Bernardette Lopez v. Nancy A. Berryhill, No. 5:2018cv00864 - Document 25 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (See document for details.) (sbou)
Download PDF
<![CDATA[
Bernardette Lopez v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 BERNADETTE L.,1 11 12 Case No. 5:18-cv-00864-AFM Plaintiff, 13 MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER v. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 Defendant. 17 18 19 Plaintiff filed this action seeking review of the Commissioner’s final decision 20 denying her application for disability insurance benefits. In accordance with the 21 Court’s case management order, the parties have filed memorandum briefs 22 addressing the merits of the disputed issues. The matter is now ready for decision. BACKGROUND 23 24 In October 2014, Plaintiff applied for disability insurance benefits, alleging 25 disability beginning March 1, 2014. Her application was denied initially and on 26 27 28 Plaintiff’s name has been partially redacted in accordance 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 reconsideration. (Administrative Record [“AR”] 305-315, 317-327.) Hearings took 2 place on March 15 and August 10, 2017 before an Administrative Law Judge 3 (“ALJ”). Plaintiff (who was represented by counsel) and a vocational expert (“VE”) 4 testified. (AR 287-304.) 5 In a decision dated September 7, 2017, the ALJ found that Plaintiff suffered 6 from the following severe impairments: right plantar fasciitis, migraine headaches, 7 depression, anxiety, borderline intellectual functioning, and post-traumatic stress 8 disorder. (AR 140.) The ALJ concluded that Plaintiff retained the residual functional 9 capacity (“RFC”) to perform the following: lift or carry fifty pounds occasionally and 10 twenty-five pounds frequently; stand walk, or sit for six hour in an eight-hour work 11 day; and simple tasks of a reasoning level of two or less with no public contact and 12 no jobs requiring teamwork. (AR 143.) Relying upon the testimony of the VE, the 13 ALJ found that Plaintiff was capable of performing work existing in significant 14 numbers in the national economy. (AR 150.) Accordingly, the ALJ determined that 15 Plaintiff was not disabled. (AR 151.) 16 17 18 19 20 21 The Appeals Council subsequently denied Plaintiff’s request for review (AR 1-7), rendering the ALJ’s decision the final decision of the Commissioner. DISPUTED ISSUE Whether the ALJ properly evaluated the opinion of Plaintiff’s treating psychiatrist, Harry Lewis, M.D. STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 23 determine whether the Commissioner’s findings are supported by substantial 24 evidence and whether the proper legal standards were applied. See Treichler v. 25 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 26 evidence means “more than a mere scintilla” but less than a preponderance. See 27 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 28 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 2 1 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 2 U.S. at 401. This Court must review the record as a whole, weighing both the 3 evidence that supports and the evidence that detracts from the Commissioner’s 4 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 5 than one rational interpretation, the Commissioner’s decision must be upheld. See 6 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 7 DISCUSSION 8 1. Relevant Evidence. 9 Plaintiff does not contest the ALJ’s findings regarding her physical 10 impairments. Thus, the following discussion of the record is limited to the evidence 11 relevant to Plaintiff’s mental impairments. 12 Harry Lewis, M.D. (Treating Psychiatrist) 13 Harry Lewis, M.D., began treating Plaintiff in May 2013. (ECF No. 20 at 5; 14 AR 1157.) Treatment notes from February 2014 (one month before Plaintiff alleged 15 onset of disability) indicate that Plaintiff reported “doing ok.” (AR 860.) According 16 to Dr. Lewis’s mental status examination, Plaintiff’s mood was “mostly euthymic,” 17 but the remaining findings were normal. For example, Dr. Lewis found Plaintiff’s 18 behavior/manner were pleasant and cooperative; her cognition was alert, clear, and 19 oriented; her motor activity was normal; her speech was normal; and her thought 20 process was coherent, relevant, and logical. Plaintiff reported no side effects from 21 her medication. Dr. Lewis diagnosed Plaintiff with major depression, recurrent, mild. 22 He noted that she was “doing better,” her status was “well controlled,” and he made 23 no changes to her treatment. (AR 860-861.) 