Tanya Canterbury v. Carolyn W Colvin, No. 5:2015cv01974 - Document 23 (C.D. Cal. 2016)

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

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Tanya Canterbury v. Carolyn W Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TANYA CANTERBURY, 12 Plaintiff, 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 16 Defendant. 17 18 19 I. ) Case No. EDCV 15-1974-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed July 15, 2016, which the Court has taken under submission 26 without oral argument. 27 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, the 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1971. (Administrative Record (“AR”) 3 163.) 4 (AR 192, 240) and worked in a cafeteria and a deli (AR 192). 5 She completed either the ninth (AR 408, 423) or 10th grade On March 21, 2012, Plaintiff filed for DIB and SSI, alleging 6 that she had been unable to work since March 1, 2012 (AR 240), 7 because of knee and general bone and body pain, a traumatic brain 8 injury, memory loss, depression, internal abdominal bleeding, 9 nerve damage in her legs, “arms pull[ing] out of socket all the 10 time,” a lack of stability and balance, a speech impairment, 11 headaches, and numbness in her hands and arms (AR 191). 12 her applications were denied initially and on reconsideration, 13 she requested a hearing before an Administrative Law Judge. 14 83-84, 109-110, 128.) 15 at which Plaintiff, who was represented by counsel, testified, as 16 did a vocational expert. 17 April 18, 2014, the ALJ found Plaintiff not disabled. 18 On April 27, 2014, Plaintiff requested review by the Appeals 19 Council, which denied the request on July 30, 2015. 20 12.) 21 III. STANDARD OF REVIEW 22 After (AR A hearing was held on February 21, 2014, (AR 31.) In a written decision issued (AR 13.) (AR 1-3, This action followed. Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. 24 decision should be upheld if they are free of legal error and 25 supported by substantial evidence based on the record as a whole. 26 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 27 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 28 evidence means such evidence as a reasonable person might accept 2 The ALJ’s findings and Substantial 1 as adequate to support a conclusion. Richardson, 402 U.S. at 2 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 3 It is more than a scintilla but less than a preponderance. 4 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 5 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 6 substantial evidence supports a finding, the reviewing court 7 “must review the administrative record as a whole, weighing both 8 the evidence that supports and the evidence that detracts from 9 the Commissioner’s conclusion.” To determine whether Reddick v. Chater, 157 F.3d 715, 10 720 (9th Cir. 1998). “If the evidence can reasonably support 11 either affirming or reversing,” the reviewing court “may not 12 substitute its judgment” for the Commissioner’s. 13 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 14 People are “disabled” for purposes of receiving Social 15 Security benefits if they are unable to engage in any substantial 16 gainful activity owing to a physical or mental impairment that is 17 expected to result in death or has lasted, or is expected to 18 last, for a continuous period of at least 12 months. 19 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 20 1992). 42 U.S.C. 21 A. The Five-Step Evaluation Process 22 The ALJ follows a five-step sequential evaluation process to 23 assess whether a claimant is disabled. 24 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 25 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 26 step, the Commissioner must determine whether the claimant is 27 currently engaged in substantial gainful activity; if so, the 28 claimant is not disabled and the claim must be denied. 3 20 C.F.R. In the first 1 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting her ability to do basic work 6 activities; if not, the claimant is not disabled and the claim 7 must be denied. 8 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to 10 determine whether the impairment or combination of impairments 11 meets or equals an impairment in the Listing of Impairments 12 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 13 1; if so, disability is conclusively presumed. 14 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 15 If the claimant’s impairment or combination of impairments 16 does not meet or equal an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient RFC to perform her past work; if so, she is not 19 disabled and the claim must be denied. 20 416.920(a)(4)(iv). 21 unable to perform past relevant work. 22 If the claimant meets that burden, a prima facie case of 23 disability is established. 24 claimant has no past relevant work, the Commissioner then bears 25 the burden of establishing that the claimant is not disabled 26 because she can perform other substantial gainful work available 27 in the national economy. 28 Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(iv), The claimant has the burden of proving she is Id. Drouin, 966 F.2d at 1257. If that happens or if the §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); That determination comprises the fifth 4 1 and final step in the sequential analysis. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 3 1257. 4 B. The ALJ’s Application of the Five-Step Process 5 At step one, the ALJ found that Plaintiff had not engaged in 6 substantial gainful activity since March 1, 2012, the alleged 7 onset date. 8 severe impairments of “bilateral knee osteoarthritis, status post 9 left total knee replacement; history of traumatic brain injury; (AR 18.) At step two, he concluded that she had 10 major depressive disorder; generalized anxiety disorder; and 11 personality disorder.” 12 her impairments did not meet or equal a listing. 13 14 (Id.) At step three, he determined that (AR 18-19.) At step four, the ALJ found that Plaintiff had the RFC1 to perform work at the light level of exertion, except that 15 she can stand and walk 4 hours during an 8-hour day[;] . 16 . . occasionally climb ramps and stairs, but never climb 17 ladders, ropes, and scaffolds[; and] . . . occasionally 18 balance, stoop, kneel, crouch, and crawl. 19 to use the left lower extremity for operation of foot 20 controls. 21 extremities. She should avoid working around unprotected 22 heights. 23 simple job instructions, but would be unable to perform 24 work that She is unable She can occasionally push pull with the lower She can understand, remember, and carry out would require directing others, abstract 25 26 27 28 1 The residual function capacity, or RFC, is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 thought, or planning. 2 concentration to perform simple, routine and repetitive 3 tasks in a work environment free of fast-paced production 4 requirements[;] . . . have frequent interaction with 5 coworkers, supervisors, and the general public[;] . . . 6 [and] work in an environment with occasional changes to 7 the work setting and occasional work-relate[d decision- 8 making]. 9 (AR 19-20; see AR 57.) She can maintain attention and The ALJ concluded that Plaintiff could 10 not perform her past relevant work as a cafeteria or deli worker. 11 (AR 24.) Based on the VE’s testimony, he found that Plaintiff 12 could perform jobs existing in significant numbers in the 13 national economy. 