ADHD, panic disorder with

20 agoraphobia, anxiety, addiction, and bipolar disorder. (AR 1720).

21 Plaintiff said it was very hard for her to get out of her house

22 because she has difficulty going out in public, her depressive

23 episodes had gotten worse, and she currently was abusing

24 methamphetamine. (AR 1721). Plaintiff reported a history of

25 psychiatric hospitalizations a few times a year since 2010 for

26 suicidal ideation, attempts, and homicidal attempts. (AR 1721).

27 Plaintiff said therapy does not help her. (AR 1721).

28

1 On mental status examination, Plaintiff was disheveled,

2 overweight, had cuts on her arms, was anxious and tearful with

3 pressured speech, had difficulty with attention and concentration,

4 was hypervigilant about being around people, and reported auditory

5 and visual hallucinations although she was not observed to be

6 having any hallucinations at the time. (AR 1721-22). Plaintiff

7 admitted abusing methamphetamine for 20 years. (AR 1722). Regarding

8 her activities of daily living, Plaintiff reported she knew how to

9 use appliances but was unable to do so because of her functioning

10 and lack of motivation. (AR 1722). She reported that her boyfriend

11 helped her get dressed her because of her fear in leaving the

12 house. (AR 1722).

13

14 Dr. Hailston noted that Plaintiff had “a lengthy history of

15 psychiatric symptoms that include mood disorder, suicide attempts,

16 self-harm, assaultive behavior, and methamphetamine abuse for 20

17 years,” and indicated that it was “unclear whether her mood related

18 symptoms [were] induced from significant methamphetamine abuse for

19 several years.” (AR 1722). Dr. Hailston diagnosed borderline

20 personality disorder, stimulant use disorder (amphetamine-type

21 substance, severe), and “R/O” (rule out) substance/medication-

22 induced bipolar and related disorder. (AR 1722).

23

24 Dr. Hailston opined that Plaintiff would have: (1) no

25 impairment in understanding, remembering, and carrying out simple

26 instructions; (2) mild impairment with complex instructions; (3)

27 moderate impairment in maintaining attention, concentration, pace,

28 and persistence; and (4) severe impairment in enduring stress,

1 adapting to change in routine work settings (due to daily

2 methamphetamine abuse and personality disorder), interacting with

3 supervisors and coworkers (due to daily methamphetamine abuse),

4 interacting with the public (due to a legal history of assault),

5 and maintaining emotional regulations (due to daily methamphetamine

6 abuse). (AR 1723). Dr. Hailston noted that it was possible

7 Plaintiff’s condition would improve with appropriate treatment

8 and/or services. Id.

9

10 State agency reviewers considered the record initially in

11 August 2018, and made the following findings: (1) Plaintiff would

12 be capable of light work with some postural and environmental

13 limitations mostly consistent with the physical RFC the ALJ adopted

14 (which Plaintiff does not challenge) (AR 97-116); (2) Plaintiff

15 would have moderate limitations in several areas of functioning

16 (i.e., understanding, remembering, and carrying out detailed

17 instructions, maintaining attention and concentration for extended

18 periods, completing a normal workday or workweek without

19 interruption from psychologically-based symptoms, performing at a

20 consistent pace without an unreasonable number and length of rest

21 periods, interacting appropriately with the general public, and

22 setting realistic goals or making plans independently of others).

23 (AR 111-12); and (3) Plaintiff would be “capable of sustained

24 simple nonpublic task work activities.” (AR 112). In reaching this

25 determination, the reviewing psychologist noted that Plaintiff’s

26 symptoms were reasonably attributable to her mental medically

27 determinable impairments, which were characterized as “ depressive,

28 bipolar and related disorders.” (AR 106-07).

