Angela A. Murchison v. Carolyn W. Colvin, No. 2:2015cv05857 - Document 27 (C.D. Cal. 2016)

Court Description: MEMORANDUM DECISION 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. (See Order for details) (bem)

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Angela A. Murchison v. Carolyn W. Colvin Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANGELA A. MURCHISON, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 15-5857-JPR ) ) ) MEMORANDUM DECISION 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 August 10, 2016, 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 The For the reasons stated below, the 27 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1955. (Administrative Record (“AR”) 3 49.) 4 She worked as an administrative assistant and loan processor. 5 (AR 90.) 6 She completed 12th grade and one year of college. (Id.) On February 10, 2012, Plaintiff applied for SSI, alleging 7 that she had been unable to work since October 13, 1997 (AR 49, 8 154), because of a “[m]ajor depressive disorder” (AR 81). 9 her application was denied, she requested a hearing before an 10 Administrative Law Judge. 11 March 7, 2013, at which Plaintiff, who was not represented by 12 counsel, requested an adjournment so that she could get a lawyer. 13 (AR 73-80.) 14 Plaintiff, who was then represented by counsel, testified, as did 15 a vocational expert. 16 November 22, 2013, the ALJ found Plaintiff not disabled. 17 40.) 18 review (AR 20-21), which was denied on June 10, 2015 (AR 1-3). 19 This action followed. 20 III. STANDARD OF REVIEW 21 (AR 94, 99.) After A hearing was held on A second hearing was held on July 19, 2013, at which (AR 44-72.) In a written decision issued (AR 26- On January 15, 2014, Plaintiff sought Appeals Council Under 42 U.S.C. § 405(g), a district court may review the 22 Commissioner’s decision to deny benefits. 23 decision should be upheld if they are free of legal error and 24 supported by substantial evidence based on the record as a whole. 25 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 26 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 27 evidence means such evidence as a reasonable person might accept 28 as adequate to support a conclusion. 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 It is more than a scintilla but less than a preponderance. 3 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 4 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 5 substantial evidence supports a finding, the reviewing court 6 “must review the administrative record as a whole, weighing both 7 the evidence that supports and the evidence that detracts from 8 the Commissioner’s conclusion.” 9 720 (9th Cir. 1996). To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 either affirming or reversing,” the reviewing court “may not 11 substitute its judgment” for the Commissioner’s. 12 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 13 People are “disabled” for purposes of receiving Social 14 Security benefits if they are unable to engage in any substantial 15 gainful activity owing to a physical or mental impairment that is 16 expected to result in death or has lasted, or is expected to 17 last, for a continuous period of at least 12 months. 18 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 19 1992). 42 U.S.C. 20 A. The Five-Step Evaluation Process 21 The ALJ follows a five-step evaluation process to assess 22 whether a claimant is disabled. 23 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 24 amended Apr. 9, 1996). 25 determine whether the claimant is currently engaged in 26 substantial gainful activity; if so, the claimant is not disabled 27 and the claim must be denied. 28 20 C.F.R. § 416.920(a)(4); In the first step, the Commissioner must § 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful 3 1 activity, the second step requires the Commissioner to determine 2 whether the claimant has a “severe” impairment or combination of 3 impairments significantly limiting her ability to do basic work 4 activities; if not, the claimant is not disabled and the claim 5 must be denied. 6 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 7 impairments, the third step requires the Commissioner to 8 determine whether the impairment or combination of impairments 9 meets or equals an impairment in the Listing of Impairments 10 (“Listing”) at 20 C.F.R. part 404, subpart P, appendix 1; if so, 11 disability is conclusively presumed. § 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 RFC to perform her past work; if so, she is not 16 disabled and the claim must be denied. 