Ryan Douglas Casner v. Michael J Astrue, No. 2:2012cv07981 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 RYAN DOUGLAS CASNER, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) Case No. CV 12-7981-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Supplemental Security 20 Income benefits ( SSI ). The parties consented to the 21 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 22 28 U.S.C. § 636(c). This matter is before the Court on the 23 parties Joint Stipulation, filed June 12, 2013, which the Court 24 has taken under submission without oral argument. For the 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 reasons stated below, the Commissioner s decision is affirmed and 2 this action is dismissed. 3 II. BACKGROUND 4 Plaintiff was born on March 30, 1961. (Administrative Record 5 ( AR ) 47, 190.) 6 high school. He finished the 11th grade but did not graduate (AR 47, 293.) He previously worked as a shipper 7 and receiver, mechanic, and general laborer but had apparently 8 not worked since 1998. 9 (AR 47-48, 212, 217.) On October 31, 2002, Plaintiff filed an application for SSI 10 (AR 66), apparently alleging that he was unable to work because 11 of psoriasis, back pain, alcohol abuse, and vision problems (AR 12 68, 70). His application was denied initially and upon 13 reconsideration. (AR 66.) After his application was denied, 14 Plaintiff requested a hearing before an Administrative Law Judge 15 ( ALJ ). (Id.) A hearing was held on August 5, 2004; Plaintiff 16 failed to appear, but his presence was deemed nonessential. 17 (Id.) In a written decision issued January 28, 2005, the ALJ 18 determined that Plaintiff was not disabled. (AR 66-71.) 19 Plaintiff apparently did not appeal that decision to the U.S. 20 District Court, and it therefore became final and binding. See 21 20 C.F.R. § 416.1481; Taylor v. Heckler, 765 F.2d 872, 875 (9th 22 Cir. 1985). 23 On October 16, 2008, Plaintiff filed a new application for 24 SSI, alleging that he had been unable to work since December 31, 25 1998,2 because of depression, anxiety, psoriasis, and vision 26 27 28 2 SSI payments are not made retroactively but are prorated for the first month for which eligibility is established after application and after a period of ineligibility. SSR 832 1 impairment. (AR 32, 211.) His new application was denied 2 initially, on January 29, 2009 (AR 32, 78-81), and upon 3 reconsideration, on May 29 (AR 32, 85-89). 4 requested a hearing before an ALJ. Plaintiff again (AR 93-94.) A hearing was 5 held on June 8, 2010, at which Plaintiff again failed to appear. 6 (AR 62, 146.) After submitting a good-cause statement explaining 7 the reasons for his nonappearance (AR 151), Plaintiff was granted 8 a second hearing, which took place on October 12, 2010 (AR 153). 9 At the hearing, Plaintiff appeared with counsel and testified on 10 his own behalf (AR 44-54); a vocational expert ( VE ) also 11 testified (AR 55-58). In a written decision issued November 5, 12 2010, the ALJ determined that Plaintiff was not disabled. 13 32-39.) (AR On June 14, 2012, the Appeals Council denied Plaintiff s 14 request for review. (AR 7-9.) This action followed. 15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), a district court may review 17 the Commissioner s decision to deny benefits. The ALJ s findings 18 and decision should be upheld if they are free of legal error and 19 supported by substantial evidence based on the record as a whole. 20 Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 21 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 22 (9th Cir. 2007). Substantial evidence means such evidence as a 23 24 20, 1983 WL 31249 (Jan. 1, 1983). For this reason, at the 25 October 2010 hearing, Plaintiff amended his disability-onset date 26 27 28 to October 16, 2008, the day he filed the instant application for SSI benefits. (AR 47.) In his decision, the ALJ sometimes analyzed Plaintiff s impairments from his original onset date of December 31, 1998. (AR 36.) To the extent the ALJ erred, however, any error was harmless because, among other reasons, Plaintiff s medical records dated back only to October 2008. 3 1 reasonable person might accept as adequate to support a 2 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 3 504 F.3d 1028, 1035 (9th Cir. 2007). 4 but less than a preponderance. It is more than a scintilla Lingenfelter, 504 F.3d at 1035 5 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 6 2006)). To determine whether substantial evidence supports a 7 finding, the reviewing court must review the administrative 8 record as a whole, weighing both the evidence that supports and 9 the evidence that detracts from the Commissioner s conclusion. 10 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the 11 evidence can reasonably support either affirming or reversing, 12 the reviewing court may not substitute its judgment for that of 13 the Commissioner. Id. at 720-21. The principles of res 14 judicata apply to administrative decisions, although the doctrine 15 is applied less rigidly to administrative proceedings than to 16 judicial proceedings. 17 Cir. 1988.) Chavez v. Bowen, 844 F.2d 691, 693 (9th Normally, an ALJ s findings that a claimant is not 18 disabled creates a presumption that the claimant continued to be 19 able to work after that date. Vasquez v. Astrue, 572 F.3d 586, 20 597 (9th Cir. 2009) (quoting Lester v. Chater, 81 F.3d 821, 827 21 (9th Cir. 1995) (as amended Apr. 9, 1996)). The presumption 22 does not apply, however, if there are changed circumstances. 