Tanaya Williams v. Nancy A. Berryhill, No. 5:2017cv00755 - Document 23 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and in Defendant's favor. (See document for further details.) (sbou)
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Tanaya Williams v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TANAYA WILLIAMS, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-0755-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned under 28 U.S.C. § 636(c). 24 Court on the parties’ Joint Stipulation, filed December 6, 2017, 25 which the Court has taken under submission without oral argument. 26 For the reasons stated below, the Commissioner’s decision is 27 affirmed. The parties consented to the jurisdiction of the The matter is before the 28 1 Dockets.Justia.com 1 II. BACKGROUND Plaintiff was born in 1990. 2 (Administrative Record (“AR”) 3 208.) 4 in retail as a sales clerk and cashier (AR 37, 61-62, 212, 219- 5 21). 6 She completed one year of college (AR 38, 212) and worked On March 12, 2013, Plaintiff applied for DIB and SSI, 7 alleging that she had been unable to work since November 1, 2007, 8 because of anxiety, depression, and bipolar disorder. 9 74-75, 182-96.) (AR 66-67, After her applications were denied initially and 10 on reconsideration (see AR 82-83, 114-15, 118, 121, 127), she 11 requested a hearing before an Administrative Law Judge (AR 134). 12 A hearing was held on July 9, 2015, at which Plaintiff, who was 13 represented by counsel, testified, as did a vocational expert and 14 Plaintiff’s case worker. 15 decision issued August 11, 2015, the ALJ found Plaintiff not 16 disabled. 17 (AR 13), which was denied on January 23, 2017 (AR 8-10). 18 action followed. 19 III. STANDARD OF REVIEW 20 (AR 17-33.) (See AR 34-65, 181.) In a written Plaintiff sought Appeals Council review This Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 25 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 evidence means such evidence as a reasonable person might accept 27 as adequate to support a conclusion. 28 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 It is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 substantial evidence supports a finding, the reviewing court 5 “must review the administrative record as a whole, weighing both 6 the evidence that supports and the evidence that detracts from 7 the Commissioner’s conclusion.” 8 720 (9th Cir. 1998). 9 either affirming or reversing,” the reviewing court “may not To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 substitute its judgment” for the Commissioner’s. 11 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 12 People are “disabled” for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or has lasted, or is expected to 16 last, for a continuous period of at least 12 months. 17 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 18 1992). 42 U.S.C. 19 A. The Five-Step Evaluation Process 20 The ALJ follows a five-step evaluation process to assess 21 whether a claimant is disabled. 22 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 23 1995) (as amended Apr. 9, 1996). 24 Commissioner must determine whether the claimant is currently 25 engaged in substantial gainful activity; if so, the claimant is 26 not disabled and the claim must be denied. 27 416.920(a)(4)(i). 28 20 C.F.R. §§ 404.1520(a)(4), In the first step, the §§ 404.1520(a)(4)(i), If the claimant is not engaged in substantial gainful 3 1 activity, the second step requires the Commissioner to determine 2 whether the claimant has a “severe” impairment or combination of 3 impairments significantly limiting her ability to do basic work 4 activities; if not, the claimant is not disabled and her claim 5 must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 6 7 impairments, the third step requires the Commissioner to 8 determine whether the impairment or combination of impairments 9 meets or equals an impairment in the Listing of Impairments set 10 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 11 disability is conclusively presumed. 12 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 13 If the claimant’s impairment or combination of impairments 14 does not meet or equal an impairment in the Listing, the fourth 15 step requires the Commissioner to determine whether the claimant 16 has sufficient residual functional capacity (“RFC”)1 to perform 17 her past work; if so, she is not disabled and the claim must be 18 denied. 19 has the burden of proving she is unable to perform past relevant 20 work. 21 burden, a prima facie case of disability is established. 22 that happens or if the claimant has no past relevant work, the 23 Commissioner then bears the burden of establishing that the 24 claimant is not disabled because she can perform other §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If 25 1 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 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)). 