Carlos Balcaceres v. Nancy A. Berryhill, No. 2:2017cv08683 - Document 20 (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 in Defendant's favor. (See document for further details.) (sbou)
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Carlos Balcaceres 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 CARLOS BALCACERES, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 17-8683-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”) and supplemental security income benefits 22 (“SSI”).1 23 undersigned under 28 U.S.C. § 636(c). The parties consented to the jurisdiction of the The matter is before the 24 25 26 27 28 1 Although the ALJ did not so note in her decision, Plaintiff abandoned his DIB claim at his first hearing, on July 29, 2015 (see Administrative Record 46, 48), most likely because his date last insured was June 30, 2011 (see AR 11, 47), and there was scant medical evidence in the record from before then. Accordingly, the Court considers only Plaintiff’s SSI claim. 1 Dockets.Justia.com 1 Court on the parties’ Joint Stipulation, filed July 19, 2018, 2 which the Court has taken under submission without oral argument. 3 For the reasons stated below, the Commissioner’s decision is 4 affirmed. 5 II. 6 BACKGROUND Plaintiff was born in 1957. (Administrative Record (“AR”) 7 62, 216.) He completed high school in El Salvador and did 8 college-level maintenance training, where he was taught in both 9 English and Spanish. (AR 29.) He apparently worked most 10 recently as a porter for a rental-car company, but for most of 11 his career, until 2006, he worked as a “CNC operator.”2 12 29.) 13 (AR 28- In late June 2013, Plaintiff applied for DIB (AR 216) and 14 SSI (AR 210). 15 beginning March 1, 2006 (AR 216); in the SSI application, he 16 listed his onset date as January 1, 2003 (AR 210). 17 subsequently amended his onset date to January 2013. 18 48.) 19 testicles, anxiety, depression, and insomnia. 20 In the DIB application, he alleged disability He (AR 46, He alleged he was unable to work because of herniated (AR 69.) After Plaintiff’s applications were denied initially (AR 99, 21 102) and on reconsideration (AR 107-12), he requested a hearing 22 before an Administrative Law Judge (AR 114-15). 23 held on July 29, 2015, at which he was represented by counsel and 24 testified with the assistance of a Spanish-language interpreter. A hearing was 25 26 27 2 A computer numerical control operator produces machined parts and tools by programming, setting up, and operating a numerical control machine. See “Numerical Control Machine Operator,” DOT 609.362-010, 1991 WL 684899 (Jan. 1, 2016). 28 2 1 (AR 42-61.) A vocational expert also testified. 2 After the hearing, Plaintiff was referred to a psychiatrist for a 3 consulting examination. 4 requested a supplemental hearing (AR 278), which was held on 5 March 17, 2016 (see generally AR 24-41), after the psychiatric 6 examination. 7 supplemental hearing and testified through an interpreter. 8 48-56.) 9 written decision issued April 11, 2016, the ALJ found Plaintiff (AR 416-21.) (AR 56-61.) Plaintiff’s counsel Plaintiff was represented by counsel at the A vocational expert also testified. (AR 56-61.) (AR In a 10 not disabled. 11 review from the Appeals Council (AR 207), which on October 18, 12 2017, denied it (AR 1-6). 13 III. STANDARD OF REVIEW 14 (AR 18.) On June 1, 2016, Plaintiff requested This action followed. Under 42 U.S.C. § 405(g), a district court may review the 15 Commissioner’s decision to deny benefits. 16 decision should be upheld if they are free of legal error and 17 supported by substantial evidence based on the record as a whole. 18 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 19 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 20 means such evidence as a reasonable person might accept as 21 adequate to support a conclusion. 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 23 is more than a scintilla but less than a preponderance. 24 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 25 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 26 substantial evidence supports a finding, the reviewing court 27 “must review the administrative record as a whole, weighing both 28 the evidence that supports and the evidence that detracts from 3 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It To determine whether 1 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 2 720 (9th Cir. 1998). 3 either affirming or reversing,” the reviewing court “may not 4 substitute its judgment” for the Commissioner’s. 5 IV. “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 6 People are “disabled” for purposes of receiving Social 7 Security benefits if they are unable to engage in any substantial 8 gainful activity owing to a physical or mental impairment that is 9 expected to result in death or has lasted, or is expected to 10 last, for a continuous period of at least 12 months. 11 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 12 1992). 42 U.S.C. 13 A. 14 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 15 assess whether a claimant is disabled. 16 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 17 1995) (as amended Apr. 9, 1996). 18 Commissioner must determine whether the claimant is currently 19 engaged in substantial gainful activity; if so, the claimant is 20 not disabled and the claim must be denied. 20 C.F.R. In the first step, the § 416.920(a)(4)(i). 