Delores Marie Armstead v. Nancy A. Berryhill, No. 5:2017cv00254 - Document 24 (C.D. Cal. 2019)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (sbou)

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Delores Marie Armstead v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DELORES A., 12 13 Plaintiff, v. 14 NANCY BERRYHILL, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 17-254-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On February 13, 2017, plaintiff Delores A. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability, disability 24 insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties 25 have fully briefed the matters in dispute, and the court deems the matter suitable 26 for adjudication without oral argument. 27 Plaintiff presents four disputed issues for decision: (1) whether the 28 1 Dockets.Justia.com 1 Administrative Law Judge (“ALJ”) properly considered the opinion of a treating 2 physician; (2) whether the ALJ properly considered the credibility of plaintiff’s 3 testimony; (3) whether the ALJ presented a proper hypothetical to the vocational 4 expert; and (4) whether remand is warranted based on new and material evidence. 5 Joint Stipulation (“JS”) at 3. 6 Having carefully studied the parties’ Joint Stipulation, the Administrative 7 Record (“AR”), and the decision of the ALJ, the court first concludes that, as 8 detailed herein, the ALJ properly applied the presumption of continuing non9 disability under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988). The court also 10 concludes the ALJ properly considered the opinion of the treating physician, 11 properly considered plaintiff’s credibility, presented a proper hypothetical, and the 12 new evidence did not warrant remand. Additionally, the court finds plaintiff 13 forfeited her belatedly raised Appointments Clause challenge. Consequently, the 14 court affirms the decision of the Commissioner denying benefits. 15 II. 16 FACTUAL AND PROCEDURAL BACKGROUND 17 Plaintiff, who was thirty-six years old on the alleged disability onset date, is 18 a high school graduate. AR at 47, 126. Plaintiff has past relevant work as a fast 19 food cook, retail cashier, caretaker, order clerk, fast food manager trainee, fast food 20 worker, food service worker, and telephone operator. Id. at 35-36, 62-64, 67-69. 21 On March 11, 2010, plaintiff filed applications for a period of disability, 22 DIB, and SSI, alleging an onset date of October 30, 2009. Id. at 106, 127. The 23 ALJ determined plaintiff had the residual functional capacity (“RFC”)1 to perform 24 25 Residual functional capacity is what a claimant can do despite existing 26 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115556 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 27 the ALJ must proceed to an intermediate step in which the ALJ assesses the 28 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 1 2 1 medium work, but limited to standing and/or walking for six hours out of an eight2 hour workday, sitting for six hours out of an eight-hour workday, and simple, 3 repetitive tasks. Id. at 111. The ALJ concluded plaintiff was able to perform her 4 past relevant work as a fast food worker with such an RFC. Id. at 116. 5 Consequently, the ALJ denied plaintiff’s claims on June 10, 2011. Id. at 117, 127. 6 On February 28, 2013, plaintiff filed her second set of applications for a 7 period of disability, DIB, and SSI due to bipolar disease, depression, 8 schizophrenia, anxiety, gastritis, thyroid problems, and insomnia. Id. at 126, 140. 9 The applications were denied initially and upon reconsideration, after which 10 plaintiff filed a request for hearing. Id. at 186-90, 195-202. 11 On April 17, 2015, the same ALJ who denied plaintiff’s first applications 12 held a hearing regarding her second applications. Id. at 42-73. Plaintiff, 13 represented by a non-legal advocate, appeared and testified at the hearing. Id. The 14 ALJ also heard testimony from Corinne Porter, a vocational expert. See id. at 6215 64, 67-72. On July 8, 2015, the ALJ denied plaintiff’s claims for benefits. Id. at 16 26-36. 17 As an initial matter, the ALJ found there was no new and material evidence 18 that constituted a showing of a changed circumstance material to the determination 19 of disability. Id. at 26. The doctrine of res judicata therefore dictated that the ALJ 20 find the presumption of continued non-disability had not been rebutted. Id. 21 Then applying the well-known five-step sequential evaluation process, the 22 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 23 since June 11, 2011, the alleged onset date. Id. at 29. 24 At step two, the ALJ found plaintiff suffered from two severe impairments: 25 history of umbilical hernia repair surgery and depressive disorder. Id. 26 At step three, the ALJ found plaintiff’s impairments, whether individually or 27 28 n.2 (9th Cir. 2007). 3 1 in combination, did not meet or medically equal one of the listed impairments set 2 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. 3 The ALJ then assessed plaintiff’s RFC, and determined plaintiff had the 4 RFC to perform medium work, with the limitations that plaintiff could: stand and 5 walk for six hours out of an eight-hour workday; sit for six hours out of an eight6 hour workday; only perform unskilled work and simple, repetitive tasks. Id. at 31. 