Eric Burrell Mimms v. Nancy A. Berryhill, No. 5:2018cv00784 - Document 25 (C.D. Cal. 2019)

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

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Eric Burrell Mimms v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERIC BURRELL M.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 18-0784-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned under 28 U.S.C. § 636(c). 23 the Court on the parties’ Joint Stipulation, filed April 8, 2019, 24 which the Court has taken under submission without oral argument. The parties consented to the jurisdiction of The matter is before 25 26 27 28 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 For the reasons stated below, the Commissioner’s decision is 2 affirmed. 3 II. 4 BACKGROUND Plaintiff was born in 1969. (Administrative Record (“AR”) He completed college (see AR 38, 183)2 and last worked as a 5 63.) 6 special warfare combatant for the U.S. Navy, a position he held 7 for 25 years (AR 184). 8 On October 15, 2015, Plaintiff applied for DIB, alleging 9 that he had been unable to work since March 31, 2012, because of 10 posttraumatic stress disorder, “sleep apnea,” “degenerative disc 11 disease,” “patellar sublaxation both knees,” “ulnar neuropathy 12 left hand,” “medial and ulnar neuropathy r[igh]t hand,” 13 “arthritis with superior glenoid3 left shoulder,” “superior 14 glenoid r[igh]t shoulder,” “tend[i]nitis left elbow,” 15 “patellofemoral syndrome r[igh]t knee,” “status post ankle 16 fracture both ankles,” “tinnitus,” “gastroesophageal reflux 17 disease,” “status post healed fifth metacarpal neck fracture,” 18 “right great toe arthritis,” “r[igh]t ear hearing loss,” “Crohn’s 19 disease,” and “back pain due to broken back in 1993.” (AR 49-50; 20 21 22 23 24 25 26 27 28 2 Plaintiff filled out a report stating that he had completed “4 or more years of college” as of June 2015 (see AR 183), and his attorney noted that he has a bachelor’s degree (AR 270). But he also stated at the April 2017 hearing that Plaintiff was attending the University of Phoenix full-time (see AR 38), apparently for some kind of advanced degree. In any case, the ALJ’s decision considered Plaintiff to have completed only high school. (See AR 27.) 3 The glenoid is the socket part of the shoulder joint. See Shoulder Joint Tears, WebMD, https://www.webmd.com/ fitness-exercise/features/shoulder-joint-tears#1 (last visited June 5, 2019). 2 1 see also AR 163-69.) 2 (AR 61, 63) and on reconsideration (AR 77, 78), he requested a 3 hearing before an administrative law judge (AR 93-94). 4 was held on April 4, 2017, at which a vocational expert 5 testified. 6 After his application was denied initially A hearing (AR 33-48.) Plaintiff did not show up for the hearing. His attorney 7 said that a member of his office has just spoken to him, and he 8 “forgot that the hearing was today.” 9 thought that “we woke him up,” presumably shortly before the (AR 35.) The attorney (AR 39; see also AR 35.) The 10 start of the 11:17 a.m. hearing. 11 ALJ noted that that wasn’t good cause for failing to appear but 12 sent “an order to show cause” to Plaintiff in case “there [wa]s 13 some other reason.” 14 responded to the order, claiming that he had been there but was 15 told “[his] attorney was already in the hearing” and that he 16 should “leave.” 17 no evidence to support that [he] appeared at the hearing office 18 on the date of the hearing,” noting that “he never signed in as 19 per office policy” and that no attempt had been made to notify 20 her “through instant messaging” that Plaintiff was there, which 21 is office policy “even if the claimant arrives late and the 22 hearing has begun.” 23 “failure to appear . . . [was] without good cause.” 24 (AR 36; see also AR 146.) (AR 149.) Plaintiff The ALJ determined that “[t]here is (AR 16-17.) Thus, she found that his (AR 17.) In a written decision issued September 29, 2017, the ALJ 25 found that Plaintiff had not been disabled since the alleged 26 onset date. 27 requested review from the Appeals Council (AR 150), which denied 28 it on February 14, 2018 (AR 1-3). (See AR 28; see generally 16-28.) 3 Plaintiff This action followed. 1 III. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner’s decision to deny benefits. The ALJ’s findings and 4 decision should be upheld if they are free of legal error and 5 supported by substantial evidence based on the record as a whole. 6 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 7 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 8 means such evidence as a reasonable person might accept as 9 adequate to support a conclusion. Substantial evidence Richardson, 402 U.S. at 401; 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 11 is more than a scintilla but less than a preponderance. 12 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 13 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 14 meaning of ‘substantial’ in other contexts, the threshold for 15 such evidentiary sufficiency is not high.” 16 139 S. Ct. 1148, 1153 (2019). 17 evidence supports a finding, the reviewing court “must review the 18 administrative record as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner’s 20 conclusion.” 21 1998). 22 or reversing,” the reviewing court “may not substitute its 23 judgment” for the Commissioner’s. 24 IV. 25 It “[W]hatever the Biestek v. Berryhill, To determine whether substantial Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 26 Security benefits if they are unable to engage in any substantial 27 gainful activity owing to a physical or mental impairment that is 28 expected to result in death or has lasted, or is expected to 4 1 last, for a continuous period of at least 12 months. 42 U.S.C. 2 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 1992). 4 A. The Five-Step Evaluation Process 5 The ALJ follows a five-step sequential evaluation process to 6 assess whether a claimant is disabled. 20 C.F.R. 7 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 8 Cir. 1995) (as amended Apr. 9, 1996). 9 Commissioner must determine whether the claimant is currently In the first step, the 10 engaged in substantial gainful activity; if so, the claimant is 11 not disabled and the claim must be denied. 12 § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful 13 activity, the second step requires the Commissioner to determine 14 whether the claimant has a “severe” impairment or combination of 15 impairments significantly limiting his ability to do basic work 16 activities; if not, the claimant is not disabled and his claim 17 must be denied. 18 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 19 impairments, the third step requires the Commissioner to 20 determine whether the impairment or combination of impairments 21 meets or equals an impairment in the Listing of Impairments set 22 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 23 disability is conclusively presumed. § 404.1520(a)(4)(iii). 24 If the claimant’s impairment or combination of impairments 25 does not meet or equal an impairment in the Listing, the fourth 26 step requires the Commissioner to determine whether the claimant 27 28 5 1 has sufficient residual functional capacity (“RFC”)4 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. § 404.1520(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 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 12 determination comprises the fifth and final step in the 13 sequential analysis. 14 n.5; Drouin, 966 F.2d at 1257. That § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 15 B. The ALJ’s Application of the Five-Step Process 16 At step one, the ALJ found that Plaintiff met the insured 17 status requirements through December 31, 2017, and had not 18 engaged in substantial gainful activity since March 31, 2012, the 19 alleged onset date. 20 he had severe impairments of PTSD, depressive disorder, alcohol 21 abuse, degenerative disc disease of the lumbar spine, and “sleep 22 apnea with CPAP.” 23 (AR 19.) At step two, she determined that (Id.) At step three, she found that Plaintiff’s impairments did 24 25 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see also 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)). 6 1 not meet or equal a listing. (AR 19-21.) At step four, she 2 concluded that he had the RFC to perform modified light work, 3 limiting him to 4 lifting and/or carrying 20 pounds occasionally and 10 5 pounds frequently; standing and/or walking 6 hours in an 6 8-hour workday and sitting 6 hours in an 8-hour workday 7 with 8 scaffolds; occasionally climb ramps and stairs, balance, 9 stoop, kneel, crouch and crawl; occasional exposure to 10 excessive vibration such as construction vibration; no 11 use of moving hazardous machinery such as construction 12 machinery or in manufacturing with large moving parts; no 13 exposure to unprotected heights; can perform unskilled 14 work at all reasoning levels appropriate for unskilled 15 work; occasional superficial interaction with the public; 16 and occasional interaction with co-workers. normal breaks; never climb ladders, 17 (AR 21.) 18 Plaintiff could not do his past relevant work. ropes and Based on the VE’s testimony, the ALJ concluded that (AR 26.) 19 At step five, she found that given Plaintiff’s age, 20 education, work experience, and RFC, he could perform at least 21 three representative jobs in the national economy: “housekeeping, 22 cleaner, DOT 323.687-014,” 1991 WL 672783 (Jan. 1, 2016); 23 “[b]attery inspector, DOT 727.687-066,” 1991 WL 679675 (Jan. 1, 24 2016); and “[g]arment folder, DOT 789.687-066,” 1991 WL 681266 25 (Jan. 1, 2016). 26 disabled. (AR 27.) Accordingly, she found him not (AR 28.) 27 28 7 1 V. 2 DISCUSSION5 Plaintiff argues that the ALJ failed to provide “specific 3 and legitimate reasons to reject the mental limitations assessed 4 by the psychological consultative examiner” or “clear and 5 convincing reasons to reject [Plaintiff’s] subjective symptoms.” 