21 If the claimant is not engaged in substantial gainful 22 activity, the second step requires the Commissioner to determine 23 whether the claimant has a “severe” impairment or combination of 24 impairments significantly limiting his ability to do basic work 25 activities; if not, the claimant is not disabled and his claim 26 must be denied. 27 28 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to 4 1 determine whether the impairment or combination of impairments 2 meets or equals an impairment in the Listing of Impairments set 3 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 4 disability is conclusively presumed. § 416.920(a)(4)(iii). 5 If the claimant’s impairment or combination of impairments 6 does not meet or equal an impairment in the Listing, the fourth 7 step requires the Commissioner to determine whether the claimant 8 has sufficient residual functional capacity (“RFC”)3 to perform 9 his past work; if so, he is not disabled and the claim must be 10 denied. 11 proving he is unable to perform past relevant work. 12 F.2d at 1257. 13 case of disability is established. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 14 If that happens or if the claimant has no past relevant 15 work, the Commissioner then bears the burden of establishing that 16 the claimant is not disabled because he can perform other 17 substantial gainful work available in the national economy. 18 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 19 comprises the fifth and final step in the sequential analysis. 20 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination 21 22 23 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; 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)). 5 1 B. The ALJ’s Application of the Five-Step Process 2 At step one, the ALJ found that Plaintiff had not engaged in 3 substantial gainful activity since March 1, 2006, the original 4 alleged onset date for his DIB claim. 5 concluded that he had severe impairments of “hernia, status-post 6 repair [and] depressive disorder.” 7 found that those impairments did not meet or equal a Listing. 8 (Id.) 9 perform medium work but could “never have contact with the public (AR 12.) (AR 13.) At step two, she At step three, she At step four, she determined that he had the RFC to 10 and no more than occasional contact with co-workers and 11 supervisors.” 12 testimony at the supplemental hearing (AR 36-41), the ALJ 13 concluded that he could perform his “past relevant work as a CNC 14 Operator” “as actually and generally performed.” 15 Thus, she found him not disabled. 16 V. 17 (AR 14.) Based in part on the vocational expert’s (AR 17-18.) (AR 18.) DISCUSSION Plaintiff argues that the ALJ erred by rejecting the opinion 18 of treating psychiatrist Ines Gerson and “fail[ing] to provide 19 legally sufficient reasons for [doing so].” 20 also id. at 4-8.) 21 warranted. (J. Stip. at 8; see For the reasons discussed below, remand is not 22 A. 23 The ALJ must consider all the medical opinions “together 24 Applicable Law with the rest of the relevant evidence.” § 416.927(b).4 Three 25 26 27 28 4 Social Security regulations regarding the evaluation of opinion evidence 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, 6 1 types of physicians may offer opinions in Social Security cases: 2 those who directly treated the plaintiff, those who examined but 3 did not treat the plaintiff, and those who did neither. 4 81 F.3d at 830. 5 entitled to more weight than an examining physician’s, and an 6 examining physician’s opinion is generally entitled to more 7 weight than a nonexamining physician’s. 8 § 416.927(c). 9 employed to cure and have a greater opportunity to know and Lester, A treating physician’s opinion is generally Id.; see also This is so because treating physicians are 10 observe the claimant. 11 Cir. 1996); see also § 416.927(c)(2). 12 nontreating, nonexamining physician can amount to substantial 13 evidence, so long as other evidence in the record supports those 14 findings.” 15 (per curiam) (as amended) (citation omitted). 16 Smolen v. Chater, 80 F.3d 1273, 1285 (9th But “the findings of a Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) The ALJ may disregard a physician’s opinion regardless of 17 whether it is contradicted. 18 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 19 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 20 opinion is not contradicted by other medical-opinion evidence, 21 however, it may be rejected only for a “clear and convincing” Magallanes v. Bowen, 881 F.2d 747, When a doctor’s 22 23 24 25 26 27 28 474 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. § 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 7 1 reason. 2 (citing Lester, 81 F.3d at 830-31). 3 ALJ need provide only a “specific and legitimate” reason for 4 discounting it. 5 F.3d at 830-31). 6 depends on whether it is consistent with the record and 7 accompanied by adequate explanation, among other things. 8 § 416.927(c), (e). 9 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 When it is contradicted, the Carmickle, 533 F.3d at 1164 (citing Lester, 81 The weight given a doctor’s opinion, moreover, See Furthermore, “[t]he ALJ need not accept the opinion of any 10 physician . . . if that opinion is brief, conclusory, and 11 inadequately supported by clinical findings.” 12 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citation omitted); 13 accord Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195 (9th 14 Cir. 2004); see also McLeod v. Astrue, 640 F.3d 881, 884-85 (9th 15 Cir. 2011) (as amended) (finding that treating physician’s 16 opinion “is not binding on an ALJ with respect to the existence 17 of an impairment or the ultimate determination of disability” 18 (citation omitted)). 