Denise Dimasi v. Carolyn W. Colvin, No. 2:2014cv07992 - Document 16 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
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Denise Dimasi v. Carolyn W. Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DENISE DIMASI, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 14-7992-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for supplemental security income benefits 21 (“SSI”). 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 matter is before the Court on the parties’ Joint Stipulation, 24 filed June 26, 2015, which the Court has taken under submission 25 without oral argument. 26 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the This For the reasons stated below, the 27 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1964. 3 175.) 4 (Administrative Record (“AR”) She completed high school and worked as a house cleaner. (AR 194.) 5 On July 25, 2012, Plaintiff filed an application for SSI (AR 6 189), alleging that she had been unable to work since December 1, 7 2010, because of obsessive-compulsive disorder, anxiety, asthma, 8 “social phobia,” emphysema, and chronic obstructive pulmonary 9 disease (AR 193). After her application was denied initially and 10 on reconsideration, she requested a hearing before an 11 Administrative Law Judge. 12 December 23, 2013, at which Plaintiff, who was represented by 13 counsel, testified, as did both a medical and a vocational expert 14 (“VE”). 15 2014, the ALJ found Plaintiff not disabled. 16 August 12, 2014, the Appeals Council denied Plaintiff’s request 17 for review. 18 III. STANDARD OF REVIEW 19 (AR 61-81.) (AR 1.) (AR 126.) A hearing was held on In a written decision issued February 10, (AR 22-36.) On This action followed. Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 24 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 25 evidence means such evidence as a reasonable person might accept 26 as adequate to support a conclusion. 27 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 It is more than a scintilla but less than a preponderance. 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 3 substantial evidence supports a finding, the reviewing court 4 “must review the administrative record as a whole, weighing both 5 the evidence that supports and the evidence that detracts from 6 the Commissioner’s conclusion.” 7 720 (9th Cir. 1996). 8 either affirming or reversing,” the reviewing court “may not 9 substitute its judgment” for that of the Commissioner. 10 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. 11 To determine whether THE EVALUATION OF DISABILITY 12 People are “disabled” for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or has lasted, or is expected to 16 last, for a continuous period of at least 12 months. 17 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 18 1992). 42 U.S.C. 19 A. 20 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 21 assess whether a claimant is disabled. 20 C.F.R. 22 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 23 1995) (as amended Apr. 9, 1996). 24 Commissioner must determine whether the claimant is currently 25 engaged in substantial gainful activity; if so, the claimant is 26 not disabled and the claim must be denied. In the first step, the § 416.920(a)(4)(i). 27 If the claimant is not engaged in substantial gainful 28 activity, the second step requires the Commissioner to determine 3 1 whether the claimant has a “severe” impairment or combination of 2 impairments significantly limiting her ability to do basic work 3 activities; if not, the claimant is not disabled and her claim 4 must be denied. 5 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 6 impairments, the third step requires the Commissioner to 7 determine whether the impairment or combination of impairments 8 meets or equals an impairment in the Listing of Impairments 9 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 10 1; if so, disability is conclusively presumed. 11 § 416.920(a)(4)(iii). 12 If the claimant’s impairment or combination of impairments 13 does not meet or equal an impairment in the Listing, the fourth 14 step requires the Commissioner to determine whether the claimant 15 has sufficient residual functional capacity (“RFC”)1 to perform 16 her past work; if so, she is not disabled and the claim must be 17 denied. 