1 On reconsideration, in April 2019, state agency reviewers

2 considered the updated record, which included Dr. Hailston’s

3 opinion, and agreed with the initial RFC determination. (AR 117-

4 40). Plaintiff had reported that she was experiencing worsening

5 mental health symptoms and had a recent psychiatric hold. (AR 365,

6 375). It was noted that Plaintiff was using methamphetamine at the

7 time of Dr. Hailston’s evaluation, and the severe limits found by

8 Dr. Hailston were attributed to Plaintiff’s daily methamphetamine

9 abuse. (AR 129). Plaintiff’s substance abuse was determined to be

10 material to Plaintiff’s claim because “it clearly exacerbates the

11 severity of symptoms that are attributable to psych impairments”

12 and Plaintiff’s worsening condition - by the time of

13 reconsideration - was “linked to active substance use.” Id. The

14 review concluded that a mental RFC for “SRT/NP” [simple repetitive

15 tasks with no public contact] “while in treatment and abstaining

16 from substance use would reasonably apply.” (AR 129; compare AR

17 138 (general statement that there was no evidence of substance use

18 disorder which is contrary to the detailed Findings of Fact and

19 Analysis of Evidence).

20

21 B. Plaintiff Has Not Shown Material Error in the ALJ’s Mental

22 RFC Assessment.

23

24 Plaintiff contends that the ALJ’s reasons for discounting Dr.

25 Hailston’s opinion in determining Plaintiff’s mental RFC isa not

26 supported by substantial evidence, and that Plaintiff’s mental RFC

27 is otherwise not supported by substantial evidence because it did

28 not account for some of Plaintiff’s “moderate” mental limitations.

1 (Pl. Brief at 9-19; Pl. Reply at 1-7). As set forth below, the ALJ

2 provided reasons, supported by substantial evidence, for finding

3 Dr. Hailston’s opinion “partially persuasive,” and the ALJ’s mental

4 RFC determination is supported by substantial evidence.

5

6 1. Applicable Law

7

8 For claims filed after March 27, 2017, such as Plaintiff’s

9 claim, new regulations govern the evaluation of medical opinion

10 evidence. Under these regulations, ALJs no longer “weigh” medical

11 opinions; rather, ALJs determine which opinions are the most

12 “persuasive” by focusing on several factors: (1) supportability;

13 (2) consistency; (3) relationship with the claimant (including the

14 length of treatment, frequency of examinations, purpose of

15 treatment, extent of treatment, whether the medical source examined

16 the claimant); (4) the medical source's specialty; and (5) “other”

17 factors. See 20 C.F.R. § 416.920c(c)(1)-(5). The two most important

18 factors in determining the persuasiveness of medical opinions are

19 supportability and consistency with the evidence. See 20 C.F.R. §

20 416.920c(a). ALJs must explain how they considered the factors of

21 supportability and consistency, but need not explain how they

22 considered any other factor. See 20 C.F.R. § 416.920c(b).

23

24 Supportability means the extent to which a medical source

25 supports the medical opinion by explaining the “relevant

26 . . . objective medical evidence.” Consistency means the

27 extent to which a medical opinion is “consistent. . .

28

1 with the evidence from other medical sources and

2 nonmedical sources in the claim.”

3

4 Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (internal

5 citations omitted; citing 20 C.F.R. § 416.920c(c)(1), (2)).7

6

7 2. Analysis

8

9 The ALJ followed the new regulations in making the required

10 findings based on the available record. The ALJ detailed Dr.

11 Hailston’s examination and opinion that Plaintiff would have some

12 moderate and severe mental impairments. (AR 14-15). The ALJ found

13 Dr. Hailston’s opinion “partially persuasive,” reasoning that Dr.

14 Hailston’s observations were “consistent with and supported by the

15 longitudinal evidence of record” and “provide further support” for

16 Plaintiff’s “moderate limitation in her activities of daily living

17 due to her psychiatric conditions.” (AR 15). The ALJ noted that

18 Dr. Hailston found severe limitations attributed, in part, to

19 Plaintiff’s methamphetamine abuse. (AR 15). The ALJ found that -

20

7 The new regulations also eliminated the term “treating

21 source,” as well as the rule previously known as the treating

source rule or treating physician rule, which formerly required

22

special deference to the opinions of treating sources. See 20

23 C.F.R. § 416.920c; Woods v. Kijakazi, 32 F.4th at 792 (“The revised

social security regulations are clearly irreconcilable with our

24 caselaw according special deference to the opinions of treating

and examining physicians on account of their relationship with the

25 claimant.”); see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9,

2016). Even so, in evaluating medical opinion evidence “under the

26

new regulations, an ALJ cannot reject an examining or treating

27 doctor’ opinion as unsupported or inconsistent without providing

an explanation supported by substantial evidence.” Woods v.