17 claimant has the burden of proving she is unable to perform past 18 relevant work. 19 that burden, a prima facie case of disability is established. 20 Id. 21 work, the Commissioner then bears the burden of establishing that 22 the claimant is not disabled because she can perform other 23 substantial gainful work available in the national economy. 24 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 25 comprises the fifth and final step in the sequential analysis. 26 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 27 at 1257. § 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The If the claimant meets If that happens or if the claimant has no past relevant 28 4 That determination 1 B. The ALJ’s Application of the Five-Step Process 2 At step one, the ALJ found that Plaintiff had not engaged in 3 substantial gainful activity since February 10, 2012, the filing 4 date.1 5 the severe impairment of bipolar disorder. 6 he determined that her impairment did not meet or equal a 7 listing. (AR 31.) At step two, he concluded that Plaintiff had (Id.) At step three, (AR 32.) 8 At step four, the ALJ found that Plaintiff had the RFC to 9 perform a full range of work at all exertional levels but with 10 nonexertional limitations. 11 perform “simple, repetitive, tasks” and “work occasionally with 12 coworkers and supervisors,” but she was not able to work with the 13 public or perform “higher stress work such as work requiring 14 production quotas or assembly line work.” 15 (AR 34.) Specifically, she could (Id.) The ALJ found that Plaintiff had no past relevant work. (AR 16 38.) 17 Plaintiff could perform jobs existing in significant numbers in 18 the national economy. 19 disabled. 20 V. 21 Finally, based on the VE’s testimony, he concluded that (AR 39.) Accordingly, he found her not (Id.) DISCUSSION Plaintiff alleges that the ALJ improperly rejected the 22 opinion evidence of treating doctor Cynthia Washington and 23 examining doctor Ernest Bagner. 24 Specifically, Plaintiff alleges that the ALJ “failed to 25 articulate a legally sufficient rationale” for rejecting their (J. Stip. at 4-5.) 26 27 28 1 Because SSI payments may not be retroactively awarded, Plaintiff’s effective onset date is her filing date. See SSR 8320, 1983 WL 31249, at *1 (1983). 5 1 opinions about her allegedly limited ability to “maintain 2 attendance in the workplace.” 3 discussed below, remand is not warranted. (Id. at 5, 9.) For the reasons 4 A. Applicable Law 5 Three types of physicians may offer opinions in Social 6 Security cases: (1) those who directly treated the plaintiff, (2) 7 those who examined but did not treat the plaintiff, and (3) those 8 who did neither. 9 opinion is generally entitled to more weight than an examining 10 physician’s, and an examining physician’s opinion is generally 11 entitled to more weight than a nonexamining physician’s. Lester, 81 F.3d at 830. A treating physician’s Id. 12 This is so because treating physicians are employed to cure 13 and have a greater opportunity to know and observe the claimant. 14 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 15 treating physician’s opinion is well supported by medically 16 acceptable clinical and laboratory diagnostic techniques and is 17 not inconsistent with the other substantial evidence in the 18 record, it should be given controlling weight. 19 If a treating physician’s opinion is not given controlling 20 weight, its weight is determined by length of the treatment 21 relationship, frequency of examination, nature and extent of the 22 treatment relationship, amount of evidence supporting the 23 opinion, consistency with the record as a whole, the doctor’s 24 area of specialization, and other factors. 25 If a § 416.927(c)(2). § 416.927(c)(2)-(6). When a treating physician’s opinion is not contradicted by 26 other evidence in the record, it may be rejected only for “clear 27 and convincing” reasons. 28 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 See Carmickle v. Comm’r, Soc. Sec. 6 1 F.3d at 830-31). 2 only “specific and legitimate reasons” for discounting it. 3 (citing Lester, 81 F.3d at 830-31). 4 not accept the opinion of any physician, including a treating 5 physician, if that opinion is brief, conclusory, and inadequately 6 supported by clinical findings.” 