23 Lester, 81 F.3d at 827 (quoting Taylor, 765 F.2d at 875); accord 24 Acquiescence Ruling 97-4(9), 1997 WL 742758, at *3. One example 25 of a changed circumstance is where the claimant raises a new 26 issue, such as the existence of an impairment not considered in 27 the previous application. Lester, 81 F.3d at 827 (citing 28 Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988)). 4 1 IV. THE EVALUATION OF DISABILITY 2 People are disabled for purposes of receiving Social 3 Security benefits if they are unable to engage in any substantial 4 gainful activity owing to a physical or mental impairment that is 5 expected to result in death or which has lasted, or is expected 6 to last, for a continuous period of at least 12 months. 42 7 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 8 (9th Cir. 1992). 9 10 A. The Five-Step Evaluation Process The ALJ follows a five-step sequential evaluation process in 11 assessing whether a claimant is disabled. 20 C.F.R. 12 § 416.920(a)(4); Lester, 81 F.3d at 828 n.5. In the first step, 13 the Commissioner must determine whether the claimant is currently 14 engaged in substantial gainful activity; if so, the claimant is 15 not disabled and the claim must be denied. § 416.920(a)(4)(i). 16 If the claimant is not engaged in substantial gainful activity, 17 the second step requires the Commissioner to determine whether 18 the claimant has a severe impairment or combination of 19 impairments significantly limiting his ability to do basic work 20 activities; if not, a finding of not disabled is made and the 21 claim must be denied. § 416.920(a)(4)(ii). If the claimant has 22 a severe impairment or combination of impairments, the third 23 step requires the Commissioner to determine whether the 24 impairment or combination of impairments meets or equals an 25 impairment in the Listing of Impairments ( Listing ) set forth at 26 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 27 conclusively presumed and benefits are awarded. 28 § 416.920(a)(4)(iii). If the claimant s impairment or 5 1 combination of impairments does not meet or equal an impairment 2 in the Listing, the fourth step requires the Commissioner to 3 determine whether the claimant has sufficient residual functional 4 capacity ( RFC )3 to perform his past work; if so, the claimant 5 is not disabled and the claim must be denied. 6 § 416.920(a)(4)(iv). The claimant has the burden of proving that 7 he is unable to perform past relevant work. 8 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 9 disability is established. Id. If that happens or if the 10 claimant has no past relevant work, the Commissioner then bears 11 the burden of establishing that the claimant is not disabled 12 because he can perform other substantial gainful work available 13 in the national economy. § 416.920(a)(4)(v). That determination 14 comprises the fifth and final step in the sequential analysis. 15 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 16 B. 17 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 18 any substantial gainful activity since October 16, 2008. 19 34.) (AR At step two, the ALJ concluded that Plaintiff had the 20 severe impairments of vision problems, psoriasis, anxiety, and 21 depression. (Id.) At step three, the ALJ determined that 22 Plaintiff s impairments did not meet or equal any of the 23 impairments in the Listing. (Id.) At step four, the ALJ found 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 6 1 that Plaintiff retained the RFC to perform heavy work,4 subject 2 to certain mild limitations: 3 understanding 4 concentration and persistence; socially interacting with 5 general 6 Furthermore, the claimant should avoid outdoor activities 7 in the sun due to psoriasis. 8 (AR 34.) and public; and remembering adapting to tasks; sustained workplace changes. The ALJ further concluded that because of Plaintiff s 9 depression, history of drug abuse, and lack of work history, he 10 should be restrict[ed] to entry-level work that is with things 11 rather than people. (AR 35.) Based on the VE s testimony, the 12 ALJ concluded that Plaintiff was capable of making a successful 13 adjustment to . . . work that exists in significant numbers in 14 the national economy. (AR 39.) Accordingly, the ALJ determined 15 that Plaintiff was not disabled. (Id.) 16 V. DISCUSSION 17 Plaintiff alleges that the ALJ erred in rejecting the 18 opinion of his treating psychiatrist, Ms. Meena Gupta. 19 Stip. at 4.) (J. Plaintiff subsequently concedes that Ms. Gupta was 20 in fact not a psychiatrist but a licensed clinical social worker. 21 (J. Stip. at 9.) The ALJ mistakenly referred to Ms. Gupta as 22 Dr. Gupta when he summarized her mental-impairment 23 questionnaire, completed November 2, 2009. (AR 37, 331-34.) 24 25 4 Heavy work involves lifting no more than 100 pounds 26 at a time with frequent lifting or carrying of objects weighing 27 up to 50 pounds. 20 C.F.R. § 416.967(d). The regulations 28 further specify that [i]f someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work, as defined in § 416.967(a)-(c). Id. 7 1 A. 2 Plaintiff contends that the ALJ failed to set forth legally The ALJ Did Not Err in Rejecting Ms. Gupta s Opinion 3 sufficient reasons for rejecting the opinions of Ms. Gupta. 4 Stip. at 4.) (J. Remand is not warranted on that basis, however, 5 because Ms. Gupta was not an acceptable medical source and her 6 opinion was not entitled to special weight. In any event, the 7 ALJ provided legally sufficient reasons for according little 8 weight to her opinion. 