Mark Anthony Pruitt v. Carolyn W. Colvin, No. 5:2016cv02416 - Document 21 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)
Download PDF
Mark Anthony Pruitt v. Carolyn W. Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARK ANTHONY PRUITT, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. EDCV 16-2416-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for supplemental security income benefits 21 (“SSI”). 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 matter is before the Court on the parties’ Joint Stipulation, 24 filed July 5, 2017, which the Court has taken under submission 25 without oral argument. 26 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, the 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in 1957. 3 43, 247.) 4 (Administrative Record (“AR”) as a laborer in 2004 (AR 297). 5 He has a ninth-grade education (AR 43) and last worked On November 13, 2012, Plaintiff applied for SSI, alleging 6 that he had been disabled since February 17, 2008 (AR 247), 7 because of “paranoid schizophrenia, [chronic obstructive 8 pulmonary disease], deafness, high cholesterol and auditory 9 hallucinations” (see AR 165).2 After his application was denied 10 initially and upon reconsideration (id.), he requested a hearing 11 before an Administrative Law Judge (AR 172). 12 on February 10, 2015, at which Plaintiff, who was represented by 13 a nonattorney from a law firm (AR 211), testified, as did a 14 vocational expert. 15 held on June 2, 2015, primarily regarding the VE’s testimony. 16 (AR 65-101.) 17 found Plaintiff not disabled. 18 review and submitted additional medical evidence. 19 566-83.) 20 review, finding that the additional evidence did not provide a 21 basis for changing the ALJ’s decision. (See AR 39-64.) A hearing was held A supplemental hearing was In a written decision issued July 2, 2015, the ALJ (AR 20-38.) Plaintiff requested (See AR 18, On September 23, 2016, the Appeals Council denied (AR 1-4.) The council 22 2 23 24 25 26 27 28 Plaintiff previously applied for SSI on March 24, 2006. (See AR 23.) The application was denied, and the decision was affirmed by an ALJ on May 19, 2008. (Id.) Though the case was remanded by the district court, the denial was again affirmed on November 19, 2010, and Plaintiff did not appeal. (Id.) The ALJ here found that Plaintiff had demonstrated changed circumstances since that final decision, however (AR 24), in the form of physical impairments, and thus the Chavez presumption does not apply. See Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1995) (as amended Apr. 9, 1996) (citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988)). Defendant does not contend otherwise. 2 1 ordered that the new evidence be made part of the administrative 2 record. 3 III. STANDARD OF REVIEW 4 (AR 5.) This action followed. Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The ALJ’s findings and 6 decision should be upheld if they are free of legal error and 7 supported by substantial evidence based on the record as a whole. 8 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 9 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 10 evidence means such evidence as a reasonable person might accept 11 as adequate to support a conclusion. 12 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 13 It is more than a scintilla but less than a preponderance. 14 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 15 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 16 substantial evidence supports a finding, the reviewing court 17 “must review the administrative record as a whole, weighing both 18 the evidence that supports and the evidence that detracts from 19 the Commissioner’s conclusion.” 20 720 (9th Cir. 1998). 21 either affirming or reversing,” the reviewing court “may not 22 substitute its judgment” for the Commissioner’s. 23 IV. Richardson, 402 U.S. at To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 24 People are “disabled” for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a physical or mental impairment that is 27 expected to result in death or has lasted, or is expected to 28 last, for a continuous period of at least 12 months. 3 42 U.S.C. 1 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 2 1992). 3 A. The Five-Step Evaluation Process 4 The ALJ follows a five-step sequential evaluation process to 5 assess whether a claimant is disabled. 6 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 7 1995) (as amended Apr. 9, 1996). 8 Commissioner must determine whether the claimant is currently 9 engaged in substantial gainful activity; if so, the claimant is 10 20 C.F.R. In the first step, the not disabled and the claim must be denied. § 416.920(a)(4)(i). 11 If the claimant is not engaged in substantial gainful 12 activity, the second step requires the Commissioner to determine 13 whether the claimant has a “severe” impairment or combination of 14 impairments significantly limiting his ability to do basic work 15 activities; if not, the claimant is not disabled and his claim 16 must be denied. 17 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 18 impairments, the third step requires the Commissioner to 19 determine whether the impairment or combination of impairments 20 meets or equals an impairment in the Listing of Impairments set 21 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 22 disability is conclusively presumed. § 416.920(a)(4)(iii). 23 If the claimant’s impairment or combination of impairments 24 does not meet or equal an impairment in the Listing, the fourth 25 step requires the Commissioner to determine whether the claimant 26 27 28 4 1 has sufficient residual functional capacity (“RFC”)3 to perform 2 his past work; if so, he is not disabled and the claim must be 3 denied. 4 proving he is unable to perform past relevant work. 5 F.2d at 1257. 6 case of disability is established. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 7 If that happens or if the claimant has no past relevant 8 work, the Commissioner then bears the burden of establishing that 9 the claimant is not disabled because he can perform other 10 substantial gainful work available in the national economy. 11 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 12 comprises the fifth and final step in the sequential analysis. 13 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 14 at 1257. That determination 15 B. 16 At step one, the ALJ found that Plaintiff had not engaged in 17 The ALJ’s Application of the Five-Step Process substantial gainful activity since the application date.4 (AR 18 19 20 21 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 22 4 23 24 25 26 27 28 The ALJ incorrectly noted Plaintiff’s application date as October 31, 2012, instead of November 13. (Compare AR 26, with AR 247.) But the mistake was harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ’s error “harmless” when “the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion”). Because “SSI can only be paid beginning the month after an application is filed,” the relevant period begins on the application date and runs until the date of the ALJ’s decision. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1000-01 & n.1 (9th Cir. 2015) (as amended) (citing § 416.335). 5 1 26.) 2 impairments: “schizophrenia; bipolar disorder; borderline 3 intellectual functioning; a history of polysubstance abuse, 4 including cocaine and alcohol; severe mixed hearing loss on the 5 left and severe mixed hearing loss on the right; and a 6 respiratory disorder.” 7 he did not have an impairment or combination of impairments 8 falling under a Listing. 9 At step two, she concluded that he had the following severe (AR 26.) At step three, she found that (Id.) At step four, the ALJ found that Plaintiff had the RFC to 10 perform “a full range of work at all exertional levels,” subject 11 to the following nonexertional limitations: 12 nonpublic; 13 proximity to others but no tasks that require teamwork[;] 14 cannot perform detailed tasks[;] cannot perform work 15 where he would be responsible for the health and safety 16 of others or require hypervigilance; should have verbal 17 instructions rather than written instructions; should 18 work in a quiet environment; cannot be required to 19 communicate with others unless he can look directly at 20 them with minimal to no background noise; should not be 21 exposed to concentrated respiratory irritants.5 noncomplex routine tasks; can work in 22 5 23 24 25 26 27 28 The ALJ’s RFC partially tracks the RFC determined by the previous ALJ on November 19, 2010: [C]laimant has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is capable of performing simple repetitive tasks with no intense contact with the public, co-workers, or supervisors. He cannot perform detailed tasks; he cannot perform work where he would be responsible for the health and safety of others, and he should have verbal instructions rather 6 1 (AR 28.) Based on the VE’s testimony, the ALJ concluded that 2 Plaintiff could not perform any past relevant work. 3 step five, however, given his “age, education, work experience, 4 and [RFC],” she determined that he could successfully find work 5 in the national economy. 