Nathan Kogen v. Nancy A. Berryhill, No. 2:2018cv03518 - Document 30 (C.D. Cal. 2019)
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 document for details.) (sbou)
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Nathan Kogen v. Nancy A. Berryhill Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NATHAN K.,1 Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security,2 15 Defendant. 16 ) Case No. CV 18-3518-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 under 28 U.S.C. § 636(c). 23 the Court on the parties’ Joint Stipulation, filed August 27, The parties consented to the jurisdiction of The matter is before 24 1 25 26 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 27 2 28 Andrew Saul is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 2019, which the Court has taken under submission without oral 2 argument. 3 decision is affirmed. 4 II. 5 For the reasons stated below, the Commissioner’s BACKGROUND Plaintiff was born in 1986. (Administrative Record (“AR”) 6 464.) He has a high-school education and attended some college. 7 (AR 336, 1021.) 8 car dealership, a security officer, and a salesperson. 9 39, 485.) He last worked as an internet sales manager at a (AR 336- On October 21, 2016, he applied for DIB, alleging that 10 he had been unable to work since October 23, 2015, because of 11 depression, anxiety, ADHD, “ankylosing spondylitis,”3 and type- 12 two bipolar disorder. 13 application was denied (AR 379, 382-83), he requested a hearing 14 before an Administrative Law Judge (AR 390-91). 15 held on November 21, 2017, at which Plaintiff, who was 16 represented by counsel, testified, as did a vocational expert. 17 (AR 331-68.) 18 ALJ determined that he was not disabled. 19 22, 2018, the Appeals Council denied his request for review. 20 (AR 1-5.) 21 III. STANDARD OF REVIEW 22 (AR 464, 484.) After Plaintiff’s A hearing was In a written decision issued December 22, 2017, the (AR 15-28.) On March This action followed. Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. The ALJ’s findings and 24 decision should be upheld if they are free of legal error and 25 26 27 28 3 Ankylosing spondylitis is a type of arthritis that causes pain, stiffness, and inflammation in the spine. See Ankylosing Spondylitis (AS), WebMD, https://www.webmd.com/arthritis/ what-is-ankylosing-spondylitis#1 (last visited Sept. 25, 2019). 2 1 supported by substantial evidence based on the record as a whole. 2 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 3 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 4 means such evidence as a reasonable person might accept as 5 adequate to support a conclusion. 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 7 is “more than a mere scintilla but less than a preponderance.” 8 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 9 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence Richardson, 402 U.S. at 401; It “[W]hatever the 10 meaning of ‘substantial’ in other contexts, the threshold for 11 such evidentiary sufficiency is not high.” 12 139 S. Ct. 1148, 1154 (2019). 13 evidence supports a finding, the reviewing court “must review the 14 administrative record as a whole, weighing both the evidence that 15 supports and the evidence that detracts from the Commissioner’s 16 conclusion.” 17 1998). 18 or reversing,” the reviewing court “may not substitute its 19 judgment” for the Commissioner’s. 20 IV. 21 Biestek v. Berryhill, To determine whether substantial Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 22 Security benefits if they are unable to engage in any substantial 23 gainful activity owing to a physical or mental impairment that is 24 expected to result in death or has lasted, or is expected to 25 last, for a continuous period of at least 12 months. 26 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 27 1992). 28 3 42 U.S.C. 1 A. The Five-Step Evaluation Process 2 The ALJ follows a five-step sequential evaluation process in 3 assessing whether a claimant is disabled. 4 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 5 Cir. 1995) (as amended Apr. 9, 1996). 6 Commissioner must determine whether the claimant is currently 7 engaged in substantial gainful activity; if so, the claimant is 8 not disabled and the claim must be denied. 9 20 C.F.R. In the first step, the § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful 10 activity, the second step requires the Commissioner to determine 11 whether the claimant has a “severe” impairment or combination of 12 impairments significantly limiting his ability to do basic work 13 activities; if not, a finding of not disabled is made and the 14 claim must be denied. 15 § 404.1520(a)(4)(ii), (c). If the claimant has a “severe” impairment or combination of 16 impairments, the third step requires the Commissioner to 17 determine whether the impairment or combination of impairments 18 meets or equals an impairment in the Listing of Impairments 19 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 20 1; if so, disability is conclusively presumed and benefits are 21 awarded. § 404.1520(a)(4)(iii), (d). 22 If the claimant’s impairment or combination of impairments 23 does not meet or equal an impairment in the Listing, the fourth 24 step requires the Commissioner to determine whether the claimant 25 has sufficient residual functional capacity (“RFC”)4 to perform 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545(1); see Cooper v. (continued...) 4 1 his past work; if so, the claimant is not disabled and the claim 2 must be denied. 3 burden of proving he is unable to perform past relevant work. 4 Drouin, 966 F.2d at 1257. 5 prima facie case of disability is established. § 404.1520(a)(4)(iv). The claimant has the If the claimant meets that burden, a Id. 6 If that happens or if the claimant has no past relevant 7 work, the Commissioner then bears the burden of establishing that 8 the claimant is not disabled because he can perform other 9 substantial gainful work available in the national economy, the 10 fifth and final step of the sequential analysis. 11 §§ 404.1520(a)(4)(v), 404.1560(b); Drouin, 966 F.2d at 1257. 12 B. The ALJ’s Application of the Five-Step Process 13 At step one, the ALJ found that Plaintiff met the insured 14 status requirements through December 31, 2020, and had not 15 engaged in substantial gainful activity since October 23, 2015. 16 (AR 17.) 