4 1 substantial gainful work available in the national economy. 2 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 3 That determination comprises the fifth and final step in the 4 sequential analysis. 5 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 6 B. The ALJ’s Application of the Five-Step Process 7 At step one, the ALJ found that Plaintiff had not engaged in 8 substantial gainful activity since November 1, 2007, the alleged 9 onset date. (AR 19.) At step two, he concluded that Plaintiff 10 had severe impairments of “mood disorder and polysubstance 11 abuse.” 12 impairments did not meet or equal a listing. 13 four, the ALJ found that Plaintiff had the RFC to perform a full 14 range of work at all exertional levels but with the following 15 nonexertional limitations: “[She] is limited to non-complex, 16 routine tasks; [she] cannot perform tasks requiring 17 hypervigilance; [she] cannot be responsible for the safety of 18 others; [she] cannot perform jobs requiring public interaction; 19 and [she] cannot perform jobs requiring significant teamwork.” 20 (AR 21.) 21 Plaintiff could not perform her past relevant work. 22 step five, the ALJ concluded that given Plaintiff’s age, 23 education, work experience, and RFC, she could perform three 24 representative jobs in the national economy. 25 he found Plaintiff not disabled. 26 V. 27 28 (Id.) At step three, he determined that Plaintiff’s (AR 20.) At step Based on the VE’s testimony, the ALJ found that (AR 26.) (AR 27-28.) Thus, (AR 28.) DISCUSSION Plaintiff argues that the ALJ improperly rejected the opinion of psychiatrist Mehar Gill, a treating physician. 5 At (J. 1 Stip. at 4-11, 21.) As discussed below, the ALJ properly 2 evaluated the medical-opinion evidence. 3 not warranted. Accordingly, remand is 4 A. Applicable Law 5 Three types of physicians may offer opinions in Social 6 Security cases: those who directly treated the plaintiff, those 7 who examined but did not treat the plaintiff, and those who did 8 neither. 9 is generally entitled to more weight than an examining Lester, 81 F.3d at 830. A treating physician’s opinion 10 physician’s, and an examining physician’s opinion is generally 11 entitled to more weight than a nonexamining physician’s. 12 see §§ 404.1527, 416.927.2 13 nonexamining physician can amount to substantial evidence, so 14 long as other evidence in the record supports those findings.” 15 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 16 (as amended). 17 18 Id.; But “the findings of a nontreating, The ALJ may disregard a physician’s opinion regardless of whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 19 20 21 22 23 24 25 26 27 28 2 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the Commissioner’s final decision, 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. §§ 404.1527 and 416.927 are to the versions in effect from August 24, 2012, to March 26, 2017. 6 1 751 (9th Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., 2 533 F.3d 1155, 1164 (9th Cir. 2008). 3 is not contradicted by other medical-opinion evidence, however, 4 it may be rejected only for a “clear and convincing” reason. 5 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 6 Lester, 81 F.3d at 830-31). 7 must provide only a “specific and legitimate reason” for 8 discounting it. 9 F.3d at 830-31). When a physician’s opinion When it is contradicted, the ALJ Carmickle, 533 F.3d at 1164 (citing Lester, 81 The weight given a treating or examining 10 physician’s opinion, moreover, depends on whether it is 11 consistent with the record and accompanied by adequate 12 explanation, among other things. 13 416.927(c)(3)-(6). 14 afforded the opinions of nonexamining physicians. 15 §§ 404.1527(e), 416.927(e). 16 agency medical consultants and experts as opinion evidence. 17 §§ 404.1527(c)(3)-(6), Those factors also determine the weight The ALJ considers findings by stateId. Furthermore, “[t]he ALJ need not accept the opinion of any 18 physician . . . if that opinion is brief, conclusory, and 19 inadequately supported by clinical findings.” 20 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. 21 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 22 An ALJ need not recite “magic words” to reject a physician’s 23 opinion or a portion of it; the court may draw “specific and 24 legitimate inferences” from the ALJ’s opinion. 25 F.2d at 755. 26 context of “the entire record as a whole,” and if the “‘evidence 27 is susceptible to more than one rational interpretation,’ the 28 ALJ’s decision should be upheld.” Thomas v. Magallanes, 881 The Court must consider the ALJ’s decision in the 7 Ryan v. Comm’r of Soc. Sec., 1 2 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). B. Relevant Background 1. 