Tanya Marie Nicholl v. Nancy A. Berryhill, No. 8:2017cv01485 - Document 18 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)
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Tanya Marie Nicholl v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TANYA MARIE NICHOLL, Plaintiff, 12 13 14 15 CASE NO. SACV 17-1485 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Tanya Marie Nicholl (“Plaintiff”) brings this action, seeking 22 to overturn the decision of the Acting Commissioner of Social 23 Security (the “Commissioner” or “Agency”) denying her application 24 for Disability Insurance Benefits. The parties consented, pursuant 25 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. 27 reasons 28 decision. stated below, the (Dkt. Nos. 10, 12-13). Court AFFIRMS the For the Commissioner’s Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On April 2, 2014, Plaintiff filed an application for 5 Disability Insurance Benefits (“DIB”) pursuant to Title II of the 6 Social Security Act (the “Act”) alleging a disability onset date 7 of May 24, 2012. 8 Plaintiff’s application initially and upon reconsideration. 9 76, 88, 89-99). (AR 76, 154-57). The Commissioner denied (AR Thereafter, Plaintiff requested a hearing before 10 an Administrative Law Judge (“ALJ”), which took place on November 11 19, 2015. 12 on March 28, 2016, finding that Plaintiff was not disabled because 13 there are jobs that exist in significant numbers in the national 14 economy that she can perform. 15 Appeals Council denied Plaintiff’s request for review. 16 This action followed on August 29, 2017. (AR 36-65, 104-05). The ALJ issued an adverse decision (AR 23-31). On June 29, 2017, the (AR 1-7). 17 18 III. 19 FACTUAL BACKGROUND 20 21 Plaintiff was born on August 11, 1973. (AR 154). She was 22 forty-two (42) years old when she appeared before the ALJ on 23 November 19, 2015. 24 her mother. 25 and attended a few years of college. 26 worked as a claims examiner, billing typist, and audit clerk. 27 179). 28 panic attacks, depression, and mood disorder NOS. (AR 43). (AR 43-44). Plaintiff is divorced and lives with Plaintiff has a high-school education (AR 44, 179). She previously (AR She alleges disability due to severe anxiety attacks, severe 2 (AR 178). 1 A. Plaintiff’s Statements And Testimony 2 3 On June 4, 2014, Plaintiff submitted an Adult Function Report. 4 (AR 189-97). 5 gives her gastrointestinal problems and her medications cause 6 drowsiness. 7 her ability to dress, bathe, or care for her hair. 8 is able to prepare her own meals and do housework. 9 She sets an alarm to timely take her medications. She reported being unable to work because her anxiety (AR 189, 196). Plaintiff denied any problems with (AR 190). She (AR 190-91). (AR 191). 10 Plaintiff goes outside three times a week and is able to drive and 11 shop on her own. (AR 192). She socializes with friends and family. 12 (AR 193). 13 ability to memorize, complete tasks, concentrate, and understand. 14 (AR 194). Plaintiff asserts that her impairments affect her 15 16 At the time of her hearing, Plaintiff was forty-two years old, 17 divorced, and living with her mother. 18 herself to the hearing. 19 to work due to frequent panic and anxiety attacks, which can last 20 for hours or up to two days. 21 even little things overwhelm her. 22 cause physical symptoms, including gastrointestinal pain, nausea, 23 and dehydration. 24 which affects her ability to concentrate. 25 unable to sleep without her medication. (AR 53). She denied any 26 problems driving or being out in public. (AR 55). She frequently 27 socializes with friends. (AR 44). (AR 48). (AR 43-44). Plaintiff drove She testified that she is unable (AR 45, 49-50). (AR 47). She reported that Her panic attacks Plaintiff also reported depression, (AR 58). 28 3 (AR 52). Plaintiff is 1 B. Treatment History 2 3 On May 24, 2012, Plaintiff presented to the emergency room, 4 complaining of abdominal pain, nausea and vomiting resulting from 5 stress and anxiety. (AR 335). During the course of the evaluation, 6 Plaintiff’s 7 instructions to follow-up with her primary care physician. 8 336-37). 9 2014. symptoms resolved, and she was discharged with (AR The medical record contains no further treatments until 10 11 On March 29, 2014, Plaintiff presented to the emergency room 12 for treatment of her anxiety symptoms. 13 her symptoms as “knots in her stomach,” but denied chest pain or 14 shortness of breath. 15 suicidal thoughts. 16 for 17 depression, anxiety, and insomnia. 18 with major depression, anxiety disorder, and chronic insomnia, and 19 assigned a Global Assessment of Functioning (“GAF”) score of 55.1 20 1 21 22 23 24 25 26 27 28 behavioral (AR 301). (AR 301). health (AR 301). She described Plaintiff reported occasional On March 30, Plaintiff was evaluated services after reporting (AR 317). worsening She was diagnosed “A GAF score is a rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). The GAF includes a scale ranging from 0–100, and indicates a “clinician’s judgment of the individual’s overall level of functioning.