6 not disabled. 7 V. (Id.) (AR 31.) At Thus, the ALJ found Plaintiff (AR 32.) DISCUSSION 8 Plaintiff argues that the ALJ erred in (1) evaluating the 9 medical-opinion evidence of record and determining his “mental 10 functional capacity,” (2) evaluating the credibility of his 11 subjective symptom statements, and (3) relying on “flawed” VE 12 testimony. 13 the ALJ did not err. 14 A. 15 (J. Stip. at 3.) For the reasons discussed below, The ALJ Properly Evaluated the Medical-Opinion Evidence and Determined Plaintiff’s RFC 16 Plaintiff argues that the ALJ erred in assessing the 17 medical-opinion evidence provided by Dr. Jeffrey C. Moffat, Jr. 18 (J. Stip. at 4), and did not give any explanation for her mental- 19 RFC finding (id. at 12-13). 20 1. Applicable law 21 A claimant’s RFC is “the most [he] can still do” despite 22 impairments and related symptoms that “may cause physical and 23 mental limitations that affect what [he] can do in a work 24 setting.” 25 ALJ’s RFC assessment when the ALJ has applied the proper legal § 416.945(a)(1). A district court must uphold an 26 27 28 than written instructions. (AR 109.) 7 1 standard and substantial evidence in the record as a whole 2 supports the decision. 3 (9th Cir. 2005). 4 “together with the rest of the relevant evidence.” 5 see also § 416.945(a)(1) (“We will assess your residual 6 functional capacity based on all the relevant evidence in your 7 case record.”). 8 Bayliss v. Barnhart, 427 F.3d 1211, 1217 The ALJ must consider all the medical opinions § 416.927(b); Three types of physicians may offer opinions in Social 9 Security cases: those who directly treated the plaintiff, those 10 who examined but did not treat the plaintiff, and those who did 11 neither. 12 is generally entitled to more weight than an examining doctor’s, 13 and an examining physician’s opinion is generally entitled to 14 more weight than a nonexamining physician’s. 15 § 416.927(c)(1).6 Lester, 81 F.3d at 830. A treating physician’s opinion Id.; see 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 v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). But “the 19 20 21 22 23 24 25 26 27 28 6 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”). Accordingly, citations to 20 C.F.R. § 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 8 1 findings of a nontreating, nonexamining physician can amount to 2 substantial evidence, so long as other evidence in the record 3 supports those findings.” 4 (9th Cir. 1996) (per curiam) (as amended). 5 Saelee v. Chater, 94 F.3d 520, 522 The ALJ may disregard a treating physician’s opinion 6 regardless of whether it is contradicted. 7 881 F.2d 747, 751 (9th Cir. 1989). 8 opinion is not contradicted by other medical-opinion evidence, 9 however, it may be rejected only for “clear and convincing” Magallanes v. Bowen, When a treating physician’s 10 reasons. 11 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830- 12 31). 13 “specific and legitimate reasons” for discounting it. 14 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 15 Id.; see Carmickle v. Comm’r, Soc. Sec. Admin., 533 When it is contradicted, the ALJ must provide only Carmickle, In determining an RFC, the ALJ should consider those 16 limitations for which there is support in the record and need not 17 take into account properly rejected evidence or subjective 18 complaints. 19 determination because “the ALJ took into account those 20 limitations for which there was record support that did not 21 depend on [claimant]’s subjective complaints”); Batson v. Comm’r 22 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 23 required to incorporate into RFC those findings from physician 24 opinions that were “permissibly discounted”). 25 findings by state-agency medical consultants and experts as 26 opinion evidence. 27 ultimate issues reserved to the Commissioner, such as a 28 claimant’s RFC or the application of vocational factors, are not See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC § 416.927(e). The ALJ considers Medical-source opinions on 9 1 2 medical opinions and have no special significance. § 416.927(d). Furthermore, “[t]he ALJ need not accept the opinion of any 3 physician . . . if that opinion is brief, conclusory, and 4 inadequately supported by clinical findings.” 5 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson, 359 6 F.3d at 1195. 7 physician’s opinion or a portion of it; the court may draw 8 “specific and legitimate inferences” from the ALJ’s opinion. 9 Magallanes, 881 F.2d at 755. Thomas v. An ALJ need not recite “magic words” to reject a “[I]n interpreting the evidence and 10 developing the record, the ALJ does not need to ‘discuss every 11 piece of evidence.’” 12 1006, 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383, 13 386 (8th Cir. 1998)). 14 Howard ex rel. Wolff v. Barnhart, 341 F.3d The Court must consider the ALJ’s decision in the context of 15 “the entire record as a whole,” and if the “‘evidence is 16 susceptible to more than one rational interpretation,’ the ALJ’s 17 decision should be upheld.” 18 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 19 20 2. Ryan v. Comm’r of Soc. Sec., 528 Relevant background Between 2009 and 2012, Plaintiff was incarcerated and 21 received psychiatric treatment for auditory hallucinations and 22 paranoia (see AR 349-425), and he has apparently received 23 treatment for mental-health issues since at least 2004 (see AR 24 433, 435). 25 assessment of functioning (“GAF”) scores ranging from 53 to 65. While incarcerated, Plaintiff was assigned global 26 27 28 10 1 (See, e.g., AR 360, 362, 364.)7 2 compliant with his prescribed medication regimen and 3 inconsistently stable. 4 example, in 2010, Plaintiff reported “doing well” and said his 5 “[s]ymptoms [were] under control with medication.” 6 also AR 352.) 7 because he didn’t think he “need[ed] them anymore” (AR 359, 361) 8 and reported “no problems” when off medication 9 hallucinations returned during periods of stress, such as when He was noted to be marginally (See, e.g., AR 350, 359, 365, 385.) For (AR 350; see In 2011, he asked to discontinue his medications (AR 362-64). His 10 his fiancé“lost custody of her daughter” (AR 365), but when he 11 started taking his medications again, he reported feeling better 12 and having no symptoms (AR 385, 387). 13 reported hallucinations when stressed by his “wife’s likely 14 infidelity” and paranoia “thinking that other[s] are after him” 15 (AR 413 (May 2012), 415-16 (Apr. 2012)) but was otherwise 16 compliant with medication and reported no hallucinations and 17 decreased paranoia (AR 408 (Sept. 2012), 409-10 (Aug. 2012), 411 18 (July 2012), 412 (June 2012), 417-18 (Mar. 2012), 419-20 (Feb. Similarly, in 2012, he 19 20 21 22 23 24 25 26 27 28 7 A GAF score of 61 to 70 indicates mild symptoms in one area or difficulty in social, occupational, or school functioning but the person is generally functioning well with some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). A score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id. The Commissioner has declined to endorse GAF scores, Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 C.F.R. pt. 404) (GAF score “does not have a direct correlation to the severity requirements in our mental disorders listings”), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice. Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2012). 11 1 2012)). 2 Counseling, where he was seen by psychiatrists Romeo Villar and 3 Jeffrey C. Moffat, Jr., among others. 4 After his release, he was treated at Phoenix Community (See AR 508-83.) Dr. Villar began seeing Plaintiff in January 2013. 5 (AR 516.) 6 hallucinations and mood disorder, continued his medications, and 7 observed his condition improving. 8 January and April, Plaintiff reported hallucinations “tell[ing] 9 [him] to spit on people.” Throughout 2013, he monitored Plaintiff’s auditory (See AR 511-16.) (AR 514-16.) Between But by June, he reported 10 that his “medication [was] helping” and that he had residual 11 hallucinations that occurred “once in a while” or were “on [and] 12 off [but] not bad.” 13 (See AR 511-13.) In October 2013, Dr. Villar completed a “Mental Disorder 14 Questionnaire.” 15 had mental-illness symptoms, including auditory hallucinations 16 and paranoia, but was “oriented,” could “communicate fairly,” and 17 had “fair” memory and “average intelligence.” 18 did not need personal assistance during the interview and was 19 cooperative. 20 completion [were] very poor,” he “[did] not show any symptoms of 21 acute psychosis or acute depression” and was found “competent to 22 manage funds on his[] own behalf.” 23 reported that he helped with household chores, cooked, and took 24 care of his personal grooming. 25 subsequent visits with Plaintiff indicated he was compliant with 26 medication and had hallucinations and mood swings less often. 