9 10 1. Applicable law Three types of physicians may offer opinions in Social 11 Security cases: (1) those who directly treated the plaintiff 12 (treating physicians), (2) those who examined but did not treat 13 the plaintiff (examining physicians), and (3) those who did not 14 directly treat or examine the plaintiff (nonexamining 15 physicians). Lester, 81 F.3d at 830. A treating physician s 16 opinion is generally entitled to more weight than that of an 17 examining physician, and an examining physician s opinion is 18 generally entitled to more weight than that of a nonexamining 19 physician. 20 Id. The opinions of treating physicians are generally afforded 21 more weight than the opinions of nontreating physicians because 22 treating physicians are employed to cure and have a greater 23 opportunity to know and observe the claimant. 24 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, If a treating physician s 25 opinion is well supported by medically acceptable clinical and 26 laboratory diagnostic techniques and is not inconsistent with the 27 other substantial evidence in the record, it should be given 28 controlling weight. 20 C.F.R. § 416.927(c)(2). 8 1 The ALJ need not accept the opinion of any physician, 2 including a treating physician, if that opinion is brief, 3 conclusory, and inadequately supported by clinical findings. 4 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord 5 Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 6 Cir. 2004); see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th 7 Cir. 2012) (ALJ may reject check-off reports that do not contain 8 an explanation of basis for conclusions); Murray v. Heckler, 722 9 F.2d 499, 501 (9th Cir. 1983) (expressing preference for 10 individualized medical opinions over check-off reports). Because 11 20 C.F.R. § 416.927 contains guidelines for weighing opinions 12 from acceptable medical sources but none for weighing other 13 sources, an ALJ may accord opinions from other sources less 14 weight. Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996), 15 superseded by regulation on other grounds as noted in Hudson v. 16 Astrue, No. CV-11-0025-CI, 2012 WL 5328786, at *4 n.4 (E.D. Wash. 17 Oct. 29, 2012). 18 In determining disability, the ALJ must develop the record 19 and interpret the medical evidence. 20 F.3d 1006, 1012 (9th Cir. 2003). Howard v. Barnhart, 341 Nonetheless, it remains the 21 plaintiff s burden to produce evidence in support of his 22 disability claims. 23 (9th Cir. 2001). See Mayes v. Massanari, 276 F.3d 453, 459 Moreover, the ALJ s duty to develop the record 24 is triggered only when there is ambiguous evidence or when the 25 record is insufficient to allow for proper evaluation of the 26 evidence. Id. at 459-60. When the evidence received from a 27 treating physician is inadequate to allow the ALJ to determine 28 the claimant s disability, the ALJ has a duty to recontact the 9 1 physician. See Brinegar v. Astrue, 337 F. App x 711, 712 (9th 2 Cir. 2009). 3 2. 4 Relevant facts Plaintiff s medical evidence of record begins on October 5 24, 2008, shortly after he was released from prison. (AR 289.) 6 Heidi George, a social worker, noted that Plaintiff was 7 depressed. (Id.) He stated that he [had] never had this big of 8 a hole in [his] life. (Id.) Plaintiff described butterflies 9 in [his] stomach, anxiety, and decreased appetite. (Id.) He 10 acknowledge[d] auditory hallucinations since the age [of] 10 11 but stated that he had never received mental-health treatment 12 before Spring 2008. (Id.) He denied having any previous or 13 current suicidal intention and had normal sleep patterns. (Id.) 14 He had been prescribed risperidone, Remeron, oxcarbazepine, and 15 diphenhydramine5 and had apparently been taking this regimen for 16 about two months but did not feel that it was particularly 17 helpful. (Id.) 18 depressed. He reported still hearing voices and feeling (Id.) Four days later, on October 28, 2008, Ms. 19 George again evaluated Plaintiff. (AR 293.) She noted that he 20 21 22 23 24 25 26 27 28 5 Risperidone is an antipsychotic medication used to treat symptoms of schizophrenia and bipolar disorder. Risperidone, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a694015.html (last updated July 25, 2013). Remeron is an antidepressant used to treat depression. Mirtazapine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a697009.html (last updated July 25, 2013). Oxcarbazepine is an anticonvulsant sometimes used to treat bipolar disorder. Oxcarbazepine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a601245.html (last updated July 25, 2003). Diphenhydramine is an antihistamine sometimes used to treat insomnia. Diphenhydramine, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682539.html (last updated July 25, 2013). 10 1 had first consulted a psychiatrist in April 2008 because of 2 depression and hearing voices. (Id.) Even though Plaintiff had 3 been prescribed a variety of medications while in custody and 4 Ms. George had stated four days earlier that he was taking a 5 four-drug regimen, she noted that he was taking only Remeron. 6 (Id.) Plaintiff stated that he had started using alcohol and 7 marijuana at age 10 and began using methamphetamine at around age 8 35. (Id.) He reported having abstained from drugs for three 9 years after completing a three-month drug program but had 10 recently used methamphetamine again. 11 (Id.) On November 6, 2008, Dr. Steven Horwitz, a psychiatrist, 12 evaluated Plaintiff, noting that he had a dirty [drug] test and 13 was [g]oing to a [drug] program in Long Beach. (AR 288.) 