6 (J. Stip. at 4; see also generally id. at 5-8, 12-17, 22-23.) 7 For the reasons discussed below, remand is not warranted on 8 either basis. 9 A. The ALJ Properly Assessed the Consulting Psychologist’s Opinion 10 Plaintiff argues that the ALJ improperly gave “some weight 11 12 but not full weight” to psychologist J. Zhang’s opinion. 13 6.) 14 Zhang’s opinion merited only “some weight.” As explained below, the ALJ appropriately found that Dr. 15 16 (Id. at 1. (See AR 26.) Applicable law Three types of physicians may offer opinions in Social 17 Security cases: those who directly treated the plaintiff, those 18 who examined but did not treat the plaintiff, and those who did 19 neither. 20 opinion is generally entitled to more weight than an examining See Lester, 81 F.3d at 830. A treating physician’s 21 22 23 24 25 26 27 28 5 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 33-48, 150); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also generally Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019). 8 1 physician’s, and an examining physician’s opinion is generally 2 entitled to more weight than a nonexamining physician’s. 3 see § 404.1527(c)(1). 4 employed to cure and have a greater opportunity to know and 5 observe the claimant. 6 Cir. 1996). 7 physician can amount to substantial evidence, so long as other 8 evidence in the record supports those findings.” 9 Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (as 10 11 Id.; This is so because treating physicians are Smolen v. Chater, 80 F.3d 1273, 1285 (9th But “the findings of a nontreating, nonexamining Saelee v. amended). The ALJ may disregard a physician’s opinion regardless of 12 whether it is contradicted. 13 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 14 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 15 opinion is not contradicted by other medical-opinion evidence, 16 however, it may be rejected only for a “clear and convincing” 17 reason. 18 (citing Lester, 81 F.3d at 830-31). 19 ALJ need provide only a “specific and legitimate” reason for 20 discounting it. 21 F.3d at 830-31). 22 depends on whether it is consistent with the record and 23 accompanied by adequate explanation, among other things. 24 § 404.1527(c); see also Orn v. Astrue, 495 F.3d 625, 631 (9th 25 Cir. 2007) (factors in assessing physician’s opinion include 26 length of treatment relationship, frequency of examination, and 27 nature and extent of treatment relationship). 28 Magallanes v. Bowen, 881 F.2d 747, When a doctor’s Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 When it is contradicted, the Carmickle, 533 F.3d at 1164 (citing Lester, 81 The weight given a doctor’s opinion, moreover, See An ALJ need not recite “magic words” to reject a physician’s 9 1 opinion or a portion of it; the court may draw “specific and 2 legitimate inferences” from the ALJ’s opinion. 3 F.2d at 755. 4 context of “the entire record as a whole,” and if the “evidence 5 is susceptible to more than one rational interpretation, the 6 ALJ’s decision should be upheld.” 7 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 2. 8 9 10 Magallanes, 881 The Court must consider the ALJ’s decision in the Ryan v. Comm’r of Soc. Sec., Relevant background a. Plaintiff’s mental-health treatment records Plaintiff was apparently first prescribed Cymbalta6 on June 11 26, 2013, likely by osteopathic doctor Bjorn Nordstrom. 12 e.g., AR 332, 329.)7 13 (See, On August 24, 2013, Plaintiff met at a veterans-affairs 14 clinic with psychologist Jeffrey Matloff, who reviewed him for 15 PTSD. 16 an attempted carjacking in 1991” and said that it was “triggered 17 by interactions around court-related issues and legal 18 authorities” as well as “certain media events.” 19 had trouble sleeping and felt “hyperalert.” (See AR 363-71.) Plaintiff reported PTSD “stemming from (AR 363.) (Id.) He He also 20 6 21 22 23 Cymbalta treats depression and anxiety. See Cymbalta, WebMD, https://www.webmd.com/drugs/2/drug-91491/cymbalta-oral/ details (last visited June 5, 2019). It can also help relieve nerve and back pain, among other things. See id. In this case, it was apparently prescribed for depression. (See, e.g., AR 306, 367.) 24 7 25 26 27 28 The record lacks any indication that Plaintiff ever saw a psychiatrist for treatment. (See, e.g., AR 473 (Plaintiff reporting in Nov. 2014 that his primary-care physician prescribed his mental-health-related medications).) And despite the alleged onset of disability on March 31, 2012, for reasons including PTSD, nothing in the record from that time until late 2013 relates to mental health. 10 1 suffered depressive episodes, “which [could] last . . . from a 2 couple weeks to several months,” and alcohol abuse. 3 “In 2008, he began treatment with [C]oncerta[,]8 which . . . 4 effectively managed his symptoms” of attention-deficit disorder. 5 (Id.) 6 “which were not terribly effective.” 7 “weekly psychotherapy . . . for the past 3 months” and “recently 8 started marital counseling.” 9 (AR 364.) He had tried a number of other medications in the past, (AR 368.) He was going to (Id.)9 Dr. Matloff found that although Plaintiff had 10 “[o]ccupational and social impairment with occasional decrease in 11 work efficiency and intermittent periods of inability to perform 12 occupational tasks,” he was “generally functioning 13 satisfactorily, with normal routine behavior, self-care and 14 conversation.” 15 neighborhood” as him, and he “trie[d] to help them doing chores 16 and repairs . . . on a daily basis.” 17 been “a little more reclusive in the past 12 months” but enjoyed 18 “cooking and gardening and spending time with his son and 19 daughter.” 20 of Phoenix, where he “maintained a 3.4 GPA.” 21 Matloff felt that Plaintiff’s “PTSD symptoms ha[d] worsened a bit 22 since his last compensation and pension exam in 2012,” but his 23 “prognosis for improvement [was] fair to good with further (AR 366.) (Id.) His parents lived “in the same (AR 367.) He said he had He was in his “junior year” at the University (Id.) Overall, Dr. 24 25 26 8 Concerta treats attention-deficit/hyperactivity disorder. See Concerta, WebMD, https://www.webmd.com/drugs/2/drug-19857/ concerta-oral/details (last visited June 5, 2019). 27 9 28 No psychotherapy or marital-counseling records appear in the record. 11 1 2 treatment.” (AR 371.) On March 5, 2014, Plaintiff saw Dr. Erik Lundquist10 for an 3 “initial visit.” (AR 303.) He reported that his ADHD was 4 “improving,” and he needed a refill of Concerta. 5 Lundquist observed that Plaintiff “present[ed] with anxious/ 6 fearful thoughts, depressed mood, difficulty concentrating, 7 difficulty falling asleep, difficulty staying asleep, [and] 8 diminished interest or pleasure,” among other symptoms. 9 see also AR 305.) (Id.) Dr. (Id.; He “had a fair response to exercise, . . . 10 medication (Cymbalta) and sunlight” but was “[u]nder a lot of 11 stress from school.” 12 “[t]rial of Wellbutrin11 in addition to Cymbalta as [Plaintiff] 13 [was] not responding to maximum dose of Cymbalta.” 14 also instructed him to “[m]ake time to get some exercise.” 15 (AR 303.) Dr. Lundquist prescribed a (AR 306.) He (Id.) On April 30, 2014, Plaintiff mentioned to Dr. Nordstrom that 16 ADHD behaviors were causing “problems at school.” 17 previously took 54 milligrams of Concerta and had been “able to 18 wean down” to 36 milligrams when his “work load and work 19 changed,” but he was now “struggling to finish assignments, stay 20 focused and be organized.” 21 changed his dosage back to 54 milligrams. (Id.) (AR 299.) He In response, the doctor (AR 300.) 22 On September 23, 2014, Plaintiff told Dr. Nordstrom that 23 Concerta “continue[d] to work well” and that he had “improved 24 10 25 26 27 28 Dr. Lundquist’s medical speciality is not stated in the record. 11 Wellbutrin treats depression by helping restore the balance of neurotransmitters in the brain. See Wellbutrin, WebMD, https://www.webmd.com/drugs/2/drug-13509/wellbutrin-oral/ details (last visited June 5, 2019). 12 1 focus.” 2 Wellbutrin for 3 months now” and found that his anxiety was 3 “better” with “use of Xanax12 occasionally.” 4 that he took “.25 mg only a few times per week”).) 5 trazodone13 for insomnia also “[w]ork[ed] well.” 6 Nordstrom observed that Plaintiff was “[o]riented to time, place, 7 person & situation” and had “[a]ppropriate mood and affect” but 8 exhibited “[a]gitation” and anxiety. 9 (AR 295.) He apparently had been “tr[ying] to go off (Id. (specifying Occasional (Id.) Dr. (AR 297.) Plaintiff went to urgent care on November 3, 2014, 10 complaining of depression. 11 who interviewed him (see AR 476) noted that he was “occasionally 12 tearful” and said that “he had been separated from [his] wife for 13 the last 2-3 months” and had “had crying spells for the last 2 14 days” (AR 473). 15 stressor.” The psychiatry resident 16 willing to get long term psych[iatric] care from VA at this time, 17 as VA would not prescribe [C]oncerta as first line ADD 18 medication.” 19 “declined mental health care in 2012 after intake” “due to this 20 reason.” He “mentioned school difficulties as another (Id.) He denied any suicidal ideation and was “not (Id.) (Id.) (AR 473.) The resident noted that Plaintiff also “He also complained” about the “limited therapy 21 22 23 24 25 26 27 28 12 Xanax is a benzodiazepine that treats anxiety and panic disorders. See Xanax, WebMD, https://www.webmd.com/drugs/2/ drug-9824/xanax-oral/details (last visited May 22, 2019). 13 Trazodone treats depression. See Trazodone, WebMD, https://www.webmd.com/drugs/2/drug-11188-1340/trazodone-oral/ trazodone-extended-release-oral/details (last visited May 22, 2019). 13 (Id.)14 1 he could get from VA.” 2 psychiatrist; his medications were prescribed by a primary-care 3 physician. 