Ronald R. Whyte v. Carolyn W. Colvin, No. 2:2016cv06158 - Document 40 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (See order for further details) (hr)
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Ronald R. Whyte v. Carolyn W. Colvin Doc. 40 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RONALD R. WHYTE, 12 Plaintiff, 13 14 15 Case No. CV 16-06158-RAO v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER Defendant. 16 17 18 I. 19 20 21 22 23 24 25 26 27 INTRODUCTION Plaintiff Ronald R. Whyte (“Plaintiff”) challenges the Commissioner’s denial of his application for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). For the reasons stated below, the decision of the Commissioner is AFFIRMED. II. PROCEEDINGS BELOW On August 21, 2014, Plaintiff filed a claim for a period of disability, DIB, and SSI alleging disability beginning June 1, 2004. (Administrative Record (“AR”) 88, 98, 108, 204, 210.) His application was denied initially on November 19, 2014, and upon reconsideration on March 16, 2015. (AR 139, 144, 153, 159.) On May 28 Dockets.Justia.com 1 12, 2015, Plaintiff filed a written request for hearing, and a hearing was held on 2 October 16, 2015. (AR 34, 165.) Represented by counsel, Plaintiff appeared and 3 testified, along with an impartial vocational expert (“VE”). 4 February 4, 2016, the Administrative Law Judge (“ALJ”) found that Plaintiff had 5 not been under a disability, pursuant to the Social Security Act,1 since June 1, 2004. 6 (AR 28-29.) The ALJ’s decision became the Commissioner’s final decision when 7 the Appeals Council denied Plaintiff’s request for review. (AR 1.) Plaintiff filed 8 this action on August 17, 2016. (Dkt. No. 1.) (AR 36-87.) On 9 The ALJ followed a five-step sequential evaluation process to assess whether 10 Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821, 11 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged 12 in substantial gainful activity since June 1, 2004, the alleged onset date (“AOD”). 13 (AR 20.) 14 persecutory type, and history of methamphetamine abuse are severe impairments. 15 (Id.) At step three, the ALJ found that Plaintiff “does not have an impairment or 16 combination of impairments that meets or medically equals the severity of one of 17 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AR 21.) Before proceeding to step four, the ALJ found that Plaintiff has the residual 18 19 At step two, the ALJ found that Plaintiff’s delusional disorder, functional capacity (“RFC”) to: [P]erform a full range of work at all exertional levels but with the following nonexertional limitations: simple, routine and repetitive tasks, but not at a production rate pace (no assembly work); no more than occasional contact with coworkers and supervisors; and no interaction with the general public. 20 21 22 23 24 (AR 22.) 25 /// 26 27 28 1 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 2 1 At step four, based on Plaintiff’s RFC and the vocational expert’s testimony, 2 the ALJ found that Plaintiff was unable to perform past relevant work as a 3 telephone solicitor. (AR 27.) At step five, “[c]onsidering the claimant’s age, 4 education, work experience, and residual functional capacity,” the ALJ found that 5 “there are jobs that exist in significant numbers in the national economy that the 6 claimant can perform.” (Id.) Accordingly, the ALJ determined that Plaintiff has 7 not been under a disability from the AOD through the date of decision. (AR 28.) 8 III. STANDARD OF REVIEW 9 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 10 decision to terminate benefits. A court must affirm an ALJ’s findings of fact if they 11 are supported by substantial evidence, and if the proper legal standards were 12 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial 13 evidence’ means more than a mere scintilla, but less than a preponderance; it is 14 such relevant evidence as a reasonable person might accept as adequate to support a 15 conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing 16 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can 17 satisfy the substantial evidence requirement “by setting out a detailed and thorough 18 summary of the facts and conflicting clinical evidence, stating his interpretation 19 thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 20 1998) (citation omitted). 21 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 22 specific quantum of supporting evidence. Rather, a court must consider the record 23 as a whole, weighing both evidence that supports and evidence that detracts from 24 the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 25 2001) (citations and internal quotation marks omitted). 26 susceptible to more than one rational interpretation,’ the ALJ’s decision should be 27 upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 28 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 3 “‘Where evidence is 1 882 (“If the evidence can support either affirming or reversing the ALJ’s 2 conclusion, we may not substitute our judgment for that of the ALJ.”). The Court 3 may review only “the reasons provided by the ALJ in the disability determination 4 and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. 5 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 6 871, 874 (9th Cir. 2003)). 7 IV. DISCUSSION 8 Plaintiff raises the following issues for review: (1) whether the ALJ properly 9 assessed Plaintiff’s medically determinable impairments; (2) whether the ALJ 10 properly discounted Plaintiff’s symptom testimony; and (3) whether the ALJ 11 properly determined that Plaintiff could perform a significant number of jobs. 12 (Joint Stipulation (“JS”) 4.) Plaintiff contends that the ALJ failed to properly 13 consider Plaintiff’s impairments, failed to properly consider Plaintiff’s symptoms, 14 and failed to include all of Plaintiff’s impairments in the hypothetical posed to the 15 VE. (See JS 4-10, 18-19, 29-30.) The Commissioner disagrees. (See JS 11-17, 20- 16 25, 31-32.) A. 17 The ALJ Properly Assessed Plaintiff’s Medically Determinable Impairments 18 19 Plaintiff argues that the ALJ erred in finding that Plaintiff’s mental 20 impairment does not meet or equal a listed impairment and erred in finding that 21 Plaintiff does not have a physical impairment. (See JS 4-5, 8.) The Commissioner 22 argues that Plaintiff failed to carry his burden of establishing the severity of his 23 impairments. (See JS 11-13, 16.) 1. 24 The ALJ Properly Considered The Medical Opinion Evidence 25 The ALJ determined the severity of Plaintiff’s impairments based, in part, on 26 27 physicians’ medical opinions and conclusions. (AR 20.) 28 /// 4 1 a. Applicable Legal Standards 2 Courts give varying degrees of deference to medical opinions based on the 3 provider: (1) treating physicians who examine and treat; (2) examining physicians 4 who examine, but do not treat; and (3) non-examining physicians who do not 5 examine or treat. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th 6 Cir. 2009). Most often, the opinion of a treating physician is given greater weight 7 than the opinion of a non-treating physician, and the opinion of an examining 8 physician is given greater weight than the opinion of a non-examining physician. 