Lolita D. Davis v. Nancy A. Berryhill, No. 2:2017cv02558 - Document 20 (C.D. Cal. 2017)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)
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Lolita D. Davis v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LOLITA DENEANNE DAVIS, Plaintiff, 12 15 MEMORANDUM DECISION AND ORDER v. 13 14 CASE NO. CV 17-2558 SS NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 Lolita 21 Deneanne Davis (“Plaintiff”) brings this action 22 seeking to overturn the decision of the Acting Commissioner of 23 Social 24 application for Supplemental Security Income (“SSI”). 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of 26 the undersigned United States Magistrate Judge. 27 13). 28 Commissioner’s decision. Security For the (the “Commissioner” reasons stated or below, “Agency”) the denying her The parties (Dkt. Nos. 11- Court AFFIRMS the Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On March 28, 2013, Plaintiff filed an application for 5 Supplemental Security Income (“SSI”) pursuant to Title XVI of the 6 Social Security Act alleging a disability onset date of February 7 22, 8 Plaintiff’s applications initially and on reconsideration. 9 129-56). 2013.1 (AR 214-22, 230-32). The Commissioner denied (AR Thereafter, Plaintiff requested a hearing before an 10 Administrative Law Judge (“ALJ”) (AR 172-74), which took place on 11 September 23, 2015 (AR 35-70). 12 on November 4, 2015, finding that Plaintiff was not disabled 13 because there are jobs that exist in significant numbers in the 14 national economy that she can perform. 15 31, 16 review. 2017, the Appeals (AR 3-5). The ALJ issued an adverse decision Council denied (AR 22-31). Plaintiff’s On January request for This action followed on April 3, 2017. 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff was previously found not disabled in a final decision dated February 21, 2013, based on a prior SSI application filed on July 11, 2011. (AR 22, 114-25). “The principles of res judicata apply to administrative decisions . . . . The claimant, in order to overcome the presumption of continuing nondisability arising from the first administrative law judge’s findings of nondisability, must prove ‘changed circumstances’ indicating a greater disability.” Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (citation omitted). Here, the ALJ found that Plaintiff “has not [made] a showing of a changed circumstance material to the determination of disability.” (AR 22). 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on May 19, 1969. (AR 230). She was forty- 5 six years old when she appeared before the ALJ on September 23, 6 2015. (AR 35). Plaintiff completed the eleventh grade and does 7 not have a GED. (AR 41-42). She is not married and is homeless. 8 (AR 40, 54). 9 (AR 42). 10 Plaintiff last worked in 2008 doing in-home support. She alleges disability due to: spinal injury, depression, insomnia and back injury. (AR 234). 11 12 A. Plaintiff’s Testimony 13 14 Plaintiff testified that she is unable to work because of 15 auditory hallucinations, insomnia, depression and back pain. (AR 16 42-46). 17 her mental health issues, and Trazadone for her insomnia, all of 18 which provide some relief. 19 effects from her medications. 20 caries her possessions in a backpack, uses Access Services to get 21 around and is unable to walk more than a half block before needing 22 to rest. 23 (AR 57). She takes Norco for her back pain, Abilify and Zoloft for (AR 47, 52-53). (AR 52-53). She denied any side Plaintiff is homeless, (AR 41, 46, 54-56). She denied using drugs or alcohol. 24 25 26 27 28 3 1 B. Treatment History 2 3 In September 2009, Plaintiff was the victim of a home invasion 4 and was shot. 5 hip. (AR 309). A bullet fragment remains in her left (AR 309). 6 7 On April 9, 2012, Plaintiff presented to Salvador E. Lasala, 8 M.D., complaining of depression, lack of motivation, poor energy, 9 anxiety and insomnia. (AR 306). On examination, Plaintiff’s 10 appearance, behavior and speech were unremarkable. 11 had an appropriate affect, normal thought processes and abstract 12 thinking, anxious and depressed mood, and poor insight, judgment 13 and reality assessments. 14 homicidal ideations. 15 Abilify,2 finding that Plaintiff’s medications were stabilizing and 16 reducing her symptoms. 