17 impairments of “bipolar affective disorder, depressed, without 18 psychotic features; generalized anxiety disorder; attention 19 deficit disorder (ADHD), predominantly inattentive type; 20 ankylosing spondylitis; and cervical spine degenerative disc 21 disease.” 22 At step two, she determined that he had the severe (Id.) At step three, she determined that Plaintiff’s impairments 23 did not meet or equal any of the impairments in the Listing. 24 18-20.) 25 perform light work with additional limitations: At step four, she found that Plaintiff had the RFC to 26 27 4 28 (AR (...continued) Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 [he] can occasionally lift and/or carry 20 pounds and 2 frequently lift and/or carry 10 pounds; occasionally 3 climb ramps and stairs; never climb ladders, ropes, or 4 scaffolds; occasionally stoop, kneel, crouch, and crawl; 5 and can perform simple, routine tasks without any contact 6 with the public, and only occasional, superficial contact 7 with coworkers. 8 (AR 20.) 9 ALJ concluded that Plaintiff was unable to perform his past 10 Based on the testimony of the vocational expert, the relevant work. 11 (AR 26.) At step five, considering Plaintiff’s age, education, work 12 experience, and RFC and the VE testimony, she found that 13 Plaintiff could perform several jobs existing in significant 14 numbers in the national economy. 15 found him not disabled. 16 V. 17 (AR 27.) Accordingly, she (AR 27-28.) DISCUSSION5 Plaintiff contends that the ALJ erred in assessing the 18 opinion of his treating psychologist and in evaluating his 19 subjective symptom statements. 20 the reasons discussed below, remand is not warranted on either (J. Stip. at 4-14, 16-20.) For 21 22 23 24 25 26 27 28 5 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 331-68, 458); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019). 6 1 basis. 2 A. The ALJ Gave a Specific and Legitimate Reason for 3 Discounting the Opinion of Plaintiff’s Treating 4 Psychologist 5 Plaintiff argues that the ALJ improperly discounted the 6 April 2017 opinion of his treating psychologist that his mental 7 impairments resulted in many extreme and marked functional 8 limitations that prevented him from working. 9 14.) 10 As explained below, however, the ALJ appropriately found that Dr. Bell’s opinion merited “little weight.” 1. 11 12 (See J. Stip. at 4- (AR 24.) Applicable law Three types of physicians may offer opinions in Social 13 Security cases: those who directly treated the plaintiff, those 14 who examined but did not treat the plaintiff, and those who did 15 neither. 16 opinion is generally entitled to more weight than an examining 17 physician’s, and an examining physician’s opinion is generally 18 entitled to more weight than a nonexamining physician’s. 19 id.; § 404.1527(c)(1).6 See Lester, 81 F.3d at 830. A treating physician’s See 20 21 22 23 24 25 26 27 28 6 For claims filed on or after March 27, 2017, the rules in § 404.1520c (not § 404.1527) apply. See § 404.1520c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” Id. § 404.1520c(a). Thus, the new regulations eliminate the term “treating source” as well as what is customarily known as the treating-source or treating-physician rule. See id. Plaintiff’s claim was filed before March 27, 2017, and the Court therefore analyzes it under the treating(continued...) 7 1 This is so because treating physicians are employed to cure 2 and have a greater opportunity to know and observe the claimant. 3 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 4 treating physician’s opinion is well supported by medically 5 acceptable clinical and laboratory diagnostic techniques and is 6 not inconsistent with the other substantial evidence in the 7 record, it should be given controlling weight. 8 If it is not given controlling weight, its weight is determined 9 by length of the treatment relationship, frequency of If a § 404.1527(c)(2). 10 examination, nature and extent of the treatment relationship, 11 amount of evidence supporting the opinion, consistency with the 12 record as a whole, the doctor’s area of specialization, and other 13 factors. § 404.1527(c)(2)-(6). 14 When a physician’s opinion is not contradicted by other 15 evidence in the record, it may be rejected only for a “clear and 16 convincing” reason. 17 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 18 830-31). 19 provide only a “specific and legitimate reason” for discounting 20 it. 21 examining physician’s opinion, moreover, depends on whether it is 22 consistent with the record and accompanied by adequate 23 explanation, among other things. 24 Furthermore, “[t]he ALJ need not accept the opinion of any 25 physician, including a treating physician, if that opinion is See Carmickle v. Comm’r, Soc. Sec. Admin., When a doctor’s opinion is contradicted, the ALJ must Id. (citing Lester, 81 F.3d at 830-31). § 404.1527(c)(3)-(6). 26 27 6 28 (...continued) source rule set out in The weight given an § 404.1527. 8 1 brief, conclusory, and inadequately supported by clinical 2 findings.” 3 2002); accord Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 4 1190, 1195 (9th Cir. 2004). 5 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2. 6 7 Relevant background a. Plaintiff’s treating doctors Plaintiff was treated on and off at Azimuth Mental Health 8 from May 26, 2015, through June 21, 2017, totaling almost 20 9 visits.7 (AR 721-31, 957-60.) His initial psychiatric 10 evaluation, in May 2015, listed his “current symptoms” as 11 depressed mood, poor concentration, and “altered” attention span. 12 (AR 729.) 13 anxiety, racing thoughts, or many other symptoms. 14 slept seven hours a day. 15 results — including appearance, behavior, speech, level of 16 consciousness, affect, thought processes, perception, 17 orientation, cognition, judgment, and insight — were all normal 18 or appropriate. 19 wrote “see form” (AR 730), but no such attachment is in the 20 record. 21 Lamictal.8 But he had no fatigue, impairment in functioning, (Id.) (AR 730-31.) (Id.) He Mental-status-examination As to “thought content,” someone He was diagnosed with bipolar disorder and was taking (AR 728, 731.) At all subsequent visits, his mental- 22 23 7 24 25 26 27 28 The treatment notes from Azimuth do not list a provider, but the index in the Administrative Record indicates that they are from “Azimuth Mental Health Assoc.” (See also AR 720.) 8 Lamictal is an antiepileptic medication that is also used to prevent mood swings in adults with bipolar disorder. See Lamictal Tablet, WebMD, https://www.webmd.com/drugs/2/ drug-8486-7217/lamictal-oral/lamotrigine-oral/details (last visited Sept. 25, 2019). 