9 See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 10 The ALJ must provide “clear and convincing” reasons to reject the ultimate 11 conclusions of a treating or examining physician. Embrey v. Bowen, 849 F.2d 418, 12 422 (9th Cir. 1988); Lester, 81 F.3d at 830-31. However, an ALJ need not accept a 13 treating physician’s opinion that is “brief and conclusionary in form with little in 14 the way of clinical findings to support [its] conclusion.” Magallanes v. Bowen, 881 15 F.2d 747, 751 (9th Cir. 1989) (quoting Young v. Heckler, 803 F.2d 963, 968 (9th 16 Cir. 1986)). When a treating or examining physician’s opinion is contradicted by 17 another opinion, the ALJ may reject it only by providing specific and legitimate 18 reasons supported by substantial evidence in the record. Orn, 495 F.3d at 633; 19 Lester, 81 F.3d at 830; Carmickle, 533 F.3d at 1164. A non-examining physician’s 20 opinion can constitute substantial evidence if it is supported by other evidence in 21 the record and is consistent with it. Morgan, 169 F.3d at 600. “An ALJ can satisfy 22 the ‘substantial evidence’ requirement by ‘setting out a detailed and thorough 23 summary of the facts and conflicting evidence, stating his interpretation thereof, 24 and making findings.’” Garrison, 759 F.3d at 1012 (citation omitted). 25 b. Discussion 26 John Sedgh, M.D., completed an internal medicine consultative examination 27 of Plaintiff in October 2014. (AR 333-38.) Plaintiff’s primary complaints were a 28 tumor in his left ear, partial amputation of his left ear, and hepatitis C. (AR 333.) 5 1 Plaintiff reported that he had been diagnosed with basal cell carcinoma, and he 2 complained of decreased hearing on his left side. (Id.) Upon examination, Dr. 3 Sedgh observed that Plaintiff has 60 percent of the left auricle amputated and 4 decreased hearing in the left ear, but Plaintiff did not wear a hearing aid. (AR 335, 5 337.) Dr. Sedgh opined that Plaintiff could lift or carry 50 pounds occasionally and 6 25 pounds frequently, stand and walk for 6 hours of an 8-hour workday, sit for 6 7 hours of an 8-hour workday, frequently perform postural activities, and manipulate 8 and reach without limitation. 9 examination did not reveal a basis for any of these functional restrictions. (AR 25- 10 26.) Accordingly, the ALJ gave no weight to Dr. Sedgh’s concluding opinion 11 regarding Plaintiff’s capacity to work, but the ALJ considered the lack of findings 12 for the purposes of determining the severity and effects of Plaintiff’s alleged 13 limitations. (AR 26.) Because Dr. Sedgh’s opinion regarding functional limitations 14 was not consistent with his own observations, the ALJ properly rejected it. 15 Valentine v. Comm. Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (ALJ’s 16 rejection of treating psychologist’s opinion because it was contradicted by doctor’s 17 own treatment reports was specific and legitimate reason supported by substantial 18 evidence). (AR 338.) The ALJ noted that Dr. Sedgh’s 19 Psychiatrist Raymond Yee, M.D., completed a psychiatric consultative 20 examination of Plaintiff in October 2014. (AR 341-47.) Plaintiff reported to Dr. 21 Yee that he has depression and was diagnosed with a delusional disorder. (AR 22 342.) Plaintiff explained that he was treated at Patton State Hospital for about ten 23 months, seven of which were spent in the inpatient psychiatric facility. (AR 344.) 24 After being released from prison, Plaintiff has been going to the Parole Outpatient 25 Clinic. (Id.) Plaintiff reported passing Phase 1 of his requirement of attending 26 classes, and in Phase 2, he gets to enroll in school. (Id.) Plaintiff expressed that he 27 would like to be a drug and alcohol counselor, obtain higher education, and try to 28 get a job one day. (Id.) Dr. Yee observed that Plaintiff had good grooming and 6 1 hygiene, good eye contact, and no abnormal mannerisms or tics. (AR 344-45.) Dr. 2 Yee also observed that Plaintiff was polite, cooperative, and friendly, and he had 3 productive and coherent speech with appropriate mood and affect. (AR 345.) Dr. 4 Yee found that Plaintiff was oriented and had intact memory. (Id.) Plaintiff could 5 correctly calculate, spell, and think abstractly. (AR 345-46.) Dr. Yee diagnosed 6 Plaintiff with history of delusional disorder, persecutory type, and history of 7 amphetamine abuse, with a Global Assessment of Functioning score of 55. (AR 8 346.) Dr. Yee stated that Plaintiff “appears to be psychiatrically stable,” but found 9 that his prognosis was “fair to guarded.” (Id.) Dr. Yee opined that Plaintiff could 10 perform simple and repetitive tasks, perform detailed and complex tasks, accept 11 instructions from supervisors, interact with coworkers and the public, perform work 12 activities on a consistent basis without special supervision, maintain regular 13 attendance, complete a normal workday and workweek without interruption from a 14 psychiatric condition, and adequately deal with the usual stressors of competitive 15 employment. (AR 347.) The ALJ gave great weight to Dr. Yee’s opinion, “which 16 factors the claimant’s psychiatric history and current functioning.” 17 However, the ALJ found that Dr. Yee’s prognosis within the “guarded” realm of 18 “fair to guarded” was entitled to no weight because it was inconsistent with Dr. 19 Yee’s assessment of no mental functional limitations, his belief that Plaintiff was 20 psychiatrically stable, and Plaintiff’s statements about goals and objectives for work 21 and school. (Id.) The ALJ properly rejected this portion of Dr. Yee’s opinion. See 22 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (finding that a 23 contradiction between a physician’s opinion and his other recorded observations is 24 a clear and convincing reason to discount that opinion). (AR 26.) 25 State agency physician E. Wong, M.D., reviewed Plaintiff’s records and 26 concluded that Plaintiff does not have a severe physical impairment. (AR 115.) 27 State agency physician G. Ikawa, M.D., opined that Plaintiff was mildly restricted 28 in activities of daily living, moderately impaired in maintaining social functioning, 7 1 and mildly impaired in maintaining concentration, persistence, or pace. (AR 117, 2 119-20.) The ALJ found that these opinions were consistent with both objective 3 findings and Plaintiff’s statements regarding his ability to perform daily activities. 4 (AR 25.) The ALJ was therefore permitted to assign great weight to these non- 5 examining opinions. See Morgan, 169 F.3d at 600 (“Opinions of a nonexamining, 6 testifying medical advisor may serve as substantial evidence when they are 7 supported by other evidence in the record and are consistent with it.”); Ruiz v. 8 Colvin, 638 F. App’x 604, 606 (9th Cir. 2016) (finding that the ALJ did not err in 9 giving the greatest weight to non-examining state agency medical consultants 10 because “the ALJ found their opinions consistent with the greater medical record, 11 progress and treating notes, and [the plaintiff]’s description of her daily activities”). 12 In sum, the Court finds that the ALJ properly assessed and weighed the 13 medical opinion evidence. 14 2. 15 16 The ALJ Did Not Err In Finding That Plaintiff’s Mental Impairment Did Not Meet Or Equal A Listed Impairment Plaintiff contends that the ALJ erred in finding that Plaintiff’s mental 17 impairment did not meet or equal a listed impairment. 18 Commissioner contends that Plaintiff failed to meet his burden of establishing that 19 he had a listed impairment. (See JS 11-13.) 20 (See JS 4-7.) The a. Applicable Legal Standards 21 At step three, an ALJ must determine whether a claimant has an impairment 22 or combination of impairments that meet or medically equal the severity of an 23 impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. 