14 disabled. 15 V. (AR 24-25.) Accordingly, he found her not (AR 25.) DISCUSSION Plaintiff alleges that the ALJ erred by giving only limited 16 17 weight to the opinion of treating doctor Elizabeth Hudler,2 a 18 psychiatrist, and by failing to articulate legally sufficient 19 reasons for finding Plaintiff not credible. 20 15.)3 A. 21 22 23 (J. Stip. at 4, The ALJ Properly Assessed Plaintiff’s Credibility Plaintiff argues that the ALJ failed to provide clear and convincing reasons for finding her not credible. (J. Stip. at 24 2 25 26 Although Plaintiff frames the issue as “[w]hether the ALJ properly assessed probative medical source opinions” (J. Stip. at 4), the only assessment she takes issue with is that of Dr. Hudler (see id. at 8-10). 27 3 28 The Court addresses the issues in an order different from that followed by the parties. 6 1 15.) For the reasons discussed below, the ALJ did not err. 2 3 1. Applicable law An ALJ’s assessment of symptom severity and claimant 4 credibility is entitled to “great weight.” See Weetman v. 5 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 6 F.2d 528, 531 (9th Cir. 1986). 7 believe every allegation of disabling pain, or else disability 8 benefits would be available for the asking, a result plainly 9 contrary to” the law. “[T]he ALJ is not required to Molina v. Astrue, 674 F.3d 1104, 1112 (9th 10 Cir. 2012) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 11 1989)). 12 In evaluating a claimant’s subjective symptom testimony, the 13 ALJ engages in a two-step analysis. 14 at 1035-36. 15 has presented objective medical evidence of an underlying 16 impairment [that] could reasonably be expected to produce the 17 pain or other symptoms alleged.” 18 medical evidence exists, the ALJ may not reject a claimant’s 19 testimony “simply because there is no showing that the impairment 20 can reasonably produce the degree of symptom alleged.” 21 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 22 original). 23 See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant Id. at 1036. If such objective Smolen v. If the claimant meets the first test, the ALJ may discredit 24 the claimant’s subjective symptom testimony only if he makes 25 specific findings that support the conclusion. 26 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 27 affirmative evidence of malingering, the ALJ must provide “clear 28 and convincing” reasons for rejecting the claimant’s testimony. 7 See Berry v. Absent a finding or 1 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 2 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 3 1102 (9th Cir. 2014). 4 (1) ordinary techniques of credibility evaluation, such as the 5 claimant’s reputation for lying, prior inconsistent statements, 6 and other testimony by the claimant that appears less than 7 candid; (2) unexplained or inadequately explained failure to seek 8 treatment or to follow a prescribed course of treatment; (3) the 9 claimant’s daily activities; (4) the claimant’s work record; and The ALJ may consider, among other factors, 10 (5) testimony from physicians and third parties. 11 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 12 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 13 2002). 14 substantial evidence in the record, the reviewing court “may not 15 engage in second-guessing.” If the ALJ’s credibility finding is supported by 16 17 Rounds v. 2. Thomas, 278 F.3d at 959. Relevant background In a disability report dated April 19, 2012, Plaintiff 18 stated that she stopped working on April 1, 2008, “[b]ecause of 19 [her] conditions,” which she listed as 20 (1) Pain in [sic] all over body and bad memory; (2) 21 Subderal [sic] hematoma brain surgery, no memory; (3) 22 Internal bleeding in abdominal area; (4) Lots of knee 23 pains, can’t walk long periods of time; (5) Nerve damage 24 in legs; (6) Arms pull out of socket all the time; (7) No 25 stability, 26 impairment; (10) Constantly bones hurt daily; (11) Lots 27 of headaches, numbness [in] hands and arms. 28 (AR 191.) no balance; (8) Depression; (9) Speech In a report dated May 6, 2012, completed by her 8 1 attorney, Plaintiff claimed that she stopped working on January 2 1, 2010. (AR 199-200.) 3 In a function report dated February 21, 2013, Plaintiff 4 complained about her poor memory, knee pain, and “bleeding in the 5 brain.” 6 (AR 222.) 7 her own laundry, and washed the dishes. 8 that pain and worry made it hard for her to fall asleep. 9 223.) (AR 222, 230.) She noted that she lived with her uncle. She took care of his dog, prepared her own food, did (AR 223-24.) She needed reminders to take her medication. She noted (AR (AR 224.) 10 She went outside daily and shopped “once a week or two” for about 11 one or two hours. 12 her “life was normal,” included gardening and cooking, but that 13 she had not been able to do those activities since her life had 14 changed. 15 once a week. 16 (AR 225.) (AR 226.) She stated that her hobbies, when She visited the library every day and church (Id.) She noted that she could not exercise or run and could 17 barely walk. 18 ability to lift, squat, bend, reach, walk, kneel, talk, and climb 19 stairs. 20 something her “arm bones go out of joint.” 21 concentration, understanding, ability to follow instructions, and 22 ability to get along with others were also affected. 23 reported that she could walk only 100 yards before having to rest 24 for five minutes and could pay attention for only about a minute. 25 (Id.) 26 and that spoken instructions needed to be repeated slowly before 27 she could follow them. 28 a brace or splint every day. (AR 227.) (Id.) Her conditions allegedly affected her She reported that when she tried to lift (Id.) Her memory, (Id.) She She reported that she couldn’t follow instructions well (Id.) She noted that she used a cane and (AR 228.) 9 She ticked the box 1 indicating that she took medications for her conditions and noted 2 that they did not cause side effects. 3 (AR 229.) In a third-party function report also dated February 21, 4 2013, Plaintiff’s friend Peter Almryde stated that he spent 60 5 percent of his time with her. 6 currently living with him and his family. 7 she couldn’t “walk fast or run or go down stairs but one step at 8 a time.” 9 comprehending things. (Id.) (AR 212.) He noted that she was (Id.) He stated that She had a hard time remembering and (Id.) He noted that “when her arm 10 pull[ed] out of joint” he had to “pull it forward.” (AR 213.) 11 He stated that she fed and picked up after her uncle’s dog. 12 (Id.) 13 sleep.” 14 laundry but needed reminders to take her medication. 15 She did not do housework because it was not her house, but she 16 cleaned up after herself. (AR 215.) 17 outside every day. She shopped for food and hygiene 18 products once a week, for an “hour or so.” 19 she liked to garden but hardly did it anymore and that she went 20 out regularly to the library and to visit her daughter. 21 216.) 22 abilities, he checked the same boxes Plaintiff had checked but 23 indicated that her “standing” and “completing tasks” were also 24 affected. 25 noting that she could walk only 100 yards before needing a five- 26 minute rest. 27 minute. 