John H. Rys v. Carolyn W. Colvin, No. 2:2016cv08391 - Document 25 (C.D. Cal. 2018)

Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for further details) (bem)

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John H. Rys v. Carolyn W. Colvin Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN H. RYS, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. CV 16-8391-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ Joint Stipulation, 24 filed September 11, 2017, which the Court has taken under 25 submission without oral argument. 26 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of For the reasons stated below, 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1952. (Administrative Record (“AR”) 3 44, 148.) 4 worked as a credit analyst (see AR 58, 167). 5 He has an associate’s degree (AR 44, 227) and last In February 2013, Plaintiff filed an application for DIB, 6 alleging that he had been disabled since May 26, 2011, because of 7 “[m]ajor depression, anxiety, panic attacks, brittle diabetes,” 8 valvular heart disease, cholesterol, and hypertension. 9 61, 78-79, 148-49.) (AR 60- After his application was denied initially 10 (AR 98-102) and upon reconsideration (AR 105-09), he requested a 11 hearing before an Administrative Law Judge (AR 111-12). 12 hearing was held on June 8, 2015, at which Plaintiff, who was 13 represented by a nonattorney from a law firm (AR 43, 146), 14 testified, as did a vocational expert. 15 decision issued June 25, 2015, the ALJ found Plaintiff not 16 disabled. 17 additional medical evidence to the Appeals Council. 18 10, 982-1014.) 19 finding that the additional evidence related to a later period 20 and did not provide a basis for changing the ALJ’s decision. 21 1-7.) 22 the administrative record. 23 III. STANDARD OF REVIEW 24 (AR 26-40.) (AR 41-59.) A In a written Plaintiff requested review and submitted (See AR 9- On September 15, 2016, the council denied review, (AR The council ordered that the new evidence be made part of (AR 7.) This action followed. Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner’s decision to deny benefits. 26 decision should be upheld if they are free of legal error and 27 supported by substantial evidence based on the record as a whole. 28 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 2 The ALJ’s findings and 1 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 2 evidence means such evidence as a reasonable person might accept 3 as adequate to support a conclusion. 4 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 It is more than a scintilla but less than a preponderance. 6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 8 substantial evidence supports a finding, the reviewing court 9 “must review the administrative record as a whole, weighing both Richardson, 402 U.S. at To determine whether 10 the evidence that supports and the evidence that detracts from 11 the Commissioner’s conclusion.” 12 720 (9th Cir. 1998). 13 either affirming or reversing,” the reviewing court “may not 14 substitute its judgment” for the Commissioner’s. 15 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 16 People are “disabled” for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 22 1992). 42 U.S.C. 23 A. The Five-Step Evaluation Process 24 The ALJ follows a five-step sequential evaluation process to 25 assess whether a claimant is disabled. 26 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 27 Cir. 1995) (as amended Apr. 9, 1996). 28 Commissioner must determine whether the claimant is currently 3 20 C.F.R. In the first step, the 1 engaged in substantial gainful activity; if so, the claimant is 2 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 3 If the claimant is not engaged in substantial gainful 4 activity, the second step requires the Commissioner to determine 5 whether the claimant has a “severe” impairment or combination of 6 impairments significantly limiting his ability to do basic work 7 activities; if not, the claimant is not disabled and his claim 8 must be denied. 9 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments set 13 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 14 disability is conclusively presumed. § 404.1520(a)(4)(iii). 15 If the claimant’s impairment or combination of impairments 16 does not meet or equal an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient residual functional capacity (“RFC”)2 to perform 19 his past work; if so, he is not disabled and the claim must be 20 denied. 21 proving he is unable to perform past relevant work. 22 F.2d at 1257. 23 case of disability is established. § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 24 25 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 If that happens or if the claimant has no past relevant 2 work, the Commissioner then bears the burden of establishing that 3 the claimant is not disabled because he can perform other 4 substantial gainful work available in the national economy. 5 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 6 determination comprises the fifth and final step in the 7 sequential analysis. 8 n.5; Drouin, 966 F.2d at 1257. 9 B. 10 That § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 The ALJ’s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 substantial gainful activity since May 26, 2011, the alleged 12 disability-onset date. 13 he had the following severe impairments: “a remote history of a 14 cardiac stent placement and diabetes mellitus.” 15 three, she found that he did not have an impairment or 16 combination of impairments falling under a Listing. 17 (AR 28.) At step two, she concluded that (Id.) At step (AR 32.) At step four, the ALJ found that Plaintiff had the RFC to 18 perform “the full range of light work.” 19 § 404.1567(b). 20 that Plaintiff could perform his past relevant work as a credit 21 analyst, as actually and generally performed. 22 the ALJ found Plaintiff not disabled. 23 V. 24 (AR 32); see Based on the VE’s testimony, the ALJ concluded (AR 35-36.) Thus, (AR 36.) DISCUSSION Plaintiff argues that the ALJ erred in (1) discounting the 25 credibility of his subjective symptom statements (J. Stip. at 8- 26 12) and (2) rejecting the VA “rating decision” deeming him 27 partially disabled (id. at 4-6). 28 below, however, the ALJ did not err. For the reasons discussed 5 1 2 3 A. The ALJ Properly Evaluated Plaintiff’s Subjective Symptom Statements Plaintiff contends that the ALJ’s “six rationales” for 4 finding his claims not credible did not “even approach[] the 5 law’s stringent requirement that they be both clear and 6 convincing.” 7 recounts, were his high GAF scores, medical-opinion evidence that 8 his depression and anxiety were situational, indications that he 9 failed to follow treatment recommendations, his collecting (J. Stip. at 8.) Those rationales, Plaintiff 10 unemployment-insurance benefits after the alleged disability- 11 onset date, his working after the alleged disability-onset date, 12 and the inconsistency between his statements and his reported 13 daily activities. 14 given reasons were clear and convincing. 15 16 1. (Id. at 8-12.) At least some of the ALJ’s Applicable law An ALJ’s assessment of the credibility of a claimant’s 17 allegations concerning the severity of his symptoms is entitled 18 to “great weight.” 19 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th 20 Cir. 1985) (as amended Feb. 24, 1986). 21 ‘required to believe every allegation of disabling pain, or else 22 disability benefits would be available for the asking, a result 23 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 24 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 25 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 26 27 See Weetman v. Sullivan, 877 F.2d 20, 22 (9th “[T]he ALJ is not Molina v. In evaluating a claimant’s subjective symptom testimony, the ALJ engages in a two-step analysis. 28 6 See Lingenfelter, 504 F.3d 1 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).3 2 “First, the ALJ must determine whether the claimant has presented 3 objective medical evidence of an underlying impairment [that] 4 could reasonably be expected to produce the pain or other 5 symptoms alleged.” 6 objective medical evidence exists, the ALJ may not reject a 7 claimant’s testimony “simply because there is no showing that the 8 impairment can reasonably produce the degree of symptom alleged.” 9 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 10 11 Lingenfelter, 504 F.3d at 1036. If such original). If the claimant meets the first test, the ALJ may discredit 12 the claimant’s subjective symptom testimony only if she makes 13 specific findings that support the conclusion. 14 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 15 affirmative evidence of malingering, the ALJ must provide “clear 16 and convincing” reasons for rejecting the claimant’s testimony. 17 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 18 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, See Berry v. Absent a finding or 19 20 21 22 23 24 25 26 27 28 3 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 16, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however, and therefore does not apply. Still, the Ninth Circuit has clarified that SSR 16-3p “makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berrhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 7 1 1102 (9th Cir. 2014). The ALJ may consider, among other factors, 2 (1) ordinary techniques of credibility evaluation, such as the 3 claimant’s reputation for lying, prior inconsistent statements, 4 and other testimony by the claimant that appears less than 5 candid; (2) unexplained or inadequately explained failure to seek 6 treatment or to follow a prescribed course of treatment; (3) the 7 claimant’s daily activities; (4) the claimant’s work record; and 8 (5) testimony from physicians and third parties. 