24 § 404.1594(f)(2). Listed impairments are “designed to operate as a presumption of 25 disability that makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 26 521, 532, 110 S. Ct. 885, 892, 107 L. Ed. 2d 967 (1990). To show that a claimant’s 27 impairment meets a listing, the claimant must meet all of the specified medical 28 criteria for that listing. Id. at 530. An ALJ “must evaluate the relevant evidence 8 20 CFR 1 before concluding that a claimant’s impairments do not meet or equal a listed 2 impairment,” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001), but it is not 3 necessary to “state why a claimant failed to satisfy every different section of the 4 listing of impairments,” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). b. Discussion 5 6 The ALJ found that Plaintiff’s mental impairment did not meet or medically 7 equal the severity of Listing 12.04. (AR 21.) To meet this listing, a claimant must 8 satisfy the requirements of both paragraphs A and B, or he must satisfy the 9 requirements of paragraph C. See 20 CFR § Pt. 404, Subpt. P, App. 1 (12.04 10 11 Affective Disorders). In finding that Plaintiff’s impairment did not meet or equal Listing 12.04, the 12 ALJ considered whether the “paragraph B” criteria were satisfied. (AR 21.) 13 Paragraph B requires that the medically documented depressive syndrome, manic 14 syndrome, or bipolar syndrome result in at least two of the following: 15 1. Marked restriction of activities of daily living; or 16 2. Marked difficulties in maintaining social functioning; or 17 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration. 18 19 20 20 CFR § Pt. 404, Subpt. P, App. 1 (12.04 Affective Disorders). 21 determined that Plaintiff had mild restriction of activities of daily living, noting his 22 ability to care for his own needs, clean, do laundry, and prepare meals. (AR 21.) 23 The ALJ also found that Plaintiff had only mild difficulties in social functioning, 24 noting that he attends AA meetings, goes to the Gay and Lesbian Center for support 25 and resources, has lived with roommates, gets money from friends and relatives, 26 and takes public transportation. (Id.) The ALJ found moderate difficulties with 27 concentration, persistence, or pace, noting that Plaintiff enjoys reading, playing 28 9 The ALJ 1 volleyball, and playing table cards. (Id.) Finally, the ALJ observed that Plaintiff 2 has experienced no episodes of decompensation of extended duration. (Id.) The 3 ALJ concluded that the “paragraph B” criteria are not satisfied because Plaintiff’s 4 mental impairment does not cause at least two “marked” limitations or one 5 “marked” limitation with “repeated” episodes of decompensation. (Id.) 6 The ALJ then considered the “paragraph C” criteria. Paragraph C requires a 7 medically documented history of at least two years of a chronic affective disorder 8 that has caused more than a minimal limitation of ability to do basic work activities, 9 with symptoms or signs currently attenuated by medication or psychosocial 10 11 12 support, and at least one of the following: 1. Repeated episodes of decompensation, each of extended duration; or 2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or 3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 13 14 15 16 17 18 20 CFR § Pt. 404, Subpt. P, App. 1 (12.04 Affective Disorders). The ALJ found 19 that the evidence fails to meet the criteria. (AR 21.) 20 Plaintiff contends that the ALJ erred in failing to consider Listing 12.03 for 21 schizophrenia as requested by counsel (AR 43), and he argues that the evidence 22 shows that he meets the criteria of parts A, B, and C of that listing. (JS 4.) 23 Although Plaintiff was diagnosed with schizophrenia (see AR 354-55), “[t]he mere 24 diagnosis of an impairment listed in Appendix 1 is not sufficient to sustain a finding 25 of disability.” Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). Plaintiff must 26 also demonstrate that his impairment is as severe as required under the findings for 27 that impairment. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990) (citing 20 28 CFR § 404.1525(d)). 10 1 At the time of the hearing and the ALJ’s decision, Listing 12.03 and Listing 2 12.04 had identical “paragraph B” and “paragraph C” criteria. See 20 CFR § Pt. 3 404, Subpt. P, App. 1 (effective Aug. 12, 2015 to May 23, 2016). As discussed 4 above, the ALJ found that the “paragraph B” and “paragraph C” criteria were not 5 satisfied. (See AR 21.) Although the ALJ did not expressly consider Listing 12.03 6 for schizophrenia, Plaintiff has not met his burden of proving that he meets all 7 criteria of the listing, including the “paragraph B” or “paragraph C” criteria. 8 Accordingly, the ALJ did not err in determining that Plaintiff’s impairments did not 9 meet or medically equal a listed impairment. See Perez v. Astrue, 831 F. Supp. 2d 10 1168, 1175-76 (C.D. Cal. 2011) (finding no error when an ALJ failed to address the 11 listings expressly argued by claimant’s counsel, but fully discussed the record and 12 found that the claimant did not provide evidence that her impairments met or 13 equaled any listing); see also See Gonzalez, 914 F.2d at 1201 (stating that it is 14 unnecessary for the ALJ to explain why a claimant failed to satisfy every section of 15 the listing of impairments, and a four-page “evaluation of the evidence” was an 16 adequate statement of the foundation for the ALJ’s conclusions). 17 18 3. The ALJ Did Not Err In Finding No Physical Impairment Plaintiff contends that the ALJ erred in not finding a severe impairment 19 related to Plaintiff’s problems with his ear. (See JS 8.) The Commissioner 20 contends that Plaintiff failed to provide any evidence of limitations attributed to his 21 ear impairments. (JS 15-16.) 22 At step two, the ALJ must determine whether a claimant has a severe 23 medically determinable impairment. See 20 CFR §§ 404.1520(c), 416.920(c). The 24 existence of a severe impairment is satisfied when the evidence shows that an 25 impairment has more than a minimal effect on an individual’s ability to perform 26 basic work activities. 20 CFR § 404.1521(a); Smolen v. Chater, 80 F.3d 1273, 27 1290 (9th Cir. 1996). A determination that an impairment is not severe requires 28 evaluation of medical findings describing the impairment, and an informed 11 1 judgment as to its limiting effects on a claimant’s ability to do basic work activities. 2 SSR 85–28, 1985 WL 56856, at *4 (Jan. 1, 1985). An impairment or combination 3 thereof is not severe if the clearly established objective medical evidence shows 4 only slight abnormalities that minimally affect a claimant’s ability to do basic work 5 activities. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); Smolen, 80 F.3d at 6 1290. 7 The ALJ acknowledged Plaintiff’s testimony about his skin cancer and loss 8 of hearing in his left ear, but found that there was “minimal evidence of treatment 9 or adverse effects” of these conditions. (AR 21.) The ALJ noted that there was no 10 record of follow-up for the basal cell carcinoma and no record of audiological 11 testing. (Id.) Furthermore, the ALJ observed that Plaintiff did not allege these 12 conditions in his disability application. (Id.) 13 The ALJ considered Plaintiff’s October 2014 internal medicine consultative 14 examination, which documented Plaintiff’s partial amputation of his left ear and 15 decreased hearing on the left side. (AR 25.) The examining physician noted that 16 Plaintiff did not use a hearing aid, and he did not assess any functional limitations 17 related to Plaintiff’s ear or hearing. (AR 335, 337-38.) As discussed above, the 18 ALJ also properly assessed and gave great weight to the state agency opinion that 19 Plaintiff did not have a severe physical impairment. (AR 25; see AR 115.) The 20 ALJ therefore did not find sufficient clinical evidence to support the severity of 21 Plaintiff’s ear impairments. (AR 21.) 22 While the record shows that Plaintiff had skin cancer and loss of hearing in 23 his left hear, a mere diagnosis of an impairment—or even treatment for it—is 24 insufficient to establish severity at step two, especially when, like the instant case, 25 the objective medical evidence in the record fails to show any work-related 26 limitations connected to the impairment. See Harvey v. Colvin, 2013 WL 3899282, 27 at *5 (C.D. Cal. July 29, 2013) (citing Matthews v. Shalala, 10 F.3d 678, 680 (9th 28 Cir. 1993)). 