27 (See AR 528 (Nov. 2013: reporting “happy” with medication, no 28 hallucinations, and mood swings “sometimes”), 542 (Jan. 2014: (AR 521-25.) (Id.) In it, he observed that Plaintiff (AR 521-22.) He Though his “concentration [and] task (AR 522-25.) (AR 523.) 12 Plaintiff also Dr. Villar’s 1 reporting residual hallucinations and mood swings “sometimes”), 2 541 (Mar. 2014: compliant with medication and reporting 3 “medication help[ing]”), 540 (May 2014: reporting hallucinations 4 “still there [but] not as bad”); see also AR 539 (June 2014: 5 compliant with medication and reporting to another doctor that 6 his hallucinations were intermittent).) 7 In January and March 2013, Plaintiff’s medical records were 8 reviewed by consulting psychologists Robert Liss and Harvey 9 Bilik, who found Plaintiff not disabled. (AR 133-34, 137-40, 10 151-52, 155-58.) 11 decision, that Plaintiff’s credibility regarding his allegations 12 was “an ongoing problem” that made assessment of his functional 13 limitations difficult. 14 Plaintiff’s “reported symptoms and observed signs” did not 15 “suggest any significant worsening of [his] alleged impairments” 16 since his November 19, 2010 SSI denial. 17 Plaintiff to have some moderate limitations in “understanding and 18 memory,” “concentration and persistence,” “social 19 interaction[s],” and “adaptation,” Plaintiff could “understand 20 and remember simple and some detailed — but not complex — 21 instructions,” “carry out simple and some detailed — but not 22 complex — instructions over the course of a normal workweek,” 23 “interact appropriately with others[] but may benefit from 24 reduced interactions with the public,” and “adapt.” 25 Dr. Bilik reaffirmed those findings. 26 particular, he found Plaintiff’s hallucinations to be “of limited 27 credibility,” referencing the prior ALJ decision, and gave 28 “greatest weight” to findings that he had a “60-63” GAF score and Dr. Liss noted, based on the earlier ALJ’s (AR 134.) 13 He nonetheless found that (Id.) Though he found (AR 137-39.) (AR 152, 155-57.) In 1 2 was relatively stable. (AR 149.) On January 22, 2013, Plaintiff completed an Adult Function 3 Report. (AR 278-86.) He reported “hearing voices,” not sleeping 4 well, and being “afraid of some people at times,” which limited 5 his ability to work. 6 all day and did not spend time with others, he also noted that he 7 had no problem with personal care; prepared meals “monthly”; did 8 laundry, ironing, and other “household work”; used public 9 transportation; shopped in stores; paid bills; did not have “any (AR 278.) Though he said he did “nothing” 10 problems getting along with family, friends, neighbors, or 11 others”; and had had no changes in his social activities since 12 his “conditions began.” 13 along “fairly well” with “authority figures,” such as “police, 14 bosses, landlords or teachers.” 15 Disability Report, Plaintiff stated that his condition had not 16 changed since June 2013 (AR 309) and that he could take care of 17 his “personal needs, but at a slower rate of time” (AR 312). 18 (AR 279-83.) He also stated that he got (AR 284.) In a January 2014 In August 2014, Plaintiff began seeing Dr. Moffat, who first 19 noted that his medication compliance was “poor” because he had 20 run out of his “meds” for four days. 21 2014 visit with Dr. Moffat indicating “fair” compliance with 22 medication despite being “out of meds for 7 days”).) 23 also had “started drinking . . . to reduce paranoia” (AR 538), 24 but by September 2014 he was “sober” because he “[hadn’t] had 25 urges to drink” (AR 537). 26 attend therapy, but he refused because of a monthlong trip he was 27 taking in October 2014. 28 again declined therapy in December 2014 because he was not (AR 538; cf. AR 549 (Nov. Plaintiff Dr. Moffat recommended that Plaintiff (AR 537; see also AR 559 (Plaintiff 14 1 “ready”).) In November 2014, Plaintiff, after being “confronted 2 with lab results,” “admit[ted] to issues with medication 3 compliance” and reported “ongoing hallucinations [and] paranoia.” 4 (AR 558.) 5 “goin’ [his] way.” 6 Mental Impairment Questionnaire (AR 543-47), in which he noted 7 that Plaintiff had “severe paranoia,” “PTSD-related avoidance 8 symptoms,” “hallucinations,” and “severe memory and concentration 9 deficits” (AR 545). Plaintiff said he was “agitated” because SSI was not (Id.) At that time, Dr. Moffat completed a He assigned Plaintiff a GAF score of 45 and 10 found him to have moderate, moderate to marked, and marked 11 limitations in understanding and memory, concentration and 12 persistence, and social interactions.8 13 found that Plaintiff had a St. Louis University Mental Status 14 Examination (“SLUMS”) score of 18 out of 30, which put “his 15 cognitive ability in the ‘Dementia’ range.” 16 concluded that Plaintiff could not work because his “mental 17 conditions . . . severely limit[ed] his ability to interact with 18 strangers [and] the public, and to concentrate or remember 19 details of a routine work schedule.” (AR 543, 546.) (AR 545.) He also He (AR 547.) 20 Dr. Moffat’s subsequent visits with Plaintiff through the 21 date of the ALJ’s decision, July 2, 2015, showed his condition 22 improving. 23 linear thought processes; he had some or no hallucinations; his 24 insight and judgment were “good”; he had “good” compliance with (See, e.g., AR 559-66.) He noted that Plaintiff had 25 26 8 27 28 A GAF score of 41 to 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). 15 1 medication; and his “mood, psychosis, and anxiety” were stable. 2 (See, e.g., AR 559 (Dec. 2014), 563 (Feb. 2015), 562 (Apr. 3 2015).) 4 family and having “a few drinks.” 5 Plaintiff also reported enjoying Christmas with his (AR 559.) The record contains notes from after the ALJ’s decision.9 6 In a letter to Plaintiff’s counsel dated November 13, 2015, Dr. 7 Moffat reaffirmed his November 2014 opinion. 8 Referencing the findings in his earlier questionnaire, he stated 9 that Plaintiff was unable to work because his “paranoia limit[ed] (AR 566.) 10 his ability to interact with [the] public” and he had severe 11 “cognitive deficits.” 12 “cognitive function test[ed] in the demented range on the SLUMS 13 test,” again referencing the 2014 questionnaire. (Id.) He also stated that Plaintiff’s (Id.) 14 In visits with Dr. Moffat between June and October 2015, 15 Plaintiff consistently demonstrated linear thought processes, 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Social Security Administration regulations “permit claimants to submit new and material evidence to the Appeals Council and require the Council to consider that evidence in determining whether to review the ALJ’s decision, so long as the evidence relates to the period on or before the ALJ’s decision.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); see also § 416.1470(b). “[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence.” Brewes, 682 F.3d at 1163; accord Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm’r of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014) (remand necessary when “reasonable possibility” exists that “the new evidence might change the outcome of the administrative hearing”). The Appeals Council considered “the additional evidence” provided to it, including a November 2015 letter from Dr. Moffat and medical records from April 2015 through July 2016, and found no “basis for changing the [ALJ’s] decision.” (AR 2, 4.) 16 1 “good memory,” “good” insight and judgment, and “good” medication 2 compliance. 3 because “Seroquel10 helped [him] sleep,” his hallucinations had 4 “much improved,” and his paranoia was “not as bad.” 5 In August, however, he reported being “off meds for 2 weeks” and 6 experiencing “worsening paranoia” and hallucinations. 7 (“He reports he can’t function well off his medications.”).) 8 October, he reported improvement with hallucinations, paranoia 9 “at times,” and being at “a friend’s house,” where he suffered a (AR 573-74, 576.) 10 head injury. 11 his ongoing SSI hearings. 12 (AR 573.) He reported feeling better (AR 576.) (AR 574 By He continued to have stress concerning (Id.) In a December 2015 visit with a different doctor at Phoenix 13 Community Counseling, Plaintiff reported “doing well since his 14 last appointment” and that “his medications . . . kept him 15 stable.” 16 spending time with family for Christmas” and was not experiencing 17 hallucinations or side effects from his medication. 18 doctor observed that Plaintiff had “a good support system with 19 his father” and that he was “goal directed” and had “logical” 20 thought forms, a “grossly intact” memory, “[n]o overt psychosis,” 21 and “good” medication compliance. 22 (AR 572.) He stated that he was “look[ing] forward to (Id.) The (Id.) In visits with Dr. Moffat during the first half of 2016, 23 Plaintiff continued to demonstrate linear thought processes, 24 “good memory,” “good” insight and judgment, and “good” medication 25 26 27 28 10 Seroquel is the name-brand version of quetiapine, an atypical antipsychotic used to treat the symptoms of schizophrenia, mania, and depression. See Quetiapine, MedlinePlus, https://medlineplus.gov/druginfo/meds/a698019.html (last updated July 15, 2017). 