3 Dr. Gill 4 Dr. Gill first saw Plaintiff in November 2012. (See AR 295- 5 96, 298; see also AR 297-301 (Plaintiff’s preappointment 6 assessment with clinical therapist).)3 7 “mood swings,” with “period[s] of depression” and then “periods 8 of [increased] energy, irritability, and anger” (AR 295); he 9 diagnosed her with bipolar disorder (AR 296). Her “chief complaint” was He observed that 10 her appearance, hygiene, behavior, speech, mood and affect, 11 thought process and content, and memory were “w[ithin] n[ormal] 12 l[imits].” 13 hallucinations — it is unclear whether he observed her having 14 hallucinations or she reported them — and “fair” insight and 15 judgment. 16 (AR 286, 296.) 17 18 (Id.) (Id.) He indicated that she had auditory He prescribed Zoloft,4 Abilify,5 and trazodone.6 Later that month, Dr. Gill saw Plaintiff “for med[ication].” (AR 294.) She complained of unspecified side effects from 19 20 21 22 23 24 25 26 27 28 3 The majority of Dr. Gill’s treatment notes are hard to read or illegible (see AR 287-96, 304-05); the Court’s summary is limited to what it could actually read. 4 Zoloft treats depression and may improve a patient’s mood, sleep, appetite, and energy level and decrease fear, anxiety, unwanted thoughts, and frequency of panic attacks. See Zoloft, WebMD, https://www.webmd.com/drugs/2/drug-35-8095/zoloft-oral/ sertraline-oral/details (last visited June 1, 2018). 5 Abilify is an antipsychotic used to treat bipolar disorder. See Abilify, WebMD, https://www.webmd.com/drugs/2/ drug-64439/abilify-oral/details (last visited June 1, 2018). 6 Trazodone is used to treat depression. See Trazodone HCL, WebMD, https://www.webmd.com/drugs/2/drug-11188-89/trazodoneoral/trazodone-oral/details (last visited June 1, 2018). 8 1 Abilify and stated that she “still ha[d] mood swings,” got 2 “anxious [and] overwhelmed at times,” and experienced auditory 3 hallucinations. 4 medication plan was “fair to poor.” 5 her prescriptions for Zoloft and Abilify and prescribed Risperdal7 6 and Prozac8 instead. 7 (Id.) Plaintiff’s compliance with her (Id.) Dr. Gill discontinued (Id.; see AR 286.) In December 2012, Plaintiff “denie[d] any manic symptoms” 8 but stated that she got “depressed more frequently.” (AR 293.) 9 Her compliance with medication was “good,” but she said she still 10 heard voices, had paranoia, and slept “12-14 h[ours]/day.” 11 Dr. Gill referred her to therapy. 12 Plaintiff arrived at her appointment “[n]eatly dressed” and 13 “well-groomed.” 14 medication plan but “still ha[d] mood swings,” “depression,” and 15 “crying spells.” 16 hallucinations but not command hallucinations. 17 February 2013, Plaintiff “denie[d] any manic symptoms [or] 18 depression” but had decreased energy and motivation. 19 She was not fully compliant with her medication; Dr. Gill noted 20 that she “did not take Risperdal regularly.” 21 2013, her compliance remained “poor” and she “ha[d] not been 22 taking Risperdal.” (AR 292.) (Id.) (Id.) (Id.) In January 2013, She had “good” compliance with her She said she was experiencing auditory (AR 290.) (Id.) (Id.) In (AR 291.) In March “She [was] also paranoid” and 23 24 25 26 27 28 7 Risperdal, which is used to treat such mental disorders as schizophrenia and bipolar disorder, can help patients think clearly and take part in everyday life. See Risperdal, WebMD, https://www.webmd.com/drugs/2/drug-9846/risperdal-oral/details (last visited June 1, 2018). 8 Prozac is used to treat depression. See Prozac, WebMD, https://www.webmd.com/drugs/2/drug-6997/prozac-oral/details (last visited June 1, 2018). 9 1 “distressed” but denied suicidal thoughts. 2 “unable to explain [her] side effects” but stated that she felt 3 like she was “in a bal[l]oon.” 4 want to take Risperdal,” so Dr. Gill discontinued it and 5 trazodone and prescribed Seroquel.9 6 (Id.) (Id.) Plaintiff was She said she “d[id] not (Id.; see AR 286.) On April 11, 2013, Dr. Gill completed a mental-capacity 7 assessment of Plaintiff. (AR 279-81.) He opined that Plaintiff 8 had “[m]arked” limitations remembering locations and worklike 9 procedures; understanding, remembering, and carrying out detailed 10 instructions; maintaining attention and concentration for 11 extended periods; performing activities on a schedule; 12 maintaining regular attendance; being punctual within customary 13 tolerances; working in coordination with or in proximity to 14 others; and completing a normal workday or workweek without 15 interruptions from psychologically based symptoms. 16 She would have “4+” absences in an average month. 17 also had “[m]arked” limitations interacting appropriately with 18 the general public, accepting instructions and responding 19 appropriately to criticism, getting along with coworkers or peers 20 without distracting them or exhibiting behavior extremes, 21 maintaining socially appropriate behavior, adhering to basic 22 standards of neatness and cleanliness, responding appropriately 23 to changes in the work setting, setting realistic goals, and 24 making plans independently of others. 