Shauntaye Monaye Garrett v. Andrew Saul, No. 5:2020cv00055 - Document 22 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Shauntaye Monaye Garrett v. Andrew Saul Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SHAUNTAYE M. G., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 20-55-E MEMORANDUM OPINION 17 PROCEEDINGS 18 19 Plaintiff filed a complaint on January 8, 2020, seeking review of 20 21 the Commissioner’s denial of benefits. On February 4, 2020, the 22 parties consented to proceed before a United States Magistrate Judge. 23 Plaintiff filed a motion for summary judgment on May 27, 2020. 24 Defendant filed a motion for summary judgment on August 3, 2020. 25 Court has taken the motions under submission without oral argument. 26 See L.R. 7-15; “Order,” filed January 13, 2020. 27 /// 28 /// The Dockets.Justia.com BACKGROUND 1 2 On April 26, 2016, Plaintiff filed applications for Supplemental 3 4 Security Income and Disability Insurance Benefits, asserting 5 disability since May 5, 2013, based on alleged bipolar 6 disorder/depression, brain lesions, degenerative joint disease in the 7 back, scoliosis, anxiety and gastric problems (Administrative Record 8 (“A.R.”) 18, 196-203, 212). 9 An Administrative Law Judge (“ALJ”) examined the record and heard 10 11 testimony from Plaintiff and a vocational expert (A.R. 18-66). The 12 ALJ found that Plaintiff has “severe” impairments (i.e., bipolar 13 disorder, anxiety disorder and mild degenerative disc disease of the 14 lumbar spine) (A.R. 20). 15 residual functional capacity to perform light work, limited to: (1) 16 simple routine tasks; (2) no jobs at a production rate pace, such as 17 an assembly line; (3) simple work-related decisions; (4) few changes 18 in the work place; and (5) occasional contact with supervisors and 19 coworkers, and no direct contact with the public (A.R. 22-30). 20 ALJ determined that there are light work jobs existing in significant 21 numbers which Plaintiff can perform. 22 vocational expert testimony at A.R. 62-63). 23 denied benefits (A.R. 31). The ALJ also found that Plaintiff has a The See A.R. 30-31 (adopting Accordingly, the ALJ 24 The Appeals Council considered additional vocational evidence 25 26 submitted by Plaintiff (see A.R. 308-22). 27 Council denied review (A.R. 1-6). 28 /// 2 However, the Appeals STANDARD OF REVIEW 1 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 26 Where, as here, the Appeals Council “considers new evidence in 27 deciding whether to review a decision of the ALJ, that evidence 28 becomes part of the administrative record, which the district court 3 1 must consider when reviewing the Commissioner’s final decision for 2 substantial evidence.” 3 “[A]s a practical matter, the final decision of the Commissioner 4 includes the Appeals Council’s denial of review, and the additional 5 evidence considered by that body is evidence upon which the findings 6 and decision complained of are based.” 7 omitted).1 8 the first time to the Appeals Council. Brewes v. Commissioner, 682 F.3d at 1163. Id. (citations and quotations Thus, this Court has reviewed the evidence submitted for 9 DISCUSSION 10 11 12 Plaintiff takes issue with the ALJ’s evaluation of Plaintiff’s 13 mental impairments and with the ALJ’s vocational findings. 14 Specifically, Plaintiff argues that the ALJ erred in: (1) evaluating 15 the opinions of treating psychiatrist Dr. Michael Chang, psychiatric 16 consultative examiner Dr. Khushro Unwalla and the state agency 17 physicians; and (2) relying on the vocational expert’s testimony that 18 the jobs performable by a person having Plaintiff’s limitations exist 19 in significant numbers. See Plaintiff’s Motion, pp. 9-14; see also 20 21 22 23 24 25 26 27 28 1 And yet, the Ninth Circuit sometimes had stated that there exists “no jurisdiction to review the Appeals Council’s decision denying [the claimant’s] request for review.” See, e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir. 2011); but see Smith v. Berryhill, 139 S. Ct. 1765 (2019) (court has jurisdiction to review Appeals Council’s dismissal of request for review as untimely); see also Luther v. Berryhill, 891 F.3d 872, 875-76 (9th Cir. 2018) (refusing to consider the reasoning expressed by the Appeals Council in denying review where no additional evidence had been made a part of the administrative record); Warner v. Astrue, 859 F. Supp. 2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming irony of reviewing an ALJ’s decision in the light of evidence the ALJ never saw). 4 1 A.R. 308-21. 2 After consideration of the record as a whole, Defendant’s motion 3 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material2 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 I. Summary of the Relevant Medical Record3 9 10 Although Plaintiff alleges a disability onset date of May 5, 11 2013, the record contains no treatment documents concerning mental 12 problems before 2015. 13 Plaintiff first reported depression and anxiety to a pain management 14 doctor who prescribed Cymbalta to help with pain and depression. 15 See A.R. 371, 377, 382 (describing Plaintiff’s depression and anxiety 16 as being due to her pain). 17 depression and anxiety at subsequent pain management visits in 2015 18 and 2016, after her insurance had failed to cover Cymbalta, her pain 19 management doctor provided no specific treatment for depression or 20 anxiety (A.R. 385, 391, 396-97, 405, 410-11). 