14 Plaintiff apparently could not recall any of his medications and 15 voiced concerns about their side effects. (Id.) 16 signed a consent form to restart Remeron. (Id.) 17 Plaintiff On December 8, 2008, Plaintiff was examined by Dr. Seehraj 18 S. Inderjit, a psychiatrist. (AR 287.) Dr. Inderjit noted that 19 Plaintiff reported hearing voices at night and getting frustrated 20 easily, with rapid mood changes and difficulty sleeping. (Id.) 21 Plaintiff reported that he had taken Risperdal and Trileptal6 in 22 prison with good results but that he disliked taking too many 23 pills. (Id.) Dr. Inderjit s mental exam revealed that 24 Plaintiff was [alert and oriented] x 3, clean, and cooperative. 25 6 Risperdal is a brand-name version of risperidone. 26 Risperidone, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ 27 druginfo/meds/a694015.html (last updated July 25, 2013). 28 Trileptal is a brand-name version of oxcarbazepine. Oxcarbazepine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a601245.html (last updated July 25, 2013). 11 1 (Id.) He exhibited fair eye contact, spontaneous speech, 2 euthymic mood, and appropriate affect, with no psychomotor 3 agitation or retardation and no recent suicidal or homicidal 4 ideation. (Id.) 5 risperidone. 6 Dr. Inderjit prescribed Remeron and (AR 291.) On January 3, 2009, Plaintiff was examined by 7 ophthalmologist Dr. David Paikal, who noted that Plaintiff 8 exhibited a large angle esotropia but no other unusual 9 pathological findings. (AR 294.) Plaintiff exhibited counting 10 fingers 7 vision, both with and without correction and from a 11 distance and at close range. (Id.) Dr. Paikal diagnosed 12 Plaintiff with strabismus8 but found Plaintiff s alleged level of 13 vision inconsistent with his degree of pathology, stating, I 14 find unlikely this patient have counting fingers vision in both 15 eyes. (Id.) He also noted that [Plaintiff] was able to enter 16 the exam room and to sit in the exam chair unassisted. 17 (Id.) On January 13, 2009, Dr. Charlene K. Krieg, a clinical 18 psychologist, performed a consultative psychological evaluation 19 of Plaintiff. (AR 297-302.) Plaintiff reported being unable to 20 fill out a written questionnaire because of poor vision and 21 stated that he needed glasses for reading. (AR 297.) Although 22 23 7 Counting fingers is a qualitative ophthalmological 24 term meaning that the patient has very limited vision that cannot be quantified with the use of an eye chart. See Williams v. 25 Astrue, No. CV-08-3075-CI, 2009 WL 3422788, at *12 (E.D. Wash. Oct. 22, 2009). 26 27 28 8 Strabismus is a disorder in which the two eyes do not properly line up to focus on the same object. Strabismus, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/ 001004.htm (last updated Mar. 22, 2013). 12 1 he arrived at the appointment by taxi (AR 297), he denied knowing 2 his address or phone number (AR 299). Dr. Krieg noted, He was 3 moderately to minimally cooperative and may not have been putting 4 forth his best effort. (AR 297.) Plaintiff reported that he 5 was depressed, anxious, and hearing voices. (AR 298.) He denied 6 any past psychiatric hospitalizations or homicidal ideation. 7 (Id.) He reported that he was attending 12-step meetings and 8 that he was able to take public transportation, manage self-care, 9 and handle his own funds. (AR 299.) Dr. Krieg stated that 10 [Plaintiff] was oriented to time, place, and purpose of the 11 visit ; [Plaintiff] spoke with a normal rate of speech that was 12 clear and easy to understand ; verbal response times were 13 normal ; [h]e was able to understand test questions and follow 14 directions ; and [he] presented with reserved mood and 15 constricted affect. (Id.) He scored in the severe deficit 16 range on Trails A and B, which tested Plaintiff s attention and 17 concentration with visual-scan and divided-attention tasks. (AR 18 300.) [He] reported not being able to see Trail test items. 19 (Id.) He also scored in the extremely low range on WAIS-III 20 Working Memory Subtests[] and in the moderate mental retarded 21 range on WMS-III Working Memory Subtests. (AR 299.) Dr. Krieg 22 noted, however, that [Plaintiff] may not have been putting forth 23 his best effort on al [sic] tasks; therefore, the test results 24 may not be valid. (AR 300.) Dr. Krieg explained: 25 He reported not being able to see many of the test items. 26 However, he performed . . . tasks that required verbal 27 comprehension[,] and he still did poorly. 28 the question of a conscious or unconscious effort to 13 This raises 1 feign 2 conceivable that his performance could be higher. impairment, i.e., fake bad. . . . [I]t is 3 If his test performance is not a valid indicator of 4 his current level of functioning, he would be capable of 5 understanding 6 directions, and completing tasks. 7 sustain performance on detailed and complex tasks. 8 would be able to accept instructions from supervisors and 9 interact with coworkers and the public. He would be able 10 clear instructions, following simple He would be able to He to maintain regular attendance in the workplace. 11 (AR 301-02.) Dr. Krieg opined that if his test results were 12 invalid and he [were] not abusing substances, there is no 13 impairment that would interfere with his ability to complete a 14 normal workday or workweek. 15 (AR 302.) On January 16, 2009, Dr. C. Eskander evaluated Dr. Paikal s 16 ophthalmologic records. (AR 320.) He found that current CE 17 eyes exam findings do not support VA alleged by [Plaintiff] and 18 noted that Plaintiff s daily activities of attending group 19 meetings, doing laundry, mopping floors, going outside alone, 20 watching television, and using glasses prescribed in 2008 were 21 inconsistent with blindness or severe vision limitations. 