7 The ALJ found, at step four, that plaintiff was capable of performing her 8 past relevant work as a fast food worker and order clerk. Id. at 35. Consequently, 9 the ALJ concluded plaintiff did not suffer from a disability as defined by the Social 10 Security Act (“Act” or “SSA”). Id. at 36. 11 Plaintiff filed a timely request for review of the ALJ’s decision and 12 submitted an additional opinion, but the Appeals Council denied the request for 13 review. Id. at 5-7. The ALJ’s decision stands as the final decision of the 14 Commissioner. 15 III. 16 STANDARD OF REVIEW 17 This court is empowered to review decisions by the Commissioner to deny 18 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 19 Administration must be upheld if they are free of legal error and supported by 20 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 21 (as amended). But if the court determines the ALJ’s findings are based on legal 22 error or are not supported by substantial evidence in the record, the court may 23 reject the findings and set aside the decision to deny benefits. Aukland v. 24 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 25 1144, 1147 (9th Cir. 2001). 26 “Substantial evidence is more than a mere scintilla, but less than a 27 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 28 4 1 “relevant evidence which a reasonable person might accept as adequate to support 2 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 3 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 4 finding, the reviewing court must review the administrative record as a whole, 5 “weighing both the evidence that supports and the evidence that detracts from the 6 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 7 affirmed simply by isolating a specific quantum of supporting evidence.’” 8 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 9 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 10 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 11 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 12 1992)). 13 IV. 14 DISCUSSION 15 A. The ALJ Properly Applied the Presumption of Non-Disability 16 Without specifically raising it as a separate issue, plaintiff argues the ALJ 17 improperly applied the presumption of continuing non-disability under Chavez. JS 18 at 9-10. Plaintiff contends she presented new and material evidence that 19 establishes an increase in the severity of her impairments and thus changed 20 circumstances. Id. Defendant does not address the application of Chavez. 21 “The principles of res judicata apply to administrative decisions, although 22 the doctrine is applied less rigidly to administrative proceedings than to judicial 23 proceedings.” Chavez, 844 F.2d at 693 (citation omitted). Administrative res 24 judicata applies if the Commissioner has “made a previous determination or 25 decision . . . about [a claimant’s] rights on the same facts and on the same issue or 26 issues, and this previous determination or decision has become final by either 27 28 5 1 administrative or judicial action.” 20 C.F.R. § 416.1457(c)(1).2 2 A previous final determination of non-disability creates a presumption of 3 continuing non-disability with respect to any subsequent unadjudicated period of 4 alleged disability. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996) (as 5 amended); see also Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985); Lyle v. 6 Sec’y of Health and Human Servs., 700 F.2d 566, 568-69 (9th Cir. 1983); Social 7 Security Acquiescence Ruling (“SSAR”) 97-4(9). “[I]n order to overcome the 8 presumption of continuing nondisability arising from the first administrative law 9 judge’s findings of nondisability, [the claimant] must prove ‘changed 10 circumstances’ indicating a greater disability.” Chavez, 844 F.2d at 693 (citing 11 Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985)). In other words, the 12 presumption of non-disability does not apply if, for example, the claimant proves 13 “a change in the claimant’s age category . . . , an increase in the severity of the 14 claimant’s impairment(s), the alleged existence of an impairment(s) not previously 15 considered, or a change in the criteria for determining disability.” Social Security 16 Ruling (“SSR”) 97-4(9). 17 Here, the ALJ found that plaintiff failed to demonstrate a changed 18 circumstance since the date of the previous unfavorable decision and therefore did 19 not rebut the presumption of continuing non-disability. Id. at 26; see Chavez, 844 20 F.2d at 693. As plaintiff acknowledges, in this case, the sole basis to rebut the 21 presumption would be an increase in the severity of her impairments. JS at 9. To 22 that end, plaintiff submitted the opinion of treating physician Dr. Steve Eklund as 23 evidence of an increase in the severity of her impairments. See JS at 9-10. 24 Subsequent to the ALJ’s denial, plaintiff submitted an opinion from an examining 25 physician, Dr. Gene Berg, to the Appeals Council. See AR at 8, 701-10; JS at 2826 27 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 2 6 1 31. As discussed below, the ALJ did not err in rejecting Dr. Eklund’s opinion, and 2 Dr. Berg’s opinion does not constitute new material evidence. Further, even if res 3 judicata did not apply, the ALJ properly denied plaintiff’s claims for the reasons 4 that follow. 