17 1 compliance. 2 hallucinations or delusions. 3 same. 4 stated that his mood was “good” and “stable despite being off 5 Depakote”11 and that he had been “talking with an ex-girlfriend 6 for about one year via telephone.” (AR 568). 7 8 9 (AR 567-68, 70.) 3. In March, he reported no (AR 570.) In May, he reported the And in July, he reported the same again and (AR 567) Analysis The ALJ gave “little weight” to Dr. Moffat’s opinion (AR 30) and provided specific and legitimate reasons for doing so: (1) 10 the opinion was “inconsistent with the findings of attending 11 psychiatrist Romeo Villar” (id.); (2) it “conflict[ed] with 12 progress notes” showing that when Plaintiff was “compliant with 13 following prescribed treatment” and “taking his psychotropic 14 medications,” his “symptoms and mood [were] stable,” he reported 15 “doing well,” he “declined mental health treatment,” and he had 16 received GAF scores “rang[ing] between 60 to 65” (id.); (3) the 17 opinion was undermined by his “ability to use public 18 transportation, get along with family members and interact with 19 medical personnel” (AR 29); and (4) the opinion that he was 20 “disabled” or “unable to work” was “not entitled to any special 21 significance” (id.). 22 reasons were supported by substantial evidence in the record, the 23 ALJ did not err. Because these specific and legitimate 24 25 26 11 27 28 Depakote is the name-brand version of valproic acid, an anticonvulsant used to treat seizures and mania. See Valproic Acid, MedlinePlus, https://medlineplus.gov/druginfo/meds/ a682412.html (last updated July 15, 2017). 18 1 a. 2 Contradicted by other medical-opinion evidence 3 Plaintiff argues that the ALJ did not explain how Dr. 4 Moffat’s opinion was inconsistent with Dr. Villar’s and thus no 5 evidence contradicted his opinion. 6 Accordingly, Dr. Moffat’s opinion, Plaintiff contends, should be 7 given controlling weight. 8 SSR 96-2p, 1996 WL 374188 (July 2, 1996)).) 9 did not err in this regard, and Dr. Moffat’s opinion was properly (J. Stip. at 11.) (Id. at 11-12 (citing § 416.927(c)(2); The ALJ, however, 10 discounted based on specific and legitimate reasons. 11 Carmickle, 533 F.3d at 1164. 12 See Though Plaintiff correctly highlights that both Dr. Villar 13 and Dr. Moffat observed that Plaintiff had hallucinations, 14 paranoia, and “very poor” concentration and task completion (J. 15 Stip. at 11 (citing AR 521-24; see also AR 545), Dr. Villar’s 16 opinion and treatment records otherwise contradicted Dr. 17 Moffat’s. 18 opinion stated that Plaintiff was “oriented” and had “fair” 19 memory. 20 deficits).) 21 intelligence,” and was “competent to manage [his own] funds,” 22 according to Dr. Villar. 23 noting Plaintiff’s “cognitive ability in the ‘Dementia’ range”). 24 Moreover, as highlighted by the ALJ, Dr. Villar found “no 25 evidence of psychotic symptoms” or “other significant objective 26 abnormalities.” 27 Villar noting no “symptoms of acute psychosis or acute 28 depression”; cf. AR 545 (on Nov. 25, 2014, Dr. Moffat noting For example, as the ALJ noted (AR 30), Dr. Villar’s (AR 522; cf. AR 545 (Dr. Moffat noting “severe” memory He could “communicate fairly,” demonstrated “average (AR 522, 525; cf. AR 545 (Dr. Moffat (AR 30; see also AR 523 (on Oct. 22, 2013, Dr. 19 1 “severe paranoia” and “PTSD-related avoidance symptoms”)). 2 further contrast to Dr. Moffat’s opinion, Dr. Villar’s treatment 3 notes throughout 2013 and 2014 indicated that Plaintiff’s 4 condition was not disabling: he was compliant with his 5 medications and experienced less or no hallucinations because the 6 “medication help[ed].” 7 Plaintiff reported that he was “happy” with his medications 8 (AR 528) and that any hallucinations he experienced were only 9 “mild residual symptoms” (AR 542). (See, e.g., AR 527-28, 540-41.) In Indeed, Thus, Dr. Moffat’s medical 10 opinion was contradicted by Dr. Villar’s, and the ALJ was correct 11 in discounting it accordingly.12 12 (9th Cir. 2002); Batson, 359 F.3d at 1195. 13 b. 14 See Thomas, 278 F.3d at 957 Inconsistent with medical records The ALJ properly found that Dr. Moffat’s opinion conflicted 15 with treatment notes throughout the record showing that when 16 Plaintiff was “compliant with . . . medications,” “his symptoms 17 and mood [were] stable” and “he [was] doing well.” 18 Moffat’s own treatment notes, for instance, indicated that 19 Plaintiff was stable and that his hallucinations or delusions 20 were controlled with medication. 21 576.) 22 experiencing less or no hallucinations and had been compliant 23 with medication. 24 through the first half of 2016 showed the same. (AR 30.) Dr. (See, e.g., AR 559, 562, 563, Throughout 2015 Dr. Moffat noted that Plaintiff was (See AR 559, 562-63, 576.) Treatment notes (See AR 567-68, 25 26 27 28 12 The differences in the two opinions cannot be explained by their different time frames. Plaintiff stated that his symptoms remained relatively stable (see, e.g., AR 309), and if anything his symptoms improved over time, as he remained compliant with his medicines (see, e.g., AR 511-13, 541, 559). 20 1 570.) And, despite Dr. Moffat’s conclusion that Plaintiff had 2 severe concentration and memory deficits (AR 545-46), his 3 treatment notes frequently indicated that Plaintiff had good 4 memory and was alert and oriented (see, e.g., AR 576 (June 2015), 5 574 (Aug. 2015)). 6 unsupported by the weight of his own treatment notes. 7 Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 8 (physician’s opinion properly rejected when treatment notes 9 “provide[d] no basis for the functional restrictions he opined Thus, Dr. Moffat’s medical opinion was See 10 should be imposed on [plaintiff]”); Rollins v. Massanari, 261 11 F.3d 853, 856 (9th Cir. 2001) (ALJ permissibly rejected 12 physician’s opinion when it was contradicted by or inconsistent 13 with treatment reports); see also Thomas, 278 F.3d at 957 (ALJ 14 need not accept doctor’s opinion that “is brief, conclusory, and 15 inadequately supported by clinical findings”). 16 Moreover, Dr. Moffat’s opinion that Plaintiff had moderate, 17 moderate to marked, and marked limitations in understanding, 18 memory, concentration, persistence, and social interactions were 19 expressed through an inadequately substantiated check-off report 20 provided by Plaintiff’s counsel. 21 argues that Dr. Moffat appropriately supported his opinion by 22 “identifying numerous mental status abnormalities and 23 psychological testing.” 24 (same).) 25 attributing them to his “severe paranoia” and “hallucinations” 26 (AR 545), but that explanation was conclusory and failed to 27 indicate any efforts taken by Dr. Moffat to “determine the 28 capacity found therein.” (See AR 544-46.) Plaintiff (J. Stip. at 7 (citing AR 544-45), 12 Indeed, he justified Plaintiff’s social limitations by De Guzman v. Astrue, 343 F. App’x 201, 21 1 208-09 (9th Cir. 2009) (ALJ was “free to reject” doctor’s 2 check-off report that did not “indicate any measuring of effort 3 or give[] a description” of how patient was evaluated (alteration 4 in original)). 5 concentration and memory limitations with his SLUMS score of 18 6 out of 30, indicating that his cognitive abilities were in the 7 “dementia” range (AR 545), such a finding was unsupported by 8 anything in the medical record and “out of proportion to any 9 findings” even in Dr. Moffat’s treatment notes, as discussed To the extent Dr. Moffat justified Plaintiff’s 10 above. 11 opinion, written in November 2014, was formed only three months 12 after he began seeing Plaintiff. 13 Dr. Moffat reiterated the same opinion in November 2015 without 14 any indication that new psychiatric tests or examinations were 15 conducted to sustain his findings. 16 F.3d at 957 (ALJ may discredit opinion that is “inadequately 17 supported by clinical findings”); Crane v. Shalala, 76 F.3d 251, 18 253 (9th Cir. 1996) (ALJ permissibly rejected psychological 19 evaluations “because they were check-off reports that did not 20 contain any explanation of the bases of their conclusions”); see 21 also Batson, 359 F.3d at 1195 (“[A]n ALJ may discredit treating 22 physicians’ opinions that are conclusory, brief, and unsupported 23 by the record as a whole . . . or by objective medical 24 findings[.]”). 25 De Guzman, 343 F. App’x at 208-09. Further still, his See § 416.927(c)(2)(i). And (AR 566); see Thomas, 278 Plaintiff also argues that the ALJ relied on treatment 26 records from before the relevant period. (J. Stip. at 10 (citing 27 AR 385, 387, 390, 408).) 28 Plaintiff’s prison medical records, which predate his recent SSI Though the ALJ indeed cited to 22 1 application (see AR 30 (citing AR 385, 387, 390, 408)), he also 2 relied on records from August, September, and November 2013 and 3 December 2014 (id. (citing AR 511-12, 528-29, 559)). 