4 felt “better” and “more future oriented to follow with tricare15 5 mental health and talk[] with friends to get over this difficult 6 period.” 7 from therapy for better coping skills”).) 8 appeared “alert and attentive,” with a “cooperative” attitude, 9 “linear and logical” thought patterns, “normal” speech, and (AR 474.) He was not seeing a “After some supportive therapy,” Plaintiff (Id.; see also AR 476 (noting that he would “benefit On examination, he 10 “intact” and “good” insight and judgment but “low” mood. 11 475.) 12 psychiatric inpatient admission at the moment” (AR 476) and noted 13 that he “was offered intake but state[d] he will just use his 14 tricare” (AR 477). 15 (AR The resident concluded that Plaintiff did not “warrant On November 18, 2014, Plaintiff reported to Dr. Nordstrom 16 that he wanted to “consider resuming his Wellbutrin” because 17 although “he is doing a little better recently,” Wellbutrin “was 18 beneficial” in the past. 19 Wellbutrin as requested and encouraged Plaintiff to “quit smoking 20 and alcohol” and “increase exercise and healthy diet.” 21 (AR 291.) Dr. Nordstrom prescribed (AR 293.) At a December 2015 office visit, Plaintiff requested a 22 refill of Concerta and reported that he was “doing well on 23 current dose.” (AR 549.) His last refill had been in July 2015. 24 25 26 27 28 14 As noted earlier, Plaintiff did not submit any records of therapy from a VA provider or otherwise. 15 Tricare is the health-care program for uniformed service members and veterans. See About Us, Tricare, https:// www.tricare.mil/About (last visited June 5, 2019). 14 1 (Id.) That same day, Plaintiff was given a PTSD screening, which 2 was “negative.” 3 (AR 574.) b. 4 Dr. Zhang’s examination record and opinion Plaintiff met with state-agency consulting psychologist 5 Zhang on February 11, 2016. (See generally AR 537-43.) 6 reported a “history of PTSD from his military trauma, with 7 symptom onset around 2004.” 8 “depressed mood and anxiety,” and he was taking Wellbutrin, 9 Concerta, and Ambien.17 (AR 538.)16 (Id.) He His symptoms included He had “no history of inpatient 10 psychiatric treatment” but “received some mental health 11 counseling in the past with some positive results.” 12 reported that he lived with a roommate, had a “fair” relationship 13 with his family, was “able to take care of his basic grooming and 14 hygiene needs,” and could “drive himself” and “go out alone.” 15 (AR 539.) 16 of motivation and energy” but could “prepare simple meals.” 17 (Id.) 18 and cooking.” 19 (Id.) He He had “some difficulty” with chores because of “lack He spent “most of his day caring for his mother, reading, (Id.) Dr. Zhang observed that Plaintiff was “oriented to time, 20 person, place, and situation.” 21 depressed with constricted affect” but “denie[d] having feelings 22 of hopelessness, helplessness and worthlessness” or any suicidal 23 ideation. (Id.) (Id.) He appeared “mildly He reported “feelings of sadness, irritability, 24 16 25 26 27 28 This conflicts with Plaintiff’s statements at other times that his PTSD stemmed from a 1991 attempted carjacking. (See, e.g., AR 363.) 17 Ambien treats insomnia. See Ambien, WebMD, https:// www.webmd.com/drugs/2/drug-9690/ambien-oral/details (last visited June 5, 2019). 15 1 and anger” and “having flashback and nightmares of his past 2 trauma.” 3 Clinical testing showed that he was “functioning in the average 4 range of intelligence” (AR 541) but that his memory capacity was 5 “slightly below average” (AR 542). 6 which “measures sustained attention, visual search, and 7 psychomotor efficiency,” showed “below average performance,” but 8 apparently primarily as to Part B, which “adds the complex 9 requirement of shifting effectively and accurately between (Id.) His judgment and insight were “fair.” 10 different paradigms.” 11 and “multiple” for Part B).) 12 prognosis “guarded.” 13 (AR 540.) The “Trail Making” test, (Id. (showing “0” mistakes as to Part A Dr. Zhang deemed Plaintiff’s (Id.) Dr. Zhang found “[n]o impairment” in Plaintiff’s ability to 14 “understand, remember, and carry out simple instructions” and 15 “[m]ild impairment” in his ability to do the same for “detailed 16 and complex instructions.” 17 impairment” in his ability “associated with daily work activity, 18 including attendance and basic safety,” and his “[a]bility to 19 perform work activity without special or additional supervision.” 20 (Id.) 21 concentration, persistence, and pace in common work settings,” 22 “interact appropriately with co-workers, supervisors, and the 23 public,” “maintain consistent attendance,” “perform routine work 24 duties,” and “respond appropriately to usual work situations and 25 to changes in a routine work setting.” (Id.) He also found “[m]ild He had “[m]oderate impairment” in his ability to “maintain 26 27 28 16 (AR 542-43.) 1 c. 2 3 State-agency reviewing-physician opinions related to mental health On March 14, 2016, reviewing psychiatrist K. Loomis18 4 examined Plaintiff’s records, including those of consulting 5 psychologist Zhang (see AR 53-54), and determined that Plaintiff 6 had a “[s]evere” anxiety-related disorder, with “[m]ild” 7 restriction of daily activities, “[m]oderate” difficulties in 8 maintaining social functioning and concentration, persistence, or 9 pace, and no episodes of decompensation (AR 55). Dr. Loomis 10 found that his anxiety was of neither primary nor secondary 11 “priority” but rather “[o]ther,” less than certain physical 12 ailments. 13 determined that his “ability to remember,” “understand,” and 14 “carry out detailed instructions” was “[m]oderately limited” (AR 15 59), as was his “ability to interact appropriately with the 16 general public” (AR 60). 17 abilities were “[n]ot significantly limited,” including his 18 “ability to ask simple questions or request assistance,” “accept 19 instructions and respond appropriately to criticism from 20 supervisors,” “get along with coworkers or peers,” “maintain 21 regular attendance,” and “maintain socially appropriate 22 behavior.” 23 24 (Id.) In assessing his mental RFC, the doctor But all other functional mental (AR 59-60.) Dr. Loomis “[a]gree[d]” with Dr. Zhang’s recommendation of “unskilled” and “nonpublic” work, writing that Plaintiff could 25 26 27 28 18 Dr. Loomis’s electronic signature includes a medicalspecialty code of 37, indicating a psychiatry practice. (See AR 54, 63); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 22, 2019), https://secure.ssa.gov/ apps10/poms.nsf/lnx/0424501004. 17 1 “maintain concentration, persistence and pace throughout a normal 2 workday/workweek as related to simple/unskilled tasks” and was 3 “able to interact adequately with coworkers and supervisors but 4 may have difficulty dealing with the demands of general public 5 contact.” 6 (AR 54.) On reconsideration July 12, 2016, psychiatrist CW Kang19 7 found that Plaintiff’s anxiety disorder was of “[s]econdary 8 priority.” 9 treatment.” (AR 70.) (AR 71.) He noted that Plaintiff was “not in formal He “agree[d] with the initial assessment,” 10 concluding that Plaintiff’s “mental allegations [were] partially 11 consistent” and his “mental status” was “benign.” 12 AR 59-60, with AR 74-75 (mental RFC assessment on reconsideration 13 identical to initial assessment).) 14 15 3. (Id.; compare Analysis In assessing Plaintiff’s RFC, the ALJ gave “great weight” to 16 the state-agency reviewing psychiatrists. 17 that they were “highly trained and experts in Social Security 18 disability evaluations and had the benefit of reviewing the 19 longitudinal treatment record from multiple providers,” and 20 “their opinions appear[ed] to be the most consistent with the 21 totality of the evidence.” 22 full weight,” to consulting psychologist Zhang, finding that the 23 state-agency reviewing physicians’ opinions were “more consistent 24 with the evidence as a whole.” (Id.) (AR 25.) She noted She gave “some weight, but not (AR 26.) 25 26 27 28 19 Dr. Kang’s electronic signature includes a medicalspecialty code of 37, indicating a psychiatry practice. (See AR 71); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), https://secure.ssa.gov/apps10/ poms.nsf/lnx/0424501004. 18 1 Contrary to Plaintiff’s assertion, the ALJ did not 2 necessarily “reject[]” Dr. Zhang’s opinion that he was moderately 3 limited in his ability to “interact appropriately with 4 supervisors,” “maintain consistent attendance,” “perform routine 5 work duties,” and “respond appropriately to work situations or 6 changes in a routine work setting.” 7 the ALJ limited him to “unskilled work,” “occasional superficial 8 interaction with the public,” and “occasional interaction with 9 co-workers.” (AR 21.) (J. Stip. at 5.)20 Indeed, Moderate impairment does not mean total 10 impairment, nor does it necessarily correlate to any specific 11 work limitations. 12 1173-74 (9th Cir. 2008) (finding that ALJ properly translated 13 moderate mental limitations assessed by one doctor into “concrete 14 restrictions,” such as “restriction to simple tasks”); Schultz v. 15 Berryhill, No. 2:15-cv-00804-PAL, 2018 WL 4623109, at *13 (D. 16 Nev. Sept. 26, 2018) (finding that ALJ properly restricted See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 17 20 18 19 20 21 22 23 24 25 26 27 28 Plaintiff argues in his reply that the ALJ “fail[ed] to account for the limitations assessed in . . . pace” (J. Stip. at 12), but his opening argument appears to recognize that the ALJ did not reject Dr. Zhang’s findings as to pace (id. at 5 (listing findings ALJ allegedly rejected but not including moderate limitation on “concentration, persistence, and pace”)); indeed, the ALJ expressly found the same limitation at step three (AR 20). And Plaintiff nowhere in his issues presented asserts that the ALJ erred in determining his RFC. (See J. Stip. at 4.) Raising an argument for the first time in a reply forfeits it. See Willens v. Berryhill, 709 F. App’x 867, 868 (9th Cir. 2017); see also Anderson v. Colvin, 223 F. Supp. 3d 1108, 1131 (D. Or. 2016) (declining to consider argument not “properly” presented “because all issues must be raised in the initial brief”); Fierros v. Colvin, No. CV 13-3839-SP, 2014 WL 1682058, at *11 n.8 (C.D. Cal. Apr. 29, 2014) (“Because these arguments were not raised in the first instance in plaintiff’s Memorandum, they are waived.”). The Court therefore declines to consider whether the ALJ erred in her RFC analysis. 