5 B. The ALJ Properly Considered Dr. Eklund’s Opinion 6 Plaintiff argues the ALJ failed to properly consider the opinion of his 7 treating psychiatrist, Dr. Steve Eklund. JS at 4-11. Specifically, plaintiff contends 8 the ALJ did not expressly state what weight he accorded Dr. Eklund’s opinion, his 9 reasons for discounting the opinion were not supported by substantial evidence, 10 and Dr. Eklund’s opinion was new and material evidence that precluded reliance 11 on Chavez. Id. 12 In determining whether a claimant has a medically determinable impairment, 13 among the evidence the ALJ considers is medical evidence. 20 C.F.R. 14 §§ 404.1527(b), 416.927(b). In evaluating medical opinions, the regulations 15 distinguish among three types of physicians: (1) treating physicians; (2) examining 16 physicians; and (3) non-examining physicians. 20 C.F.R. 17 §§ 404.1527(c), (e), 416.926(c), (e); Lester, 81 F.3d at 830. “Generally, a treating 18 physician’s opinion carries more weight than an examining physician’s, and an 19 examining physician’s opinion carries more weight than a reviewing physician’s.” 20 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 21 §§ 404.1527(c)(1)-(2), 416. 927(c)(1)-(2). The opinion of the treating physician is 22 generally given the greatest weight because the treating physician is employed to 23 cure and has a greater opportunity to understand and observe a claimant. Smolen v. 24 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 25 751 (9th Cir. 1989). 26 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 27 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 28 7 1 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 2 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 3 opinions, the ALJ must provide specific and legitimate reasons supported by 4 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 5 specific and legitimate reasons supported by substantial evidence in rejecting the 6 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 7 non-examining physician, standing alone, cannot constitute substantial evidence. 8 Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. 9 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 10 813, 818 n.7 (9th Cir. 1993). 11 1. Dr. Steve Eklund 12 Dr. Steve Eklund, a psychiatrist, treated plaintiff from March 30, 2012 13 through at least January 2015. AR at 481, 674. During the treatment sessions, 14 plaintiff would complain of, among other things, depression, paranoia, 15 hallucinations, and irritability. See, e.g., id. at 508, 511, 515, 676. Dr. Eklund 16 diagnosed plaintiff with schizoaffective disorder, bipolar type. Id. at 481. 17 On October 22, 2013, Dr. Eklund completed a Psychiatric/Psychological 18 Impairment Questionnaire. Id. at 481-88. Dr. Eklund identified clinical findings to 19 support his diagnosis and stated that the findings were obtained from plaintiff’s 20 history. Id. at 482. Dr. Eklund opined plaintiff was markedly limited in almost all 21 categories. See id. at 484-86. 22 2. State Agency Physicians 23 The State Agency physicians reviewed Dr. Eklund’s records through May 24 2013. See id. at 132. The State Agency physicians noted that plaintiff has received 25 mental health treatment since 2010 and her treatment notes indicated that she has 26 presented with an irritable mood and complained of seeing spiders and paranoia. 27 Id. at 132-34, 147, 163, 177. But the State Agency physicians also noted that the 28 8 1 objective examinations were unremarkable, plaintiff has been on the same 2 medications, and has not been hospitalized. Id. Based on plaintiff’s medical 3 records, the State Agency physicians opined that there was no new and material 4 evidence to rebut the previous determination. Id. 5 The State Agency physicians also conducted a mental RFC assessment. See 6 id. at 136-37, 150-51, 166-67, 180-81. The State Agency physicians concluded 7 that plaintiff was moderately limited in her ability to understand and remember 8 detailed instructions, carry out detailed instructions, and maintain attention and 9 concentration for extended periods, but otherwise not significantly limited. See id. 10 The State Agency physicians opined that given these limitations, plaintiff was 11 capable of unskilled work. See id. 12 3. The ALJ’s Findings 13 In reaching his RFC determination, the ALJ gave significant weight to the 14 opinions of the State Agency physicians. Id. at 34. The ALJ stated that he 15 considered Dr. Eklund’s opinion, but did not expressly state what weight he gave 16 the opinion. See id. Instead, the ALJ provided the following reasons for 17 discounting Dr. Eklund’s opinion: (1) his opinion appears to have been given as an 18 accommodation to plaintiff; (2) the opined limitations are in checklist form without 19 explanations; (3) his opinion was inconsistent with the minimal positive findings; 20 (4) his opinion was inconsistent with plaintiff’s conservative treatment; and (5) he 21 relied heavily on plaintiff’s subjective complaints, which were unreliable. Id. 22 The ALJ properly considered Dr. Eklund’s opinion. Although the ALJ did 23 not expressly state how much weight he gave Dr. Eklund’s opinion, the ALJ’s 24 failure to make an express pronouncement does not require remand since it is clear 25 from the decision that the ALJ considered and gave little weight to Dr. Eklund’s 26 opinion. See Magallanes, 881 F.2d at 755 (an ALJ need not recite “magic words,” 27 a reviewing court may draw inferences from an opinion). Indeed, the ALJ 28 9 1 discussed Dr. Eklund’s treatment notes and opinion and provided multiple reasons 2 for discounting the opinion, some of which were specific and legitimate and 3 supported by substantial evidence. See AR at 33-34. 