9 1 status-examination results remained within normal limits for all 2 areas assessed. 3 state that by December 21, 2015, he was “doing much better.” 4 724.) 5 April and July 2016 he was “doing well.” (See AR 721-25, 727, 957-60.) Treatment notes (AR On January 20, 2016, his anxiety had increased, but in (AR 722-23.) 6 Plaintiff was admitted to an outpatient treatment program at 7 Community Hospital from February 12 through April 26, 2016, where 8 he attended group therapy, activity therapy, and training and 9 education sessions. (J. Stip. at 7; AR 556-719.) Treatment 10 notes from group therapy indicate that his mood was generally 11 depressed and anxious as well as sometimes labile, guarded, or 12 irritable or sad, always with a congruent affect. 13 558-59, 570-71, 592-94, 607, 609, 623-24, 640-41, 653-55, 666-69, 14 690-92, 710-12.) 15 focused, and responded well to the discussions. 16 556, 558, 574, 592, 599, 607, 623-24, 650.) 17 behavior during the sessions was generally alert and oriented and 18 was frequently “appropriate” and “problem solving.” 19 574, 589, 593-94, 598-600, 603, 611-15, 629-31, 650-51, 667-69, 20 699.) 21 (See, e.g., AR He actively participated in the therapy, was (See, e.g., AR His cognitive (See, e.g., At an individual consultation on March 29, 2016, a 22 registered nurse noted that Plaintiff was “making progress” and 23 that he had recently started taking Vistaril, which was helping 24 his anxiety “throughout the day.”9 (AR 649.) During therapy in 25 26 27 28 9 Vistaril is an antihistamine that is also used short-term to treat anxiety. See Vistaril, WebMD, https://www.webmd.com/ drugs/2/drug-6144/vistaril-oral/details (last visited Sept. 25, 2019). 10 1 April 2016, he shared that he was able to go out with friends, 2 was laughing with the group, and was using coping skills he had 3 learned to manage stress. 4 his goal of attending a family dinner and feeling good about his 5 discharge from the program because he had made “lots of 6 progress.” 7 (AR 699-701.) He also noted meeting (AR 714.) Plaintiff saw psychologist Vera Bell for regular weekly 8 visits beginning in June 2015 through at least April 2017. 9 732-37, 871-74, 886-953.) (AR Her treatment notes indicate that he 10 generally complained of depression, mood swings, and anxiety and 11 occasionally of isolation, anger, problems with his attention 12 span, or physical pain. 13 status-examination notes show that he usually had normal 14 appearance, thought process, and speech but impaired 15 concentration, a depressed and anxious mood, and labile affect. 16 (See id.) 17 he had delusions. 18 rapid speech. 19 same during the course of his treatment — that he continue with 20 outpatient cognitive psychotherapy and see a psychiatrist or 21 specialist for medication. 22 (See AR 887-953.) Dr. Bell’s mental- In July 2015, she twice checked a box indicating that (AR 891-92.) (AR 932.) And in May 2016, she noted his Her treatment plan was consistently the (See AR 887-953.) On November 26, 2016, Dr. Bell completed a mental-disorder 23 questionnaire about him, noting that his chief complaints were 24 shakes, inability to sleep, depression, crying easily, anxiety, 25 headaches, upset stomach, mood swings, poor concentration, and 26 anger. 27 depressed; easily discouraged, upset, and distracted; and 28 “extremely dependent.” (AR 733-37.) She assessed his current mental status as (AR 734-35.) 11 He had a negative attitude 1 and mood swings, but he was oriented to time, place, and person, 2 with no delusions, hallucinations, or paranoid thoughts. 3 In assessing his current level of functioning, Dr. Bell explained 4 that he needed “constant assistance from his parents” with money, 5 paying bills, and maintaining his residence; he had trouble 6 communicating with his father and lacked motivation; he took a 7 long time to complete tasks because of trouble focusing and 8 following directions; and he had lost jobs because of his 9 “disability.” (AR 735-36.) (AR 737.) (Id.) She opined that he was unable to 10 work. She indicated that he was taking Lamictal and 11 bupropion and that he frequently changed his medications.10 12 737.) (AR 13 On April 15, 2017, Dr. Bell completed a medical-source 14 statement concerning Plaintiff’s ability to do work-related 15 activities. 16 limitations in the following areas: making judgments on simple 17 and complex work-related decisions, performing at a consistent 18 pace without more than regular breaks in a workday, interacting 19 appropriately with supervisors and coworkers, sustaining an 20 ordinary routine without special supervision, and responding 21 appropriately to changes in a routine work setting.11 (AR 868-70.) She assessed him with “[e]xtreme” (AR 868- 22 23 24 25 26 27 28 10 Bupropion treats depression by helping restore the balance of neurotransmitters in the brain. See Bupropion Hcl, WebMD, https://www.webmd.com/drugs/2/drug-13507-155/ bupropion-hcl-oral/bupropion-oral/details (last visited Sept. 25, 2019). 11 The assessment form defines an “[e]xtreme” limitation as “major,” with “no useful ability to function in th[at] area.” (AR 868.) A “[m]arked” limitation “seriously interferes with the (continued...) 12 1 69.) He had “[m]arked” limitations in carrying out short, simple 2 instructions; understanding, remembering, and carrying out 3 detailed instructions; and maintaining attendance and punctuality 4 during a workday and workweek. 5 limitations in interacting appropriately with the public and 6 “[s]light” limitations in understanding and remembering short, 7 simple instructions. 8 from that day indicate that he was easily discouraged, upset, and 9 distracted and unable to find a way of resolving his emotional He had “[m]oderate” Mental-status-examination results 10 issues. 11 oriented to time, place, and person. 12 (AR 872.) (Id.) (Id.) But he was cooperative, pleasant, and (Id.) On April 5, 2017, Plaintiff was admitted to a 14- to 21-day 13 “partial hospitalization” outpatient program at College Hospital, 14 where he complained of increased depression, anxiety, 15 distraction, and trouble sleeping. 16 stated that he was “constantly depressed” because his “fiancee 17 left” and he was having “financial issues.” 18 reported taking Wellbutrin, Lamictal, and Latuda.12 (AR 1021-22, 1110.) (AR 1052.) He He (AR 1021.) 