28 Kijakazi, 32 F.4th at 792.

1 other than her methamphetamine use – there was insufficient

2 evidence to support severe impairments based on Plaintiff’s

3 psychiatric condition because the record reflected improvement in

4 Plaintiff’s psychiatric condition and limited mental health

5 treatment during periods of sobriety. (AR 15).

6

7 Substantial evidence supports these findings. As detailed

8 above, and as the ALJ summarized (see AR 14), the treatment record

9 reflected methamphetamine use throughout, including at the time of

10 Dr. Hailston’s evaluation, with mental health treatment mostly

11 centered around times when Plaintiff was using methamphetamine.

12 Plaintiff’s providers reported improvement in her symptoms during

13 periods of inpatient treatment for substance abuse when Plaintiff

14 was not using. See, e.g., AR 484, 486-87, 492, 789, 864, 1153,

15 1311-13). Plaintiff’s most recent treatment records (July and

16 August 2022) note Plaintiff’s improvement with sobriety to the

17 point where she was able to find her own housing, travel to visit

18 her daughter, and work for a family member. (AR 1761, 1766-69).

19

20 The ALJ also found “persuasive” the opinions of the state

21 agency reviewers, which had expressly considered Dr. Hailston’s

22 opinion on reconsideration, and found that, absent substance use,

23 Plaintiff would be capable of simple repetitive tasks with no

24 public contact consistent with the mental RFC adopted by the ALJ.

25 (AR 17). The ALJ reasoned that these opinions were consistent with,

26 and supported by, the longitudinal evidence of record which

27 reflected that Plaintiff was medication compliant and had limited

28 complaints or treatment for any mental conditions since 2018. (AR

1 17). These opinions are substantial evidence to support the ALJ’s

2 mental RFC assessment. See Tonapetyan v. Halter, 242 F.3d 1144,

3 1149 (9th Cir. 2001) (opinion of non-examining physician “may

4 constitute substantial evidence when it is consistent with other

5 independent evidence in the record”); Andrews v. Shalala, 53 F.3d

6 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining

7 physicians do not contradict “all other evidence in the record,”

8 such opinions may furnish substantial evidence).

9

10 Plaintiff faults the ALJ’s findings as internally inconsistent

11 because the ALJ discounted Dr. Hailston’s opinion about Plaintiff’s

12 “severe” limitations after finding that the evidence was

13 insufficient to show they were due to psychiatric conditions (as

14 opposed to substance use), but also found “persuasive” the state

15 agency psychological reviewers’ opinions that assertedly found

16 Plaintiff’s drug use “not material” to her claim. See Pl. Brief at

17 11-14; Pl. Reply at 3 (citing AR 114, 138 (the general statements

18 that there was no evidence of any substance abuse disorder or “DAA”

19 (drug abuse or alcoholism) issue)). The record does not support

20 Plaintiff’s assertion. As set forth above, the state agency

21 reviewers found, on reconsideration, that Plaintiff’s substance

22 use was material to her claim and that, absent substance use, she

23 would have a capacity consistent with the mental RFC the ALJ

24 adopted. (AR 129). The Court finds no internal inconsistency in

25 the ALJ’s reasoning.

