Shannan K Irish v. Carolyn W Colvin, No. 2:2016cv03401 - Document 33 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons discussed below, the ALJs decision is AFFIRMED. (twdb)

Download PDF

Shannan K Irish v. Carolyn W Colvin Doc. 33 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. 2:16-cv-03401-KES SHANNAN K. IRISH, Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 Plaintiff Shannan K. Irish (“Plaintiff”) appeals the final decision of the 19 Administrative Law Judge (“ALJ”) denying her application for Disability Insurance 20 Benefits (“DIB”). For the reasons discussed below, the ALJ’s decision is 21 AFFIRMED. 22 I. 23 BACKGROUND 24 Plaintiff filed her disability claim applications on May 30, 2012, alleging the 25 onset of disability on January 15, 2012. Administrative Record (“AR”) 192-93. An 26 ALJ conducted a hearing on September 15, 2014, at which Plaintiff, who was 27 represented by an attorney, appeared and testified. AR 54-70. The ALJ published 28 an unfavorable decision on October 3, 2014. AR 29-47. 1 Dockets.Justia.com 1 The ALJ found that Plaintiff suffers from the severe impairment of “status 2 post C4-6 and C6-7 discectomy and fusion (May 2012 [AR 333]); generalized 3 anxiety disorder; major depression, recurrent; and neurotic excoriations from 4 picking at skin.” AR 34. Despite these impairments, the ALJ found that Plaintiff 5 retained the residual functional capacity (“RFC”) to perform light work as defined 6 in 20 C.F.R. § 404.1567(b) with some additional exertional and mental limitations. 7 AR 35. The mental limitations were “limitation to unskilled work not requiring 8 interaction with the public, i.e., only incidental contact and minimal interaction with 9 coworkers, i.e., can work side by side, but verbal collaboration should not be a 10 11 primary component of the job.” Id. Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ 12 found that Plaintiff could not perform her past relevant work as a nurse at the 13 county jail where she worked from 1996 until January 2012. AR 40, 214. Plaintiff 14 could, however, work as a housekeeper or retail marker. AR 41. The ALJ 15 therefore concluded that Plaintiff is not disabled. AR 42. 16 II. 17 STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 19 decision to deny benefits. The ALJ’s findings and decision should be upheld if 20 they are free from legal error and are supported by substantial evidence based on 21 the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 22 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 23 evidence means such relevant evidence as a reasonable person might accept as 24 adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. 25 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less 26 than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 27 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial 28 evidence supports a finding, the reviewing court “must review the administrative 2 1 record as a whole, weighing both the evidence that supports and the evidence that 2 detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 3 720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or 4 reversing,” the reviewing court “may not substitute its judgment” for that of the 5 Commissioner. Id. at 720-21. 6 “A decision of the ALJ will not be reversed for errors that are harmless.” 7 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an error is 8 harmless if it either “occurred during a procedure or step the ALJ was not required 9 to perform,” or if it “was inconsequential to the ultimate nondisability 10 determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 11 2006). 12 A. 13 The Evaluation of Disability. A person is “disabled” for purposes of receiving Social Security benefits if he 14 is unable to engage in any substantial gainful activity owing to a physical or mental 15 impairment that is expected to result in death or which has lasted, or is expected to 16 last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A claimant for disability 18 benefits bears the burden of producing evidence to demonstrate that he was 19 disabled within the relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432 20 (9th Cir. 1995). 21 B. The Five-Step Evaluation Process. 