24 In an April 2014 follow-up, Plaintiff reported that she had been under more 25 stress at work as well as family stressors with her daughter and ex-husband. 26 Dr. Lewis’s mental status examination revealed Plaintiff’s mood to be “somewhat 27 depressed,” but otherwise his findings were normal. He diagnosed Plaintiff with 28 depression, recurrent, moderate. He noted that Plaintiff’s prescriptions included 3 1 Xanax, Wellbutrin, Prozac, Norvasc, Tenomin, and Ambien. He made no changes to 2 Plaintiff’s medication. (AR 892-895.) 3 The following month, Plaintiff reported that she continued to feel “quite 4 stressed about the changes at work.” She told Dr. Lewis that group therapy was 5 “going well.” Mental status examination revealed Plaintiff’s mood to be “somewhat 6 anxious, somewhat depressed” with an affect congruent to mood. Otherwise, 7 Plaintiff’s behavior, cognition, orientation thought process and content were normal. 8 Dr. Lewis made no medication changes and recommended Plaintiff continue with 9 group therapy. (AR 983-984.) 10 In June 2014, Dr. Lewis noted that Plaintiff found “her group therapy to be 11 quite helpful.” She again reported no side effects from her medication. Mental status 12 examination was normal – her thought process was coherent, relevant, logical, she 13 was pleasant and cooperative, alert, clear and oriented – with the exception of a 14 “somewhat depressed” mood and congruent affect. (AR 1015-1017.) 15 Dr. Lewis’s notes from July 2014 also indicate that Plaintiff’s mental status 16 examination was normal except for a somewhat depressed mood and affect. (AR 17 1059-1061.) In August 2014, Dr. Lewis noted Plaintiff’s mood was mildly anxious, 18 mildly depressed, but otherwise her mental status examination was normal. He 19 continued Plaintiff’s medication and recommended she continue therapy. (AR 1082- 20 1084.) Likewise, at a follow-up appointment in October 2014, Plaintiff reported 21 feeling “a little more depressed” because she was going to court to see her grandson. 22 Noting no side effects, Dr. Lewis prescribed the same medication without changes. 23 Plaintiff’s mental status examination was normal with the exception of a “somewhat 24 depressed mood” and congruent affect. (AR 1101-1102.) 25 In December 2014, Dr. Lewis again found Plaintiff’s mood to be mildly 26 depressed with a congruent affect. Her mental status examination was otherwise 27 normal. He did not make any medication changes. (AR 1190-1191.) Dr. Lewis saw 28 Plaintiff again in February 2015. Plaintiff told Dr. Lewis that she was starting to feel 4 1 better and hoped to be able to return to work soon. He noted Plaintiff’s mood as “less 2 depressed.” The remainder of the mental status examination was normal. (AR 1199- 3 1201.) 4 Treatment records from April, September, October, and November 2015 are 5 substantively identical. Plaintiff’s mental status examinations revealed either a 6 “somewhat anxious, somewhat depressed” mood or “mildly anxious, mildly 7 depressed” mood with congruent affect, but otherwise normal findings. Plaintiff’s 8 diagnosis remained depressive disorder, recurrent, but was sometimes found to be 9 mild and others found to be moderate. (AR 1487-1488, 1520-1523, 1529-1530, 1555- 10 1556.) In December 2015, Plaintiff reported feeling more depressed, anxious, and 11 easily overwhelmed because her daughter-in-law had left her son for another man. 12 Other than noting Plaintiff’s anxious and depressed mood with congruent affect, 13 Dr. Lewis again assessed normal findings based upon his mental status examination. 14 He diagnosed Plaintiff with moderate depression and increased her Prozac dosage. 15 (AR 1562-1563.) 16 Dr. Lewis’s March 2016 mental status examination revealed normal findings 17 except for a mildly anxious, mildly depressed mood with congruent affect. He 18 diagnosed Plaintiff with major depressive disorder, recurrent episode, mild, and panic 19 disorder. He increased Plaintiff’s Wellbutrin dosage. (AR 1647-1648.) In June 2016, 20 Dr. Lewis noted Plaintiff’s mood to be somewhat anxious and depressed. He also 21 noted her motor activity to be “slightly slowed.” The remainder of the mental status 22 examination was normal. Plaintiff’s depression diagnosis was stated as moderate and 23 her Prozac dosage was increased. (AR 1655-1657.) 