4 records indicated that Plaintiff was doing “well” (AR 511), his 5 hallucinations occurred “once in a while” and were “not bad” (AR 6 511-12), he was “happy” with his medications (AR 528), and by 7 December 2014, he had no hallucinations and even reported 8 enjoying Christmas and having “a few drinks” with his family 9 during the holiday (AR 559). Those Such findings were reinforced by 10 other treatment notes during the relevant period showing his 11 compliance with medication and improved symptoms. 12 513 (June 2013), 521-25 (Oct. 2013), 542 (Jan. 2014), 541 (Mar. 13 2014), 540 (May 2014), 539 (June 2014), 563 (Feb. 2015), 562 14 (Apr. 2015), 576 (June 2015), 574 (Aug. 2015).) 15 (See, e.g., AR Plaintiff also argues that statements that he was “doing 16 well” and that medication was “helping” him suggested “nothing 17 about his capacity to withstand the demands of full-time work,” 18 relying on Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014), 19 for the proposition that treatment records demonstrating 20 improvement “must be viewed in light of the overall diagnostic 21 record.” 22 Plaintiff’s argument is unconvincing. 23 “doing well” and that medication was “helping” him were relied on 24 by the ALJ to assess whether Dr. Moffat’s medical opinion was 25 substantiated by his treatment notes; such reports undermined the 26 severity of that opinion by showing Plaintiff’s improved 27 condition. 28 Plaintiff’s subjective symptom testimony, see 763 F.3d at 1164, (J. Stip. at 10 (citing AR 511, 512, 559).) His reports that he was Unlike in Ghanim, the notes were not used to reject 23 1 but were instead used to discount a treating physician’s medical 2 opinion. 3 adverse assessment of Dr. Moffat’s opinion based on its 4 inconsistency with the record as a whole. 5 at 856.13 6 7 Substantial evidence therefore supports the ALJ’s c. See Rollins, 261 F.3d Inconsistent with activities of daily living The ALJ properly found that Dr. Moffat’s opinion regarding 8 Plaintiff’s “discomfort around others” was undermined by “his 9 ability to use public transportation, get along with family 10 members and interact with medical personnel.” 11 also undermined by Plaintiff’s reported trip in October 2014. 12 (AR 30.) (AR 29.) It was Plaintiff argues that the ALJ “failed to identify 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 The ALJ also discounted Dr. Moffat’s opinion because the GAF score he assessed for Plaintiff of 45 (AR 543) was inconsistent with records showing GAF scores of 60 to 65 (see AR 30 (citing AR 391, 394, 410, 418, 424-24)). Indeed, during the months just before his release from incarceration in September 2012 and the filing of his SSI application in November of that year, Plaintiff was assigned GAF scores of 63 (AR 411 (July 9)), 65 (AR 410 (Aug. 2), 409 (Aug. 27)), and 55 (AR 408 (Sept. 14)). Though the ALJ relied on scores from just before the relevant period, Dr. Moffat’s low GAF finding was inadequately supported and inconsistent with the record as a whole, as discussed above and below, and thus any error was harmless. See Parker v. Comm’r of Soc. Sec., No. 2:16-CV-0087-SMJ, 2017 WL 4158617, at *7 (E.D. Wash. Sept. 19, 2017) (ALJ’s rejection of low GAF scores was supported by substantial evidence showing that “Plaintiff was able to complete her activities of daily living with few limitations”); Smith v. Colvin, No. C14-1530 TSZ, 2016 WL 8710029, at *6 (W.D. Wash. Oct. 14, 2016) (upholding ALJ’s conclusion that medical opinion’s “unjustifiably low” GAF score was not supported by record); see also Thomas, 278 F.3d at 957; Batson, 359 F.3d at 1195. Indeed, “a GAF score is merely a rough estimate of an individual’s psychological, social, or occupational functioning used to reflect an individual’s need for treatment, but it does not have any direct correlative workrelated or functional limitations.” Hughes v. Colvin, 599 F. App’x 765, 766 (9th Cir. 2015) (citing Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998) (as amended)). 24 1 substantial evidence” to support this finding. 2 He argues that “[t]here is absolutely no evidence that he use[d] 3 public transportation on a regular basis or [had] meaningful 4 interactions with others, nor does the record reflect that 5 Plaintiff actually went somewhere for a month or what this trip 6 consisted of.” 7 supports the ALJ’s determination. 8 9 (Id. at 9.) (J. Stip. at 8.) Substantial evidence, however, Plaintiff’s January 2013 function report indicated that he used public transportation; had no problem with personal care; 10 prepared meals “monthly”; did laundry, ironing, and other 11 “household work”; shopped in stores; and paid bills. 12 81.) 13 his “personal needs” (AR 312), and he similarly reported to Dr. 14 Villar that he managed his own funds, helped with household 15 chores, cooked, and took care of his personal grooming (AR 523, 16 525). 17 having “any problems getting along with family, friends, 18 neighbors, or others” (AR 283) and got along “fairly well” with 19 “authority figures,” like “police, bosses, landlords, [and] 20 teachers” (AR 284); his social activities had not changed since 21 his “conditions began” (AR 283). 22 with his family “brought [him] a little joy” and he had “a few 23 drinks” with them. 24 he was “look[ing] forward to spending time with [them again] for 25 Christmas.” 26 reported that he was going on a monthlong trip in October 2014 27 (AR 537), had been at “a friend’s house” around October 2015 (AR 28 573), and in July 2016 had been “talking with an ex-girlfriend (AR 279- His Disability Report indicated that he could take care of Regarding his ability to be around others, he reported not (AR 559.) (AR 572.) In December 2014, Christmas In December of the following year, During visits with Dr. Moffat, Plaintiff 25 1 2 for about one year via telephone” (AR 567). His medical records further demonstrated that he interacted 3 appropriately with medical personnel, who consistently noted that 4 he “appear[ed] well” and “in no acute distress,” was “alert and 5 oriented,” and “verbalized understanding and agreement with [his 6 treatment] plan[s]” (see, e.g., AR 472, 476-77, 480-82, 484), 7 further demonstrating that his ability to be around others was 8 greater than Dr. Moffat opined. 9 hearing testimony suggested otherwise (see AR 50-51 (noting that To the extent Plaintiff’s 10 he got around on bicycle and was not close to his father or 11 siblings)), the ALJ properly found his subjective symptom 12 testimony not entirely credible (AR 28), as discussed below.14 13 Thus, substantial evidence supports the ALJ’s use of Plaintiff’s 14 activities of daily living to discount Dr. Moffat’s medical 15 opinion that he could not work around others. 16 Colvin, 673 F. App’x 787, 787-88 (9th Cir. 2017) (affirming ALJ’s 17 adverse determination of treating physician’s medical opinion 18 because it was “speculative and inconsistent” with activities of 19 daily living), cert. denied sub nom. Coaty v. Berryhill, 137 S. 20 Ct. 2309 (2017); Lunn v. Astrue, 300 F. App’x 524, 525 (9th Cir. 21 2008) (affirming ALJ’s rejection of treating physician’s medical 22 opinion that was “contrary to [plaintiff’s] reports of her daily 23 activities”). 24 See Coaty v. In any event, the ALJ accommodated Plaintiff’s alleged 25 26 27 28 14 Plaintiff stated in his function report that his father encouraged him by telling him he was “do[ing] a good job” (AR 280), and a Phoenix Community Counseling doctor noted that Plaintiff’s dad provided him with “a good support system” (AR 572). 26 1 preference for limited contact with others by finding that he 2 could not work with the public or engage in any “teamwork,” 3 should work in a “quiet environment,” and could communicate with 4 others only in certain specific, limited circumstances. 5 Thus, even if the ALJ erred in her adverse assessment of Dr. 6 Moffat’s opinion on this basis, the error was likely harmless. 7 See Hughes v. Colvin, 599 F. App’x 765, 766 (9th Cir. 2015) 8 (holding potential medical-opinion error harmless when ALJ’s RFC 9 took into account plaintiff’s “moderate difficulties in social (AR 28.) 10 functioning” by restricting her to “job[s] where she could work 11 independently with no more than occasional public interaction”). 12 13 d. Opinion on disability Finally, the ALJ correctly afforded no “special 14 significance” to Dr. Moffat’s conclusion that Plaintiff was 15 “disabled” or “unable to work.” 16 argues that the opinions of treating physicians are generally 17 given greater weight (J. Stip. at 6-7 (citing Garrison v. Colvin, 18 759 F.3d 995, 1012 (9th Cir. 2014)), the ALJ was not obligated to 19 accept a medical-source statement regarding Plaintiff’s ultimate 20 disability status. 21 medical source that you are ‘disabled’ or ‘unable to work’ does 22 not mean that we will determine that you are disabled.”); SSR 96- 23 5p, 1996 WL 374183, at *5 (July 2, 1996) (treating-source 24 opinions that a person is disabled or unable to work “can never 25 be entitled to controlling weight or given special 26 significance”); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th 27 Cir. 2011) (as amended) (“A disability is an administrative 28 determination of how an impairment, in relation to education, (See AR 29.) While Plaintiff See § 416.927(d)(1) (“A statement by a 27 1 age, technological, economic, and social factors, affects ability 2 to engage in gainful activity.”). 