7 947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. Sec. 8 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 9 B. 11 Id. Furthermore, “[t]he ALJ need Thomas v. Barnhart, 278 F.3d Relevant Background 1. 10 When it is contradicted, the ALJ must provide Early-2012 medical records On January 26, 2012, shortly before the February 10 onset 12 date, Plaintiff visited an urgent-care center. 13 tested positive for cocaine and was diagnosed with depression and 14 cocaine abuse. 15 was depressed and had “poor” judgment but was otherwise normal. 16 (AR 259.) 17 the West Central Family Mental Health center the same day, she 18 “denied any current . . . substance abuse problems.” 19 She returned to the urgent-care center on February 7, 2012, where 20 she tested negative for cocaine and her depression and cocaine- 21 abuse diagnoses were confirmed. 22 for cocaine again in March 2012. 23 (AR 260-62.) She A mental-status exam found that she She was “[u]sing cocaine.” 2. (AR 259.) (Id.) (AR 256.) During a visit to (AR 223.) She tested positive (AR 266.) Function reports 24 In a function report dated April 12, 2012, Plaintiff noted 25 that her daily routine involved watching television and playing 26 with her dog. 27 her medication. 28 dishes, and clean the house. (AR 176.) She did not need to be reminded to take (AR 178.) She could iron, wash clothes and (Id.) 7 She noted that she 1 experienced auditory and visual hallucinations and had problems 2 concentrating, handling stress, and getting along with others. 3 (AR 181-83.) 4 daughter echoed much of Plaintiff’s own report. 5 Her daughter noted, however, that Plaintiff needed to be reminded 6 to take her medication. 7 3. 8 9 A third-party function report completed by her (See AR 168-75.) (AR 170.) Dr. Bagner On August 17, 2012, consulting psychiatrist Bagner completed a psychiatric evaluation. (AR 274-78.) Dr. Bagner noted that 10 Plaintiff’s chief complaints were “[m]ood swings, depression, 11 restlessness, [and] low motivation.” 12 “auditory hallucinations and paranoia at times,” was seeing a 13 psychiatrist, and was prescribed Cymbalta and Abilify.2 14 275.) 15 clean since March of 2012.” 16 Plaintiff’s medical records because “no medical records [were] 17 available for review.”3 (AR 274.) She reported (AR She had a history of cocaine dependence but had “been (Id.) Dr. Bagner did not review (Id.) 18 19 20 21 22 23 24 25 26 27 28 2 Cymbalta is the brand name of a selective serotonin and norepinephrine reuptake inhibitor used to treat depression and generalized anxiety disorder. See Duloxetine, MedlinePlus, https://medlineplus.gov/druginfo/meds/a604030.html (last updated May 15, 2016). Abilify is the brand name of an “atypical antipsychotic” drug used to treat episodes of mania or mixed episodes (symptoms of mania and depression that happen together). See Aripiprazole, MedlinePlus, https://medlineplus.gov/druginfo/ meds/a603012.html (last updated June 15, 2016). It is also used with an antidepressant to treat depression when symptoms cannot be controlled by the antidepressant alone. Id. 3 Indeed, although the ALJ held the record open for 30 days after the hearing (AR 71), Plaintiff submitted no additional treatment records (compare AR “Court Transcript Index,” with AR 41-43 (“List of Exhibits” from ALJ decision)), only a medical (continued...) 8 1 In the mental-status examination, Dr. Bagner noted that 2 Plaintiff was cooperative and had good eye contact. 3 Her tone and volume of speech were “soft” and her rate of speech 4 was “slow,” but she was “clear and coherent.” 5 “depressed” and her affect was “blunted.” 6 noted that Plaintiff “did not exhibit looseness of association, 7 thought disorganization, flight of ideas, thought blocking, 8 tangentiality or circumstantiality.” 9 auditory and visual hallucinations. (Id.) She was Dr. Bagner She admitted to (Id.) (Id.) (Id.) (AR 276.) She was alert and 10 oriented to time, place, person, and purpose. 11 tested Plaintiff’s memory and noted that she was “able to recall 12 3 out of 3 objects immediately and 1 out of 3 objects in 5 13 minutes[,] . . . what she ate for breakfast . . . [and] her date 14 of birth.” 15 spell “music” forward and backward, answer basic “fund of 16 information” questions, and interpret the meaning of a proverb. 17 (Id.) 18 Otherwise Specified” and “Cocaine Dependence, early remission.” 