18 proving she is unable to perform past relevant work. 19 F.2d at 1257. 20 case of disability is established. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 21 If that happens or if the claimant has no past relevant 22 work, the Commissioner then bears the burden of establishing that 23 the claimant is not disabled because she can perform other 24 substantial gainful work available in the national economy. 25 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 comprises the fifth and final step in the sequential analysis. 2 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 3 at 1257. 4 B. The ALJ’s Application of the Five-Step Process 5 At step one, the ALJ found that Plaintiff had not engaged in 6 substantial gainful activity since July 25, 2012, her application 7 date. 8 severe impairments of COPD, asthma, hypertension, “substance 9 addiction (speed/methamphetamine),” and “substance addiction (AR 24.) At step two, he concluded that Plaintiff had 10 (Xanax).”2 11 Plaintiff’s impairments did not meet or equal a listing. 12 25.) 13 perform light work with additional restrictions. 14 additional physical restrictions were that she could stand, walk, 15 and sit six hours in an eight-hour workday; and occasionally do 16 postural activities but not those involving ladders, ropes, or 17 scaffolds. 18 that she was precluded from working at unprotected heights or in 19 “environments with excessive air pollution” or “temperature 20 extremes.” 21 contact” and could occasionally work around coworkers. 22 Based on the VE’s testimony, the ALJ concluded that Plaintiff 23 could not perform her past relevant work as a house cleaner. 24 34.) (Id.) At step three, the ALJ determined that (AR At step four, he found that Plaintiff had the RFC to (Id.) (Id.) (AR 27.) Her Her additional nonexertional restrictions were She was also limited to “minimum public (Id.) (AR At step five, the ALJ found that Plaintiff could perform 25 26 27 28 2 Xanax is used to treat anxiety disorders and panic attacks. See Alprazolam, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a684001.html (last revised Nov. 1, 2010). 5 1 jobs existing in significant numbers in the national economy. 2 (AR 35.) 3 V. Accordingly, he found her not disabled. (Id.) DISCUSSION A. 4 5 Any Error in the ALJ’s Hypothetical to the VE Was Harmless 6 Plaintiff contends that the ALJ erred in relying on the VE’s 7 testimony because his hypothetical question to the VE presented a 8 limitation on coworker contact of “at least occasionally, between 9 occasionally and frequently” instead of “occasional,” which was 10 what he ultimately found in his RFC determination. 11 6-7.) 12 For the reasons discussed below, remand is not warranted. 1. 13 (J. Stip at Applicable law At step five of the five-step process, the Commissioner has 14 the burden to demonstrate that the claimant can perform some work 15 that exists in “significant numbers” in the national or regional 16 economy, taking into account the claimant’s RFC, age, education, 17 and work experience. 18 Cir. 1999); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.960(c). 19 The Commissioner may satisfy that burden either through the 20 testimony of a VE or by reference to the Medical-Vocational 21 Guidelines appearing in 20 C.F.R. part 404, subpart P, appendix 22 2. 23 Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Tackett, 180 F.3d at 1100-01. The ALJ should ask the VE a hypothetical question 24 “reflecting all the claimant’s limitations, both physical and 25 mental, supported by the record.” 26 1161 (9th Cir. 2012). 27 testimony in response to the hypothetical in determining the 28 claimant’s RFC. Hill v. Astrue, 698 F.3d 1153, The ALJ may properly rely on the VE’s Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 6 1 Cir. 2005). 2 the claimant’s limitations, “then the expert’s testimony has no 3 evidentiary value to support a finding that the claimant can 4 perform jobs in the national economy.” 5 (citing Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)). 