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) (hereinafter DSM–IV). According to DSM–IV, a GAF score between 51 and 60 “indicates moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” Id. 34. “Although GAF scores, standing alone, do not control determinations of whether a person’s mental impairments rise to the level of a disability (or interact with physical 4 1 She responded well to medication and treatment, with reduction of 2 her depression, improvement of her sleep, and elimination of her 3 anxiety, and was discharged on April 1. (AR 317). 4 5 In April 2014, Plaintiff began treating with the Behavioral 6 Services Department of the Orange County Health 7 (“Orange County Behavioral Services”). 8 intake, she reported anxiety attacks, insomnia, depression, and a 9 recent suicide attempt. (AR 429). (AR 429-30). Care Agency At the initial Her current medications 10 included Prozac, Seroquel, Hydroxyzine, and Trazodone. (AR 430). 11 She Plaintiff 12 acknowledged an opioid addiction that she was taking for back pain 13 ("[Plaintiff] reported she was addicted to Norcos that she was 14 taking for back pain and then was rx [sic] Methocarbarnol for 15 opiate withdrawals"). 16 agitated 17 anxious mood and poor insight, judgment and impulse control. 18 432). 19 morning nausea. 20 abnormalities or functional deficiencies were noted. 21 Plaintiff was diagnosed with major depressive disorder and opioid 22 dependency and assigned a GAF score of 50.2 23 Plaintiff reported being stable on her medications. 24 25 26 presented motor anxious and depressed. (AR 433). activity, 28 433). A mental status examination found circumstantial thought processes, an (AR On April 29, Plaintiff reported decreased concentration and (AR 428). However, no significant mental status (AR 428). (AR 428). On May 27, (AR 427). A impairments to create a disability), they may be a useful measurement.” Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014). A GAF score between 41 and 50 describes “serious symptoms” or “any serious impairment in social, occupational, or school functioning.” DSM-IV 34. 2 27 (AR 5 1 mental status examination was largely normal and unremarkable. (AR 2 425). 3 opioid dependence and assigned a GAF score of 55. 4 was admonished to remain medication compliant. Plaintiff was diagnosed with major depressive disorder and (AR 424). She (AR 424). 5 6 On June 27, 2014 Plaintiff reported continuing anxiety but 7 improved depression symptoms. (AR 423). On examination, Ralph 8 Lissaur, M.D., noted monotone speech, anxious mood, restricted 9 affect, and poor concentration, attention, insight and judgment. 10 (AR 423). 11 opioid dependence and assigned a GAF score of 46. 12 opined that Plaintiff cannot consistently follow instructions, 13 complete tasks, keep appointments, follow a schedule, or conduct 14 relationships 15 independently manage medications; requires supervision, prompting, 16 reminders, 17 independently, follow through on treatment goals, or independently 18 manage activities of daily living. (AR 423). Dr. Lissaur concluded 19 that Plaintiff has trouble completing simple tasks or following 20 verbal 21 distractions, and on a scheduled, routine, consistent, sustained 22 basis as required in the workplace. or Dr. Lissaur diagnosed major depressive disorder and or in line with redirection; written societal and directions is unable without (AR 423). expectations; to undue leave her He cannot house interruptions and (AR 423). 23 On July 30, 2014, Plaintiff reported being compliant with her 24 25 medications. (AR 422). 26 concentration, insight, and judgment, a mental status examination 27 was 28 increased. unremarkable. (AR (AR 422). Other than an anxious mood and poor 422). Plaintiff’s Prozac dosage was On September 11, Plaintiff reported daily 6 1 anxiety attacks and occasional depression. 2 medication compliant and denied any side effects. 3 than a depressed mood, restricted affect, and fair insight and 4 judgment, a mental status examination was normal. 5 Ngo, 6 dependence and assigned a GAF score of 50. 7 9, Plaintiff acknowledged that her “nausea has been both less 8 frequent and less intense.” 9 exercising again.” M.D., diagnosed major depressive (AR 409). (AR 409). She was (AR 411). Other (AR 411). disorder and (AR 411). Jerry opioid On October She reported walking and Dr. Ngo added an anxiety NOS 10 diagnosis. 11 Prozac was helping with her depression, but that her mood could 12 still be improved. 13 was restricted and her insight and judgment were fair. 14 Otherwise, the mental status examination was unremarkable. 15 407). 16 including rapid breathing and occasional diarrhea. 17 acknowledged that “Prozac has helped with depression.” 18 On 19 restricted and dysphoric, and her insight and judgment were fair. 20 (AR 405). 21 process, orientation, and concentration were all normal. (AR 405). On (AR 409). (AR 411). (AR 407). December examination, On November 6, Plaintiff reported that her 4, On examination, Plaintiff’s affect Plaintiff mood was reported “more (AR 407). continuing anxiety, (AR 405). depressed,” (AR She (AR 405). affect was Otherwise, Plaintiff’s appearance, speech, thought 22 23 On January 15, 2015, Plaintiff reported that until she 24 recently ran out of medications, her anxiety symptoms were limited 25 to three times over the previous month. 26 Plaintiff’s 27 concentration, and orientation were normal. 