22 The ALJ follows a five-step sequential evaluation process in assessing 23 whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester 24 v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996). In the first step, the Commissioner 25 must determine whether the claimant is currently engaged in substantial gainful 26 activity; if so, the claimant is not disabled and the claim must be denied. 20 C.F.R. 27 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 28 If the claimant is not engaged in substantial gainful activity, the second step 3 1 requires the Commissioner to determine whether the claimant has a “severe” 2 impairment or combination of impairments significantly limiting his ability to do 3 basic work activities; if not, a finding of not disabled is made and the claim must be 4 denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 5 If the claimant has a “severe” impairment or combination of impairments, the 6 third step requires the Commissioner to determine whether the impairment or 7 combination of impairments meets or equals an impairment in the Listing of 8 Impairments (“Listing”) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if 9 so, disability is conclusively presumed and benefits are awarded. Id. 10 11 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s impairment or combination of impairments does not meet or 12 equal an impairment in the Listing, the fourth step requires the Commissioner to 13 determine whether the claimant has sufficient residual functional capacity (“RFC”) 14 to perform his past work; if so, the claimant is not disabled and the claim must be 15 denied. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden 16 of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If 17 the claimant meets that burden, a prima facie case of disability is established. Id. 18 If that happens or if the claimant has no past relevant work, the 19 Commissioner then bears the burden of establishing that the claimant is not 20 disabled because he can perform other substantial gainful work available in the 21 national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That 22 determination comprises the fifth and final step in the sequential analysis. Id. 23 §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n. 5; Drouin, 966 F.2d at 1257. 24 III. 25 ISSUE PRESENTED 26 Plaintiff’s appeal presents the sole issue of whether the ALJ properly 27 considered the opinions of Plaintiff’s treating psychiatrist, Dr. David Bot, M.D. 28 Dkt. 32, Joint Stipulation (“JS”) at 4. 4 1 IV. 2 DISCUSSION 3 4 A. The Treating Physician Rule. “As a general rule, more weight should be given to the opinion of a treating 5 source than to the opinion of doctors who do not treat the claimant.” Turner v. 6 Comm’r of SSA, 613 F.3d 1217, 1222 (9th Cir. 2010) (citation omitted). This rule, 7 however, is not absolute. Where the treating physician’s opinion is not contradicted 8 by an examining physician, that opinion may be rejected only for “clear and 9 convincing reasons.” Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). 10 Where, however, the opinions of the treating and examining physicians conflict, if 11 the ALJ wishes to disregard the opinion of the treating physician, the ALJ must 12 give “specific, legitimate reasons for doing so that are based on substantial evidence 13 in the record.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citation 14 omitted). See also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“If the ALJ 15 wishes to disregard the opinion of the treating physician, he or she must make 16 findings setting forth specific, legitimate reasons for doing so that are based on 17 substantial evidence in the record.” (citation omitted)). 18 Here, Plaintiff saw other treating physicians besides Dr. Bot. Plaintiff 19 received mental health treatment from her primary care doctors – first Dr. 20 Weisenberger, then Dr. Linford – who prescribed her Prozac (anti-depressant) and 21 Ativan (anti-anxiety). See, e.g., AR 296, 317 (2011 treating records); AR 330 22 (May 15, 2012 record); AR 260 (Plaintiff’s DIB application, stating she had been 23 taking anxiety medications since 1999). Neither of these doctors’ records note that 24 Plaintiff’s anxiety or depression caused serious functional limitations. See, e.g., 25 AR 439 (June 2012 initial visit for “depression”; Plaintiff reports a continuation of 26 initial symptoms and “denies any aggravating factors”); AR 439-40 (Plaintiff will 27 continue with Xanax, stop Prozac and start Cymbalta; she demonstrates 28 “appropriate mood and affect”); AR 422-23 (2013 “follow up visit” for anxiety; 5 1 Plaintiff continues on Effexor and Xanax and demonstrates “appropriate mood and 2 affect”). 