22 (Id.) On January 26, 2009, Dr. E. Harrison examined the then- 23 available psychiatric evidence of record. (AR 303-314.) He 24 opined that Plaintiff s psychological and substance-abuse 25 disorders caused mild restriction of daily activities, mild 26 difficulties maintaining social functioning, and moderate 27 difficulties maintaining concentration, persistence, or pace, but 28 there was insufficient evidence to suggest repeated episodes of 14 1 decompensation. (AR 311.) Dr. Harrison noted, He [was] not 2 credible at [consultative examiner Krieg s examination]; effort 3 not great, test scores not consistent with presentation or 4 treatment records or [activities of daily living], date last used 5 meth, and frequency, conflicts with [parole outpatient clinic] 6 records. (AR 313.) Dr. Harrison adopted the ALJ s January 2005 7 decision and completed a mental-RFC assessment, stating that 8 Plaintiff was not significantly limited except for moderate 9 limitations in his ability to understand, remember, and carry out 10 detailed instructions. 11 (AR 313, 315-17.) On January 26, 2009, disability examiner C. Stevenson 12 examined the available medical and psychological evidence of 13 record and completed a Chavez Rationale. 9 (AR 76.) Stevenson 14 indicated that there had been no material change in the evidence 15 related to Plaintiff s RFC findings, age, education, past work, 16 or transferrable skills since the ALJ s January 2005 decision, 17 and the relevant medical-vocational rules had not changed. (AR 18 76.) 19 20 21 22 23 24 25 26 27 28 9 Plaintiff s unfavorable January 2005 decision created a presumption of continuing nondisability that could be rebutted only if Plaintiff showed a changed circumstance affecting disability. Acquiescence Ruling 97-4(9), 1997 WL 742758, at *3 (Dec. 3, 1997). A Chavez Rationale addresses whether material changes have occurred that might rebut this presumption. See Garrett v. Astrue, No. 1:08cv01626 DLB, 2010 WL 546724, at *9 (E.D. Cal. Feb. 10, 2010) (citing Chavez, 844 F.2d at 694). Notwithstanding Stevenson s Chavez Rationale, Plaintiff alleged new impairments of depression and anxiety (AR 211), thereby rebutting the presumption of continuing nondisability. See Lester, 81 F.3d at 827 ( [The ALJ] may not apply res judicata where the claimant raises a new issue, such as the existence of an impairment not considered in the previous application. ) (citation omitted). The ALJ did not refer to the prior ALJ decision in his decision. 15 1 On February 9, 2009, Dr. Inderjit and Ms. George met with 2 Plaintiff. (AR 347.) Ms. George noted that Plaintiff reported 3 be[ing] clean a couple months. (Id.) Dr. Inderjit noted 4 Plaintiff s statements that he h[ad] nothing to live for but 5 that he was not suicidal; Plaintiff reported hearing voices but 6 was [alert and oriented] x 3, clean, and cooperative, with fair 7 eye contact, insight, judgment, and impulse control. 8 exhibited spontaneous speech and an euthymic mood. (Id.) (Id.) He Dr. 9 Inderjit increased his dosages of Remeron and Risperdal and 10 advised him to call 911 if suicidal ideation returned. 11 (Id.) On April 13, 2009, Plaintiff again met with Dr. Inderjit and 12 Ms. George. (AR 346-47.) Ms. George noted that Plaintiff was 13 anxious and nervous but had no suicidal ideation. (AR 347.) Dr. 14 Inderjit, however, noted that suicidal thoughts had cross[ed] 15 [Plaintiff s] mind. (Id.) Dr. Inderjit again increased 16 Plaintiff s Risperdal dosage and added Benadryl to his regimen. 17 (Id.) 18 On May 1, 2009, psychiatrist Dr. Mark Jaffe examined 19 Plaintiff. (AR 346.) He noted that Plaintiff was calm and 20 cooperative, with no suicidal or homicidal ideation. (Id.) He 21 stated that Plaintiff was depressed and hearing voices but had 22 never been hospitalized for psychiatric problems. 23 (Id.) On May 22, 2009, Dr. H. Crowhurst, a surgeon, performed a 24 case analysis in which he concurred with Dr. Eskander s January 25 16, 2009 opinion concerning Plaintiff s vision. (AR 322-24.) 26 Dr. Crowhurst noted, I have reviewed all the evidence in file 27 and the physical assessment (IE to adopt ALJ findings)[] of 28 01/16/09 is affirmed as written. 16 (AR 324.) He also observed 1 that Plaintiff exhibited poor effort during the consultative 2 examinations. 3 (Id.) On May 27, 2009, psychologist Dr. P. Davis reviewed 4 Plaintiff s psychological evidence of record and noted his 5 agreement with Dr. Harrison s opinion that the January 2005 ALJ 6 opinion should be adopted. 7 (Id.) On June 24, 2009, Plaintiff met with both Dr. Jaffe and Ms. 8 Gupta. (AR 345.) Ms. Gupta reported that he was upset that his 9 SSI claim had recently been denied but that he was doing fine. 10 (Id.) Ms. Gupta noted that he denie[d] symptoms of 11 depression[,] and his medication appear[ed] to be helping. 12 (Id.) Dr. Jaffe, however, noted that Plaintiff complained of 13 insomnia and depression and was still hearing voices. 14 15 344.) (Id.) On August 20, 2009, Ms. Gupta again met with Plaintiff. (AR She noted that he was unhappy and nervous but that he had 16 been looking for a part-time job. (Id.) He reported taking his 17 medications regularly and denied any suicidal or homicidal 18 ideation. (Id.) He complained that he [was] more forgetful and 19 confused than in the past. 20 (Id.) On September 22, 2009, Dr. Garrett M. Halweg, a 21 psychiatrist, examined and evaluated Plaintiff. 