19 1 claimant with “non-exertional moderate limitations” to 2 “unskilled” work, among other limitations); (see also J. Stip. at 3 8-9 (Defendant arguing same)).21 4 Although the ALJ did not explicitly state how she discounted 5 portions of Dr. Zhang’s opinion, the Court is entitled to draw 6 reasonable inferences from her decision. 7 F.2d at 755; see also Warner v. Astrue, No. CV. 08-6001 ST., 2009 8 WL 1255466, at *9-11 (D. Or. May 4, 2009) (ALJ’s rejection of one 9 doctor’s stated limitation could be inferred from his adoption of 10 See Magallanes, 881 other doctors’ less restrictive limitation). 11 The ALJ noted (see AR 22, 37), and Dr. Zhang acknowledged 12 (see AR 538), that Plaintiff had almost no specialized mental- 13 21 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In his reply, Plaintiff cites several unpublished cases to support his argument that the ALJ’s alleged “failure to account” for limitations Dr. Zhang assessed was harmful (see J. Stip. at 12-13), but none are on point. In Bagby v. Comm’r Soc. Sec., 606 F. App’x 888, 890 (9th Cir. 2015), the ALJ erred by “fully crediting” a doctor’s opinion and then not including “credible limitations” that the doctor assessed in the plaintiff’s RFC. In Betts v. Colvin, 531 F. App’x 799, 800 & n.1 (9th Cir. 2013), the ALJ similarly erred by giving “greatest weight” to a medical opinion and then disregarding aspects of it without explanation. Likewise, in Olmedo v. Colvin, No. 1:14-cv621-SMS., 2015 WL 3448093, at *8-9 (E.D. Cal. May 28, 2015), the ALJ gave “great weight” to two medical opinions and then neglected to account for certain limitations they found. But here, the ALJ gave only “some” weight to Dr. Zhang’s opinion and, as explained below, provided a specific and legitimate reason for partially discounting it. (AR 26.) Shea v. Astrue, NO. ED CV 12-86-E, 2012 WL 12878360, at *2-3 (C.D. Cal. Aug. 10, 2012), is also unhelpful to Plaintiff; in that case, “no doctor opined” that the plaintiff could perform simple tasks, and so the ALJ “had no medical basis to conclude that the restriction to simple, repetitive tasks . . . accounted for all the mental limitations the ALJ and the medical experts found to exist.” Here, several doctors found that Plaintiff could perform according to his RFC. (See AR 54, 59-60.) 20 1 health treatment records. Plaintiff’s argument that Dr. 2 Matloff’s finding as part of a VA disability determination that 3 he would have “occasional decrease[s] in work efficiency and 4 intermittent periods of inability to perform occupational tasks” 5 (AR 366; see also J. Stip. at 7) supported Dr. Zhang’s opinion 6 that he was “moderate[ly]” impaired in his ability to “maintain 7 consistent attendance and . . . perform routine work duties” (AR 8 542), among other things, is not compelling. 9 discounted Plaintiff’s disability rating from the VA (see AR 24), The ALJ properly 10 which Plaintiff does not contest (see generally J. Stip.). As 11 the ALJ noted, “[a] Veterans Affairs disability decision is a 12 decision by a governmental agency about whether an individual is 13 disabled based on that agency’s rules,” not “on Social Security 14 law,” and so it’s “not binding.” 15 see also § 404.1504. 16 Matloff’s particular finding was subject to that same analysis. 17 (See J. Stip. at 11). 18 same report that Plaintiff functioned “satisfactorily, with 19 normal routine behavior, self-care and conversation” (AR 366), 20 had “considerable improvement in his concentration and attention” 21 (id.), and was not working because of “pain,” not mental 22 limitations (AR 367; see also J. Stip. at 11 (Defendant arguing 23 same)). 24 the term “occasional” to mean 20 percent of the time, as 25 Plaintiff attempts to do (see J. Stip. at 11), because the 26 terminology in the two disability schemes is not the same. 27 Carinio v. Berryhill, 736 F. App’x 670, 674 (9th Cir. 2018) 28 (noting that “Social Security regulations use different (AR 24 (emphasis in original)); And as Defendant argues, VA doctor And in any event, Dr. Matloff noted in the Moreover, no basis exists to equate Dr. Matloff’s use of 21 See 1 standards” from VA in determining disability). 2 points out, no doctor, including Dr. Matloff, actually opined or 3 even suggested that Plaintiff would be “off task 20% of the 4 time.” 5 As Defendant (J. Stip. at 11.) Furthermore, Dr. Zhang’s examination findings did not 6 support the moderate restrictions he imposed. 7 that Plaintiff had “no history of inpatient psychiatric 8 treatment” and was not currently receiving mental-health 9 counseling. (AR 538.) He acknowledged His clinical findings showed that 10 Plaintiff had “below average performance” in a “timed task that 11 measures sustained attention, visual search, and psychomotor 12 efficiency,” but that was apparently primarily as to the “complex 13 requirement of shifting effectively and accurately between 14 different paradigms” (AR 542); Plaintiff also had “slightly below 15 average” “memory capacity” (id.). 16 why Plaintiff would be moderately impaired interacting 17 “appropriately with co-workers, supervisors, and the public,” 18 maintaining “concentration, persistence, and pace in common work 19 settings,” keeping “consistent attendance,”22 responding But neither finding explains 20 21 22 23 24 25 26 22 Moreover, Dr. Zhang contradicted himself in assessing Plaintiff’s ability to maintain attendance. He found both that Plaintiff would be only mildly impaired in maintaining “attendance” associated with “daily work activity” but also moderately impaired in “maintain[ing] consistent attendance.” (AR 542.) He nowhere explained the inconsistency. See Jessaca L. v. Comm’r Soc. Sec., No. 3:18-cv-05408-TLF, 2019 WL 2004763, at *4 (W.D. Wash. May 7, 2019) (“An ALJ may discount an examining doctor’s opinion based on its inconsistencies with the doctor’s own notes.”). 27 28 In his reply, Plaintiff argues that failure to attend the (continued...) 22 1 “appropriately to usual work situations and to changes in a 2 routine work setting,” or performing “routine work duties” (AR 3 542-43). 4 benign,” as noted by the ALJ. 5 Dr. Zhang’s objective findings were “essentially (AR 26; see also AR 539-43.) Inconsistency with the medical evidence, including a 6 doctor’s own notes, is a specific and legitimate reason to 7 discount a physician’s opinion. 8 F.3d 1035, 1041 (9th Cir. 2008); Jessaca L. v. Comm’r Soc. Sec., 9 No. 3:18-cv-05408-TLF, 2019 WL 2004763, at *4 (W.D. Wash. May 7, See Tommasetti v. Astrue, 533 10 2019) (“An ALJ may discount an examining doctor’s opinion based 11 on its inconsistencies with the doctor’s own notes.”); see also 12 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ 13 permissibly rejected physician’s opinion when it was 14 “implausible” and “not supported by any findings by any doctor,” 15 including herself). 16 Unlike Dr. Zhang, the state-agency reviewing psychiatrists 17 found that Plaintiff’s limitations were mostly not significant 18 (see AR 59-60, 74-75), and the ALJ assigned their opinions “great 19 weight” (AR 25), a finding Plaintiff has not challenged. 20 Dr. Zhang’s opinion was contradicted by other medical-opinion 21 evidence, the ALJ needed to provide only a “specific and Because 22 23 24 25 26 27 28 22 (...continued) hearing and his “academic probation” are evidence of his “trouble with attendance.” (J. Stip. at 13 n.2.) But as the ALJ pointed out, he provided no actual evidence concerning his academic status (AR 22), just attorney argument, and what evidence there was in the record about his nonappearance at the hearing was contradictory (compare AR 16-17 & 149, with AR 39). Moreover, it seems reasonable to infer that any attendance issues Plaintiff may have had arose at least in part from his alcohol abuse. See infra note 36. 23 1 legitimate reason” for discounting it, Carmickle, 533 F.3d at 2 1164 (citing Lester, 81 F.3d at 830-31), and she did so. 3 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 4 Cir. 2004) (lack of “supportive objective evidence” and 5 “contradict[ion] by other statements and assessments of 6 [plaintiff's] medical condition” were “specific and legitimate 7 reasons” to discount physicians’ opinions); see also Saelee, 94 8 F.3d at 522 (“findings of a nontreating, nonexamining physician 9 can amount to substantial evidence, so long as other evidence in 10 See the record supports those findings”). 11 For all the foregoing reasons, the ALJ did not err in giving 12 Dr. Zhang’s opinion only “some weight” (AR 26), and remand is not 13 warranted on this basis. 14 B. 15 16 The ALJ Properly Evaluated Plaintiff’s Subjective Symptom Testimony Plaintiff claims that the ALJ erred by failing to “provide 17 clear and convincing reasons to reject [his] subjective 18 limitations.” 19 22-23.) 20 for her finding that Plaintiff’s “statements concerning the 21 intensity, persistence and limiting effects of [his] symptoms 22 [were] not entirely consistent with the medical evidence and 23 other evidence in the record.” 24 warranted on this ground. 25 26 (J. Stip. at 14; see also generally id. at 14-17, But as set forth below, the ALJ provided ample support 1. (AR 23.) Thus, remand is not Applicable law An ALJ’s assessment of a claimant’s allegations concerning 27 the severity of his symptoms is entitled to “great weight.” 28 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 24 1 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 2 1985) (as amended Feb. 24, 1986). 