9 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as Rounds v. 10 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 11 2002). 12 substantial evidence in the record, the reviewing court “may not 13 engage in second-guessing.” 14 If the ALJ’s credibility finding is supported by 2. Thomas, 278 F.3d at 959. Relevant background 15 Plaintiff’s medical records indicate that he has been seen 16 by at least four doctors for mental-health issues: psychologist 17 Nadine La Fleur (e.g., AR 226-30), telepsychiatrist4 Young Mee 18 Choi (e.g., AR 266-70), clinical psychologist Jaime Gonzalez 19 (e.g., AR 237-44), and general psychiatrist Marlene M. Cordero 20 (e.g., AR 978). 21 22 a. Dr. La Fleur Dr. La Fleur provided a disability evaluation of Plaintiff 23 in December 2011. 24 because Plaintiff was requesting an increase in his service- 25 connected disability with the VA. 26 could not work because of “his inability to get along with (AR 226-30.) The evaluation was conducted (AR 226.) He reported that he 27 4 28 Telepsychiatry involves the use of videoconference technology to deliver psychiatric care. (See AR 266-67.) 8 1 people, loss of motivation, depressed moods and anxiety build- 2 up.” 3 “due, primarily, to the effects of [his] mental condition because 4 [his prior work] caused stress, anxiety, and loss of motivation.” 5 (AR 228.) 6 (Id.) He specifically noted that his unemployment was Plaintiff reported that his symptoms, which he described as 7 “moderate” and “episodic,” began in 2000, when he was diagnosed 8 with a heart condition. 9 “had trouble sleeping for 4 [years]” but that that condition was (AR 226.) He stated that he also had 10 “currently being controlled by medication.” 11 quetiapine5 and sertraline6 with “no side effects” and indicated 12 that the four psychotherapy sessions he had attended over the 13 past year were “not helpful.” 14 abuse, “using alcohol 30 time(s) per month in the amount of 2 oz. 15 of Scotch,” and said the abuse started “because of pressure and 16 stress” while he was in the military.7 17 reported having a “good relationship” with his wife of 29 years 18 and “very good” relationships with his three sons. (Id.) (Id.) He took He also reported substance (AR 228.) He also (AR 226-27.) 19 Upon examination, Dr. La Fleur noted that Plaintiff’s 20 orientation was “within normal limits”; his appearance, hygiene, 21 5 22 23 24 25 26 Quetiapine is an atypical antipsychotic used to treat the symptoms of schizophrenia, mania, and depression. Quetiapine, MedlinePlus, https://medlineplus.gov/druginfo/meds/a698019.html (last updated July 15, 2017). 6 Sertraline is an antidepressant used to treat depression, obsessive-compulsive disorder, panic attacks, posttraumatic stress disorder, and social anxiety disorder. Sertraline, MedlinePlus, https://medlineplus.gov/druginfo/meds/a697048.html (last updated Apr. 15, 2017). 27 7 28 Plaintiff was in the air force from 1970 to 1972. 227.) 9 (See AR 1 behavior, and thought processes were “appropriate”; he was able 2 to understand directions; he did not have slowness of thought; he 3 did not appear confused; and his judgment and abstract thinking 4 were normal. 5 “anxiety and depressed mood,” lack of motivation, “easily 6 accelerated” irritability and anxiety, “impaired attention and/or 7 focus,” and mildly impaired memory, forgetting “names, 8 directions, [and] recent events.” 9 with depressive disorder, anxiety disorder, alcohol abuse, and a 10 11 (AR 228.) She found, however, that he demonstrated (Id.) She assessed Plaintiff global assessment of functioning score of 65.8 (AR 229.) Moreover, she indicated that he had the following symptoms 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 A GAF score of 61 to 70 indicates mild symptoms in one area or difficulty in social, occupational, or school functioning, but the person is generally functioning well, with some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 C.F.R. pt. 404) (GAF score “does not have a direct correlation to the severity requirements in our mental disorders listings”), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2012). Because GAF scores continue to be included in claimant medical records, however, the Social Security Administration has clarified that they are “medical opinion evidence under 20 C.F.R. §§ 404.1527(a)(2) and 416.927(a)(2) if they come from an acceptable medical source.” Wellington v. Berryhill, 878 F.3d 867, 871 n.1 (9th Cir. 2017) (citing Richard C. Ruskell, Social Security Disability Claims Handbook § 2:15 n.40 (2017)). As with other medical-opinion evidence, the reliability of a GAF score depends on whether it is “consistent with the other evidence, the rater’s familiarity with the claimant, and the credentials of the rater”; GAF scores “should not be considered in isolation.” Ruskell, supra, § 2:15 n.40 (citing internal Social Security Administrative Message number 13066, which became effective July 22, 2013, and was revised on Oct. 14, 2014). 10 1 associated with his diagnosis: “depressed mood, anxiety, mild 2 memory loss[,] chronic sleep impairment, difficulty in 3 establishing and maintaining effective work and social 4 relationships[,] and difficulty in adapting to stressful 5 circumstances.” 6 impairment with reduced reliability and productivity.” 7 She found him “capable of managing benefit payments in his own 8 best interest,” lacking a “cognitive inability to do so.” 9 She concluded that his “service-connected disabilities” — (Id.) He also had “occupational and social (Id.) (Id.) 10 depressive disorder and anxiety along with coronary artery 11 disease and diabetes mellitus — “render[ed] him, at least as 12 likely as not, unable to maintain and secure substantially 13 gainful employment.” 14 15 b. (AR 230.)9 Dr. Choi In February 2013, Dr. Choi provided a narrative report 16 regarding Plaintiff’s mental-health condition. 17 Choi diagnosed Plaintiff with depressive disorder, anxiety 18 disorder, alcohol abuse, and marijuana abuse, among other 19 conditions, and said he had a GAF score of “61-70.” 20 He explained that he began seeing Plaintiff in 2007 and that his 21 diagnoses were “established by psychiatric diagnostic interview, 22 reassessments, chart review including medical, other mental 23 health notes and laboratory findings, mental status examinations, 24 and [Plaintiff’s] self-reports.” (AR 341-42.) Dr. (AR 341.) (Id.) 25 26 27 28 9 The ALJ rejected Dr. La Fleur’s opinion, finding it “of little probative weight due to its equivocation and due to the mild mental health findings upon examination that do not support any finding of disability.” (AR 30.) Plaintiff has not challenged this aspect of the ALJ’s decision on appeal. 11 1 Dr. Choi noted that Plaintiff’s prognosis varied depending 2 on “situational stressors,” “the weather,” “his diabetic 3 control,” and “substance abuse” and found that there were “no 4 limits on his activities.” 5 Plaintiff most recently reported, in December 2012, that he “was 6 feeling better” because “his financial stress decreased with an 7 increase in his VA Service Connection benefit” and that “he 8 reported feeling stable” on his medications and “did not want to 9 make changes despite his chronically low levels of energy and Dr. Choi stated that 10 mood.” 11 changes in his alcohol and marijuana use” and “was no longer 12 planning to follow up in psychotherapy.” 13 (AR 341.) (AR 342.) Plaintiff was also “not willing to make (Id.) Though Plaintiff apparently began seeing Dr. Choi in 2007 14 (id.), the earliest notes in the record indicate that he saw Dr. 15 Choi in August 2009 for alcohol addiction and “psychological 16 dependence” on marijuana (see AR 268-69). 17 referrals” and canceled follow-up appointments, not seeing Dr. 18 Choi again until over a year later, in December 2010 and March 19 2011. 20 wanting “to stop either [alcohol or marijuana use] despite 21 education.” 22 (AR 269.) Plaintiff “refused In the latter month, he was noted as not (Id.) Plaintiff next saw Dr. Choi on May 26, 2011, by 23 videoconference — also referred to as “telehealth” or 24 “telepsychiatry” — and reported continued alcohol and marijuana 25 abuse. 26 per night” and “3 oz” “once or twice a month.” 27 not “sleep well” when he drank more, and at one point he was 28 drinking “4 oz per night” but had to “cut back.” (AR 266-70.) He stated that he drank “1.5 oz of liquor 12 (AR 267.) (Id.) He did He also 1 used marijuana instead of alcohol “a couple of times a month” to 2 help him sleep, “feel happy,” and “escape.” 3 that his life was “not so great” because he “work[ed] 50-60 hours 4 a night.”10 5 rating was recently increased to 70 percent, though “he was 6 hoping [it would] be 100% so he [didn’t] have to work and the 7 ‘stress of that [would be] gone.’” 8 Plaintiff maintained good eye contact, had good grooming, 9 presented with no psychomotor disturbance, and had a “pleasant” (Id.) (Id.) He indicated He also reported that his VA disability (Id.) Dr. Choi noted that 10 affect. 