22 43.) (AR 336-37, 342- Dr. Halweg noted that Plaintiff was well groomed, 23 cooperative, alert, able to fully concentrate, and fully 24 oriented; his memory was grossly intact for immediate, recent, 25 and remote events. (AR 343.) He spoke normally and exhibited a 26 euthymic and appropriate affect. (Id.) He showed fair impulse 27 control, insight, judgment, and reliability. (Id.) 28 diagnosed Plaintiff with amphetamine dependence and 17 Dr. Halweg 1 schizoaffective disorder. (Id.) That same day, Plaintiff met 2 with Ms. Gupta, who noted that Plaintiff complained of boredom, 3 stress, and having nothing to do and no money, only TV is the 4 high light [sic] of the day. (Id.) Plaintiff also stated that 5 he had constant thoughts of hurting [himself] and others, 6 although he had no plan to do so. 7 (Id.) On September 28, 2009, Ms. Gupta met with Plaintiff and 8 noted that he was doing fine, sometimes gets nervous and 9 anxious[,] but [s]leep[ing] well with medication. 10 (AR 342.) Over the following months, Plaintiff stopped going to his 11 appointments with Dr. Halweg and Ms. Gupta. (AR 341-42.) He 12 missed appointments with Ms. Gupta on October 26 and December 7, 13 2009, as well as on January 19, 2010, and he missed an 14 appointment with Dr. Halweg on December 7, 2009. (Id.) During 15 this period, however, on November 2, 2009, Ms. Gupta completed a 16 four-page mental impairment questionnaire that described her 17 impressions of Plaintiff s impairments. (AR 331-34.) Ms. Gupta 18 noted that she had met with Plaintiff two to three times a month 19 since October 2008. (AR 331.) She checked boxes indicating that 20 Plaintiff exhibited decreased energy ; thoughts of suicide ; 21 intense and unstable interpersonal relationships and impulsive 22 and damaging behavior ; blunt, flat or inappropriate affect ; 23 poverty of content of speech ; generalized persistent anxiety ; 24 difficulty thinking or concentrating ; flight of ideas ; easy 25 distractibility ; memory impairment ; paranoid thinking or 26 inappropriate suspiciousness ; hallucinations ; and 27 disorientation to time and place. (AR 332.) She found that 28 Plaintiff did not have a low IQ or reduced intellectual 18 1 functioning but indicated that he suffered moderate restriction 2 of activities of daily living; marked difficulties in social 3 functioning; and extreme deficiencies of concentration, 4 persistence, or pace. (AR 333.) She also marked down that 5 Plaintiff had suffered four or more episodes of decompensation 6 within a 12-month period, with each episode lasting two weeks or 7 more. 8 9 (Id.) 3. Analysis In his November 2010 decision, the ALJ found Plaintiff only 10 partially credible, explaining that [Plaintiff s] statements 11 concerning the intensity, persistence and limiting effects of 12 [his] symptoms were not credible. (AR 36.) 13 challenged the ALJ s credibility finding. Plaintiff has not The ALJ gave Ms. 14 Gupta s November 2, 2009 mental-impairment questionnaire little, 15 if any, weight because it was generally unsupported by the 16 medical evidence, but he gave significant weight to Dr. 17 Krieg s January 13, 2009 consultative examination and Dr. 18 Harrison s January 26, 2009 state-agency consultation. (AR 37- 19 38.) 20 Plaintiff argues that the ALJ did not set forth sufficient 21 reasons for rejecting Ms. Gupta s opinions as set forth in her 22 November 2, 2009 mental-impairment questionnaire. 23 4.) (J. Stip. at This argument is unavailing because Ms. Gupta, an LCSW, was 24 not an acceptable medical source under 20 C.F.R. § 416.913. 25 Thus, her opinions were not entitled to special weight. 26 Moreover, even if Ms. Gupta were an acceptable source, her 27 mental-impairment questionnaire was a conclusory, brief check-off 28 report that the ALJ was entitled to disregard; in any event, the 19 1 ALJ provided specific and legitimate reasons for rejecting her 2 opinion. 3 Plaintiff relies on Gomez for the proposition that Ms. 4 Gupta s opinion should have been accorded the same weight as that 5 of a treating physician because Ms. Gupta worked in conjunction 6 with Dr. Halweg, the treating psychiatrist. 7 This argument is incorrect. (J. Stip. at 10.) In Gomez, the court held that a 8 nurse practitioner s opinion was properly considered as part of 9 the opinion of [the plaintiff s treating physician] because she 10 worked closely under [his] supervision and was acting as [his] 11 agent. Gomez, 74 F.3d at 971. The subsection of the regulation 12 that was the basis for the court s decision in Gomez has since 13 been deleted by amendment, however. 14 34,952 (June 1, 2000). See 65 Fed. Reg. 34,950, Thus, under the current regulations, a 15 social worker like Ms. Gupta qualifies only as an other source, 16 irrespective of her relationship to an acceptable medical source. 17 20 C.F.R. § 416.913(d); see Hudson, 2012 WL 5328786, at *4 n.4 18 ( Interdisciplinary team no longer listed under the definition 19 of acceptable medical sources); Farnacio v. Astrue, No. 11-CV20 065-JPH, 2012 WL 4045216, at *6 (E.D. Wash. Sept. 12, 2012) 21 ( There is no provision for a physician assistant to become an 22 acceptable medical source when supervised by a physician or as 23 part of an interdisciplinary team. ). In any event, there is no 24 evidence here to suggest that Ms. Gupta was working under Dr. 25 Halweg s close supervision or on his behalf. Neither Ms. Gupta s 26 nor Dr. Halweg s medical notes evidence any consultation or 27 interaction between them. Although Dr. Halweg s examination of 28 Plaintiff apparently took place on September 22, 2009, the same 20 1 date as one of Ms. Gupta s examinations (AR 342-43), Plaintiff 2 met with both Dr. Jaffe and Ms. Gupta on June 24, 2009, and none 3 of the evidence of record suggests that Ms. Gupta was also 4 working under Dr. Jaffe s supervision or acting as his agent, and 5 Plaintiff does not so contend. For all these reasons, Ms. 6 Gupta s opinion was not entitled to special weight because she 7 was merely an other source. See 20 C.F.R. § 416.913(d)(1) 8 (medical sources such as therapists who do not qualify as 9 acceptable medical sources are other sources); see also Gomez, 74 10 F.3d at 970-71 (ALJ may accord opinions of other sources less 11 weight than those of acceptable medical sources). 