17 complained of depression and insomnia. 18 her appearance, behavior, affect, thought, abstract thinking and 19 speech were unremarkable and appropriate. 20 depressed and her insight, judgment and reality assessment were 21 poor. 22 dosages. 23 3, and December 18, 2012, mental status examinations were largely 24 unremarkable: (AR 303). (AR 303). (AR 306). (AR 306). (AR 306). She denied suicidal She or Dr. Lasala continued doxepin and (AR 306). On May 22, 2012, Plaintiff (AR 303). On examination, (AR 303). Her mood was Dr. Lasala increased her doxepin and Abilify During follow-up visits on July 13, October Plaintiff’s appearance, behavior, thoughts and 25 2 26 27 28 Sinequan (doxepin) is used to treat depression and anxiety. <www.drugs.com/mtm/doxepin-sinequan.html> (last visited Dec. 5, 2017). Abilify (aripiprazole) is an antipsychotic medication used to treat the symptoms of schizophrenia and bipolar disorder. <www.drugs.com/abilify> (last visited Dec. 5, 2017). 4 1 speech were normal. (AR 298, 299, 301). On February 12, 2013, 2 Plaintiff complained of insomnia and increased anxiety and pain. 3 (AR 297). A mental status examination was largely unremarkable. 4 (AR 297). While Plaintiff exhibited an anxious mood and poor 5 insight, judgment and reality assessment, her appearance, behavior, 6 thoughts and speech were all normal. 7 Plaintiff admitted that she had improved mood and sleep. (AR 297). On April 9, (AR 296). 8 9 On July 29, 2013, Peter Bradley, Ph.D., a nonexamining state 10 agency consultant, reviewed the medical record and concluded that 11 Plaintiff has a mild restriction of activities of daily living and 12 moderate difficulties in maintaining social functioning and in 13 maintaining concentration, persistence or pace. 14 Bradley opined that Plaintiff is moderately limited in the ability 15 to understand, remember and carry out detailed instructions but 16 can learn and remember basic work instructions and tasks of one or 17 two steps. 18 state 19 psychological 20 mental status. (AR 137-38). agency consultants (AR 134). Dr. On January 27 and March 24, 2014, the recommended consultative that examination the to Agency assess order a Plaintiff’s (AR 145, 147). 21 22 On February 14, 2013, Plaintiff began treating with Stanley 23 H. Schwartz, M.D. (AR 276). She complained of severe hip and back 24 pain related to a 2009 gunshot wound. 25 fatigue, weakness or sleep disorder. 26 that Plaintiff has a bullet fragment in her left thigh. 27 At a routine follow-up on February 27, 2013, Plaintiff was well 28 developed and nourished, in no acute distress. 5 (AR 276). (AR 277). She denied An x-ray confirmed (AR 280). (AR 282). She was 1 diagnosed with pain in her lower back, left hip and left knee and 2 prescribed baclofen, Norco and tramadol.3 3 5, 2013, Plaintiff was alert and cooperative, with a normal mood 4 and affect and normal attention span and concentration. (AR 282-84). On April (AR 286). 5 6 On January 29, 2014, Plaintiff began treating with the Los 7 Angeles County Department of Mental Health. (AR 309-13). 8 Plaintiff complained of paranoia and insomnia, along with difficult 9 interpersonal relationships with friends and family. (AR 309). A 10 mental status examination was generally unremarkable. 11 Plaintiff’s 12 intellectual functioning, memory, fund of knowledge, affect and 13 thought content were all normal. 14 dysphoric, 15 judgments 16 Plaintiff was diagnosed with chronic PTSD and major depressive 17 disorder with 18 Zoloft.4 (AR 19 appearance and thought process were unremarkable, but her speech 20 and behavior were slow and she demonstrated impaired insight and 21 paranoia. appearance, hopeless and and insight, motor and (AR 315). 318). mood, irrational features On speech, (AR 312). anxious psychotic 313, activity, and February orientation, She did exhibit a impaired concentration, ideations. prescribed 26, (AR 312). 2014, (AR 312). Abilify and Plaintiff’s On April 23, 2014, Plaintiff reported feeling 22 3 23 24 25 26 Baclofen is a muscle relaxer used to treat muscle pain and stiffness. <www.drugs.com/baclofen.html> (last visited Dec. 5, 2017). Norco is an opioid pain medication containing a combination of acetaminophen and hydrocodone and is used to relieve moderate to severe pain. <www.drugs.com/norco.html> (last visited Dec. 5, 2017). Tramadol is a narcotic-like pain reliever used to treat moderate to severe pain. <www.drugs.com/tramadol.html> (last visited Dec. 5, 2017). 