28 and possibly an artificial limb (AR 218), and commented that her He noted that “sometimes [her] pain [is] so bad, she can’t (Id.) She prepared her own meals daily and did her own (Id.) (AR 214.) He noted that she went (Id.) He noted that (AR For the section on how her conditions affected her (AR 217.) (Id.) (Id.) He also wrote that she didn’t walk anymore, She could pay attention for only about a He also noted that she used a brace or splint, 10 1 legs were “extremely bad” (AR 219). 2 In a progress report dated May 23, 2013, Plaintiff was noted 3 to be in “early remission” from alcohol dependence. 4 She was encouraged to participate in an Alcoholics Anonymous 5 program. 6 less anxious mood” and reported “staying clean and sober” and 7 “attending AA” twice a week. 8 noted that she was “spending much of her time looking for work.” 9 (AR 524.) (AR 527.) (AR 526.) She was in a “more stable, less tearful, and (AR 526.) On June 27, 2013, it was She reported that she was “staying sober,” but she had 10 “not gone to AA meetings lately” and denied alcohol cravings. 11 (Id.) 12 evade questions about” her alcohol and drug use. 13 October 7, 2013, she stated that she had been “sober and clean” 14 for eight to nine months but was no longer involved in AA. 15 38, 473.) 16 reported that she was not attending AA because of transportation 17 issues, didn’t “have time” for her sponsor anymore, and had had 18 a substance-abuse relapse three weeks earlier. 19 On August 8, 2013, her doctor noted that she “tend[ed] to (AR 523.) On (AR At a January 29, 2014 health-center visit, she (AR 519.) At the hearing on February 21, 2014, Plaintiff testified 20 that she was involved in a car accident in 1994. 21 pointed to that accident as the beginning of her pain and related 22 psychological issues. 23 bad memory, short-term,” and was in “lots of pain all of the 24 time.” 25 2007 and 2008, after the accident. 26 a deli and in various grocery stores. 27 28 (Id.) (Id.) (AR 39.) She She testified that she had a “very She confirmed that she worked at a cafeteria in (AR 62.) She also worked in (Id.) She testified that she “couch surf[ed]” among her uncle, her mother, and a good friend — presumably Almryde, given his 11 1 testimony that he spent 60 percent of his time with her. (AR 2 35.) 3 where she stayed. 4 grandchildren (ages eight, six, and 10 months), and cooked 5 dinners and breakfasts. 6 the children out of the apartment when she could, to the mailbox 7 or the swimming pool in the apartment complex. 8 noted that the mother of the baby was often present but that when 9 Plaintiff was asked to watch the kids she was obligated to say She was responsible for the general upkeep of the place (Id.) She cleaned, took care of the friend’s (AR 36.) She testified that she took (AR 54.) She made her 10 yes because she was living under their roof. 11 friend’s bed. 12 around the house that you’re not able to do?,” Plaintiff 13 responded that she couldn’t “take out the trash.” 14 (AR 37.) (Id.) She When the ALJ asked, “[I]s there anything (AR 38.)4 Plaintiff had a left-knee replacement in December 2013. (AR 15 520.) She testified that she had been looking for work and had 16 put in 38 job applications before her knee surgery. 17 She testified that she got a job, spinning a sign for a pizza 18 restaurant, that lasted about two weeks. 19 that the job “was very hard” and that the shop was now out of 20 business; it was unclear whether that was why she worked for only 21 two weeks. 22 work after her surgery because she could not walk anymore. 23 47.) (AR 48.) (AR 40.) (AR 41, 48.) She noted She testified that she stopped looking for (AR She stated that she took gabapentin, Cymbalta, trazodone, 24 25 26 27 28 4 When Plaintiff applied for benefits, she acknowledged that she did not need help “in personal care, hygiene or upkeep of a home.” (AR 164.) 12 1 and hydroxyzine.5 2 “helped a lot for the depression” and that the gabapentin was no 3 longer helping her anxiety but that she had been taking a new 4 pill, hydroxyzine, for it for about a month. 5 testified that she went to a rehab facility for alcohol addiction 6 in 2012 for five months (AR 45), last smoked marijuana “a couple 7 of years” before the hearing (AR 46), and last used 8 methamphetamine in 2010 or 2011 (id.). 9 3. (AR 42.) She noted that the Cymbalta had (AR 42, 44.) She Analysis The ALJ credited some of Plaintiff’s subjective complaints, 10 11 finding her “partially credible.” (AR 21.) He noted that her 12 “statements concerning the intensity, persistence and limiting 13 effects of [her] symptoms [were] not entirely credible.” 14 22.) 15 subjective complaints,” the ALJ “adopted the limitations 16 described in the residual functioning capacity.” 17 he found that she could perform “less than a full range of light 18 work,” with limited cumulative hours of standing and walking and 19 restrictions on climbing and using her left lower extremity for (AR However, “[i]n order to give full benefit to [her] (AR 24.) Thus, 20 21 22 23 24 25 26 27 28 5 Gabapentin is used to treat neuropathy. See Gabapentin, MedlinePlus, https://medlineplus.gov/druginfo/meds/a694007.html (last updated July 15, 2011). Cymbalta is the brand name of a selective serotonin and norepinephrine reuptake inhibitor used to treat depression and generalized anxiety disorder. See Duloxetine, MedlinePlus, https://medlineplus.gov/druginfo/meds/ a604030.html (last updated May 15, 2016). Trazodone is a serotonin modulator used to treat depression. See Trazodone, MedlinePlus, https://medlineplus.gov/druginfo/meds/a681038.html (last updated Nov. 15, 2014). Hydroxyzine is used to relieve anxiety and tension. See Hydroxyzine, MedlinePlus, https:// medlineplus.gov/druginfo/meds/a682866.html (last updated May 15, 2016). 13 1 operating foot controls. 2 discounted Plaintiff’s subjective complaints, he provided clear 3 and convincing reasons for doing so. 4 (AR 19-20.) To the extent the ALJ The ALJ permissibly found Plaintiff’s subjective complaints 5 only partially credible because the objective medical evidence 6 did not support them. 7 her knees (see, e.g., AR 296 (alleging “knee pain”), 520 8 (alleging pain in left knee)), but her medical records showed 9 that any knee problems had been addressed and apparently He noted that Plaintiff reported pain in 10 resolved. 11 with knee sprain, brace given), 296-97 (June 7, 2012: no 12 erythema, nontender, strength noted at 5/5, diagnosed as knee 13 sprain, medication provided), 302 (July 12, 2012: knee strength 14 5/5 in left knee, diagnosed as patellar tendinitis, prescribed 15 medication).) 16 replacement surgery “went well and was without complications.” 17 (AR 22.) 18 her surgery (see, e.g., AR 47) was unsubstantiated by any 19 evidence in the medical record.6 20 (AR 21-22; see, e.g., AR 294 (May 18, 2012: diagnosed The ALJ noted that her December 2, 2013 knee- Her testimony that she had been unable to walk since The ALJ also noted that she reported various mental 21 impairments (see, e.g., AR 222 (“My memory is the worst”), 342 22 (reporting anxiety and depression), 352 (same)), but her medical 23 records indicated that medication had alleviated these symptoms 24 (AR 22); indeed, her doctors consistently noted that she 25 responded well to medication (see, e.g., AR 342 (Aug. 2, 2012: 26 27 6 28 Plaintiff has not argued for a closed period of disability based on her knee pain leading up to her surgery. 14 1 reported improved mood when taking medications), 389 (Oct. 25, 2 2012: reported anxiety well controlled and depressed mood 3 gradually improving), 443 (Feb. 28, 2013: “in more stable, less 4 tearful, and less anxious mood”), 520 (Oct. 7, 2013: “calmer and 5 less dramatic than at previous appointments” and “Gabapentin does 6 seem to be helping her anxiety”).) 