3 therefore appropriately discounted on this ground. 4 Dr. Moffat’s opinion was Accordingly, the ALJ did not err in assessing the medical- 5 opinion evidence or, as discussed below, Plaintiff’s credibility. 6 Properly rejected medical evidence and subjective complaints do 7 not need to be incorporated into a plaintiff’s RFC. 8 427 F.3d at 1217. 9 ALJ’s RFC determination. 10 11 this basis. B. 12 13 See Bayliss, Substantial evidence therefore supports the As such, remand is not warranted on See Saelee, 94 F.3d at 522. The ALJ Properly Assessed the Credibility of Plaintiff’s Subjective Symptom Statements The ALJ found that Plaintiff’s statements “concerning the 14 intensity, persistence and limiting effects” of his mental 15 symptoms were “not entirely credible.”15 16 argues that this finding was improper because it was not 17 supported by substantial evidence. 18 ALJ, however, based her credibility assessment on clear and 19 convincing reasons. 20 ground. 21 22 1. (AR 28-29.) Plaintiff (See J. Stip. at 20.) The Accordingly, remand is not warranted on this Applicable law An ALJ’s assessment of the credibility of a claimant’s 23 allegations concerning the severity of his symptoms is entitled 24 to “great weight.” 25 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th 26 Cir. 1985) (as amended Feb. 24, 1986). See Weetman v. Sullivan, 877 F.2d 20, 22 (9th “[T]he ALJ is not 27 15 28 Plaintiff challenges only the ALJ’s credibility determination regarding his mental impairments. (J. Stip at 19.) 28 1 ‘required to believe every allegation of disabling pain, or else 2 disability benefits would be available for the asking, a result 3 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 4 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 5 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 6 Molina v. In evaluating a claimant’s subjective symptom testimony, the 7 ALJ engages in a two-step analysis. 8 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).16 9 “First, the ALJ must determine whether the claimant has presented See Lingenfelter, 504 F.3d 10 objective medical evidence of an underlying impairment [that] 11 could reasonably be expected to produce the pain or other 12 symptoms alleged.” 13 objective medical evidence exists, the ALJ may not reject a 14 claimant’s testimony “simply because there is no showing that the 15 impairment can reasonably produce the degree of symptom alleged.” 16 Smolen, 80 F.3d at 1282 (emphasis in original). 17 Lingenfelter, 504 F.3d at 1036. If such If the claimant meets the first test, the ALJ may discredit 18 the claimant’s subjective symptom testimony only if she makes 19 specific findings that support the conclusion. 20 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 21 affirmative evidence of malingering, the ALJ must provide “clear 22 and convincing” reasons for rejecting the claimant’s testimony. 23 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 24 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, See Berry v. Absent a finding or 25 26 27 28 16 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 28, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however. 29 1 1102 (9th Cir. 2014). The ALJ may consider, among other factors, 2 (1) ordinary techniques of credibility evaluation, such as the 3 claimant’s reputation for lying, prior inconsistent statements, 4 and other testimony by the claimant that appears less than 5 candid; (2) unexplained or inadequately explained failure to seek 6 treatment or to follow a prescribed course of treatment; (3) the 7 claimant’s daily activities; (4) the claimant’s work record; and 8 (5) testimony from physicians and third parties. 9 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as Rounds v. 10 amended); Thomas, 278 F.3d at 958-59. 11 finding is supported by substantial evidence in the record, the 12 reviewing court “may not engage in second-guessing.” 13 F.3d at 959. 14 2. 15 If the ALJ’s credibility Thomas, 278 Additional relevant background At his February 10, 2015 hearing, Plaintiff testified that 16 his paranoia kept him from working (AR 49) and that he had 17 problems concentrating (AR 56). 18 “past experience with being incarcerated,” he was afraid of 19 people, and being around them was “the most significant problem 20 for [him].” 21 that “tell [him] about spitting on people, pissing people, 22 hitting on people, cursing people out, [and] doing all kinds of 23 bad things.” 24 45-46) that was helping him (AR 53). 25 “sometimes” when on medication, but “[m]ost of the time, [he 26 didn’t] hear them because [he took his] medication as prescribed 27 at the same time that [he was] supposed to take [it].” 28 testified that he did not “need help remembering to take [his] (AR 49-50.) (AR 53-54.) He stated that because of his He also stated that he “hear[s] voices” He testified to taking medication (AR 30 He still heard voices (Id.) He 1 medication.” 2 father (AR 49), that they “seldomly talk[ed]” because of his 3 “paranoia of people” (AR 51), that they went to doctor’s 4 appointments and did grocery shopping together, and that he did 5 not have any difficulty while “doing those things with him” (AR 6 54). 7 3. 8 9 (AR 58.) He also stated that he lived with his Analysis Plaintiff argues that the ALJ’s credibility determination is not supported by substantial evidence. (J. Stip. at 20.) As 10 discussed below, the substantial weight of the evidence, looking 11 at the record as a whole, undermines Plaintiff’s statements 12 regarding his mental functional limitations, and the ALJ 13 therefore did not err. 14 First, the ALJ properly found Plaintiff’s symptom statements 15 not entirely credible because they were unsupported by “clinical 16 signs and findings” or “the objective medical evidence.” 17 29.) 18 mental impairments severely limited his ability to concentrate 19 and be around other people. 20 he similarly testified that being around people was the most 21 significant difficulty for him and that he had problems 22 concentrating. 23 not sleeping well, and being “afraid of some people at times” 24 limited his ability to work. 25 however, were inconsistent with his medical records and the other 26 evidence. 27 28 (AR Plaintiff alleges that he was unable to work because his (AR 50, 56.) (J. Stip. at 19.) At his hearing, He reported that “hearing voices,” (AR 278.) These statements, As discussed by the ALJ, Plaintiff’s treatment notes indicated that his “medications were relatively effective in 31 1 controlling [his] symptoms” during the applicable period.17 2 29; see also, e.g., AR 511-13, 528, 540-42, 559, 562-63, 574, 3 576.) 4 that Plaintiff’s condition was improving: he experienced 5 hallucinations less often, reported improvement with his mood 6 swings, and frequently stated that his medication was helping. 7 (See AR 511-16, 527-28, 540-41.) 8 2015 and into 2016 similarly indicated that Plaintiff’s condition 9 was improving and stable and that he was compliant with (AR Throughout 2013 and 2014, Dr. Villar’s notes indicated Dr. Moffat’s notes throughout 10 medication. 11 above, to the extent Dr. Moffat opined that Plaintiff’s 12 hallucinations and paranoia were debilitating, the ALJ properly 13 discounted his medical opinion and relied on the findings 14 substantiated by his treatment notes. 15 that Plaintiff reported still hearing voices while on medication 16 (see, e.g., AR 540), he also reported not hearing voices while on 17 medication (see, e.g., AR 567) and testified that he did not hear 18 voices when he took his medication as prescribed (AR 53). 19 Plaintiff’s treatment records therefore show substantial 20 inconsistency between his allegations and his apparently 21 improving condition, undermining his subjective symptom (See AR 559-68, 570, 573-74, 576.) As discussed Though some notes indicate 22 23 24 25 26 27 28 17 The ALJ may have erred in finding Plaintiff’s course of treatment “conservative.” (AR 29.) But even if the ALJ was wrong, see, e.g., Childress v. Colvin, No. EDCV 14-0009-MAN, 2015 WL 2380872, at *14 (C.D. Cal. May 18, 2015) (finding treatment of prescription antidepressants, prescription antipsychotics, and talk therapy not properly characterized as conservative), she did not err in concluding that it was largely effective. Moreover, as discussed above and below, the ALJ gave other legally sufficient reasons for partially discounting Plaintiff’s credibility. 32 1 statements. 2 (9th Cir. 2017) (“[The ALJ] properly discounted [Plaintiff’s] 3 severity claims by pointing to . . . the nature of the medical 4 evidence itself.”); Carmickle, 533 F.3d at 1161 (“Contradiction 5 with the medical record is a sufficient basis for rejecting the 6 claimant’s subjective testimony.”); see also Burch v. Barnhart, 7 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical 8 evidence cannot form the sole basis for discounting pain 9 testimony, it is a factor that the ALJ can consider in his 10 11 See Womeldorf v. Berryhill, 685 F. App’x 620, 621 credibility analysis.”). Moreover, the record indicates that Plaintiff refused 12 therapy (see, e.g., 537, 559) and contains no indication that he 13 ever attended therapy or was psychiatrically hospitalized. 