19 (Id.) 20 and written instructions” but was “mildly limited” in her ability 21 to follow detailed instruction; interact with the public, 22 coworkers, and supervisors; and comply with job rules, such as 23 safety and attendance. 24 limited” in her ability to “respond to change in a routine work 25 setting,” “respond to work pressure in a usual working setting,” (AR 277.) Dr. Bagner She was “able to perform Serial 3’s,” Dr. Bagner diagnosed Plaintiff with “Bipolar disorder, Not She was not limited in her “ability to follow simple oral (AR 277-78.) 26 27 3 28 (Id.) (...continued) questionnaire (see AR 43, 290). 9 She was “moderately 1 and partake in her daily activities. (AR 278.) 2 was “fair with continued treatment.” (Id.) 4. 3 Her prognosis Dr. Brooks 4 On September 18, 2012, Dr. R.E. Brooks,4 a state-agency 5 medical consultant, reviewed Plaintiff’s medical records and 6 completed a case analysis. 7 Plaintiff’s mental RFC. 8 Plaintiff reported that she was able to watch TV, play with her 9 dog, cook, iron, mop, sweep, do dishes, shop, use public (AR 81-92.) (AR 88-90.) Dr. Brooks also assessed Dr. Brooks noted that 10 transportation, go out alone, and talk on the phone. 11 She found it “hard to understand and comprehend conversation,” 12 did not like “being around people,” and had poor concentration. 13 (Id.) 14 and her daughter (see AR 168-83) and reviewed Plaintiff’s medical 15 records (see AR 85 (reviewing records from “Exodus Recovery” (see 16 AR 253-72), “CO/M/LA W Central Mental,” including “06/06/12 17 Initial Assessment” (see AR 214-23, 228-52), and Dr. Bagner’s 18 report (see AR 274-78))). 19 activities of daily living and “moderate” difficulty in 20 maintaining concentration, persistence, or pace. 21 had “mild” difficulties in maintaining social functioning. 22 Dr. Brooks found Plaintiff “partially credible,” noting that she 23 “show[ed] good eye contact” and had “soft and slow rate [of] 24 speech” but was “clear and coherent.” (AR 85.) Dr. Brooks summarized the function reports from Plaintiff She had “moderate” restrictions in her (AR 87.) (AR 86.) She (Id.) She had “no 25 26 27 28 4 Dr. Brooks has a specialty code of “37” (AR 93), indicating “[p]sychiatry,” see Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/poms.nsf/lnx/0424501004. 10 1 2 looseness of associations,” and her memory was “intact.” (Id.) In the mental RFC assessment, Dr. Brooks opined that 3 Plaintiff could “understand and remember simple instructions and 4 work procedures but ha[d] some limitation in the ability to 5 understand/remember detailed instructions.” 6 “moderately limited” in her ability to understand, remember, and 7 carry out detailed instructions. 8 significant limitations in the areas of “understanding and 9 memory” or “sustained concentration and persistence.” (Id.) (AR 88.) She was She had no other (Id.) 10 Plaintiff was “[n]ot significantly limited” in her ability to 11 “perform activities within a schedule, maintain regular 12 attendance, and be punctual within customary tolerances” or 13 “complete a normal workday and workweek without interruptions 14 from psychologically based symptoms.” 15 to maintain sufficient attention and concentration to 16 consistently perform simple tasks and maintain a regular 17 schedule.” 18 “no limitations” in the area of social interaction, was “mildly 19 limited” in her ability to comply with job rules “such as safety 20 and attendance,” and was “moderately limited” in her ability to 21 respond to changes and work pressure in a normal work setting. 22 (AR 89-90.) 23 24 25 (AR 89.) 5. (AR 88-89.) She was “able Dr. Brooks also found that Plaintiff had Dr. Washington Plaintiff started seeing Dr. Washington, her treating psychiatrist, on February 5, 2013 at the West Central Family 26 27 28 11 1 Mental Health center.5 2 Plaintiff every two or three months for approximately “20-30 3 minutes” at a time. 4 Dr. Washington noted that Plaintiff’s symptoms had “waxed and 5 waned over the past year” and that in her immediately prior 6 appointment, on May 7, she “presented with complaints [of] 7 auditory hallucinations, visual hallucinations, paranoia, 8 depressed mood, anger/irritability, racing thoughts, worry, 9 variable sleep, [and] fatigue.” (AR 291-95.) (Id.) Dr. Washington met with In a May 23, 2013 progress report, (AR 289.) Plaintiff’s 10 medications were “changed” to Cymbalta and Seroquel.6 11 Washington recommended that Plaintiff continue with her treatment 12 “to stabilize [her] condition,” noting that her “residual 13 functional limitations” were “[s]evere.” 