6 7 2. If, however, the hypothetical does not reflect all Hill, 698 F.3d at 1162 Relevant background The ALJ first presented to the VE a hypothetical person of 8 Plaintiff’s “education, training, and work history” with the 9 following limitations: 10 [S]he can lift no more than 20 pounds, and she can only 11 do that occasionally. She can lift 10 pounds frequently. 12 She can stand and walk for six hours. 13 six hours. 14 occasional, with the exception of ladders, ropes, and 15 scaffolding, 16 unprotected heights. 17 working in environments with excessive air pollution, 18 like dust, fumes, gasses. 19 working in temperature extremes, either extreme hot or 20 extreme cold. She can sit for The posturals, all of them are limited to which is totally precluded, as is And she’s also precluded from And she’s precluded from 21 (AR 77.) 22 to perform Plaintiff’s past relevant work, but she would be able 23 to perform the light, unskilled jobs of office helper, DOT 24 239.567-010, 1991 WL 672232; mail clerk, DOT 209.687-026, 1991 WL 25 671813; and information clerk, DOT 237.367-018, 1991 WL 672187. 26 (AR 78.) 27 28 The VE testified that such a person would not be able The ALJ then presented a second hypothetical person, with all the limitations of the first plus “minimum public contacts,” 7 1 meaning that she “cannot work around lots of people” but “can 2 work around coworkers at least occasionally, between occasionally 3 and frequently.” 4 would still be able to perform the jobs of office helper and mail 5 clerk but not information clerk because “[t]hat would be frequent 6 to constant public contact.” 3. 7 (AR 79.) The VE testified that such a person (Id.) Analysis 8 As Plaintiff correctly notes, the ALJ’s second hypothetical 9 to the VE stated that the person could work around coworkers “at 10 least occasionally, between occasionally and frequently” (AR 79), 11 which was different from the ALJ’s RFC determination that 12 Plaintiff could only “occasionally” work around coworkers (AR 13 27). 14 (“occasionally” means “occurring from very little up to one-third 15 of the time” and “frequent” means “occurring from one-third to 16 two-thirds of the time”). 17 discrepancy, however, was harmless because it was 18 “inconsequential to the ultimate nondisability determination.” 19 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 20 2006); see also Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 21 2012). 22 See SSR 83-10, 1983 WL 31251, at *5-6 (Jan. 1, 1983) Any error arising from the The DOT’s descriptions indicate that in both the office- 23 helper and mail-clerk jobs, dealing with people is “not 24 significant.” 25 office-helper job involves speaking with or signaling to people 26 but “Not Significant[ly]”); DOT 209.687-026, 1991 WL 671813 27 (indicating that mail-clerk job involves taking instructions or 28 helping people but “Not Significant[ly]”); see also DOT app. B - DOT 239.567-010, 1991 WL 672232 (indicating that 8 1 Explanation of Data, People, and Things, 1991 WL 688701 (DOT’s 2 “Worker Function” codes state how worker functions in listed job 3 with respect to “Data,” “People,” and “Things”). 4 DOT descriptions indicate that talking is “[o]ccasionally” 5 present as an office helper and “not present” as a mail clerk. 6 DOT 239.567-010, 1991 WL 672232; DOT 209.687-026, 1991 WL 671813. 7 The DOT also states that the office-helper and mail-clerk jobs 8 are unskilled, which indicates limited contact with people. 9 20 C.F.R. pt. 404, subpt. P, app. 2 § 202.00(g) (“the primary Moreover, the See 10 work functions in the bulk of unskilled work relate to working 11 with things (rather than with data or people)”); SSR 85–15, 1985 12 WL 56857, at *4 (Jan. 1, 1985) (unskilled jobs “ordinarily 13 involve dealing primarily with objects, rather than with data or 14 people”). Because the office-helper and mail-clerk jobs both involve 15 16 an insignificant amount of interaction with people, the ALJ would 17 still have found Plaintiff capable of performing them if he had 18 presented an occasional rather than occasional-to-frequent 19 limitation on coworker contact in his second hypothetical to the 20 VE. 21 limitations in the second hypothetical eliminated the 22 information-clerk job was not because it required a greater 23 degree of coworker contact but rather a greater degree of public 24 contact. 