19 20 21 22 23 11 (...continued) ability to function independently, appropriately, effectively, and on a sustained basis.” (Id.) A “[m]oderate” limitation is “signifcant” and means that “[d]eficiencies could not be ignored by a supervisor, coworker, peer, or the public.” (Id.) And a “[s]light” limitation means “some mild limitations . . . but the individual can generally function well.” (Id.) 24 12 25 26 27 28 Wellbutrin is name-brand bupropion. See Wellbutrin, WebMD, https://www.webmd.com/drugs/2/drug-13509/wellbutrin-oral/ details (last visited Sept. 25, 2019). Latuda is used to treat certain mood disorders, such as schizophrenia or depression associated with bipolar disorder. See Latuda, WebMD, https:// www.webmd.com/drugs/2/drug-155134/latuda-oral/details (last (continued...) 13 1 Psychiatrist James Pratty performed a psychiatric and mental- 2 status examination when Plaintiff was admitted, and results show 3 that he was within normal limits in all categories except that 4 his mood was “slightly anxious and depressed” and he had “mild to 5 moderate ease of distractibility.” 6 bipolar affective order, depressed, without psychotic features, 7 cannabis dependence, methamphetamine dependence, generalized 8 anxiety disorder, and ADHD.13 9 (AR 1021-22.) He diagnosed (AR 1022.) Dr. Pratty made progress notes every few days during 10 Plaintiff’s treatment at College Hospital, and they indicate that 11 he remained somewhat anxious and preoccupied and “at times” was 12 “somewhat easily overwhelmed.” 13 1080, 1085, 1089, 1096.) 14 (AR 1064, 1073, 1080, 1089, 1096) and was “oriented to person, 15 place, time and purpose” (AR 1065, 1076, 1085, 1093). 16 21, 2017, a therapist conducted a “psychosocial evaluation” and 17 concluded that he “ha[d] adequate functioning and [would] benefit 18 from [the] program by learning coping skills, medication, [and] 19 symptom management.” 20 the program on May 5, 2017, at his own request, and records show 21 he was deemed “non-compliant with attendance.” 22 b. (See AR 1064-65, 1073, 1076, But he was sleeping “reasonably well” (AR 1042.) On April Plaintiff was discharged from (AR 1020, 1106.) Examiners and reviewers 23 24 25 26 27 28 12 (...continued) visited Sept. 25, 2019). 13 The ALJ found that Plaintiff’s statements at the hearing and in the record about methamphetamine and cannabis use established that any impairments from dependence on those substances were “nonsevere.” (AR 18.) Plaintiff has not challenged that finding. 14 1 On February 10, 2016, psychologist Robert J. Craig performed 2 a “Millon Clinical Multiaxial Inventory II/III” on Plaintiff. 3 (AR 859-66.) 4 depression that were not enough to impair daily functioning and 5 “[p]ossible” diagnoses of generalized anxiety, dysthymic, and 6 other disorders. 7 His report noted “mild” cognitive dysfunction and (AR 862, 864-65.) On January 3, 2017, consulting psychiatrist Ernest A. Bagner 8 performed a complete psychiatric evaluation of Plaintiff, who 9 complained of depression, anxiety, ADHD, mood swings, low 10 motivation and energy, and feelings of helplessness and 11 hopelessness. 12 Wellbutrin, Lamictal, Adderall, and Seroquel.14 13 Mental-status-examination results show that he was within normal 14 or appropriate limits in all areas except that his mood was a 15 “little sad.” 16 deficit disorder and bipolar disorder in remission, with a GAF 17 score of 70.15 (AR 790-94.) (AR 792-93.) (AR 793.) He indicated that he was taking (AR 791.) Dr. Bagner diagnosed attention He assessed Plaintiff with no 18 19 20 21 22 23 14 Adderall is a stimulant used to treat ADHD. See Adderall, WebMD, https://www.webmd.com/drugs/2/drug-63163/ adderall-oral/details (last visited Sept. 25, 2019). Seroquel is used to treat certain mental or mood conditions, such as schizophrenia, bipolar disorder, or sudden episodes of mania or depression associated with bipolar disorder. See Seroquel, WebMD, https://www.webmd.com/drugs/2/drug-4718/ seroquel-oral/details (last visited Sept. 25, 2019). 24 15 25 26 27 28 GAF scores assess a person’s overall psychological functioning on a scale of 1 to 100. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). A GAF score of 61 to 70 indicates “some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning . . . but generally (continued...) 15 1 2 functional limitations at all. (Id.) On February 13, 2017, Dr. L. Mallare reviewed Plaintiff’s 3 medical history and diagnosed him with ADHD and depressive, 4 bipolar, and related disorders.16 5 limitations in all areas of functioning. 6 7 3. (AR 374.) He found only mild (AR 375.) Analysis Unlike Dr. Bell, Drs. Bagner and Craig assessed Plaintiff 8 with no functional limitations (AR 793, 864-65), and the ALJ 9 assigned Dr. Bagner’s opinion “[g]reat weight” (AR 23).17 10 Because Dr. Bell’s April 2017 opinion was contradicted, the ALJ 11 needed to provide only a “specific and legitimate reason” for 12 15 13 14 15 16 17 18 19 20 21 22 (...continued) functioning pretty well, has some meaningful interpersonal relationships.” Id. at 34. The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 5076465 (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, DSM-V at 16 (5th ed. 2013). 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) (citation omitted). Here, the ALJ gave “little weight” to the GAF ratings in the record. (AR 25.) 23 16 24 25 26 27 28 Dr. Mallare used a medical-specialty code of “37” (see AR 374), which indicates that he is a psychiatrist. See Soc. Sec. Admin. Program Operations Manual System (POMS) DI 24501.004, https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (last updated May 5, 2015). 17 The ALJ rejected Dr. Craig’s “‘possible’ diagnoses” but did not evaluate his finding that Plaintiff’s “daily functioning” was not impaired. (AR 22.) 16 1 discounting it. 2 81 F.3d at 830-31). 3 is not warranted on this basis. 4 5 See Carmickle, 533 F.3d at 1164 (citing Lester, a. As explained below, she did so, and remand Inconsistency with record evidence The ALJ found that Dr. Bell’s April 2017 opinion was 6 “generally inconsistent with the evidence of record as a whole,” 7 including mental-status examinations from Azimuth Mental Health 8 and Dr. Bagner and with Dr. Bell’s own progress notes. 9 Inconsistency with the medical evidence, including a doctor’s own (AR 24.) 10 treatment notes, is a specific and legitimate reason to discount 11 a treating physician’s opinion. 