3 believe every allegation of disabling pain, or else disability 4 benefits would be available for the asking, a result plainly 5 contrary to 42 U.S.C. § 423(d)(5)(A).” 6 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d 7 597, 603 (9th Cir. 1989)). 8 9 “[T]he ALJ is not required to Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 10 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 11 2016).23 12 presented objective medical evidence of an underlying impairment 13 [that] could reasonably be expected to produce the pain or other 14 symptoms alleged.” 15 omitted). “First, the ALJ must determine whether the claimant has Lingenfelter, 504 F.3d at 1036 (citation If such objective medical evidence exists, the ALJ may 16 23 17 18 19 20 21 22 23 24 25 26 The Commissioner applies SSR 16-3p to all “determinations and decisions on or after March 28, 2016.” Soc. Sec. Admin., Policy Interpretation Ruling, SSR 16-3p n.27, https://www.ssa.gov/OPHome/rulings/di/01/SSR2016-03-di-01.html (last visited May 22, 2019). Thus, it applies here. Though the new ruling eliminates the term “credibility” and focuses on “consistency” instead, Plaintiff refers to credibility (see J. Stip. at 15-16), and much of the relevant case law uses that language too. But as the Ninth Circuit has clarified, SSR 16-3p makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to “evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. 27 28 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 25 1 not reject a claimant’s testimony “simply because there is no 2 showing that the impairment can reasonably produce the degree of 3 symptom alleged.” 4 original), superseded in part by statute on other grounds, § 5 404.1529. 6 Smolen, 80 F.3d at 1282 (emphasis in If the claimant meets the first test, the ALJ may discount 7 the claimant’s subjective symptom testimony only if she makes 8 specific findings that support the conclusion. 9 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent a finding or 10 affirmative evidence of malingering, the ALJ must provide a 11 “clear and convincing” reason for rejecting the claimant’s 12 testimony. 13 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 14 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 15 Cir. 2014). 16 claimant’s reputation for lying, prior inconsistent statements, 17 and other testimony by the claimant that appears less than 18 candid; (2) unexplained or inadequately explained failure to seek 19 treatment or to follow a prescribed course of treatment; (3) the 20 claimant’s daily activities; (4) the claimant’s work record; and 21 (5) testimony from physicians and third parties. 22 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 23 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 24 2002). 25 is supported by substantial evidence in the record, the reviewing 26 court “may not engage in second-guessing.” 27 959. 28 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. The ALJ may consider, among other factors, (1) the Rounds v. If the ALJ’s evaluation of a plaintiff’s alleged symptoms Thomas, 278 F.3d at Contradiction with evidence in the medical record is a 26 1 “sufficient basis” for rejecting a claimant’s subjective symptom 2 testimony. 3 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) 4 (upholding “conflict between [plaintiff’s] testimony of 5 subjective complaints and the objective medical evidence in the 6 record” as “specific and substantial” reason undermining 7 statements). 8 pain testimony.” 9 2005); Rollins, 261 F.3d at 857 (citing then-current version of 10 Carmickle, 533 F.3d at 1161; see also Morgan v. But it “cannot form the sole basis for discounting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. § 404.1529(c)(2)). 11 2. Relevant background 12 a. 13 Plaintiff’s statements In a November 16, 2015 function report, Plaintiff wrote that 14 he had “[l]imited mobility” and couldn’t “stand or walk for 15 extended periods” or “lift heavy items.” 16 couldn’t “be around large groups of people,” had “[p]roblems 17 concentrating or remembering things,” needed “access to [a] 18 restroom 15-20 times a day,” and couldn’t “drive for extended 19 distances.” 20 “[s]tudy,” and do “[l]imited housework,” including cooking and 21 cleaning. 22 and took care of “cats.” 23 times.” 24 (Id.) 25 couldn’t “cook from scratch” because of problems standing “for 26 extended periods” (AR 201, 202). 27 preparing food “daily,” made his bed, cleaned the “bathroom and 28 kitchen,” and did “[l]aundry sometimes.” (Id.) (AR 201.) (Id.) (AR 200.) He also On an average day, he would “[s]hower,” He helped his son with “[d]aily activities” (Id.) His wife apparently helped “at He had to “wear slip on shoes due to back pain.” He needed reminders to take his medication (AR 202) and 27 He spent “10-15 minutes” (AR 202.) He went out 1 alone “sometimes” and shopped for “[f]ood, [c]lothes, [and] 2 [h]ousehold items” once a week for “up to 30 minutes.” 3 He had a “90% reduction” in his athletic hobbies “due to pain, 4 range of motion and anxiety.” 5 with visitors” and “[ate] out with friends” once every “1-2 6 weeks.” 7 regular basis” (id.) but did not “go out in public as much” since 8 going through a divorce (AR 205). (Id.) (AR 204.) (AR 203.) He spent time “at home He went to restaurants and barbeques “on a Plaintiff wrote that his impairments affected “lifting,” 9 10 “squatting,” “bending,” “standing,” “reaching,” “walking,” 11 “sitting,” “kneeling,” “stair-climbing,” “memory,” “completing 12 tasks,” “concentration,” “using hands,” and “getting along with 13 others.” 14 “stand/walk for extended periods.” 15 irritated.” 16 written instructions “varie[d].” 17 authority figures “well at times” but did not handle stress well 18 “any longer” and needed to “[t]ry not to deviate from established 19 routine.” 20 [sic] of hopelessness” as well as “[f]ear of wife leaving.” 21 (Id.) 22 (Id.) He could not “lift more than 30lbs or bend” or (Id.) (AR 206.) (Id.) He was “[e]asily His attention span and ability to follow (Id.) He got along with He suffered “[e]xtreme anxiety and feeling In his May 18, 2016 request for reconsideration, Plaintiff 23 wrote that he had “very limited movement of neck and extreme pain 24 in neck from previous fracture” and “[l]imited use of right hand 25 and increased pain from nerve damage.” 26 (reporting that he had “limited ability to conduct basic daily 27 activities due to neck and spine pain and limited use of right 28 hand”).) (AR 221; see also AR 227 He had had “xrays” and was “waiting” for an MRI for his 28 1 “[n]eck and right wrist/hand pain.” 2 capabilit[ies] in day to day functions due to extreme depression 3 ha[d] resulted in divorce.” 4 that divorce was “due to emotional state”).) 5 Wellbutrin for depression, Concerta for ADD, and Xanax for 6 anxiety, all prescribed by Dr. Nordstrom. 7 “[n]o longer” able to “go out” or “go to school.” 8 9 (AR 222.) His “[d]ecreased (AR 221; but see AR 227 (writing He was taking (AR 225.) He was (AR 226.) Plaintiff did not show up for his April 2017 hearing and thus did not testify. (See generally AR 35-39 (discussing 10 failure to attend).) 11 “over five months” (AR 17) so that he could submit “additional 12 statements . . . regarding his impairments,” among other 13 documents, but “no additional evidence [was] received” (id.). 14 15 b. The ALJ left the record open (AR 47-48) for Records related to physical impairments On December 5, 2013, Plaintiff complained to a nurse in Dr. 16 Nordstrom’s office of “back pain and constant chest pain” and 17 “joint pain [i]n feet, ankle and knees.” 18 that “he was informed it was degenerative bone disease from Navy 19 doctor 13 years ago.” 20 “[s]een a chiropractor which helped some” but was not exercising 21 “due to the increased pain.” 22 “[r]ecent back MRI showed mild stenosis only.” 23 lower lumbar paraspinal muscle” was “tender[] to palpation.” 24 330.) 25 “place a referral for physical therapy.” (Id.) (AR 328.) He claimed He told Dr. Nordstrom that he had (Id.) The doctor noted that a (Id.) His “right (AR Dr. Nordstrom recommended exercise and wrote that he would 26 27 28 29 (AR 330-31.) 1 VA doctor Robert Gaumer24 examined Plaintiff for back and 2 foot conditions on August 29, 2013 (see generally AR 346-57, 3 362), and found that he had limited forward flexion (see AR 349) 4 but otherwise normal range of motion (see AR 340-50) in his 5 thoracolumbar spine. 6 palpation” but no “guarding or muscle spasm.” 7 muscle strength in his hips, knees, ankles, and toes was “4/5” or 8 “5/5” (AR 352-53), and his knee and ankle reflexes were normal 9 (AR 353). He had “localized tenderness or pain to (AR 352.) His He had a positive straight-leg-raise test25 on the 10 right side and mild to moderate signs of radiculopathy in his 11 right leg. 12 ambulate. 13 had “[m]inimal osteophytosis and disk space narrowing at L5-S1” 14 (AR 357) but no functional impairments (AR 355). 15 condition had no “impact on his . . . ability to work (AR 356), 16 nor did his foot condition (see AR 362). 17 (AR 354.) He did not need an assistive device to (AR 355, 361.) The provider concluded that Plaintiff His back In August 2014, Plaintiff saw chiropractor Lee Hazen for 18 lower-back pain. (AR 524.) Dr. Hazen performed manipulation, 19 which Plaintiff “tolerated . . . well.” 20 Hazen again in March 2015, complaining of “persistent lower back 21 pain and bilateral buttocks pain.” 22 not visiting the office regularly “primarily due to lack of (Id.) (AR 525.) He went to Dr. He was apparently 23 24 25 26 27 28 24 Dr. Gaumer’s medical speciality is not stated in the record. 25 A straight-leg-raise test checks the mechanical movement of neurological tissues and their sensitivity to stress and compression when disc herniation is suspected. See Straight Leg Raise Test, Physiopedia, https://www.physio-pedia.com/ Straight_Leg_Raise_Test (last visited June 7, 2019). 