4 27 28 Zoloft (sertraline) is an antidepressant used to treat depression, panic disorder, anxiety disorder and PTSD. <www.drugs.com/zoloft.html> (last visited Dec. 5, 2017). 6 1 better with her medications but still suffering from auditory 2 hallucinations. 3 groomed, well oriented to time, place, date and purpose, and 4 exhibiting linear thoughts. 5 continued Abilify and increased the Zoloft dosage. (AR 314). (AR 314). She was casually dressed, properly (AR 314). Tehmina Usmani, M.D., 6 7 April 24, 2014, Khushro Unwalla, M.D., a board-certified 8 psychiatrist, reviewed some of the medical records and examined 9 Plaintiff on behalf of the Commissioner. (AR 321-25). Plaintiff 10 presented in a disheveled and unkempt state, using a cane to 11 ambulate. (AR 321). 12 (AR 321). She complained of depression, auditory hallucinations, 13 paranoia and severe memory problems. 14 alcohol or drug abuse and does not use tobacco. 15 reported “adequate” self-care skills of dressing, bathing, eating, 16 toileting and safety precautions. 17 her own money but cannot do any household chores, errands, shopping 18 or 19 Plaintiff’s speech was slowed and soft, her mood described as 20 depressive, her affect flat and blunted and her thought processes 21 slowed. 22 people are following her. 23 orientation, memory, concentration, abstract thinking, fund of 24 knowledge, insight and judgment were all deficient. 25 Dr. Unwalla observed psychomotor slowing and problems processing 26 information. cooking without (AR 323). She replied “I don’t know” to most questions. assistance. (AR 322). (AR 323). (AR 323). Plaintiff denied (AR 322). She Plaintiff manages On examination, She denied suicidal ideation but claimed that (AR 323). (AR 323). Plaintiff’s cognition, (AR 323-24). He diagnosed major depressive disorder 27 28 7 1 with psychiatric features and rule out malingering.5 2 opined that Plaintiff has mild difficulties in maintaining social 3 functioning, 4 attention, and marked difficulties in concentration, persistence 5 and pace. 6 severe cognitive deficits and poor insight and opined that she has 7 moderate limitations in all areas of mental functioning. 8 He opined that Plaintiff’s prognosis is guarded and that she is 9 unable to handle funds on her own behalf. marked (AR 324). difficulties focusing and (AR 324). He maintaining Dr. Unwalla concluded that Plaintiff has (AR 324). (AR 325). 10 11 On May 21, 2014, David O. Hill, Ph.D., reviewed the medical 12 file, including Dr. Unwalla’s evaluation, and concluded 13 Plaintiff has a mild restriction of activities of daily living and 14 moderate difficulties in maintaining social functioning and in 15 maintaining concentration, persistence or pace. 16 Hill found Plaintiff’s allegations of depression and auditory 17 hallucinations only partially credible because of inconsistencies 18 in her self-reports and because medical records indicate that her 19 symptoms improve when she is compliant with treatment. 20 50). (AR 148-49). that Dr. (AR 149- Dr. Hill opined that Plaintiff is moderately limited in the 21 22 23 24 25 26 27 28 A “rule-out” diagnosis “means here is good evidence that the patient meets the criteria for that diagnosis, and the doctor needs more information to rule it out.” Cha Yang v. Comm’r of Soc. Sec. Admin., 488 F. App’x 203, 207 (9th Cir. 2012) (Ikuta, J., dissenting); see Hansen ex rel. J.H. v. Republic R-III Sch. Dist., 632 F.3d 1024, 1028 n.3 (8th Cir. 2011) (“A ‘rule-out’ diagnosis . . . means the patient meets some criteria for the disorder, but the doctor needs more information to rule it out and would not be comfortable diagnosing it at that time.”); Lockhart v. Colvin, No. 14 CV 0121, 2015 WL 5834284, at *4 (E.D. Cal. Oct. 1, 2015) (“A ‘rule-out’ notation means that the patient meets some criteria of the disorder but the doctor is unwilling to diagnose it and more information is needed.”). 5 8 1 ability to understand, remember and carry out detailed instructions 2 but can learn and remember basic work instructions and tasks of 3 one or two steps. 4 because 5 hallucinations, Plaintiff’s ability to deal with the public on a 6 sustained basis is limited. 