12 1 Plaintiff argues that the ALJ erred in not reviewing the entire record “to 2 understand the nature of the impairment, its ongoing nature and [Plaintiff’s] 3 symptomatology.” 4 provided no evidence regarding any limitations arising from these impairments. At 5 the hearing, the ALJ provided Plaintiff’s attorney with 30 days to submit additional 6 relevant medical evidence, but as of the date of the ALJ’s decision, no records had 7 been received. (AR 18, 40, 86; see JS 8.) 8 9 10 11 (JS 8.) But as the Commissioner notes (JS 16), Plaintiff Based on the record as a whole, the ALJ did not err in finding that Plaintiff did not have a severe physical impairment. B. The ALJ’s Credibility Determination Is Supported By Substantial Evidence 12 Plaintiff contends that the ALJ incorrectly impugned his testimony. (JS 19.) 13 The Commissioner contends that the ALJ set forth valid reasons, supported by 14 substantial evidence, for discounting Plaintiff’s credibility. (JS 24.) 15 1. Plaintiff’s Testimony 16 Plaintiff testified that he completed tenth grade and received a GED at the 17 beginning of eleventh grade. (AR 48.) Plaintiff stated that he was currently living 18 at a residence hotel, which he paid for with money “scrape[d] together” from 19 friends and relatives. (AR 44-45.) Plaintiff collects general relief and food stamps, 20 and his investment income has run out. (AR 45.) Plaintiff stated that the attorney 21 who runs his investment was part of a conspiracy to murder him. 22 Plaintiff agreed with the ALJ’s statement that mental health professionals think that 23 he has delusional thoughts, and Plaintiff stated that he still holds those types of 24 beliefs. (Id.) (AR 46.) 25 Plaintiff explained that he is on parole and is required to see a psychiatrist 26 once a month. (AR 47.) He stated that he does not see the psychiatrist much and 27 instead sees a clinician. (AR 49-50.) Plaintiff testified that he sought treatment 28 elsewhere because the clinician reports through his parole agent, but as long as he is 13 1 receiving services from the Parole Outpatient Clinic, he is unable to get services 2 elsewhere unless he pays for them. (AR 49.) Plaintiff stated that he has a “pretty 3 good relationship” with his therapist, and although he was previously worried about 4 saying too much, he is more comfortable and “a little more open with her now.” 5 (AR 49-50.) Plaintiff testified that he has issues with rage and frustration, and he 6 tries to cope with “thoughts that just sort of intrude.” (AR 63.) 7 Plaintiff also sees another doctor via telecom who prescribes medications. 8 (AR 50-51.) Plaintiff takes trazodone and mirtazapine. (AR 51.) Plaintiff testified 9 that he previously took Buspar, Remeron, Abilify, and Seroquel, but he is unable to 10 use them due to side effects such as passing out. (AR 52.) He stopped taking his 11 psychiatric medications because they “don’t make [him] feel very well.” (Id.; see 12 AR 54.) Plaintiff asked to start his medications again in September 2014. (AR 53.) 13 By March 2015, Plaintiff stopped taking his psychiatric medications, and Plaintiff 14 testified that he “would prefer not to take them at all, actually.” (AR 54.) Plaintiff 15 explained that at that time, he was taking his medications mostly to help him sleep. 16 (AR 55.) 17 Plaintiff explained that when he was in prison, he “felt safe most of the time” 18 and “didn’t have the same stresses” that he currently has. (AR 54.) Plaintiff 19 testified that he would always say that he was stable in prison, even if he was not as 20 stable as he wanted to be. (AR 75.) Plaintiff then stated that he “really did feel 21 stable” in prison because he did not come in contact with people as much and 22 played volleyball all day. (Id.) 23 Plaintiff has not worked since he was released from prison, and he stated that 24 he is “basically unemployable.” (AR 48.) Plaintiff explained that he would “like to 25 work,” but he does not know if he is able to. (AR 49.) Plaintiff stated that he has 26 tried to work and has submitted applications to “a few places,” but he has to discuss 27 his conviction. (Id.) 28 /// 14 1 Plaintiff stated that his ear bleeds “practically every day,” and he has to clean 2 it several times a day. (AR 61-62.) He does not know what prompts the bleeding, 3 and he often does not notice it. (AR 73-74.) He testified, “I don’t feel physically 4 disabled. Aside from the bleeding, I feel pretty good, actually.” (AR 62.) 5 Plaintiff testified that he attended AA meetings for a while because he was 6 addicted to methamphetamines. (AR 55.) Plaintiff stated that he has not used 7 drugs in the past nine years, since before he was incarcerated. (AR 55-56.) 8 Plaintiff stated that he had volunteered on Saturdays, but he no longer can do 9 so as often because it is now farther from him. (AR 57.) Plaintiff would like to 10 continue volunteering, but it is difficult for him to get there. (Id.) 11 Plaintiff began working as a window washer in junior high school and 12 became a professional in 1985. (Id.) Plaintiff explained that he did that work until 13 1999, when he had to sell his home and renovate it. (AR 58.) Plaintiff decided that 14 he would rather renovate real estate, but he “never really made much money” in 15 real estate. (Id.) Plaintiff was also a telemarketer for about a month, but he “sold 16 absolutely nothing.” (AR 59.) Plaintiff stated that while he was in prison, he 17 worked in the kitchen for about eight months. (AR 61.) Since Plaintiff was 18 released from prison, he made fifty dollars washing a store’s windows twice before 19 the store went out of business. (Id.) Plaintiff believes that he is “too old” to make a 20 living washing windows now. (AR 73.) 21 Plaintiff stated that he visits with friends often, and they buy food that 22 Plaintiff cooks for them. (AR 64.) Plaintiff also goes to the library and arranged 23 meetings with a counselor regarding interviewing and networking. (Id.) Plaintiff 24 explained that his “very violent” thoughts intruded into his conversation with the 25 counselor, which he did not understand. (AR 64-65.) 26 Plaintiff testified that he has suffered from various levels of depression since 27 he learned that his mother was conspiring to kill him. (AR 65.) Plaintiff explained 28 that he takes certain precautions like barricading his door, changing locations, not 15 1 answering his phone, and taking different routes to places. (AR 65-66.) Plaintiff 2 stated that he does not feel like he is persecuted, and he does not agree with his 3 diagnosis of delusions. (AR 67.) Plaintiff also stated that he is told that his belief 4 that he is not delusional is part of the delusion. (Id.) Plaintiff testified that in his 5 mind, “there was a conspiracy to murder [him], and [he] narrowly escaped by 6 killing one of the participants.” (Id.) 7 Plaintiff explained that there were times when he was very paranoid and, 8 although “it’s been proven that people were following [him],” he is sure that there 9 were also times when he incorrectly thought that people were following him. (AR 10 68.) Plaintiff denied visual hallucinations, but he stated that he had auditory 11 hallucinations several years ago. (Id.) 12 Plaintiff testified that he cannot work due to fear. (AR 69.) When he is with 13 other people, his thoughts regularly intrude on him and he has to remove himself. 14 (Id.) Plaintiff explained that his thoughts also intrude when he is preparing a meal 15 and holding knives. (Id.) Plaintiff stated that when he committed his crime, it was 16 not spontaneous and he had a reason for the violence. (AR 69-70.) Plaintiff 17 explained that now he is not angry, but he still has those thoughts. (AR 70.) 