19 reject a physician’s opinion or a portion of it; the court may 20 draw “specific and legitimate inferences” from the ALJ’s opinion. 21 Magallanes, 881 F.2d at 755. 22 Thomas v. An ALJ need not recite “magic words” to The Court must consider the ALJ’s decision in the context of 23 “the entire record as a whole,” and if the “‘evidence is 24 susceptible to more than one rational interpretation,’ the ALJ’s 25 decision should be upheld.” 26 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). Ryan v. Comm’r of Soc. Sec., 528 27 28 8 1 B. 2 3 Relevant Background 1. Treatment records On March 25, 2013, Plaintiff reported feeling hopeless, 4 “depressed or . . . down” during a follow-up visit after hernia 5 surgery. 6 the record that he expressed having such symptoms. 7 performing psychometric depression scale tests, the examining 8 physician declined to diagnose him with depression. 9 Plaintiff apparently did not report any mental-health symptoms 10 11 (AR 294.) This appears to have been the first time in during his next visit, on April 15, 2013. After (AR 295-96.) (AR 297-98.) Plaintiff began seeking mental-health services at West 12 Valley Mental Health Center in July 2014. 13 at his initial appointment that he had felt depressed for the 14 past 10 years, had auditory hallucinations three months prior, 15 and had attempted suicide “[five] years ago while under the 16 influence of [alcohol].”5 17 alleged onset date for his mental-health issues was January 2013 18 (AR 46, 48), it seems Plaintiff did not seek or receive care for 19 them before July 2014, as the ALJ noted. (AR 365.) (AR 365.) He reported Although the amended (See AR 15, 51-52.)6 20 21 22 23 24 25 26 27 28 5 During an intake interview a few days earlier, Plaintiff apparently indicated that his mental-health problems had been ongoing for the prior five years, not 10. (AR 372.) 6 In several places, the medical notes attest to Plaintiff’s finally seeking treatment in July 2014 so that he could demonstrate continuity of care for his SSI application. (See AR 368 (note from July 14, 2014: “Client is eager to begin services with the Dept. to establish continuity of care.”), 383 (note from Oct. 27, 2014: “Explained to him to qualify for completing [Social Security] paperwork he has to have one year of treatment history.”).) He told the nurse practitioner at his initial appointment at West Valley that he had not had prior mental-health treatment. (AR 365.) 9 1 The medical records from West Valley include a number of patient 2 questionnaires seeking information about medical history and 3 symptoms. 4 They show that he saw a substance-abuse counselor (see AR 391; 5 see also AR 398) and Dr. Rhodora Tolentino (see AR 395-97, 400- 6 02), apparently a psychiatrist, in addition to Dr. Gerson (see AR 7 384, 386, 392-93, 407, 424). 8 9 (See, e.g., AR 366-67, 370, 373, 375-76, 377-79.) On July 14, 2014, Dr. Tolentino diagnosed Plaintiff with “Major Depressive Disorder, recurrent, severe with psychotic 10 features” and alcohol dependence and noted that he had a “long 11 history of mental illness and alcohol use; homeless, financial 12 problem, problem with mental health services, unemployed, 13 relational problem with wife and children; other psychosocial 14 factors.” 15 of Functioning score of 40.7 (AR 401.) She apparently assessed a Global Assessment (Id.) The record does not reveal 16 7 17 18 19 20 21 22 23 24 25 26 27 28 A GAF score of 31 to 40 indicates “some impairment in reality testing or communication . . . or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.” Diagnostic and Statistical Manual of Mental Disorders 34 (Am. Psychiatric Ass’n, 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 Diagnostic and Statistical Manual of Mental Disorders “dropped” the GAF scale, citing its “conceptual lack of clarity and “questionable psychometrics in routine practice,” Am. Psychiatric Ass’n, Introduction, Diagnostic and Statistical Manual of Mental Disorders (Am. Psychiatric Ass’n, 5th ed. 2012), https://doi.org/ 10.1176/appi.books.9780890425596. 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) 10 1 what tests, if any, she conducted to determine his diagnosis. 2 (See generally AR 400-02.) 3 antidepressant, and risperidone, an antipsychotic.9 4 She prescribed Wellbutrin,8 an (AR 402.) Plaintiff began seeing Dr. Gerson on August 7, 2014. (AR 5 392; see also AR 410.) 6 Disorder, recurrent, severe with psychotic features” and alcohol 7 dependence “in recent remission,” and she determined his GAF 8 score to be 40. 9 tests, if any, she conducted to make those diagnoses, and it She diagnosed him with “Major Depressive (AR 393.) The record does not indicate what 10 appears she relied primarily on Plaintiff’s self-reported history 11 and symptoms and her general observations. 12 392-94.) 13 hallucinations and paranoid delusions as a result of heavy 14 drinking. 15 risperidone and Wellbutrin, though she changed the dosages 16 slightly. 17 in two months. 18 19 (See generally AR Her notes indicate that he reported developing auditory (AR 392.) She continued his prescriptions for (AR 393; see also AR 274.) She told him to follow up (AR 393.) Plaintiff met with Dr. Gerson again on September 19, 2014. (AR 386.) He reported feeling better on the medications but had 20 21 22 23 24 25 26 27 28 (citing Richard C. Ruskell, Social Security Disability Claims Handbook § 2:15 n.40 (2017)). Here, the ALJ did not give the various GAF scores on record “much weight.” (AR 17.) 