14 found that Plaintiff had “[i]mpaired social and occupational 15 functioning due to mood swings, perceptual disturbances[,] and 16 impaired concentration.” 17 indicate an awareness of Plaintiff’s substance-abuse history. 18 (Id.) (Id.) (Id.) Dr. Dr. Washington None of Dr. Washington’s notes On July 16, 2013, Dr. Washington completed an RFC 19 questionnaire. (AR 291-95.) She noted that her last appointment 20 with Plaintiff had been on July 9. (AR 291.) Dr. Washington was 21 22 23 24 25 26 27 28 5 The ALJ mistakenly stated that Plaintiff began seeing Dr. Washington in June 2012. (AR 37.) According to Dr. Washington, that was when Plaintiff first became a patient at the clinic, but with someone other than Dr. Washington. (See AR 291.) That too, was incorrect, however, as Plaintiff had apparently been a patient at the clinic off and on since 2007. (See AR 193; see, e.g., AR 223, 237-52.) 6 Seroquel is the brand name of a drug used to treat depression in patients with bipolar disorder. See Quetiapine, MedlinePlus, https://medlineplus.gov/druginfo/meds/a698019.html (last updated Apr. 15, 2014). 12 1 asked to rate Plaintiff’s “mental abilities to function 2 independently, appropriately, effectively, and on a sustained, 3 consistent, useful and routine basis, without direct supervision 4 or undue interruptions or distractions — 8 hours per day, 5 days 5 per week — in a regular, competitive work setting for more than 6 six consecutive months.” 7 areas of remembering locations and “work-like” procedures; 8 understanding, remembering, and carrying out “very short and 9 simple” instructions; making simple work-related decisions; (AR 292.) She indicated that in the 10 maintaining socially appropriate behavior and adhering to basic 11 standards of neatness and cleanliness; traveling in unfamiliar 12 places or using public transportation; and setting realistic 13 goals or making plans independently of others, Plaintiff’s mental 14 abilities would preclude her performance for five percent of the 15 workday. 16 precluded for 10 percent of the workday in the areas of 17 performing activities within a schedule, maintaining regular 18 attendance, and being punctual; working in coordination with or 19 in proximity to others without being distracted by them; and 20 getting along with coworkers or peers without distracting them or 21 exhibiting behavioral extremes. 22 precluded for 15 percent or more of the workday in the areas of 23 understanding, remembering, and carrying out detailed 24 instructions; maintaining attention and concentration for 25 extended periods of time; completing a normal workday and 26 workweek without interruptions from psychologically based 27 symptoms; and performing at a consistent pace without an 28 unreasonable amount of rest. (AR 292-93.) Plaintiff’s performance would be (Id.) (Id.) 13 Her performance would be Her performance would be 1 precluded between zero and five percent of the workday in 2 sustaining an ordinary routine without special supervision (AR 3 292), between five and 10 percent in interacting appropriately 4 with the general public and responding appropriately to changes 5 in the work setting (AR 293), and between 10 and 15 percent in 6 accepting instructions and responding appropriately to criticism 7 from supervisors (id.). 8 suffered from “memory lapses.” Dr. Washington also noted that Plaintiff (Id.) To the question, 9 Based upon all of [Plaintiff’s] physical and mental 10 limitations taken in combination, what percent of [an] 8- 11 hour work day, 5 days a week, in a competitive work 12 environment 13 performing a job, or “off task”, that is, either unable 14 to perform work and/or away from [Plaintiff’s] work 15 environment due to those limitations? would [Plaintiff] be precluded from 16 Dr. Washington checked, “[m]ore than 30 [percent].” 17 She opined that Plaintiff’s conditions would cause her to miss an 18 average of four days of work a month and be unable to complete an 19 eight-hour workday for another four days a month. 20 Washington opined that “within a reasonable degree of medical 21 certainty,” Plaintiff would be “unable to obtain and retain work 22 in a competitive work setting - 8 hours a day, 5 days a week - 23 for a continuous period of at least six months.” 