18 Plaintiff stated that he will “explode in rage” if he struggles to operate his phone, 19 and he has broken a couple of televisions because he was unable to get the remote 20 to work. (Id.) Plaintiff explained that he never feels that rage with people, only 21 with objects. (AR 70-71.) Plaintiff testified that this thinking disconnects him 22 from whatever he is doing, and it happens only when he has contact with people. 23 (AR 72.) Plaintiff stated that he did not develop these thoughts until several 24 months after he got out of prison. (AR 76.) He does not understand why his 25 thoughts are directed at his friends or strangers who have no ill will towards him. 26 (Id.) 27 /// 28 /// 16 1 2. Applicable Legal Standards 2 “In assessing the credibility of a claimant’s testimony regarding subjective 3 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 4 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 5 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 6 presented objective medical evidence of an underlying impairment which could 7 reasonably be expected to produce the pain or other symptoms alleged.” Treichler 8 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 9 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the 10 ALJ does not find evidence of malingering, the ALJ must provide specific, clear 11 and convincing reasons for rejecting a claimant’s testimony regarding the severity 12 of his symptoms. Id. The ALJ must identify what testimony was found not 13 credible and explain what evidence undermines that testimony. 14 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are 15 insufficient.” Lester, 81 F.3d at 834. 16 3. Holohan v. Discussion 17 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 18 “medically determinable impairments could reasonably be expected to cause the 19 alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity, 20 persistence and limiting effects of these symptoms are not entirely credible.” (AR 21 23.) The ALJ noted that the record contains “ample evidence” of credibility issues 22 “suggesting the claimant has never attempted to work outside of his prison term and 23 his views of Social Security Disability as a mere source of financial gain.” (AR 24 23.) Specifically, the ALJ relied on the following reasons: (1) lack of objective 25 medical evidence to support the alleged severity of symptoms; (2) failure to seek 26 treatment; (3) inconsistent statements; and (4) Plaintiff’s statements about his 27 28 17 1 investment savings.2 (AR 23, 26-27.) No malingering allegation was made, and 2 therefore, the ALJ’s reasons must be “clear and convincing.” a. Reason No. 1: Lack of Supporting Objective Medical 3 Evidence 4 5 The lack of supporting objective medical evidence cannot form the sole basis 6 for discounting testimony, but it is a factor that the ALJ may consider in making a 7 credibility determination. Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 8 853, 857 (9th Cir. 2001) (citing 20 CFR § 404.1529(c)(2)). 9 The ALJ found that the medical record is “minimal” and does not provide 10 sufficient objective support for Plaintiff’s allegations of mental instability and 11 physical problems. (AR 23.) 12 In October 2009, Plaintiff was committed to the California Department of 13 Mental Health and admitted to Patton State Hospital after being found incompetent 14 to stand trial for murder. (AR 289.) Plaintiff did not report any complaints and 15 stated that his admission was “really all just a misunderstanding” due to a problem 16 with his attorney. (Id.) He had no psychiatric history except for a 2006 admission 17 to a facility for substance abuse. (Id.) Plaintiff had delusions of persecution and 18 believed that his lawyer was conniving with the judge. (AR 289-90.) Plaintiff was 19 described as being linear and goal-directed with a good mood, euthymic affect, 20 normal speech, no abnormal motor activities, intact memory, and fair judgment. 21 (AR 289.) He was alert, oriented, and attentive, but his insight was impaired. (Id.) 22 Physically, it was noted that Plaintiff had a left ear amputation for carcinoma of the 23 skin, which caused difficulty with his hearing. (AR 289-90.) Plaintiff also had 24 hepatitis C with a high viral load. (Id.) Plaintiff was treated with Seroquel, and he 25 2 26 27 28 Plaintiff contends that the ALJ also improperly considered Plaintiff’s activities while in prison. (JS 7.) The ALJ did not raise Plaintiff’s activities as a reason to discount his testimony. Instead, the ALJ considered Plaintiff’s activities such as volleyball during his assessment of whether Plaintiff’s impairment satisfied the “paragraph B” criteria for a listed impairment. (AR 21.) 18 1 was compliant with treatment. (AR 290.) Plaintiff was described as friendly and 2 able to interact with peers and staff. 3 newspapers, and he also did puzzles, played table cards, and played volleyball. 4 (Id.) No medication side effects were noted, but his symptoms did not diminish. 5 (Id.) Upon discharge, Plaintiff acknowledged the need to “separate [his] delusions 6 from reality” and denied hallucinations. (Id.) His mood was stable, affect was 7 appropriate, and insight and judgment were improved. (Id.) (Id.) He read books, magazines, and 8 Treatment notes from December 2010 documented Plaintiff’s restricted 9 affect, depressed mood, poor sleep, poor insight and judgment, and preoccupation 10 with paranoid thoughts. (AR 305, 307.) Plaintiff heard voices that told him to kill 11 people. (AR 305.) He was diagnosed with psychotic disorder and polysubstance 12 dependence, with a GAF score of 54. (AR 309.) 13 At an April 2013 routine appointment, Plaintiff was oriented and had normal 14 speech, cooperative behavior, stable mood, slightly depressed affect, linear and 15 goal-directed thoughts, normal thought content, good judgment, and good insight. 16 (AR 317.) Plaintiff denied a history of hallucinations and did not appear to be 17 responding to internal stimuli. (Id.) Plaintiff was observed to have adequate 18 coping skills to manage his current stress. 19 psychotropic medication” and was motivated for mental health sessions. 20 Plaintiff was assigned a GAF score of 68 and was diagnosed with provisional 21 delusional disorder, depressive disorder NOS, and amphetamine abuse. (Id.) (Id.) He “appear[ed] stable with (Id.) 22 In July 2013, Plaintiff reported, “I’m stable.” (AR 316.) At a September 23 2013 follow-up appointment, Plaintiff again “appear[ed] stable” with his 24 medications. (AR 315.) He still believed that there was a conspiracy to kill him, 25 “but there is much less of a threat now.” 26 strategies” and “positive plans for parole next year.” (Id.) It was also noted that 27 Plaintiff’s delusions had a decreased impact on his functioning and behaviors. (Id.) 28 /// 19 (Id.) Plaintiff had “ample coping 1 In December 2013, Plaintiff reported that he had not taken medication for his 2 anxiety. (AR 296.) He denied auditory or visual hallucinations, but he reported a 3 lack of motivation, intermittent periods of low mood, persecutory and paranoid 4 delusions, and defensiveness with peers. (Id.) He was cooperative and calm, made 5 good eye contact, and spoke with a normal rate and tone. (Id.) Plaintiff had 6 euthymic mood, congruent affect, normal thought process, normal attention and 7 concentration, and fair insight and judgment. (Id.) 8 Plaintiff reported that he was “doing well” at a routine appointment in March 9 2014. (AR 314.) He stopped his medications about six weeks prior because he was 10 not suffering from depression and had not been depressed “in the last several 11 years.” (Id.) Plaintiff reportedly felt better because the medication had made him 12 drowsy and less responsive. (Id.) Plaintiff was alert, oriented, well-groomed, and 13 cooperative. (Id.) His mood was euthymic and his speech was clear, organized, 14 and coherent with normal rate and tone. (Id.) Plaintiff had good insight and 15 judgment, and he was assessed as “stable,” active, and programming without 16 incident. (Id.) 17 In June 2014, Plaintiff reported his plans for after his parole and expressed 18 interest in the Ticket to Work program for vocational training. (AR 313.) He 19 acknowledged that his symptoms of depression and anxiety were not 20 overwhelming. (Id.) Plaintiff also reported no hallucinations in the past three 21 years. (Id.) He was calm, cooperative, conversant, engaged, appropriate and open, 22 talkative, and humorous. (Id.) Plaintiff had a bright affect, congruent mood, and 23 coherent and spontaneous speech. 