25 clerk job would not “fit” because “[t]hat would be frequent to 26 constant public contact”).) 27 between the ALJ’s hypothetical to the VE and his RFC 28 determination was inconsequential to the ultimate finding of Indeed, the VE testified that the reason the additional (AR 79 (testifying that “[o]f the three,” information- Thus, any error in the difference 9 1 nondisability and therefore harmless.3 2 1115; Stout, 454 F.3d at 1055. See Molina, 674 F.3d at 3 Plaintiff is not entitled to remand on this ground. 4 B. 5 6 The ALJ Properly Assessed the Medical Findings and Opinions Plaintiff contends that the ALJ erred in assessing the 7 findings and opinions of medical sources concerning her mental 8 health. 9 failed to develop the record by not ordering a psychiatric (J. Stip. at 8-9, 11.) She also claims that the ALJ 10 consultative examination or having a psychiatrist or psychologist 11 testify as a medical expert at the hearing. 12 For the reasons discussed below, remand is not warranted. 13 1. (See id. at 9-11.) Applicable law 14 Three types of physicians may offer opinions in Social 15 Security cases: (1) those who directly treated the plaintiff, (2) 16 those who examined but did not treat the plaintiff, and (3) those 17 who did neither. 18 opinion is generally entitled to more weight than that of an 19 examining physician, and an examining physician’s opinion is Lester, 81 F.3d at 830. A treating physician’s 20 21 22 23 24 25 26 27 28 3 For the same reason, the ALJ’s failure under Social Security Ruling 00-4p to ask the VE whether his testimony was consistent with the DOT was also harmless. See Massachi v. Astrue, 486 F.3d 1149, 1152-54 & n.19 (9th Cir. 2007) (ALJ has duty under SSR 00-4p to ask VE about “any possible conflict” between VE’s testimony and DOT, but failure to do so is harmless when no conflict exists or VE provided “sufficient support” for conclusion “so as to justify any potential conflicts”); Stiller v. Colvin, No. CV 12-9321 RNB, 2013 WL 3878950, at *5 (C.D. Cal. July 26, 2013) (ALJ’s failure to ask VE whether testimony conflicted with DOT was harmless because limitation to no public contact was not inconsistent with DOT’s description that dealing with people was “not significant” part of job). 10 1 generally entitled to more weight than that of a nonexamining 2 physician. Id. An opinion from a nonacceptable medical source, however, may 3 4 be rejected for “germane” reasons. 5 also § 416.913(a) (“[a]cceptable medical sources” include only 6 licensed physicians, psychologists, optometrists, podiatrists, 7 and speech pathologists). 8 2. Molina, 674 F.3d at 1111; see Relevant background 9 On June 4, 2012, Margaret Duenez, a licensed clinical social 10 worker, performed an initial psychiatric evaluation of Plaintiff. 11 (AR 406-12.) 12 Anxiolytic Depend[ence]” and OCD. 13 Axis IV she noted that Plaintiff tends to “isolate [a]nd 14 withdraw.” 15 necessity for mental health services as evidenced by social 16 withdrawal and isolation, homelessness and the inability to 17 sustain employment due to symptoms.” 18 Plaintiff to La Puente Valley Mental Health Center for treatment. 19 (AR 413.) 20 At Axis I she assessed “Sedative, Hypnotic or (AR 406.) (AR 406; see also AR 413.) At Duenez concluded, “Client meets medical (AR 407.) She referred The ALJ gave “little” weight to Duenez’s opinion that 21 Plaintiff was unable to sustain employment because it was “not 22 consistent with the medical evidence record as a whole.” 23 33.) 24 she was “not familiar with the Social Security Administration’s 25 precise disability guidelines” and “the finding of disabled is 26 one reserved for the Commissioner.” 27 28 (AR The ALJ also gave little weight to Duenez’s opinion because (Id.) On February 27, 2013, Ann Hedges, a registered nurse and assessor for the Los Angeles County Department of Mental Health, 11 1 completed a “Summary of Findings” in response to Plaintiff’s 2 record-retrieval request. 3 that the report was “a summary of treatment records that have 4 been retrieved from one or more mental health providers who have 5 provided mental health treatment to the SSI applicant.” 6 387.) 7 treating provider.” 