21 mentioned in primary care records during this time period (A.R. 350- 22 70, 441-75). See A.R. 350-52. In February of 2015, Although Plaintiff also reported Depression is not However, when Plaintiff applied for disability benefits 23 24 25 26 27 28 2 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 3 Since Plaintiff does not take specific issue with the ALJ’s evaluation of Plaintiff’s physical impairments, the Court has not detailed the record of treatment for those impairments. 5 1 in April of 2016, she reported suffering from depression, anxiety and 2 “bipolar” (A.R. 212). 3 Consultative examiner Dr. Khushro Unwalla prepared a Complete 4 5 Psychiatric Evaluation for Plaintiff dated July 29, 2016 (A.R. 345- 6 49). 7 with her mother in the waiting room and had been abrupt and irritable 8 with staff (A.R. 345). 9 rude and appeared to have severe psychomotor agitation with abrupt Plaintiff reportedly was very irritable, had started fighting Plaintiff reportedly was angry, impulsive, and 10 speech (A.R. 345). During her evaluation, however, Plaintiff 11 reportedly was engaged and cooperative (A.R. 345). 12 complained of severe psychomotor agitation, irritability, hostility, 13 mood swings and anxiety, reporting that the entire way to the 14 appointment she had felt like she was going to die in a car crash 15 (A.R. 345). 16 on edge and agitated (A.R. 345). 17 Xanax and yet she was not seeing a psychiatrist (A.R. 345-46). Plaintiff During the evaluation, Plaintiff reportedly was labile, Plaintiff claimed she was taking 18 19 Plaintiff asserted a history of mental illness since the age of 20 12, treatment including a psychiatric hospitalization when she was 14 21 years old, a history of arrests and jailings as a minor, and a 22 diagnosis of bipolar disorder for which she had been prescribed 23 medications including Effexor, Lithium and Mellaril (A.R. 346). 24 reported a history of cutting herself, paranoia, auditory and visual 25 hallucinations, impulse control problems, violent and chaotic 26 behavior, losing custody of her children, homelessness and an 27 inability to get along with others (A.R. 346). 28 history of adequate self-care skills and was able to do limited 6 She Yet, Plaintiff had a 1 errands, shop, cook, drive and play video games (A.R. 347). 2 On mental status examination, Plaintiff reportedly was 3 4 cooperative and maintained good eye contact (A.R. 347). Her mood was 5 labile and irritable, and she reportedly had abrupt/loud speech, 6 reactive affect, disorganized thought process, paranoid ideation, 7 psychotic anxiety, and visual hallucinations (A.R. 347). 8 related that she felt as if she would die in a car crash, felt people 9 were looking at her, and would “flare up” at anyone who states, “That Plaintiff 10 is not true” (A.R. 347). Plaintiff reportedly registered one out of 11 three items at five minutes, was unable to do serial sevens and serial 12 threes and was unable to spell “house” backward (A.R. 347-48). 13 According to her presentation, Plaintiff’s abstract thinking was 14 impaired and her insight and judgment were poor (A.R. 347-48). 15 Compare A.R. 377, 381, 391, 395, 405, 409 (February, 2015, July, 2015 16 and September, 2016 reports reflecting that Plaintiff’s judgment and 17 insight, recent and remote memory, mood and affect were all normal 18 despite Plaintiff’s allegations of depression and anxiety). 19 Dr. Unwalla diagnosed bipolar disorder (not otherwise specified) 20 21 and anxiety disorder (not otherwise specified), with a note to rule 22 out schizoaffective disorder (A.R. 348). 23 current Global Assessment of Functioning (“GAF”) score of 47 (A.R. 24 /// 25 /// 26 /// 27 /// 28 /// 7 Dr. Unwalla assessed a 1 348).4 2 difficulty with concentration, persistence and pace, maintaining 3 social functioning and focusing and maintaining attention (A.R. 348). 4 Dr. Unwalla further opined that Plaintiff’s level of personal 5 independence was poor, and she was “intellectually and psychologically 6 incapable of performing activities of daily living” (A.R. 348). 7 Unwalla opined that Plaintiff would have moderate limitations 8 performing simple and repetitive tasks, detailed and complex tasks, 9 performing work activities on a consistent basis without special or Dr. Unwalla opined that Plaintiff would have moderate Dr. 10 additional supervision, completing a normal workday or workweek, 11 accepting instructions from supervisors, interacting with coworkers 12 and with the public, and handling the usual stresses, changes and 13 demands of gainful employment (A.R. 348). 14 opined that, if Plaintiff had treatment, her condition “would 15 significantly improve” (A.R. 348). 16 349). However, Dr. Unwalla also Her prognosis was guarded (A.R. 17 18 State agency psychologist Dr. Dara Goosby (erroneously referred 19 to by Plaintiff as “Dr. Tanaka,” see Plaintiff’s Motion, p. 6) 20 reviewed the record and opined on August 18, 2016 that Plaintiff had 21 the residual functional capacity to understand and remember simple 22 instructions, to sustain concentration, persistence and pace for work 23 24 25 26 27 28 4 The GAF scale is used by clinicians to report an individual’s overall level of functioning. See American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). A GAF of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. 8 1 with simple 1-2 step tasks with no public contact, and could adapt to 2 this capacity with no psychiatric treatment (A.R. 67-80). 