12 Even if Ms. Gupta did qualify as an acceptable medical 13 source, however, the ALJ did not err because Ms. Gupta s opinions 14 were conclusory, brief, and generally unsupported by the medical 15 evidence. Moreover, the ALJ provided specific and legitimate 16 reasons for rejecting her opinions, noting that Ms. Gupta s 17 questionnaire was inconsistent with (1) Dr. Inderjit s December 18 8, 2008 mental-status examination, (2) Dr. Krieg s January 13, 19 2009 consultative examination, (3) Dr. Halweg s September 22, 20 2009 mental-status examination, and (4) Dr. Harrison s January 21 29, 2009 consultative opinion. (AR 36-38.) The ALJ noted that 22 Ms. Gupta was not Plaintiff s sole doctor or medical personnel 23 from October 2008 to November 2009 and based his opinion on 24 evidence from other treatment visits that occurred during this 25 period. (AR 37.) He further noted that Ms. Gupta s 26 questionnaire did not indicate whether the purported limitations 27 contained therein applied to the entire period that Ms. Gupta 28 treated Plaintiff. (Id.) Indeed, Ms. Gupta left blank the 21 1 question asking for the earliest date the symptoms and 2 limitations began. 3 (AR 334.) The ALJ was entitled to reject Ms. Gupta s November 2, 2009 4 questionnaire because it was a check-off report that did not 5 contain explanations of the bases for its conclusions. 6 v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). See Crane Ms. Gupta merely 7 checked the corresponding boxes in the questionnaire to indicate 8 that Plaintiff had various conditions. (AR 332.) She also 9 merely checked the relevant questionnaire boxes to indicate that 10 Plaintiff exhibited moderate restriction of activities of daily 11 living, marked difficulties in maintaining social functioning, 12 and extreme deficiencies of concentration, persistence, or pace, 13 with four or more episodes of decompensation within a 12-month 14 period. (AR 333.) The questionnaire did not provide Ms. Gupta 15 any opportunity to elaborate on the bases underlying these 16 findings, and Ms. Gupta did not answer all of the relevant 17 questions on the form. Because Ms. Gupta s November 2009 18 questionnaire was an incomplete, brief, and conclusory check-off 19 form, the ALJ was entitled to disregard it. 20 Even if Ms. Gupta s questionnaire could not be disregarded 21 solely for being a check-off form, the ALJ articulated legally 22 sufficient reasons for disregarding it. The ALJ was entitled to 23 credit Drs. Inderjit s, Krieg s, Halweg s, and Harrison s 24 opinions over Ms. Gupta s because those doctors opinions were 25 based upon independent clinical findings and were thus 26 substantial evidence upon which the ALJ could properly rely. See 27 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 28 (explaining that a nontreating physician s contrary opinion may 22 1 constitute substantial evidence when it is consistent with other 2 independent evidence of record ). 3 First, the ALJ noted that Ms. Gupta s November 2009 4 questionnaire was not consistent with Dr. Inderjit s December 5 2009 examination. Dr. Inderjit stated that Plaintiff denied any 6 suicidal ideation and was alert, oriented, and cooperative. 7 287.) (AR Plaintiff also exhibited fair eye contact, spontaneous 8 speech, euthymic mood, and appropriate affect. (Id.) These 9 findings conflict directly with Ms. Gupta s opinion that 10 Plaintiff exhibited thoughts of suicide; blunt, flat or 11 inappropriate affect; and disorientation to time and place. 12 332.) (AR Because Dr. Inderjit was a treating psychiatrist, his 13 opinion was entitled to controlling weight. See 20 C.F.R. 14 § 416.927(c)(2); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 15 1989). 16 Second, Ms. Gupta s questionnaire was not consistent with 17 Dr. Krieg s January 13, 2009 consultative examination. Dr. Krieg 18 performed a complete psychological evaluation of Plaintiff (AR 19 297) and found that [Plaintiff] was oriented to time, place, and 20 purpose of the visit and was able to understand test questions 21 and follow directions. (AR 299.) Dr. Krieg noted that [h]e 22 reported getting along with family and friends (AR 301) and 23 denied being currently suicidal (AR 298). Dr. Krieg also noted 24 that [Plaintiff] was moderately to minimally cooperative and may 25 not have been putting forth his best effort, and she stated that 26 [i]f his test performance is not a valid indicator of his 27 current level of functioning, he would be capable of 28 understanding clear instructions, following simple directions, 23 1 and completing tasks. (AR 302.) She continued, He would be 2 able to maintain a regular attendance in the workplace. (Id.) 3 Dr. Krieg s examination report conflicts with Ms. Gupta s opinion 4 that Plaintiff exhibited thoughts of suicide, intense and 5 unstable interpersonal relationships, disorientation to time and 6 place, and easy distractibility. (AR 332.) Moreover, Ms. 7 Gupta s opinion that Plaintiff exhibited marked difficulties in 8 maintaining social functioning, extreme deficiencies of 9 concentration, persistence, or pace, and four or more repeated 10 episodes of decompensation within a 12-month period was 11 inconsistent with Dr. Krieg s opinion that if Plaintiff s test 12 results were invalid because of malingering, he would be able to 13 maintain continual attendance in the workplace (AR 57-58)10 and 14 Dr. Harrison s finding that there was insufficient evidence of 15 any episodes of decompensation (AR 311). Indeed, as the ALJ 16 noted, nowhere in the record is there any evidence of psychiatric 17 hospitalizations or other breakdowns. 