3 In May 2012, treating physician Jeffrey Larson of Coeur d’Alene Spine and 4 Brain found Plaintiff had “fluent speech” with “no deficit of memory or mentation,” 5 and that her “attention span and concentration [were] adequate.” AR 331; see also 6 AR 343 (September 2012 treatment record noting “no memory loss”). In 7 November 2012, treating physician Dr. Magnuson at the North Idaho Pain 8 Management Clinic reported that Plaintiff presented as “non-anxious” with “grossly 9 normal intellect.” AR 370. He referred Plaintiff to a social worker for cognitive 10 therapy, and in January 2013, the social worker noted that Plaintiff’s memory, 11 speech, affect, and though process were all within normal limits. AR 371-72. 12 Because Dr. Bot’s opinions are contradicted by the findings of these other 13 treating sources, under Andrews and Orn, the dispositive question is whether the 14 ALJ gave “specific, legitimate reasons” for discounting Dr. Bot’s opinions. 15 B. 16 Summary of Dr. Bot’s Medical Evidence. Dr. Bot’s first saw Plaintiff on May 30, 2012. AR 465. Plaintiff had never 17 previously received treatment from a psychiatrist. Id. Dr. Bot lives in Spokane, 18 Washington. AR 472. Plaintiff testified that after she stopped working in 19 California, she moved to Idaho because her father, a psychiatrist, lives there. AR 20 67, see also AR 364 (July 2012 treatment note from Dr. Bot). When that living 21 arrangement “didn’t work out,” she moved back to California. AR 67. She 22 apparently established her treating relationship with Dr. Bot while in Idaho and 23 maintained it via telephone upon returning to California. See AR 62-63 (Plaintiff’s 24 testimony describing how she has had “telephone consults” with Dr. Bot for two to 25 three months while she was looking for a new psychiatrist). 26 Dr. Bot provided several medical opinions in 2013 and 2014 concerning 27 Plaintiff’s claims for California benefits. See AR 398, 402, 404, 408. At the 28 September 2014 hearing, Plaintiff testified that Dr. Bot was treating her with Xanax 6 1 and Effexor but “not really so much counselling or therapy.” AR 62-63. Regarding 2 her mental health medication, she testified that she was “really happy with where 3 I’m at right now.” AR 63. She also testified, however, that she could probably 4 handle the exertional demands of light work, but her depression and anxiety kept 5 her from job hunting. AR 61-64. 6 In August 2014, Dr. Bot completed a Psychiatric Impairment Questionnaire. 7 AR 465. The Questionnaire defined a “moderate” limitation as one that 8 “significantly affects but does not totally preclude the individual’s ability to 9 perform the activity.” AR 467. A “marked” limitation was defined as one that 10 “effectively precludes the individual from performing the activity in a meaningful 11 manner.” Id. Using these definitions, he rated Plaintiff’s abilities in several 12 functional categories. AR 468-70. He opined that Plaintiff would have moderate to 13 marked limitation in the ability to perform activities within a schedule, maintain 14 regular attendance, and be punctual. AR 468. He also opined that Plaintiff has 15 moderate to marked limitations completing a normal workweek without 16 interruptions from psychologically-based symptoms and performing at a consistent 17 pace. AR 469. He opined that she would miss work more than three times a month 18 due to her impairments. AR 471. 19 In a different form opining that Plaintiff meets Listings 12.04 and 12.06 for 20 depression and anxiety, Dr. Bot indicated that Plaintiff is “markedly” limited in 21 conducting activities of daily living, functioning socially, and maintaining 22 concentration, persistence, and pace. AR 418. If the ALJ had accepted Dr. Bot’s 23 opinions, then no work would be available for a person with Plaintiff’s RFC. JS at 24 7. 