3 reconsideration in October of 2016, psychologist Dr. Preston Davis 4 agreed with the prior findings (A.R. 97-111). On 5 6 Plaintiff thereafter underwent regular mental health treatment 7 with the Riverside County Department of Mental Health from October of 8 2016 through at least November of 2018 (A.R. 476-561). 9 attended weekly therapy visits with a social worker and monthly Plaintiff 10 medication visits with Dr. Michael Chang and other providers (id.). 11 Plaintiff initially presented with a goal of decreasing the symptoms 12 of bipolar disorder with psychotic features, generalized anxiety and 13 post traumatic stress disorder, depression, mania, hallucinations, 14 anxiety and social isolation (A.R. 476). 15 and compliant with her physical health care including pain management” 16 (A.R. 477). She reportedly was “stable 17 18 Dr. Willy Anand prepared an Adult Psychiatric Assessment dated 19 November 4, 2016 (A.R. 551-54). Plaintiff reported that she had 20 become depressed because of her medical situation, and she complained 21 of depressed mood, irritability, poor sleep, poor concentration and 22 low energy, with a supposed history of bipolar disorder diagnosis when 23 she was a teenager (A.R. 551, 553). 24 with Effexor eight years earlier, and supposedly had not received any 25 psychiatric treatment since then (A.R. 551). 26 psychosis, but claimed a history of hallucinations (A.R. 551). 27 had a history of drug use, reporting that she last used 28 methamphetamine when she was 20 years old, last used cannabis six 9 Plaintiff reportedly was treated She had no evident She 1 years ago and last used cocaine when she was 20 years old (A.R. 552). 2 She reportedly was living with her mother and significant other, she 3 last had attempted to work in retail in 2014, and she was on probation 4 for a theft-related charge (A.R. 552-53). 5 examination was normal/appropriate with good insight and judgment 6 (A.R. 553). 7 554). Plaintiff’s mental status Dr. Anand prescribed Celexa and recommended therapy (A.R. 8 Later in November of 2016, Plaintiff reportedly was stable on 9 10 Celexa, with a normal mental status exam (A.R. 485-86). She 11 complained of insomnia for which Dr. Anand lowered her Celexa dosage 12 (A.R. 486). 13 stable with a normal mental status exam, and she said she was 14 performing activities outside the home and had been compliant with 15 treatment (A.R. 486-87). In December of 2016, Plaintiff again reportedly was 16 In January of 2017, Plaintiff first met with Dr. Chang (A.R. 487- 17 18 88). Plaintiff reported wide mood swings, sadness, crying, family 19 problems, housing problems and financial problems (A.R. 487). 20 said that Celexa was causing her to have more anxiety and to become 21 angry easily (A.R. 487). 22 was depressed with labile affect, and she claimed hallucinations 23 (i.e., “just occasional voices”) (A.R. 488). 24 history of a substance induced mood disorder resulting in psychiatric 25 hospitalization and impairing her social/occupational functioning 26 (A.R. 488). 27 responsive,” so Dr. Chang switched her medication from Celexa to 28 Topamax (A.R. 488). She On mental status examination, she reportedly She reportedly had a She supposedly was adherent to her medications but “non- When Plaintiff followed up with a nurse in 10 1 February of 2017, Plaintiff said that she was “doing ok” (A.R. 478). 2 3 In March of 2017, Plaintiff reported anxiety, back pain, mood 4 swings, anger, depression and sadness (A.R. 488-89). She reportedly 5 then was homeless, jobless, moneyless and had separated from her 6 husband (A.R. 489). 7 Plaintiff’s children (A.R. 489). 8 Topamax on an “irregular” basis (A.R. 489). 9 examination, she was depressed but all findings were otherwise normal Plaintiff’s mother then was caring for Plaintiff reportedly was taking On mental status 10 (A.R. 489). Dr. Chang described Plaintiff as “non-adherent” with 11 medications and instructed her to taper her Topamax as prescribed 12 (A.R. 489-90).5 13 14 15 16 17 18 19 20 21 22 5 Plaintiff began weekly therapy visits in April of 2017 (A.R. 491). Plaintiff initially presented as anxious with blunt/flat affect and thought perseveration, but had fair judgment/insight (A.R. 491). She apparently had obtained her medications the day before (A.R. 491). She reported trauma related to seeing her husband cross-dressing (A.R. 491). The following week, Plaintiff reportedly was anxious and disheveled with pressured speech, labile affect, loose thought process with perseveration, and distracted cognition, but had fair insight/judgment (A.R. 492). She was in “fair spirits,” sharing that her husband had moved into her mother’s home with her and her children to help financially and that her husband wanted to work on their relationship (A.R. 492). She did not agree, given her husband’s sexual behaviors; she was dating other people (A.R. 492-93). 23 24 25 26 27 28 The following week, she reportedly was disheveled, irritable and obsessed/preoccupied with her relationships and in poor spirits (A.R. 494). She reported that everything bothered her, and she was having difficulties at home (A.R. 494-95). The following week, she reportedly was disheveled with pressured speech, irritable mood and thought perseveration (A.R. 496). She said she was irritated with her husband and with her boyfriend (A.R. 496). Plaintiff called her therapist the next day to (continued...) 11 In May of 2017, Plaintiff reportedly exhibited pressured speech, 1 2 restlessness, anxious/irritable/depressed mood and distracted 3 cognition (A.R. 501). 