25 (AR 279-80.) (AR 280.) She (AR 280-81.) She had no limitations understanding, remembering, and 26 27 28 9 Seroquel is an antipsychotic used to treat such mental conditions as bipolar disorder. See Seroquel, WebMD, https:// www.webmd.com/drugs/2/drug-4718/seroquel-oral/details (last visited June 1, 2018). 10 1 carrying out very short, simple instructions; asking simple 2 questions or requesting assistance; or being aware of normal 3 hazards and taking appropriate precautions. 4 was “[u]nknown” whether she could sustain an ordinary routine 5 without special supervision, make simple work-related decisions, 6 perform at a consistent pace with a standard number and length of 7 rest periods, travel in unfamiliar places, or use public 8 transportation. 9 from her “poor conc[entration] and attention, forgetfulness, (Id.) (AR 279-81.) And it He explained that the limitations stemmed 10 psychotic symptoms,” “mood swings, depression,” “paranoia, [and] 11 hallucinations.” 12 impact on his assessment of Plaintiff’s mental capacity. 13 281.) 14 . . . her own best interest” but did not explain why not. (See id.) Dr. Gill noted that alcohol had no (AR He also opined that she could not “manage benefits in (Id.) Later in April — two weeks after Dr. Gill filled out the 15 16 mental-capacity assessment — Plaintiff’s compliance with 17 medication had returned to “good,” and she reported “feeling much 18 better now.” 19 any crying spells,” and she said her auditory hallucinations were 20 “also less.” 21 wrote that she “show[ed] improvement.” 22 Plaintiff was “neatly dressed” and “well groomed,” and she stated 23 that she was “feeling good.” 24 “less,” with “no crying spells,” but she still got angry and 25 frustrated “easily.” 26 medication compliance was “good,” and she “show[ed] improvement.” 27 (Id.) 28 (AR 289.) (Id.) She was “less depressed” and “denie[d] Though she still had “paranoia,” Dr. Gill (Id.) (AR 288.) (Id.) In May 2013, Her depression was Her “sleep [was] better,” her In July 2013, Plaintiff was “neatly dressed,” “well 11 1 groomed,” “calm,” and “pleasant.” 2 [were] less severe [and] less frequent,” and her auditory 3 hallucinations were “also less.” 4 and she reported “no [side effects]” from her medications. 5 Her compliance was “good,” and she still was “showing 6 improvement.” 7 was “poor,” she “was using marijuana,” and she had recently been 8 hospitalized. 9 mood swings” but “sleep [was] ok.” (Id.) (AR 287.) (Id.) Her “mood swings Her “sleep [was] good,” (Id.) By October 2013, however, her compliance (AR 305; see AR 335-36, 395-99.) (AR 305.) She had “major In November 2013, 10 she “show[ed] improvement” and had “good” compliance with her 11 medication plan. 12 better,” her “anger outbursts [were] less,” and her “mood swings 13 [were] less severe.” 14 she was “depressed again.” 15 hallucinations were “also less [and] not command.” 16 (AR 304.) She reported that she was “doing (Id.) Her “sleep [was] better,” although (Id.) She said her auditory (Id.) On June 5, 2014, seven months after his last appointment 17 with Plaintiff in the record, Dr. Gill completed a medical-source 18 statement. 19 Plaintiff’s condition was November 1, 2012, and opined that she 20 was not “able to work.” 21 “auditory hallucinations, paranoia, mood swings, depression, low 22 frustration tolerance, poor conc[entration], [poor] attention, 23 [and] forgetfulness,” “interfere[d] [with her] daily 24 functioning.” 25 of those symptoms. 26 “follow simple instructions but [could] not follow complex 27 instructions” because she had difficulty “sustain[ing] attention 28 for a long time.” (See AR 584-88.) (AR 584.) (AR 588.) (Id.) (Id.) He noted that the onset date of Her symptoms, which included She was “unable to socialize” because Dr. Gill indicated that she could Regarding Plaintiff’s ability to adapt 12 1 to worklike situations, Dr. Gill stated that she got “frustrated 2 easily” and “ha[d] poor decision-making” skills. 3 [would] miss work for more than 5-6 days a month if she [was] 4 working,” he wrote. 5 filled out another medical-source statement, assessing Plaintiff 6 with the same limitations. 7 not seen or treated Plaintiff in the interim. 2. 8 (Id.) (Id.) “She A year later, on June 19, 2015, he (See AR 590-91.) He apparently had Additional clinical notes Plaintiff admitted herself to the hospital for a voluntary 9 10 psychiatric evaluation on July 9, 2012. (AR 317-26.) She was 11 “overwhelmed,” had “mood swings, anxiety, [and] nightmares,” and 12 “want[ed] med[ication] to stabilize [her] mood.” 13 318.) 14 months. 15 “outp[atient] psych clinic,” and she was discharged home in 16 “stable” condition that same night. (AR 324; see AR She reported that she hadn’t been to therapy in eight (AR 320.) Hospital personnel referred Plaintiff to an (AR 323, 326.) Plaintiff apparently was treated at Inland Family Community 17 18 Health Center beginning in September 2012. 