4 First, the ALJ concluded that Dr. Eklund likely completed the questionnaire 5 as an accommodation to plaintiff, thereby calling into question its neutrality and 6 reliability. See id. at 34. An ALJ may not reject a physician’s opinion on the 7 assumption that he is acting as an advocate for his patients. See Lester, 81 F.3d at 8 832 (“The [Commissioner] may not assume that doctors routinely lie in order to 9 help their patients collect disability.”). Here, there was no evidence of 10 improprieties or that Dr. Eklund was acting as an advocate for plaintiff. 11 The ALJ’s second reason for discounting Dr. Eklund’s opinion was because 12 it was in a checklist-style form that did not include any rationale for its 13 conclusions. See AR at 34. An “ALJ need not accept a treating physician’s 14 opinion which is brief and conclusionary in form with little in the way of clinical 15 findings to supports [its] conclusions.” Magallanes, 881 F.2d at 751 (internal 16 quotation marks and citations omitted); see Crane v. Shalala, 76 F.3d 251, 253 (9th 17 Cir.1996) (evidence of an impairment in the form of “check-off reports” may be 18 rejected for lack of explanation of the bases for their conclusions). Although Dr. 19 Eklund’s opinion was primarily in checklist form, the form allowed for some 20 explanation. See AR at 481-88. Dr. Eklund identified clinical findings and 21 plaintiff’s symptoms that supported his diagnosis, as well as explained that he 22 relied on plaintiff’s history. See id. at 482-83. Even so, while Dr. Eklund’s 23 opinion was not wholly conclusory, as discussed below the rationale provided was 24 insufficient. Dr. Eklund’s explanations were unsupported by objective evidence, 25 inconsistent with his treatment notes, and relied on plaintiff’s discounted 26 statements. 27 The ALJ’s third reason for discounting Dr. Eklund’s opinion – inconsistency 28 10 1 with minimal positive findings – was supported by substantial evidence. AR at 34; 2 see Tonapetyan, 242 F.3d at 1149 (rejecting physician’s opinion, in part, due to a 3 lack of objective evidence to support it). Dr. Eklund identified numerous clinical 4 findings in support of his opinion, but a significant number of those purported 5 clinical findings were nowhere in his treatment notes and some were contradictory 6 to his notes. As the ALJ noted, the treatment notes reflected minimal clinical 7 findings. Dr. Eklund did not perform any diagnostic tests or mental status 8 examinations. Instead, the treatment notes primarily reflected plaintiff’s subjective 9 complaints and few observations. 10 Dr. Eklund observed plaintiff was tearful, depressed, moody, and paranoid 11 on some occasions, but was typically alert and oriented, cooperative, and had 12 normal speech. See, e.g., AR at 508-525, 674. The treatment notes did not reflect 13 any observation that plaintiff, among other things, was abusing substances, felt 14 guilt, was manic, or had psychomotor agitation. Indeed, Dr. Eklund’s citation of 15 suicidal tendencies as a clinical finding in his opinion was wholly inconsistent with 16 his treatment notes in which he repeatedly documented plaintiff did not have 17 suicidal ideation. See id. at 34, 482, 508-09, 511, 514, 520, 674-75. On some 18 treatment notes, Dr. Eklund also noted that plaintiff had audio/visual 19 hallucinations, but those notes appeared simply to reflect plaintiff’s own comments 20 rather than Dr. Eklund’s observations during treatment. See, e.g., id. at 34, 520-23, 21 676. Moreover, the clinical findings in the treatment notes of plaintiff’s other 22 treating physicians were inconsistent with Dr. Eklund’s minimal findings and 23 opinion. Other physicians noted that plaintiff did not exhibit mood changes, 24 anxiety, or feelings of helplessness, and, to the contrary, demonstrated normal 25 behavior. See, e.g., id. at 542, 547, 643, 654. The clinical findings therefore 26 reasonably did not support the marked limitations opined by Dr. Eklund. 27 The ALJ’s fourth reason for discounting Dr. Eklund’s opinion – the marked 28 11 1 limitations were inconsistent with the conservative treatment she received – was 2 not specific and legitimate. See id. at 34; cf. Rollins v. Massanari, 261 F.3d 853, 3 856 (9th Cir. 2001) (stating the ALJ properly rejected the opinion of a treating 4 physician who prescribed conservative treatment because it was inconsistent with 5 his opinion that the claimant was totally disabled). The record shows that plaintiff 6 attended psychiatric sessions approximately monthly with Dr. Eklund and was 7 treated with psychotropic medications. See, e.g., AR at 508-12, 535-37. This type 8 of mental health treatment is generally not viewed as conservative. See, e.g., 9 Carden v. Colvin, 2014 WL 839111, at *3 (C.D. Cal. Mar. 4, 2014) (the 10 prescription of medications such as Zoloft and Seroquel is generally recognized as 11 not conservative); Mason v. Colvin, 2013 WL 5278932, at *6 (E.D. Cal. Sept. 18, 12 2013) (treatment with anti-depressants and anti-psychotic medications was not 13 conservative); Odisian v. Colvin, 2013 WL 5272996, at *8 (C.D. Cal. Sept. 8, 14 2013) (treatment with psychotropic medications and sessions with a psychologist 15 was not conservative). Even so, regardless of how the treatment is characterized, 16 plaintiff’s treatment did not differ from her prior treatment. See, e.g., AR at 94, 17 360-71. 