24 6. (AR 294.) (Id.) Dr. (Id.) Plaintiff’s testimony 25 At the July 19, 2013 hearing, Plaintiff testified that she 26 could not “concentrate very long” because she heard voices, saw 27 faces, and suffered from short-term memory loss. 28 “sometimes” had difficulty remembering to take her medication and 14 (AR 51.) She 1 “kind of like [took] it sporadically” (AR 52; see also AR 62), 2 but she noted that the medications she took in the morning helped 3 with her mood (AR 65-66). 4 addicted to cocaine” until 2012. 5 ALJ, “Did you stop taking your medications for mental health 6 treatment?,” Plaintiff responded, “Yes, I did.” 7 stopped taking her medication “for about six months one time,” 8 but she could not remember the exact dates. 9 March 2012 she had not consumed any alcohol or drugs other than 10 her medication. She confirmed that she was “severely (AR 58.) When asked by the (Id.) She (AR 58-59.) Since (AR 67.) 11 C. Analysis 12 The ALJ found that Plaintiff was able to perform “a full 13 range of work at all exertional levels” but was limited to 14 “simple, repetitive, tasks,” should avoid working with the public 15 and performing “higher stress work such as work requiring 16 production quotas or assembly line work,” and could “work 17 occasionally with coworkers and supervisors.” 18 considered Plaintiff’s statements and the third-party function 19 report provided by her daughter (AR 35-36) and concluded that 20 they were not fully credible (AR 36).7 21 opinions of examining doctor Bagner and treating doctor 22 Washington. 23 opinions of Drs. Bagner and Brooks and “little weight” to the 24 opinion of Dr. Washington. 25 (AR 36-38.) (AR 34.) The ALJ He summarized the medical He accorded “reasonable weight” to the (AR 38.) As an initial matter, Plaintiff’s assertion that the ALJ 26 27 7 28 Plaintiff has not challenged the ALJ’s assessment of her credibility or rejection of the third-party report. 15 1 ignored the “uncontroverted” (J. Stip. at 10) opinions of Drs. 2 Washington, Bagner, and Brooks about Plaintiff’s “attendance 3 problem” (id. at 9) and that those opinions were consistent with 4 each other on that point (see, e.g., id. at 10) is incorrect. 5 Dr. Washington’s opinion about Plaintiff’s workplace attendance — 6 that she would be “off task” more than 30 percent of the workday, 7 absent four days a month, and unable to complete an eight-hour 8 workday four days a month (AR 294) — was not “uncontroverted.” 9 Dr. Brooks opined that Plaintiff was “[n]ot significantly 10 limited” in her ability to “perform activities within a schedule, 11 maintain regular attendance, and be punctual within customary 12 tolerances” or “complete a normal workday and workweek without 13 interruptions from psychologically based symptoms.” 14 She was “able to maintain sufficient attention and concentration 15 to consistently perform simple tasks and maintain a regular 16 schedule.” 17 Plaintiff’s ability to comply with job rules “such as safety and 18 attendance.” 19 was “mildly limited” in her ability to comply with job rules, 20 such as safety and “attendance,” and was “moderately limited” in 21 her ability to “respond to changes in a routine work setting” and 22 “respond to work pressure in a usual working setting.” (AR 89.) (Id.) (AR 88-89.) Dr. Brooks noted a mild limitation in Similarly, Dr. Bagner noted that Plaintiff (AR 278.) 23 Thus, neither Dr. Bagner nor Dr. Brooks opined that 24 Plaintiff would have the serious problems with attendance that 25 were identified by Dr. Washington. 26 medical opinions about Plaintiff’s workplace attendance. 27 he rejected Dr. Washington’s more restrictive finding and, as 28 explained below, provided specific, legitimate reasons for doing 16 The ALJ did not ignore the Rather, 1 so.8 2 opinions of Drs. Bagner and Brooks, the ALJ had to give only 3 specific and legitimate reasons for rejecting it. 4 533 F.3d at 1164. 5 Because Dr. Washington’s opinion was contradicted by the See Carmickle, The ALJ did so. First, the ALJ gave “little weight” to Dr. Washington’s 6 opinion in part because of her failure to mention Plaintiff’s 7 problems with cocaine abuse, taking medication as prescribed, and 8 complying with treatment despite evidence in the record showing 9 that those problems were both relatively recent and pervasive. 10 (AR 38.) Indeed, Dr. Washington does not mention Plaintiff’s 11 history of cocaine abuse in either her May 23, 2013 progress note 12 or her July 16 RFC questionnaire. 