24 perceptual disturbance, delusional statements, or paranoia. (Id.) His insight and 25 judgment were good with intact impulse control. (Id.) The clinician noted that 26 Plaintiff “seems to be able to function” with minimal symptoms. (Id.) 27 /// 28 /// (Id.) 20 Plaintiff displayed no evidence of 1 Plaintiff visited the parole clinic in August 2014. (AR 331.) He denied 2 hallucinations and stated that he was not interested in psychotropic medications at 3 that time. (Id.) 4 In October 2014, Plaintiff underwent an internal medicine consultative 5 examination. (AR 333-38.) He complained of a tumor in his left ear, partial 6 amputation of his left ear, and hepatitis C. (AR 333.) The examining physician 7 noted Plaintiff’s decreased hearing on the left side, but observed that Plaintiff did 8 not wear a hearing aid. (AR 335, 337.) The same month, Plaintiff also underwent a 9 psychiatric consultative examination. (AR 341-47.) Plaintiff was polite, 10 cooperative, and friendly. (AR 345.) The examining psychiatrist observed good 11 grooming, good hygiene, good eye contact, productive and coherent speech, 12 appropriate mood and affect, and no abnormal mannerisms or tics. (AR 344-45.) 13 He assigned Plaintiff a GAF score of 55 and diagnosed Plaintiff with a history of 14 delusional disorder, persecutory type, and a history of amphetamine abuse. (AR 15 346.) The psychiatrist determined that Plaintiff appeared to be “psychiatrically 16 stable.” (AR 347.) 17 During an October 2014 medication management appointment, Plaintiff 18 claimed that he wanted to stop his medications for reasons that his doctor found 19 “not convincing.” (AR 354.) Plaintiff did not want to try different medication and 20 “just want[ed] to stop them.” (Id.) 21 In December 2014, Plaintiff reported having a good Thanksgiving holiday at 22 a church with his AA peers. (AR 353.) He regularly volunteered at a homeless 23 breakfast and went to the Gay and Lesbian Center for resources, support, and legal 24 counseling. (Id.) Plaintiff reported looking forward to receiving services to learn a 25 career or trade. (Id.) His mood was euthymic with congruent affect, and he denied 26 any hallucinations. (Id.) Plaintiff reportedly felt stable without his psychotropic 27 medications. 28 adjusting well to parole and in the community.” (Id.) (Id.) His social worker observed that Plaintiff “appears to be 21 1 The ALJ thoroughly considered Plaintiff’s medical records (AR 23-26) and 2 found that they did not support Plaintiff’s allegations of disabling mental instability 3 and physical problems. See Reddick, 157 F.3d at 725; see also Garza v. Astrue, 380 4 F. App’x 672, 674 (9th Cir. 2010) (finding that an ALJ properly considered a 5 claimant’s normal exam findings when noting a lack of objective medical evidence 6 to support the claimant’s allegations). Although Plaintiff’s treatment records may 7 be interpreted in more than one way, the evidence can rationally support the ALJ’s 8 determination. 9 evidence. See Ryan, 528 F.3d at 1198; Robbins, 466 F.3d at 882. 10 11 12 Accordingly, the Court must uphold his interpretation of the The Court finds that this is a clear and convincing reason, supported by substantial evidence, for discounting Plaintiff’s credibility. b. Reason No. 2: Failure to Seek Treatment 13 When assessing a claimant’s credibility, an ALJ may consider an 14 unexplained or inadequately explained failure to follow a prescribed course of 15 treatment. Smolen, 80 F.3d at 1284. If a claimant complains of disabling pain but 16 fails to seek or follow prescribed treatment, “an ALJ may use such failure as a basis 17 for finding the complaint unjustified or exaggerated.” Orn, 495 F.3d at 638 (citing 18 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see Burch v. Barnhart, 400 F.3d 19 676, 681 (9th Cir. 2005). 20 The ALJ noted that Plaintiff alleged disability beginning June 2004, but there 21 were no medical records from that period. (AR 23.) The ALJ also observed that 22 the record “lacks consistent treatment notes from [Plaintiff]’s incarceration,” 23 identifying treatment records from October 2009, December 2010, April 2013, July 24 2013, September 2013, December 2013, March 2014, and June 2014. (AR 23-24.) 25 The Ninth Circuit has criticized the practice of discrediting evidence based 26 on a lack of mental health treatment “both because mental illness is notoriously 27 underreported and because it is a questionable practice to chastise one with a mental 28 impairment for the exercise of poor judgment in seeking rehabilitation.” 22 1 Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 2 1999) (internal quotation marks omitted) (citing Nguyen v. Chater, 100 F.3d 1462, 3 1465 (9th Cir. 1996)). 4 5 6 Accordingly, the Court finds that this reason is not a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. c. Reason No. 3: Inconsistent Statements 7 As part of the credibility determination, the ALJ may consider 8 inconsistencies between the claimant’s testimony and his other statements, conduct, 9 and daily activities. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 10 1997); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 11 The ALJ found that Plaintiff’s “overbroad and inconsistent testimony 12 suggested he believed he could work and would work if he had a job.” (AR 27.) 13 The ALJ noted that in June 2014, one month before Plaintiff’s parole, he reported 14 that he planned to enter a vocational training program and was “hoping to qualify 15 for a job.” (AR 24; see AR 313.) During an October 2014 psychiatric consultative 16 examination, Plaintiff expressed that he would like to be a drug and alcohol 17 counselor. (AR 25; see AR 344.) Plaintiff also stated that he wanted to obtain 18 higher education and try to get a job. (Id.) In November and December 2014, 19 Plaintiff was looking forward to receiving Department of Rehabilitation services to 20 learn a career or trade. (AR 26; see AR 353-54.) The ALJ observed that Plaintiff 21 testified that he was “unemployable” before stating that he does not know if he is 22 able to work. (AR 27; see AR 48-49.) The ALJ also noted that Plaintiff confirmed 23 that he had submitted job applications at several places. (AR 27; see AR 49.) 24 Although Plaintiff argues that his desire to work or go to school should not 25 detract from his credibility (see JS 28), the ALJ was permitted to rely on the 26 inconsistency between Plaintiff’s statements and his allegations of being unable to 27 work due to disability. See Merritt v. Colvin, 572 F. App’x 468, 470 (9th Cir. 28 2014) (affirming an ALJ’s finding that a claimant’s “interest in starting a new job is 23 1 not consistent with [the] marked limitations in the ability to tolerate work 2 pressures” about which the claimant testified); see also Fregoso v. Astrue, 2012 3 WL 2195655, at *4 (C.D. Cal. June 14, 2012) (“[P]laintiff’s testimony at the 4 hearing that she had been looking for work was inconsistent with plaintiff’s 5 assertions that she suffers from disabling impairments which preclude her from 6 working at all.”), aff’d (9th Cir. Aug. 13, 2013); Sample v. Schweiker, 694 F.2d 7 639, 642 (9th Cir. 1982) (“[The ALJ] is entitled to draw inferences logically 8 flowing from the evidence.”). 