19 had no “hallucinations,” “agitation,” “delusions,” or “suicidal 20 tendencies.” 21 normal,” and thought processes and content “were not impaired.” 22 (Id.) 23 hallucinations. 24 depression [was] working well.” 25 “[a]lert, oriented to time, place, and person, well developed, 26 and well nourished.” 27 “was not depressed,” her “affect was normal,” and she “was not 28 tearful” or “agitated.” (AR 533.) (See AR 532-33.) She Her “mood was euthymic,” “affect was In October 2012, she denied suicidal thoughts or plans or (AR 529.) She stated that her “medication for (AR 530.) (Id.) (Id.) She was found to be Her “mood was euthymic,” she In November and December 2012 and 13 1 January 2013, she was again “[a]lert, oriented to time, place, 2 and person, well developed, and well nourished,” and her “affect 3 was normal.” 4 complained of neck and throat pain from a recent car accident. 5 (AR 519-21.) 6 and her “affect was normal.” 7 was “normal, alert, oriented to time, place, and person, well 8 developed, and well nourished.” 9 reported debilitating headaches and discussed stress management (AR 522-28.) In February 2013, Plaintiff She “reported no psychological symptoms,” however, (AR 521.) (Id.) Her general appearance In June 2013, Plaintiff 10 with her provider but mentioned no psychological symptoms. 11 515-18.) 12 (AR On September 30, 2013, Plaintiff was admitted to the 13 hospital because she “was stabbing herself with a pen.” 14 36; see AR 395-99, 416.) 15 seeking therapy because she had been raped by her boyfriend three 16 days earlier, her primary therapist was unavailable. 17 368-69, 384, 398.) 18 intend to kill herself” (AR 366), and she claimed that she had 19 “been experiencing command auditory hallucinations telling her to 20 harm herself” and felt “like she must comply” (AR 368). 21 “very depressed and tearful” but with “logical thought 22 formation.” 23 but tested positive for marijuana (AR 366). 24 discharged to her family the next day. 25 (Id.) (AR 335- She had become upset when, after (AR 366, Though she “lost her temper,” she “did not She was She denied any illicit substance abuse (id.) She was “stable” and (AR 347, 366, 402.) Plaintiff didn’t return to the Inland Family Community 26 Health Center until May 2014, close to a year after her last 27 visit; at that time, she reported depression and a “change in 28 personality.” (AR 511-14.) Her provider found that her “affect 14 1 was normal,” and she was “alert, oriented to time, place, and 2 person, well developed, and well nourished.” 3 counseled about “stress management” and the “proper use of 4 medications.” 5 “[a]lert, oriented to time, place, and person, well developed, 6 and well nourished.” (AR 513.) She was In July and August 2014, she was noted as (Id.) (AR 502-10.) In January 2015, Plaintiff had anxiety, but it “d[id] not 7 8 interfere with work”10 or cause her to “feel[] restless.” 9 498-500.) (AR Her “mood was depressed,” but she was “[n]ot crying 10 for no reason.” (AR 498, 500.) She was assessed with fatigue, 11 but her sleep patterns were “normal” and she didn’t feel tired. 12 (Id) 13 self-esteem, and [the] ability to make decisions.” 14 She was “[a]lert, oriented to time, place, and person, and well 15 developed.” 16 not agitated,” and “thought content revealed no impairment” or 17 “delusions.” 18 psychological symptoms” and was not feeling tired but stated 19 that, on a scale of zero to three, she ranked at three for 20 “[l]ittle interest or pleasure in doing things” and “[f]eeling 21 down, depressed, or hopeless.”11 22 still reported feeling “[l]ittle interest or pleasure in doing 23 things,” but no other psychological issues were recorded. She reported “[n]ormal enjoyment of activities, no low (AR 500.) (Id.) (AR 498.) Her “grooming was normal,” “affect was In March 2015, she reported experiencing “no (AR 495-96.) In April 2015, she (See 24 10 25 It is not clear what “work” Plaintiff was referring to. 11 26 27 28 A patient health questionnaire is used to monitor the severity of depression and response to treatment. See Patient Health Questionnaire (PHQ-9), Patient, https://patient.info/ doctor/patient-health-questionnaire-phq-9 (last visited June 1, 2018). A score of zero means “not at all”; a score of three means “nearly every day.” Id. 15 1 AR 490-92.) 2 3. Dr. Krieg On March 4, 2015, psychologist Charlene K. Krieg conducted a 3 4 psychological evaluation of Plaintiff. 5 completed a medical-source statement. 6 appointment, Plaintiff was “oriented to time, place, and purpose 7 of the visit.” 8 understand test questions and follow directions.” 9 Although Plaintiff alleged “hearing voices,” Dr. Krieg observed (AR 308.) (AR 306-11.) (AR 312-14.) She also At the She was “cooperative” and “able to (AR 309.) 10 that she “did not exhibit visual tracking behaviors typical of 11 individuals responding to internal stimuli.” 