12 F.3d 1035, 1041 (9th Cir. 2008); Connett v. Barnhart, 340 F.3d 13 871, 875 (9th Cir. 2003) (physician’s opinion was properly 14 rejected when his own treatment notes “provide[d] no basis for 15 the functional restrictions he opined should be imposed on 16 [plaintiff]”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 17 2001) (ALJ permissibly rejected physician’s opinion when it was 18 “implausible” and “not supported by any findings made by any 19 doctor,” including herself). 20 See Tommasetti v. Astrue, 533 The records from Azimuth indicate that at each of nearly 20 21 visits spanning a 25-month period, including those noted by the 22 ALJ, Plaintiff’s mental-status-examination results were within 23 normal limits.18 (See AR 22-23 (citing AR 721-25); AR 727, 729, 24 25 26 27 28 18 Plaintiff complains that the ALJ gave an incorrect citation to the Azimuth records containing normal results of his mental-status examinations. (J. Stip. at 12.) But that typographical error has no significance because, as he concedes, the test results were normal at all his visits to Azimuth, (continued...) 17 1 957-60.) And as the ALJ pointed out, Dr. Bagner’s January 3, 2 2017 psychiatric evaluation also showed entirely normal mental- 3 status-examination results except that Plaintiff’s mood was a 4 “little sad.” 5 February 2016 assessment found only mild cognitive dysfunction 6 and impairment, with Plaintiff reporting no impact on his daily 7 functioning. 8 Dr. Bell’s April 2017 opinion as inconsistent with the largely 9 normal mental-status-examination results of record. (AR 23 (citing 792-93).) (AR 865.) Similarly, Dr. Craig’s Thus, the ALJ appropriately discounted See Shultes 10 v. Berryhill, 758 F. App’x 589, 591-92 (9th Cir. 2018) (finding 11 that ALJ appropriately rejected two doctors’ opinions of 12 claimant’s functional limitations because they were inconsistent 13 with normal mental-status-examination results); Scott v. 14 Berryhill, No. C17-1452-JPD, 2018 WL 2298638, at *6 (W.D. Wash. 15 May 21, 2018) (inconsistency between doctor’s opinion of 16 plaintiff’s severe and marked functional limitations and 17 longitudinal record showing mostly normal mental-status 18 examinations was specific and legitimate reason for rejecting 19 that opinion). 20 limitations even approaching Dr. Bell’s. 21 Indeed, no other doctor assessed mental The ALJ noted much other evidence that is inconsistent with 22 the severe functional limitations assessed by Dr. Bell. (See AR 23 19, 22-26.) 24 February 2016 that he was having only “some mild signs of 25 depression” that were not “severe enough to impair his daily For example, Plaintiff reported to Dr. Craig in 26 27 28 18 (...continued) spanning well before and after his outpatient “hospitalizations.” (See AR 721-25, 727, 729, 730-31, 957-60.) 18 1 functioning.” (AR 22 (citing AR 859-66).) 2 examination results during his treatment at Community Hospital 3 show that even when depressed and anxious, he was well-oriented 4 and had adequate judgment, intact memory, good eye contact, clear 5 speech, a neat and clean appearance, and no hallucinations or 6 delusions. 7 Bagner assessed Plaintiff with no functional limitations at all. 8 (AR 23 (citing AR 790-96).) 9 evidence and Dr. Bell’s opinion of Plaintiff’s many extreme or (AR 22 (citing AR 575-78).) Mental-status- And in January 2017, Dr. The inconsistency between this 10 marked functional limitations was a specific and legitimate 11 reason for discounting that opinion. 12 692 F. App’x 868, 869 (9th Cir. 2017) (finding doctor’s opinion 13 assessing functional limitations inconsistent with treatment 14 notes and objective findings that were within normal limits, 15 which was specific and legitimate reason for assigning it “little 16 weight”); Baker v. Colvin, Case No.: 16-cv-01048-CAB(JMA), 2017 17 WL 2889302, at *10-11 (S.D. Cal. July 7, 2017) (ALJ properly 18 discounted treating psychiatrist’s opinion on plaintiff’s mental 19 limitations as inconsistent with clinical findings by examining 20 psychiatrist, who found no significant cognitive defects), 21 accepted by 2017 WL 3457189 (S.D. Cal. Aug. 11, 2017). 22 See Maestas v. Berryhill, The ALJ also permissibly discounted Dr. Bell’s opinion on 23 Plaintiff’s mental limitations because it was inconsistent with 24 her own progress notes. 25 (treating physician’s opinion properly rejected when treatment 26 notes “provide[d] no basis for the functional restrictions he 27 opined should be imposed on [claimant]”); Rollins, 261 F.3d at 28 856 (ALJ properly rejected treating physician’s opinion that was (AR 24); see Connett, 340 F.3d at 875 19 1 contradicted by or inconsistent with treatment reports). 2 explained, Dr. Bell’s “progress notes since 2015 indicat[e that 3 Plaintiff] was generally within normal limits on all of his 4 mental status examinations, with the exception of a depressed, 5 labile, and anxious mood.” 6 Bell assessed him in April 2017 as entirely unable to function in 7 seven areas, including making judgments on even “simple work- 8 related decisions” and having any appropriate interaction at all 9 with coworkers. 10 11 (AR 24 (citing AR 886-953).) (See AR 868-89.) As she Yet Dr. Her progress notes hardly suggest that level of functional restriction. Plaintiff contends that Dr. Bell’s progress notes were not 12 generally within normal limits and thus support the functional 13 limitations she assessed in April 2017. 14 all of her progress notes during the relevant period indicate at 15 most that he was anxious and depressed, with a labile affect and 16 sometimes impaired concentration. 17 953.) 18 the RFC, limiting him to simple, routine tasks, no contact with 19 the public, and limited contact with coworkers, findings he does 20 not challenge. 21 F.3d 1169, 1173-74 (9th Cir. 2008) (finding that ALJ properly 22 translated moderate mental limitations assessed by one doctor 23 into “concrete restriction[]” of limitation to “simple tasks”); 24 Schaefer v. Colvin, No. 6:13-cv-00157-JE., 2014 WL 468915, at *7- 25 8 (D. Or. Feb. 3, 2014) (finding RFC limiting plaintiff to work 26 requiring no close contact with general public, only occasional 27 interaction with coworkers, and no more than simple, repetitive 28 tasks adequately accounted for his mental impairments, including (J. Stip. at 9-11.) But (See AR 733-37, 871-74, 886- The ALJ noted these impairments and accounted for them in (AR 20, 26); see Stubbs-Danielson v. Astrue, 539 20 1 depression, anxiety, and cognitive disorder). 2 notes, Dr. Bell twice indicated that he was having delusions. 3 (J. Stip. at 11 (citing AR 891-92 (July 13 and 21, 2015 progress 4 notes)).) 5 before the October 23, 2015 onset date and never resumed. 