7 consider the lack of objective medical evidence in assessing 8 Plaintiff’s subjective complaints and credibility. 9 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) The ALJ was entitled to See Carmickle 10 (“Contradiction with the medical record is a sufficient basis for 11 rejecting the claimant’s subjective testimony.”); Lingenfelter, 12 504 F.3d at 1040 (in determining credibility, ALJ may consider 13 “whether the alleged symptoms are consistent with the medical 14 evidence”); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 15 (“Although lack of medical evidence cannot form the sole basis 16 for discounting pain testimony, it is a factor that the ALJ can 17 consider in his credibility analysis.”). 18 Further, the ALJ permissibly discounted Plaintiff’s 19 subjective complaints because her daily activities were 20 inconsistent with her allegedly disabling impairments. 21 The ALJ read and considered Plaintiff’s adult function report, in 22 which she claimed that her conditions affected her ability to 23 lift, squat, bend, reach, walk, kneel, talk, climb stairs, 24 remember, concentrate, understand, follow instructions, and get 25 along with others. 26 functional limitations were at odds with her reported daily 27 activities. 28 she takes care of in return for a place to stay” and “cooked and (AR 21, 227.) (AR 21.) (AR 21.) He took note that her alleged He noted that she “lives with a friend who 15 1 cleaned and helped him care for his grandkids.” 2 testified that she was “totally” responsible for keeping the 3 house clean. 4 around the house that she was not able to do, she stated only 5 that she could not “take the trash out any more.” 6 her function report, she noted that she was able to prepare her 7 own food, go outside daily, shop, and do daily chores. 8 25.) 9 her daily activities are inconsistent with her subjective symptom (AR 35.) (AR 21.) She When asked whether there was anything (AR 38.) In (AR 224- An ALJ may properly discount a plaintiff’s credibility when See Molina, 674 F.3d at 1112 (ALJ may discredit 10 testimony. 11 claimant’s testimony when “claimant engages in daily activities 12 inconsistent with the alleged symptoms” (citing Lingenfelter, 504 13 F.3d at 1040); even some difficulties in daily functioning “may 14 be grounds for discrediting the claimant’s testimony to the 15 extent that they contradict claims of a totally debilitating 16 impairment”); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 17 1227 (9th Cir. 2009) (ALJ properly discounted plaintiff’s 18 credibility when she had “recently worked as a personal caregiver 19 for two years, and has sought out other employment since then”); 20 Foster v. Astrue, No. EDCV 11-1077-OP, 2012 WL 243253, at *10 21 (C.D. Cal. Jan. 23, 2012) (finding that ALJ properly considered 22 plaintiff’s “ability to perform part-time work” when assessing 23 credibility). 24 The ALJ also took note that Plaintiff recently attempted to (AR 22; see also, e.g., AR 524 (looking for job in 25 find a job. 26 June 2013).) 27 can be inconsistent with allegations of disability. 28 554 F.3d at 1227 (fact that claimant has sought employment Holding oneself out as available for full-time work 16 See Bray, 1 weighed against credibility of claims of disabling limitations); 2 Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988). The ALJ also noted that although Plaintiff alleged various 3 4 mental limitations, her treating psychiatrist questioned her 5 effort. 6 low” mental-exam score was very likely a result not of diminished 7 ability but rather of “not giving her full effort.” 8 Indeed, Dr. Hudler remarked that Plaintiff’s score was 9 “inconsistent with someone who basically lives independently.” (AR 23.) Dr. Hudler noted that Plaintiff’s “extremely (AR 522.) 10 (Id.) This was a legally sufficient reason for discounting 11 Plaintiff’s credibility. 12 properly considered claimant’s “self-limiting behaviors” and 13 “efforts to impede accurate testing” during two physical-capacity 14 evaluations); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 15 2001) (ALJ properly considered claimant’s poor effort during 16 consultative examinations).7 17 See Thomas, 278 F.3d at 959 (ALJ Finally, the ALJ was permitted to rely on Plaintiff’s 18 19 7 20 21 22 23 24 25 26 27 28 Plaintiff argues that Dr. Hudler’s statements concerning Plaintiff’s minimal effort should not have been relied on by the ALJ as detracting from Plaintiff’s credibility because “Dr. Hudler took specific awareness of that finding into account and rendered her opinions with full knowledge” of it, citing as support for this proposition Ogin v. Colvin, 608 F. App’x 519 (9th Cir. 2015). (J. Stip. at 23.) But Ogin stands for the opposite of what Plaintiff claims, holding that “lackluster effort would be a legitimate reason to discount [the claimant’s] credibility.” 608 F. App’x at 520. The error in Ogin was in discounting the doctor’s opinion on this basis. Id. Dr. Hudler’s finding that the “extremely low” score was “inconsistent” with Plaintiff’s “independent” lifestyle demonstrates that she questioned Plaintiff’s effort; the ALJ permissibly took this into account in assessing Plaintiff’s credibility. 17 1 treatment history in discounting her subjective complaints. 2 ALJ stated that “[t]he treatment records reveal [Plaintiff] 3 received routine, conservative and non-emergency treatment since 4 the alleged onset date.” 5 surgery “went well and was without complications.” 6 Although the need to have surgery “would normally weigh in [her] 7 favor, it is offset by the fact that the record reflects that the 8 surgery was generally successful in relieving the symptoms.” 9 21.) (AR 22.) The He noted that her knee (Id.) (AR As to her alleged mental impairments, the ALJ noted that 10 she consistently reported positive responses to medication. 11 22; see also supra pp. 14-15.) 12 for her alcohol dependence.8 13 conservative, nonemergency treatment was a clear and convincing 14 reason for discounting her subjective complaints. 15 1996 WL 374186, at *7 (July 2, 1996) (claimant’s statements “may 16 be less credible if the level or frequency of treatment is 17 inconsistent with the level of complaints”). 18 (AR She did well when she attended AA (AR 22.) Plaintiff’s successful See SSR 96-7p, In sum, the ALJ provided clear and convincing reasons for 19 finding Plaintiff only partially credible. 20 findings were supported by substantial evidence, this Court may 21 not engage in second-guessing. 22 Plaintiff is not entitled to remand on this ground. Because those See Thomas, 278 F.3d at 959. 23 24 25 26 27 28 8 Plaintiff reported being “clean and sober” in May 2013 when she was attending AA twice a week. (AR 526.) She voluntarily stopped participating in the AA program sometime around June 2013. (AR 524.) At a January 29, 2014 health-center visit, she reported that her nonparticipation was because of transportation issues, but she also said she didn’t “have time” for her sponsor. (AR 519.) She had had a substance-abuse relapse three weeks earlier. (Id.) 18 1 2 3 B. The ALJ Properly Gave Limited Weight to Dr. Hudler’s Medical-Source Statement Plaintiff argues that the ALJ failed to properly assess a 4 probative medical-source opinion; specifically, he erred in 5 giving only limited weight to the opinion of Dr. Hudler, one of 6 her treating psychiatrists. 