12 Plaintiff “described herself as being in a manic mood during the 13 evaluation” but “appeared calm with slightly slowed speech and 14 slightly slowed response times.” 15 reserved mood and constricted affect,” and her “level of insight 16 and social judgment appeared to be within normal limits.” 17 309.) 18 average range.” 19 “attention/concentration tasks that measure simple visual 20 scanning and sequencing abilities” was in the “normal to mild 21 deficit range,” and her performance on “attention/concentration 22 tasks that require the manipulation of complex information” was 23 in the “low-average to borderline range.” 24 opined that Plaintiff had “no mental impairment that would limit 25 her ability to engage in work activities and complete a normal 26 workday or workweek.” (Id.) (AR 307.) She “presented with (AR Her level of intellectual functioning was in the “low(AR 310.) Further, her performance on (Id.) (AR 311; see AR 312-14.) 27 28 16 Dr. Krieg 1 4. State-agency reviewer In February 2014, Plaintiff’s medical records were reviewed 2 3 by state-agency psychologist Therese Harris. 4 10.) 5 functional limitations in understanding and memory, concentration 6 and persistence, social interaction, and adaptation (AR 93-95, 7 108-10). 8 9 (See AR 93-95, 108- She found Plaintiff not disabled (AR 97, 112) and assessed She was “[n]ot significantly limited” in her ability to remember locations, worklike procedures, or “very short and 10 simple instructions”; carry out “very short and simple” or 11 detailed instructions; maintain attention and concentration “for 12 extended periods”; sustain an ordinary routine without special 13 supervision; make simple work-related decisions; ask simple 14 questions or request assistance; maintain socially appropriate 15 behavior; adhere to basic standards of neatness and cleanliness; 16 be aware of normal hazards and take appropriate precautions; 17 travel in unfamiliar places or use public transportation; and set 18 realistic goals or make plans independently of others. 19 She was “[m]oderately limited” in her ability to “understand and 20 remember detailed instructions”; perform activities on a 21 schedule, maintain regular attendance, and be punctual within 22 customary tolerances; work in coordination with or in proximity 23 to others without being distracted by them; complete a normal 24 workday and workweek without interruptions from psychologically 25 based symptoms; perform at a consistent pace without an 26 unreasonable number and length of rest periods; interact 27 appropriately with the general public; accept instructions and 28 respond appropriately to criticism from supervisors; get along 17 (Id.) 1 with coworkers or peers without distracting them or exhibiting 2 behavior extremes; and respond appropriately to changes in the 3 work setting. 4 Plaintiff was “[a]ble to maintain focus, pace, and persistence 5 for simple tasks for 2-hour periods over an 8-h[ou]r workday 6 within a normal 40-hour work schedule.” 7 stated that Plaintiff could “adequately manage interaction with 8 the public” and “appropriate interpersonal interactions in the 9 workplace” and could “accept reasonable supervision.” (AR 93-94, 108-09.) Dr. Harris opined that (AR 94, 109.) She also (Id.) 10 C. Analysis 11 The ALJ gave “little weight” to Dr. Gill’s opinion, which 12 indicated “generally marked functional limitations” and 13 “conclu[ded] that [Plaintiff] was unable to work.” 14 AR 279-81, 584-88, 590-91.) 15 by the less restrictive opinions of Dr. Krieg (see AR 306-11) and 16 the state-agency reviewer (see AR 93-95, 108-110; see also AR 17 25), the ALJ was required to provide only a “specific and 18 legitimate reason” for rejecting it. 19 1164. (AR 24; see Because his opinion was contradicted See Carmickle, 533 F.3d at He did so. 20 First, the ALJ discounted Dr. Gill’s opinion because it was 21 “not supported by objective evidence” and was “inconsistent with 22 the record as a whole.” 23 assertion was “legally and factually flawed.” 24 On the contrary, the ALJ did not err. 25 objective medical evidence can be a specific and legitimate 26 reason for rejecting a medical-source opinion. 27 F.3d at 1195 (lack of “supportive objective evidence” and 28 “contradict[ion] by other statements and assessments of (AR 24.) 18 Plaintiff contends that this (J. Stip. at 7-8.) Inconsistency with the See Batson, 359 1 [plaintiff’s] medical condition” were “specific and legitimate 2 reasons” to discount physicians’ opinions); Kohansby v. 3 Berryhill, 697 F. App’x 516, 517 (9th Cir. 2017) (upholding 4 inconsistency with medical-opinion evidence as specific and 5 legitimate reason for rejecting medical opinion (citing 6 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008))). 