24 Also in June 2016, Dr. Lewis completed a mental impairment assessment. He 25 noted Plaintiff’s diagnoses as depression and panic disorder. In Dr. Lewis’s opinion, 26 due to these mental impairments, Plaintiff is unable to meet competitive standards in 27 the following abilities: remember work-like procedures; complete a normal workday 28 and workweek without interruptions from psychologically based symptoms; perform 5 1 at a consistent pace without an unreasonable number and length of rest periods; 2 accept instructions and reasons appropriately to criticism from supervisors; deal with 3 normal work stress; and deal with stress of semiskilled and skilled work. In addition, 4 Dr. Lewis opined that Plaintiff is seriously limited in (but not precluded from) the 5 ability to: maintain attention for two hour segment; maintain regular attendance and 6 be punctual within customary, usually strict tolerances; sustain an ordinary routine 7 without special supervision; work in coordination with or proximity to others without 8 being unduly distracted; get along with co-workers or peers without unduly 9 distracting them or exhibiting behavioral extremes; respond appropriately to changes 10 in a routine work setting; be aware of normal hazards and take appropriate 11 precautions; understand and remember detailed instructions; carry out detailed 12 instructions; set realistic goals or make plans independently of others; and interact 13 with the general public. According to Dr. Lewis, Plaintiff has a limited but 14 satisfactory ability to understand, remember, and carry out simple instructions; make 15 simple work-related decisions; ask simple questions and request assistance; maintain 16 socially appropriate behavior; and travel in an unfamiliar place. Finally, Dr. Lewis 17 opined, “Currently, [Plaintiff’s] condition does not allow her to successfully handle 18 the work environment.” (AR 1222-1223.) 19 During her examination in August 2016, Plaintiff reported feeling better. She 20 had reduced her Prozac dosage on her own, and she felt “stable.” Dr. Lewis’s mental 21 status examination was unremarkable except for her mood, which was “less anxious, 22 less depressed.” Plaintiff was diagnosed with panic disorder and major depressive 23 disorder, recurrent episode, mild. Dr. Lewis noted that Plaintiff was “doing better” 24 and made no medication changes. (AR 1692-1694.) In March and June 2017, 25 Dr. Lewis’s findings were again unremarkable but for her mood, which was either 26 “mildly” or “somewhat” anxious/depressed. (AR 1744-1745, 1764-1765.) 27 28 6 1 Psychotherapy 2 Plaintiff participated in numerous group therapy sessions. Generally, 3 Plaintiff’s goal was to develop coping skills to prevent relapse. Her progress was 4 most frequently noted to be “fair,” but sometimes “better.” (AR 902, 909, 919, 923, 5 937, 944, 958, 965, 972, 975, 994-995; 1001-1002, 1009-1010, 1028, 1032, 1039, 6 1046, 1053, 1069, 1076, 1576, 1582, 1588, 1594, 1600, 1606, 1613, 1619, 1625.) 7 She also participated in individual therapy. During her March 27, 2014 session 8 with Rosa Inez Winter, LCSW, Plaintiff complained of anxiety and depression. She 9 reported “having issues with her daughter who is addicted to drugs.” She also 10 reported having “issues at work” because the doctor she worked for was verbally 11 disrespectful to her. (AR 884.) Plaintiff said she was crying “almost every day,” and 12 had trouble sleeping. She was noted to appear tearful and anxious. Plaintiff was 13 diagnosed with major depression, recurrent, moderate. (AR 884-885.) 14 In a September 2014 individual therapy session, Plaintiff was noted as 15 continuing to suffer depression primarily due to family stressors related to her 16 daughter who was homeless and her grandson, who she had not seen for months. 17 Plaintiff was observed to be “doing better” and as having made good progress toward 18 her goals. (AR 1092.) Plaintiff was “generally functioning pretty well,” she “had 19 some meaningful social relationships.” (AR 1093.) 