8 Wellbutrin is a name brand of buproprion, an antidepressant. Buproprion, MedlinePlus, https:// medlineplus.gov/druginfo/meds/a695033.html (last updated Feb. 15, 2018). 9 Risperidone is in a class of medications called atypical antipsychotics; it is used to treat symptoms of schizophrenia, mania, bipolar disorder, and behavior problems. Risperidone, MedlinePlus, https://medlineplus.gov/druginfo/meds/a694015.html (last updated Nov. 15, 2017). 11 1 relapsed in his drinking about a month earlier.10 2 noted, apparently based on his report, that he “hears voices but 3 less than before, worse when he drinks.” 4 was intact and his insight, judgment, and impulse control were 5 adequate. 6 three months. 7 however, on October 8, 2014. 8 meeting are almost word for word the same as those from the 9 previous meeting. (Id.) (Id.) (Id.) She His cognition She wrote that he should follow up with her in (Id.) He met with her less than a month later, (AR 384.) The notes from that (Compare id., with AR 386.) She wrote that he 10 should follow up in four months. 11 meeting four months later are again essentially the same as the 12 notes from the previous meetings. (AR 407.) 13 follow up in three months. They met once more, on July 14 16, 2015. 15 substantively the same as the notes from the previous meetings. 16 (Id.) 17 she administered to him. 18 (AR 424.) (Id.) (AR 384.) The notes from their She requested he The notes from that meeting are yet again None of her treatment notes indicate what tests, if any, (See AR 384, 386, 407, 424.) On the Mental Impairment Questionnaire she signed on July 19 21, 2015 (see AR 415), Dr. Gerson wrote that Plaintiff’s 20 “response to treatment [was] good” and found that he was 21 “oriented x4" and “cooperative”; his “insight,” “judgement,” and 22 “impulse control” were “adequate”; and his “thought process was 23 linear” (AR 410). 24 anxious,” he was “sad,” and he “gets paranoid” and “hears voices” 25 “at times.” (Id.) She also noted, however, that his “mood [was] She checked boxes indicating that he had 26 27 28 10 On August 28, 2014, he showed up at West Valley saying that he needed cough medicine on an emergency basis because he had had a beer and was throwing up. (AR 388.) 12 1 “[h]allucinations or delusions,”11 “[m]ood disturbance,” 2 “[d]ifficulty thinking or concentrating,” “[p]aranoid thinking or 3 inappropriate suspiciousness,” and “[e]motional withdrawal or 4 isolation.” 5 or pervasive loss of interest in . . . activities,” “[t]houghts 6 of suicide,” “[b]lunt, flat or inappropriate affect,” 7 “[i]mpairment in impulse control,” “[g]eneralized persistent 8 anxiety,” “[p]ersistent disturbances of mood or affect,” 9 “[s]ubstance dependence,” “[p]erceptual or thinking (AR 411.) She did not check boxes for “[a]nhedonia 10 disturbances,” “[e]motional lability,” “[i]llogical thinking,” 11 “[m]emory impairment,” “[s]leep disturbance,” or “[o]ddities of 12 thought, perception, speech or behavior.” 13 (Id.) Plaintiff’s prognosis was [g]uarded” (AR 410), and she 14 concluded that he was uniformly unable to meet competitive 15 standards for unskilled, semiskilled, or skilled work (AR 412-13) 16 because of “auditory hallucinations and paranoia” (AR 413). 17 had “[m]arked” “[r]estriction of activities of daily living” and 18 “in maintaining concentration, persistence[,] or pace” and was 19 “[e]xtreme[ly]” limited in “maintaining social functioning.” 20 414.) 21 days a month. 22 Plaintiff was able to “manage benefits” in his own “best 23 interests.” 24 of these determinations other than to note that her assessment 25 that he did not have “a low IQ or reduced intellectual He (AR She opined that he would be absent from work four or more (AR 415.) (Id.) She acknowledged, however, that She did not elaborate as to how she made any 26 27 28 11 Five days earlier, on July 16, 2015, Plaintiff had denied having any kind of hallucinations to a nurse practitioner. (AR 423.) 13 1 functioning” was “based on clinical interview.” 2 also generally AR 410-15.) 3 2. 4 (See AR 413; see State-agency consulting psychiatrists On October 10, 2013, Dr. Edward Ritvo conducted a 5 psychiatric evaluation of Plaintiff that was used to assess his 6 DIB and SSI claims at the initial level. 7 Plaintiff told Dr. Ritvo that he had no “delusions, 8 hallucinations, morbid mood changes, [or] any evidence of 9 psychosis” (AR 304) and he “denie[d] recent auditory or visual (See AR 67, 304-08.) 10 hallucinations” (AR 306). 11 “sad” because of his “illness,” presumably his hernias. 12 304.) 13 “excessive alcohol use” (AR 305) even though he admitted he was 14 an alcoholic numerous times throughout the record and in his 15 testimony (see, e.g., AR 50, 392).12 16 “[did] not appear to be responding to internal stimuli,” and his 17 thoughts were “relevant and non-delusional” and “coherent and 18 organized.” 19 memory (id.), knowledge (AR 307), concentration and calculation His chief complaint was that he was He was “trying to find work now.” (AR 306.) (Id.) (AR He denied any Dr. Ritvo noted that he Among other things, he tested Plaintiff’s 20 21 12 22 23 24 25 26 27 28 Plaintiff inconsistently reported when he apparently stopped drinking alcohol. He testified in March 2016 that he stopped “12 months ago” (AR 35) and in July 2015 that he quit “December of last year” (AR 50). He told a doctor in January 2013 that he “quit [nine] months ago” (AR 333) and told another in July 2014 that he last drank three months prior (AR 366). He was apparently hospitalized for intoxication in March 2014. (AR 377.) On August 7, 2014, he told Dr. Gerson he drank three weeks prior (AR 392), and later that month he told a technician at West Valley that he “had a beer last night” (AR 388). The Court assumes Plaintiff attempted to stop several times but had relapses; it appears that he was drinking sporadically throughout the relevant period. 