7 As noted by the ALJ, although Plaintiff’s “treating 8 physicians support[ed] allegations of disabling symptoms,” “the 9 actual treatment records show she [was] generally doing better 10 with decreased mood swings and better sleep when she [was] 11 compliant with medication.” 12 evidence showed “generally normal findings when compliant with 13 medication”).) 14 wavered, but Dr. Gill often recorded that when her compliance was 15 “good,” she “show[ed] improvement.” 16 (May 2013), 289 (Apr. 2013), 304 (Nov. 2013). 17 (Jan. 2013: “good” compliance but no assessment of 18 “improvement”), 293 (Dec. 2012: same).) 19 “feeling much better” when she was compliant with medication. 20 (AR 289.) 21 “denie[d] any crying spells,” and had “less” auditory 22 hallucinations. 23 “less” and “no crying spells”), 287 (July 2013: mood swings “less 24 severe [and] less frequent”).) 25 October 2013 when she was hospitalized and tested positive for 26 marijuana (see AR 305, 335-36, 395-99), but by the next month it 27 was again “good” and, as a result, she was “doing better,” her 28 “anger outbursts [were] less,” and her “mood swings [were] less (AR 26; see AR 24 (ALJ stating that Plaintiff’s compliance with her medication plan (See AR 287 (July 2013), 288 But see AR 292 Plaintiff reported In April 2013, for example, she was “less depressed,” (Id.; see also AR 288 (May 2013: depression Her compliance was “poor” in 19 1 severe” (AR 304). 2 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be 3 controlled effectively with medication are not disabling for the 4 purpose of determining eligibility for SSI benefits.”) 5 See Warre v. Comm’r of Soc. Sec. Admin., 439 Further, Dr. Gill’s opinion of generally marked functional 6 limitations was inconsistent with Plaintiff’s progress notes from 7 Inland Family Community Health Center, which show mostly stable 8 mental-health symptoms. 9 time, place, and person, [and] well developed” (see AR 496 (Mar. She was regularly “alert, oriented to 10 2015), 500 (Jan. 2015), 503 (Aug. 2014), 510 (July 2014), 513 11 (May 2014), 521 (Feb. 2013), 522 (Jan. 2013), 524 (Dec. 2012), 12 528 (Nov. 2012), 530 (Oct. 2012), 533 (Sept. 2012)), 13 contradicting Dr. Gill’s finding that she would have “[m]arked” 14 limitations in maintaining attention and concentration (AR 279, 15 588, 591). 16 5544077, at *8 (E.D. Cal. Nov. 14, 2012) (finding that 17 physician’s opinion that plaintiff had “difficulty in paying 18 attention” was contradicted in part by treatment records 19 indicating she was “alert”). 20 center often directly contradicted Dr. Gill’s treatment notes 21 from the same point in time. 22 Plaintiff reporting to Dr. Gill mood swings, anxiety, depression, 23 and crying spells, among other things), with AR 530 (Oct. 2012: 24 health center noting that Plaintiff’s “mood was euthymic and was 25 not depressed”), and AR 527 (Nov. 2012: Plaintiff reporting “no 26 psychological symptoms” to health center).) 27 Plaintiff was assessed with fatigue and depression by the health 28 center, her symptoms were mild. See Debbs v. Astrue, No. 2:11-cv-02394 KJN, 2012 WL Plaintiff’s reports to the health (Compare AR 294-95 (Nov. 2012: And even when (See AR 498, 500.) 20 Her anxiety 1 “d[id] not interfere with work,” and she was “[n]ot crying for no 2 reason.” 3 no low self-esteem, and [the] ability to make decisions.” 4 Moreover, her “thought content revealed no impairment and no 5 delusions.” (AR 498.) She had “[n]ormal enjoyment of activities, (Id.) (AR 500.) 6 Dr. Gill opined that Plaintiff’s ability to work was 7 impaired by “forgetfulness” (see AR 279-80, 588), but the 8 psychological tests conducted by Dr. Krieg showed that her 9 working memory was “within normal limits” and her immediate, 10 recent, and remote memories were all “[i]ntact” (AR 309). 11 indicated “[m]arked” limitation in her ability to “adhere to 12 basic standards of neatness and cleanliness” (AR 280) but noted 13 more than once in his own treatment notes that she was “[n]eatly 14 dressed” and “well-groomed” (see AR 287-88, 292), never 15 indicating otherwise.12 16 was “unable to socialize” (AR 588), but she apparently had a 17 boyfriend for at least some portion of the relevant period, 18 although he was alleged to have been abusive (AR 297, 301). 19 These inconsistencies diminish the reliability of Dr. Gill’s 20 opinion. 21 App’x 320, 321 (9th Cir. 2018) (affirming ALJ’s discounting of 22 treating physician’s opinion because “medical record as a whole 23 was inconsistent with the degree of limitations” assessed). 24 He Similarly, Dr. Gill found that Plaintiff (See AR 23-24); see also Williams v. Berryhill, 710 F. Thus, despite the fluctuating symptoms pointed out by 25 26 27 28 12 Plaintiff’s preappointment assessment, completed by a clinical therapist, not Dr. Gill, contradicts itself on the issue of Plaintiff’s appearance; it states both that she had “good hygiene and grooming” (AR 300) and that she “neglect[ed] hygiene and grooming” when she was “depressed” (AR 297). 