8 records, Hedges opined that because of severe anxiety and “other 9 functional limitations, ie. insomnia, difficulty being in public (AR 385-87.) A footnote indicated (AR It also stated that the “author of this summary is not a (Id.) Based on a review of Plaintiff’s 10 places, isolation, nervousness/shakes, feelings of people 11 watching/staring and judging her, heart palpitations, decreased 12 memory and concentration, and her OCD symptom of over-cleaning,” 13 Plaintiff would “not be able to sustain employment as she lacks 14 the ability to function around others, follow instructions, and 15 perform detailed and complex tasks.” 16 report, however, Hedges marked an option entitled “Supportive but 17 lacks adequate clinical documentation.” 18 (Id.) At the end of the (Id.) The ALJ gave “little” weight to Hedges’s opinion because it 19 was “not consistent with the medical evidence record as a whole,” 20 noting Hedges’s acknowledgment that her opinion lacked adequate 21 clinical documentation. 22 medical evidence record . . . indicates [Plaintiff] is able to 23 function around others, follow instructions, and perform detailed 24 and complex tasks.” 25 the opinion because Hedges was “not familiar with the Social 26 Security Administration’s precise disability guidelines.” (AR 33.) (Id.) He noted that “[m]uch of the The ALJ also gave little weight to 27 28 12 (Id.) 1 2 3. Analysis As an initial matter, Plaintiff fails to establish that the 3 ALJ had a duty to develop the record further by ordering a 4 psychiatric consultative examination or having a psychiatrist or 5 psychologist testify at the hearing. 6 a “duty to fully and fairly develop the record and to assure that 7 the claimant’s interests are considered.” 8 Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (citation omitted); 9 see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 10 (9th Cir. 2003) (“In making a determination of disability, the 11 ALJ must develop the record and interpret the medical 12 evidence.”). 13 produce evidence in support of her disability claim. 14 v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (as amended). 15 Moreover, the “ALJ’s duty to develop the record further is 16 triggered only when there is ambiguous evidence or when the 17 record is inadequate to allow for proper evaluation of the 18 evidence.” 19 (as amended May 19, 2011) (citation omitted); accord Tonapetyan 20 v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 21 discretion in determining whether to order a consultative 22 examination and may do so when “ambiguity or insufficiency in the 23 evidence . . . must be resolved.” 24 838, 842 (9th Cir. 2001) (citation omitted); § 416.919a(b) (“We 25 may purchase a consultative examination to try to resolve an 26 inconsistency in the evidence or when the evidence as a whole is 27 insufficient to support a determination or decision on your 28 claim.”). It is true that an ALJ has Garcia v. Comm’r of But it nonetheless remains Plaintiff’s burden to See Mayes McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010) 13 An ALJ has broad Reed v. Massanari, 270 F.3d 1 Plaintiff claims that the record “is ambiguous as to the 2 severity of her mental limitations” because “physicians of 3 record” were unable to determine whether the cause of her 4 shortness of breath was COPD or anxiety. 5 support, she cites only an October 3, 2013 treatment note from a 6 pharmacist. 7 that the record was inadequate to properly evaluate Plaintiff’s 8 mental limitations, especially given that on July 23, 2012, 9 examining psychiatrist Shahin Khashayar diagnosed social phobia (Id.; see AR 574.) (J. Stip. at 10.) In But such evidence fails to show 10 and ruled out OCD and substance dependence. 11 Khashayar’s notes indicated that Plaintiff’s concentration was 12 “fine” and calculation was “fair.” 13 reported that Xanax “control[led] her symptoms of social phobia 14 very well without having any side effects” (AR 270), refused 15 changes to her treatment regimen (AR 273), and told Dr. Khashayar 16 she would continue seeing her primary-care physician for 17 treatment (id.; see also AR 501 (on Sept. 5, 2013, Plaintiff 18 reporting that Xanax “has helped her reduce anxiety and function 19 as a cleaning lady for a while”)). 20 (Id.) (AR 272.) Dr. Further, Plaintiff Indeed, aside from anxiety, Plaintiff exhibited normal (See, e.g., AR 21 psychiatric functioning throughout the record. 