14 1 abilities (id.), and judgment (id.). 2 tests were normal (AR 306-07) and Plaintiff was “of at least 3 average intelligence” (AR 306), so Dr. Ritvo determined that the 4 reported symptoms did not warrant any diagnosis and assigned a 5 GAF score of 70.13 6 impaired” in any functional capacity. 7 (AR 307.) The results of all these Overall, he found Plaintiff “not (AR 308.) On September 1, 2015, more than a month after Dr. Gerson 8 last saw Plaintiff, consulting psychiatrist Stephan Simonian 9 conducted a complete psychiatric evaluation of Plaintiff. 10 416-20.) (AR Plaintiff told Dr. Simonian that he had “difficulty 11 concentrating” and had been “feeling depressed.” (AR 416.) The 12 doctor noted, however, that he was “alert and oriented,” had 13 coherent thought processes without “tangentiality” or “looseness 14 of associations,” and had “no delusional thinking.” (AR 418.) 15 Plaintiff had no “active hallucinations” but said he 16 “occasionally hear[d] his name being called.” (Id.) Dr. 17 Simonian tested Plaintiff’s ability to do calculations, recall 18 recent and remote events, and interpret proverbs. (AR 419.) As 19 a result of those tests, his general observations, and his review 20 of Plaintiff’s written functional report (see AR 416), Dr. 21 Simonian judged Plaintiff’s intellectual functioning, calculation 22 ability, memory, comprehension, concentration, and abstract 23 thinking to be average (AR 419). He diagnosed him with 24 depressive disorder and alcohol abuse and noted that Plaintiff 25 26 27 28 13 A GAF score of 61 to 70 indicates “some mild symptoms . . . or some difficulty in social, occupational, or school functioning . . . but generally functioning pretty well.” Diagnostic and Statistical Manual of Mental Disorders 34 (Am. Psychiatric Ass’n, revised 4th ed. 2000). 15 1 had moderate psychological stressors. (Id.) He determined his 2 GAF score to be 62 (id.) and found that his ability to perform 3 work functions was “not limited” except in “relat[ing] and 4 interact[ing] with supervisors, co-workers, and the public,” as 5 to which he was mildly limited (AR 420). 6 3. 7 State-agency reviewing physicians Plaintiff’s medical records were reviewed and evaluated by 8 psychologist Christal Janssen in October 2013 and Dr. Ramona 9 Bates in September 2013.14 (AR 65-66, 68-76.) They reviewed Dr. 10 Ritvo’s notes (AR 63, 70) as well as notes from a family clinic, 11 presumably regarding Plaintiff’s hernias (AR 64, 71). Dr. 12 Janssen determined that the primary issue was the hernias and 13 that affective disorders were secondary. (AR 66, 72.) She 14 categorized both of those issues as “non severe” for the DIB 15 claim (AR 66) but the hernias as “severe” for the SSI claim (AR 16 72). For the SSI claim, Dr. Bates determined that Plaintiff’s 17 impairments could “reasonably be expected to produce [symptoms]” 18 but that his “statements about the intensity, persistence, and 19 functionally limiting effects of the symptoms [were not] 20 substantiated by the objective medical evidence alone.” (AR 73.) 21 She gave great weight to Dr. Ritvo’s medical opinion and found 22 Plaintiff only “[p]artially credible,” noting that his statements 23 24 25 26 27 28 14 Dr. Janssen’s electronic signature includes a medical-specialty code of 38, indicating a psychology practice. (See AR 66); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), https:// secure.ssa.gov/apps10/poms.nsf/lnx/0424501004. Dr. Bates’s electronic signature includes a medical-speciality code of 35, indicating a plastic-surgery practice. (See AR 76); POMS DI 24501.004. 16 1 were “not consistent with the preponderance of evidence in the 2 file.” (AR 73-74.) She determined that his RFC was medium and 3 that he could “[o]ccasionally . . . lift and/or carry . . . 50 4 pounds,” “[f]requently . . . lift and/or carry . . . 25 pounds,” 5 “stand and/or walk . . . [a]bout 6 hours in an 8-hour workday,” 6 “[s]it . . . [a]bout 6 hours in an 8-hour workday,” and “push 7 and/or pull . . . [u]nlimited [weights].” 8 no other limitations. 9 not disabled. 10 (AR 74.) (AR 74-75.) She found Plaintiff was determined to be (AR 67, 76.) At the reconsideration level, the state-agency medical 11 consultants relied on Dr. Ritvo’s medical opinion (AR 80, 88) as 12 well as some subsequent information: Plaintiff apparently stated 13 in December 2013 that his condition had not worsened and that he 14 had “no new physical or mental limitations or illnesses” (AR 82, 15 90). Also, two physicians conducted reviews on January 27, 2014, 16 “Dr. Limos” and “Dr. Salib.” (Id.)15 Their notes indicate that 17 “physical evidence remain[ed] insufficient,” Plaintiff 18 “retain[ed] ability to perform physical-Medium RFC/Work,” and 19 “mental condition remain[ed] [n]on-[s]evere.” (Id.) On February 20 6, 2014, a physician named “Dr. A. Ahmed” reassessed Plaintiff’s 21 RFC and made the same determinations as Dr. Bates had at the 22 initial level of review. (AR 84-85, 92-93; see also AR 74.)16 23 24 25 26 15 On these pages, the record lists the date as January 27, 2013, but based on the context, it is clear the assessments were made on January 27, 2014. (See also AR 86, 94 (showing Dr. Salib’s signature dated Jan. 27, 2014).) The record does not show either doctor’s medical specialty. 