11 “goal directed,” and his mood was, as he reported, “okay.” 12 He assessed Plaintiff with alcohol and marijuana abuse, 13 depression, and anxiety and assigned him a GAF score of “61-70.” 14 (Id.) 15 quetiapine. 16 (AR 268.) His thought processes were “[l]inear” and (Id.) He advised Plaintiff to continue using sertraline and (Id.) Plaintiff saw Dr. Choi again in October and November 2011. 17 (AR 259-66.) 18 off three months ago” and that he was “feeling a little better” 19 without the stress of work. 20 not pay the mortgage, however, and reported some stress about 21 possibly losing his house; he was “thinking of moving to 22 Sacramento,” where it was “cheaper” to live. 23 “Since being laid off,” he stated, he was “less social outside of 24 the house.” 25 his alcohol consumption, having had “a couple of beers and 3-4 26 drinks in the last few months,” and was smoking “one joint over a In October, Plaintiff indicated that he was “laid (AR 263.) (AR 262.) He stated that he could (AR 262-63.) He also reported that he “cut back” on 27 28 10 “Night” is presumably a scrivener’s error for “week.” 13 1 couple of weeks.” 2 processes were linear and goal directed, his affect was pleasant, 3 and his mood was “okay.” (AR 264.) 4 score of “61-70.” In November, Dr. Choi made similar 5 findings, assessing him with a GAF score of “61-70” (AR 260), and 6 Plaintiff himself reported that he was doing “better” and was 7 “thinking of applying for a federal job” (AR 259-60). 8 9 (AR 262.) (Id.) Dr. Choi noted that his thought He assessed him with a GAF They met again in early 2012, with Plaintiff reporting in January that he had concerns about turning 60 years old. (AR 10 247-48.) 11 marijuana a week but that his alcohol use was “down to once or 12 twice a month when he goes out.” 13 he was taking his medications and denied side effects. 14 Dr. Choi noted that his grooming was “[p]oorer than baseline,” 15 his energy was “low,” and his affect was “constricted to 16 pleasant.” 17 noted that Plaintiff was “willing” to have a “new psychology 18 consult.” 19 He stated that he was using “up to 2 joints” of (AR 249.) (AR 248.) He also stated that (Id.) He assessed a GAF score of “61-70” and (AR 249-50.) By February 2012, his symptoms were “less severe” and he was 20 “more active” because of the “nicer weather.” 21 “adherent with his meds,” denied any side effects, and denied 22 alcohol use. 23 and Dr. Choi assessed him with a GAF score of “61-70.” 24 Dr. Choi noted that Plaintiff was improving, though he 25 “subjectively . . . minimize[d] it”; Plaintiff agreed that his 26 medications were a “good fit.” 27 “no [alcohol] or [marijuana]/illicit drugs.” 28 (Id.) (AR 336.) He was His mood was “pleasant, nearly euthymic,” (AR 338.) (AR 337.) Dr. Choi encouraged (AR 452.) Plaintiff canceled their next appointment, in May 2012, 14 1 without rescheduling (AR 236, 318), and in June Dr. Choi received 2 an incomplete request for medical-health information for one of 3 Plaintiff’s disability claims (AR 318). 4 with Dr. Choi and said he would get back to him about the 5 request. 6 for decisions [regarding] his benefits.” 7 he had a “panic attack” and “a bad day” when he turned 60, was 8 drinking “about 1 oz [of] Scotch per day,” and was using 9 marijuana “3 days a week, one joint per week.” (AR 301.) In July, Plaintiff met He was “not working” and was just “waiting (Id.) He reported that (Id.) He also 10 reported “frustration with sense of lack of improvement in 11 therapy” and stated that he was “not ready to go to a group.” 12 (AR 302.) 13 celebrating 30 years of marriage and enjoying that day,” and 14 Plaintiff described his relationship as “supportive of each 15 other.” 16 “improved with . . . glucose control” and that Plaintiff was 17 “taking his medications daily/nightly” without side effects. 18 302.) 19 and found that he had good eye contact, linear and goal-directed 20 thought processes, and an initially “low energy” and “sorrowful” 21 affect that was “upbeat and cheerful” by the end of the session. 22 (AR 303.) 23 use and “advised against ongoing [marijuana] use.” 24 Dr. Choi discussed with Plaintiff his “good marriage, (AR 301.) Dr. Choi noted that his irritability (AR Dr. Choi assessed Plaintiff with a GAF score of “61-70” He “encouraged” Plaintiff to “decrease/stop” alcohol (AR 305.) Plaintiff saw Dr. Choi again in September 2012 and reported 25 “getting frustrated with disability” and wanting “a stronger 26 medication for depression.” 27 his therapist’s attempts to schedule follow-up appointments, and 28 he reported drinking “about 1.5 ounce[s of alcohol] a day” and (AR 295.) 15 He stopped responding to 1 stopping marijuana use “2 weeks ago” because of “expenses,” as he 2 had been “going through 1 joint per three days.” 3 reported that he started going to “the pool with his dog to play 4 fetch every day” for an hour and that he “golfed twice in the 5 last 6 months.” 6 score of “61-70” (AR 297) and encouraged him to “stop” alcohol 7 use and “advised against [marijuana] use” (AR 298). 8 9 (Id.) (Id.) He also Dr. Choi assessed Plaintiff with a GAF By December 2012, Plaintiff continued to drink “a good ounce a night” and smoke marijuana “about twice a week” (one joint 10 “last[ing] 1.5 to 2 weeks”), and he had still not followed up 11 with psychotherapy. 12 disability rating had increased to 90 percent and that he had 13 “applied for unemployability.” 14 walking his dog “for a mile a day” for “about 30 minutes” and 15 felt “great,” “good,” and “nice”; he also stated that he was “not 16 willing to make changes” in his alcohol or marijuana use. 17 Dr. Choi noted that Plaintiff was “stable on his current 18 medications” despite his “chronically . . . low levels of energy 19 and mood” and assessed him with a GAF score of “61-70.” 20 286.) 21 Plaintiff regarding his alcohol and drug use. 22 (AR 284.) He reported that his VA (Id.) He stated that he was now (Id.) (AR He “again provided” education and encouragement to (AR 287.) Plaintiff next saw Dr. Choi in April 2013, two months after 23 the doctor completed his disability narrative. 24 Plaintiff reported drinking “1 to 1.5 oz of [alcohol] per day,” 25 not smoking marijuana since December 2012, and “doing more 26 household work.” 27 denied side effects. 28 score of “61-70” (AR 388) and again “[r]einforced” having (AR 387.) (Id.) (AR 386-87.) He was taking his medications and Dr. Choi assessed him with a GAF 16 1 “lower/no [alcohol]” (AR 389). 2 disability letter with Plaintiff, but Plaintiff stated that 3 “another benefits psychiatrist ha[d] already written that he’s 4 permanently disabled.” 5 Dr. Choi also reviewed his (AR 387.) At their next meeting, in September 2013, Plaintiff reported 6 being denied unemployment benefits and said that when that 7 happened he “cancelled his appointments” (AR 648) and “his mood 8 and health [got] worse” (AR 646). 9 home and said his son with “a drinking issue” was living with him 10 and his wife. 11 psychiatric medications,” he had “become non adherent on 12 sertraline,” was “not seeing anyone for therapy,” and refused 13 psychotherapy referrals. 14 that he had “cut back” on his alcohol consumption, having “about 15 3 oz of whiskey a week,” and that he had “enjoyed a visit back 16 East,” during which he felt “fantastic.” 17 noted Plaintiff’s GAF score at “61-70” and again advised him to 18 stop alcohol and drug use. 19 Plaintiff canceled their next appointment, in January 2014. 20 650.) 21 (Id.) He also reported losing his Though he apparently “stayed on his (AR 646, 649.) (AR 648-49.) He reported, however, (AR 646.) Dr. Choi A few months later, Plaintiff saw Dr. Choi again in March 2014. (AR (AR 635-40.) 22 He reported “frustration with trying to get his social security 23 benefits” and stated that “[n]o matter what [he tried]” he 24 couldn’t “get through” to receive either Social Security or VA 25 benefits. 26 3 months of sertraline” (AR 639), though he reported taking his 27 medications (AR 635), and noted that he was “not attending 28 psychotherapy and refused referral” because it would “only make (AR 635.) Dr. Choi found that Plaintiff “missed about 17 1 [him] worse to hear other people’s problems” (AR 636). 2 that his alcohol consumption was “not that much” because his son, 3 who was “out of work and living with them,” was an alcoholic, and 4 so they didn’t “have alcohol in the house.” 5 reported that he was drinking “3 oz [of] whiskey per week” and 6 having “1-2 [marijuana] joints per month.” 7 Plaintiff agree to “medication adherence” (AR 639) and “again 8 provided” “[e]ducation and abstinence reinforcement” regarding 9 his alcohol and drug abuse (AR 640). 10 (Id.) (Id.) He stated But he also Dr. Choi had Plaintiff did not show for their next appointment, in May 11 2014. 12 that “he got his Social Security and no longer [was] depressed.” 13 (Id.) 14 app[ointment] further out.” 15 (AR 621.) When Dr. Choi called him that day, he stated He was “doing ‘much, much better’ and wanted to move his (Id.) They met in June 2014, and Plaintiff again reported that 16 “[a]s soon as the Social Security was approved, he instantly felt 17 his mood improved.” 18 and that “gardening helped his mood even before he received his 19 social security benefits.” 20 Dutch furniture at home” and was “looking forward to traveling 21 with his wife up and down the coast.” 22 he was compliant with his medication, was using less marijuana 23 (“1-2 joints per month”), and had “cut back” his drinking to 24 “sneak[ing] in a few drinks a week” because of his “son’s 25 problem.” 