30 1 insurance coverage and financial means.” 2 exercises “in[]frequently.” 3 were “within normal limits,” muscle strength was “intact,” and 4 his range of motion was “within normal limits.” 5 had “[p]ain on palpation and somatic dysfunction . . . at the L3 6 through S1 vertebral level,” and “Kemps sign26 [was] positive.” 7 (Id.) Dr. Hazen recommended that he “exercise more frequently.” 8 (Id.) Records dated April and August 2015 contain largely the 9 same findings. (Id.) (Id.) He was doing his His “deep tendon reflex[es]” (See AR 526, 527, 528.) (Id.) But he On September 3, 2015, 10 Plaintiff apparently reported that his pain was “better today 11 than the last visit.” 12 recommendations remained the same. 13 (AR 530.) The doctor’s notes and (See id.) On January 27, 2016, Plaintiff saw consulting orthopedic 14 surgeon Vicente Bernabe. (See AR 531-36.) He complained of 15 “multiple joint and extremity pain” and reported that he had 16 “received physical therapy and chiropractic treatment for his 17 back pain and neck pain, but no surgical intervention.” 18 532.) 19 chiropractic treatment” and took medications for the pain. 20 Dr. Bernabe observed that Plaintiff “moved freely . . . without 21 the use of any assistive device” and had “normal” gait. 22 533.) 23 the thoracic spine was unrevealing.” 24 motion was somewhat limited (see id.), and “there [was] 25 tenderness to palpation at the lower lumbar region” (AR 534). (AR He was “no longer receiving any physical therapy or (Id.) (AR His neck range of motion was normal, and “inspection of (Id.) His back range of 26 27 28 26 The Kemp test assesses the lumbar-spine facet joints to detect pain. See Kemp test, Physiopedia, https:// www.physio-pedia.com/KEMP_test (last visited June 7, 2019). 31 1 The straight-leg-raise test was negative bilaterally. (Id.) Dr. 2 Bernabe noted that Plaintiff had “well healed arthroscopic 3 surgical scars on both shoulders” (AR 534; see also AR 532 4 (noting surgeries from before relevant period)) and that his 5 range of motion was normal bilaterally (AR 534). 6 wrists, hands, hips, knees, ankles, and feet were all “normal.” 7 (See id.) 8 that Plaintiff could “lift and carry no more than 50 pounds 9 occasionally and 25 pounds frequently,” “push and pull without His elbows, Dr. Bernabe diagnosed lumbar strain and determined 10 restrictions,” “walk and stand six hours out of an eight-hour day 11 with normal breaks,” “bend[], kneel[], stoop[], crawl[], and 12 crouch[] . . . without limitation,” “walk on uneven terrain, 13 climb ladders, and work at heights without restrictions,” “sit 14 without restrictions,” and perform manipulation without 15 restrictions. 16 (AR 535-36.) In February 2016, the state-agency reviewing doctor at the 17 initial level, V. Michelotti,27 found a primary diagnosis of 18 severe discogenic and degenerative back disorder and a secondary 19 diagnosis of severe joint dysfunction. 20 noted that “[r]ecords d[id] not cover the span of [Plaintiff’s] 21 allegations” and that the consulting orthopedist’s medical-source 22 statement was “consistent with a medium RFC, which is a snapshot 23 underestimate of limitations.” 24 ultimately assessed a light RFC with postural limitations (see AR (AR 54.) (AR 54, 55.) The doctor Dr. Michelotti 25 26 27 28 27 Dr. Michelotti’s electronic signature includes a medicalspecialty code of 32, indicating a pediatrics practice. (See AR 54, 63); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 22, 2019), https://secure.ssa.gov/ apps10/poms.nsf/lnx/0424501004. 32 1 57) but commented that “[t]here [was] no evidence of a 2 consecutive 12 month period during which [Plaintiff] would have 3 required a more restrictive [than medium] RFC” (AR 54). 4 reconsideration, the state-agency reviewing doctor wrote that 5 “light RFC seems appropriate[;] adopt light RFC.” 6 also AR 73.) 7 On (AR 69; see An MRI of Plaintiff’s cervical spine in May 2016 showed that 8 he had “no acute fracture or sublaxation” and that “vertebral 9 body heights,” “disc heights and signal” were preserved. (AR 10 553.) 11 with mild left neural foraminal stenosis at C2-3 and mild 12 bilateral neural foraminal stenosis at C6-7 and C7-T1.” 13 554.) 14 “within normal limits” and “[a]ll vertebral bodies and 15 intervertebral disc spaces [were] maintained.” 16 Plaintiff’s paravertebral soft tissues were also “within normal 17 limits.” 18 fracture or dislocation.” 19 20 The neuroradiologist found “[m]ultilevel facet hypertrophy (AR An x-ray of the cervical spine showed that alignment was (Id.) c. (AR 555.) An x-ray of his right wrist showed “[n]o acute (AR 556.) Records related to Crohn’s disease28 An October 4, 2012 gastrointestinal biopsy “indicated the 21 presence of chronic inflammation,” which could be “due to 22 infections or conditions such as inflammatory bowel disease 23 (Crohn’s/ulcerative colitis).” (AR 277; see also AR 472-73 (Dr. 24 28 25 26 27 28 Arguably, Plaintiff has forfeited any argument concerning his alleged Crohn’s disease, raising it only in a footnote and then again in his reply. (See J. Stip. at 15 n.4, 23); Estate of Saunders v. C.I.R., 745 F.3d 953, 962 n.8 (9th Cir. 2014) (“Arguments raised only in footnotes, or only on reply, are generally deemed waived.”). Because it lacks merit in any event, the Court nonetheless considers it. 33 1 Gaumer recounting inconclusive history in 2015).) 2 At a January 2015 “general medical examination for 3 administrative purposes” at a VA clinic (AR 339), Plaintiff 4 reported that he was diagnosed with Crohn’s disease in December 5 2012 but was “not [seeking care] for this condition.” 6 He complained of abdominal pain and said that he could “have 7 diarrhea 10-15 [times] daily” and “bloody stools . . . every 6-8 8 weeks” for “1-4 days.” 9 Crohn’s,” reporting that he did “[d]iet modifications and (Id.) Yet he “[d]enie[d] medications for 10 supplements” instead. 11 “required for control” of his condition, and no “surgical 12 treatment” had been rendered. 13 that Plaintiff apparently had not actually been diagnosed with 14 Crohn’s disease, noting that the “most recent VA gastroenterology 15 report in 12/2012 indicates: ‘The etiology for [Plaintiff]’s 16 abdominal pain, intermittent diarrhea and colonoscopy findings is 17 not entirely clear.’” 18 Crohn’s disease was “possible as is an infectious process.” 19 (Id.) 20 (Id.) (AR 341.) “[C]ontinuous medication” was not (AR 343.) (AR 345.) The provider flagged The report concluded that At a March 2015 appointment with Dr. Nordstrom, Plaintiff 21 complained of “nausea and diarrhea for the past week.” 22 Dr. Nordstrom wrote that he had a “history of Crohn’s” but “was 23 better with healthy diet.” 24 palpation in the left upper quadrant with palpable mass, possibly 25 muscle spasm.” 26 “possibly musculoskeletal versus intra-abdominal.” 27 recommended “urgent CT” and noted that the pain was “[p]ossibly 28 related to Crohn’s[] flare” and that a “GI colonoscopy” might be (AR 281.) (Id.) (AR 279.) He observed “[t]enderness to His impression was that the pain was 34 (Id.) He 1 needed in the future. (AR 282.) 2 On April 9, 2015, Plaintiff “denie[d] a GI consult” (AR 3 466), and on May 14, 2015, he had a colonoscopy that yielded 4 mostly “normal” results and a “patchy area of mildly erythematous 5 mucosa”29 in part of the colon. 6 colonoscopy revealed “no significant histopathology,” and the 7 rectum biopsy showed only “surface hyperplastic changes.” 8 481.)30 9 in the record, recommended he take Immodium or Pepto-Bismol for 10 11 (AR 455.) Biopsies during the (AR The “staff physician,” whose speciality was not stated diarrhea. (AR 455; see also AR 456.) In August 2015, Plaintiff went to the emergency room for 12 abdominal pain (AR 484); a CT scan showed “unremarkable” results 13 apart from his appendix, which was “mildly prominent with mild 14 surrounding inflammation” (AR 488). 15 determined that “appendicitis” was “possible.” 16 507 (stating that Plaintiff had “what appears to be early acute 17 appendicitis”).) 18 alternative” of “treating his appendicitis with antibiotics,” 19 Plaintiff opted to “proceed with laparascopic appendectomy.” 20 507; see also AR 511-12 (surgery notes).) 21 initially reported a “previous history of colitis” (AR 484), no The reviewing doctor (Id.; see also AR After discussing the “medically viable (AR Although Plaintiff 22 23 29 24 25 26 27 28 Erythematous mucosa means that the inner lining of the digestive tract is red. See What is Erythematous Mucosa and How Is it Treated?, healthline, https://www.healthline.com/health/ erythematous-mucosa (last visited June 5, 2019). 30 The record does not include any follow-up treatment or discussion based on these results, nor was a diagnosis of Crohn’s disease confirmed. (See AR 480 (noting that purpose of biopsies was to “rule out Crohn’s”).) 35 1 doctor connected the appendicitis with colitis (see generally AR 2 484-512). 3 On December 22, 2015, Plaintiff told a nurse that he had 4 “stomach pain rated as a 1” on a scale of zero to 10. (AR 575.) 5 Over a year later, on January 18, 2017, he reported “abdominal 6 discomfort after eating meals” and told Dr. Nordstrom that he was 7 looking into possible food allergies. 8 (at Jan. 4, 2017 office visit for unrelated issues, Plaintiff 9 “wonder[ed] if he ha[d] food allergies” because his stomach (AR 580; see also AR 584 10 cramping was “much improved with cutting out eggs and some 11 dairy”).) 12 apparently “[t]old that he ha[d] Crohn’s disease,” he had “never 13 had any treatment.” 14 reflux disease without esophagitis” and prescribed “omeprazole”31 15 and “Tums for breakthrough discomfort.” 16 suggested that Plaintiff get another endoscopy and consult with a 17 GI specialist for his “Crohn’s history.” 18 Dr. Nordstrom remarked that although Plaintiff was (AR 580.) He diagnosed “[g]astroesophageal (AR 582.) He also (Id.) On March 1, 2017, Plaintiff met with gastroenterologist and 19 internist Gregory Ardigo, reporting “[d]igestive problems for 20 years” and colon polyps in 2011. 