14 yet Plaintiff was clearly aware that he had mental-health issues 15 and sought treatment for them. 16 course of treatment while undergoing others therefore undermined 17 his allegations of his symptoms’ severity, as the ALJ found (AR 18 30), and distinguishes Plaintiff’s situation from that in Nguyen 19 v. Chater, 100 F.3d 1462, 1464-65 (9th Cir. 1996) (claimant’s 20 failure to seek any psychiatric treatment for over three years 21 not legitimate basis for discounting medical opinion that he had 22 severe depressive disorder). 23 09-4743-PJW, 2010 WL 3245813, at *4 (C.D. Cal. Aug. 16, 2010) 24 (“[The claimant’s] failure to get treatment after 1997 seems more 25 a function of the fact that she did not need it, as opposed to 26 her inability to comprehend that she needed it.”). 27 28 And His refusal to engage in one Cf. Judge v. Astrue, No. CV Second, the ALJ properly found that Plaintiff’s “allegations of significant limitations [were] not borne out in his 33 1 description of his daily activities.” 2 properly discount the credibility of a plaintiff’s subjective 3 symptom statements when they are inconsistent with his daily 4 activities. 5 claimant’s testimony when “claimant engages in daily activities 6 inconsistent with the alleged symptoms” (citing Lingenfelter, 504 7 F.3d at 1040)). 8 some difficulty functioning, they may be grounds for discrediting 9 the claimant’s testimony to the extent that they contradict 10 (AR 29.) See Molina, 674 F.3d at 1112 (ALJ may discredit “Even where those [daily] activities suggest claims of a totally debilitating impairment.” 11 An ALJ may Id. at 1113. The ALJ noted that Plaintiff was “able to independently 12 manage his transportation,” “[got] around with public 13 transportation,” “[did] his own laundry,” “help[ed] with the 14 household chores and cook[ed].” 15 claimed to do “nothing” from the moment he got up to the time he 16 went to bed (AR 279), he also reported that he had no problem 17 with personal care; prepared meals “monthly”; did laundry, 18 ironing, and other “household work”; and paid bills. 19 83.) 20 household chores, cooked, and took care of his personal grooming 21 (AR 523), and in his Disability Report, he stated that he could 22 take care of his “personal needs” (AR 312). 23 interactions, Plaintiff reported that he used public 24 transportation; shopped in stores; did not have “any problems 25 getting along with family, friends, neighbors, or others”; got 26 along “fairly well” with “authority figures,” such as “police, 27 bosses, landlords, or teachers”; and had experienced no changes 28 in his social activities since his “conditions began.” (AR 29.) Although Plaintiff (AR 279- He similarly reported to Dr. Villar that he helped with 34 Regarding his social (AR 279- 1 84.) He also reported enjoying Christmas and spending time with 2 his family (AR 559), looking forward to spending the next 3 Christmas with his family (AR 572), being at a “friend’s house” 4 (AR 573), and “talking with an ex-girlfriend” for a year (AR 5 567). 6 interacted appropriately with medical personnel, who consistently 7 noted that he “appear[ed] well” and “in no acute distress,” was 8 “alert and oriented,” and “verbalized understanding and agreement 9 with [his treatment] plan[s]” (see, e.g., AR 472, 476-77, 480-82, Moreover, his medical records demonstrated that he 10 484). 11 daily living, which demonstrated his functional ability and 12 capacity to engage effectively with others, supports the ALJ’s 13 adverse credibility determination. 14 at 621 (upholding ALJ’s discounting of plaintiff’s credibility in 15 part because his activities of daily living “were not entirely 16 consistent with his claimed inability to engage in social 17 interactions”). 18 Thus, substantial evidence of Plaintiff’s activities of See Womeldorf, 685 F. App’x For all these reasons, the ALJ’s adverse credibility 19 determination is supported by substantial evidence looking at the 20 record as a whole. 21 on this ground. Plaintiff is therefore not entitled to remand 22 C. 23 Plaintiff argues that “[t]he ALJ failed to present a The ALJ Properly Relied on the VE’s Testimony 24 hypothetical to the VE that accurately described all of [his] 25 mental limitations found in the decision.” 26 particular, the ALJ failed to capture his “moderate difficulties 27 in concentration, persistence, or pace.” 28 discussed below, however, the ALJ did not err. 35 (J. Stip. at 24.) (Id.) In For the reasons 1 2 1. Applicable law At step five of the five-step process, the Commissioner has 3 the burden to demonstrate that the claimant can perform some work 4 that exists in “significant numbers” in the national or regional 5 economy, taking into account the claimant’s RFC, age, education, 6 and work experience. 7 Cir. 1999); see 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.960(c). 8 To ascertain the requirements of occupations as generally 9 performed in the national economy, the ALJ may rely on VE Tackett v. Apfel, 180 F.3d 1094, 1100 (9th 10 testimony or information from the DOT. 11 1898704, at *2 (Dec. 4, 2000) (at steps four and five, SSA relies 12 “primarily on the DOT (including its companion publication, the 13 SCO) for information about the requirements of work in the 14 national economy” and “may also use VEs . . . at these steps to 15 resolve complex vocational issues”); SSR 82–61, 1982 WL 31387, at 16 *2 (Jan. 1, 1982) (“The [DOT] descriptions can be relied upon — 17 for jobs that are listed in the DOT — to define the job as it is 18 usually performed in the national economy.” (emphasis in 19 original)). 20 credible functional limitations, an ALJ is generally entitled to 21 rely upon the VE’s response to it. 22 also Bayliss, 427 F.3d at 1218 (“A VE’s recognized expertise 23 provides the necessary foundation for his or her testimony.”). 24 2. SSR 00-4P, 2000 WL When a hypothetical includes all the claimant’s Thomas, 278 F.3d at 956; see Relevant background 25 The ALJ presented to the VE a hypothetical person who was 57 26 years old and had a ninth-grade education, no past relevant work, 27 and the following limitations: 28 [He] would have the following limits specifically non36 1 public, non-complex, routine tasks. 2 the proximity of others, but no tasks that would require 3 teamwork. . . . 4 person would be responsible for the health or safety of 5 others 6 instructions, 7 concentrated exposure to respiratory irritants. 8 a quiet environment. 9 others unless this person could look directly at them and 10 or Work can be done in No work that — where this hypothetical would require no hypervigilance. written instructions, Verbal and no Work in No required communication with minimal to no background noise. 11 (AR 61-62.) The VE testified that such a person would be able to 12 perform the jobs of hospital cleaner, DOT 323.687-010, 1991 WL 13 672782, dining-room attendant, DOT 311-677-018, 1991 WL 672696, 14 and hand packager, DOT 920.587-018, 1991 WL 687916. 15 the supplemental hearing on June 2, 2015, the VE found the hand- 16 packager job no longer applicable but added that the hypothetical 17 person would be able to perform the job of floor waxer, DOT 18 381.687-034, 1991 WL 673262. (AR 62.) At (AR 98-99.) 19 The ALJ presented a second hypothetical, adding to the first 20 the limitation that “if [the hypothetical] person were distracted 21 and unable to concentrate or focus [he] would require constant 22 reminders, even at a very unskilled level of work, and those 23 reminders were daily in nature or every day and continuing 24 through the day.” 25 individual would be precluded from the jobs listed in response to 26 the first hypothetical and all other jobs. 27 28 (AR 62.) The VE testified that such an (Id.) In determining whether Plaintiff had an impairment or combination of impairments that met or equaled any of the 37 1 Listings, the ALJ found that under the “paragraph B” criteria of 2 § 416.920a(e)(2), used to evaluate the severity of mental 3 impairments at steps two and three of the sequential evaluation 4 process, Plaintiff had “moderate difficulties in maintaining 5 concentration, persistence, or pace.” 6 explicitly stated, however, that “[t]he limitations identified in 7 the ‘paragraph B’ . . . criteria are not a [RFC] assessment.” 8 (Id.) 9 10 11 3. (AR 27.) The ALJ Analysis Plaintiff’s RFC included a full range of work at all exertional levels but with nonexertional limitations: 12 nonpublic; 13 proximity to others but no tasks that require teamwork[;] 14 cannot perform detailed tasks[;] cannot perform work 15 where he would be responsible for the health and safety 16 of others or require hypervigilance; should have verbal 17 instructions rather than written instructions; should 18 work in a quiet environment; cannot be required to 19 communicate with others unless he can look directly at 20 them with minimal to no background noise; should not be 21 exposed to concentrated respiratory irritants. 