7 discussed below, remand is not warranted on this ground. 8 9 1. (J. Stip. at 4, 8.) For the reasons Applicable law Three types of physicians may offer opinions in Social 10 Security cases: (1) those who directly treated the claimant, (2) 11 those who examined but did not treat the claimant, and (3) those 12 who did neither. 13 opinion is generally entitled to more weight than an examining 14 physician’s, and an examining physician’s opinion is generally 15 entitled to more weight than a nonexamining physician’s. Lester, 81 F.3d at 830. A treating physician’s Id. 16 This is so because treating physicians are employed to cure 17 and have a greater opportunity to know and observe the claimant. 18 Smolen, 80 F.3d at 1285. 19 well supported by medically acceptable clinical and laboratory 20 diagnostic techniques and is not inconsistent with the other 21 substantial evidence in the record, it should be given 22 controlling weight. 23 treating physician’s opinion is not given controlling weight, its 24 weight is determined by length of the treatment relationship, 25 frequency of examination, nature and extent of the treatment 26 relationship, amount of evidence supporting the opinion, 27 consistency with the record as a whole, the doctor’s area of 28 specialization, and other factors. If a treating physician’s opinion is §§ 404.1527(c)(2), 416.927(c)(2). 19 If a §§ 404.1527(c)(2)-(6), 1 416.927(c)(2)-(6). 2 When a treating physician’s opinion is not contradicted by 3 other evidence in the record, it may be rejected only for “clear 4 and convincing” reasons. 5 Lester, 81 F.3d at 830-31). 6 must provide only “specific and legitimate reasons” for 7 discounting it. 8 Furthermore, “[t]he ALJ need not accept the opinion of any 9 physician, including a treating physician, if that opinion is See Carmickle, 533 F.3d at 1164 (citing When it is contradicted, the ALJ Id. (citing Lester, 81 F.3d at 830-31). 10 brief, conclusory, and inadequately supported by clinical 11 findings.” 12 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 13 Thomas, 278 F.3d at 957; accord Batson v. Comm’r of 2. 14 Relevant background a. 15 Clinical findings in the record from doctors besides Hudler 16 Between May and September 2012, Plaintiff visited a health 17 center for various complaints. 18 visit for “cold symptoms”), 296 (June 7, 2012 visit for “knee 19 pain”), 298 (June 21, 2012 visit for a well-woman exam), 300 20 (July 5, 2012 visit for lab results), 302 (July 12, 2012 visit 21 for knee pain, cough, and sore throat), 304 (Aug. 23, 2012 visit 22 for urinary issue), 306 (Sept. 20, 2012 visit for “cold symptoms” 23 and throat pain).) 24 consistently assessed as normal: no edema, no erythema, and 25 sensations intact. 26 specifically related to knee pain, her knee strength was assessed 27 as “5/5” and her knees were noted to be “nontender.” 28 302.) (See, e.g., AR 294 (May 18, 2012 At those visits, her “extremities” were (AR 294, 296, 304, 306.) 20 During the visits (AR 296, 1 On May 16, 2012, while participating in a residential 2 rehabilitation program, Plaintiff was assessed at a health center 3 after “experiencing some withdrawal [symptoms] from [her] 4 medication.” 5 during that visit, Plaintiff was noted to be “depressed” with 6 “fair” judgment and insight. (AR 262.) 7 “poor recent” memory. In all other categories (level of 8 consciousness, orientation, appearance, speech, thought process, 9 behavior, affect, intellect, and motor) she was assessed as (AR 256.) In the mental-status exam completed (Id.) 10 normal or average. 11 completed the next day, and Plaintiff was assessed as “sad” and 12 “anxious” in her mood, “relevant” and “depressive” in her thought 13 content, “marginal” in her impulse control, and “limited” in her 14 judgment and insight. 15 was assessed as average or normal. 16 (Id.) She was noted to have Another mental-status exam was (AR 286-87.) In all other categories she (Id.) Plaintiff returned to the health center on June 13, 2012, 17 reporting that she was “doing well on medications and [was] not 18 having to use the [t]razodone every night.” 19 memory was “intact” and her insight and judgment were “fair.” 20 (Id.) 21 “reporting a good response to [her] current regime [sic].” 22 276.) 23 “well controlled.” 24 on June 29, 2012, at the health center found that Plaintiff had 25 “soft” speech, a “depressed” mood, poor recent and remote memory, 26 and “slowed/decreased” motor responses, but her insight and 27 judgment were “fair.” 28 center, on July 26, 2012, Plaintiff was noted to be “doing well (AR 277.) Her On June 18, 2012, Plaintiff returned to the health center, (AR She felt her mood was “stable” and her depression was (Id.) A mental-status examination conducted (AR 365.) 21 In a later visit to the health 1 on current regime [sic].” 2 her symptoms were “well controlled.” 3 exam on August 2, 2012, Plaintiff was assessed as normal or 4 average in all categories. 5 (AR 275.) Her mood was “stable” and (Id.) In a mental-status (AR 348.) In a mental-status exam on December 6, 2012, after Plaintiff 6 had left the rehabilitation program, she was assessed as having 7 “limited” judgment and insight but showed “average” intellect, 8 “normal” memory, “normal” motor skills, and a “euthymic”9 mood. 9 (AR 430.) In a consult on December 2, 2013, just before her 10 knee-replacement surgery, the doctor noted that Plaintiff had 11 “[n]o new memory loss or depression” and she “[i]nteracts 12 normally with others.” 13 insight and judgment were reported as “fair” and her affect was 14 reported as “calm [and] congruent.” 15 b. 16 17 (AR 476.) On January 29, 2014, her (AR 519.) Opinions of the state-agency medical consultants In the Disability Determination Explanation from September 18 22, 2012, a state-agency medical consultant, psychologist Pamela 19 Hawkins,10 indicated that Plaintiff had medically determinable 20 and severe muscle, ligament, and fascia disorders; affective 21 disorders; anxiety disorders; and substance-abuse-addiction 22 23 24 25 26 27 28 9 “Euthymic” means characterized by joyfulness, mental peace, and tranquility; it reflects moderation of mood and means not manic or depressed. Stedman’s Medical Dictionary 627 (27th ed. 2000). 10 Dr. Hawkins’s signature line includes a medicalconsultant code of “38,” indicating “[p]sychology” (AR 71); see Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/ poms.nsf/lnx/0424501004. 22 1 disorders. 2 longitudinal evidence existed in the medical records. 3 She found “insufficient evidence to adjudicate the claim” because 4 Plaintiff’s medical records were not signed. 5 (AR 70.) Dr. Hawkins noted that a lack of (AR 71.) (Id.) On August 7, 2012, another state-agency medical consultant, 6 Dr. E.L. Gilpeer, a specialist in internal medicine,11 assessed 7 Plaintiff’s RFC. 8 records showed normal extremities, a full range of motion, no 9 erythema in the left knee, normal strength of “5/5,” and normal (AR 71-72.) Dr. Gilpeer noted that her medical 10 deep-tendon reflexes. 11 assessment of left patellar tendinitis and determined that she 12 had “no exertional (lifting, carrying, walking, standing, 13 sitting, pushing, or pulling) or non-exertional (postural, 14 manipulative, visual, communicative, or environmental) 15 limitations.” 16 review of the independent clinical findings in the record. 