18 Finally, the ALJ gave less or no weight to Dr. Eklund’s opinion because it 19 relied heavily plaintiff’s subjective symptoms, but plaintiff was not credible. AR 20 at 34; see Morgan, 169 F.3d at 602 (“A physician’s opinion of disability premised 21 to a large extent upon the claimant’s own accounts of his symptoms and limitations 22 may be disregarded where those complaints have been properly discounted.”) 23 (internal quotation marks and citation omitted). As will be discussed below, the 24 ALJ properly discounted plaintiff’s credibility, and thus reliance on plaintiff’s 25 representations was a specific and legitimate reason to give Dr. Eklund’s opinion 26 less weight. 27 Accordingly, the ALJ provided some specific and legitimate reasons 28 12 1 supported by substantial evidence for discounting Dr. Eklund’s opinion, namely 2 the opinion was unreliable because it was unsupported by objective evidence, 3 inconsistent with Dr. Eklund’s treatment notes, and based on plaintiff’s unreliable 4 subjective complaints. Without Dr. Eklund’s opinion, there was no basis for the 5 ALJ to find a changed circumstance to rebut the presumption of non-disability. 6 C. The ALJ Properly Discounted Plaintiff’s Subjective Complaints 7 Plaintiff contends the ALJ failed to properly evaluate her subjective 8 complaints. JS at 14-16. Specifically, plaintiff argues the ALJ’s reasons for 9 finding her testimony less than credible were not clear and convincing and 10 supported by substantial evidence. Id. at 16. 11 The ALJ must make specific credibility findings, supported by the record. 12 SSR 96-7p. To determine whether testimony concerning symptoms is credible, the 13 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 103514 36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced 15 objective medical evidence of an underlying impairment “‘which could reasonably 16 be expected to produce the pain or other symptoms alleged.’” Id. at 1036 (quoting 17 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 18 is no evidence of malingering, an “ALJ can reject the claimant’s testimony about 19 the severity of her symptoms only by offering specific, clear and convincing 20 reasons for doing so.” Smolen, 80 F.3d at 1281; accord Benton v. Barnhart, 331 21 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in 22 weighing a claimant’s credibility, including: (1) ordinary techniques of credibility 23 evaluation such as a claimant’s reputation for lying; (2) the failure to seek 24 treatment or follow a prescribed course of treatment; and (3) a claimant’s daily 25 activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 26 947 F.2d at 346-47. 27 At the first step, the ALJ found plaintiff’s medically determinable 28 13 1 impairments could not reasonably be expected to cause the symptoms alleged. AR 2 at 32. At the second step, the ALJ provided three reasons for discounting 3 plaintiff’s credibility: (1) plaintiff’s treatment history was inconsistent with the 4 alleged severity of her symptoms; (2) some of plaintiff’s activities of daily living 5 demonstrated plaintiff was capable of working and inconsistent with the alleged 6 symptoms; and (3) the objective medical evidence did not support the severity of 7 her symptoms. Id. The ALJ also adopted the findings in his prior decision. See id. 8 at 27. 9 The ALJ’s first ground for discounting plaintiff’s testimony was that her 10 treatment was inconsistent with the alleged severity of her symptoms. Id.; see 11 Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative 12 treatment’ is sufficient to discount a claimant’s testimony regarding severity of an 13 impairment.”); Tommasetti, 533 F.3d at 1039-40 (conservative treatment may be a 14 clear and convincing reason for discounting a claimant’s credibility). As discussed 15 above, plaintiff’s mental health treatment generally would not be considered 16 conservative. The treatment for plaintiff received for her physical health, however, 17 was inconsistent with plaintiff’s alleged symptoms.3 Plaintiff testified and reported 18 that it hurt to engage in any activity involving her knees including walking and 19 sitting; she had pain in her shoulder, neck, and back if she sat more than ten 20 minutes or stood “too long”; she got bad pain in her fingers while cooking; and she 21 had stomach pain. See AR at 53-54, 301. But plaintiff’s physicians simply treated 22 her back pain with anti-inflammatories and recommended exercise and a healthy 23 diet. See, e.g., id. at 570, 576. Thus, although plaintiff’s mental health treatment 24 was not conservative, the treatment plan for her physical health was conservative 25 Although plaintiff only argues the ALJ erred with respect to her mental health, when discussing her credibility, this court will not limit its analysis to 27 plaintiff’s statements concerning her mental health. The credibility of plaintiff’s 28 testimony as a whole is at issue. 26 3 14 1 and inconsistent with her alleged symptoms. 