9 10 11 12 The Court finds that this reason is a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. d. Reason No. 4: Plaintiff’s Statements About His Investment Savings 13 The ALJ found that Plaintiff’s “credibility was again called into question” by 14 Plaintiff’s November 2014 revelation of his “investment savings.” (AR 26; see AR 15 354.) Plaintiff stated that he did not plan to access this money because he was 16 receiving free housing, but the ALJ noted that Plaintiff was not eligible to receive 17 General Relief because he continued to own property. (AR 26; see AR 354.) By 18 March 2015, Plaintiff reported that he was receiving his investment funds to pay for 19 living expenses. (AR 352.) 20 The ALJ does not explain how this undermines Plaintiff’s credibility, thereby 21 leaving the Court to speculate unacceptably about why the ALJ questioned 22 Plaintiff’s credibility on this basis. See Ros v. Berryhill, No. 2:15-CV-2389 DB, 23 2017 WL 896287, at *4 (E.D. Cal. Mar. 7, 2017) (citing Burrell v. Colvin, 775 F.3d 24 1133, 1138 (9th Cir. 2014)) (“The court may not speculate as to the ALJ’s findings 25 or the basis of the ALJ’s unexplained conclusions.”). The Commissioner argues 26 that Plaintiff’s statements concerning his resources and income are inconsistent, 27 citing Plaintiff’s social security application that represented that he had no 28 resources or income and Plaintiff’s testimony that he “scrape[s] together money 24 1 from friends and relatives.” (JS 23-24.) But those were not reasons that the ALJ 2 provided, and the Court may not consider grounds upon which the ALJ did not rely. 3 See Orn, 495 F.3d at 630; Bray v. Commissioner of Social Security Admin., 554 4 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law 5 require us to review the ALJ’s decision based on the reasoning and factual findings 6 offered by the ALJ—not post hoc rationalizations that attempt to intuit what the 7 adjudicator may have been thinking.”). 8 9 The Court finds that this reason is not a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. 4. 10 Conclusion 11 Because the Court found that two of the ALJ’s reasons for discounting 12 Plaintiff’s credibility are not clear and convincing, the Court must decide whether 13 the ALJ’s reliance on those reasons was harmless error. Carmickle v. Comm’r of 14 Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). The relevant inquiry “is not 15 whether the ALJ would have made a different decision absent any error,” but 16 whether the ALJ’s decision is still “legally valid, despite such error.” Id. The 17 “remaining reasoning and ultimate credibility determination [must be] . . . 18 supported by substantial evidence in the record.” Id. (emphasis in original) (citing 19 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). Here, 20 given the discussion above concerning the objective medical evidence and 21 Plaintiff’s inconsistent statements, the Court concludes the ALJ’s credibility finding 22 is legally valid and supported by substantial evidence. 23 24 C. The ALJ Properly Determined That Plaintiff Could Perform A Significant Number Of Jobs 25 Plaintiff contends that the ALJ improperly assessed his RFC and erred in 26 relying on the VE’s answers to a hypothetical that excluded some of Plaintiff’s 27 limitations. (See JS 9, 29.) The Commissioner contends that both the RFC and the 28 hypothetical that the ALJ posed to the VE are supported by substantial evidence. 25 1 2 (See JS 14-17, 31-32.) 1. The RFC Is Supported By Substantial Evidence 3 Plaintiff contends that the ALJ did not properly assess the record and thus the 4 RFC is not supported by substantial evidence. (JS 9.) The Commissioner contends 5 that the ALJ reasonably relied on the medical opinion evidence when determining 6 Plaintiff’s RFC. (JS 14-17.) a. Applicable Legal Standard 7 8 The ALJ is responsible for assessing a claimant’s RFC “based on all of the 9 relevant medical and other evidence.” 20 CFR §§ 404.1545(a)(3), 404.1546(c); 10 see Robbins, 466 F.3d at 883 (citing Soc. Sec. Ruling 96-8p (July 2, 1996), 1996 11 WL 374184, at *5). In doing so, the ALJ may consider any statements provided by 12 medical sources, including statements that are not based on formal medical 13 examinations. 14 determination of a claimant’s RFC must be affirmed “if the ALJ applied the proper 15 legal standard and his decision is supported by substantial evidence.” Bayliss, 427 16 F.3d at 1217; accord Morgan, 169 F.3d at 599. 17 See 20 CFR §§ 404.1513(a), 404.1545(a)(3). An ALJ’s b. Discussion 18 In determining Plaintiff’s RFC, the ALJ “considered all symptoms and the 19 extent to which these symptoms can reasonably be accepted as consistent with the 20 objective medical evidence and other evidence . . . [and] also considered opinion 21 evidence” in accordance with social security regulations. (AR 22.) 22 The ALJ gave “great weight” to the opinions of the state agency medical 23 consultants, finding that their opinions were consistent with objective findings and 24 Plaintiff’s statements about his ability to perform daily activities. (AR 25.) Dr. 25 Wong found that Plaintiff did not have a severe physical impairment, and Dr. Ikawa 26 opined that Plaintiff had mild to moderate non-exertional limitations and could 27 perform simple, repetitive tasks. (Id.; see AR 115, 117, 119-20.) The ALJ again 28 gave “great weight” to the psychiatric examining physician, who found that 26 1 Plaintiff was psychiatrically stable and did not require any functional restrictions. 2 (AR 25-26; see 346-47.) The ALJ also considered the internal medicine examining 3 physician’s lack of findings in determining the severity and effects of Plaintiff’s 4 alleged impairments. 5 considered and weighed the opinion evidence (see supra § IV(A)(1)), and the ALJ 6 was permitted to rely upon these opinions in assessing Plaintiff’s RFC. 7 Magallanes, 881 F.2d at 752 (“[T]he reports of consultative physicians called in by 8 the Secretary may serve as substantial evidence.”); Andrews v. Shalala, 53 F.3d 9 1035, 1041 (9th Cir. 1995) (stating that the opinion of a non-treating, examining 10 physician that is based on independent clinical findings “may itself be substantial 11 evidence”). (AR 26.) As previously discussed, the ALJ properly See 12 Consistent with the opinion evidence, the ALJ assessed that Plaintiff could 13 perform simple, routine, and repetitive tasks, not at a production rate pace, with no 14 more than occasional contact with coworkers and supervisors and no interaction 15 with the general public. 16 limitations. (Id.) (AR 22.) The ALJ imposed no physical exertional 17 Plaintiff contends that the RFC is not supported by substantial evidence 18 because the ALJ did not properly assess the record with respect to his treating 19 physician’s opinion. 20 improperly assessed. 21 schizophrenia that “received little consideration by the ALJ” and was not 22 incorporated in the RFC assessment (JS 7), a “diagnosis alone is insufficient for 23 finding a ‘severe’ impairment.” See Febach v. Colvin, 580 F. App’x 530, 531 (9th 24 Cir. 2014). 