17 72; see, e.g., AR 294 (health-center report showing normal 18 extremities), 302 (health-center report diagnosing patellar 19 tendinitis but showing normal strength and reflexes).) 20 (Id.) (AR 72.) Dr. Gilpeer noted an earlier Dr. Gilpeer’s assessment was based on his (AR On March 5, 2013, in a subsequent review undertaken for 21 reconsideration of benefits, Dr. L. DeSouza, a general 22 practitioner,12 completed a case analysis. 23 noted that Plaintiff alleged “pain all over body,” a “brain (AR 91.) Dr. DeSouza 24 25 26 27 28 11 Dr. Gilpeer has a specialty code of “19,” indicating “[i]nternal [m]edicine” (AR 83); see POMS DI 24501.004. 12 Dr. DeSouza has a specialty code of “12,” indicating “[f]amily or [g]eneral [p]ractice” (AR 109); see POMS DI 24501.004. 23 1 hemorrhage,” and “knee pain” but noted that she could do chores, 2 walk, and shop and that her physical conditions were not severe. 3 (Id.) 4 clinical findings as those used by Dr. Gilpeer, but he also 5 reviewed more recent medical evidence. 6 DeSouza’s findings that Plaintiff’s physical symptoms were “non- 7 severe” and referring to “9/20/12” medical record), 306 (Sept. 8 20, 2012 health-center record showing normal extremities).) Dr. DeSouza’s assessment was based on the same independent (See, e.g., AR 91 (Dr. In the same review, Dr. P.M. Balson13 found that although 9 10 Plaintiff had severe affective disorder, anxiety disorder, and 11 alcohol- and substance-abuse disorder, she had only mild 12 restrictions in activities of daily living and in maintaining 13 social functioning and moderate difficulties in maintaining 14 concentration, persistence, or pace. 15 found that Plaintiff had not experienced any episodes of 16 decompensation of extended duration. 17 assessed her RFC, noting that she had limitations in 18 understanding and memory but was not significantly limited in her 19 ability to remember locations and worklike procedures or 20 understand and remember very short and simple instructions. 21 93.) 22 her ability to understand, remember, and carry out detailed 23 instructions. 24 moderately limited in her ability to complete a normal workday (AR 91-92.) (AR 92.) Dr. Balson Dr. Balson also (AR Dr. Balson found that Plaintiff was moderately limited in (AR 94.) Dr. Balson also found that she was 25 26 27 28 13 Dr. Balson is apparently a psychiatrist, see Novoa v. Colvin, No. CV 13-00219-MAN, 2014 WL 3854369, at *2 (C.D. Cal. Aug. 6, 2014), although the record in this case does not so indicate. 24 1 and workweek without interruptions from psychologically based 2 symptoms and perform at a consistent pace without an unreasonable 3 number and length of rest periods. 4 Plaintiff “started [treatment] at the end of 2012 for her 5 substance abuse and mood disorder,” a fact reflected in 6 independent clinical findings in the record. 7 (Dec. 6, 2012 health-center report noting Plaintiff’s placement 8 in substance-abuse rehabilitation center).) 9 opined that Plaintiff had a mood disorder and a “history of (Id.) Dr. Balson noted that (See, e.g., AR 441 Dr. Balson further 10 inability to handle significant changes in life such as death in 11 [the] family” but that she should be able to handle simple, 12 unskilled work “if she maintains sobriety and remains compliant 13 with meds.” 14 clinical findings in the record in coming to this conclusion. 15 (Id.; see, e.g., AR 417-41 (Dec. 6, 2012 record with “normal” and 16 “average” mental-status exam findings, discussion of alcohol- 17 abuse concerns, and notation of Plaintiff’s reports of stable 18 mood on current medications).) (AR 94.) 19 20 c. Dr. Balson relied on the independent Dr. Hudler Plaintiff met with Dr. Hudler on January 23, 2013, for a 21 psychiatric assessment. 22 “depression, anxiety, panic attacks, and feelings of 23 worthlessness.” 24 28, 2013, presenting as “more stable, less tearful, and less 25 anxious” in her mood. 26 three times after the above state-agency reports were completed, 27 on May 23, June 27, and August 8, 2013. 28 Plaintiff’s August 8 visit, Dr. Hudler noted, she gave Plaintiff (Id.) (AR 403.) Plaintiff reported She met with Dr. Hudler again on February (AR 443.) 25 She visited Dr. Hudler at least (AR 467.) During 1 a mental-status examination “[d]ue to her memory complaints, and 2 the mental status paperwork requested by her [attorney].” 3 522.) 4 12/30,” which was “inconsistent with someone who basically lives 5 independently.” 6 was very likely not giving her full effort.” 7 (AR Dr. Hudler noted that Plaintiff “scored an extremely low (Id.) Dr. Hudler opined that “[t]herefore she (Id.) Dr. Hudler completed a medical-source statement for 8 Plaintiff’s disability claim during the same visit. (AR 467-72.) 9 Under “clinical findings” she noted that Plaintiff “tends to be 10 impulsive [and] impatient” and “can be intrusive, [with] 11 inappropriate behavior at times.” 12 a prognosis of “poor.” 13 Plaintiff had symptoms of “[i]mpairment in impulse control,” 14 “[g]eneralized persistent anxiety,” “[s]ubstance dependence,” 15 “[e]motional lability,” “[e]asy distractibility,” and “[m]emory 16 impairment - short, intermediate or long term.” 17 did not tick the box for “[d]ifficulty thinking or 18 concentrating.” 19 provide an opinion “based on [her] examination” of Plaintiff, she 20 noted that Plaintiff was seriously limited or unable to meet 21 competitive standards14 in almost all categories of work-related 22 skills. 23 topic in conversation” and “becomes easily anxious to the point 24 of feeling overwhelmed [and] incapacitated.” (Id.) (AR 469.) (Id.) (AR 467.) Dr. Hudler gave her She ticked boxes indicating that (AR 468.) She In the section asking Dr. Hudler to Dr. Hudler noted that she “tends to go off (Id.) She also 25 26 27 28 14 “Seriously limited” means noticeable difficulty from 11 to 20 percent of the workday or workweek. (AR 469.) “Unable to meet competitive standards” means noticeable difficulty from 21 to 40 percent of the workday or workweek. (Id.) 26 1 noted that Plaintiff was unable to meet competitive standards in 2 setting realistic goals or making independent plans, and she had 3 no useful ability to understand, remember, and carry out detailed 4 instructions or deal with the stress of semiskilled and skilled 5 work. 6 decompensation, each allegedly lasting longer than two weeks: 7 from April to May 2012, “winter 2012,” and from January to 8 February 2012.15 9 any additional reasons not covered above why your patient would 10 have difficulty working at a regular job on a sustained basis,” 11 Dr. Hudler wrote: “Patient [did] not appear motivated to 12 perform/function at her best[;] . . . for example, she had an 13 abnormally . . . low score on a Mental State Exam on 8/8 due to 14 lack of effort.” (AR 470.) Dr. Hudler identified three episodes of (AR 471.) Under the question, “Please describe (AR 472.) 15 On October 7, 2013, Plaintiff met with Dr. Hudler again, and 16 Dr. Hudler noted that gabapentin was helping her anxiety but that 17 she did not regularly take all prescribed doses. 18 Hudler noted that Plaintiff was “calmer and less dramatic than at 19 previous visits.” 20 d. 21 (AR 520.) Dr. (Id.) Consulting-physician examinations Plaintiff was scheduled to be examined by a consulting 22 internist on June 28 and a consulting psychiatrist on July 5, 23 2012. 24 not attend the examinations “because she [was] in the [alcohol (AR 68.) On June 15, 2012, she indicated that she would 25 26 27 28 15 The third period of decompensation noted by Dr. Hudler, from January to February 2012, is before Plaintiff’s alleged onset date of March 1, 2012. “Winter 2012” is ambiguous and may be as well. 27 1 rehabilitation] [p]rogram” and was receiving treatment elsewhere. 