6 Carmickle, 533 F.3d at 1165 (opinion issued before onset date is 7 of “limited relevance”).19 8 9 As Plaintiff But those alleged delusions happened several months See Plaintiff further contends that the ALJ failed to consider the entire record and ignored other evidence showing that his 10 condition had at times deteriorated, including records from his 11 treatment at Community and College hospitals. 12 11-12.) 13 administrative record as a whole, weighing both the evidence that 14 supports and the evidence that detracts from the Commissioner’s 15 conclusion.” 16 She gave a detailed recitation of the mental-health evidence and 17 carefully considered all of it. 18 explicitly weighed treatment notes from his participation in the 19 programs at both hospitals. 20 (citing AR 1021-22).) 21 indicated that he was anxious, depressed, and distracted, mental- 22 status-examination results from there were generally within (J. Stip. at 7-8, He is correct that an ALJ must “review the Reddick, 157 F.3d at 720. But the ALJ did so here. (See AR 19-26.) Indeed, she (See AR 22 (citing AR 575-78), 24-25 Although the notes from College Hospital 23 24 25 26 27 28 19 Moreover, as Defendant argues (see J. Stip. at 16), the ALJ was entitled to reject Dr. Bell’s opinion to the extent it was premised on Plaintiff’s subjective complaints, which, as explained below, she properly discounted. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (when ALJ properly discounted claimant’s credibility, he was “free to disregard” doctor’s opinion that was premised on claimant’s subjective complaints). 21 1 normal limits. 2 although he had an anxious mood upon admission to the program at 3 Community Hospital, those mental-status-examination results were 4 all within normal limits also. 5 Even if Plaintiff had been disabled during those short periods 6 immediately before and when he participated in the outpatient 7 programs, that would not satisfy the 12-month requirement of 8 § 423(d)(i)(A). 9 (See AR 24-25 (citing AR 1021-22).) Similarly, (See AR 22 (citing AR 575-78).) To the extent Plaintiff claims the ALJ erred by making a 10 “conclusory statement” that Dr. Bell’s opinion was inconsistent 11 with the record as a whole, he is mistaken. 12 explained above, the ALJ pointed to much specific evidence that 13 was inconsistent with Dr. Bell’s opinion. 14 she did not expressly compare and contrast each and every piece 15 of evidence with Dr. Bell’s findings is not significant, as the 16 Court may draw logical inferences from the ALJ’s opinion. 17 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 18 b. 19 20 (J. Stip. at 7.) (See AR 19-26.) As That See Dr. Bell’s conservative treatment recommendations The ALJ found that Dr. Bell’s “own conservative course of 21 treat[ing]” Plaintiff was another reason for giving her April 22 2017 opinion little weight. 23 to reject a treating provider’s opinion. 24 at 856. 25 Stip. 8-9), Dr. Bell provided weekly cognitive psychotherapy for (AR 24.) But it does not apply here. 26 27 28 22 This can be a valid reason See Rollins, 261 F.3d As Plaintiff points out (J. 1 over two years.20 2 explain what additional treatment she, a licensed psychologist 3 but not a physician, could have provided. 4 Comm’r, Soc. Sec. Admin., No. 3:17-cv-774-SI, 2018 WL 3090196, at 5 *10 (D. Or. June 20, 2018) (finding that ALJ erred in rejecting 6 therapist’s opinion as inconsistent with her conservative 7 treatment of plaintiff when it was unclear that she could have 8 provided plaintiff with any more intensive treatment). 9 (See AR 737, 886-953.) The ALJ failed to See Tammy L.O. v. In addition, considering the treatment Plaintiff received 10 from all his providers since the alleged onset in October 2015 — 11 weekly therapy, psychiatric care, various psychiatric 12 medications, and two outpatient hospitalizations — his overall 13 care was not routine or conservative. 14 Berryhill, No. ED CV 17-254-SP, 2019 WL 1330314, at *6 (C.D. Cal. 15 Mar. 25, 2019) (finding treatment not conservative when plaintiff 16 attended monthly psychiatric sessions and took psychotropic 17 medications); Tammy L.O., 2018 WL 3090196, at *13 (finding that 18 ALJ erred in characterizing treatment as conservative when 19 plaintiff was in therapy, took various medications for anxiety 20 and depression, and underwent three intensive outpatient 21 hospitalizations). See Delores A. v. 22 Thus, the ALJ’s rejection of Dr. Bell’s opinion based on her 23 “conservative course of treatment” for Plaintiff is not supported 24 25 26 27 28 20 Plaintiff claims that Dr. Bell managed his medication. (See J. Stip. at 9 (citing AR 749, 871, 874).) But her notes indicate that a psychiatrist was doing that (see AR 871 (“medication management by psychiatrist”)), and Plaintiff previously stated that also (see AR 546 (Dr. Pratty worked with Plaintiff to monitor and adjust medication)). 23 1 by substantial evidence. 2 valid reason supported by substantial evidence for rejecting it — 3 its inconsistency with other evidence — her erroneous 4 conservative-treatment rationale was harmless. 5 B. 6 7 (AR 24.) But because she stated a The ALJ Did Not Err in Discounting Plaintiff’s Subjective Symptom Statements Plaintiff claims that the ALJ failed to articulate a clear 8 and convincing reason for rejecting his testimony about his 9 mental-impairment symptoms. 10 As explained below, remand is not warranted on this basis. 1. 11 12 (J. Stip. at 16-20.) Applicable law An ALJ’s assessment of a claimant’s allegations concerning 13 the severity of his symptoms is entitled to “great weight.” 14 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 15 (citation omitted); see Nyman v. Heckler, 779 F.2d 528, 531 (9th 16 Cir. 1985) (as amended Feb. 24, 1986). 17 ‘required to believe every allegation of disabling pain, or else 18 disability benefits would be available for the asking, a result 19 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 20 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 21 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 22 “[T]he ALJ is not Molina v. In evaluating a claimant’s subjective symptom testimony, the 23 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 24 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 25 2016).21 “First, the ALJ must determine whether the claimant has 26 27 28 21 The Commissioner applies SSR 16-3p to all “determinations and decisions on or after March 28, 2016.” Soc. (continued...) 