25 C. 26 The ALJ’s Reasons for Discounting Dr. Bot’s Opinions. The ALJ first summarized Dr. Bot’s opinions. AR 37-38. The ALJ then 27 gave them “little weight” for being (1) internally inconsistent and confusing, 28 (2) inconsistent with other medical evidence, and (3) relying heavily on Plaintiff’s 7 1 discredited subjective complaints, as follows: 2 While a treating physician’s opinion is generally entitled to significant 3 weight, that is only applicable if supported by objective medical 4 evidence, and such is not the case herein. Dr. Bot certified that the 5 claimant was permanently disabled with multiple moderate to market 6 limitations (Exhibits 23F [AR 402-03] and 24F [AR 404-07]). Dr. 7 Bot’s opinions are not supported by his own progress notes and those 8 of other treating and examining physicians that generally reflect 9 positive response to medication. His opinions are also confusing and 10 inconsistent (Exhibits 20F [AR 398], 23F [AR 402-03], 24F [AR 404- 11 07], 25F [AR 408-21] and 28F [AR 465-72]), for instance stating he 12 was uncertain whether the claimant would deteriorate in a work setting 13 (Exhibit 28F [AR 470]). 14 improvement, in July 2012 noting surgery helped the neck and the 15 claimant was off opiates, and planning to return to work. The claimant 16 has handwritten notes over records from Dr. Bot (Exhibit 20F [AR 17 398], 22F [AR 400-01]). … The opinions of Drs. Bot and Linford rely 18 heavily on the subjective report and symptoms and limitations provided 19 by the claimant, and the totality of the evidence does not support these 20 opinions. 21 22 While asserting disability, he notes AR 40. Elsewhere in her decision, the ALJ gave additional reasons for discounting 23 Dr. Bot’s opinions. She noted that the extent of Dr. Bot’s treating relationship was 24 seeing “claimant every month to six months and [he] was noted to treat the claimant 25 by telephone.” AR 39, citing Ex. 27F (see, e.g., AR 453). The ALJ found that such 26 “treatment is inconsistent with the severity alleged, and Dr. Bot’s own treatment 27 records reflect that the [Plaintiff] never required psychiatric hospitalizations or 28 emergency room treatment for symptoms.” AR 39. 8 1 As a fifth reason, the ALJ noted that “claimant’s activities throughout the 2 period she alleges disability include traveling to Idaho and back, and in May 2012 3 she reported she was at the ‘giddy stage’ with a new boyfriend. She enjoyed family 4 and did well with people, although she noted she had anxiety disorder since age 18. 5 [AR 365.] These activities are inconsistent with the limitations alleged by the 6 claimant and by Dr. Bot.” AR 39. 7 D. The ALJ Gave Specific and Legitimate Reasons for Discrediting Dr. Bot’s 8 Opinions, and These Reasons are Supported by Substantial Evidence. 9 1. 10 Reason One: Internal Inconsistency. The ALJ may disregard a treating physician’s opinion when it is internally 11 inconsistent. Johnson v. Shalala, 60 F.3d at 1432-33; Matney v. Sullivan, 981 F.2d 12 1016, 1020 (9th Cir. 1992) (concluding that internal inconsistencies and 13 ambiguities within the doctor’s opinion provided specific and legitimate reasons for 14 the ALJ to reject the opinion). 15 Here, in February 2014, Dr. Bot opined that Plaintiff is “markedly” limited in 16 her activities of daily living, social functioning, and maintaining concentration, 17 persistence and pace. AR 407, 418. He further opined that she had suffered “one 18 or two” episodes of decompensation, each of extended duration. Id. He checked 19 this box rather than one labeled “insufficient evidence.” Id. 20 His subsequent notes indicate Plaintiff was improving. In May 2014, he 21 noted that Plaintiff was “feeling better” and “less scattered” on Effexor and “sounds 22 good on phone.” AR 453. He further noted that Plaintiff and her boyfriend “are 23 doing well.” Id. By August 2014, Dr. Bot did not find her markedly limited in any 24 area of social functioning. AR 469. He opined that there was “no evidence of 25 limitation” concerning Plaintiff’s abilities to interact appropriately with the general 26 public and maintain socially appropriate behavior. Id. 27 28 Dr. Bot’s subsequent treatment notes are also inconsistent with his earlier notes. For example, despite his February 2014 note that Plaintiff had experienced 9 1 “one or two episodes” of decompensation, when asked the same question in August 2 2014, he wrote, “Uncertain. She last worked February 2012. This was 3 months 3 before I met her.” AR 470. 