26 his mood was “great,” with “full, appropriate affect” (AR 619). 27 Dr. Choi nonetheless provided education and a plan for his 28 alcohol use, “even though [Plaintiff wouldn’t] agree to (Id.) (AR 617.) He stated that he was gardening (Id.) Moreover, he was “working on (Id.) Dr. Choi noted that He appeared “relaxed and at ease” (AR 618), and 18 1 abstinence.” 2 (AR 621.) Plaintiff did not see Dr. Choi again until January 2015. 3 (AR 912-17.) He reported that he had recently received a 100 4 percent disability rating from the VA and was “doing great.” 5 912.) 6 disability,” as he had received only “early retirement social 7 security” before. 8 a long time” and reported taking his medications “every day” 9 without side effects. (AR He was now just waiting to receive “total permanent (Id.) He “denie[d] depression or low mood for (AR 913.) “[B]ecause of his son’s 10 situation” he had only “one drink in the last couple of months.” 11 (Id.) 12 the last time being “a couple of weeks” prior, during a “long 13 drive home from Reno.” 14 sons there before the holidays and had “enjoyed himself.” 15 Dr. Choi noted that he appeared relaxed and at ease and was 16 “[c]heerful.” 17 want to abstain from either alcohol or marijuana despite 18 instructions to do so. 19 disability letter that had been requested by Plaintiff’s 20 attorney, but Plaintiff “requested that [Dr. Choi] not complete 21 it.” 22 And he had only “one joint in the last couple of months,” (Id.) (AR 914.) He reported visiting two of his (Id.) Plaintiff indicated that he did not (AR 913, 917.) Dr. Choi brought up a (AR 913; see also AR 649-50.) Plaintiff last saw Dr. Choi in May 2015. (AR 1002-06.) 23 reported doing “fine” and was taking his medications “without 24 issues.” 25 the VA. 26 Plaintiff was “[c]heerful,” with “full, appropriate affect.” 27 1004.) 28 Plaintiff “d[id] not agree to abstinence.” He (AR 1002.) (AR 1005.) They discussed that Dr. Choi was leaving Dr. Choi noted their “good rapport” and said Though they reviewed his alcohol and marijuana use, 19 (AR 1006.) (AR 1 c. 2 Dr. Gonzalez On referral from Dr. Choi, Plaintiff began seeing Dr. 3 Gonzalez for psychotherapy in January 2012. 4 Plaintiff stated that he felt depressed. 5 mood,” did not want to do anything, and did not want to go out 6 with friends or play golf anymore. 7 last job in June 2011, and he discussed “collecting unemployment” 8 and recently applying for a 100-percent-disability determination 9 from the VA, which he was “hopeful” would go through and relieve his “financial burdens.” 11 run out, he stated, by the end of 2012. 12 (Id.) (AR 238.) (Id.) 10 (AR 237-44.) He had “low He reported losing his His unemployment benefits would (AR 239.) He reported drinking one to two ounces of scotch a day and 13 said he last drank two months earlier. 14 reported smoking marijuana three or four times a week. 15 Dr. Gonzalez noted that he was “not interested in quitting.” 16 241.) 17 his brother and had “many friends, but none that he ha[d] engaged 18 in recently.” 19 therapy” and requested “1:1” supportive psychotherapy instead. 20 (AR 241.) 21 anxiety disorder, and marijuana and alcohol abuse. 22 gave Plaintiff a GAF score of 59.11 23 They met twice in March 2012. 24 (AR 238.) He also (Id.) (AR Plaintiff also said that he had a “good relationship” with (AR 238-39.) He was “not interested in group Dr. Gonzalez assessed him with depressive disorder, (AR 243.) (Id.) (AR 324-35.) At their earlier meeting, Plaintiff reported being “okay,” though he was 25 26 11 27 28 He A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). 20 1 “sad” the week before because “the weather was bad.” 2 They discussed the relationship between his activity level, mood, 3 and financial situation. 4 quitting marijuana, and Dr. Gonzalez noted that his eye contact, 5 speech, and language were “within normal limits” and his thought 6 processes and content were “normal.” (Id.) Dr. Gonzalez 7 assessed him with a GAF score of 59. (Id.) At their next 8 meeting, Plaintiff again reported doing “okay,” even though his 9 appeal for a “100% [service-connected]” disability rating from (Id.) (AR 334.) Plaintiff was not interested in 10 the VA had recently been denied. 11 worries, Dr. Gonzalez assessed him with a GAF score of 59. 12 325.) (AR 324.) After discussing his (AR 13 Plaintiff was a “no-show” at the following appointment, in 14 April 2012 (AR 323); he was next seen in May and reported doing 15 “okay” (AR 322). 16 birthday, during which, he said, he had a panic attack, and Dr. 17 Gonzalez assessed him with a GAF score of 59. 18 appointment with Dr. Gonzalez was in June 2012, and he reported 19 “increased stress, irritability and frustration” because many 20 things in his life were not going “right,” including the denial 21 of his disability-increase request. 22 therapy (id.) and was assessed a GAF score of 59 (AR 313). 23 Plaintiff informed Dr. Gonzalez that he was applying for DIB, and 24 Dr. Gonzalez stated that he would complete a disability form for 25 his attorneys. 26 up on the request and canceled their next appointment, in July 27 2012. 28 attempts to contact [Plaintiff]” but “to no avail.” They discussed Plaintiff’s recent 60th (AR 312-13.) (AR 313-14.) (AR 312.) (Id.) His last He refused group Plaintiff apparently did not follow Dr. Gonzalez noted that he made “[s]everal 21 (AR 314.) 1 Plaintiff had “not returned any attempts at contact.” 2 3 d. (Id.) Dr. Cordero Dr. Cordero provided three opinions regarding Plaintiff’s 4 mental-health limitations. On May 26, 2015, less than a month 5 before the ALJ’s decision, she stated that Plaintiff was “unable 6 to perform any occupation” and that he “suffer[ed] from a 7 combination of major medical conditions which can be easily 8 aggravated by the stress of work of any type.” 9 June 19, 2015, she completed a check-box form indicating that (AR 978.) On 10 Plaintiff was “totally disabled without consideration of any past 11 or present drug and/or alcohol use” and that “[d]rug and/or 12 alcohol use [was] not . . . material” because Plaintiff’s “use of 13 drugs and/or alcohol [was] insignificant and ha[d] no impact on 14 his disability.” 15 (AR 983.) On October 20, 2015, nearly four months after the ALJ’s 16 decision, Dr. Cordero completed a check-box mental-impairment 17 questionnaire in which she noted Plaintiff’s diagnoses for “major 18 depression disorder” and “post traumatic stress disorder.” 19 1010.) 20 limitations in understanding and memory, concentration and 21 persistence, social interactions, and adaptation. 22 was only moderately limited in his ability to “[c]arry out 23 simple, one-to-two step instructions.” 24 assessment, she checked boxes for the following signs and 25 symptoms: depressed mood, persistent or generalized anxiety, 26 difficulty thinking or concentrating, easy distractibility, poor (AR She assessed him with moderate-to-marked and marked 27 28 22 (Id.) (AR 1013.) He In support of her 1 memory, anhedonia,12 decreased energy, retardation, social 2 withdrawal or isolation, “flashbacks of combat experience,” and 3 “disrupted sleep, early awakening.” 4 that Plaintiff had “difficulty thinking or concentrating[,] easy 5 distractibility[,] immediate memory impairment[,] anhedonia[,] 6 decreased energy[, and] anxiety.” 7 that in May 2011, Plaintiff “was fired due to poor performance: 8 irritable, confrontational, agitated, too depressed, felt unable 9 to do the tasks as he was easily frustrated and unable to (AR 1012.) She explained She also noted 10 concentrate.” 11 sertraline and Seroquel13 and had no side effects from those 12 drugs. 13 (Id.) (AR 1011.) Plaintiff, she stated, was prescribed (AR 1010.) Dr. Cordero noted that she had last examined Plaintiff five 14 months earlier, on May 26, 2015, and first began seeing him in 15 December 2012. 16 the record regarding Dr. Cordero’s treatment of Plaintiff is from 17 April 2013. 18 been treating him from October 2008 to December 2012, he had such 19 diagnoses or symptoms as “severely depressed mood, difficulty 20 falling [and] staying asleep, diminished concentration, 21 diminished memory, anxiety, withdrawal, [and] anhedonia,” and his (AR 1010, 1012.) (AR 231-33.) The only other documentation in At that time, she noted that she had 22 23 12 24 25 26 27 28 Anhedonia is the absence of pleasure from the performance of acts that would ordinarily be pleasurable. Stedmans’s Medical Dictionary 88 (27th ed. 2000). 13 Seroquel is the name-brand version of quetiapine, an atypical antipsychotic used to treat the symptoms of schizophrenia, mania, and depression. Quetiapine, MedlinePlus, https://medlineplus.gov/druginfo/meds/a698019.html (last updated July 15, 2017). 23 1 disability was “permanent.” 2 e. (AR 231-32.)14 Plaintiff’s statements 3 In his function report, Plaintiff stated that he was unable 4 to work because of coronary artery disease, diabetes mellitus, a 5 “severely depressed mood, difficulty falling and staying asleep, 6 diminished concentration, diminished memory, anxiety, withdrawal, 7 [and] anhedonia.” 8 and personal care (AR 174-75); getting along with family, 9 friends, neighbors, and others because of “too much depression, (AR 173.) He reported problems with sleeping 10 anxiety, [and] fear” (AR 178); concentrating and following 11 instructions (id.); and getting along with “bosses” (AR 179). 