26

27 Plaintiff also faults the ALJ for failing to follow the rules

28 for considering the effect of substance use under Social Security

1 Ruling (“SSR”) 13-2p. (Pl. Brief at 11-14; Pl. Reply at 3). Where,

2 as here, a claimant has a substance use disorder, SSR 13-2p requires

3 ALJs to apply the five-step sequential evaluation process twice if

4 the record suggests disability. See SSR 13-2p, 2013 WL 621536, at

5 *6. First, “the ALJ must conduct the five-step inquiry without

6 separating out the impact of alcoholism or drug addiction,” to

7 determine whether a claimant is disabled. Bustamante v. Massanari,

8 262 F.3d 949, 955 (9th Cir. 2001). If the ALJ finds the claimant

9 disabled, the ALJ must proceed to the second five-step

10 consideration to determine whether alcoholism or drug addiction is

11 “material” to the finding that a claimant is disabled (i.e., would

12 the individual still be found disabled if he or she stopped using

13 drugs or alcohol). See SSR 13-2p, 2013 WL 621536, at *4, 6; see

14 also 20 C.F.R. 416.935(b). A claimant will not be found disabled

15 where alcoholism or drug addiction is a contributing factor

16 material to disability. See 42 U.S.C. § 423(d)(2)(C) (“An

17 individual shall not be considered disabled. . . if alcoholism or

18 drug addiction would . . . be a contributing factor material to

19 the Commissioner’s determination that the individual is

20 disabled.”). An ALJ’s failure to perform the foregoing analysis is

21 harmless if the ALJ found that abstinence from drugs and/or alcohol

22 would have cured the claimant’s disability. Parra v. Astrue, 481

23 F.3d 742, 747 (9th Cir. 2007).

24

25 The Court discerns no material error. The ALJ did not

26 expressly mention or follow the process outlined in SSR 13-2p. (AR

27 12-19). The ALJ found Plaintiff was not disabled considering her

28 drug use (which the ALJ found was in remission). (Id.). The ALJ

1 would not have been required to factor out Plaintiff’s drug

2 addiction if the record otherwise did not establish Plaintiff was

3 disabled. Bustamante, 262 F.3d at 955. By finding that Plaintiff’s

4 drug use was in remission, where the record suggests that

5 Plaintiff’s drug use was not in remission until, at the earliest,

6 May 2022 (see AR 50-51), the ALJ effectively proceeded directly to

7 the second five-step inquiry.

8

9 If the ALJ had followed the process outlined in SSR 13-2p,

10 the ALJ ultimately would have found Plaintiff not disabled because

11 there is substantial evidence that Plaintiff’s substance use was

12 material to her claim. See AR 129 (materiality finding).

13 Accordingly, the Court discerns no material error from the ALJ’s

14 failure to follow the process outlined in SSR 13-2p.

15

16 Finally, Plaintiff asserts that the ALJ’s mental RFC

17 assessment does not adequately account for the “moderate”

18 limitations the ALJ found at step three in certain areas of

19 functioning (i.e., in interacting with others and maintaining

20 concentration, persistence, or pace). (Pl. Brief at 14-19; Pl.

21 Reply at 4-7). Contrary to Plaintiff’s assertion, the ALJ

22 adequately accounted for her findings by relying on the opinions

23 of the state agency reviewers in determining Plaintiff’s mental

24 RFC. (AR 17). The state agency reviewers found “moderate”

25 limitations in these areas of functioning (see AR 107, 130), but

26 also found Plaintiff capable of performing simple nonpublic tasks

27 (see AR 112, 136) consistent with the mental RFC adopted by the

28 ALJ. The ALJ was not required to do more.

1 C. The ALJ Did Not Err in Assessing Plaintiff’s Testimony and

2 Statements

3

4 Plaintiff contends that the ALJ’s reasoning was inadequate

5 for discounting her statements and testimony suggesting greater

6 limitations than the ALJ found to exist. See Pl. Brief at 19-22;

7 Pl. Reply at 7-9.

8

9 1. Applicable Law

10

11 When assessing a claimant’s credibility regarding subjective

12 pain or intensity of symptoms, the ALJ must engage in a two-step

13 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).

14 First, the ALJ must determine if there is medical evidence of an

15 impairment that could reasonably produce the symptoms alleged.

16 Garrison, 759 F.3d at 1014. “In this analysis, the claimant is not

17 required to show that her impairment could reasonably be expected

18 to cause the severity of the symptom she has alleged; she need only

19 show that it could reasonably have caused some degree of the

20 symptom.” Id. (emphasis in original) (citation omitted). “Nor must

21 a claimant produce objective medical evidence of the pain or

22 fatigue itself, or the severity thereof.” Id. (citation omitted).

23

24 If the claimant satisfies this first step, and there is no

25 evidence of malingering, the ALJ must provide specific, clear and

26 convincing reasons for rejecting the claimant’s testimony about

27 the symptom severity. Id. at 1014-15; see also Robbins, 466 F.3d

28 at 883 (“[U]nless an ALJ makes a finding of malingering based on

1 affirmative evidence thereof, he or she may only find an applicant

2 not credible by making specific findings as to credibility and

3 stating clear and convincing reasons for each.”). “This is not an

4 easy requirement to meet: The clear and convincing standard is the

5 most demanding required in Social Security cases.” Garrison, 759

6 F.3d at 1015 (citation omitted). The ALJ must evaluate “the

7 intensity and persistence of those symptoms to determine the extent

8 to which the symptoms limit [the claimant’s] ability to perform

9 work-related activities for an adult.” SSR 16-3p, 2017 WL 5180304,

10 at *3.