27 16 28 The record does not indicate Dr. Ahmed’s medical specialty. 17 1 Again, Plaintiff was found “not disabled.” (AR 85, 93.) 2 C. 3 The ALJ did not reject Dr. Gerson’s opinion, as Plaintiff 4 contends. Analysis (See J. Stip. at 4, 6, 8.) She merely gave “less 5 weight” to it than other doctors’ opinions. (AR 17.) In fact, 6 the ALJ apparently adopted to some degree Dr. Gerson’s concerns 7 regarding Plaintiff’s ability to get along with others (see AR 8 414) by limiting him to “never hav[ing] contact with the public 9 and no more than occasional contact with co-workers and 10 supervisors” (AR 14). Because numerous doctors assessed less 11 restrictive limitations than Dr. Gerson, the ALJ was required to 12 provide only a specific and legitimate reason for giving her 13 opinion less weight. See Carmickle, 533 F.3d at 1164. She in 14 fact provided two. 15 16 1. Inconsistency between opinion and treatment notes The ALJ gave less weight to Dr. Gerson’s opinion in part 17 because it had “little in the way of clinical findings to support 18 its conclusion” and “fail[ed] to relate her opinion to either 19 objective findings or specific clinical observations.” (AR 17.) 20 “In fact,” the ALJ continued, “[the] doctor’s own comments in the 21 chart notes are not consistent with the medical source statement 22 supplied.” 23 (Id.) Inconsistency with the medical evidence, including a 24 doctor’s own treatment notes, is a specific and legitimate reason 25 to discount a treating physician’s opinion. See Tommasetti v. 26 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Connett v. Barnhart, 27 340 F.3d 871, 875 (9th Cir. 2003) (physician’s opinion properly 28 rejected when his own treatment notes “provide[d] no basis for 18 1 functional restrictions he opined should be imposed on 2 [plaintiff]”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 3 2001) (ALJ permissibly rejected physician’s opinion when it was 4 “implausible” and “not supported by any findings by any doctor,” 5 including herself). 6 Here, Dr. Gerson opined that Plaintiff could not meet 7 competitive standards “due to auditory hallucinations and 8 paranoia impairing his ability to concentrate, focus, or follow 9 directions that are basic” (AR 412), but in the same opinion, she 10 wrote that he was “oriented x4,” his “insight [was] intact [and] 11 judgement and impulse control [were] adequate,” and his “thought 12 process [was] linear” (AR 410). Her treatment notes also 13 repeatedly show that he responded well to medications and had 14 “intact” cognition and “adequate” “[i]nsight, judgment and 15 impulse control.” (See, e.g., AR 384, 386, 407, 424.) And Dr. 16 Gerson noted numerous times that any hallucinations Plaintiff 17 might have had were exacerbated by his drinking (see, e.g., AR 18 386, 407) but somewhat contradictorily acknowledged in her 19 opinion that his drinking was in remission (see AR 411, 415).17 20 21 22 23 24 25 26 27 28 17 Of course, if Plaintiff had still been drinking and his hallucinations were even in part caused by that drinking, as Dr. Gerson found, he would bear the burden of proving that his alcoholism was not a contributing factor material to any disability determination. See 42 U.S.C. § 423(d)(2)(C) (“An individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner’s determination that the individual is disabled.”); see also 20 C.F.R. § 416.935(a) (same); § 416.935(b)(1) (“The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.”). 19 1 Furthermore, as the ALJ noted, it is not clear that Dr. 2 Gerson ever performed any clinical tests to determine her 3 diagnosis. She diagnosed Plaintiff during her first meeting with 4 him, in August 2014, but made no note of any clinical test 5 results to support her diagnosis. (AR 392-93.) The GAF score of 6 40 she assigned Plaintiff at that first meeting (AR 393) was 7 “only [a] snapshot[] of . . . behavior” at one time, as the ALJ 8 noted (AR 17). Indeed, the score was assessed only a few weeks 9 after Plaintiff began regularly taking mental-health medications, 10 which Dr. Gerson recorded numerous times as working well. 11 e.g., AR 407, 410.) (See, She apparently did not reassess his GAF or 12 conduct any other clinical tests, subjective or objective, after 13 their initial meeting. (See generally AR 384, 386, 407, 424 14 (notes from follow-up appointments showing no evidence of 15 clinical tests).) 16 The doctors who did conduct testing of Plaintiff’s mental 17 status all concluded that he had far fewer limitations than Dr. 18 Gerson assessed. Dr. Simonian conducted a series of tests to 19 evaluate Plaintiff’s condition, the most recent such evaluation 20 in the record. (See generally AR 416-20.) The results showed 21 that Plaintiff had average functioning and only one mild work 22 limitation, as to interacting with others. (AR 418-20.) He had 23 no “active hallucinations” but “occasionally hear[d] his name 24 being called.” (AR 418.) The ALJ gave “some weight” to Dr. 25 Simonian’s opinion, noting that “[t]his assessment [was] 26 generally consistent with the record as a whole” but “the doctor 27 examined [Plaintiff] on a single occasion.” (AR 17.) Dr. Ritvo 28 conducted similar tests, but the ALJ gave “little weight” — less 20 1 than the “less weight” she gave to Dr. Gerson’s opinion — to his 2 opinion that Plaintiff had no functional limitations (AR 307-08) 3 because he “did not review evidence received at the hearing 4 level, which show[ed] [Plaintiff] [was] more limited” (AR 17).18 5 Plaintiff argues that Dr. Simonian’s examining opinion 6 cannot be considered substantial evidence in support of the ALJ’s 7 findings, citing Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 8 2007), because “it is not based on a different diagnosis 9 supported by substantial evidence or findings on an objective 10 medical test not considered by the treating physician.” 