22 23 noncomplex routine tasks; can work in (AR 28.) The ALJ properly consulted the VE to determine whether any 24 available jobs would accommodate Plaintiff’s specific 25 limitations. 26 (noting that when individual’s exertional RFC does not coincide 27 with any of defined ranges of work but instead includes 28 “considerably greater restriction(s),” VE testimony can clarify See SSR 83-12, 1983 WL 31253, at *2 (Jan. 1, 1983) 38 1 extent of erosion of occupational base); Moore v. Apfel, 216 F.3d 2 864, 870 (9th Cir. 2000); Thomas, 278 F.3d at 960. 3 argues that the hypothetical posed by the ALJ failed to account 4 for the “moderate difficulties in concentration, persistence, or 5 pace” that “[t]he ALJ found” Plaintiff to have. 6 (citing AR 27).) 7 Social Security Administration, 343 F. App’x 211, 212 (9th Cir. 8 2009), which held that an “ALJ’s initial hypothetical question to 9 [a] vocational expert” was in error because it “referenced only Plaintiff (J. Stip. at 24 Plaintiff relies on Brink v. Commissioner 10 ‘simple, repetitive work,’ without including limitations on 11 concentration, persistence or pace.” 12 also Lubin v. Comm’r of Soc. Sec. Admin., 507 F. App’x 709, 712 13 (9th Cir. 2013) (holding that ALJ erred because limiting claimant 14 to “one to three step tasks” didn’t capture “moderate 15 difficulties in maintaining concentration, persistence, or pace,” 16 which “should have [been] included” in hypothetical question to 17 VE). 18 (See J. Stip. at 24); see In Brink, an ALJ accepted medical evidence that a claimant 19 had “moderate difficulty maintaining concentration, persistence, 20 or pace” but failed to include such limitations in his 21 hypothetical question to the VE, which referenced only “simple, 22 repetitive work.” 23 similarly erred by not including his finding of “moderate 24 difficulties in maintaining concentration, persistence, or pace” 25 in his RFC assessment or hypothetical to the VE because his 26 limitation to “one to three step tasks” was insufficient. 27 App’x at 712. 28 that an ALJ’s RFC assessment should be based only on limitations 343 F. App’x at 212. The ALJ in Lubin 507 F. Those cases, however, do not implicate the rule 39 1 supported by the record. See Bayliss, 427 F.3d at 1217; Batson, 2 359 F.3d at 1197; see also Stubbs-Danielson v. Astrue, 539 F.3d 3 1169, 1174 (9th Cir. 2008) (“[A]n ALJ’s [RFC] assessment of a 4 claimant adequately captures restrictions related to 5 concentration, persistence, or pace where the assessment is 6 consistent with restrictions identified in the medical 7 testimony.”). 8 in assessing Plaintiff’s RFC. 9 Brink and Lubin, the medical evidence here did not establish that As discussed in detail above, the ALJ did not err As the ALJ found, and unlike in 10 Plaintiff suffered from moderate mental limitations, and the ALJ 11 properly discounted Plaintiff’s allegations of more restrictive 12 limitations in concentration and pace because they were 13 unsupported by the medical record. 14 required to include in the RFC limitations that were permissibly 15 discounted, she did not err in her hypothetical to the VE. 16 Batson, 359 F.3d at 1197 (ALJ not required to incorporate into 17 RFC those findings from treating-physician opinions that were 18 “permissibly discounted”); see also Yelovich v. Colvin, 532 F. 19 App’x 700, 702 (9th Cir. 2013) (“Because the RFC was not 20 defective, the hypothetical question posed to the VE was 21 proper.”). 22 Because the ALJ was not See To the extent Plaintiff contends that the ALJ’s step-three 23 finding of some moderate mental limitations should have been 24 incorporated into the hypothetical question to the VE (J. Stip. 25 at 24), the argument is unavailing. 26 court opinions[, in following Brink and Lubin, have found] error 27 when the ALJ finds that a claimant has moderate limitation in 28 maintaining concentration, persistence, or pace at step two [or 40 Some “unpublished district 1 three], but attempts to account for this in the RFC only by 2 limiting the claimant to simple, repetitive work.” 3 Berryhill, __ F. Supp. 3d __, No. 1:16-cv-0019-HRH, 2017 WL 4 3018068, at *5 (D. Alaska July 13, 2017) (second alteration in 5 original) (citations omitted). 6 claimant has “moderate difficulties in maintaining concentration, 7 persistence, or pace” need not be included in an ALJ’s RFC 8 assessment or hypothetical question to a VE when such limitations 9 are unsupported by substantial evidence. Jahnsen v. But a step-three finding that a See Wilder v. Comm’r of 10 Soc. Sec. Admin., 545 F. App’x 638, 639 (9th Cir. 2013) (citing 11 Stubbs-Danielson, 539 F.3d at 1174). 12 identified in step 3 . . . are ‘not an RFC assessment but are 13 used to rate the severity of mental impairment(s) at steps 2 and 14 3.’” 15 (emphasis in original) (quoting SSR 96-8p, 1996 WL 374184, at *4 16 (July 2, 1996)); see also Hoopai v. Astrue, 499 F.3d 1071, 1076 17 (9th Cir. 2007) (“The step two and step five determinations 18 require different levels of severity of limitations such that the 19 satisfaction of the requirements at step two does not 20 automatically lead to the conclusion that the claimant has 21 satisfied the requirements at step five.”). 22 limitations in concentration, persistence, or pace found at steps 23 two and three do “not automatically translate to a RFC finding 24 with these limitations.” 25 2016 WL 7480245, at *7 (C.D. Cal. Dec. 29, 2016) (citing Phillips 26 v. Colvin, 61 F. Supp. 3d 925, 940 (N.D. Cal. 2014)). 27 28 Indeed, “limitations Israel v. Astrue, 494 F. App’x 794, 796 (9th Cir. 2012) Thus, moderate Williams v. Colvin, No. CV 16-2433 JC, Accordingly, the ALJ here did not err. She specifically noted that the step-three limitations in concentration, 41 1 persistence, and pace “[were] not a [RFC] assessment” and “[t]he 2 mental [RFC] . . . used at steps 4 and 5 of the sequential 3 evaluation process require[d] a more detailed assessment.” 4 27.) 5 extent that they were supported by the medical record, assessing 6 him with limitations that included “noncomplex,” “routine,” and 7 “[non-]detailed tasks.” 8 consistent with treatment notes documenting Plaintiff’s “average 9 intelligence” (AR 522), “good” memory (see, e.g., AR 568, 570, (AR She accounted for Plaintiff’s mental limitations to the (AR 28.) Such limitations were 10 573-74, 576), “good” insight and judgment (see, e.g., id.), and 11 medicinally controlled condition (see, e.g., AR 528, 540-41, 559, 12 562-63, 567-68, 570, 572, 576). 13 at 1174; Sabin v. Astrue, 337 F. App’x 617, 621 (9th Cir. 2009) 14 (“The RFC finding is consistent with these reports and adequately 15 captures the tasks [claimant] can do despite her concentration, 16 persistence, or pace restrictions.”) 17 record did not substantiate greater, let alone moderate, 18 limitations. 19 See Stubbs-Danielson, 539 F.3d And as discussed above, the Thus, the RFC was supported by substantial evidence and 20 adequately captured Plaintiff’s mental limitations, and “the ALJ 21 committed no reversible error in failing to specifically include 22 [P]laintiff’s deficiencies in [concentration, persistence, or 23 pace] in either her RFC assessment . . . or her subsequent 24 hypothetical to the [VE].” 25 01970-MAN, 2011 WL 5295059, at *5 (C.D. Cal. Nov. 2, 2011); see 26 also Rhodus v. Berryhill, No. CV-16-00238-TUC-LCK, 2017 WL 27 4150445, at *4-5 (D. Ariz. Sept. 19, 2017) (upholding RFC 28 assessment that was “consistent with the [medical record], See Maidlow v. Astrue, No. EDCV 10- 42 1 regardless of the paragraph B functional assessment”); Duncan v. 2 Astrue, No. C12-546-MJP-JPD, 2012 WL 5877510, at *5-6 (W.D. Wash. 3 Nov. 1, 2012) (upholding RFC assessment and VE hypothetical that 4 limited claimant to “simple and some complex instructions” 5 despite step-three finding that he had “mild to moderate” 6 limitations in concentration, persistence, and pace), accepted by 7 2012 WL 5877495 (W.D. Wash. Nov. 19, 2012). 8 9 Thus, substantial evidence supports the ALJ’s finding that Plaintiff could perform the jobs identified by the VE. The ALJ 10 was entitled to rely on the VE’s informed, specific, and 11 uncontradicted explanation that consistent with his RFC, 12 Plaintiff was able to work as a dining-room attendant, hospital 13 cleaner, and floor waxer. 14 Accordingly, remand is not warranted on this basis. 15 VI. 16 See Bayliss, 427 F.3d at 1218. CONCLUSION Consistent with the foregoing and under sentence four of 42 17 U.S.C. § 405(g),18 IT IS ORDERED that judgment be entered 18 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 19 request for remand, and DISMISSING this action with prejudice. 20 21 DATED: October 24, 2017 22 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 23 24 25 26 27 28 18 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.” 43