28 was restricted and dysphoric and her insight and judgment were appearance, speech, 7 (AR 403). mood, On examination, thought (AR 403). process, Her affect 1 fair. (AR 403). Dr. Ngo diagnosed major depressive disorder, 2 anxiety NOS, and opioid dependence, in full remission. 3 Dr. Ngo continued the Prozac, Seroquel, and Xanax dosages and 4 increased the Gabapentin dosage. 5 to exercise regularly and referred her to therapy. (AR 403). (AR 403). He advised Plaintiff (AR 403). 6 7 On September 18, 2015, Plaintiff sought emergency care for 8 anxiety and abdominal pain after she ran out of her medications. 9 (AR 447). She was restarted on her medications, with effective 10 resolution of her symptoms, and discharged in good condition. 11 (AR 446, 450). 12 13 On October 28, 2015, Dr. Ngo completed a mental impairment (AR 473-77). He asserted that Plaintiff’s anxiety 14 questionnaire. 15 symptoms include depressed mood, persistent anxiety, difficulty 16 thinking or concentrating, recurrent panic attacks, anhedonia, 17 appetite disturbances, decreased energy, and insomnia. 18 Dr. Ngo opined that Plaintiff has marked limitations in her ability 19 to carry out simple, one-to-two step instructions, and complete a 20 workday 21 moderate-to-marked limitations in her ability to maintain attention 22 and concentration for extended periods, perform activities within 23 a schedule and consistently be punctual, work in coordination with 24 or near others without being distracted by them, and perform at a 25 consistent pace without rest periods of unreasonable length or 26 frequency; and moderate limitations in her ability to interact 27 appropriately 28 behavior, and respond appropriately to workplace changes. without with interruptions the from public, 8 psychological maintain socially (AR 474). symptoms; appropriate (AR 1 476). Dr. Ngo concluded that Plaintiff would likely miss more than 2 three days a month due to her impairments. (AR 477). 3 4 C. State Agency Consultants 5 6 On July 24, 2014, Eugene Campbell, Ph.D., a State agency 7 consultant, concluded that 8 Plaintiff’s anxiety and depression are severe impairments. (AR 9 71). reviewed the medical record and Dr. Campbell opined that Plaintiff has a mild restriction of 10 activities of daily living, mild difficulties in maintaining social 11 functioning, 12 concentration, persistence, or pace. 13 that Plaintiff is moderately limited in her ability to maintain 14 attention 15 activities within a schedule, maintain regular attendance, and be 16 punctual 17 complete a normal workday and workweek without interruptions from 18 psychologically based symptoms and to perform at a consistent pace 19 without an unreasonable number and length of rest periods. 20 73). 21 basic work instructions and tasks of one-to-two steps; follow a 22 schedule, make decisions, and complete basic work tasks on a 23 consistent basis; work with and around others; and adapt to changes 24 and handle the normal stressor of full-time employment. 25 On November 5, 2014, Barbara Moura, Ph.D., another State agency 26 consultant, concurred with Dr. Campbell’s assessment. and and within moderate concentration customary difficulties for in (AR 71). extended tolerances; and maintaining He further opined periods; in the perform ability to (AR Dr. Campbell concluded that Plaintiff can learn and remember 27 28 9 (AR 73). (AR 83-85). 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate a medically determinable physical or mental impairment 6 that prevents the claimant from engaging in substantial gainful 7 activity and that is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 10 The impairment must render the claimant incapable of performing 11 work 12 employment that exists in the national economy. 13 180 14 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 18 20 C.F.R. §§ 404.1520, 416.920. The steps are: 19 20 (1) Is the claimant presently engaged in substantial gainful 21 activity? 22 not, proceed to step two. 23 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 24 claimant is found not disabled. 25 severe? If not, If the three. 26 27 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the specific impairments described in 20 C.F.R. Part 404, 28 10 1 Subpart P, Appendix 1? 2 disabled. 3 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 4 so, the claimant is found not disabled. 5 to step five. 6 (5) If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 11 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 12 (g)(1), 416.920(b)-(g)(1). 13 The claimant has the burden of proof at steps one through four 14 15 and the 16 Bustamante, 262 F.3d at 953-54. 17 affirmative duty to assist the claimant in developing the record 18 at every step of the inquiry. 19 claimant meets his or her burden of establishing an inability to 20 perform past work, the Commissioner must show that the claimant 21 can perform some other work that exists in “significant numbers” 22 in 23 residual functional capacity (“RFC”), age, education, and work 24 experience. 