7 because 8 compliant with treatment[,] . . . she would be able to perform 9 simple, no-public work-like activity.” of (AR 152-53). her residual Plaintiff’s Dr. Hill further opined that paranoia and (AR 153). “mental occasion auditory Dr. Hill concluded that limitations improve when she is (AR 150). 10 11 On July 22, 2014, Plaintiff reported fair response to her Her depression “comes and goes” but she 12 medications. (AR 342). 13 still hears voices on occasion and is paranoid around people that 14 she feels will harm her. (AR 342). On examination, her appearance, 15 behavior, thoughts, speech and mood were normal. (AR 342). 16 September paranoia 17 acknowledged that her depression was improving and denied auditory 18 hallucinations. 19 behavior, thoughts, speech and mood were normal. 17, Plaintiff (AR reported 341). On continuing examination, her On but appearance, (AR 341). 20 On January 14, 2015, Plaintiff reported doing “ok” with her 21 22 medications. 23 auditory 24 improved. 25 thought process, speech, affect and mood were normal. 26 On 27 working. 28 and hallucinations (AR 339). February her (AR 339). 12, have decreased and her appetite has On examination, her appearance, behavior, Plaintiff (AR 338). insomnia While paranoia is still present, her reported that her (AR 339). medications were Her auditory hallucinations have decreased and appetite 9 have improved but she still 1 experiences paranoia. (AR 338). On April 9, Plaintiff reported 2 “doing a lot better.” (AR 337). While she still feels paranoid, 3 her better 4 hallucinations only three times a month. 5 appetite are improved and she is able to socialize. 6 examination, Plaintiff was casually dressed and made good eye 7 contact. 8 a linear thought process. 9 mood 10 depression is (AR 337). was “better” ideations. and she experiences (AR 337). auditory Her sleep and (AR 337). On She was oriented, calm and cooperative, with and (AR 337). she denied She had a sad affect but her any suicidal or homicidal (AR 337). 11 12 IV. 13 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 14 15 To qualify for disability benefits, a claimant must 16 demonstrate a medically determinable physical or mental impairment 17 that prevents the claimant from engaging in substantial gainful 18 activity and that is expected to result in death or to last for a 19 continuous period of at least twelve months. 20 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 21 The impairment must render the claimant incapable of performing 22 work 23 employment that exists in the national economy. 24 180 25 § 423(d)(2)(A)). previously F.3d 1094, performed 1098 or (9th any Cir. 26 27 28 10 other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 1 To decide if a claimant is entitled to benefits, an ALJ 2 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 3 The steps are: 4 5 (1) Is the claimant presently engaged in substantial gainful 6 activity? 7 not, proceed to step two. 8 (2) 9 Is the If so, the claimant is found not disabled. claimant’s impairment severe? claimant is found not disabled. 10 If not, If the If so, proceed to step three. 11 (3) Does the claimant’s impairment meet or equal one of the 12 specific impairments described in 20 C.F.R. Part 404, 13 Subpart P, Appendix 1? 14 disabled. 15 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 16 so, the claimant is found not disabled. 17 to step five. 18 (5) If not, proceed Is the claimant able to do any other work? 19 claimant is found disabled. 20 If not, the If so, the claimant is found not disabled. 21 22 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 23 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 24 (g)(1), 416.920(b)-(g)(1). 25 The claimant has the burden of proof at steps one through four 26 27 and the Commissioner has the burden 28 Bustamante, 262 F.3d at 953-54. 11 of proof at step five. Additionally, the ALJ has an 1 affirmative duty to assist the claimant in developing the record 2 at every step of the inquiry. 3 claimant meets his or her burden of establishing an inability to 4 perform past work, the Commissioner must show that the claimant 5 can perform some other work that exists in “significant numbers” 6 in 7 residual functional capacity (“RFC”), age, education, and work 8 experience. 