20 During her November 2014 individual therapy session, Plaintiff reported 21 feeling happy because her daughter was finally in rehabilitation, while her anxiety 22 was heightened because she worried her daughter might leave the program 23 prematurely. Plaintiff also expressed anxiety about having to return to work. (AR 24 1110-1111.) In July 2015, Plaintiff presented with anxiety and depression. She was 25 observed to be “tearful, stressed, and hurt.” (AR 15071-1508.) 26 In February 2016, Plaintiff was observed to be less depressed and her progress 27 toward her functional goals was “better.” (AR 1631.) Notes from August 2016, 28 indicate that Plaintiff was “much better” and there was “[n]or really [sic] sign of 7 1 depression.” Her diagnosis was major depression, recurrent, in partial remission. (AR 2 1686.) Plaintiff was noted to be making good progress in October 2016. (AR 1700.) 3 In January, March, and April 2017, Plaintiff was tearful due to worries about how to 4 help her daughter. (AR 1730, 1737, 1757.) 5 Dr. Zhang 6 J. Zhang, Psy.D., performed a consultative psychological evaluation of 7 Plaintiff in September 2016. Dr. Zhang’s report states that Plaintiff reported a history 8 of depression, anxiety, and migraine headaches, with symptoms onset around 2004 9 after a divorce. Plaintiff also reported a history of learning problems. According to 10 Plaintiff, she had received mental health care since 2004 with “mediocre results.” 11 She currently was prescribed Wellbutrin, Prozac, Xanax, and Ambien. (AR 1211.) 12 Plaintiff told Dr. Zhang that she lived with her son and her relationship with 13 her family was fair. She was able to take care of her grooming and hygiene needs, 14 able to drive, go out alone, and prepare simple meals. Plaintiff reported having some 15 difficulty completing household tasks because of lack of motivation and energy, and 16 reported difficulty making daily decisions and planning daily activities. (AR 1212.) 17 A mental status examination revealed Plaintiff to be reasonably cooperative, 18 oriented, her speech was clear and reasonably articulate, and she did not appear to be 19 responding to internal stimuli. Plaintiff’s mood was mildly anxious and depressed 20 with constricted affect. (AR 1212.) Dr. Zhang noted that Plaintiff showed fair 21 judgment but poor insight. (AR 1213.) 22 Psychological testing revealed Plaintiff to be functioning in the borderline 23 range of intelligence with a full-scale IQ score of 72, and Plaintiff’s memory capacity 24 was mildly impaired. In addition, Plaintiff performed below average on a test 25 designed to measure sustained attention, visual search, and psychomotor efficiency. 26 (AR 1214-1215.) 27 Dr. Zhang diagnosed Plaintiff with borderline intellectual functioning and 28 post-traumatic stress disorder. In Dr. Zhang’s opinion, Plaintiff is (a) not impaired in 8 1 her ability to understand, remember, and carry out simple instructions or her ability 2 to make judgments on simple work-related decisions; (b) moderately impaired in her 3 ability to understand, remember, and carry out detailed and complex instructions; her 4 ability to maintain concentration, persistence, and pace; her ability to maintain 5 consistent attendance and to perform routine work duties; and her ability to respond 6 appropriately to usual work situations and changes in a routine; and (c) mildly 7 impaired her in ability to interact appropriately with co-workers, supervisors, and the 8 public; and her ability to perform work activity without special or additional 9 supervision. (AR 1215-1218.) 10 State Agency Physicians 11 State Agency physicians Brady Dalton, Psy.D., and Dan Funkenstein, M.D., 12 reached the same conclusions about the functional limitations caused by Plaintiff’s 13 mental impairment. Specifically, both opined that Plaintiff suffered various 14 limitations as a result of her mental impairments, but retained the ability to complete 15 simple instructions, follow directions without additional assistance, and maintain 16 adequate attention, concentration, persistence and pace as needed to complete a full 17 work day/work week. In addition, both opined that Plaintiff is able to interact with 18 co-workers and supervisors on a superficial and non-collaborative basis, and capable 19 of brief public contact. (AR 311-313, 323-325.)2 20 2. The ALJ’s Decision. 