25 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 26 may do so by the testimony of a VE or by reference to the Medical- 27 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 28 Appendix 2 (commonly known as “the grids”). the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 11 The Commissioner Osenbrock v. Apfel, 1 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has both 2 exertional (strength-related) and non-exertional limitations, the 3 Grids are inapplicable and the ALJ must take the testimony of a 4 vocational expert (“VE”). 5 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 6 1988)). Moore v. Apfel, 216 F.3d 864, 869 (9th 7 8 V. 9 THE ALJ’S DECISION 10 11 The ALJ employed the five-step sequential evaluation process 12 and concluded that Plaintiff was not disabled within the meaning 13 of the Act. 14 has not engaged in substantial gainful activity since May 24, 2012, 15 the alleged onset date. 16 Plaintiff’s 17 impairments.3 18 Plaintiff does not have an impairment or combination of impairments 19 that meet or medically equal the severity of any of the listings 20 enumerated in the regulations. (AR 31). anxiety At step one, the ALJ found that Plaintiff and (AR 25). (AR 25). major At step two, the ALJ found that depressive disorder are severe At step three, the ALJ determined that (AR 25-26). 21 22 The ALJ then assessed Plaintiff’s RFC and concluded she can 23 perform a full range of work at all exertional levels but with the 24 following nonexertional limitations: “[Plaintiff] is limited to 25 the performance of simple[,] routine and repetitive tasks, but 26 The ALJ also considered Plaintiff’s obesity and found that it has no more than a minimal effect on her ability to perform work functions. (AR 25). 3 27 28 12 1 would be able to sustain attention 2 sufficient to carry out work-like tasks with reasonable pace and 3 persistence; and should have no more than occasional interaction 4 with coworkers, supervisors and the general public.” 5 step four, the ALJ found that Plaintiff is unable to perform any 6 past relevant work. 7 education, work 8 determined at 9 significant numbers in the national economy that Plaintiff can (AR 28-29). experience, step five concentration skills (AR 26). At Based on Plaintiff’s RFC, age, and that and the there VE’s are testimony, jobs that the ALJ exist in 10 perform, including cleaner, packer, and laundry worker. (AR 29- 11 30). 12 a disability, as defined by the Act, from May 24, 2012, through 13 the date of the decision. Accordingly, the ALJ found that Plaintiff has not been under (AR 30-31). 14 15 VI. 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. § 405(g), a district court may review the “[The] court may set 19 Commissioner’s decision to deny benefits. 20 aside the Commissioner’s denial of benefits when the ALJ’s findings 21 are based on legal error or are not supported by substantial 22 evidence in the record as a whole.” 23 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 24 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 25 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 26 27 28 “Substantial evidence is more than a scintilla, but less than a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 13 It is “relevant 1 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 2 evidence which a reasonable person might accept as adequate to 3 support a conclusion.” 4 evidence supports a finding, the court must “‘consider the record 5 as a whole, weighing both evidence that supports and evidence that 6 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 7 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 8 1993)). 9 or reversing that conclusion, the court may not substitute its (Id.). To determine whether substantial If the evidence can reasonably support either affirming 10 judgment for that of the Commissioner. 11 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 12 1457 (9th Cir. 1995)). Reddick, 157 F.3d at 720- 13 14 VII. 15 DISCUSSION 16 Plaintiff 17 raises three claims for relief: (1) the ALJ 18 improperly rejected the medical opinion evidence; (2) the ALJ 19 failed to properly consider Plaintiff's subjective testimony; and 20 (3) the ALJ presented a flawed hypothetical to the VE. 21 16 at 8-19). (Dkt. No. The Court addresses each claim in turn. 22 23 A. The ALJ Properly Weighed The Treating Doctors’ Opinions 24 25 Plaintiff asserts that the ALJ erred in rejecting the 26 functional assessments of her treating psychiatrists, Drs. Ngo and 27 Lissauer. (Dkt. No. 16 at 8-14). 28 14 1 An ALJ must take into account all medical opinions of record. 2 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations “distinguish 3 among the opinions of three types of physicians: (1) those who 4 treat the claimant (treating physicians); (2) those who examine 5 but do not treat the claimant (examining physicians); and (3) those 6 who 7 physicians).” 8 as amended (Apr. 9, 1996). 9 opinion carries more weight than an examining physician’s, and an 10 examining physician’s opinion carries more weight than a reviewing 11 [(nonexamining)] physician’s.” 12 1195, 1202 (9th Cir. 2001); accord Garrison v. Colvin, 759 F.3d 13 995, 1012 (9th Cir. 2014). 14 physician’s testimony depends ‘on the degree to which they provide 15 supporting explanations for their opinions.’ ” 16 Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008) (quoting 20 C.F.R. 17 § 404.1527(d)(3)). neither examine nor treat the claimant (nonexamining Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), “Generally, a treating physician’s Holohan v. Massanari, 246 F.3d “The weight afforded a non-examining Ryan v. Comm’r of 18 19 The medical opinion of a claimant’s treating physician is 20 given “controlling weight” so long as it “is well-supported by 21 medically acceptable clinical and laboratory diagnostic techniques 22 and is not inconsistent with the other substantial evidence in [the 23 claimant’s] 24 416.927(c)(2). 25 controlling, it is weighted according to factors such as the length 26 of the treatment relationship and the frequency of examination, 27 the 28 supportability, nature case record.” “When and and a extent 20 C.F.R. treating of the consistency 15 with §§ doctor’s 404.1527(c)(2), opinion treatment the record.” is not relationship, Revels v. 1 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. 2 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). 3 given to the “opinion of a specialist about medical issues related 4 to his or her area of specialty.” 5 416.927(c)(5). Greater weight is also 20 C.F.R. §§ 404.1527(c)(5), 6 “To 7 reject an uncontradicted opinion of a treating or 8 examining doctor, an ALJ must state clear and convincing reasons 9 that are supported by substantial evidence.” Bayliss v. Barnhart, 10 427 F.3d 1211, 1216 (9th Cir. 2005). 11 doctor’s opinion is contradicted by another doctor’s opinion, an 12 ALJ may only reject it by providing specific and legitimate reasons 13 that 14 Reddick, 157 F.3d at 725 (the “reasons for rejecting a treating 15 doctor’s credible opinion on disability are comparable to those 16 required for rejecting a treating doctor’s medical opinion.”). 17 “The ALJ can meet this burden by setting out a detailed and thorough 18 summary of the facts and conflicting clinical evidence, stating 19 his interpretation thereof, and making findings.” 20 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted). 21 “When an examining physician relies on the same clinical findings 22 as a treating physician, but differs only in his or her conclusions, 23 the conclusions of the examining physician are not ‘substantial 24 evidence.’ ” 25 Additionally, “[t]he opinion of a nonexamining physician cannot by 26 itself constitute substantial evidence that justifies the rejection 27 of the opinion of either an examining physician or a treating 28 physician.” are supported by substantial “If a treating or examining evidence.” Id.; see also Trevizo v. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Lester, 81 F.3d at 16 831 (emphasis in original). 1 Finally, when weighing conflicting medical opinions, an ALJ may 2 reject an opinion that is conclusory, brief, and unsupported by 3 clinical findings. 4 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Bayliss, 427 F.3d at 1216; Tonapetyan v. 5 1. 6 Dr. Ngo 7 8 9 In October questionnaire. estimated 2015, Dr. Ngo (AR 473-77). a mental impairment As part of the questionnaire, Dr. 10 Ngo 11 activities in a sustained workday environment. 12 degrees of limitation included “marked,” which the questionnaire 13 defined as “constant – more than 2/3 of an 8-hr. workday,” and 14 “moderate-to-marked,” which was defined as “frequent – 1/3 [to] 15 2/3 of an 8-hr. workday.” 16 has “marked” limitations in her ability to carry out simple, one- 17 to-two 18 interruptions 19 marked” 20 concentration for extended periods, perform activities within a 21 schedule and consistently be punctual, work in coordination with 22 or near others without being distracted by them, and perform at a 23 consistent pace without rest periods of unreasonable length or 24 frequency. 25 likely miss more than three days a month due to her impairments. 26 (AR 477). step Plaintiff’s completed limitations (AR 476). and her perform certain mental (AR 476). The Dr. Ngo opined that Plaintiff to psychological in to (AR 476). instructions, from ability complete symptoms; ability to a workday and maintain without “moderate-toattention and Dr. Ngo also concluded that Plaintiff would 27 28 17 1 The ALJ gave Dr. Ngo’s assessment “little weight” because the 2 “severe restrictions . . . exceed any difficulties supported by 3 the evidence as a whole,” including “mental status examinations 4 and [Plaintiff’s] demonstrated abilities during the period under 5 consideration.” 6 contradicted by the State agency consultants’ opinions, the Court 7 reviews the ALJ’s rejection of Dr. Ngo’s opinion for “specific and 8 legitimate reasons that are supported by substantial evidence.” 9 Bayliss, 427 F.3d at 1216; see Moore v. Comm’r of Soc. Sec. Admin., 10 278 F.3d 920, 924 (9th Cir. 2002) (“The ALJ could reject the 11 opinions 12 nonexamining physician, only for specific and legitimate reasons 13 that 14 (citation omitted). 15 and legitimate reasons, supported by substantial evidence, for 16 rejecting Dr. Ngo’s opinion. are of (AR Moore’s supported 28). Because examining by Ngo’s Dr. physicians, substantial opinion was contradicted evidence in the by a record.”) The Court finds that the ALJ provided specific 17 Dr. Ngo’s largely “check-off” opinion was not supported by 18 19 objective 20 inadequately explained or lack supporting clinical or laboratory 21 findings are entitled to less weight. 