25 impairments, including non-severe impairments, see SSR 96–8p, 1996 WL 374184, 26 at *5 (S.S.A. July 2, 1996), Plaintiff does not identify any functional limitations that 27 were suggested by the diagnosing psychiatrist yet ignored by the ALJ. Dr. Robert 28 Barker described Plaintiff’s statements and history before observing that Plaintiff (JS 9.) Plaintiff does not identify what opinion was To the extent that Plaintiff identifies a diagnosis of Although the ALJ must consider limitations imposed by all 27 1 was casually and cleanly dressed with normal speech, euthymic mood, and 2 appropriate affect. (AR 354-55.) Aside from his diagnosis of schizophrenia and his 3 advisement that recurrences of Plaintiff’s problems “are not likely to be due to 4 problems in the external world,” and would be best treated with medication, Dr. 5 Barker provided no further opinion for the ALJ’s consideration. (See id.) 6 In sum, the Court finds that the ALJ’s RFC assessment is supported by 7 substantial evidence. See Arrieta v. Astrue, 301 F. App’x 713, 715 (9th Cir. 2008) 8 (finding that substantial evidence supported the RFC determination when the ALJ 9 properly evaluated the opinion evidence and relied on supporting medical reports 10 11 12 and testimony). 2. The ALJ Properly Relied On The VE’s Testimony To Find That Plaintiff Can Perform Other Work 13 Plaintiff argues that the ALJ’s finding that Plaintiff could perform a 14 significant number of jobs is not supported by substantial evidence and fails to 15 consider Plaintiff’s impairments. (JS 29.) The Commissioner contends that the 16 ALJ properly relied on the VE’s testimony because the ALJ posed a hypothetical to 17 the VE that encompassed all of Plaintiff’s limitations. (JS 31-32.) 18 a. Applicable Legal Standard 19 At step five, it is the Commissioner’s burden to establish that, considering the 20 RFC, the claimant can perform other work. Embrey, 849 F.2d at 422. To make this 21 showing, the ALJ may rely on the testimony of a vocational expert. Tackett v. 22 Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The ALJ may pose hypothetical 23 questions to the VE to establish (1) what jobs, if any, the claimant can do, and (2) 24 the availability of those jobs in the national economy. 25 hypotheticals must depict the claimant’s disability in a manner that is “accurate, 26 detailed, and supported by the medical record” and “set[s] out all of the claimant’s 27 impairments.” Id. (citing Gamer v. Sec’y of Health and Human Servs., 815 F.2d 28 1275, 1279-80 (9th Cir. 1987)). The VE’s testimony “is valuable only to the extent 28 Id. at 1101. These 1 that it is supported by medical evidence.” Sample, 694 F.2d at 644. “If a [VE]’s 2 hypothetical does not reflect all the claimant’s limitations, then the expert’s 3 testimony has no evidentiary value to support a finding that the claimant can 4 perform jobs in the national economy.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th 5 Cir. 2012) (quoting Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)). 6 b. Discussion 7 At the hearing, the ALJ first asked the VE to consider a hypothetical 8 individual with the same education and work background as Plaintiff, who could 9 also perform the following: occasionally lift and carry 50 pounds; frequently lift 10 and carry 25 pounds; sit, stand, or walk for six hours in a work day; push and pull 11 as much as he can lift and carry; and frequently stoop, kneel, crouch, and crawl. 12 (AR 81-82.) The VE testified that such an individual could perform Plaintiff’s past 13 job as a telephone solicitor. (AR 82.) When the ALJ added the limitation of 14 “simple, routine, and repetitive tasks with only occasional interaction with the 15 public,” the VE stated that Plaintiff’s past job would not be available, but such an 16 individual could perform the jobs of hand packager, laundry worker, or industrial 17 cleaner. (AR 82-83.) 18 The ALJ then posed the following hypothetical to the VE: 19 And I’m just going to—the same exertional levels, so just following up on the hypothetical I asked, but now, reducing the mental limitations to simple, routine, and repetitive tasks, but not at a production rate pace, so that, for example, no assembly line work. Just occasional interaction with supervisors and coworkers, and no interaction with the general public. 20 21 22 23 24 25 26 (AR 83.) The VE testified that a person with those limitations could not perform Plaintiff’s past work. (Id.) The VE then indicated that a person with those restrictions could still do the jobs that the VE identified in response to the prior 27 28 29 1 hypothetical.3 (AR 83-84.) 2 Plaintiff contends that the hypotheticals were deficient because they failed to 3 reflect the nature and scope of Plaintiff’s limitations. (JS 29.) Plaintiff also notes 4 that when his attorney posed a hypothetical that considered a claimant who would 5 be off-task over twenty percent of the time, the VE stated that there would be no 6 jobs available. (Id.; see AR 84-85.) However, “[t]he ALJ is not bound to accept as 7 true the restrictions presented in a hypothetical question propounded by a 8 claimant’s counsel.” Magallanes, 881 F.2d at 756 (citing Martinez v. Heckler, 807 9 F.2d 771, 773 (9th Cir. 1986)). When a claimant’s counsel poses a hypothetical 10 that is more restrictive than the ALJ’s hypothetical, the ALJ is “free to accept or 11 reject those restrictions” based on the ALJ’s evaluation of the evidence. Martinez, 12 807 F.2d at 774. 13 omitted the additional limitations presented by Plaintiff’s counsel—is supported by 14 substantial evidence. The ALJ posed a hypothetical containing limitations that 15 were identical to the limitations found in Plaintiff’s RFC. 16 limitations in the hypothetical are also supported by substantial evidence. As discussed above, the ALJ’s RFC determination—which Consequently, the 17 By posing a hypothetical with limitations supported by substantial evidence, 18 the ALJ did not err in excluding additional restrictions. See Stubbs-Danielson v. 19 Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008) (finding that, because the ALJ’s 20 RFC assessment was proper and complete, the ALJ’s hypothetical based on the 21 RFC was also proper and complete); Sample, 694 F.2d at 644 (“[T]he limitation of 22 evidence contained in the hypothetical at issue would be objectionable only if the 23 assumed facts could not be supported by the record.”); Osenbrock v. Apfel, 240 24 F.3d 1157, 1164 (9th Cir. 2001) (finding that an ALJ did not err in failing to 25 3 26 27 28 The VE stated, “The ultimate jobs I testified to in hypothetical number one would still fit.” (AR 84.) Because the VE did not identify other jobs in response to the first hypothetical, and he instead testified that such an individual could perform Plaintiff’s past work, the Court presumes that here the VE was referring to the second, not first, hypothetical. 30 1 include alleged impairments in a hypothetical when the claimant failed to present 2 evidence to support those impairments). Accordingly, the ALJ properly relied on 3 the VE’s testimony to determine that Plaintiff was capable of performing other 4 work. See Bayliss, 427 F.3d at 1217 (finding that an ALJ properly relied on a VE’s 5 testimony in response to a hypothetical that “contained all of the limitations that the 6 ALJ found credible and supported by substantial evidence in the record”); 7 Sampson v. Astrue, 441 F. App’x 545, 547 (9th Cir. 2011) (“Because the ALJ’s 8 hypothetical to the [VE] encompassed the RFC and the VE identified available jobs 9 in the national and local economy, the ALJ’s finding of no disability was supported 10 by substantial evidence.”). 11 V. 12 13 14 15 CONCLUSION IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 16 17 18 19 DATED: March 23, 2018 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 20 21 22 NOTICE 23 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 24 25 26 27 28 31
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