13 Plaintiff returned to West Central Family Mental Health clinic — 14 where Dr. Washington worked — in January 2012, she apparently 15 falsely stated that she had no substance-abuse problems. 16 223.) (See AR 289, 291-95.) When (AR But Plaintiff’s last admitted cocaine use was in March 17 8 18 19 20 21 22 23 24 25 26 27 Plaintiff argues for the first time in her reply that the ALJ failed to incorporate her moderate limitations in “concentration, persistence, or pace” into the RFC. (See J. Stip. at 22-25.) Because this issue was raised for the first time in the reply, the argument is waived. See Polion v. Colvin, No. SACV 12–0743–DTB, 2013 WL 3527125, at *2 n.4, *7 n.7 (C.D. Cal. July 10, 2013) (citing Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990)); see also Thacker v. Comm’r of Soc. Sec., No. 1:11-cv-00613-LJO-BAM, 2012 WL 1978701, at *11-12 (E.D. Cal. June 1, 2012) (applying general rule — that issues raised for first time in reply brief are waived — in Social Security context). Accordingly, the Court does not consider it. It does appear, however, that the ALJ reasonably translated the mild deficiencies assessed by examining doctor Bagner and the moderate deficiencies assessed by reviewing doctor Brooks into Plaintiff’s RFC by limiting her to simple, repetitive tasks and low-stress work. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 28 17 1 2012. 2 “honest in her history” when it came to her drug use. 3 Indeed, Plaintiff made inconsistent statements about her cocaine 4 use (see, e.g., AR 223 (Jan. 26, 2012: denying any substance 5 abuse), 259 (same day: noted as “[u]sing cocaine”)). 6 the record indicates that Dr. Washington had any awareness of 7 Plaintiff’s substance-abuse history. 8 9 (See AR 266, 291.) The ALJ noted that Plaintiff was not (AR 38.) Nothing in As to taking her prescribed medicines, in April 2012 Plaintiff claimed that she did not need reminders to take her 10 medication, but her daughter said that she did. 11 In June 2012 Plaintiff reported having been off her medication 12 since that February and expressed the desire to start again. 13 230). 14 difficulty remembering to take her medication. 15 ALJ noted that Plaintiff “made significant improvement with 16 increased functioning after she stopped taking cocaine and after 17 she started taking psychotropic medication.” 18 66 (Plaintiff testifying that medications helped alleviate her 19 symptoms), 219 (June 2012 assessment noting that Cymbalta “was 20 effective”), 240 (Nov. 2010 medication report noting “good 21 response to meds”), 256 (Feb. 2012 urgent-care-center discharge 22 summary noting “importance of sobriety coupled with medication 23 compliance” and “[r]ecovery [p]rognosis” of “[g]ood”), 259 (Jan. 24 2012 recovery-center progress report noting “good effect” of 25 medication, and Plaintiff reporting that she was “really positive 26 on it”), 278 (Dr. Bagner’s Aug. 2012 opinion that Plaintiff’s 27 “prognosis is fair with continued treatment”).) 28 persuaded that Plaintiff’s “drug abuse [was] not a material (AR 170, 178.) (AR At the July 19, 2013 hearing, she testified that she had 18 (AR 52, 62.) The (See, e.g., AR 63- The ALJ was not 1 2 factor in this case.” (AR 38.) Dr. Washington’s apparent ignorance of Plaintiff’s medical 3 issues was relevant to the ALJ’s assessment of the weight to give 4 her opinion. 5 the treatment relationship” and “the more knowledge a treating 6 source has about your impairment(s)” are relevant factors in 7 assessing treating-source opinion); Edlund v. Massanari, 253 F.3d 8 1152, 1157 & n.6 (9th Cir. 2001) (as amended) (same); see also 9 § 416.927(c)(6) (extent to which doctor is familiar with record See § 416.927(c)(2)(ii) (“[n]ature and extent of 10 is relevant factor in deciding weight to give opinion). 11 he found Plaintiff to be “not entirely credible” (AR 36) and “not 12 honest in [the] history” she provided to her treating doctors 13 about her cocaine and medication use (AR 38) — findings Plaintiff 14 has not challenged — the ALJ properly gave little weight to Dr. 15 Washington’s opinions. 16 2009 WL 112952, at *3-4 (W.D. Wash. Jan. 13, 2009) (holding that 17 ALJ did not err in rejecting treating doctor’s opinion because 18 Plaintiff had not been “truthful” with her doctor about “her 19 activities or abilities”). 20 Because See James v. Astrue, No. C08–653 CRD, Second, the ALJ noted that Dr. Washington’s opinion that 21 Plaintiff had a “diminished ability to function” was not 22 corroborated by a “longitudinal treatment record” and was 23 contradicted by Dr. Bagner’s mental-status examination. 