12 indicated that he watched television and checked his email (AR 13 174), prepared his own meals daily (AR 175), and did the laundry 14 (id.). 15 could walk and drive a car, shopped for groceries “in stores,” 16 and could pay bills, count change, handle a savings account, and 17 use a checkbook or money orders. 18 time with others and when watching television would lose interest 19 or concentration after an hour. 20 He He also stated that he would go outside “twice a day,” (AR 176.) He did not spend (AR 177.) At his June 2015 hearing, Plaintiff testified that he was 21 unable to work because of his heart condition, anxiety, 22 depression, and diabetes. 23 “three or four pots on the deck” for about 15 to 20 minutes at a (AR 45.) He indicated that he gardens 24 25 26 27 28 14 The ALJ rejected Dr. Cordero’s opinions because the April 2013 medical record “did not include any significant narrative discussion . . . regarding mental health findings or the basis for [its] conclusions” and her May 2015 letter “failed to discuss objective findings to support [its] conclusion” (AR 31 (citing 343-46, 978-81), 35), findings Plaintiff has not challenged on appeal. 24 1 time and that he stopped walking because of pain in “two or three 2 rotary cuffs on [his] right shoulder” and previously because he 3 moved and lost his house. 4 three ounces of alcohol a week. 5 consistently denying side effects from his medications throughout 6 the relevant period (see AR 267 (May 2011), 259 (Nov. 2011), 226 7 (Dec. 2011), 248 (Jan. 2012), 336 (Feb. 2012), 302 (July 2012), 8 286 (Dec. 2012), 387 (Apr. 2013), 913 (Jan. 2015), 1002 (May 9 2015)), he claimed that his medications made him depressed and (AR 48-49.) He testified to drinking (AR 50.) And despite 10 gave him “brain fog,” which meant that he “c[ouldn’t] do crap” or 11 concentrate (AR 54-55). 12 (AR 54.) 13 The brain fog was constant, he noted. He stated that he used the computer to check Facebook, as he 14 had “family back east” and “they post[ed] pictures.” 15 He testified to using Facebook or the computer for “[o]ne to two 16 hours a day max.” 17 pages” of a book and “then forget” what he read; he had “a couple 18 of friends” but saw them “maybe once a year”; and he went to the 19 grocery store “[o]nce every two weeks.” 20 3. 21 (Id.) (AR 55.) He also stated that he would read “20 (AR 56.) Analysis Having reviewed the record in detail, the ALJ found that 22 Plaintiff’s medically determinable impairments could reasonably 23 be expected to produce his alleged symptoms but that his 24 “statements concerning the intensity, persistence and limiting 25 effects of these symptoms [were] not entirely credible.” 26 35.) 27 supported by substantial evidence for doing so: (1) “multiple 28 reports” indicated that Plaintiff was “medical[ly] (AR She gave at least three clear and convincing reasons 25 1 noncomplian[t]” with prescribed treatment; (2) Plaintiff’s 2 “activities” were inconsistent with the “allegation he could not 3 perform even light work”; and (3) Plaintiff “indicate[d] he was 4 working after the alleged onset date.” 5 (AR 34-35) The ALJ also found that Plaintiff’s mental impairments did 6 not cause more than “minimal limitation in [his] ability to 7 perform basic mental work activities” and were “not severe.” 8 29.) Plaintiff has not challenged that finding on appeal. 9 10 (AR a. Medical noncompliance An “unexplained, or inadequately explained, failure to . . . 11 follow a prescribed course of treatment” is a clear and 12 convincing reason for discounting the credibility of a claimant’s 13 subjective symptom statements. 14 341, 346-47 (9th Cir. 1991) (en banc). 15 several instances of Plaintiff’s failure to follow treatment, 16 including “failing to take prescribed medication” and “cancelling 17 multiple medical appointments.” Bunnell v. Sullivan, 947 F.2d The ALJ here identified (See AR 34.) 18 Plaintiff contends that those reasons were inaccurate 19 because he in fact “underwent several sessions of psychotherapy 20 not only with Dr. Gonzalez at the VA but with Dr. La Fleur at an 21 outside clinic.” 22 25, 322, 226-30).) 23 therapy, he argues, he “continued to adhere to his prescribed 24 medication regimen.” 25 287, 913).) 26 his adherence to “medication and follow-up psychiatric visits” 27 was “intrinsically at odds with his claim of disability.” 28 (J. Stip. at 9-10 (citing AR 237-44, 334, 324And although he did eventually discontinue (Id. at 10 (citing AR 269, 265, 259, 305, Plaintiff alleges that the ALJ did not explain why (Id.) Plaintiff overstates his alleged “adherence” to treatment, 26 1 however. 2 complied with his medications (see, e.g., AR 248 (Jan. 2012), 336 3 (Feb. 2012), 302 (July 2012), 286 (Dec. 2012), 387 (Apr. 2013), 4 617 (June 2014), 913 (Jan. 2015), 1002 (May 2015)), the ALJ 5 correctly stated that there were “multiple reports” in which 6 Plaintiff failed to do so (AR 34). 7 Though the record reflects that Plaintiff generally For example, Plaintiff was noted in September 2013 to be 8 noncompliant with his sertraline prescription despite reporting 9 that he was taking his medications. (AR 649.) At that time, Dr. 10 Choi noted that Plaintiff was denied unemployment benefits, which 11 “made his mood and health worse.” 12 2014, complaining of “frustration” over not getting Social 13 Security benefits “[n]o matter what [he tried],” Plaintiff 14 “missed about 3 months of sertraline.” 15 Plaintiff’s mood improved in May 2014 upon receiving Social 16 Security (see AR 621), he was noted as becoming compliant with 17 medication again (see AR 617, 913, 1002). 18 explained failure to take prescribed medications constitutes a 19 clear and convincing reason for discounting Plaintiff’s 20 testimony. 21 WL 1252751, at *2 (C.D. Cal. Mar. 28, 2016) (upholding ALJ’s 22 adverse credibility determination in part because “on balance on 23 [the] record” before him and despite plaintiff’s “psychiatric 24 impairments,” “the ALJ was not wrong for considering 25 [p]laintiff’s [unexplained] failure to take her medications”).15 (AR 646.) Similarly, in March (AR 635, 639.) After Such inadequately See Lancaster v. Colvin, No. ED CV 14-1639-PJW, 2016 26 27 28 15 Though the Court does “not punish the mentally ill for occasionally going off their medication when the record affords compelling reason to view such departures from prescribed 27 1 Further, to the extent Plaintiff contends he was compliant 2 with his psychotherapy treatment, the record reflects, as noted 3 by the ALJ, that he inexplicably canceled sessions with Dr. Choi 4 and Dr. Gonzalez on several occasions. 5 appearing for Apr. 2012 appointment with Dr. Gonzalez), 236 6 (canceling May 2012 appointment with Dr. Choi), 314 (canceling 7 July 2012 appointment with Dr. Gonzalez and failing to return 8 messages to reschedule), 648 (canceling 2013 appointments with 9 Dr. Choi), 650 (canceling Jan. 2014 appointment with Dr. Choi), (See AR 323 (not 10 621 (not appearing for May 2014 appointment with Dr. Choi).) 11 when Plaintiff explained at least one of his absences in 2014, it 12 was because he “got his Social Security” and was “no longer” 13 depressed. 14 ALJ’s finding that the severity of Plaintiff’s allegations was 15 undermined by his repeated failure to comply with treatment. (AR 621.) And Thus, substantial evidence supports the See 16 17 18 19 20 21 22 23 24 25 26 27 28 treatment as part of claimants’ underlying mental afflictions,” see Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014); see also Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996), the record here provides no such “compelling” basis to excuse Plaintiff’s noncompliance, nor has he alleged as much. In fact, the record demonstrates that Plaintiff was more than capable of consistently taking his prescribed medications and failed to do so only when he was denied unemployment and Social Security benefits. See Presley-Carrillo v. Berryhill, 692 F. App’x 941, 945 (9th Cir. 2017) (upholding ALJ’s reliance on plaintiff’s “noncompliance in taking prescribed medications” because plaintiff “[did] not point to any evidence in the record demonstrating that her mental health impairments caused that noncompliance” and “[t]he record demonstrate[d] that in the year leading up to the hearing before the ALJ, [plaintiff] was capable of consistently taking her prescribed medications”). Indeed, as discussed elsewhere, Plaintiff’s occasional failures to comply with his medication regimens could not have been caused by “underlying mental afflictions” because the ALJ found that Plaintiff’s mental impairments caused no more than “minimal limitation” and were not severe, findings Plaintiff has not challenged. 