9 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). the national economy, Id. at 954. taking into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner 10 may do so by the testimony of a VE or by reference to the Medical- 11 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 12 Appendix 2 (commonly known as “the grids”). 13 240 F.3d 1157, 1162 (9th Cir. 2001). 14 exertional (strength-related) and non-exertional limitations, the 15 Grids are inapplicable and the ALJ must take the testimony of a 16 vocational expert (“VE”). 17 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 18 1988)). Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 19 20 V. 21 THE ALJ’S DECISION 22 23 The ALJ employed the five-step sequential evaluation process 24 and concluded that Plaintiff was not disabled within the meaning 25 of the Social Security Act. 26 that Plaintiff has not engaged in substantial gainful activity 27 since March 28, 2013, the application date. 28 the ALJ found that Plaintiff’s lumbar spine strain, left hip (AR 31). 12 At step one, the ALJ found (AR 25). At step two, 1 bursitis, history of gunshot wound, obesity, depression, PTSD and 2 anxiety are severe impairments. 3 determined that 4 combination of equal the 5 severity of any of the listings enumerated in the regulations. (AR 6 25-26). (AR 25). At step three, the ALJ Plaintiff does not have impairments that meet or an impairment medically or 7 8 The ALJ then assessed Plaintiff’s RFC and concluded that she 9 can perform medium work, as defined in 20 C.F.R. § 416.967(c),6 10 except: 11 12 [Plaintiff can] sit for two hours out of an eight hour 13 workday; stand/walk for six hours out of an eight hour 14 workday, with the use of a knee brace and a cane to 15 ambulate; 16 occasionally climb ramps and stairs; occasionally climb 17 ladders and scaffolds; and frequently balance, stoop, 18 kneel, crouch, and crawl. 19 repetitive 20 Additionally, 21 simple, routine tasks. push/pull use of within weight limitations; [Plaintiff] is precluded from her [Plaintiff] the left is lower limited to extremity. non-public, 22 23 (AR 26-27). 24 to perform any past relevant work. 25 RFC, age, education, work experience and the VE’s testimony, the 26 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 416.967(c). 27 28 At step four, the ALJ found that Plaintiff is unable 6 13 (AR 29). Based on Plaintiff’s 1 ALJ determined at step five that there are jobs that exist in 2 significant numbers in the national economy that Plaintiff can 3 perform, including industrial cleaner, kitchen helper and hand 4 packager. 5 was not under a disability as defined by the Social Security Act 6 since March 28, 2013, the date the application was filed. (AR 30-31). Accordingly, the ALJ found that Plaintiff (AR 31). 7 8 VI. 9 STANDARD OF REVIEW 10 11 Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner’s decision to deny benefits. The court may set aside 13 the Commissioner’s decision when the ALJ’s findings are based on 14 legal error or are not supported by substantial evidence in the 15 record as a whole. 16 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 17 1052 (9th Cir. 2006)); Auckland v. Massanari, 257 F.3d 1033, 1035 18 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 19 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 20 885 F.2d 597, 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 21 22 “Substantial evidence is more than a scintilla, but less than 23 a preponderance.” 24 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 25 evidence which a reasonable person might accept as adequate to 26 support a conclusion.” 27 Smolen, 28 evidence supports a finding, the court must “‘consider the record 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To 14 determine whether substantial 1 as a whole, weighing both evidence that supports and evidence that 2 detracts from the [Commissioner’s] conclusion.’” 3 F.3d at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 4 1993)). 5 or reversing that conclusion, the court may not substitute its 6 judgment for that of the Commissioner. 7 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). Auckland, 257 If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 8 VII. 9 DISCUSSION 10 11 12 13 Plaintiff contends that the ALJ impermissibly rejected the examining physician’s opinion. (Dkt. No. 18 at 5-12). 