22 331 (normal insight and judgment on Sept. 25, 2012), 439 (stable 23 on Dec. 18, 2012), 464 (normal insight and judgment on May 9, 24 2013), 447 (stable on July 17, 2013), 504 (unimpaired 25 intellectual functioning and minimal impairment of judgment and 26 insight on Sept. 5, 2013).) 27 or inadequate; rather, as the ALJ noted, the record generally 28 showed “conservative, routine treatment with medications” and Thus, the record was not ambiguous 14 1 “many normal psychiatric findings” but also demonstrated “issues 2 . . . with social functioning.” 3 duty to develop the record further. 4 CV 13-6164 AGR, 2014 WL 2197781, at *4 (C.D. Cal. May 27, 2014) 5 (finding that ALJ did not violate duty to develop record in not 6 ordering psychiatric consultative examination because record was 7 neither ambiguous nor inadequate and showed that claimant’s 8 schizophrenia was stable and well controlled by medication); 9 Walsh v. Astrue, No. EDCV 11-170 AGR, 2012 WL 425331, at *4 n.5 (AR 32.) Thus, the ALJ had no See Meltzer v. Colvin, No. 10 (C.D. Cal. Feb. 10, 2012) (finding that ALJ did not violate duty 11 to develop record in not ordering psychiatric consultative 12 examination or medical-expert testimony because record was 13 neither ambiguous nor inadequate and ALJ thoroughly discussed 14 “plethora” of mental-health records). 15 Plaintiff challenges the ALJ’s evaluation of medical 16 evidence regarding only her mental limitations, not her physical 17 impairments. 18 portion of ALJ’s decision evaluating medical evidence of mental 19 impairments).) 20 assessment of Duenez’s June 4, 2012 opinion and Hedges’s February 21 27, 2013 opinion, given that she discusses the ALJ’s rejection of 22 opinions from “other sources” and whether his reasons for doing 23 so were “germane.” 24 concede (id. at 10 (arguing that “the record does not contain 25 acceptable medical source opinion evidence from a psychiatric 26 standpoint”)), Duenez and Hedges were indeed nonacceptable 27 medical sources, see SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 28 2006) (“licensed clinical social workers” are not acceptable (See J. Stip. at 11 (citing AR 33 and quoting Further, she appears to challenge only the ALJ’s (See id. at 9, 11.) 15 As Plaintiff appears to 1 medical source); see also § 416.913(d) (“nurse-practitioners” and 2 “social welfare agency personnel” are “other sources”). 3 the ALJ needed to give only germane reasons for rejecting their 4 opinions, see Molina, 674 F.3d at 1111, which he did. 5 Thus, As an initial matter, Duenez’s statement that Plaintiff was 6 unable to sustain employment was not a conclusion in itself but 7 rather one of several reasons she gave for concluding that 8 Plaintiff should be referred to a psychiatrist. 9 (concluding that mental-health services were medically necessary, (See AR 407 10 “as evidenced by social withdrawal and isolation, homelessness 11 and the inability to sustain employment due to symptoms”).) 12 Moreover, when read in context, the statement likely referred to 13 Plaintiff’s inability to continue working as a house cleaner, not 14 an inability to work in any job. 15 accorded little weight to the statement because Duenez was “not 16 familiar with the Social Security Administration’s precise 17 disability guidelines” and because “the finding of disabled is 18 one reserved for the Commissioner.” 19 (in determining weight to give medical opinions, ALJ considers 20 “amount of understanding of [Social Security Administration’s] 21 disability programs and their evidentiary requirements that an 22 acceptable medical source has”); § 416.927(d)(1) (“A statement by 23 a medical source that you are ‘disabled’ or ‘unable to work’ does 24 not mean that we will determine that you are disabled.”); cf. SSR 25 96-5p, 1996 WL 374183, at *5 (July 2, 1996) (treating-source 26 opinions that person is disabled or unable to work “can never be 27 entitled to controlling weight or given special significance”). 28 The ALJ also properly gave little weight to Duenez’s 16 In any event, the ALJ properly (AR 33); see § 416.927(c)(6) 1 findings because they were “not consistent with the medical 2 evidence record as a whole.” 3 weight given “the more consistent an opinion is with the record 4 as a whole”). 