2 Second, the ALJ found plaintiff was able to engage in activities of daily 3 living – specifically, driving, reading, cooking, and shopping – that were 4 transferable to the work environment and inconsistent with her alleged symptoms. 5 Id. at 32. Inconsistency between a claimant’s alleged symptoms and her daily 6 activities may be a clear and convincing reason to find a claimant less credible. 7 Tommasetti, 533 F.3d at 1039; Bunnell, 947 F.2d at 346-47. But “the mere fact a 8 [claimant] has carried on certain daily activities, such as grocery shopping, driving 9 a car, or limited walking for exercise, does not in any way detract from her 10 credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 11 (9th Cir. 2001). A claimant does not need to be “utterly incapacitated.” Fair v. 12 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). But where a claimant is able “to spend 13 a substantial part of [her] day engaged in pursuits involving the performance of 14 physical functions that are transferable to a work setting,” that may be sufficient to 15 discredit her. Morgan, 169 F.3d at 600. Here, there was no evidence plaintiff 16 spent a substantial portion of her day driving, reading, cooking, and shopping. Nor 17 were plaintiff’s activities inconsistent with her alleged symptoms. Therefore, the 18 ability to engage in these activities was not a sufficient reason to discount 19 plaintiff’s credibility. But as the ALJ noted in the prior decision, plaintiff reported 20 extreme limitations in her activities of daily living, and such purported extreme 21 limitations cannot be attributed to her medical condition given the weak medical 22 evidence. 23 The third reason for the ALJ’s adverse credibility determination was that 24 plaintiff’s allegations were not supported by the objective evidence. AR at 32; see 25 Rollins, 261 F.3d at 857 (lack of corroborative objective medical evidence may be 26 one factor in evaluating credibility). The medical evidence showed no objective 27 changes to plaintiff’s condition since her previous application and did not support a 28 15 1 more restrictive RFC. See AR at 32. 2 With regard to plaintiff’s physical health, plaintiff’s examination findings 3 and diagnostic testing were generally normal. See, e.g., id. at 564-91. Plaintiff 4 does not dispute that the objective findings regarding her physical health were the 5 same as her previous application. 6 As for plaintiff’s mental health, there were similarly no objective changes 7 indicating an increase in severity. Indeed, plaintiff implicitly concedes that there 8 were no new objective findings indicating an increase in severity. See JS at 9-10. 9 Instead, plaintiff argues that the evidence of an increase in severity was Dr. 10 Eklund’s opinion. See id. But Dr. Eklund’s opinion itself was not an objective 11 finding. Instead, it was a subjective opinion purportedly based on objective 12 findings. As discussed above, a large percentage of the clinical findings Dr. 13 Eklund identified were not in the treatment notes or were contradictory. Moreover, 14 of the clinical findings that can be found in the treatment notes – tearful, depressed, 15 moody, and paranoid – there was no indication that these findings were more 16 severe than those documented in the treatment notes for the prior period. Compare 17 id. at 360-71 and 508-525, 674. Finally, the clinical findings in Dr. Eklund’s 18 treatment notes were inconsistent with those in her other treatment notes, which 19 documented few to no findings of mental health symptoms. Compare id. at 308-25 20 and 542, 547, 551, 56, 564. Thus, there was substantial evidence that the objective 21 findings did not show an increase in severity from the prior period, and in any 22 event did not support the alleged severity of her symptoms. 23 Finally, the ALJ adopted his findings from the prior decision. In the prior 24 decision, the ALJ found plaintiff less credible because her testimony was not 25 supported by objective medical evidence, she committed a crime of moral 26 turpitude, and her alleged extremely limited activities of daily living could not be 27 attributed to her medical condition. See Albidrez v. Astrue, 504 F. Supp. 2d 814, 28 16 1 822 (C.D. Cal. 2007) (a conviction for a crime of moral turpitude is a proper basis 2 for an adverse credibility). These findings are not in dispute. 3 In sum, the ALJ cited two clear and convincing reasons supported by 4 substantial evidence to discount plaintiff’s subjective complaints, and also properly 5 relied on the previous findings. 6 D. The ALJ Presented a Proper Hypothetical to the Vocational Expert 7 Plaintiff contends that the ALJ presented an improper hypothetical to the 8 vocational expert. JS at 22-23. The ALJ found plaintiff had moderate difficulties 9 in concentration, persistence, and pace. AR at 30. Plaintiff argues that the ALJ’s 10 limitations to unskilled work and simple, repetitive tasks did not sufficiently 11 incorporate plaintiff’s moderate difficulties in concentration, persistence, and pace 12 in his hypothetical. JS at 22-3; see AR at 70. 13 “‘If a vocational expert’s hypothetical does not reflect all the claimant’s 14 limitations, then the expert’s testimony has no evidentiary value to support a 15 finding that the claimant can perform jobs in the national economy.’” See Hill v. 16 Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (quoting Matthews v. Shalala, 10 F.3d 17 678, 681 (9th Cir. 1993) (internal quotation marks and citation omitted)); Edlund v. 18 Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (same and citing additional 19 authority). 