14 15 “To reject an uncontradicted opinion of a treating or 16 examining doctor, an ALJ must state clear and convincing reasons 17 that are supported by substantial evidence.” 18 427 F.3d 1211, 1216 (9th Cir. 2005); see Lester v. Chater, 81 F.3d 19 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) (“As is the 20 case with the opinion of a treating physician, the Commissioner 21 must provide ‘clear and convincing’ reasons for rejecting the 22 uncontradicted 23 treating or examining doctor’s opinion is contradicted by another 24 doctor’s opinion, an ALJ may only reject it by providing specific 25 and legitimate reasons that are supported by substantial evidence.” 26 Bayliss, 427 F.3d at 1216; see Lester, 81 F.3d at 830-31 (“And like 27 the opinion of a treating doctor, the opinion of an examining 28 doctor, even opinion if of an contradicted examining by 15 another Bayliss v. Barnhart, physician.”). doctor, can “If only a be 1 rejected for specific and legitimate reasons that are supported by 2 substantial evidence in the record.”). 3 conflicting medical opinions, an ALJ may reject an opinion that is 4 conclusory, brief, and unsupported by clinical findings. 5 427 F.3d at 1216; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 6 Cir. 2001). Further, when weighing Bayliss, 7 8 9 Dr. Unwalla, an examining physician, conducted a consultative examination on April 24, 2014. (AR 321-25). Plaintiff presented 10 disheveled and unkempt, her speech slow and soft, with difficulty 11 processing information. 12 know” to most questions. 13 Plaintiff 14 attention and marked difficulties in concentration, persistence 15 and pace. 16 cognitive deficits and poor insight and that she has moderate 17 limitations in all areas of mental functioning. 18 Unwalla opined that Plaintiff’s prognosis was guarded and that she 19 is unable to handle funds on her own behalf. has marked (AR 324). (AR 321, 323). (AR 321). difficulties She answered “I don’t Dr. Unwalla opined that focusing and maintaining He concluded that Plaintiff has severe (AR 324). (AR 325). 20 21 The ALJ gave “little weight” to Dr. Unwalla’s opinion: 22 23 I find this opinion to be unsupported by [Plaintiff’s] 24 record as a whole. 25 [Plaintiff’s] appearance was unremarkable and she was 26 able to recall details of her life and symptoms. In other mental status examinations, 27 28 16 At the Dr. 1 hearing, [Plaintiff] was able to adhere to proper decorum 2 and testify on her own behalf. 3 4 (AR 29). 5 Plaintiff 6 contends that (Dkt. No. 18 at 10). the ALJ’s finding is “broad and 7 vague.” She argues that the ALJ does not 8 specifically reference which “other mental status examinations” 9 belie Dr. Unwalla’s opinion. (Id.). To the contrary, the ALJ 10 cited four different examinations where Plaintiff’s appearance, 11 behavior, thoughts and speech were largely unremarkable. 12 29). 13 mood and poor insight, her appearance, behavior, thoughts and 14 speech were all normal. 15 acknowledged that she had improved mood and sleep. 16 January 29, 2014, Plaintiff’s appearance, motor activity, speech, 17 orientation, intellectual functioning, memory, fund of knowledge, 18 affect and thought content were all normal. 19 on April 9, 2015, Plaintiff reported “doing a lot better.” 20 337). 21 linear thought process, and was oriented, calm and cooperative. 22 (AR 337). 23 where she exhibited the disheveled and unkempt appearance and 24 severe cognitive deficits that Dr. Unwalla observed. 25 Dr. Unwalla suspected possible malingering. 26 the ALJ properly afforded Dr. Unwalla’s opinion little weight 27 because it was inconsistent with other evidence in the record. 28 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). (AR 28- On February 12, 2013, while Plaintiff exhibited an anxious (AR 297). On April 9, 2013, Plaintiff (AR 296). (AR 312). On Finally, (AR She was casually dressed, made good eye contact, had a Further, Plaintiff does not identify any examinations 17 Indeed, even (AR 28, 324). Thus, See 1 Plaintiff identifies multiple records indicating paranoid 2 ideations, anxiety, auditory hallucinations, PTSD and depression. 3 (Dkt. No. 18 at 10-11). 4 with disabilities. 5 anxious, and obese yet still perform full-time work.” 6 Barnhart, 430 F.3d 865, 868 (7th Cir. 2005). As the Seventh Circuit 7 explained: “[c]onditions must not be confused with disabilities. 