22 251, 253 (9th Cir. 1996) (ALJ properly rejected “check-off reports 23 that 24 conclusions”); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 25 1995) (ALJ properly rejected physician’s opinion where it was 26 “conclusory 27 documentation”); see also 20 C.F.R. § 416.927(c)(3) (“The more a 28 medical source presents relevant evidence to support a medical did or not clinical contain and evidence. any Medical explanation unsubstantiated 18 opinions that are Crane v. Shalala, 76 F.3d of by the bases relevant of their medical 1 opinion, particularly medical signs and laboratory findings, the 2 more weight we will give that medical opinion. 3 explanation a source provides for a medical opinion, the more 4 weight 5 examinations by Dr. Ngo and other professionals associated with 6 Orange County Behavioral Services did not reflect the extreme 7 functional limitations assessed by Dr. Ngo. 8 869 F.3d 1040, 1050 (9th Cir. 2017) (“A physician’s opinion can be 9 discredited based on contradictions between the opinion and the we will own give that notes.”). medical Mental status See Buck v. Berryhill, 10 physician’s 11 significant status abnormalities or functional deficiencies were 12 noted. 13 largely normal and unremarkable. (AR 425). In June 2014, Plaintiff 14 reported continuing anxiety but improved depression symptoms. 15 423). 16 insight and judgment, a mental status examination was unremarkable. 17 (AR 422). 18 restricted affect, and fair insight and judgment, a mental status 19 examination was normal. 20 Plaintiff reported improved depression symptoms with Prozac. 21 405, 407). 22 process, orientation, and concentration were all normal. (AR 405). 23 Similarly, in January 2015, Plaintiff’s appearance, speech, mood, 24 thought process, concentration, and orientation were all normal. 25 (AR 403). (AR 428). At opinion.”). The better an Plaintiff’s initial intake, no In May 2014, a mental status examination was (AR In July, other than an anxious mood and poor concentration, Similarly, in September, other than a depressed mood, (AR 411). In November and December, (AR In December, Plaintiff’s appearance, speech, thought 26 27 28 Dr. Ngo diagnosed major depressive disorder, anxiety NOS, and opioid dependence, in full remission. 19 (AR 403). However, the mere 1 existence of major depression and anxiety does not provide 2 conclusive support for the extreme disabling limitations opined by 3 Dr. Ngo. 4 insufficient proof of a disability.” 5 678, 680 (9th Cir. 1993); see Key v. Heckler, 754 F.2d 1545, 1549 6 (9th Cir. 1985) (“The mere diagnosis of an impairment . . . is not 7 sufficient to sustain a finding of disability.”). 8 claimant receives a particular diagnosis, it does not necessarily 9 follow that the claimant is disabled, because it is the claimant’s 10 symptoms and true limitations that generally determine whether she 11 is disabled. 12 2001). 13 limitations. Indeed, “[t]he mere existence of an impairment is Matthews v. Shalala, 10 F.3d Even if a See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. Dr. Ngo cites no clinical tests in support of his extreme 14 15 Plaintiff’s depression and anxiety have resulted primarily in 16 symptoms of nausea and stomach pain. (AR 28, 45, 48, 51, 189, 196, 17 301, 355, 405, 409, 447, 474). However, when Plaintiff is compliant 18 with her medications, her symptoms are largely ameliorated. 19 27-28, 317, 336-37, 403, 405, 407, 409, 422, 423, 427, 446-47, 20 450); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 21 (9th Cir. 2006) (“Impairments that can be controlled effectively 22 with medication are not disabling for the purpose of determining 23 eligibility for [disability] benefits.”). 24 denied any side effects from her medications. 25 409, 411, 423). (AR Plaintiff consistently (AR 403, 405, 407, 26 27 28 Further, by Plaintiff’s own admissions, her symptoms are not debilitating. (AR 27-28). In her statements and testimony, she 20 1 acknowledged preparing her own meals, doing housework, driving, 2 shopping, joining her family on a cruise, zip-lining (AR 59) and 3 socializing. 4 not prevented her from volunteering annually at the Renaissance 5 Pleasure Fair. 6 and read. (AR 54-58, 189, 191-94). (AR 57, 428, 468). Plaintiff’s symptoms have She is able to watch television (AR 553). 7 8 Plaintiff argues that psychiatric impairments are not readily 9 amenable to clinical examinations and rigid diagnostic techniques. 10 (Dkt. No. 16 at 10-11) (citing Medina v. California, 505 U.S. 437, 11 451 (1992) (“Our cases recognize that the subtleties and nuances 12 of psychiatric diagnosis render certainties virtually beyond reach 13 in most situations, because psychiatric diagnosis is to a large 14 extent based on medical impressions drawn from subjective analysis 15 and 16 (citation and alterations omitted). 