11 Stip. at 19-20.) (J. Independent clinical findings are substantial 12 evidence, and they can be either “(1) diagnoses that differ from 13 those offered by another physician and that are supported by 14 substantial evidence or 2) findings based on objective medical 15 tests that the treating physician has not herself considered.” 16 Orn, 495 F.3d at 632 (citations omitted). Though Drs. Simonian 17 and Gerson both diagnosed Plaintiff with a form of depressive 18 disorder (compare AR 419, with AR 410), Dr. Simonian found 19 “Depressive Disorder [Not Otherwise Specified]” (AR 419) and Dr. 20 Gerson diagnosed him with “Major Depressive Disorder recurrent, 21 severe with [p]sychotic features” (AR 410). 22 same diagnoses.19 Those are not the Furthermore, Dr. Simonian’s medical notes 23 18 24 25 Around the same time as Dr. Ritvo’s examination, another doctor declined to diagnose depression after psychometric testing even though Plaintiff complained of “feelings of hopelessness,” depression, and “feeling down.” (See AR 294-96.) 26 19 27 28 Depressive disorder NOS includes “disorders with depressive features that do not meet the criteria for Major Depressive Disorder.” See Depressive Disorders DSM-IV Criteria, Medicine Home Portal, https://www.medicalhomeportal.org/issue/ 21 1 include numerous references to specific tests and evaluations 2 performed (AR 418-19); Dr. Gerson’s medical notes and opinion 3 lack any reference to testing, much less to the same “objective 4 medical tests” that Dr. Simonian performed (see AR 392, 384, 386, 5 407, 423, 410-15). Thus, Dr. Simonian’s opinion constituted 6 substantial evidence on its own and Orn is not to the contrary. 7 See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 8 (ALJ properly rejected treating physician’s opinion in part 9 because examining physician’s contrary opinion “constitute[d] 10 substantial evidence” for so finding, as “it rest[ed] on his own 11 independent examination,” and because treating-source opinion was 12 unsupported by either “treatment notes” or “objective evidence”). 13 Plaintiff notes that Dr. Gerson in fact identified the 14 “clinical findings and the results of the mental status 15 examination” supporting her opinion in her Mental Impairment 16 Questionnaire. (J. Stip. at 7 (citing AR 410).) But she never 17 explained how she arrived at those “clinical findings” other than 18 to note that her assessment that Plaintiff did not have a low IQ 19 was based on a “clinical interview.” (AR 413.) The clinical 20 findings Dr. Gerson listed in her opinion are the same as the 21 treatment notes she recorded at prior appointments with 22 Plaintiff. (See, e.g., id.) She didn’t note any clinical tests 23 to support her assessments at those meetings (see, e.g., AR 407) 24 25 26 27 28 depressive-disorders-dsm-iv-criteria (last visited Oct. 10, 2018). “Major Depressive Disorder, Recurrent,” should be diagnosed only if two or more major depressive episodes occur at least two months apart that cannot be accounted for by specific situations like bereavement, drugs, or general medical conditions. See id. “Severe with psychotic features” is a clinical judgment made by a psychiatrist. See id. 22 1 and she similarly failed to do so in the Mental Impairment 2 Questionnaire (AR 410).20 See Connett, 340 F.3d at 875 3 (physician’s opinion properly rejected when he failed to provide 4 “basis for functional restrictions he opined should be imposed on 5 [plaintiff]”). Moreover, most of her “clinical findings” were 6 benign — Plaintiff was “oriented x4” and “cooperative” and had 7 “intact” “insight” and “judgement”; “adequate” “impulse control”; 8 and “linear” “thought process” — and did not support the extreme 9 limitations she assessed. 10 (See, e.g., AR 410.) Finally, Plaintiff did not have an extensive treatment 11 history with Dr. Gerson. Although the doctor stated on the 12 Mental Impairment Questionnaire that they had had appointments 13 every three months (AR 410; see also AR 51 (Plaintiff testifying 14 in July 2015 that he used to see Dr. Gerson every two months but 15 was then seeing her every four months)), she actually met with 16 him just five times: monthly from August through October 2014 17 (see AR 392, 386, 384) and again in February (AR 407) and July 18 2015 (AR 424). Plaintiff attempted to meet with her on October 19 27, 2014, to get her to fill out Social Security paperwork, but 20 21 20 22 23 24 25 26 27 28 Plaintiff’s reliance on Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (J. Stip. at 7), is misplaced. As an initial matter, unlike in Buck, the ALJ here did not discount Dr. Gerson’s opinion because it was based on Plaintiff’s selfreports. It is true that Buck warns against comparing reports of psychiatrists to reports of other kinds of doctors given the “relative imprecision of the psychiatric methodology.” Id. (citation omitted). But the ALJ here compared Dr. Gerson’s notes and opinion (see generally AR 392, 386, 384, 407, 424, 410-15) to the notes of other psychiatrists in the record and noted the contrast that Dr. Gerson apparently did not conduct routine clinical tests (see, e.g., AR 304-09, 416-21; see also AR 17). Buck in no way prohibits such a comparison. 