21 In assessing Plaintiff’s RFC, the ALJ discussed the medical evidence and 22 medical opinions, including Dr. Lewis’s opinion regarding Plaintiff’s mental 23 limitations and the opinions of Drs. Zhang, Dalton and Funkenstein. (See AR 141- 24 148.) The ALJ specifically discussed Dr. Lewis’s treatment notes from February, 25 June, and October 2014; February and December 2015; March, June, and August 26 2016; and March and June 2017. The ALJ’s decision repeatedly emphasized that 27 28 2 Both opinions were rendered prior to the date on which Dr. Lewis provided his mental impairment functional assessment. 9 1 Dr. Lewis’s mental status examinations were essentially normal. For example, the 2 decision notes Dr. Lewis’s findings that Plaintiff exhibited normal motor activity, 3 coherent, relevant, and logical thought process, no psychotic or inappropriate thought 4 content, no perceptual disturbances, and no suicidal or homicidal ideation. The only 5 notable findings in Dr. Lewis’s treatment records were Plaintiff’s mood and affect 6 which was variously described as mild or “somewhat” depressed and/or mild or 7 “somewhat” anxious. (See AR 144-148.) The ALJ found significant that Plaintiff had 8 a history of consistently unremarkable mental status examinations which “fail to 9 document significant abnormalities.” (AR 146.) She also noted the consistent 10 statements by Dr. Lewis that Plaintiff suffered no side effects from her medication. 11 The ALJ also discussed evidence of Plaintiff’s psychotherapy. (AR 144-147.) 12 After reviewing the record, the ALJ found that Dr. Lewis’s assessment was 13 not supported by Plaintiff’s treatment history (AR 147) and notably lacked support 14 in Dr. Lewis’s “own contemporaneous treatment records, which fail to document 15 significant abnormalities.” (AR 146.) 16 The ALJ gave some weight to Dr. Zhang’s assessment, concluding that the 17 record of Plaintiff’s described difficulties in relationships documents a greater 18 limitation on interacting with others than Dr. Zhang imposed. (AR 147.) 19 The ALJ afforded significant weight to the opinions of Dr. Dalton and 20 Dr. Funkenstein, finding them generally consistent with the medical evidence, 21 including Plaintiff’s treatment history. (AR 147.) 22 3. Analysis. 23 The RFC is the most a claimant can still do despite his or her limitations. 24 Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) (citing 20 C.F.R. 25 § 404.1545(a)). In determining a claimant’s RFC, an ALJ must consider all relevant 26 evidence of record, including medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 27 1041 (9th Cir. 2008); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); 28 see 20 C.F.R. § 404.1527(b). Before rejecting the uncontradicted opinion of a treating 10 1 or examining physician, an ALJ must provide clear and convincing reasons for doing 2 so. Hill v. Astrue, 698 F.3d 1153, 1159-1160 (9th Cir. 2012); Carmickle v. Comm’r, 3 Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). “Even if contradicted by 4 another doctor, the opinion of an examining doctor can be rejected only for specific 5 and legitimate reasons that are supported by substantial evidence in the record.” Hill, 6 698 F.3d at 1160 (quoting Regennitter v. Comm’r of the Soc. Sec. Admin., 166 F.3d 7 1294, 1298-1299 (9th Cir. 1999)). An ALJ meets the requisite specific and legitimate 8 standard “by setting out a detailed and thorough summary of the facts and conflicting 9 clinical evidence, stating his interpretation thereof, and making findings.” Trevizo v. 10 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citations and internal quotation marks 11 omitted). Because Dr. Lewis’s opinion was contradicted by the opinions of Dr. Zhang 12 and by the State agency physicians, the ALJ was required to provide specific and 13 legitimate reasons supported by substantial evidence before rejecting it. 14 An ALJ may properly reject a treating physician’s opinion on the ground that 15 it is unsupported by the physician’s own findings and inconsistent with the record as 16 a whole. See Tommasetti, 533 F.3d at 1041 (inconsistency with objective medical 17 evidence); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (lack of support 18 by clinical findings). Thus, the ALJ could properly reject Dr. Lewis’s extreme 19 limitations as inconsistent with the record as well as his own treatment notes which 20 at most, reflect mild to moderate depression and/or anxiety. 