20 Two Ninth Circuit cases provide guidance. In Stubbs-Danielson v. Astrue, 21 539 F.3d 1169, 1173 (9th Cir. 2008), the Ninth Circuit held that an ALJ’s 22 limitation to simple, routine, repetitive work adequately captured the claimant’s 23 deficiencies in pace because a physician opined plaintiff had a slow pace, both in 24 thinking and action, but was able to carry out simple tasks. In other words, an 25 “ALJ’s assessment of a claimant adequately captures restrictions related to 26 concentration, persistence, or pace where the assessment is consistent with 27 restrictions identified in the medical testimony.” Id. at 1174. By contrast, in an 28 17 1 unpublished decision one year later, Brink v. Comm’r, 343 Fed. Appx. 211, 212 2 (9th Cir. 2009), the Ninth Circuit held that the phrase “simple, repetitive work” did 3 not encompass plaintiff’s difficulties with concentration, persistence or pace, 4 noting that the ALJ there failed to equate the two. This was clear from the ALJ’s 5 hypotheticals in that case – he posed one referencing only the simple, repetitive 6 work limitation and another incorporating the additional limitation of moderate to 7 marked attention and concentration deficits. Id. The court found Stubbs8 Danielson distinguishable, as in Stubbs-Danielson the medical testimony did not 9 establish any limitation in concentration, persistence, or pace, whereas in Brink the 10 ALJ accepted that the claimant had difficulties with concentration, persistence, or 11 pace. Id. 12 This case is more similar to Stubbs-Danielson. Here, the State Agency 13 physicians opined that plaintiff had moderate limitations in concentration, 14 persistence, and pace, and, in translating these limitations, explained that plaintiff 15 retained the ability to perform unskilled work. See AR at 136-37, 150-51, 166, 16 180. See also Mitchell v. Colvin, 642 Fed. Appx. 731, 732-33 (9th Cir. 2016) 17 (where physician determined plaintiff could maintain concentration, persistence, 18 and pace when restricted to simple tasks, ALJ adequately accounted for moderate 19 limitations in concentration, persistence, and pace with an RFC that restricted 20 plaintiff to simple, repetitive tasks). As such, the ALJ’s hypothetical was 21 consistent with the medical testimony and adequately captured plaintiff’s 22 restrictions related to concentration, persistence, and pace. The ALJ posed a 23 complete hypothetical. 24 E. Dr. Berg’s Opinion Does Not Warrant Remand 25 In support of her request for review by the Appeals Council, plaintiff 26 submitted an opinion by Dr. Gene N. Berg, an examining psychologist, dated June 27 16, 2016. AR at 701-10. Plaintiff contends that Dr. Berg’s opinion constitutes 28 18 1 new and material evidence warranting remand of the case. 2 If a claimant submits new and material evidence to the Appeals Council, the 3 Appeals Council “shall consider the additional evidence only where it relates to the 4 period on or before the date of the hearing decision.” 20 C.F.R. §§ 404.970(b), 5 416.1570(b). “[W]hen the Appeals Council considers new evidence in deciding 6 whether to review a decision of the ALJ, that evidence becomes part of the 7 administrative record, which the district court must consider when reviewing the 8 Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r, 682 9 F.3d 1157, 1163 (9th Cir. 2012). “Under 42 U.S.C. § 405(g), remand is warranted 10 only if there is new evidence that is material and good cause for the late 11 submission of the evidence.” Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 12 2001); accord Booz v. Sec’y, 734 F.2d 1378, 1380 (9th Cir. 1984). Evidence is 13 material if it bears directly and substantially on the matter in dispute and there is a 14 reasonable probability it would have changed the outcome of the case. Booz, 734 15 F.2d at 1380-81. The evidence must also be probative of the claimant’s condition 16 as it existed at the relevant time. Sanchez v. Sec’y, 812 F.2d 509, 511 (9th Cir. 17 1987). 18 Dr. Berg examined plaintiff on June 16, 2016 and completed a psychologial 19 assessment and mental impairment questionnaire. AR at 701-10. Dr. Berg 20 administered a psychological history questionnaire, a mental status examination, 21 and several psychological tests. See id. at 701. Dr. Berg also reviewed plaintiff’s 22 treatment records. See id. at 702. During the mental status examination, Dr. Berg 23 observed plaintiff: had a sad, depressed, and anxious mood and affect; had linear 24 thinking; denied auditory and visual hallucinations; indicated she felt paranoia and 25 distrust; and had difficulties with her serial threes and sevens. See id. Plaintiff was 26 unable to complete one of the psychological tests. See id. at 701. Based on the 27 examination, tests, and review of plaintiff’s medical history, Dr. Berg diagnosed 28 19 1 plaintiff with major depressive disorder and opined plaintiff would have moderate 2 to marked limitations in almost all areas. See id. at 706-09. Dr. Berg opined that 3 plaintiff’s symptoms and limitations applied as far back as June 11, 2011. Id. at 4 710. 