28 1 Judge v. Astrue, No. CV 09-4743-PJW, 2010 WL 3245813, at *4 (C.D. 2 Cal. Aug. 16, 2010) (“[The claimant’s] failure to get treatment 3 after 1997 seems more a function of the fact that she did not 4 need it, as opposed to her inability to comprehend that she 5 needed it.”).16 6 Plaintiff does not dispute his failure to cease alcohol and 7 marijuana abuse (see generally J. Stip. at 8-12), and this too 8 was a clear and convincing reason to discount his testimony and 9 was supported by substantial evidence. See Deck v. Colvin, 588 10 F. App’x 747, 748 (9th Cir. 2014) (ALJ properly discounted 11 plaintiff’s credibility in part because of “her continued drug 12 use”); see also Gopher v. Comm’r of Soc. Sec., __ F. Supp. 3d __, 13 No. 1:16-cv-03100-MKD, 2017 WL 5135360, at *14 (E.D. Wash. Sept. 14 25, 2017) (finding that ALJ gave “clear and convincing reason to 15 discredit [plaintiff’s] symptom testimony” for “unexplained 16 failure to follow treatment” in part because she failed to 17 18 16 19 20 21 22 23 24 25 26 27 28 Though neither party has raised the issue, it is sometimes “questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted); see also Rosas v. Colvin, No. CV 132756-SP, 2014 WL 3736531, at *11 (C.D. Cal. July 28, 2014) (finding that failure to attend therapy sessions was “not necessarily a clear and convincing reason to discount [a claimant’s] testimony”). Nguyen, however, is distinguishable. It dealt with an ALJ who discredited a psychologist’s diagnosis of depression based on lack of a treatment record, whereas here the ALJ relied on Plaintiff’s frequent appointment cancellations and other treatment failures to discredit the severity of his alleged symptoms. Moreover, Plaintiff has not challenged the ALJ’s step-two finding that none of his alleged mental-health impairments caused more than “minimal limitation” or were “severe” (AR 29), and thus they could not have caused his treatment failures. 29 1 2 “follow even minimal mental health treatment”).17 On numerous occasions, Plaintiff was told by treating 3 psychiatrist Dr. Choi to “stop,” “cease,” or “abstain” from using 4 alcohol and marijuana. 5 2012), 305 (July 2012), 298 (Sept. 2012), 287 (Dec. 2012), 389 6 (Apr. 2013), 649 (Sept. 2013), 640 (Mar. 2014), 621 (June 2014), 7 917 (Jan. 2015), 1006 (May 2015).) 8 and continued to use both substances. 9 2011), 262 (Oct. 2011), 248 (Jan. 2012), 327-28 (Mar. 2012), 301 10 (July 2012), 295 (Sept. 2012), 284 (Dec. 2012), 387 (Apr. 2013), 11 599 (same), 646 (Sept. 2013), 636 (Mar. 2014), 617 (June 2014), 12 913 (Jan. 2015), 903 (Mar. 2015), 50 (June 2015).) 13 (See, e.g., AR 269 (Mar. 2011), 452 (Feb. But Plaintiff failed to do so (See, e.g., AR 267 (May Though at times he reported that he “cut back” on his 14 alcohol consumption (see, e.g., AR 262 (Oct. 2011), 248 (Jan. 15 2012), 646 (Sept. 2013), 636 (Mar. 2014), 617 (June 2014), 913 16 (Jan. 2015)) and at one point denied alcohol use entirely (AR 336 17 (Feb. 2012)), such statements were belied by the record (see, 18 17 19 20 21 22 23 24 25 26 27 28 Though an ALJ must usually determine whether a claimant’s alcoholism and drug abuse are contributing factors to any mental impairment, see 20 C.F.R. § 404.1535; SSR 13-2P, 2013 WL 621536 (Feb. 20, 2013), such an evaluation is not necessary when the ALJ finds a mental impairment “not severe in the first place.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001); see also Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001) (“[A]n ALJ must conduct a ‘differentiating’ analysis to separate the alcoholism and drug-related impairments from the unrelated . . . impairments only if the record indicates that the non-substanceabuse-related impairments are ‘severe’ and therefore pass step 2 of the sequential evaluation process. It follows that if the claimant’s ailment does not pass step 2, ipso facto it is not disabling.”). The ALJ here found Plaintiff’s mental impairments not severe, a finding he has not challenged, and thus the ALJ did not err by failing to conduct a § 404.1535 analysis. (See AR 29.) But any “brain fog” may well have been caused by Plaintiff’s ongoing and at times heavy substance abuse. 30 1 e.g., AR 228 (Dec. 2011: two ounces of scotch 30 times a month), 2 238 (Jan. 2012: one to two ounces a day but last drink was two 3 months prior), 327-28 (Mar. 2012: “1 drink” a day), 301 (July 4 2012: ounce a day), 599 (Apr. 2013: “1-2 drinks of alcohol per 5 day”), 646 (Sept. 2013: “3 [ounces] of whiskey a week”), 636 6 (Mar. 2014: “3 [ounces of] whiskey per week”), 617 (June 2014: “a 7 few drinks a week”), 903 (Mar. 2015: “1-2 drinks” three times a 8 week), 50 (June 2015: “3 ounces a week”)). 9 Similarly, Plaintiff’s occasional reports of smoking “less” 10 marijuana were inconsistent with records demonstrating a fairly 11 sustained marijuana habit. 12 couple of times a month”), 262 (Oct 2011: “one joint over a 13 couple of weeks”), 248 (Jan 2012: “2 joints” a week), 238 (Jan. 14 2012: three to four times a week), 301 (July 2012: “3 days a 15 week, one joint per week”), 295 (Sept 2012: “1 joint per three 16 days” but had stopped two weeks prior), 284 (Dec. 2012: “twice a 17 week”), 387 (Apr. 2013: stopped since Dec. 2012), 636 (Mar. 2014: 18 “1-2 [marijuana] joints per month”), 617 (June 2014: “1-2 joints 19 per month”), 913 (Jan. 2015: “one joint in the last couple of 20 months”).) 21 (See, e.g., AR 267 (May 2011: “a Moreover, as the ALJ explained, Plaintiff not only continued 22 alcohol and marijuana use but frequently “stated that he did not 23 want to cease his substance abuse” and “refused substance abuse 24 treatment” without explanation, both before and during the 25 relevant period. 26 2012), 284 (Dec. 2012), 341 (Feb. 2013), 621 (June 2014), 913 27 (Jan. 2015).) 28 adverse credibility determination based on the clear and (AR 34; see also AR 269 (May 2011), 334 (Mar. Substantial evidence therefore supports the ALJ’s 31 1 convincing reason that Plaintiff failed to follow his prescribed 2 substance-abuse treatment. 3 00347-REB, 2013 WL 4776463, at *6 (D. Idaho Sept. 4, 2013) 4 (finding that ALJ properly rejected claimant’s testimony because 5 “he continued to engage in binge drinking and marijuana use after 6 being repeatedly counseled to abstain from all alcohol and drug 7 consumption”); Wodtli v. Astrue, No. C-05-03921 RMW, 2008 WL 8 4104216, at *6 (N.D. Cal. Sept. 2, 2008) (finding that ALJ 9 properly rejected plaintiff’s “testimony that she could not do See Hall v. Colvin, No. 1:12-CV- 10 other work” in part because she “still drank despite having been 11 told by her doctors to stop drinking”). 12 b. 13 Inconsistency with daily activities The ALJ also correctly found that Plaintiff’s “activity 14 level undermined” the credibility of his symptom testimony 15 because his daily activities were “not consistent with the 16 allegation [that] he could not perform even light work.” 17 35.) 18 plaintiff’s subjective symptom statements when they are 19 inconsistent with his daily activities. 20 1112. 21 difficulty functioning, they may be grounds for discrediting the 22 claimant’s testimony to the extent that they contradict claims of 23 a totally debilitating impairment.” 24 (AR 34- An ALJ may properly discount the credibility of a See Molina, 674 F.3d at “Even where those [daily] activities suggest some Id. at 1113. Plaintiff reported that he could not work because of “his 25 inability to get along with people, loss of motivation, depressed 26 moods, and anxiety build-up” (AR 226) and alleged that his 27 impairments prevented him from getting along with family members 28 and others, concentrating, or paying attention (AR 178-79; see 32 1 also AR 54-55 (testifying that his medications made him depressed 2 and gave him “brain fog,” during which he couldn’t do anything or 3 concentrate)). 4 limitations were contradicted by his daily activities. 5 But as the ALJ explained, those purported To the extent he alleged an “inability to get along with 6 people,” the record demonstrates that Plaintiff regularly shopped 7 in stores, attended medical appointments, and ran errands (AR 56, 8 176, 181-83); went to the movies and interacted with people on 9 Facebook (AR 55, 185); and had friends whom he would see “maybe 10 once a year” (AR 56, 239). 11 (AR 1004) and frequently reported having a “good relationship” 12 with his wife, brother, and sons (see AR 226-27, 238-39, 301, 646 13 (enjoying and feeling “fantastic” during “a visit back East”), 14 913 (enjoying out-of-town visit with two of his sons “before the 15 holidays,” involving “long drive”)). 16 were inconsistent with Plaintiff’s claims of inability to get 17 along with others. 18 621 (9th Cir. 2017) (upholding ALJ’s discounting of plaintiff’s 19 credibility in part because his activities of daily living “were 20 not entirely consistent with his claimed inability to engage in 21 social interactions”). 22 He had a “good rapport” with Dr. Choi Such reported activities See Womeldorf v. Berryhill, 685 F. App’x 620, To the extent his symptom statements focused on his lack of 23 motivation and inability to concentrate or pay attention, the ALJ 24 highlighted that Plaintiff took care of his dog and completed 25 other productive household work: “do[ing] the laundry,” shopping 26 in person, making “light meals,” “wash[ing] dishes,” and 27 “water[ing] the plants.” 28 substantiated by the record (see AR 55-56, 174-76, 181-83, 185), (AR 34-35.) 33 Those activities were 1 which further demonstrated that Plaintiff walked his dog, played 2 fetch with him, and felt “good” or “great” while doing so (AR 3 263, 284, 295); gardened (AR 48, 617); “work[ed] on Dutch 4 furniture” (AR 617); played golf (AR 295); wanted to travel and 5 did travel out of state and across the country (AR 262-63, 617, 6 646, 913); and could frequently use the computer and read the 7 news (AR 55, 174, 181, 263). 8 longtime treating psychiatrist, opined that Plaintiff had “no 9 limits on his activities” because of his alleged disabilities (AR Moreover, Dr. Choi, Plaintiff’s own 10 342), and Plaintiff independently reported to another physician 11 that he cooked, cleaned, drove, shopped, and “perform[ed] his own 12 activities of daily living without assistance” (AR 599). 