4 than other medications and was without side effects (A.R. 501). 5 However, she also claimed problems with constantly running thoughts, 6 insomnia, irritability and mood swings (A.R. 501). 7 Plaintiff to increase her Topamax dose over the next two weeks and 8 prescribed Seroquel for sleep, to decrease her running thoughts and to 9 stabilize Plaintiff’s mood (A.R. 502).6 10 Plaintiff said that Topamax was working better Dr. Chang ordered /// 11 5 12 13 14 15 16 17 18 19 20 (...continued) discuss relationship problems concerning her boyfriend (A.R. 497). Plaintiff returned for therapy the next week, reportedly in fair spirits with pressured speech, irritable mood, labile affect and thought perseveration (A.R. 499). She reported issues with her boyfriend and said she was dealing with a lot of stress from migraines and the finding of 8-9 brain lesions on a MRI (A.R. 499). She reported not being able to schedule her medical appointments, complete Social Security paperwork, or remember to take her medications consistently (A.R. 500). Her therapist arranged for help for Plaintiff in scheduling appointments, completing her Social Security paperwork and setting medication timers (A.R. 500). 6 21 22 23 24 25 26 27 28 At her next therapy visit in May of 2017, Plaintiff reportedly was irritable with blunted affect and thought perseveration, but in fair spirits (A.R. 503). She reported some health concerns regarding a lump in her breast and issues with her husband and her boyfriend (A.R. 503). Later in May, she reported to her therapist that she had a hard week, was irritated with her husband and had hit him due to her poor self-control (A.R. 506). She also said that she had an altercation with Del Taco staff for short-changing her (A.R. 506). Plaintiff admitted that she might be having stronger reactions because she had been without her medications (A.R. 506). At her last visit in May, Plaintiff reportedly was talkative, irritable per report, but in fair spirits despite continued romantic relationship concerns (A.R. 513). 12 1 On May 19, 2017, Dr. Chang stated that Plaintiff had left an 2 “SSI” form to be filled out, but the doctor “could not find enough 3 information in charts to be able to fill out the forms properly” (A.R. 4 505).7 5 Opinion re: Ability to Do Work-Related Activities (Mental) two days 6 later. 7 418-19). 8 competitive standards for almost all areas of functioning (i.e., 9 maintaining attention for two hour segments, maintaining regular Nonetheless, Dr. Chang did fill out the form entitled Medical At that time, Dr. Chang suggested extreme limitations (A.R. Dr. Chang indicated that Plaintiff would be unable to meet 10 attendance, sustaining an ordinary routine without special 11 supervision, working in coordination with or proximity to others 12 without being unduly distracted, making simple work-related decisions, 13 completing a normal workday and workweek without interruptions from 14 psychologically based symptoms, performing at a consistent pace 15 without unreasonable number and length of rest periods, accepting 16 instructions and responding appropriately to criticism from 17 supervisors, getting along with coworkers or peers without unduly 18 distracting them or exhibiting behavioral extremes, responding 19 appropriately to changes in a routine work setting, dealing with 20 normal work stress, understanding and remembering detailed 21 instructions, carrying out detailed instructions, setting realistic 22 goals or making plans independently of others, dealing with the stress 23 of semiskilled and skilled work, interacting appropriately with the 24 general public, maintaining socially appropriate behavior and using 25 26 27 28 7 Plaintiff reported at a June 27, 2017 therapy visit that she was waiting for SSI benefits and hoping to receive financial assistance (A.R. 521). She said the reason she could not work was that over half of the wages she earned from working would be taken for child support (A.R. 521). 13 1 public transportation) (A.R. 418-19). As to the remaining areas of 2 functioning, Dr. Chang indicated limited or seriously limited 3 abilities (A.R. 418-19). 4 problem is her inability to control her temper due to her Bipolar 5 Disorder” (A.R. 419). 6 behavioral problems since age 12 and was in juvenile hall by age 14 7 due to her temper (A.R. 419). 8 miss more than four days of work per month due to her impairments 9 (A.R. 419). Dr. Chang stated that Plaintiff’s “main According to Dr. Chang, Plaintiff has had Dr. Chang opined that Plaintiff would 10 11 When Plaintiff returned on May 26, 2017, Dr. Chang indicated that 12 Plaintiff was talkative, restless, had anxious/irritable/depressed 13 mood with dysphoric affect, had been off Topamax for several days and 14 just started taking it again two days prior (A.R. 511).8 15 regular visit in June of 2017, Plaintiff reportedly was restless, 16 anxious/depressed with dysphoric affect, had been off Topamax for 17 several weeks and was experiencing mood swings (A.R. 523). 