21 was “told” he had Crohn’s but was “never given treatment.” 22 His symptoms were “[p]ain after eating” and “[b]loating 23 discomfort”; he had “[n]o blood in stool,” “black stool,” or 24 “weight loss.” (Id.) (AR 615.) He claimed that he (Id.) He “[d]enie[d]” any “change in his bowel 25 26 27 28 31 Omeprazole treats stomach and esophagus problems like acid reflux. See Omeprazole Capsule, Delayed Release (Enteric Coated), WebMD, https://www.webmd.com/drugs/ 2/drug-3766-143/omeprazole-oral/omeprazole-delayed-releasecapsule-oral/details (last visited June 5, 2019). 36 1 habits, constipation, diarrhea,” or any other issues apart from 2 “abdominal pain [and] indigestion.” 3 impression was that he had “GERD/[g]astroesophageal [r]eflux” and 4 a “[p]ers[istent] h[istory] of [c]olon [p]olyps.” 5 did not confirm a diagnosis of Crohn’s disease. 6 id.) 7 esophagogastroduodenoscopy with anesthesia. 8 618.) (Id.) Dr. Ardigo’s (AR 616.) He (See generally He indicated that he would conduct a colonoscopy and (Id.; see also AR Neither procedure is reflected in the record, however. d. 9 The ALJ’s findings 10 The ALJ found that Plaintiff had “not generally received the 11 type of medical treatment one would expect for a totally disabled 12 individual” and that his “allegations concerning the intensity, 13 persistence and limiting effects of his symptoms [we]re less than 14 fully persuasive.” 15 Plaintiff’s “persuasiveness” as “highly suspect based on the 16 discrepancy between [his] subjective complaints and the objective 17 medical evidence”).) 18 with the objective medical evidence,” she deduced that he had 19 attempted to “exaggerate the severity of his symptoms.” 20 For example, despite reporting a “history of mental health 21 problems” he “was not currently receiving mental health 22 treatment.” 23 persuasiveness” of his allegations of PTSD and depression. 24 (Id.) (AR 22; see also AR 23 (referring to Because his allegations were “inconsistent (AR 22.) Such inconsistencies “diminishe[d] the (Id.) Furthermore, as the ALJ noted, his treating doctors never 25 recommended any functional restrictions or indicated that his 26 impairments would impact his ability to work. 27 contrary, for example, although the ALJ found Plaintiff to have 28 “severe” “degenerative disc disease of the lumbar spine” (AR 19), 37 (Id.) To the 1 one of his treating doctors expressly noted that his back 2 condition was not serious enough to affect his ability to work. 3 (AR 22 (citing AR 356).) 4 did not “document a disabling musculoskeletal impairment” either. 5 (AR 24.) 6 orthopedist found in January 2016 that Plaintiff could “push and 7 pull without restrictions, lift and carry 50 pounds occasionally 8 and 25 pounds frequently,” walk and stand “for 6 hours out of an 9 8-hour workday with normal breaks,” sit “without restrictions,” She flagged that the recent VA records And while not a treating doctor, the consulting 10 do all postural activities “without limitation,” and perform any 11 activities requiring agility, “such as walking on uneven terrain, 12 climbing ladders, or working at heights . . . without 13 limitation.” (AR 25; see also AR 24.) 14 The ALJ also recounted Plaintiff’s history of conservative 15 treatment, stating that the “lack of more aggressive treatment” 16 suggested his “symptoms and limitations were not as severe” as 17 alleged. 18 medications he received “ha[d] been generally successful in 19 controlling those symptoms,” specifically pointing out that he 20 reported being better with Wellbutrin and occasional use of 21 Xanax. 22 that he received “routine and very conservative treatment” (AR 23 23), and his chiropractor encouraged him simply to “exercise more 24 frequently” (AR 24; see also AR 293, 331 (Dr. Nordstrom 25 recommending same)). 26 (AR 22.) (Id.) And she noted that the limited treatment and A review of the “complete medical history” showed At step three, the ALJ found that Plaintiff had “moderate 27 limitation[s]” in “understanding, remembering, or applying 28 information,” “interacting with others,” “concentrating, 38 1 persisting or maintaining pace,” and “adapting or managing” 2 himself. 3 simple mathematical calculations” and “serial sevens” and that 4 his “fund of general knowledge was intact.” 5 was “able to take care of his basic grooming and hygiene,” 6 “drive,” “go out alone,” “pay bills and handle money 7 appropriately and responsibly,” “prepare meals,” “read,” and 8 “cook.” 9 report, in which he wrote that he “help[ed] take care of his son (AR 20.) But she noted that he was “able to perform (Id.) Further, he At step four, she considered his 2015 function (Id.) 10 and cats,” “prepare[d] his own simple meals,” did “household 11 chores,” went “out several times a week,” could drive “short 12 distances,” went out “alone,” shopped “in stores,” and socialized 13 “with others.” 14 limitations, including his difficulty being “around large groups 15 of people,” concentrating “and remembering things,” and “handling 16 stress.” 17 apparently a “full-time student attending classes five days a 18 week on campus.” 19 he was on academic probation, he “did not submit any school 20 records or evidence or his transcript showing any problems or 21 success regarding his schooling” (id.) even though the ALJ left 22 the record open for “over five months” and had asked the attorney 23 to do so (AR 17, 39). 24 25 (AR 21-22.) (AR 22.) 3. She also recounted his reported The ALJ noted, however, that he was (Id.) Although his attorney had indicated that Analysis Plaintiff argues that the ALJ failed to provide a clear and 26 convincing reason to reject his subjective symptom statements. 27 (See J. Stip. at 14.) 28 daily living, conservative treatment, effective control of In fact, she provided four: activities of 39 1 symptoms with medication, and inconsistency with the objective 2 medical evidence. 3 a. 4 (See generally AR 22-24.) Activities of daily living First, the ALJ recounted some of Plaintiff’s activities of 5 daily living, including taking care of his son and cats, 6 preparing meals, doing chores, going shopping in stores, going 7 out alone, and socializing. 8 attended college classes five days a week on campus.32 9 Plaintiff is correct that the ALJ did not explicitly state that (AR 22.) She also noted that he (Id.) 10 “these activities discredited [him]” (J. Stip. at 16), but she 11 discussed them in the context of evaluating his “persuasiveness” 12 (see generally AR 21-22), which was sufficient. 13 881 F.2d at 755. 14 symptom testimony when it is inconsistent with his daily 15 activities. 16 [daily] activities suggest some difficulty functioning, they may 17 be grounds for discrediting the claimant’s testimony to the 18 extent that they contradict claims of a totally debilitating 19 impairment.” 20 activities that can undermine a plaintiff’s subjective symptom 21 statements. An ALJ may discount a claimant’s subjective See Molina, 674 F.3d at 1113. Id. See Magallanes, “Even where those Doing chores and going to school are See Matthews v. Shalala, 10 F.3d 678, 679-80 (9th 22 23 32 24 25 26 27 28 Plaintiff asserts that Defendant’s noting that he had a 3.4 GPA in 2015 is an impermissible “post hoc rationalization.” (J. Stip. at 22.) But the ALJ expressly cited Plaintiff’s ability to stay enrolled in school as a full-time student as being inconsistent with his statements about the severity of his alleged symptoms. (AR 22.) There is nothing improper in Defendant’s pointing to a detail concerning Plaintiff’s schooling given that the ALJ expressly relied on that reason to discount his statements. 40 1 Cir. 1993) (upholding ALJ’s finding that claimant’s pain 2 testimony was undermined by his ability to do chores, go 3 shopping, and attend school three days a week, “an activity which 4 is inconsistent with an alleged inability to perform all work”). 5 6 b. Conservative treatment Second, conservative treatment is a clear and convincing 7 reason for an ALJ to discount a plaintiff’s testimony regarding 8 the severity of an impairment. 9 AR 37 (ALJ commenting at hearing that she “did not see any Parra, 481 F.3d at 751; (see also 10 records in connection with the claimant’s mental health” and 11 attorney agreeing that “there’s very little”), 39 (ALJ noting 12 that “musculoskeletal [records] including diagnostic tests . . . 13 would be helpful”)). 14 Plaintiff’s argument that the ALJ “did not state what type 15 of care [he] should have received” (J. Stip. at 16) is unfounded; 16 the ALJ stated that she would expect someone “with the alleged 17 severity of his PTSD or depression and functional limitations” to 18 receive specialized mental-health treatment (AR 22). 19 Plaintiff never saw a psychiatrist (see AR 71, 474), and although 20 he had allegedly seen a therapist at some point, the record is 21 devoid of any such evidence. 22 Indeed, General practitioners and primary-care physicians often 23 treat mental illnesses, however. 24 1226, 1232 (9th Cir. 1987) (“[I]t is well established that 25 primary care physicians (those in family or general practice) 26 ‘identify and treat the majority of Americans’ psychiatric 27 disorders.’” (citation omitted)). 28 not be a “clear and convincing reason” to discount a plaintiff’s 41 See Sprague v. Bowen, 812 F.2d Such treatment “by itself” may 1 subjective symptom statements about mental health, Rosas v. 2 Colvin, No. CV 13-2756-SP., 2014 WL 3736531, at *11 (C.D. Cal. 3 July 28, 2014); but see Rosalia v. Colvin, No. 2:15-cv-0184-CKD, 4 2016 WL 29597, at *7 (E.D. Cal. Jan. 4, 2016) (citing ALJ’s 5 finding that “claimant [was] conservatively treated at primary 6 care rather than counseling or therapy” as “clear and convincing 7 reason[] for discounting plaintiff’s testimony”). 