4 His notes are also inconsistent regarding Plaintiff’s ability to return to work. 5 In the July 2012 treatment note cited by the ALJ, Dr. Bot noted that Plaintiff 6 “doesn’t plan to return to work.” AR 462. In November 2012, Dr. Bot estimated 7 that Plaintiff could return to work in May 2013. AR 400. In 2014, however, 8 despite the fact that his treatment notes indicated improvement in Plaintiff’s 9 condition, he opined that her mental impairments were so severe that she was 10 disabled under Listings 12.04 and 12.06. AR 404-21; AR 403 (“poor prognosis for 11 return to work”). 12 Even within the same record, Dr. Bot sometimes gave inconsistent opinions. 13 For example, in the Questionnaire, he did not check that Plaintiff has “poor 14 memory” (AR 466), but he found her “moderately” limited in her ability to 15 remember locations, work procedures, and detailed instructions (AR 468). 16 17 For all these reasons, the ALJ’s finding that Dr. Bot’s opinions are internally inconsistent is supported by substantial evidence. 18 2. 19 Generally, the more consistent a medical opinion is with the record as a Reason Two: Inconsistency with Other Medical Evidence. 20 whole, the more weight that medical opinion should receive. 20 C.F.R. 21 § 416.927(c)(4). ALJs may reject treating source medical opinions that are 22 unsupported or inconsistent with other treating source evidence. Tommasetti v. 23 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding ALJ properly rejected a 24 physician’s opinion that was inconsistent with the record); Rollins v. Massanari, 25 261 F.3d 853, 856 (2001) (holding ALJ properly rejected treating physician’s 26 opinions that “were so extreme as to be implausible and were not supported by any 27 findings made by any doctor”). 28 Here, the ALJ noted that while Dr. Bot opined Plaintiff was disabled due to 10 1 her depression and anxiety, “other treating and examining physicians … generally 2 reflect positive response to medication.” AR 40. The other treating records 3 generally discuss Plaintiff’s medication for back pain rather than for depression or 4 anxiety. Dr. Linford, however, noted twice that Plaintiff complained of depression 5 or anxiety; each time, he adjusted or continued her medication, but did not make 6 any other remarkable mental health findings. AR 439-40 (in June 2012, noting 7 continuing symptoms of depression with “no aggravating factors” and continuing 8 Prozac and Xanax), AR 422-23 (in October 2013, noting Plaintiff reported 9 “anxious/fearful thoughts” and stopping Prozac). 10 In November 2012, Plaintiff told the Idaho pain management clinic that her 11 anxiety and depression worsen with chronic pain, and she was referred to a social 12 worker for cognitive behavioral therapy. AR 371. The social worker noted that 13 Plaintiff “picks at her skin and hair which has caused sores,” but she did not note 14 any other behavior or symptoms outside normal limits. AR 372-73. Her treatment 15 plan was therapy to achieve “stress reduction” and “emotion regulation skills.” AR 16 373. Plaintiff, however, only met with the social worker that one time; she chose 17 not to participate in the proposed cognitive therapy. AR 61-62 (Plaintiff’s hearing 18 testimony that she “wasn’t into” the therapy because she thought the social worker 19 was “a hypnotist or something”). 20 In her Form SSA-3368, Plaintiff did not identify anxiety or depression as 21 disabling conditions. AR 213. The only medication she was taking at that time 22 (May 2012 [see AR 211, 216]) was pain medication. AR 215. At the hearing 23 before the ALJ, she testified that she was “happy with where I’m at right now.” 24 AR 63. 25 26 These inconsistencies support the ALJ’s second specific and legitimate reason for giving Dr. Bot’s opinions little weight. 27 3. 28 An ALJ may reject a treating physician’s opinion if it is based “to a large 11 Reason Three: Reliance on Plaintiff’s Subjective Complaints. 1 extent” on a claimant’s self-reports that have been properly discounted as 2 incredible. Tommasetti, 533 F.3d at 1041 (holding ALJ properly rejected treating 3 physician’s records that “largely reflect [the claimant’s] reports of pain, with little 4 independent analysis or diagnosis”). In this appeal, Plaintiff did not challenge the 5 ALJ’s adverse credibility determination as to the severity and limiting effects of her 6 mental health symptoms. 