24 Indeed, the other medical-opinion testimony in the record 25 contradicted Dr. Washington’s assessment of Plaintiff’s 26 attendance limitations. 27 only mild limitations in attendance (AR 89) and Dr. Bagner noted 28 mild to moderate limitations in that area (AR 278). (AR 38.) Dr. Brooks opined that Plaintiff had 19 Dr. Bagner 1 performed a complete psychiatric evaluation of Plaintiff, finding 2 that she had only mild or moderate functional limitations. 3 277-78.) 4 treatment.” 5 and examined Plaintiff and his findings were consistent with the 6 objective evidence, his opinion constitutes substantial evidence 7 supporting the ALJ’s decision. 8 (finding that examining physician’s “opinion alone constitutes 9 substantial evidence, because it rests on his own independent (AR He opined that her prognosis was “fair with continued (AR 278.) Because Dr. Bagner personally observed See Tonapetyan, 242 F.3d at 1149 10 examination of [plaintiff]”); Andrews v. Shalala, 53 F.3d 1035, 11 1041 (9th Cir. 1995) (opinion of nontreating source based on 12 independent clinical findings may itself be substantial 13 evidence). 14 apparently limited relationship with Plaintiff. 15 F.3d at 830-31. 16 This is particularly true given Dr. Washington’s See Lester, 81 Dr. Brooks’s opinion also constitutes substantial evidence 17 because he relied on Dr. Bagner’s objective medical findings. 18 (AR 85, 87-88 (listing Dr. Bagner’s report under “findings of 19 fact” and giving it “[g]reat weight” for being “consistent with 20 other medical findings”)); see Tonapetyan, 242 F.3d at 1149 21 (nonexamining physician’s opinion constituted substantial 22 evidence because it rested on examining physician’s objective 23 findings); Thomas, 278 F.3d at 957 (“The opinions of non-treating 24 or non-examining physicians may also serve as substantial 25 evidence when the opinions are consistent with independent 26 clinical findings or other evidence in the record.”). 27 ALJ permissibly discounted Dr. Washington’s opinion because it 28 was inconsistent with the record evidence. 20 Thus, the See Batson, 359 F.3d 1 at 1195 (ALJ may discredit treating physicians’ opinions that are 2 “unsupported by the record as a whole”). 3 Further, Dr. Washington’s opinion was not supported by her 4 own treatment notes. At the hearing, the ALJ asked if there were 5 any treatment records after June 6, 2012, and Plaintiff’s 6 attorney noted that he had requested the records and was 7 rerequesting them. 8 days after the hearing to allow Plaintiff to submit those 9 treatment notes (AR 71), but she did not do so. (AR 50.) The ALJ held the record open for 30 They were also (See AR 5 (citing AR 10 not submitted to the Appeals Council. 11 199).) 12 is the May 23, 2013 progress report (AR 289), and the only 13 medical opinion from Dr. Washington is the July 16 RFC check-box 14 questionnaire (AR 291-95). 15 support for the check-box findings. 16 properly relied on the apparent lack of treatment history and 17 examination findings to discount Dr. Washington’s opinion. 18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (ALJ may 19 permissibly reject check-off reports that do not contain 20 explanation of basis for conclusions); Connett v. Barnhart, 340 21 F.3d 871, 875 (9th Cir. 2003) (treating physician’s opinion 22 properly rejected when treatment notes “provide[d] no basis for 23 the functional restrictions he opined should be imposed on 24 [plaintiff]”); Batson, 359 F.3d at 1195 (“[A]n ALJ may discredit 25 treating physicians’ opinions that are conclusory, brief, and 26 unsupported by the record as a whole . . . or by objective 27 medical findings[.]”). 28 The only treatment note in the record from Dr. Washington The RFC form provides no analysis or (See generally id.) The ALJ See Because the ALJ provided specific and legitimate reasons for 21 1 giving Dr. Washington’s opinion limited weight, remand is not 2 warranted. 3 VI. 4 CONCLUSION Consistent with the foregoing, and under sentence four of 42 5 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered 6 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 7 request for remand, and DISMISSING this action with prejudice. 8 9 DATED: November 10, 2016 10 ____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 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.” 22

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