8 the ALJ erred by discounting Plaintiff’s subjective symptom 9 statements because of his lack of specialized mental-health But even if 10 treatment (see AR 24), she properly found that he was “better” 11 with medication (id.), which is a conservative treatment 12 modality, as discussed below. 13 (noting that claimant received medication from primary-care 14 doctor but not whether such medication was helpful).33 15 Cf. Rosas, 2014 WL 3736531, at *11 Furthermore, unlike the plaintiff in Nguyen v. Chater, 100 16 F.3d 1462, 1464-65 (9th Cir. 1996) (claimant’s failure to seek 17 any psychiatric treatment for over three years not legitimate 18 basis for discounting medical opinion that he had severe 19 depressive disorder), Plaintiff here did not appear to have any 20 problem reporting or seeking care for his mental-health issues. 21 He even went to a VA psychiatric urgent-care department for 22 “depress[ion]” in 2014. (AR 473.) The psychiatric resident who 23 24 25 26 27 28 33 In any event, the ALJ properly found at least two reasons in addition to conservative treatment to discount Plaintiff’s subjective symptom statements, thus rendering any error in citing his lack of specialized care harmless. See Larkins v. Colvin, 674 F. App’x 632, 633 (9th Cir. 2017) (“[B]ecause the ALJ gave specific, clear and convincing reasons for finding [plaintiff] not fully credible, any error in the additional reasons the ALJ provided for finding [her] not fully credible was harmless.”). 42 1 met with him “[p]rovided lengthy supportive therapy” but 2 determined that he did “not meet criteria for 5150 hold” or 3 “psychiatric inpatient admission” (AR 476) and discharged him 4 after a few hours (compare AR 473 (timestamp indicating admission 5 at 3 p.m.), with 476 (timestamp indicating discharge at 6:59 6 p.m.)). 7 treatment with the VA because the VA wouldn’t give him his 8 preferred ADD medication (see AR 473 (noting that he refused 9 intake in 2012 for same reason);34 see also AR 477 (stating that Plaintiff refused intake for specialized mental-health 10 Plaintiff “will just use his tricare”)). 11 hospitalized for psychiatric care. 12 v. Astrue, No. CV 09-4743-PJW., 2010 WL 3245813, at *4 (C.D. Cal. 13 Aug. 16, 2010) (“[The claimant’s] failure to get treatment . . . 14 seems more a function of the fact that she did not need it, as 15 opposed to her inability to comprehend that she needed it.”). 16 He was never (See 477, 538.)35 Cf. Judge As for Plaintiff’s physical impairments, the ALJ noted that 17 he reported a “history of treatment including physical therapy, 18 chiropractic treatment but no surgical intervention.” 19 Such treatment is properly categorized as conservative. 20 Morris v. Colvin, No. CV 13-6236-OP., 2014 WL 2547599, at *4 21 (C.D. Cal. June 3, 2014) (finding that physical therapy, use of 22 TENS unit, chiropractic treatment, and medications including (AR 24.) See 23 24 25 26 27 28 34 He apparently “also complained [of the] limited therapy he could get from VA” (AR 473), but as noted earlier, Plaintiff provided no evidence that he sought or received therapy at all. 35 Plaintiff asserts that he was “psychiatrically hospitalized in November 2014.” (J. Stip. at 22.) But the AR page he cites for that proposition makes no mention of any such incident. (See id. (citing AR 370).) 43 1 Vicodin was conservative); see also Tommasetti, 533 F.3d at 1039- 2 40 (stating that “favorabl[e]” “response to conservative 3 treatment undermines [claimant’s] reports regarding disabling 4 nature of his pain”). 5 physical-therapy treatment notes are even in the record. 6 39.) 7 c. (See AR Control of psychiatric symptoms with 8 9 And as the ALJ flagged at the hearing, no medication Third, as noted by the ALJ, psychiatric “medications ha[d] 10 been generally successful in controlling [Plaintiff’s] symptoms.” 11 (AR 22; see also, e.g., AR 291 (stating that Wellbutrin “was 12 beneficial”), 295 (stating that Concerta “continue[d] to work 13 well,” trazodone “work[ed] well,” and occasional low doses of 14 Xanax were “better” for his anxiety than daily medication), 303 15 (noting that Plaintiff had “fair response” to Cymbalta and 16 sunlight).) 17 medication are not disabling for the purpose of determining 18 eligibility for SSI benefits.” 19 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); see also Rosalia, 20 2016 WL 29597, at *8 (finding that plaintiff’s “relative 21 stability” with “medication for her mental impairments” 22 “undermined her credibility with regard to her allegations that 23 her impairments rendered her totally disabled”). “Impairments that can be controlled effectively with d. 24 25 Warre v. Comm’r of Soc. Sec. Inconsistency with objective medical evidence Fourth, as the ALJ explained, Plaintiff’s allegations were 26 generally inconsistent with the objective medical evidence. (See 27 AR 22, 23, 26.) 28 him 100% disabled” and implicitly put “restrictions” on him (J. Plaintiff’s argument that the VA doctors “rated 44 1 Stip. at 17) is not compelling. As explained earlier, the ALJ 2 properly discounted the VA records36 and noted that none of the 3 “recent records document[ed] a disabling musculoskeletal 4 impairment” (AR 24). 5 Plaintiff noted that he had “limited ability to conduct basic 6 daily activities due to neck and spine pain and limited use of 7 right hand” (AR 227), but the contemporaneous x-rays and MRI 8 revealed almost entirely normal results (see AR 553-56). 9 treatment notes from his physicians confirmed that medication was In his request for reconsideration, And 10 effective in controlling his symptoms (see, e.g., AR 291, 295) 11 and that he was “generally functioning satisfactorily, with 12 normal routine behavior, self-care and conversation” (AR 366). 13 Because treatment notes and test results contradict Plaintiff’s 14 subjective pain testimony, they’re a “sufficient basis” for 15 rejecting it. 16 F.3d at 600 (upholding “conflict between [plaintiff’s] testimony 17 of subjective complaints and the objective medical evidence in 18 the record” as “specific and substantial” reason undermining 19 credibility). 20 Carmickle, 533 F.3d at 1161; see also Morgan, 169 Furthermore, the ALJ gave “great weight” (AR 25) to the 21 22 23 24 25 26 27 28 36 Moreover, the 100 percent disability rating by the VA was based 70 percent on PTSD “with alcohol abuse.” (AR 153.) The ALJ also found that “alcohol abuse” was a severe impairment (AR 19), a finding neither party has challenged. Even if the ALJ had erred in finding Plaintiff not disabled, he would still not be entitled to benefits: he would first have to show that alcoholism was not a contributing factor material to any disability determination. See 42 U.S.C. § 423(d)(2)(C); see also 20 C.F.R. § 404.1535(b)(1) (“The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.”). 45 1 state-agency reviewing doctors, who assessed light RFCs (see, 2 e.g., AR 57) and noted that “[t]here [was] no evidence of a 3 consecutive 12 month period during which [Plaintiff] would have 4 required a more restrictive [than medium] RFC” (AR 54), a 5 determination that Plaintiff does not challenge (see generally J. 6 Stip.). 7 explain how he could work with his “insomnia,” “limited 8 mobility,” and inability “to stand or walk for long periods” (J. 9 Stip. at 15), the ALJ recounted his many benign diagnostic tests And although Plaintiff claims that the ALJ failed to 10 (see, e.g., AR at 23-24 (citing chiropractic-examination 11 results), 24-25 (listing findings from examining orthopedist)) 12 and properly took notice that treating doctors and the examining 13 orthopedist found that Plaintiff’s physical impairments would not 14 preclude working (see AR 22, 24, 25). 15 Although Plaintiff is correct that the ALJ neglected to 16 mention his allegation of Crohn’s disease (see J. Stip. at 15 n.4 17 & 23), he does not challenge the ALJ’s decision to not include 18 Crohn’s as a “severe” impairment at step two, and many doctors 19 noted that any diagnosis of Crohn’s disease was not documented 20 (see, e.g., AR 345, 451) and that he had never received treatment 21 for it (see, e.g., AR 279, 341, 343, 580, 615). 22 reasons, the ALJ was justified in not discussing it, cf. Howard 23 ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) 24 (“[T]he ALJ does not need to ‘discuss every piece of evidence.’” 25 (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998))), and 26 any error was harmless. 27 28 For these The four reasons the ALJ gave for discounting Plaintiff’s subjective symptom statements were girded by her implicit finding 46 1 that Plaintiff was dishonest when he attempted to explain his 2 nonappearance at the hearing. 3 “good cause” for his failure to attend, the ALJ implicitly 4 determined that Plaintiff’s story of showing up for the hearing 5 but not being allowed in was untrue, which she supported by 6 noting that he never signed in “as per office policy” and no 7 attempt was made to alert her that he had arrived, which was also 8 contrary to office policy. 9 techniques” when determining whether to accept a plaintiff’s (See AR 16-17.) (Id.) By finding no An ALJ may use “ordinary 10 subjective symptom statements, including consideration of the 11 plaintiff’s reputation for truthfulness and inconsistencies with 12 the record. 13 958-59. 14 See Rounds, 807 F.3d at 1006; Thomas, 278 F.3d at Thus, the ALJ provided clear and convincing reasons to 15 discount Plaintiff’s subjective symptom statements, and remand is 16 not warranted. 17 18 19 20 21 22 23 24 25 26 27 28 47 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),37 IT IS ORDERED that judgment be entered 4 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 5 request for payment of benefits or remand, and DISMISSING this 6 action with prejudice. 7 8 DATED: June 28, 2019 9 ______________________________ JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 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.” 48

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