5 Plaintiff had issues with social functioning, it also showed that 6 she was stable and that her concentration, intellectual 7 functioning, insight, and judgment were unimpaired or not 8 significantly impaired. 9 504.) (AR 33); see § 416.927(c)(4) (more As discussed, although the record showed that (See, e.g., AR 272, 331, 439, 447, 464, Accordingly, the ALJ included limitations on contact with 10 coworkers and the public in his RFC determination. 11 any indication in Duenez’s findings that Plaintiff could not work 12 in any job was inconsistent with the record, especially given 13 that Plaintiff testified that she stopped working in her house- 14 cleaner job because of breathing problems, not anxiety. 15 see also AR 386 (Hedges noting that Plaintiff “stopped working 2 16 years ago due to COPD”).) 17 Duenez’s findings. 18 KLS, 2014 WL 1116780, at *4 (W.D. Wash. Mar. 20, 2014) (finding 19 that inconsistency with record as whole was germane reason for 20 rejecting opinion of licensed clinical social worker); cf. 21 Bayliss, 427 F.3d at 1218 (“[i]nconsistency with medical 22 evidence” is germane reason for discounting lay opinion); Thomas 23 v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not 24 accept the opinion of any physician, including a treating 25 physician, if that opinion is brief, conclusory, and inadequately 26 supported by clinical findings.”). 27 28 (AR 27.) But (AR 75; Thus, the ALJ permissibly discounted See Fentress v. Colvin, No. 3:13-cv-05078- The ALJ properly gave little weight to Hedges’s February 27, 2013 opinion for the same reasons he discounted Duenez’s 17 1 findings. As he noted (AR 33), Hedges herself acknowledged that 2 her findings “lack[ed] adequate clinical documentation” (AR 387). 3 See Jordan v. Colvin, 603 F. App’x 611, 611 (9th Cir. 2015) 4 (finding that nurse practitioners’ opinions’ substantial 5 departure from other medical evidence in record was germane 6 reason for rejecting them); Fentress, 2014 WL 1116780, at *4 (ALJ 7 properly rejected opinion of nonacceptable medical sources 8 because record contained “little if any objective clinical 9 support for the level of functional restriction they assessed”). 10 And as discussed above, other parts of the record showed mostly 11 normal psychiatric and psychological findings. 12 Hedges’s opinion was inconsistent with the record, which was a 13 germane reason for discounting it. 14 Bayliss, 427 F.3d at 1218; Thomas, 278 F.3d at 957. 15 was not familiar with the SSA’s “precise disability guidelines” 16 (AR 33) was also a germane reason for rejecting her opinion that 17 Plaintiff “will not be able to sustain employment” (AR 387), see 18 § 416.927(c)(6). Accordingly, See § 416.927(c)(4); cf. That Hedges 19 Plaintiff argues that accepting as germane the ALJ’s 20 reasoning that the nonacceptable medical sources were not 21 familiar with the SSA’s precise disability guidelines “would 22 render all opinion evidence from non-Social Security 23 contractors/employees moot, since logically none of them would be 24 familiar with the precise definition of disability.” 25 at 11.) 26 nonacceptable medical sources may well be familiar with the SSA’s 27 guidelines. 28 Plaintiff was unable to do any work was a basis for finding that (J. Stip. But her assumption is not necessarily true; some The extent to which Hedges and Duenez opined that 18 1 they were not familiar with all of the SSA’s requirements for 2 determining disability. 3 findings were inconsistent with the record and were thus properly 4 rejected for that germane reason as well. 5 6 7 And in any event, as discussed, their Plaintiff is not entitled to remand on this ground. VI. CONCLUSION Consistent with the foregoing, and under sentence four of 42 8 U.S.C. § 405(g),4 IT IS ORDERED that judgment be entered 9 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 10 request for remand, and DISMISSING this action with prejudice. 11 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 12 and the Judgment on counsel for both parties. 13 14 DATED: October 6, 2015 15 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 4 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 19
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