17 Dr. Ngo’s opinion little weight not only because the mental status 18 examinations did not support Dr. Ngo’s extreme limitations, but 19 also because the disabling limitations were belied by Plaintiff’s 20 acknowledged activities of daily living. filtered through the experience of the diagnostician.”) Here, however, the ALJ gave 21 22 Plaintiff also contends that her “ability to perform sporadic 23 activities of daily living, almost entirely within her own home, 24 are not inconsistent with the opinions from treating specialists 25 regarding what limitations [Plaintiff] could have if placed in a 26 competitive work environment 8 hours a day, 40 hours a week.” (Dkt. 27 No. 16 at 11) (citing Garrison, 759 F.3d at 1016) (“We have 28 repeatedly warned that ALJs must 21 be especially cautious in 1 concluding that daily activities are inconsistent with testimony 2 about pain, because impairments that would unquestionably preclude 3 work and all the pressures of a workplace environment will often 4 be consistent with doing more than merely resting in bed all day.”). 5 The ALJ, however, is not citing Plaintiff’s activities of daily 6 living 7 Plaintiff’s 8 including self-care, housework, errands (including driving and 9 shopping in stores), and social and leisure activities” (AR 28) 10 contradict Dr. Ngo’s assessments of marked and moderate-to-marked 11 limitations. 12 595, 600–02 (9th Cir. 1999) (considering an inconsistency between 13 a treating physician’s opinion and a claimant’s daily activities a 14 specific and legitimate reason to discount the treating physician’s 15 opinion). for proof that she acknowledged is capable abilities to of working. “engag[e] in Rather, activities See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 16 17 Plaintiff asserts that the ALJ improperly “gave the greatest 18 weight to opinions from nonexamining state agency psychologists.” 19 (Dkt. No. 16 at 12). 20 opinions 21 consultants . . . 22 opinions of treating or examining sources.” 23 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (“[R]eports 24 of the nonexamining advisor need not be discounted and may serve 25 as substantial evidence when they are supported by other evidence 26 in the record and are consistent with it.”). 27 ALJ gave the State agency psychologists only “some” weight, finding 28 that Plaintiff’s subjective statements and recent treatment records from However, “[i]n appropriate circumstances, State agency may entitled be 22 medical to and greater psychological weight than the SSR 96-6p, at *3; see In any event, the 1 supported greater functional restrictions than those assessed by 2 the State agency doctors. (AR 28). 3 4 Finally, Plaintiff argues that the ALJ erred by failing to 5 explicitly consider the factors provided in 20 C.F.R. § 404.1527 6 to determine the weight to be given to a treating physician’s 7 opinion. (Dkt. No. 16 at 13-14) (citing Trevizo, 871 F.3d at 676). 8 “When treating 9 weighted according to factors such as the length of the treatment 10 relationship and the frequency of examination, the nature and 11 extent 12 consistency with the record.” 13 “the ALJ is not required to make an express statement that she 14 considered all the factors outlined in 20 C.F.R. § 404.1527(c).” 15 Kelly v. Berryhill, No. 16-17173, 2018 WL 2022575, at *3 (9th Cir. 16 May 1, 2018); see Harris v. Colvin, 584 F. App’x 526, 528 (9th Cir. 17 2014) (“The agency was not required to specifically reference each 18 factor listed in 20 C.F.R. § 404.1527(c).”) (citing SSR 06-03p, at 19 *5) (“Not every factor for weighing opinion evidence will apply in 20 every 21 supportability of Dr. Ngo’s opinion and its consistency with the 22 record. 23 began treating with Orange County Behavioral Services in April 2014 24 and that she made multiple, periodic visits prior to Dr. Ngo’s 25 assessment in October 2015. (AR 27-28). Further, unlike in Trevizo 26 where the ALJ’s “outright rejection” of the treating physician’s 27 opinion constituted “reversible legal error,” 871 F.3d at 676, here 28 the ALJ rejected only the “severe restrictions reflected in the a of the case.”). (AR 28). doctor’s opinion treatment Here, is not relationship, the controlling, supportability, Revels, 874 F.3d at 654. ALJ it explicitly is and However, considered the Moreover, the ALJ acknowledged that Plaintiff 23 opinion of Dr. Ngo.” 2 Plaintiff 3 appropriately 4 behavior, and respond 5 reflected in the 6 repetitive tasks with no more than occasional interaction with 7 coworkers, supervisors, and the general public. 8 with id. 26). is (AR 28). Indeed, Dr. Ngo’s assessments that 1 moderately with the limited public, in maintain appropriately RFC’s her to restriction to ability to socially interact appropriate workplace changes are simple, routine and (Compare AR 476, 9 10 The Court finds that the ALJ provided specific and legitimate 11 reasons, supported by substantial evidence in the record, for 12 rejecting Dr. Ngo’s opinion, and no remand is required. 13 2. 14 Dr. Lissaur 15 16 In June 2014, Dr. 17 consistently 18 appointments, follow a schedule, or conduct relationships in line 19 with 20 medications; 21 redirection; and is unable to leave her house independently, follow 22 through on treatment goals, or independently manage activities of 23 daily living. 24 trouble completing simple tasks or following verbal or written 25 directions without undue interruptions and distractions, and on a 26 scheduled, routine, consistent, sustained basis as required in the 27 workplace. follow societal Lissaur instructions, expectations; requires (AR 423). opined Plaintiff complete cannot supervision, that tasks, independently prompting, cannot keep manage reminders, or Dr. Lissaur concluded that Plaintiff has (AR 423). 