18 ordered Plaintiff to titrate back up to a regular dose of Topamax At her next Dr. Chang 19 20 8 21 22 23 24 25 26 27 28 At her first therapy visit in June of 2017, Plaintiff reportedly was talkative, irritable per report with blunted affect and thought perseveration, but in fair spirits with the same relationship concerns (A.R. 515). At her next visit, she reportedly was disheveled, talkative, restless, irritable with thought perseveration, but in fair spirits (A.R. 517). Plaintiff reported getting agitated, irritated, frustrated and overwhelmed, which supposedly caused migraines (A.R. 517). When she returned the next week, she reportedly was talkative, irritable with blunted affect, but in fair spirits (A.R. 519). Evidently, she recently had been to court for stealing (A.R. 519). At her next visit, she reportedly was irritable with blunted affect, but in fair spirits, complaining of a migraine and increasing anger (A.R. 521). 14 1 (A.R. 524).9 2 irritable/depressed with a dysphoric affect and she said that Topamax 3 was helping to keep her mood stable (A.R. 529). 4 continued (A.R. 529).10 In July of 2017, Plaintiff reportedly was anxious/ Her medications were 5 6 In August of 2017, Plaintiff said she was anxious, irritable and 7 depressed (A.R. 533). Dr. Chang noted that Plaintiff’s Topamax was at 8 a subtherapeutic level, so he increased the dose and added Zoloft 9 (A.R. 533). In September of 2017, Plaintiff said she was anxious, 10 irritable and depressed, but also said that Topamax was keeping her 11 mood stable at its current dose (A.R. 535). 12 continued (A.R. 535). Her medications were 13 14 Dr. Chang prepared an annual assessment in November of 2017 (A.R. 15 479-84). Plaintiff reportedly complained of constantly running 16 thoughts, insomnia, irritability and mood swings, but her main problem 17 was her “husband’s desire to be trans gender [sic]” (A.R. 479). 18 said she had problems controlling her anger/irritation/aggression, and She 19 20 21 22 23 24 25 9 At her next therapy visit in July of 2017, Plaintiff reportedly was talkative and irritable, but in fair spirits, and she was still having relationship issues with her estranged husband, on whom she relied for financial support (A.R. 525). She was awaiting a decision in her SSI case so she could change her situation (A.R. 525). Plaintiff had not been doing her anger management homework and reported that she almost got into an altercation with a woman in a park (A.R. 526). At her next visit, she reported being irritable and she mentioned issues with her living situation (A.R. 527). 26 10 27 28 At her next therapy visit in August of 2017, Plaintiff reportedly was talkative with neutral mood, and fair spirits, and she said she was dealing with her husband’s desire to transition to transgender (A.R. 531). 15 1 she also said she had difficult/intense relationships with others 2 (A.R. 480). 3 she had stopped using 10 years before (A.R. 482). 4 reportedly then were homeless and were moving around from cousin to 5 cousin (A.R. 482). 6 and drug possession (A.R. 482). She admitted a history of substance abuse, but claimed She and her husband She reportedly was also on probation for assault 7 8 According to a mental status examination, Plaintiff was normal/ 9 responsive, had good eye contact, appropriate speech, sad/depressed/ 10 anxious mood with congruent affect, had suicidal ideation with low 11 risk, paranoid delusions, auditory hallucinations, fair concentration, 12 average knowledge and intelligence, partial insight and fair judgment 13 (A.R. 483). 14 low self worth, chronic sadness, “negative voic[es],” no desire to 15 live, irritability and anger impairing her ability to work and to be 16 sociable (A.R. 484). 17 continued her Seroquel (A.R. 484). Dr. Chang assessed Plaintiff as severely depressed with Dr. Chang increased Plaintiff’s Topomax and 18 19 At Plaintiff’s next visit in January of 2018, Dr. Chang reported 20 that Remeron and Seroquel were helping Plaintiff sleep, that 21 irritability was her main problem (for which she was taking Topamax), 22 and that Plaintiff’s neurologist was taking over the prescribing of 23 Topamax (A.R. 539). 24 anger and irritability (A.R. 540). 25 that Plaintiff was no longer seeing her neurologist, so he added a 26 Topamax prescription (A.R. 541-42). 27 increased Plaintiff’s Topamax upon observing that Plaintiff’s 28 medication was subtherapeutic (A.R. 543-44). Dr. Chang added a prescription for Risperdal for In March of 2018, Dr. Chang noted 16 In April of 2018, Dr. Chang In May of 2018, Dr. 1 Chang continued Plaintiff’s medications (A.R. 545-46). In July of 2 2018, Dr. Chang stated that Plaintiff’s new generic Topamax was 3 causing unwanted side effects, so he continued her medications with a 4 different brand of Topamax (A.R. 549-50). 5 6 7 II. Substantial Evidence Supports the Conclusion that Plaintiff is Not Disabled By Her Mental Impairments. 8 9 Substantial evidence supports the conclusion Plaintiff’s mental 10 impairments do not disable her from all employment. The ALJ 11 rationally found Plaintiff capable of performing light work, limited 12 to simple routine tasks, no jobs at a production rate pace, such as an 13 assembly line, simple work-related decisions, few changes in the work 14 place, and occasional contact with supervisors, coworkers but no 15 direct contact with the public (A.R. 22). 16 17 As indicated above, consultative examiner Dr. Unwalla opined that 18 Plaintiff’s reported mental condition would significantly improve with 19 treatment (A.R. 348).11 20 medical record prior to Plaintiff receiving any mental health 21 treatment, and found that, even without treatment, Plaintiff had a 22 residual functional capacity to understand and remember simple 23 instructions, and to sustain concentration, persistence and pace for 24 simple 1-2 step tasks, with no public contact. The state agency physicians reviewed the See A.R. 67-90, 97- 25 26 27 28 11 Some courts have found that moderate mental functional limitations do not preclude the performance of jobs that involve simple, repetitive tasks. See, e.g., McLain v. Astrue, 2011 WL 2174895, at *6 (C.D. Cal. June 3, 2011); Rogers v. Commissioner, 2011 WL 445047, at *11-2 (E.D. Cal. Jan. 25, 2011). 