7 The record supports the ALJ’s conclusion that Dr. Bot was relying largely on 8 Plaintiff’s self-reported condition when drafting his opinions. For example, Dr. Bot 9 diagnosed Plaintiff with “generalized anxiety disorder.” AR 465. He identified 10 Plaintiff’s “primary symptoms” as “anxiety” and identified the “clinical findings” 11 that supported his diagnosis as “anxiety.” AR 467. When asked if Plaintiff is a 12 malingerer, he answered, “no, though her motivation is limited.” AR 470. He 13 noted that Plaintiff last worked in February 2012, then opined that the “earliest date 14 that the description of symptoms and limitations” in the Questionnaire applied was 15 also February 2012. AR 470-71. He gave this opinion even though his own 16 treatment notes indicate that Plaintiff has suffered from anxiety disorder since age 17 eighteen. AR 365. 18 Similarly, Dr. Bot’s progress notes generally record Plaintiff’s opinions 19 concerning whether she feels able to work. See, e.g., AR 457 (“doesn’t feel up to 20 working generally though wonders about trying”); AR 459 (“feels too anxious to 21 work”); AR 362 (“doesn’t feel she can do phone or desk job”1); AR 364 (“doesn’t 22 plan to return to work”). Nothing in the record suggests that Dr. Bot ever observed 23 Plaintiff in a work-like setting or administered any psychological tests designed to 24 measure anxiety, coping skills, or social skills. The record does reflect that despite 25 26 27 28 1 In her application for benefits, Plaintiff characterized this as Dr. Bot’s own opinion, saying, “My psychiatrist stated ‘I cannot work a phone or desk job’ due to my psychological limitations.” AR 247. 12 1 reporting anxiety issues since the age of eighteen, see AR 365, Plaintiff graduated 2 from high school, earned a nursing degree, and worked successfully in a stressful 3 environment (i.e., a prison) for many years. AR 58. Thus, the ALJ’s conclusion 4 that Dr. Bot’s opinion of total disability was based largely on Plaintiff’s subjective 5 complaints is supported by substantial evidence. 6 4. 7 Where a treating physician recommends a course of treatment inconsistent Reason Four: Inconsistency with Treatment Plan. 8 with his/her opinion of total disability, an ALJ may rely on that inconsistency to 9 discount the physician’s opinion. See Rollins, 261 F.3d at 856 (“These are not the 10 sort of description and recommendations one would expect to accompany a finding 11 that [the claimant] was totally disabled under the Act”); see also Seltser v. Comm’r 12 of SSA, No. 12-2590, 2014 U.S. Dist. LEXIS 42676, at *6, 2014 WL 1292904, at 13 *23 (S.D. Cal. Mar. 28, 2014), aff’d, 633 F. App’x 461 (9th Cir. 2016) (fact that 14 treatment of claimant was mostly by telephone made medical opinion that claimant 15 had marked limitations less credible). 16 Here, the ALJ noted that, although Dr. Bot began treating Plaintiff in 17 November 2012, his treatment of Plaintiff had switched to telephonic sessions by 18 about February 2014. AR 36, 38; see also AR 455 (February 2014 record noting, 19 “call in a couple days”). He continued to prescribe mental health medications for 20 her, although he noted that she would run out early and demonstrated “little 21 responsibility” in adhering to the prescribed dosage. AR 458. He did not explain 22 cognitive therapy or follow up to ensure that Plaintiff received it, although it was 23 recommended by the pain management clinic and was part of his own treatment 24 plan. AR 371-73, 402-03; AR 61 (Plaintiff’s testimony that she thought cognitive 25 therapist social worker was “a hypnotist or something”). Plaintiff has not seen any 26 psychiatrist or therapist other than Dr. Bot and the social worker, and she 27 acknowledged that Dr. Bot does “not really so much” provide “counselling or 28 therapy.” AR 61-63. At the September 2014 hearing, she indicated that she was 13 1 seeking to transition to a California psychiatrist, but she had not done so yet. AR 2 62. 3 This kind of laissez-faire mental health care is inconsistent with Dr. Bot’s 4 opinion that Plaintiff has “marked” limitations in major functional areas and is 5 precluded from all work by her anxiety. Thus, the ALJ’s third reason for 6 discounting Dr. Bot’s opinions is supported by substantial evidence. 7 5. 