23 1 he was told he needed to have had one year of treatment history 2 and was sent away. (AR 383.) The limited nature of Dr. Gerson’s 3 treating relationship with Plaintiff entitled the ALJ to give her 4 opinion less weight. See § 416.927(c); see also Orn, 495 F.3d at 5 631 (factors in assessing physician’s opinion include length of 6 treatment relationship, frequency of examination, and nature and 7 extent of treatment relationship). 8 Given the limited number of meetings and the dearth of 9 objective clinical findings underlying Dr. Gerson’s medical 10 opinion, including in her own treatment notes, the ALJ 11 appropriately gave it “less weight.” (AR 17.) See Thomas, 278 12 F.3d at 957; Connett, 340 F.3d at 875. 13 14 2. Brief and conclusory The ALJ noted that Dr. Gerson’s opinion was “brief and 15 conclusory in form.” (AR 17); see also Thomas, 278 F.3d at 957 16 (citation omitted); accord Batson, 359 F.3d at 1195. Generally, 17 medical-opinion evidence based on clinical findings is more 18 persuasive than evidence based on subjective symptom testimony. 19 See Thomas, 278 F.3d at 957. 20 Dr. Gerson’s opinion (AR 410-15) and treatment notes (see, 21 e.g., AR 392, 386, 384, 407, 424) consist of brief and largely 22 repetitive conclusory statements supported primarily, although 23 not exclusively, by Plaintiff’s subjective symptom allegations. 24 But the ALJ found (and Plaintiff does not contest) that his 25 “allegations of disabling symptoms” were “inconsistent” with his 26 “treatment history,” his “reported daily activities,” and the 27 “objective evidence” and merited “less weight.” (AR 15-16.) 28 Indeed, Plaintiff provided inconsistent versions of his relevant 24 1 medical history and symptoms to various examining and treating 2 physicians. For example, he told several practitioners that he 3 had had auditory hallucinations (see, e.g., AR 365, 392) and 4 suffered from alcoholism (see, e.g., AR 50, 370 (“substance 5 abuse”), 392) but he denied to Dr. Ritvo in October 2013 that he 6 had had any “delusions, hallucinations, morbid mood changes,” or 7 “psychosis” and denied having a history of excessive alcohol use 8 (AR 304-05). He also denied to a substance-abuse counselor in 9 August 2014 that he had had auditory or visual hallucinations. 10 (AR 391.) Just five days before Dr. Gerson gave her opinion 11 finding Plaintiff disabled in large part because of his 12 hallucinations, he denied any such hallucinations “at this time” 13 to a nurse practitioner. (AR 423.) Dr. Gerson’s apparent 14 failure to administer any objective diagnostic tests to support 15 the severity of her opinion is particularly problematic in light 16 of the ALJ’s unchallenged discounting of Plaintiff’s subjective 17 symptom credibility. 18 For the Mental Impairment Questionnaire, Dr. Gerson filled 19 out the checklist and provided brief, repetitive, and unsupported 20 statements as explanation or no explanation at all. 21 generally AR 411-15.) (See For example, she marked that Plaintiff had 22 had one or two “[e]pisodes of decompensation within a 12 month 23 period, each of at least two weeks duration,” but no evidence 24 exists in the record or in her notes of any episodes of 25 decompensation during the relevant period. (See AR 414; see also 26 AR 14 (ALJ noting that Plaintiff has “experienced no episodes of 27 decompensation that have been of extended duration”), 417 (Dr. 28 Simonian noting “no past history of psychiatric hospitalization 25 1 or treatment”).) See Van Orsdol v. Colvin, 671 F. App’x 410, 410 2 (9th Cir. 2016) (physician’s opinion properly discounted when it 3 was “unexplained and unsupported by evidence”); see also Molina 4 v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (ALJ may reject 5 opinions that consist “primarily of a standardized, check-the-box 6 form”). Similarly, she ascribed Plaintiff’s extreme limitations 7 in large part to his alleged hallucinations, but she noted 8 elsewhere that the hallucinations were exacerbated by his 9 drinking (see, e.g., AR 386, 407), which, according to her, he 10 had stopped (see AR 411, 415). And as noted, to the extent Dr. 11 Gerson made clinical findings based on her own observations, they 12 were largely benign: Plaintiff was “oriented x4” and 13 “cooperative” and had “intact” “insight” and “judgement,” 14 “adequate” “impulse control,” and “linear” “thought process.” 15 (AR 410.) 16 Because Dr. Gerson’s opinion about Plaintiff’s ability to 17 work did not accord with the general medical record, including 18 her own treatment notes (and appears to have relied primarily on 19 Plaintiff’s inconsistent and unreliable reporting of his 20 symptoms), the ALJ did not err in giving it “less weight.” 21 Furthermore, the ALJ’s finding that Plaintiff was not disabled 22 was justified based on the record as a whole. See Robbins, 466 23 F.3d at 882; see also Reddick, 157 F.3d at 720-21. 24 VI. CONCLUSION 25 Consistent with the foregoing and under sentence four of 42 26 27 28 26 1 U.S.C. § 405(g),21 IT IS ORDERED that judgment be entered 2 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 3 request for remand, and in Defendant’s favor. 4 5 DATED: October 11, 2018 6 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 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.” 27
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