17 1 111. Given the medical records summarized above, these medical 2 opinions constitute substantial evidence supporting the ALJ’s non- 3 disability determination. 4 (9th Cir. 2007) (opinion of examining physician based on independent 5 clinical findings can provide substantial evidence to support 6 administrative conclusion of non-disability); Tonapetyan v. Halter, 7 242 F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining 8 physician “may constitute substantial evidence when it is consistent 9 with other independent evidence in the record”); Andrews v. Shalala, See Orn v. Astrue, 495 F.3d 625, 631-32 10 53 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of 11 non-examining physicians do not contradict “all other evidence in the 12 record” an ALJ properly may rely on these opinions) (citation and 13 emphasis omitted). 14 15 Plaintiff faults the ALJ for rejecting Dr. Chang’s more 16 restrictive opinions, Dr. Unwalla’s opinions to the extent allegedly 17 inconsistent with the ALJ’s residual functional capacity assessment, 18 and the state agency psychologists’ opinions limiting Plaintiff to 1-2 19 step tasks. 20 physician’s conclusions “must be given substantial weight.” 21 Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 22 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must give sufficient weight to 23 the subjective aspects of a doctor’s opinion. . . . 24 especially true when the opinion is that of a treating physician”) 25 (citation omitted); see also Garrison v. Colvin, 759 F.3d 995, 1012 26 (9th Cir. 2014) (discussing deference owed to the opinions of treating 27 and examining physicians). 28 opinions See Plaintiff’s Motion, pp. 10-12. Generally, a treating Embrey v. This is Even where the treating physician’s 18 1 are contradicted,12 “if the ALJ wishes to disregard the opinion[s] of 2 the treating physician he . . . must make findings setting forth 3 specific, legitimate reasons for doing so that are based on 4 substantial evidence in the record.” 5 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see 6 Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the 7 treating physician’s opinion, but only by setting forth specific, 8 legitimate reasons for doing so, and this decision must itself be 9 based on substantial evidence”) (citation and quotations omitted). Winans v. Bowen, 853 F.2d 643, 10 Contrary to Plaintiff’s arguments, the ALJ stated sufficient reasons 11 for discounting Dr. Chang’s extreme opinions. 12 13 The ALJ appropriately gave little weight to Dr. Chang’s opinions. 14 As the ALJ stated, Dr. Chang’s opinions were conclusory, inadequately 15 supported by clinical findings, and unsupported by mental health 16 treatment records which generally reflected mild mental status 17 examination findings (in contrast to Plaintiff’s extreme subjective 18 complaints) (A.R. 27, 29). 19 not find enough information in [Plaintiff’s medical] charts” to fill 20 out the assessment form before filling out the form with extreme 21 opinions soon thereafter (A.R. 505). 22 treating physician’s opinion where, as here, the opinion is not 23 adequately supported by treatment notes or objective clinical 24 findings. Dr. Chang himself admitted that he “could An ALJ may properly reject a See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 25 26 12 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 19 1 2008) (ALJ may reject a treating physician’s opinion that is 2 inconsistent with other medical evidence, including the physician’s 3 treatment notes); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 4 2003) (treating physician’s opinion properly rejected where 5 physician’s treatment notes “provide no basis for the functional 6 restrictions he opined should be imposed on [the claimant]”); see also 7 20 C.F.R. §§ 404.1527(c), 416.927(c) (factors to consider in weighing 8 treating source opinion include the supportability of the opinion by 9 medical signs and laboratory findings as well as the opinion's 10 consistency with the record as a whole). 11 12 The ALJ need not have explicitly detailed the reasons for 13 arguably failing to adopt some of Dr. Unwalla’s opinions. See Nyman 14 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (“Nyman”) (upholding 15 ALJ’s rejection of “the expert opinion of an examining psychologist” 16 despite the fact that the ALJ made the rejection “without stating his 17 reasons for doing so”; ALJ “was not obliged to explicitly detail his 18 reasons for rejecting the psychologist’s opinion”); but see Garrison 19 v. Colvin, 759 F.3d at 1012 (stating, contrary to Nyman, that an ALJ 20 may reject an examining physician’s opinion only “by providing 21 specific and legitimate reasons that are supported by substantial 22 evidence”) (citations and quotations omitted). 23 the ALJ to state specific and legitimate reasons for failing to adopt 24 all of Dr. Unwalla’s opinions, the ALJ did so here. If the law required 25 26 The ALJ appropriately rejected Dr. Unwalla’s opinion suggesting 27 greater limitations in the absence of treatment as overly restrictive 28 in light of Plaintiff’s “longitudinal history of treatment, documented 20 1 mental health records, and her own testimony and reports regarding 2 activities of daily living” (A.R. 29). 