5 The Appeals Council considered Dr. Berg’s opinion and found that 6 plaintiff’s arguments for remand and the opinion did not provide a basis for 7 remand. See id. at 6. Plaintiff contends the fact that the Appeals Council reviewed 8 Dr. Berg’s opinion means it constitutes new and material evidence requiring 9 remand. JS at 31. This argument is unpersuasive. It cannot be the case that the 10 mere act of reviewing new evidence makes it material and requires remand. 11 Otherwise, anytime the Appeals Council reviews new evidence, it would have to 12 remand the case. Instead, when the Appeals Council reviews new evidence, it 13 must make a determination whether that evidence is material. Here, the Appeals 14 Council determined it would not have changed the outcome and therefore was not 15 material. See Mayes, 276 F.3d at 462 (district court properly denied remand 16 because the new evidence was not material). 17 Plaintiff fails to demonstrate that Dr. Berg’s opinion was material. Plaintiff 18 correctly notes that the opinion concerns his mental impairments and Dr. Berg 19 opined such limitations began on June 11, 2011, the alleged onset of disability 20 date. But if Dr. Berg relied on his examination alone, he could only offer an 21 opinion as to plaintiff’s limitations on that date, June 16, 2016, which was almost a 22 year after the ALJ rendered his decision. Dr. Berg’s opinion that plaintiff had 23 marked limitations since June 11, 2011, the alleged onset date, must have been 24 based on Dr. Eklund’s treatment notes and opinion, as well as plaintiff’s subjective 25 complaints. As discussed above, the ALJ properly discounted both Dr. Eklund’s 26 opinion and plaintiff’s testimony. Accordingly, substantial evidence did not 27 support Dr. Berg’s opined disability onset date or his opinion as to plaintiff’s 28 20 1 limitations during the relevant period. At most, Dr. Berg’s opinion is material to 2 the time period after the ALJ’s denial, which is not at issue here. 3 The ALJ properly determined that Dr. Berg’s opinion did not provide a basis 4 for changing the outcome and therefore was not material. 5 F. Plaintiff Forfeited Her Appointments Clause Challenge 6 On November 13, 2018, after the issues in this case were fully briefed, 7 plaintiff’s counsel filed a letter with the court raising a new objection, namely, that 8 the ALJ was not constitutionally appointed at the time he found plaintiff not 9 disabled. Putting aside the impropriety of plaintiff raising her objection in this 10 fashion, it does not merit relief in any event because plaintiff forfeited this 11 argument when she failed to raise it during her administrative proceedings. 12 Plaintiff relies on Lucia v. Securities and Exchange Commission, __ U.S. __, 13 138 S. Ct. 2044, 201 L. Ed. 2d 464 (2018), which holds that ALJs of the Securities 14 and Exchange Commission are “Officers of the United States” subject to the 15 Appointments Clause in Article II of the United States Constitution. Id. at 2055. 16 But in Lucia, the Supreme Court also recognized that to obtain relief based on a 17 challenge to the validity of an ALJ’s appointment, the challenge must be timely 18 made. Id. (“‘one who makes a timely challenge to the constitutional validity of the 19 appointment of an officer who adjudicates his case’ is entitled to relief”) (citation 20 omitted). In Lucia, the petitioner’s challenge was timely because he “contested the 21 validity of [the ALJ’s] appointment before the Commission.” Id. 22 Plaintiff here did not raise the validity of the ALJ’s appointment at the 23 administrative level, or at any time before the November 13, 2018 letter. She 24 acknowledges this, but argues she may raise the challenge for the first time in this 25 court, citing Sims v. Apfel, 530 U.S. 103, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000). 26 Sims made clear, however, that it was not deciding whether a Social Security 27 claimant must exhaust issues before the ALJ to obtain judicial review, and instead 28 21 1 merely held that exhaustion of issues before the Appeals Council is not required 2 for judicial review. Id. at 107, 112. That does not help plaintiff here. Indeed, 3 since Lucia courts have continued to reject as untimely Appointments Clause 4 challenges where the challenge was not first made at the administrative level. See, 5 e.g., Kabani & Co. v. SEC, 733 Fed. Appx. 918, 919 (9th Cir. 2018) (“petitioners 6 forfeited their Appointments Clause claim by failing to raise it in their briefs or 7 before the agency”), petition for cert. docketed, No. 18-1117 (U.S. Feb. 26, 2019); 8 Hughes v. Berryhill, 2018 WL 3239835, at *2 n.2 (C.D. Cal. July 2, 2018) (“To the 9 extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by 10 failing to raise it during his administrative proceedings.”). 11 The court does not now decide whether Lucia applies to Social Security 12 Administration ALJs. Because plaintiff forfeited her challenge to the validity of 13 the ALJ’s appointment here when she did not raise her challenge at the 14 administrative level, she is not entitled to relief on her Appointments Clause 15 challenge in any event. 16 VI. 17 RECOMMENDATION 18 IT IS THEREFORE ORDERED that Judgment shall be entered 19 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 20 the complaint with prejudice. 21 22 DATED: March 25, 2019 23 SHERI PYM United States Magistrate Judge 24 25 26 27 28 22

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