21 Plaintiff also argues that the ALJ’s decision was erroneous because she 22 improperly isolated portions of the record. In support of this contention, Plaintiff 23 points out the following: (1) the ALJ cited some of Dr. Lewis’s treatment records, 24 but “missed” records in which Dr. Lewis assessed “somewhat depressed mood and 25 congruent affect”; (2) the ALJ cited treatment notes from one psychotherapy visit in 26 June 2014, but failed to discuss four other psychotherapy visits during the same 27 month; (3) although the ALJ discussed treatment notes from October 2014 through 28 March 2016, the ALJ failed to note that during those months, Plaintiff was attending 11 1 psychotherapy; and (4) the ALJ failed to address Dr. Zhang’s finding that Plaintiff 2 was unable to correctly interpret two proverbs. (ECF No. 20 at 8-10.) 3 Plaintiff is correct that an ALJ must consider all of the relevant evidence in the 4 record and may not point to only those portions of the records that bolster his or her 5 findings. See Holohan v. Massanari, 246 F.3d 1195, 1207-1208 (9th Cir. 2001). At 6 the same time, an ALJ is not required to “discuss every piece of evidence.” Howard 7 ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation omitted). 8 Here, the ALJ accurately summarized the medical evidence. None of the evidence 9 cited by Plaintiff undermines the ALJ’s characterization of the record. Rather, the 10 evidence cited by Plaintiff is substantively the same as the evidence that the ALJ 11 discussed in detail, including identical mental status examination findings by 12 Dr. Lewis. Furthermore, the ALJ’s decision does not implicitly minimize the 13 frequency of Plaintiff’s psychotherapy. The ALJ did not materially mischaracterize 14 the record simply because she failed to mention each time Plaintiff participated in 15 therapy. Finally, an inability to interpret proverbs would suggest a limitation in 16 reasoning or abstract thinking. See Dykes v. Berryhill, 2017 WL 5625994, at *5 17 (W.D. Wash. Nov. 22, 2017). The ALJ’s RFC already included a limitation to simple 18 tasks requiring a reasoning level of two or less. (AR 143.) Plaintiff has not explained 19 how Dr. Zhang’s finding that Plaintiff was unable to correctly interpret two proverbs 20 should be considered evidence supporting Dr. Lewis’s assessment. In fact, 21 Dr. Zhang’s findings led to an opinion that Plaintiff’s limitations were far less 22 extreme than Dr. Lewis assessed. Thus, Plaintiff has not shown that the ALJ isolated 23 portions of the record or failed to discuss material evidence supporting her claim of 24 disability. 25 Plaintiff argues that the ALJ failed to recognize that “despite having been on 26 medication and having psychotherapy, Dr. Lewis continued to assess [Plaintiff] with 27 Depression, recurrent, moderate.” (ECF No. 20 at 9.) The ALJ acknowledged and 28 adopted Dr. Lewis’s diagnoses. But a diagnosis does not constitute conclusive 12 1 support for the extreme disabling limitations opined by Dr. Lewis. Indeed, “[t]he 2 mere existence of an impairment is insufficient proof of a disability.” Matthews v. 3 Shalala, 10 F.3d 678, 680 (9th Cir. 1993); see Key v. Heckler, 754 F.2d 1545, 1549 4 (9th Cir. 1985); Nicholl v. Berryhill, 2018 WL 3702296, at *7 (C.D. Cal. Aug. 2, 5 2018) (“the mere existence of major depression and anxiety does not provide 6 conclusive support for the extreme disabling limitations opined by [plaintiff’s 7 physician]”). 8 In sum, the ALJ’s interpretation of the record is reasonable, and the Court will 9 not engage in second-guessing. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 10 2001). It follows that the ALJ permissibly rejected Dr. Lewis’s opinion on the ground 11 that it was unsupported by his own treatment notes and the record as a whole. See, 12 e.g., Dupre v. Berryhill, 2019 WL 1418492, at *1 (9th Cir. Mar. 28, 2019) (ALJ 13 permissibly relied upon the inconsistency between treating physician’s opinion 14 regarding limitations and her findings that the “fairly normal mental status 15 examination”); Petrini v. Berryhill, 705 F. App’x 511, 512 (9th Cir. 2017) (ALJ 16 provided sufficiently specific and legitimate reason for rejecting physician’s opinion 17 of marked mental limitations where mental status evaluation was “fairly normal”); 18 Garcia v. Berryhill, 2018 WL 4382988, at *3 (C.D. Cal. Sept. 12, 2018) (ALJ 19 properly rejected examining psychologist opinion on ground it was not consistent 20 with physician’s “minimal findings on the mental status examinations”); Castaneda 21 v. Colvin, 2014 WL 3732128, at *4 (C.D. Cal. July 28, 2014) (ALJ properly rejected 22 treating physician’s opinion that claimant had poor ability to perform simple tasks 23 when mental status examinations mention only depression and anxiety, but failed to 24 mention deficits in concentration, attention or memory). 25 Plaintiff further argues that the ALJ erred by giving significant weight to the 26 opinions of the non-examining State agency physicians. In support of this argument, 27 Plaintiff cites Orn, 495 F.3d at 632, for the proposition that “when a non-examining 28 physician relies upon the same clinical findings as a treating physician, the 13 1 conclusions of the non-examining physician are not substantial evidence.” (ECF No. 2 20 at 10.) 3 Plaintiff is correct that the opinion of a non-examining physician “cannot by 4 itself constitute substantial evidence that justifies the rejection of the opinion of ... a 5 treating physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (citations 6 omitted). But the ALJ did not simply reject Dr. Lewis’s opinion in favor of the 7 contradictory opinions of the Stage agency physicians. Rather, as discussed above, 8 the ALJ provided specific and legitimate reasons for rejecting Dr. Lewis’s opinion 9 independently of the weight she assigned to the State agency physicians’ opinions. 10 Furthermore, the opinion of a non-examining physician may serve as substantial 11 evidence when it is supported by other evidence in the record. Thomas v. Barnhart, 12 278 F.3d 947, 957 (9th Cir. 2002); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 13 1995). Consequently, the ALJ was entitled to rely upon the opinions of the State 14 agency physicians. 15 Finally, Plaintiff contends that the ALJ erred because she failed to discuss each 16 of the factors relevant to assessing the weight of Dr. Lewis’s opinion. (ECF No. 20 17 at 11, citing Trevizo.) In Trevizo, the Ninth Circuit discussed the ALJ’s obligation to 18 consider a physician’s opinion “according to factors such as the length of the 19 treatment relationship and the frequency of examination, the nature and extent of the 20 treatment relationship, supportability, consistency with the record, and specialization 21 of the physician.” Trevizo, 871 F.3d at 675 (citing 20 C.F.R. § 404.1527(c)(2)-(6)). 22 It held that the ALJ’s failure to consider these factors constitutes reversible legal 23 error. Trevizo, 871 F.3d at 676. 24 Courts applying Trevizo have concluded that it “does not demand a full-blown 25 written analysis of all the [§ 404.1527(c)] factors; it merely requires some indication 26 that the ALJ considered them.” Lisa R. S. H. v. Berryhill, 2018 WL 3104615, at *5 27 (C.D. Cal. June 21, 2018) (quoting Hoffman v. Berryhill, 2017 WL 3641881, at *4 28 (S.D. Cal. Aug. 24, 2017), report and recommendation adopted, 2017 WL 4844545 14 1 (Sept. 14, 2017); see also, Huddleston v. Berryhill, 2018 WL 2670588, at *10 (C.D. 2 Cal. May 31, 2018). Here, the ALJ recognized that Dr. Lewis was Plaintiff’s treating 3 physician and thoroughly reviewed his treating notes and opinion. Unlike the ALJ in 4 Trevizo, the ALJ here gave specific, legitimate reasons for discounting the treating 5 physician’s opinion. The ALJ’s decision evidences that she considered the length of 6 the treating relationship and the inconsistency of Dr. Lewis’s opinion with the record. 7 Because it is evident that the ALJ adequately considered Dr. Lewis’s opinion, her 8 failure to explicitly recite each of the regulatory factors in her decision did not 9 constitute legal error. See Lisa R. S. H. v. Berryhill, 2018 WL 3104615, at *6. ORDER 10 11 For the foregoing reasons, IT IS ORDERED that Judgment be entered 12 affirming the decision of the Commissioner and dismissing this action with prejudice. 13 14 DATED: 5/28/2019 15 16 17 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