3 Plaintiff’s mental status presentation with Dr. Unwalla extreme 4 compared to Plaintiff’s other mental status examinations (after she 5 started treatment) which were largely mild/normal (A.R. 29). 6 ALJ observed, Dr. Unwalla opined that Plaintiff was unable to perform 7 activities of daily living due to her mental limitations (A.R. 348), 8 and yet there was nothing in the record to support such an extreme 9 opinion. The ALJ accurately found As the To the contrary, Plaintiff admitted the ability to prepare 10 meals, do laundry, walk places, grocery shop, drive, and play video 11 games (A.R. 244-47). 12 Dr. Unwalla’s opinions and Plaintiff’s own reports and the subsequent 13 treatment record are sufficient reasons for rejecting those of Dr. 14 Unwalla’s opinions that conflicted with the ALJ’s assessment. 15 Tommasetti v. Astrue, 533 F.3d at 1041; Connett v. Barnhart, 340 F.3d 16 at 875. 17 Plaintiff’s condition would significantly improve. 18 supported the ALJ’s decision. 19 1001, 1006 (9th Cir. 2006) (impairments that can be controlled 20 effectively with treatment are not disabling). See A.R. 23, 29. These inconsistencies between See Moreover, Dr. Unwalla opined that, with treatment, Such opinion See Warre v. Commissioner, 439 F.3d 21 22 The ALJ also appropriately rejected the state agency physicians’ 23 opinions to the extent those opinions limited Plaintiff to simple 1-2 24 step tasks. 25 activities of daily living (which again included playing video games, 26 making full course meals, grocery shopping and doing laundry, see A.R. 27 244-47), Plaintiff’s medical treatment (which involved psychotropic 28 medications that Plaintiff did not always take as prescribed, see A.R. Such rejection was warranted, given Plaintiff’s admitted 21 1 484, 486, 488-90, 501, 511, 523-24, 529, 535, 540-42, 544-46, 549-50, 2 554), and Plaintiff’s mental status examination findings (which were 3 largely normal, see A.R. 483-84, 486-89, 553) (A.R. 23, 26-28). 4 e.g., Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). See, 5 An ALJ is not required to discuss all evidence presented, and 6 7 need explain why only significant probative evidence has been 8 rejected. 9 (9th Cir. 2003); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 10 1984). While Plaintiff argues contrary interpretations of the 11 evidence, it was for the ALJ to interpret the evidence, evaluate 12 credibility and resolve any conflicts. 13 775 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” “to 14 resolve conflicts and ambiguities in the record”); Lewis v. Apfel, 236 15 F.3d 503, 509 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d at 1039-40. 16 When evidence “is susceptible to more than one rational 17 interpretation,” the Court must uphold the administrative decision. 18 See Andrews v. Shalala, 53 F.3d at 1039-40; accord Thomas v. Barnhart, 19 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 20 980 (9th Cir. 1997). 21 interpretation of the evidence in the present case notwithstanding any 22 conflicts in the evidence. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// See Treichler v. Commissioner, The Court will uphold the ALJ’s rational 22 1 III. Plaintiff’s Remaining Arguments are Unavailing.13 2 3 Plaintiff contends that the ALJ erred in relying on the 4 vocational expert’s testimony. See Plaintiff’s Motion, pp. 13-14 5 (citing asserted conflicts between the expert’s testimony and three 6 non-DOT sources (i.e., Occupational Information Network (“O*Net”), 7 Occupational Outlook Handbook (“OOH”), and Bureau of Labor Statistics 8 data at A.R. 312-21)). 9 10 “At Step Five, ‘the Commissioner has the burden to identify 11 specific jobs existing in substantial numbers in the national economy 12 that [a] claimant can perform despite [her] identified limitations.’” 13 Rounds v. Commissioner, 807 F.3d 996, 1002 (9th Cir. 2015) (quoting 14 Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015)). 15 an apparent conflict between the vocational expert’s testimony and the 16 [Dictionary of Occupational Titles (“DOT”)] – for example, expert 17 testimony that a claimant can perform an occupation involving DOT 18 requirements that appear more than the claimant can handle – the ALJ 19 is required to reconcile the inconsistency.” 20 F.3d at 846. 21 requirement is “essential, integral, or expected” for the job. 22 Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). “When there is Zavalin v. Colvin, 778 A conflict is apparent only if the challenged vocational No such 23 24 25 26 27 28 13 The Court has considered and rejected all of the arguments raised in Plaintiff’s motion for summary judgment. The Court discusses Plaintiff’s principal arguments herein. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the ALJ. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 23 1 conflict is apparent in this case. 2 3 The ALJ found that a person with Plaintiff’s residual functional 4 capacity could perform light, unskilled work as a production 5 assembler, router, and marker II (A.R. 31). 6 identified these jobs as consistent with the DOT, and explained that 7 the production assembly job does bench assembly work, so the job is 8 not an assembly line job (A.R. 62-63). 