13 Accordingly, Plaintiff’s reported daily activities were 14 inconsistent with allegations that he was unable to work because 15 he lacked both motivation and the ability to concentrate or pay 16 attention. 17 18 c. Working after alleged disability-onset date The ALJ found that Plaintiff’s reports of working after the 19 alleged disability-onset date undermined the credibility of his 20 subjective symptom statements. 21 work history when evaluating a claimant’s credibility. 22 Thomas, 278 F.3d at 958-59. 23 worked after his alleged onset date may constitute a clear and 24 convincing reason for “finding [the] claimant not fully 25 credible.” 26 (D. Or. 2015); see also Lenex v. Colvin, No. 1:15-cv-00581-BAM, 27 2016 WL 5404437, at *6 (E.D. Cal. Sept. 27, 2016). 28 (AR 34.) An ALJ may consider See And the fact that a claimant has See Gartzke v. Colvin, 129 F. Supp. 3d 1040, 1049-50 Plaintiff argues that the evidence supporting the ALJ’s 34 1 reasoning is based on only a small discrepancy. 2 11.) 3 in October 2011 that he was “laid off ‘three months ago.’” 4 34; see also AR 262.) 5 discrepancy” between the time specified and the alleged onset 6 date of May 26, 2011; this discrepancy, Plaintiff contends, was 7 “inconsequential” and “minor.” 8 9 (J. Stip. at 10- As he explains, the ALJ specified that Plaintiff reported (AR This created “an approximately six-week (J. Stip. at 11.) The record, however, supports the ALJ’s inference that this was not an inconsequential discrepancy and that Plaintiff was 10 indeed working after May 2011. 11 working up until he was “laid off” three months before October 12 2011 (AR 262), but he also reported to Dr. Choi that he was 13 working “50-60 hours a [week]” as of May 26, 2011, the alleged 14 disability-onset date (AR 267). 15 onset date Plaintiff was still capable of working full time. 16 Moreover, he stated to Dr. Gonzalez in January 2012 that he lost 17 his last job in June 2011. 18 therefore supports the inference that Plaintiff was working after 19 the alleged onset date, as the ALJ found. 20 Astrue, 679 F. Supp. 2d 1249, 1262 (W.D. Wash. 2010) (ALJ 21 properly discounted credibility when “plaintiff apparently was 22 able to work and care for another during times when she was 23 experiencing the same or substantially similar symptoms she now 24 claims are disabling” (citing Smolen, 80 F.3d at 25 1284)); Archuleta v. Colvin, No. CV 12-04486-MAN, 2013 WL Not only did Plaintiff report Clearly, then, as of the alleged (AR 238.)18 Substantial evidence See Holzberg v. 26 27 28 18 Further, Plaintiff’s statement that he was “laid off” (AR 262) belies his claims elsewhere in the record that he was “fired” for poor work performance (AR 49). 35 1 6002096, at *9 (C.D. Cal. Nov. 8, 2013) (“[P]laintiff’s ability 2 to work after the alleged onset date [gave] rise to a reasonable 3 inference that plaintiff’s subjective pain [was] not as 4 restrictive as she allege[d] it to be.”). 5 d. Other reasons 6 Plaintiff identifies three additional reasons offered by the 7 ALJ to discount the credibility of his symptom statements: he was 8 collecting unemployment (J. Stip. at 10), his depression was 9 “situational” (id. at 9), and he was assessed a GAF score of “61- 10 70” (id. at 8-9). 11 was inadequate. 12 Plaintiff argues that each of those reasons (See id. at 8-10.) While “[c]ontinued receipt of unemployment benefits does 13 cast doubt on a claim of disability,” Ghanim v. Colvin, 763 F.3d 14 1154, 1165 (9th Cir. 2014) (citing Copeland v. Bowen, 861 F.2d 15 536, 542 (9th Cir. 1988)), “a claimant’s receipt of unemployment 16 benefits does not necessarily constitute a legally sufficient 17 reason for an adverse credibility determination when the record 18 ‘does not establish whether [the claimant] held himself out as 19 available for full-time or part-time work,’” Lind v. Colvin, No. 20 EDCV 14-1474 RNB, 2015 WL 1863313, at *3 (C.D. Cal. Apr. 23, 21 2015) (alteration in original) (quoting Carmickle v. Comm’r, Soc. 22 Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008)); see also 23 Mulanax v. Comm’r of Soc. Sec., 293 F. App’x 522, 523 (9th Cir. 24 2008) (unemployment benefits for part-time work not necessarily 25 inconsistent with claim for Social Security disability). 26 record here does not indicate how or under what circumstances 27 Plaintiff received his unemployment benefits, including whether 28 it was for full-time or part-time work. 36 The (See, e.g., AR 238-39 1 (discussing with Dr. Gonzalez only “collecting unemployment” and 2 that benefits would run out by end of 2012).) 3 more, the ALJ’s reliance on Plaintiff’s apparent receipt of 4 unemployment benefits was neither a clear nor convincing reason 5 for discounting his statements’ credibility. 6 Colvin, No. Ed CV 13-2343-E, 2014 WL 4437288, at *3 (C.D. Cal. 7 Sept. 9, 2014) (“In this case, there is no indication whether 8 Plaintiff based her claim for unemployment benefits on full-time 9 or part-time work[, and] therefore, the fact that Plaintiff may Thus, without See Benjamin v. 10 have claimed to be able to do some work does not support the 11 ALJ’s adverse credibility determination.”). 12 Further, while the ALJ may have properly discounted 13 Plaintiff’s credibility given his situational depression, see 14 Chesler v. Colvin, 649 F. App’x 631, 632 (9th Cir. 2016) (symptom 15 testimony properly rejected in part because “the record 16 support[ed] the ALJ’s conclusion that [plaintiff’s] mental health 17 symptoms were situational”),19 and relatively high GAF scores, 18 19 19 20 21 22 23 24 25 26 27 28 Indeed, Plaintiff’s depression clearly was situational. (See, e.g., AR 262 (“feeling a little better” without stress of work), 284 (feeling better after increase in VA disability rating), 646 (“mood and health worse[ning]” when he was denied unemployment benefits but feeling “fantastic” during “a visit back East”), 635 (reporting “frustration” and “anxiety” trying to get Social Security benefits), 621 (reporting that he was “no longer . . . depressed” and “doing ‘much, much better’” after “he got his Social Security”), 617 (reporting that “[a]s soon as the Social Security was approved, he instantly felt his mood improved”), 912 (“doing great” after receiving 100 percent disability rating from VA); see also AR 342 (Dr. Choi stating that Plaintiff’s condition depended on “situational stressors”)); Menchaca v. Comm’r, Soc. Sec. Admin., No. 6:15-cv-01470-HZ, 2016 WL 8677320, at *7 (D. Or. Oct. 7, 2016) (symptoms caused by “situational stressors” is “legitimate reason to discount . . . credibility”). But see Bryant v. Astrue, No. C12-5040-RSM-JPD, 2012 WL 5293018, at *5-7 (W.D. Wash. Sept. 24, 2012) (finding 37 1 see Boyd v. Colvin, 524 F. App’x 334, 337 (9th Cir. 2013) 2 (upholding ALJ’s reliance on GAF scores to discredit plaintiff’s 3 contrary testimony),20 Defendant has not raised any such 4 argument, nor has she disputed Plaintiff’s contentions on these 5 grounds. 6 (See generally J. Stip. at 12-17.) Even if the ALJ erred, however, she provided other clear and 7 convincing reasons for her adverse credibility assessment and 8 thus any error was harmless. 9 632, 633 (9th Cir. 2017) (citing Batson v. Comm’r of Soc. Sec. See Larkins v. Colvin, 674 F. App’x 10 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). 11 therefore unwarranted. Remand is 12 B. 13 Plaintiff argues that “[t]he ALJ’s two stated rationales for 14 entirely rejecting the Department of Veterans Affairs’ disability 15 determination out of hand are patently inadequate.” 16 5.) 17 VA’s decision “did not include any discussion of the medical 18 findings on which the diagnosis or finding of disability was 19 based.” 20 made the inadequate “general assertion” that “the VA and Social The ALJ Properly Evaluated the VA Decision (J. Stip. at He alleges that the ALJ made the “false assertion” that the (Id. (citing AR 33).) Moreover, he alleges that the ALJ 21 22 23 24 25 26 27 28 mental-health symptoms exacerbated by “situational stressors” “not clear and convincing reason to discount plaintiff’s credibility”), accepted by 2012 WL 5293016 (W.D. Wash. Oct. 26, 2012). 20 Plaintiff argues that the ALJ improperly ignored Dr. Gonzalez’s GAF scores of 59 and focused only on Dr. Choi’s consistently mild scores. (J. Stip. at 8-9.) But Dr. Gonzalez saw Plaintiff only a few times over a five-month period (see, e.g., AR 237-44, 312-14), whereas Dr. Choi treated Plaintiff for at least six years on multiple occasions (see, e.g., AR 266-69, 1002-06). 38 1 Security utilize different programs with different criteria for 2 disability.” 3 provided a legally adequate reason for rejecting the VA 4 disability determination. 5 6 1. (Id. at 6 (citing AR 33).) In fact, the ALJ Applicable law Disability determinations made by the Department of Veterans See § 404.1504;21 McCartey v. 7 Affairs are not binding on an ALJ. 8 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (holding that “a 9 VA rating of disability does not necessarily compel the SSA to 10 reach an identical result” (citing § 404.1504)). 11 consider VA disability findings in their decisions, however, 12 McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011) (as amended), 13 and “must ordinarily give [them] great weight,” McCartey, 298 14 F.3d at 1076. 15 these two federal disability programs.” 16 SSA criteria for determining disability are not identical,” a VA 17 disability rating is not dispositive. 