2 (Id.) 3 prevented her from attending the examinations, particularly given 4 that she was apparently going to other off-site doctors. 5 see, e.g., AR 355 (June 29, 2012 health-center visit).) 6 consulting examinations were canceled. She did not explain how her participation in the program 7 3. The (AR 68.) Analysis The ALJ accorded “significant weight, but not full weight” 8 9 (Id.; to the opinions of the state-agency medical consultants and 10 “limited weight” to the opinion of Dr. Hudler.16 11 noted that the opinions of the state-agency consultants were 12 “generally consistent in that they all assess the claimant is 13 able to perform a range of work at the medium exertional level 14 with some differences in the degree of specific function-by- 15 function limitations.” 16 were all “reasonable and supported by the record as a whole.” 17 (Id.) (Id.) (AR 23.) He The ALJ found that the opinions Rather than relying on one assessment in its entirety, he 18 19 16 20 21 22 23 24 25 26 27 28 There were no opinions from examining state-agency consultants because Plaintiff canceled those exams. (AR 68.) If a claimant “do[es] not have a good reason for failing or refusing to take part in a consultative examination or test,” the claimant may be found not disabled. 20 C.F.R. §§ 404.1518(a), 416.918(a). If the claimant had “a good reason” for failing to attend, the agency “will schedule another examination.” §§ 404.1518(a), 416.918(a). Plaintiff did not attend her consultative examinations because she was in an alcohol rehabilitation facility, but she never explained how that prevented her from attending. (AR 68.) The ALJ did not mention the canceled examinations in his decision or base his finding of nondisability on Plaintiff’s failure to attend; nor does Plaintiff argue that the medical record was undeveloped or that the ALJ should have sought further medical evidence. Accordingly, the Court does not consider the issue. 28 1 “adopted those specific restrictions on a function-by-function 2 basis that [were] best supported by the objective evidence as a 3 whole.” (Id.) 4 As an initial matter, Plaintiff incorrectly suggests that 5 the ALJ was required to provide “clear and convincing” reasons 6 for discounting Dr. Hudler’s opinion. 7 Because Dr. Hudler’s opinion was contradicted by the opinions of 8 the state-agency medical consultants and those doctors based 9 their opinions on clinical findings separate from Dr. Hudler’s (See J. Stip. at 8.) 10 (see, e.g., AR 71-72 (Dr. Gilpeer citing health-center 11 examinations conducted by Dr. Jonathan Baker (see AR 294-95, 302- 12 03)), 91 (Dr. DeSouza relying on same and additional examination 13 by Dr. Baker (see AR 306-07)), 94 (Dr. Balson relying on Dec. 14 2012 health-center assessment by Dr. Bruce Burris (see AR 441))), 15 the ALJ needed to state only specific and legitimate reasons for 16 giving Dr. Hudler’s opinion limited weight. 17 F.3d at 1164; Thomas, 278 F.3d at 957 (“The opinions of non- 18 treating or non-examining physicians may also serve as 19 substantial evidence when the opinions are consistent with 20 independent clinical findings or other evidence in the record.”) 21 As discussed below, the ALJ met that standard. 22 See Carmickle, 533 The ALJ did not entirely reject Dr. Hudler’s opinion; 23 rather, he gave it “limited weight.” 24 into Plaintiff’s RFC limits on “directing others, abstract 25 thought, [and] planning,” limited her to simple job instructions, 26 and noted that her work environment should be “free of fast-paced 27 production requirements” (AR 20), all of which were consistent 28 with Dr. Hudler’s opinion that Plaintiff would be unable to 29 (AR 23.) He incorporated 1 understand, remember, or carry out detailed work instructions or 2 deal with the stress of skilled or semiskilled work (AR 470). 3 Thus, the ALJ did give Dr. Hudler’s opinion some weight. 4 extent the ALJ rejected portions of Dr. Hudler’s opinion, he did 5 so for specific and legitimate reasons. To the 6 The ALJ permissibly gave limited weight to Dr. Hudler’s 7 opinion because it “depart[ed] substantially from the rest of the 8 evidence of record.” 9 Plaintiff was seriously limited or unable to meet competitive (AR 24.) Indeed, Dr. Hudler opined that 10 standards in most areas of mental functioning (AR 469), but the 11 state-agency consultants found at worst moderate limitations in 12 only certain categories.17 13 exertional or nonexertional limitations), 92 (Plaintiff “noted to 14 improve with [medication] and sobriety” and “should be able to do 15 at least [simple, repetitive] type work if she maintains sobriety 16 and remains compliant with [treatment]”), 94 (noting no 17 significant limitations in most areas of functioning).) 18 example, Dr. Balson found Plaintiff “moderately limited” in her 19 ability to “complete a normal workday and workweek without 20 interruptions from psychologically based symptoms and to perform 21 at a consistent pace without an unreasonable number and length of 22 rest periods” and in her ability to understand, remember, and 23 carry out detailed instructions. (See, e.g., AR 72 (Plaintiff had no (AR 94.) For She was “not 24 17 25 26 27 28 Plaintiff has not argued that the ALJ’s RFC did not adequately take into account those moderate limitations to the extent the ALJ accepted them. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (ALJ’s RFC limitation to “simple, routine, repetitive” work adequately accounted for functional limitations of “slow pace” and “several moderate limitations in other mental areas”). 30 1 significantly limited” in the other eight categories of 2 functioning. 3 were based on independent clinical findings showing that 4 throughout the relevant period Plaintiff’s mental issues were 5 adequately controlled with treatment and medication. 6 example, Dr. Gilpeer cited health-center records from May 18, 7 2012 (AR 72), which corroborated the finding that Plaintiff’s 8 symptoms were not severe (see, e.g., AR 294 (“Neurological: 9 normal, no weakness” and “General: normal, no acute distress”)). 10 Dr. DeSouza relied on the same records and also looked at a more 11 recent health-center record from September 20, 2012 (AR 94), 12 which provided further evidence of nonseverity (AR 306). 13 Balson reviewed clinical findings from December 2012 (AR 91-94), 14 which showed improvement and stability on current medications (AR 15 441). 16 on August 8, 2013 (AR 467), but she reported improvement in a 17 subsequent visit on October 7 (AR 520). (AR 93-94.) The state-agency doctors’ opinions For Dr. Moreover, Dr. Hudler gave Plaintiff a prognosis of “poor” 18 Moreover, as the ALJ noted (AR 24), several of Dr. Hudler’s 19 findings, such as that Plaintiff was seriously limited or unable 20 to meet competitive standards in almost all categories of work- 21 related skills (AR 470), were not supported by her own or any 22 other doctor’s findings. 23 and assessments conducted by other health-center doctors showed 24 that Plaintiff had normal or average mental functioning and that 25 her mental symptoms were well controlled by medications. 