24 1 presented objective medical evidence of an underlying impairment 2 [that] ‘could reasonably be expected to produce the pain or other 3 symptoms alleged.’” 4 omitted). 5 not reject a claimant’s testimony “simply because there is no 6 showing that the impairment can reasonably produce the degree of 7 symptom alleged.” 8 original). 9 Lingenfelter, 504 F.3d at 1036 (citation If such objective medical evidence exists, the ALJ may Smolen, 80 F.3d at 1282 (emphasis in If the claimant meets the first test, the ALJ may discount 10 the claimant’s subjective symptom testimony only if she makes 11 specific findings that support the conclusion. 12 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 13 affirmative evidence of malingering, the ALJ must provide a 14 “clear and convincing” reason for rejecting the claimant’s 15 testimony. See Berry v. Absent a finding or Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 16 17 18 19 20 21 22 23 24 25 26 21 (...continued) Sec. Admin., Policy Interpretation Ruling, SSR 16-3p n.27, https://www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html (last visited Sept. 25, 2019). Thus, it applies here. Though the new ruling eliminates the term “credibility” and focuses on “consistency” instead, id., Plaintiff refers to credibility (see J. Stip. at 18), and much of the relevant case law uses that language too. But as the Ninth Circuit has clarified, 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. 27 28 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 25 1 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 2 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 3 Cir. 2014). 4 claimant’s reputation for truthfulness, prior inconsistent 5 statements, and other testimony by the claimant that appears less 6 than candid; (2) unexplained or inadequately explained failure to 7 seek treatment or to follow a prescribed course of treatment; (3) 8 the claimant’s daily activities; (4) the claimant’s work record; 9 and (5) testimony from physicians and third parties. The ALJ may consider, among other factors, (1) the Rounds v. 10 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 11 amended); Thomas, 278 F.3d at 958-59. 12 a plaintiff’s alleged symptoms is supported by substantial 13 evidence in the record, the reviewing court “may not engage in 14 second-guessing.” 15 If the ALJ’s evaluation of Thomas, 278 F.3d at 959. Contradiction with the medical record is a “sufficient 16 basis” for rejecting a claimant’s subjective symptom testimony. 17 Carmickle, 533 F.3d at 1161; see also Morgan v. Comm’r of Soc. 18 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (finding that 19 “conflict between [plaintiff’s] testimony of subjective 20 complaints and the objective medical evidence in the record” was 21 “specific and substantial” reason undermining statements). 22 it “cannot form the sole basis for discounting pain testimony.” 23 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins, 24 261 F.3d at 857 (citing then-current version of 25 § 404.1529(c)(2)). 26 27 28 2. But Plaintiff’s statements Plaintiff completed a function report on November 15, 2016. (AR 500-08.) He described his “memory and concentration issues” 26 1 as making it “very hard” for him to be productive. (AR 500.) 2 During the day he had coffee, took care of his dog, read, played 3 instruments, took care of his hygiene, cooked, spent time with 4 his girlfriend, watched television, and went to bed. 5 He indicated no problems with personal care, such as dressing, 6 bathing, shaving, feeding himself, or using the toilet. 7 He needed reminders for hygiene and to take his medicine. 8 502.) 9 four or five days a week. (AR 501.) (Id.) (AR He prepared full meals, such as soup, pasta, and chili, (Id.) He cleaned and did laundry, He drove a car twice a 10 yard work, and household repairs. (Id.) 11 week when he went out. He shopped in stores one or 12 two times a week, but he had impulsive spending habits and was 13 disorganized. 14 dinner, and once or twice a month he went to his parents’ house. 15 (AR 504.) 16 He followed written and spoken instructions well, but he had 17 trouble when criticized. 18 and became overly aggressive. 19 physical impairments made sleep difficult. 20 (Id.) (AR 503.) Once a week he went to “others’ houses” for His anxiety made social interaction stressful. (AR 505-06.) (Id.) He handled stress poorly (AR 506.) Depression and his (AR 507.) Plaintiff testified at the November 21, 2017 hearing about 21 the symptoms from his mental impairments that limited his ability 22 to work. 23 not make phone calls or deal with conflict, and he stopped 24 working at two jobs because of it. 25 concentration problems. 26 phase of his bipolar disorder he was unpredictable, and when he 27 was in a depressive state he became unproductive and had trouble 28 maintaining good hygiene, which made it hard to leave the house. (AR 340-50.) His anxiety was so severe that he could (AR 340.) (AR 341-42.) 27 His ADHD caused When he was in a manic 1 (AR 341.) 2 tweaking.” 3 watched television, napped, and stretched. 4 lost weight from depression and arthritis pain. 5 lawyer observed that during his testimony his hands and legs 6 shook and his voice trembled from anxiety. 7 8 9 He took bipolar medication, which he was “always (AR 344.) 3. At home, he read, went on the internet, (AR 345-46.) He had (AR 346.) His (AR 342, 346.) Analysis Plaintiff claims that the ALJ improperly rejected his subjective symptom statements because she merely recited 10 boilerplate and then summarized the medical evidence without 11 specifically identifying the statements she found not credible or 12 what evidence undermined them. 13 explained below, however, he is mistaken. 14 her decision shows that she outlined specific inconsistencies 15 between his subjective symptom statements and the objective 16 medical evidence and his activities of daily living. 17 21-26.) 18 (J. Stip. at 16-20.) As A careful reading of (See AR 19, Plaintiff relies on Brown-Hunter to argue that the ALJ did 19 not give sufficiently specific reasons for rejecting his 20 statements. 21 reject his claims of mental impairments. 22 symptom statements “not entirely consistent” with the evidence, 23 which indicates that she gave them some weight. 24 Indeed, she tailored the RFC to his claims of poor concentration 25 and anxiety around people, limiting him to “simple, routine 26 tasks” and “[no] contact with the public, and only occasional, 27 superficial contact with coworkers.” 