18 only “persuasive, specific, valid reasons” that are “supported by ALJs must That is because of the “marked similarity between Id. Id. But because “VA and The ALJ need provide 19 20 21 22 23 24 25 26 27 28 21 Social Security regulations regarding the decisions of other agencies were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking.”). Accordingly, citations to 20 C.F.R. § 404.1504 are to the version in effect until March 26, 2017. 39 1 the record” for rejecting a VA disability finding. 2 Berry, 622 F.3d at 1236; Valentine v. Comm’r Soc. Sec. Admin., 3 574 F.3d 685, 695 (9th Cir. 2009); Underhill v. Berryhill, 685 F. 4 App’x 522, 522 (9th Cir. 2017). 5 6 2. Id.; accord Additional relevant background On November 2, 2012, the VA issued Plaintiff a disability 7 rating of 70 percent for his major depressive disorder (AR 276), 8 60 percent for his coronary artery disease (id.), and 20 percent 9 for his diabetes mellitus (AR 272). The individual percentages 10 were combined nonadditively using a “rating table,” and he was 11 given an overall disability rating of 90 percent. 12 (AR 277.) The VA cited nine evidentiary sources for its decision, 13 including Plaintiff’s treatment records from June 2010 to 14 November 2011 at the VA Medical Center in West Los Angeles, the 15 December 9, 2011 medical opinion of Dr. La Fleur regarding his 16 mental health, and the December 9 and December 21, 2011 medical 17 opinions of Dr. Kristopher Howalt regarding his heart health and 18 diabetes mellitus.22 19 (AR 275.) In making its depressive-disorder rating, the VA listed 20 findings that Plaintiff had a GAF score of 65, difficulty 21 adapting to a worklife setting, difficulty in adapting to 22 stressful circumstances, difficulty in adapting to work, 23 occupational and social impairments with reduced reliability and 24 productivity, difficulty in establishing and maintaining 25 effective work and social relationships, anxiety, chronic sleep 26 impairment, and a depressed mood. (AR 276.) In making its 27 22 28 The record does not contain the opinions or treatment notes of Dr. Howalt. 40 1 coronary-artery-disease rating, the VA relied on an assessment 2 that Plaintiff could handle “[w]orkload[s] of greater than three 3 METs23 but not greater than five METs,” which “results in 4 dyspnea, fatigue, angina, dizziness, or syncope.” 5 Plaintiff was also noted as having a left ventricular ejection 6 fraction of 65 percent. 7 rating, the VA noted Plaintiff’s need for an oral hypoglycemic 8 agent and regulation of his activities. 9 erectile dysfunction was noted as noncompensable. 10 11 3. (AR 272.) (Id.) In making its diabetes (Id.) His related (Id.) Analysis The ALJ found the VA disability determination “not 12 persuasive[] because it [was] not supported by the medical 13 evidence.” 14 include any discussion of the medical findings on which the 15 diagnosis or finding of disability was based,” and “[t]he [VA] 16 standard of disability also differ[ed] from the Social Security 17 regulations.” (AR 33.) She specified that the VA decision “did not (Id.) 18 Plaintiff takes issue with the ALJ’s two rationales and 19 correctly argues that the latter “is not a ‘persuasive, specific, 20 valid reason[]’ for discounting the VA determination.” 21 622 F.3d at 1236 (quoting Valentine, 574 F.3d at 695); see 22 Underhill, 685 F. App’x at 522 (“The first reason given by the 23 ALJ — that the rating system used by the VA is not the same as Berry, 24 25 26 27 28 23 “One metabolic equivalent (MET) is defined as the amount of oxygen consumed while sitting at rest.” M. Jetté et al., Metabolic Equivalents (METS) in Exercise Testing, Exercise Prescription, and Evaluation of Functional Capacity, 13 Clinical Cardiology 555, 555 (1990), https://www.ncbi.nlm.nih.gov/pubmed/ 2204507. 41 1 the one used by the Social Security Administration — is not 2 valid.”). 3 distinguished the VA’s disability rating on the general ground 4 that VA and SSA disability inquiries are different, her analysis 5 fell afoul of McCartey.” 6 rejection of the VA decision on that ground was improper.24 7 As explained in Valentine, “[i]nsofar as the ALJ 574 F.3d at 695. Thus, the ALJ’s But the ALJ properly found that the VA decision provided no 8 discussion of the medical findings upon which it was based. 9 See Nault v. Colvin, 593 F. App’x 722, 723 (9th Cir. 2015) (ALJ 10 properly rejected VA disability determination that did not 11 explain “how it was determined”); cf. Thomas, 278 F.3d at 957 12 (ALJ need not accept medical opinion that is “brief, conclusory, 13 and inadequately supported by clinical findings”). 14 particularly critical given that the ALJ rejected some of those 15 underlying findings elsewhere in her decision. 16 Berryhill, No. 1:16-cv-01654-MC, 2017 WL 5490868, at *6-7 (D. Or. 17 Nov. 15, 2017) (“[T]he ALJ incorporated his rejection of the 18 opinions of [several physicians] and his unchallenged negative 19 credibility finding with regard to Plaintiff’s subjective symptom 20 testimony[ and thus] gave sufficient, valid reasons for assigning 21 reduced weight to the VA’s determination of disability.”); 22 Orsborn v. Astrue, No. CV 12-13-M-DLC, 2012 WL 6018043, at *2 (D. 23 Mont. Dec. 3, 2012) (finding that ALJ “adequately considered and 24 rejected [VA] rating” because he identified inconsistencies in 25 “VA’s own medical evidence” and discounted plaintiff’s underlying This was See Shattuck v. 26 27 28 24 Of course, the ALJ may simply have been noting the difference between the two programs rather than relying on that difference to reject the VA’s disability rating. 42 1 “self-reports [as] less than credible”). Indeed, Plaintiff fails 2 to even mention the ALJ’s conclusion that the VA decision “[was] 3 not supported by the medical evidence.” 4 Berryhill, 706 F. App’x 430, 432 (9th Cir. 2017) (“[T]he ALJ 5 properly rejected the VA rating based on inconsistency with other 6 medical records that did not support a finding of 100% 7 disability.”). (AR 33); see Cassel v. 8 The VA’s 70-percent disability rating for depression seemed 9 to rely heavily on the opinion of Dr. La Fleur, as it repeated — 10 without discussion — many of the symptoms and findings she 11 provided in her December 2011 medical-source statement. 12 AR 276, with AR 226-30.) 13 by the ALJ because her disability conclusion “equivocat[ed]” and 14 was unsupported by the “mild mental health findings upon 15 examination.” 16 that Plaintiff was oriented “within normal limits”; had 17 “appropriate” appearance, hygiene, behavior, and thought 18 processes; was able to understand directions; did not have 19 slowness of thought; did not appear confused; and had normal 20 judgment and abstract thinking).) 21 the ALJ’s rejection of Dr. La Fleur’s opinion. 22 opinion and treatment records of Plaintiff’s longtime treating 23 physician, Dr. Choi, further undermined the VA disability 24 decision by indicating that Plaintiff faced “no limits on his 25 activities” because of his alleged mental impairments. 26 e.g., AR 342.) 27 depression-related disability rating because it was unsupported 28 by substantial evidence in the record. (Compare Dr. La Fleur’s opinion was discounted (AR 33-34; see also AR 228 (Dr. La Fleur finding Plaintiff has not challenged Moreover, the (See, Accordingly, the ALJ properly rejected the VA’s 43 See Mason v. Colvin, No. 1 13-cv-05724 JRC, 2014 WL 2589483, at *4 (W.D. Wash. June 10, 2 2014) (finding ALJ’s rejection of VA disability determination 3 proper because it was “based on substantial evidence in the 4 record as a whole”). 5 The VA’s disability ratings as to Plaintiff’s coronary 6 artery disease and diabetes were similarly undermined by the 7 medical record, the relevant portions of which the ALJ discussed 8 in detail. 9 April 2013 by internist Roger Wagner. (See AR 35.) For example, Plaintiff was examined in (AR 598-602.) Dr. Wagner 10 assessed him with coronary artery disease and diabetes but found 11 that he faced “[n]o limitations” in his capacity to stand, walk, 12 or sit or in his ability to engage in postural, manipulative, or 13 “[w]orkplace environmental” activities. 14 also assessed that he could lift and carry “50 pounds 15 occasionally and 25 pounds frequently.” 16 Plaintiff has not challenged the ALJ’s reliance on Dr. Wagner’s 17 opinion. 18 opinions of state-agency consultants who, upon reviewing 19 Plaintiff’s medical records, found that he had no severe physical 20 limitations. 21 contradicted the medical findings of greater disability relied on 22 by the VA, supporting the ALJ’s rejection of the VA disability 23 ratings altogether. 24 2012 WL 3728012, at *5 (E.D. Cal. Aug. 24, 2012) (holding that 25 ALJ “did not err by assigning the VA disability finding less 26 weight” because ALJ’s decision was supported by record and he 27 “had more recent evidence before him that was not available to 28 the VA”). (See AR 35.) (AR 601-02.) (AR 602.) Dr. Wagner Again, And his opinion was corroborated by the (AR 68, 86.) Substantial evidence therefore See Hicks v. Astrue, No. CIV S-11-0148 GGH, Remand is therefore unwarranted on this ground. 44 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),25 IT IS ORDERED that judgment be entered 4 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 7 DATED: January 19, 2018 8 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 45

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