21 1 Plaintiff (see J. Stip. at 7-10), many of which were attributable 2 to her medication compliance or lack therof, the ALJ’s conclusion 3 that the objective medical record did not support and was 4 inconsistent with Dr. Gill’s opinion of generally marked 5 limitations was rational and supported by substantial evidence. 6 See Ryan, 528 F.3d at 1198 (“‘Where evidence is susceptible to 7 more than one rational interpretation,’ the ALJ’s decision should 8 be upheld.” (citation omitted)); Andrews v. Shalala, 53 F.3d 9 1035, 1039 (9th Cir. 1995) (“The ALJ is responsible for 10 determining credibility, resolving conflicts in medical 11 testimony, and for resolving ambiguities.”). 12 discounted Dr. Gill’s opinion for that specific and legitimate 13 reason. 14 517. He appropriately See Batson, 359 F.3d at 1195; Kohansby, 697 F. App’x at Second, the ALJ found that “the conclusion that [Plaintiff] 15 16 was unable to work [had] no probative value.” (AR 24.) Opinions 17 such as Dr. Gill’s that Plaintiff was not “able to work” (AR 584, 18 590) are reserved to the Commissioner and “can never be entitled 19 to controlling weight or given special significance.” 20 1996 WL 374183, at *5 (July 2, 1996); see §§ 404.1527(d)(1), 21 416.927(d)(1) (“A statement by a medical source that you are 22 ‘disabled’ or ‘unable to work’ does not mean that we will 23 determine that you are disabled.”). 24 Gill’s finding on an issue reserved to the Commissioner “does not 25 discharge the ALJ from considering those opinions.” 26 8-9.) 27 Gill’s conclusions on disability, the ALJ “specifically addressed 28 [his] statements” and “explained why the evidence did not support SSR 96-5p, Plaintiff argues that Dr. (J. Stip. at But as Defendant points out, in addition to rejecting Dr. 22 1 the severe limitations he assessed.” (Id. at 12-13 (citing AR 2 24); see AR 23.) 3 opinion was “not supported by objective evidence” and 4 “inconsistent with the record as a whole” was a specific and 5 legitimate reason to discount it. 6 (“ALJ did not err in giving minimal evidentiary weight to the 7 opinion[] of [plaintiff’s] treating physician[]” in part because 8 opinion “did not have supportive objective evidence”). As discussed above, the fact that Dr. Gill’s See Batson, 359 F.3d at 1195 9 Finally, the ALJ discounted Dr. Gill’s opinion because he 10 “primarily summarized [Plaintiff’s] subjective complaints” and 11 “did not provide clinical findings to support [his] functional 12 assessment.” (AR 24.) 13 his opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 14 2005) (affirming rejection of physician’s opinion that plaintiff 15 “suffers from bipolar disorder” when it “was not supported by 16 clinical evidence and was based on [plaintiff’s] subjective 17 complaints”). 18 professionals ‘frequently rely on the combination of their 19 observations and the patient’s reports of symptoms,’” it was 20 inappropriate to discount Dr. Gill’s opinion on that basis. 21 Stip. at 9-10 (quoting Ferrando v. Comm’r of Soc. Sec. Admin., 22 449 F. App’x 610, 612 n.2 (9th Cir. 2011); Ryan, 528 F.3d at 23 1199-1200).) 24 of “a mental health professional’s opinion solely because it is 25 based to a significant degree on a patient’s ‘subjective 26 evaluations.’” 27 ALJ gave no adequate reason to discount the plaintiff’s 28 subjective statements and thus could not “rely on any defect in This was a proper reason for rejecting Plaintiff contends that because “mental health (J. Indeed, Ferrando discourages an ALJ’s discrediting 449 F. App’x at 612 n.2. 23 But in that case, the 1 those ‘subjective allegations’ to discredit the treating 2 psychiatrist.” 3 Plaintiff’s subjective symptom statements “less than fully 4 credible” (AR 22), which she has not challenged on appeal. 5 Moreover, the ALJ did not discredit Dr. Gill’s opinion “solely” 6 because it was based on Plaintiff’s subjective symptoms, further 7 distinguishing Ferrando. 8 10 (conducting several psychological tests)), Dr. Gill does not 9 appear to have performed any objective psychological tests to Id. at 612. In contrast, the ALJ here found And unlike Dr. Krieg (see AR 306, 309- 10 support his assessment of Plaintiff’s functional limitations (see 11 generally AR 279-96, 302-05). Accordingly, the ALJ did not err in assessing Dr. Gill’s 12 13 opinion. 14 such, remand is not warranted. 15 Kohansby, 697 F. App’x at 517. 16 VI. 17 Substantial evidence supports the ALJ’s decision. As See Batson, 359 F.3d at 1195; CONCLUSION Consistent with the foregoing and under sentence four of 42 18 U.S.C. § 405(g),13 IT IS ORDERED that judgment be entered 19 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 20 request for remand, and in Defendant’s favor. 21 22 DATED: June 4, 2018 23 ____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 24 25 26 27 28 13 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.” 24
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