28 (J. Stip. at 18-20.) First, the ALJ did not fully Rather, she found his (AR 20.) Second, Brown-Hunter is distinguishable. 28 (AR 21.) In that case, the 1 ALJ “stated only that she found, based on unspecified claimant 2 testimony and a summary of medical evidence, that ‘the functional 3 limitations from the claimant’s impairments were less serious 4 than she ha[d] alleged.’” 5 The Ninth Circuit held that the ALJ’s analysis was erroneous, 6 noting that it could not “discern the agency’s path because the 7 ALJ made only a general credibility finding without providing any 8 reviewable reasons why she found [the claimant’s] testimony to be 9 not credible.” 10 806 F.3d at 493 (citation omitted). Id. at 494. Here, the ALJ did not make “only a general credibility 11 finding without providing any reviewable reasons for doing so.” 12 Id. 13 symptom statements in the November 2016 function report were 14 inconsistent with his activities of daily living and the 15 objective medical records. 16 statement in the function report that he was self-conscious 17 around family and strangers was inconsistent with his revelation 18 in group therapy just a few months later that he had attended his 19 niece’s birthday party at a restaurant and was able “to be around 20 others and engage appropriately.” 21 Bagner in January 2017 that he had a good relationship with 22 family and a fair one with friends. 23 And he acknowledged in his November 2016 function report that he 24 went to nonfamily members’ homes once a week for dinner and 25 regularly shopped in stores. 26 also found that although he claimed in the report to have reduced 27 memory and concentration, he was able to repeat three digits 28 forward and backward, perform serial sevens and threes, and spell Rather, she carefully outlined how Plaintiff’s subjective (See AR 19.) (Id.) She noted that his Similarly, he told Dr. (Id. (citing AR 790-96).) (Id. (citing AR 503-04).) 29 The ALJ 1 the word “music” forward and backward at his examination with Dr. 2 Bagner. 3 expressly linking specific statements in the function report to 4 particular pieces of inconsistent evidence, is significantly more 5 than the “conclusory statement” and summary of medical evidence 6 found wanting in Brown-Hunter. (AR 19 (citing AR 790-96).) This level of specificity, 806 F.3d at 493. The ALJ also satisfied Brown-Hunter by discussing 7 8 Plaintiff’s subjective symptom testimony at the hearing and the 9 specific evidence that was inconsistent with it. (See AR 21-26.) 10 She recounted his testimony, then immediately found that the 11 statements were “not entirely consistent with the medical 12 evidence and other evidence in the record, for the reasons 13 explained in this decision.” 14 explanation of the reasons supporting that conclusion, even using 15 the signpost “[f]or instance” to start the discussion. 16 26.) 17 mental-status-examination results from Azimuth, Dr. Bagner, 18 Community Hospital, and College Hospital (AR 22-24 (citing AR 19 575-78, 721-25, 792-93, 1021-22)); (2) his report to Dr. Craig in 20 February 2016 that he was having only “some mild signs of 21 depression” that were not “severe enough to impair his daily 22 functioning” (AR 22 (citing AR 858-66)); and (3) Dr. Bagner’s 23 assessment in January 2017 that he had no functional limitations 24 at all (AR 23 (citing AR 790-96)). 25 discussed above,” Plaintiff’s “subjective complaints” were 26 “inconsistent with the medical evidence of record,” which did not 27 support “the alleged severity of [his] symptoms.” 28 (AR 21.) She then began a detailed (AR 21- As explained above in section V.A, she noted (1) the normal She then concluded that “[a]s (AR 26.) Although that portion of the decision could have more 30 1 clearly linked the contrary evidence to each inconsistent 2 statement, both the structure and substance of it allow the Court 3 to “reasonably discern” the ALJ’s path. 4 Sec. Admin., No. 2:16–cv–01373–HZ, 2017 WL 1927926, at *6-7 (D. 5 Or. May 10, 2017) (finding claimant’s reliance on Brown–Hunter 6 “unavailing” for similar reason); see also Fisher v. Berryhill, 7 No. 1:17-cv-01189-GSA, 2018 WL 5979457, at *8 (E.D. Cal. Nov. 14, 8 2018) (distinguishing Brown-Hunter when “ALJ did not simply 9 summarize medical records but considered the interaction between Despinis v. Comm’r Soc. 10 the medical evidence of record and Plaintiff’s corresponding pain 11 and dysfunction”); Jones v. Colvin, No. 15-cv-01900-WHO, 2016 WL 12 1461945, at *6-7 (N.D. Cal. Apr. 14, 2016) (rejecting plaintiff’s 13 claim that ALJ did not give sufficiently specific reasons under 14 Brown-Hunter for discrediting his subjective symptom testimony 15 because, although “the ALJ did not specifically address” 16 plaintiff’s claims about certain limitations, “her decision as a 17 whole provide[d] adequately specific, clear, and convincing 18 reasons for rejecting [his] subjective testimony about his 19 disabling limitations” (emphasis in original)). 20 The ALJ identified two clear and convincing reasons for 21 partially rejecting Plaintiff’s symptom statements — their 22 inconsistency with objective evidence and with some activities of 23 daily living. 24 Rounds, 807 F.3d at 1006. 25 same place in the decision, there is no requirement that she 26 structure her analysis in any particular format. 27 Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (finding that 28 ALJ did not err by placing support for step-three determination (See AR 19, 21-26); Carmickle, 533 F.3d at 1161; Although they do not appear in the 31 See, e.g., 1 elsewhere in decision).22 2 Accordingly, remand is not warranted on this basis. 3 4 5 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 6 U.S.C. § 405(g),23 IT IS ORDERED that judgment be entered 7 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 8 request for remand, and DISMISSING this action with prejudice. 9 10 DATED: September 27, 2019 11 ______________________________ JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 22 21 22 23 24 25 26 27 28 Plaintiff also takes issue with the ALJ’s failure to discuss his work history as a factor in assessing his credibility. (J. Stip. at 20.) But “in interpreting the evidence and developing the record, the ALJ does not need to ‘discuss every piece of evidence.’” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation omitted); see also Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (per curiam). 23 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.” 32
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