26 e.g., AR 262 (on May 16, 2012, noting that Plaintiff had “fair” 27 judgment and insight and presented as normal or average in all 28 other assessed categories), 277 (noting on June 13, 2012, that For example, mental-status examinations 31 (See, 1 Plaintiff had “intact” memory and “fair” insight and judgment), 2 276 (noting on June 18, 2012, that Plaintiff was responding well 3 to current regimen and depression “well controlled”), 348 (noting 4 on Aug. 2, 2012, that Plaintiff was assessed as normal or average 5 in all mental-exam categories).) 6 before her August 8, 2013 assessment reflected the same. 7 e.g., AR 410 (Dr. Hudler noting on Jan. 23, 2013, that 8 Plaintiff’s judgment and insight were “fair”), 443 (Dr. Hudler 9 noting on Feb. 28, 2013, that Plaintiff’s insight was fair to Some of Dr. Hudler’s own notes (See, 10 good and judgment was good).) Even Dr. Hudler’s notes from her 11 August 8, 2013 assessment were contradictory as to Plaintiff’s 12 symptoms: Dr. Hudler did not check the box for “[d]ifficulty 13 thinking or concentrating” as one of Plaintiff’s symptoms but 14 then noted that Plaintiff had serious limitations or an inability 15 to “meet competitive standards” in areas of thinking and 16 concentration needed for unskilled work. (AR 468-69.) Moreover, although Dr. Hudler opined that Plaintiff had had 17 18 three or more episodes of decompensation (AR 471), one and 19 possibly two of those periods occurred before the alleged onset 20 date. 21 7, 2013, noted that Plaintiff was “calmer and less dramatic than 22 at previous appointments,” had “fair” insight and judgment, was 23 “alert and oriented,” and had “coherent” thought processes. 24 520-21.) 25 medication and return to AA. 26 assessments of Plaintiff’s mental functioning in the record, from 27 December 2013 and January 2014, noted that she had “no new memory 28 loss or depression” and “interact[ed] normally with others” (AR Finally, Dr. Hudler’s most recent assessment, from October (AR Dr. Hudler recommended that Plaintiff continue with her (AR 521.) 32 The most recent 1 476) and that her insight and judgment were “fair” and her affect 2 was “calm [and] congruent” (AR 519). 3 Thus, the ALJ permissibly gave limited weight to Dr. 4 Hudler’s opinion because it was unsupported by her own treatment 5 notes and departed substantially from the record as a whole. 6 §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4); Valentine v. Comm’r, 7 Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) 8 (contradiction between treating physician’s opinion and his 9 treatment notes constituted specific and legitimate reason for See 10 rejecting treating physician’s opinion); Batson, 359 F.3d at 1195 11 (“[A]n ALJ may discredit treating physicians’ opinions that are 12 . . . unsupported by the record as a whole . . . or by objective 13 medical findings[.]”). 14 The ALJ also noted that Dr. Hudler “apparently relied quite 15 heavily on the subjective report of symptoms and limitations 16 provided by [Plaintiff]” and “seemed to uncritically accept as 17 true most, if not all, of what [she] reported.” 18 Indeed, Dr. Hudler’s treatment notes reveal that she based her 19 opinion in large part on Plaintiff’s subjective complaints and 20 self-reported history. 21 “reports ongoing anxiety despite treatment”), 522 (noting that 22 Plaintiff gave “vague answers” to questions and listing 23 Plaintiff’s self-reported symptoms), 526 (noting Plaintiff’s 24 reports that certain drugs were ineffective).) 25 that “there exist good reasons for questioning the reliability of 26 [Plaintiff’s] subjective complaints” (AR 23) and found her 27 “alleged severity of symptoms” to be “less than fully credible” 28 (AR 24). (AR 23.) (See, e.g., AR 467 (noting that Plaintiff The ALJ noted A treating doctor’s reliance on a claimant’s incredible 33 1 subjective complaints is a legally sufficient basis to give that 2 doctor’s opinion limited weight. 3 at 1149 (“Because the present record supports the ALJ in 4 discounting [claimant’s] credibility . . . he was free to 5 disregard [treating physician’s] opinion, which was premised on 6 her subjective complaints.”); Tommasetti, 533 F.3d at 1041 (“An 7 ALJ may reject a treating physician’s opinion if it is based to a 8 large extent on a claimant’s self-reports that have been properly 9 discounted as incredible.” (citation omitted)); Fair, 885 F.2d at See, e.g., Tonapetyan, 242 F.3d 10 605 (finding that ALJ properly disregarded physician’s opinion 11 when premised on claimant’s subjective complaints, which ALJ had 12 already discounted). 13 A plaintiff’s lack of effort, however, may not be used to 14 discredit a treating doctor’s opinion when that doctor expressly 15 considered the lack of effort in his or her findings. 16 v. Colvin, 608 F. App’x 519, 520 (9th Cir. 2015) (claimant’s 17 “lackluster effort” not a legitimate reason to discount treating 18 doctor’s conclusions when doctor “expressly took into account 19 [claimant’s] lack of cooperation in formulating his 20 conclusions”). 21 opinion limited weight based in any part on her acceptance of the 22 results of Plaintiff’s August 8, 2013 mental-status exam despite 23 her lack of effort. 24 other specific and legitimate reasons for giving limited weight 25 to Dr. Hudler’s opinion, however, any error would be harmless. 26 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th 27 Cir. 2006) (nonprejudicial or irrelevant mistakes harmless); 28 Donathan v. Astrue, 264 F. App’x 556, 559 (9th Cir. 2008) (when See Ogin It is not clear whether the ALJ gave Dr. Hudler’s (See AR 23-24.) 34 Because the ALJ gave two 1 ALJ provided proper, independent reasons to reject treating 2 physician’s opinions, any error ALJ may have made as to other 3 reasons was harmless and inconsequential).18 4 Plaintiff argues that “the opinion of a non-examining 5 physician cannot by itself constitute substantial evidence that 6 justifies the rejection of the opinion of either an examining 7 physician or a treating physician.” 8 not true. 9 by the record as a whole” (AR 23), which included independent (J. Stip. at 10.) That is The state-agency consultants’ opinions were “supported 10 clinical findings by doctors other than Dr. Hudler that the 11 state-agency doctors reviewed (see, e.g., AR 71-72 (Dr. Gilpeer 12 citing health-center medical examinations), 91 (Dr. DeSouza 13 relying on same and additional examination), 94 (Dr. Balson 14 relying on Dec. 2012 health-center assessment)). 15 sufficient to constitute substantial evidence. 16 F.3d at 957 (“The opinions of non-treating or non-examining 17 physicians may also serve as substantial evidence when the 18 opinions are consistent with independent clinical findings or 19 other evidence in the record.”). That was See Thomas, 278 20 21 22 23 24 25 26 27 28 18 The ALJ also noted “[t]he possibility . . . that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes for one reason or another” and “that patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patient’s requests and avoid unnecessary doctor/patient tension.” (AR 23-24.) Because the ALJ provided other legally sufficient reasons for rejecting Dr. Hudler’s opinion, the Court need not decide whether this was error. See Stout, 454 F.3d at 1055; Donathan, 264 F. App’x at 559. 35 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),19 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 7 DATED: September 28, 2016 8 ______________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 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.” 36

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