8 ALJs may reject medical opinions that are inconsistent with other evidence 9 of record, such as the claimant’s activities. Morgan v. Comm’r of SSA, 169 F.3d Reason Five: Inconsistency with Plaintiff’s Activities 10 595, 601 (9th Cir. 1999); see also Fisher v. Astrue, 429 F. App’x 649, 652 (9th Cir. 11 2011) (concluding that conflict between a doctor’s opinion and the claimant’s daily 12 activities was a legally sound reason to discount the doctor's opinion); Rivera v. 13 Colvin, No. 13-160-JC, 2013 U.S. Dist. LEXIS 105301, at *21 , 2013 WL 14 3879722, at *7 (C.D. Cal. July 26, 2013) (upholding ALJ’s rejection of medical 15 opinion that plaintiff could do no lifting at all, where plaintiff testified that he could 16 lift “[m]aybe five pounds, maybe a little less.”). 17 The record reflects that Plaintiff lives with her boyfriend in an RV owned by 18 her parents. AR 57, 221. In May 2012, she told Dr. Bot that she was “giddy” over 19 her relationship with her boyfriend, and that she “enjoys family well and people.” 20 AR 365. In her disability benefits application, she described her boyfriend as a 21 “caregiver” who is willing to help her by driving her to medical appointments and 22 doing other tasks. AR 221, 223. She stated that she spends time everyday talking 23 with her boyfriend and parents. AR 227, 244. 24 In October 2012, on a medical history form for the North Idaho Dermatology 25 Clinic, she checked “no” as to psychological disorders. AR 384. She received 26 cosmetic Botox treatments. AR 389, 393. 27 28 In her disability application, she report that, despite her anxiety, she can use a computer for online shopping. AR 222. She can also pay bills, handle a bank 14 1 account, and use a checkbook. Id. She cooks two or three times a week, or every 2 other day. AR 226, 241; see also AR 459 (December 2012 treatment note reporting 3 that she makes dinner 25% of the time). She can do some laundry and dusting. AR 4 226. She participated in physical therapy. AR 445. 5 At the 2014 hearing, she repeatedly testified that despite persistent pain, she 6 could physically perform the exertional demands of light work, but she felt unable 7 to work because of her anxiety. AR 60-61 (testifying that she “was thinking about 8 doing … some kind of computer management job from home” but her psychiatrist 9 told her “it’s not a good idea for [her] to do that right now … because of [her] long 10 history of my generalized anxiety disorder … and [her] depression”), AR 65-66 11 (testifying that she could perform a desk job if she could change positions and take 12 breaks, and agreeing that “the real issue … is getting this anxiety and depression 13 under control”). She testified that while she was previously able to work despite 14 her anxiety, she feels it has “really just gotten out of control as I’ve gotten older.” 15 AR 60; see also AR 259 (disability benefits application stating, “I have had GAD 16 [generalized anxiety disorder] since 1999” and “it is getting worse each year I 17 age”). She testified that her anxiety causes her to “freak out …even just going into 18 a gas station” or “the grocery store.” AR 66. Sometimes after she goes out, 19 however, she feels better. AR 67. 20 Plaintiff’s activities, particularly her ability to maintain relationships, is not 21 consistent with Dr. Bot’s opinion that she is “markedly” limited in maintaining 22 social functioning. AR 407, 418. Rather, her activities are consistent with an RFC 23 that limits her need to interact with strangers, but does not entirely preclude her 24 from working; this is the RFC of which the ALJ found Plaintiff capable. See AR 25 35 (finding Plaintiff could perform “unskilled work not requiring interaction with 26 the public, i.e., only incidental contact[,] and minimal interaction with coworkers. 27 i.e., can work side by side, but verbal collaboration should not be a primary 28 component of the job”). While Dr. Bot opined that she would miss too much work 15 1 to maintain employment, his opinion did not consider whether Plaintiff would 2 experience the same level of workplace stress (and consequent absenteeism) if her 3 working environment were limited as described by the ALJ’s RFC. AR 471. 4 Thus, the ALJ’s fifth reason for discounting Dr. Bot’s opinions is also 5 supported by substantial evidence. 6 V. 7 CONCLUSION 8 For the reasons stated above, IT IS ORDERED that judgment shall be 9 entered AFFIRMING the decision of the Commissioner denying benefits. 10 11 12 13 14 DATED: October 23, 2017 ____________________________________ KAREN E. SCOTT United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.