11

12 While the ALJ cannot “delve into wide-ranging scrutiny of the

13 claimant’s character and apparent truthfulness,” Trevizo, 871 F.3d

14 at 678 n.5, the ALJ may consider “prior inconsistent statements

15 concerning the symptoms, and other testimony by the claimant that

16 appears less than candid; unexplained or inadequately explained

17 failure to seek treatment or to follow a prescribed course of

18 treatment; and the claimant’s daily activities.” Ghanim v. Colvin,

19 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted).

20 Inconsistencies between a claimant’s testimony and conduct, or

21 internal contradictions in the claimant’s testimony, also may be

22 relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014).

23 In addition, the ALJ may consider the observations of treating and

24 examining physicians regarding, among other matters, the functional

25 restrictions caused by the claimant’s symptoms. Smolen v. Chater,

26 80 F.3d 1273, 1284 (9th Cir. 1996); accord Burrell, 775 F.3d at

27 1137. However, it is improper for an ALJ to reject subjective

28 testimony based “solely on a lack of objective medical evidence to

1 fully corroborate the claimant’s allegations.” Bray v. Comm’r of

2 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation

3 omitted); see also Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir.

4 2022) (reaffirming same but observing that inconsistency with the

5 medical evidence is a factor that can be considered; “When

6 objective medical evidence in the record is inconsistent with the

7 claimant’s subjective testimony, the ALJ may indeed weigh it as

8 undercutting such testimony.”); SSR 16-3p, 2017 WL 5180304, at *5

9 (“Objective medical evidence is a useful indicator to help make

10 reasonable conclusions about the intensity and persistence of

11 symptoms, including the effects those symptoms may have on the

12 ability to perform work-related activities. . .”).

13

14 The ALJ must make a credibility determination with findings

15 that are “sufficiently specific to permit the court to conclude

16 that the ALJ did not arbitrarily discredit claimant’s testimony.”

17 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation

18 omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.

19 2015) (“A finding that a claimant’s testimony is not credible must

20 be sufficiently specific to allow a reviewing court to conclude

21 the adjudicator rejected the claimant’s testimony on permissible

22 grounds and did not arbitrarily discredit a claimant’s testimony

23 regarding pain.” (citation omitted)). Although an ALJ’s

24 interpretation of a claimant’s testimony may not be the only

25 reasonable one, if it is supported by substantial evidence, “it is

26 not [the court’s] role to second-guess it.” Rollins v. Massanari,

27 261 F.3d 853, 857 (9th Cir. 2001).

28

1 2. Plaintiff’s Statements

2

3 Plaintiff testified that she has daily migraines and hurts

4 all the time from neuropathy and arthritis which affect her ability

5 to stand for more than five or six minutes at a time without having

6 to sit, as well as her ability to use her hands. (AR 35-41).

7 Plaintiff was walking with a walker at the time of the hearing and

8 said she used it most of the time. (AR 40; but see AR 1767 (July,

9 2022 therapy note reporting that Plaintiff was exercising by

10 walking the beach daily)).

11

12 Plaintiff testified that she has constant intrusive thoughts,

13 there are times when she feels okay and that she can do something,

14 but then she “can’t.” (AR 42, 44). She explained that she gets

15 depressed, and it causes her to feel like she cannot do things.

16 (AR 42). She also has PTSD which makes her terrified to sleep. (AR

17 44-45). She wakes every two hours and never wakes refreshed. (AR

18 45). She said it is difficult for her to concentrate to complete

19 tasks, she is easily distracted, and things do not get done. (AR

20 42-44). She also has to stop “a lot” and take breaks due to pain.

21 (AR 43-44). She had “very little” contact with others – she only

22 left her place to go to doctors and to therapy. (AR 45). She usually

23 ordered food in. (AR 45-46). She did not like to go to grocery

24 stores because she felt like people are looking at her and it made

25 her nervous. (AR 46). She gets nervous around people, isolates,

26 and does not handle stress well. (AR 46, 49).