18 (AR 36.) Third, Ms. Gupta s questionnaire was inconsistent with Dr. 19 Halweg s mental-status examination, performed on September 22, 20 2009, roughly one week before Ms. Gupta s questionnaire was 21 completed. Dr. Halweg noted that Plaintiff was alert, able to 22 23 24 25 26 27 28 10 Plaintiff argues that Dr. Krieg s opinion did not constitute substantial evidence because she reviewed no medical records. Indeed, on the face of the record, it appears that Dr. Krieg reviewed only Plaintiff s adult-disability report form. (AR 297.) The ALJ did not err, however, in according Dr. Krieg s opinion significant weight because it was based on her own clinical findings. See (AR 297, 302); Thomas, 278 F.3d at 957 ( [O]pinions of non-treating or non-examining physicians may . . . serve as substantial evidence when . . . consistent with independent clinical findings or other evidence in the record. ). 24 1 fully attend and concentrate[,] and not suicidal. (AR 343.) He 2 was fully oriented to person, place, date and circumstances, 3 with memory grossly intact for immediate, recent, and remote 4 events. (Id.) He exhibited a euthymic, appropriate affect and 5 fair impulse control, judgment, insight, and reliability. (Id.) 6 These findings contradicted Ms. Gupta s opinion that Plaintiff 7 exhibited suicidal ideation, disorientation to time and place, 8 flight of ideas, impaired memory, and inappropriate affect. 9 332.) (AR Because Dr. Halweg was a treating psychiatrist, his 10 opinion was entitled to controlling weight. See 20 C.F.R. 11 § 416.927(c)(2); Magallanes, 881 F.2d at 751. Moreover, even if 12 Ms. Gupta was working with Dr. Halweg, to the extent their 13 opinions conflicted his would presumably control because he was 14 an actual doctor. Cf. Gomez, 74 F.3d at 971 (doctor and nurse 15 practitioner working with him shared same opinion); Farnacio, 16 2012 WL 4045216, at *6 (Gomez inapplicable when doctor and aide 17 have differing opinions). 18 Fourth, Ms. Gupta s questionnaire was inconsistent with Dr. 19 Harrison s January 26, 2009 opinion, which was based on his 20 review of Plaintiff s psychological records. Dr. Harrison opined 21 that Plaintiff exhibited only mild restrictions of activities of 22 daily living, mild difficulties in maintaining social 23 functioning, and moderate difficulties in maintaining 24 concentration, persistence, or pace. 25 (AR 311.) Plaintiff argues that because Dr. Harrison reviewed only the 26 psychiatric records available as of January 26, 2009, his opinion 27 cannot be substantial evidence to support the ALJ s decision. 28 (J. Stip. at 5.) Plaintiff does not, however, cite any case law 25 1 to support this contention or articulate any standard for 2 determining how recent the reviewed psychiatric records must be 3 for a reviewing physician s opinion to constitute substantial 4 evidence. Nor does he point to any aspect of his condition that 5 changed after January 2009. In any event, to the extent 6 Plaintiff claims that the ALJ erred in rejecting Ms. Gupta s 7 opinion in favor of Dr. Harrison s because he was only a 8 reviewing physician, no error occurred. Because Ms. Gupta was 9 not an acceptable medical source, the ALJ did not need to rely on 10 substantial evidence to reject her opinion - Dr. Harrison s 11 opinion alone was sufficient. Cf. Lester, 81 F.3d at 831 12 (nonexamining physician s opinion cannot by itself be substantial 13 evidence to justify rejection of an examining or treating 14 physician s opinion). 15 The ALJ was also entitled to reject Ms. Gupta s opinion to 16 the extent it was based on Plaintiff s subjective complaints, the 17 rejection of which Plaintiff does not challenge. See (J. Stip. 18 at 9); Tonapetyan, 242 F.3d at 1149 (when ALJ properly discounted 19 claimant s credibility, he was free to disregard doctor s 20 opinion that was premised on claimant s subjective complaints). 21 Plaintiff further argues that the ALJ erred in not 22 contacting Ms. Gupta to ask her the time frame to which her 23 mental-impairment questionnaire applied. 24 unavailing. This argument is The ALJ had no duty to contact Ms. Gupta because the 25 record was sufficiently unambiguous and complete to allow for 26 proper evaluation of the evidence. See Brinegar, 337 F. App x at 27 712 (ALJ s duty to re-contact a treating physician only 28 triggered when that physician s evidence inadequate to allow the 26 1 ALJ to determine disability). The medical evidence of record, 2 including Drs. Harrison s, Inderjit s, Krieg s, and Halweg s 3 opinions, provided a complete picture of Plaintiff s level of 4 functioning, and remand is unwarranted. 5 VII. CONCLUSION 6 Consistent with the foregoing, and pursuant to sentence four 7 of 42 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 8 AFFIRMING the decision of the Commissioner and dismissing this 9 action with prejudice. IT IS FURTHER ORDERED that the Clerk 10 serve copies of this Order and the Judgment on counsel for both 11 parties. 12 13 14 DATED: August 2, 2013 15 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 11 This sentence provides: The [district] court shall 27 have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the 28 decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 27

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