9 between the vocational expert’s testimony and the DOT. The vocational expert had The Court discerns no conflict 10 11 Plaintiff points out that the jobs identified by the ALJ require 12 Reasoning Level 2 (Plaintiff’s Motion, p. 8). The vocational expert 13 and the ALJ determined that a person who is capable of simple routine 14 work can perform jobs requiring Reasoning Level 2. 15 conflicts with this determination. 16 F.3d at 1004 n.6 (collecting cases holding that a limitation to 17 “simple” or “repetitive” tasks is consistent with the ability to 18 perform jobs requiring Reasoning Level 2, which means the ability to: 19 “Apply commonsense understanding to carry out detailed but uninvolved 20 written or oral instructions. 21 concrete variables in or from standardized situations.”); see also 22 Lewis v. Berryhill, 708 Fed. App’x 919, 920 (9th Cir. 2018) (ALJ did 23 not err in finding claimant could perform job requiring Level 2 24 reasoning where claimant was limited to “work involving simple 25 instructions”); Little v. Berryhill, 708 Fed. App’x 468, 469-70 (9th 26 Cir. 2018) (limitation to jobs with Level 2 reasoning or less is 27 consistent with limitation to following “simple directions”); compare 28 Zavalin v. Colvin, 778 F.3d at 843-44 (apparent conflict exists Nothing in the DOT See Rounds v. Commissioner, 807 Deal with problems involving a few 24 1 between limitation to “simple, routine or repetitive tasks” and “the 2 demands of Level 3 Reasoning”). 3 4 To the extent Plaintiff may argue that the ALJ should have 5 included in the hypothetical questions posed to the vocational expert 6 the state agency psychologists’ opinion that Plaintiff should be 7 limited to 1-2 step tasks, the Court discerns no error. 8 properly rejected a limitation to 1-2 step tasks, and instead found 9 Plaintiff capable of performing simple routine work (A.R. 28). The ALJ 10 Hypothetical questions posed to a vocational expert need not include 11 all conceivable limitations that a favorable interpretation of the 12 record might suggest to exist – only those limitations the ALJ finds 13 to exist. 14 Cir. 2005); Rollins v. Massanari, 261 F.3d at 857; Magallanes v. 15 Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989). 16 question posed to the vocational expert included all limitations the 17 ALJ properly found to exist (compare A.R. 22 with A.R. 62-63). 18 vocational expert testified that a person with these limitations could 19 perform certain jobs existing in significant numbers in the national 20 economy (A.R. 62-63). 21 finding Plaintiff not disabled. 22 Human Services, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. 23 Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986). See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Here, the hypothetical The The ALJ properly relied on this testimony in See Barker v. Secretary of Health and 24 25 Plaintiff argues that the number of jobs the vocational expert 26 estimated for each position should be eroded in supposed accordance 27 data from O*NET and OOH (Plaintiff’s Motion, pp. 13-14). 28 argues that this data creates a conflict the ALJ should have resolved 25 Plaintiff 1 (Plaintiff’s Motion, p. 14). 2 The ALJ’s duty to reconcile conflicts between a vocational 3 4 expert’s testimony and the DOT does not extend to non-DOT sources. 5 See Shaibi v. Berryhill, 883 F.3d 1102, 1109-10 (9th Cir. 2017) (“[W]e 6 can find no case, regulation, or statute suggesting that an ALJ must 7 sua sponte take administrative notice of economic data in the . . . 8 OOH. 9 any apparent conflict between the [vocational expert’s] testimony and It is true that an ALJ is required to investigate and resolve 10 the DOT, regardless of whether a claimant raises the conflict before 11 the agency. . . . 12 same is true for the . . . OOH. 13 ALJ may rely on a vocational expert’s testimony concerning the number 14 of relevant jobs in the national economy, and need not inquire sua 15 sponte into the foundation for the expert’s opinion) (citations 16 omitted); see also David G. V. Saul, 2020 WL 1184434, at *5 (C.D. Cal. 17 March 11, 2020) (“courts in this circuit have consistently found that 18 an ALJ is under no obligation to resolve conflicts between VE 19 testimony and . . . O*NET data”); Wagner v. Berryhill, 2018 WL 20 3956485, at *5-6 (C.D. Cal. Aug. 14, 2018) (ALJ has no obligation to 21 address vocational expert’s deviation from sources other than the DOT, 22 including the O*NET); Seaberry v. Berryhill, 2018 WL 1425985, at *6 23 (C.D. Cal. Mar. 22, 2018) (collecting cases finding that ALJ is under 24 no obligation to resolve a conflict between vocational expert 25 testimony and OOH or O*NET data). But Shaibi cites to no authority suggesting the Our precedent holds, instead, that an 26 27 The vocational expert properly relied on the expert’s 28 professional expertise to estimate there were 58,000 production 26 1 assembler jobs, 53,000 router jobs, and 27,000 marker II jobs that a 2 person with the limitations the ALJ found to exist could perform 3 (A.R.62-63). 4 could rely. 5 Cir. 2014) (holding that 25,000 jobs nationally is a significant 6 number). These were significant numbers on which the ALJ properly See Gutierrez v. Commissioner, 740 F.3d 519, 527-29 (9th Substantial evidence supports the ALJ’s decision at Step 5. 7 CONCLUSION 8 9 10 For all of the foregoing reasons, Plaintiff’s motion for summary 11 judgment is denied and Defendant’s motion for summary judgment is 12 granted. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: August 7, 2020. 17 18 19 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 27
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