27

28

1 Plaintiff admitted to substance abuse and said the longest

2 period she had been sober was for a little over a year sometime in

3 2009, 2010, or 2011. (AR 50). She had been clean most recently

4 since May – for about four months – and she hoped to be clean for

5 the next 50 years. (AR 50-51). She had moved to Oregon near her

6 family, was living alone, and only took provided transportation to

7 medical services and a 12-step recovery program. (AR 49, 51-52).

8 She did not drive. (AR 51). She could walk using her walker a block

9 and a half to a store when she needed to, but it took her quite a

10 while to get there and she did not do it often. (AR 52). She was

11 in the process of applying for in-home health care. (AR 53).

12

13 Plaintiff’s then-fiancé provided a Function Report – Third

14 Party form dated July 30, 2018 – when Plaintiff was in residential

15 drug treatment (see AR 908-28) – which did not mention Plaintiff’s

16 long history of drug use. (AR 322-29).8 He stated that if Plaintiff

17 did not have doctor’s appointments she spent her days trying not

18 to move too much due to pain. (AR 322-29). Plaintiff needed help

19 in and out of the shower, had trouble holding a hairbrush or razor,

20 sometimes needed assistance to and from the toilet, had major

21 distress from choosing an outfit to wear or what to eat, and her

22

23 8 Plaintiff’s fiancé provided another Function Report

dated January 1, 2019, stating that Plaintiff’s mental conditions

24 interrupt every facet of her life, and limit her from contact with

others causing Plaintiff to isolate in her room. (AR 377-86). When

25 she is manic, she acts inappropriately, is rude, condescending,

and combative (AR 382), she was reportedly using a wheelchair (AR

26

383), she relapsed with methamphetamine use even though she had

27 remained clean for “long periods” of time and does 12 step programs,

and she seemed “calmer and more focused” when she uses

28 methamphetamine. (AR 384).

1 mental condition (depression) otherwise limited almost every aspect

2 of her being. (AR 323). She could make her own meals of cereal or

3 sandwiches, do laundry on her own time, but had too much pain and

4 mental anguish for other types of housework. (AR 324-25). She

5 almost never went outside due to pain and fear of people, she did

6 not drive, but she could shop for clothes or groceries in stores

7 and by computer once a week. (AR 325, 327). She spent most of her

8 time watching television and reading. (AR 326). He estimated that

9 Plaintiff could not walk more than 100 feet before needing to rest,

10 could pay attention “not long,” and could understand and follow

11 directions but does not finish what she starts. (AR 327). Plaintiff

12 held onto walls and surfaces for balance. (AR 328).

13

14 Plaintiff also provided her own Function Report dated July

15 31, 2018, (AR 331-54), reporting similar limitations. She reported

16 that she could not concentrate, has a hard time understanding what

17 she reads, feels like people are looking at her, has hand cramps

18 that prevent her from holding a pencil or using a keyboard for

19 longer than five or 10 minutes, and cannot sit or stand or walk

20 without pain. (AR 331). She had a hard time getting along with

21 people. (AR 337). Plaintiff admitted that she has addiction which

22 impacts her ability to function until she uses again and, after

23 using, causes her physical and mental problems to become worse.

24 (AR 349-50).

25

26

27

28

1 3. Analysis

2

3 The ALJ found that Plaintiff’s “medically determinable

4 impairments could reasonably be expected to cause the alleged

5 symptoms,” but her “statements concerning the intensity,

6 persistence and limiting effects of these symptoms” were “not

7 entirely consistent with the medical evidence and other evidence

8 in the record.” (AR 17). The ALJ based this finding on the objective

9 medical record and Plaintiff’s activities of daily living. (AR 17-

10 18). As set forth below, the Court finds that the ALJ provided

11 clear and convincing reasons, supported by substantial evidence in

12 the record, for her finding.

13

14 The ALJ found Plaintiff’s asserted limitations were

15 inconsistent with the objective medical evidence. Plaintiff

16 testified that she is disabled due to severe pain in her body, but

17 her medical records did not contain objective findings to support

18 those allegations. (AR 17). Plaintiff’s medical examinations did

19 not support an inability to carry out basic work activities. (AR

20 18). While Plaintiff complained of mental health issues and

21 symptoms, the record reflected that Plaintiff had significant

22 improvement in her condition during periods of sobriety. (AR 17).