8 The social security disability benefits program is not concerned 9 with health as such, but rather with ability to engage in full- Plaintiff appears to confuse conditions For example, a “person can be depressed, Gentle v. 10 time gainful employment.” 11 Colvin, No. 16 CV 5664, 2017 WL 218802, at *3 (W.D. Wash. Jan. 19, 12 2017). 13 support 14 difficulties 15 difficulties in concentration, persistence and pace. Id. (citation omitted); accord Cody v. Further, the records cited by Plaintiff do not necessarily Dr. Unwalla’s focusing conclusion and that Plaintiff marked attention maintaining has and marked 16 The ALJ acknowledged that Plaintiff’s depression, anxiety and 17 18 PTSD were severe impairments. 19 Plaintiff’s 20 medications, . . . 21 admitted in recent records that she was feeling better and had 22 improved.” 23 Plaintiff 24 functioning and in maintaining concentration, persistence or pace. 25 (AR 148). 26 and occasional auditory hallucinations despite her medications, 27 the 28 routine tasks. state treatment, has which appeared (AR 28). (AR 25). was to be The ALJ found that “limited effective to counseling since and [Plaintiff] The state agency consultant opined that moderate difficulties in maintaining social Because Plaintiff was experiencing residual paranoia agency consultant limited (AR 27, 29, 150, 153). 18 Plaintiff to non-public, The ALJ properly relied on 1 the state agency physician’s opinion in rejecting Dr. Unwalla’s 2 opinion. 3 Cir. 1995) (the ALJ may reject an examining physician’s opinion in 4 reliance on the report of a nonexamining advisor “when it is not 5 contradicted 6 omitted) (emphasis in original); Social Security Ruling (“SSR”) 7 96-6p,7 at *2-3 (S.S.A. July 2, 1996) (“State agency medical and 8 psychological 9 psychologists who are experts in the evaluation of the medical 10 issues in disability claims under the Act. . . . In appropriate 11 circumstances, opinions from State agency medical and psychological 12 consultants and other program physicians and psychologists may be 13 entitled 14 examining sources.”). (AR 29); see Andrews v. Shalala, 53 F.3d 1035, 1041 (9th to by all other consultants greater evidence are weight in highly than the the record”) qualified opinions (citation physicians of treating and or 15 16 Finally, Plaintiff contends that the ALJ’s reliance on her 17 decorum at the hearing to reject Dr. Unwalla’s opinion amounts to 18 “quintessential prohibited ‘sit-and-squirm’ jurisprudence that the 19 Ninth Circuit has condemned.” 20 Ninth Circuit prohibits “an ALJ who is not a medical expert [from] 21 subjectively arriv[ing] at an index of traits which he expects the 22 claimant to manifest at the hearing.” 23 F.2d 727, 731 (11th Cir. 1982); accord Perminter v. Heckler, 765 24 F.2d 870, 872 (9th Cir. 1985) (“The ALJ’s reliance on his personal 25 (Dkt. No. 18 at 11). 27 28 Freeman v. Schweiker, 681 Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray, 554 F.3d at 1224. They “reflect the official interpretation of the [Agency] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Id. (citation omitted). 7 26 Indeed, the 19 1 observations of Perminter at the hearing has been condemned as ‘sit 2 and squirm’ jurisprudence.”) (citing Freeman, 681 F.2d at 731). 3 Here, however, the ALJ is citing Plaintiff’s decorum and ability 4 to 5 contradicting Dr. Unwalla’s opinion. 6 Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“The inclusion of the 7 ALJ’s 8 improper.”) (citation omitted). 9 to testify on her own behalf undermine Dr. Unwalla’s opinion that testify on personal has her own behalf as observations marked does one more piece of evidence Morgan v. Comm’r of Soc. Sec. not render the decision Plaintiff’s decorum and ability 10 Plaintiff difficulties focusing and maintaining 11 attention and marked difficulties in concentration, persistence 12 and pace. 13 14 In sum, the ALJ provided specific and legitimate reasons, 15 supported by substantial evidence in the record, for giving Dr. 16 Unwalla’s opinion little weight. 17 evidence supports the ALJ’s assessment of Dr. Unwalla’s opinion, 18 no remand is required. Accordingly, because substantial 19 20 21 22 23 24 25 26 27 28 20 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. 8 9 DATED: December 7, 2017 10 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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