23

24 A lack of corroborating objective medical evidence is relevant

25 to an ALJ’s evaluation of a claimant’s statements, so long as the

26 ALJ does not reject statements solely on that basis. See Bunnell

27 v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc) (where

28 “the claimant produces objective medical evidence of an underlying

1 impairment, an adjudicator may not reject a claimant’s subjective

2 complaints based solely on a lack of objective medical evidence to

3 fully corroborate the alleged severity of pain”) (citing Cotton v.

4 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986)); see also Smartt v.

5 Kijakazi, 53 F.4th at 498 (reaffirming same); Bray v. Comm’r of

6 Soc. Sec. Admin., 554 F.3d at 1227. Here, the ALJ’s reliance on

7 the lack of supporting medical evidence in this case was not the

8 sole basis for rejecting Plaintiff’s symptom statements and

9 testimony. The limited record of treatment for Plaintiff’s physical

10 complaints, which did not include any significant objective

11 findings, supports the ALJ’s reasoning that the record did not

12 support Plaintiff’s claims regarding her asserted physical

13 limitations. The ALJ reasonably concluded that Plaintiff’s alleged

14 limitations from pain were not reflected in her treatment record.

15

16 The ALJ also found that Plaintiff’s statements were

17 inconsistent with her ability to perform activities of daily living

18 independently. (AR 17-18). The ALJ observed that Plaintiff was able

19 to live alone, cook, clean, and walk to a nearby store to shop for

20 necessities. (AR 17). The ALJ also noted that since May 2022, when

21 Plaintiff reported sobriety, she admittedly was able to work for a

22 family member. (AR 17).

23

24 An ALJ may rely on a claimant’s daily activities in

25 discounting symptom testimony. See Orn v. Astrue, 496 F.3d 625,

26 639 (9th Cir. 2007) (daily activities may be used to discount

27 subjective complaints where the daily activities “contradict [her]

28 other testimony” or “meet the threshold for transferrable work

1 skills”); see also Ghanim v. Coleman, 753 F.3d at 1165 (“Engaging

2 in daily activities that are incompatible with the severity of

3 symptoms alleged can support an adverse credibility

4 determination.”); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.

5 19998) (daily activities have bearing on a claimant’s credibility

6 where the “level of activity [is] inconsistent with the Claimant’s

7 claimed limitations”). The ALJ observed that Plaintiff was living

8 on her own and was able to care for her basic needs including

9 cooking, cleaning, shopping for necessities, going to appointments,

10 and was working for her family members, and found these activities

11 to be “inconsistent with the activities of a person who is

12 completely disabled.” (AR 17-18). While evidence of Plaintiff’s

13 activities is not, by itself, compelling evidence of her ability

14 to engage in sustained work activity, in the context of the record

15 in this case which included complaints of constant pain severely

16 limiting Plaintiff’s ability to walk, sit or stand (see AR 35-41,

17 331), the ALJ properly found that Plaintiff’s ability to engage in

18 the daily activities she admitted suggests that she is more capable

19 than the severe symptoms and limitations which she claimed prevent

20 her from working. Accordingly, the ALJ properly discounted

21 Plaintiff’s subjective statements and testimony based on her

22 admitted daily activities.

23

24 D. Conclusion

25

26 Plaintiff’s claims essentially request that this Court reweigh

27 the evidence that was before the ALJ. “Where evidence is

28 susceptible to more than one rational interpretation, it is the

1 ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d

2 676, 679 (9th Cir. 2005); see also Brown-Hunter v. Colvin, 806 F.3d

3 487, 492 (9th Cir. 2015) (“[W]e leave it to the ALJ to determine

4 credibility, resolve conflicts in the testimony, and resolve

5 ambiguities in the record.”) (citation and internal quotation marks

6 omitted). The Court will uphold the ALJ’s rational interpretation

7 of the evidence in this case.

8

9 ORDER

10

11 For the foregoing reasons, the decision of the Commissioner

12 is AFFIRMED.

13

LET JUDGMENT BE ENTERED ACCORDINGLY.

14

15

16 Dated: August 23, 2024

17

18 ______________/s/ ____________

ALKA SAGAR

19 UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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