28 24 The ALJ gave Dr. Lissaur’s assessments “little weight” because 1 2 they “are 3 examinations and demonstrated abilities during the period under 4 consideration.” 5 contradicted by the State agency consultants’ opinions, the Court 6 reviews the ALJ’s rejection of Dr. Lissaur’s opinion for “specific 7 and legitimate reasons that are supported by substantial evidence.” 8 Bayliss, 427 F.3d at 1216; see Moore, 278 F.3d at 924. 9 finds that inconsistent with the (AR 28). ALJ [Plaintiff’s] mental status Because Dr. Lissaur’s opinion was provided specific and The Court legitimate reasons, 10 supported by substantial evidence, for rejecting Dr. Lissaur’s 11 opinion. 12 First, the extreme limitations assessed in 13 Dr. Lissaur’s 14 conclusory opinion are inconsistent with the evidence as a whole. 15 See Crane, 76 F.3d at 253; Johnson, 60 F.3d at 1432; 20 C.F.R. 16 § 416.927(c)(3). As discussed above, generally unremarkable mental 17 status 18 associated with Orange County Behavioral Services do not support 19 the extreme functional limitations assessed by Dr. Lissaur. 20 example, Dr. Lissaur’s opinion that Plaintiff is unable to follow 21 instructions and concentrate on simple tasks is not supported by 22 consistent 23 demonstrated that Plaintiff has normal speech, grooming, thought 24 processes, concentration, orientation, memory, and judgment, with 25 no delusions, hallucinations, or suicidal ideations. 26 423, with id. 403, 405, 425, 432, 461, 466-67, 470, 551). 27 as 28 medications, her primary symptoms of nausea and stomach pain are examinations findings discussed above, by Dr. on when Lissaur mental status Plaintiff 25 and is other professionals examinations, compliant For which (Compare AR Indeed, with her 1 ameliorated. See Warre, 439 F.3d at 1006. While Dr. Lissaur 2 diagnosed major depressive disorder and opioid disorder, the mere 3 existence of major depression does not provide conclusive support 4 for the extreme disabling limitations opined by Dr. Lissauer. 5 Matthews, 10 F.3d at 680; Key, 754 F.2d at 1549; Rollins, 261 F.3d 6 at 856. 7 extreme limitations. See Dr. Lissaur cites no clinical tests in support of his 8 9 Second, Dr. Lissaur’s opinion that Plaintiff is completely 10 unable 11 Plaintiff’s acknowledged activities of daily living. 12 169 F.3d at 600–02. 13 Plaintiff could not leave her house by herself or manage her 14 activities of daily living was belied by Plaintiff’s statements 15 that she remained able to engage in a significant range of daily, 16 social 17 chores, driving her car, visiting friends, shopping in stores, 18 watching television, reading, and volunteering annually at the 19 Renaissance Pleasure Fair. 20 58, 189, 191-94, 428, 468, 533). to and engage leisure in certain functions is inconsistent with See Morgan, For example, Dr. Lissaur’s opinion that activities, including completing household (Compare AR 423, with id. 27-28, 54- 21 22 The Court finds that the ALJ provided specific and legitimate 23 reasons, supported by substantial evidence in the record, for 24 rejecting Dr. Lissaur’s opinion, and no remand is required. 25 26 27 28 26 1 2 B. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Specific, Clear and Convincing 3 4 Plaintiff testified that she is unable to work due to frequent 5 panic and anxiety attacks, which can last hours or up to two days. 6 (AR 45, 49-50). 7 symptoms, 8 dehydration. 9 her ability to concentrate. She asserted that her panic attacks cause physical including gastrointestinal (AR 48). pain, nausea, and Plaintiff claims her depression affects (AR 52). 10 11 When assessing a claimant’s credibility regarding subjective 12 pain or intensity of symptoms, the ALJ must engage in a two-step 13 analysis. 14 if there is medical evidence of an impairment that could reasonably 15 produce the symptoms alleged. 16 this analysis, the claimant is not required to show that her 17 impairment could reasonably be expected to cause the severity of 18 the symptom she has alleged; she need only show that it could 19 reasonably have caused some degree of the symptom.” 20 in original) (citation omitted). 21 objective medical evidence of the pain or fatigue itself, or the 22 severity thereof.” Trevizo, 871 F.3d at 678. First, the ALJ must determine Garrison, 759 F.3d at 1014. “In Id. (emphasis “Nor must a claimant produce Id. (citation omitted). 23 24 If the claimant satisfies this first step, and there is no 25 evidence of malingering, the ALJ must provide specific, clear and 26 convincing reasons for rejecting the claimant’s testimony about 27 the symptom severity. 28 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the Trevizo, 871 F.3d at 678 (citation omitted); 27 1 claimant’s testimony regarding the severity of her symptoms only 2 if he makes specific findings stating clear and convincing reasons 3 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 4 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 5 based on affirmative evidence thereof, he or she may only find an 6 applicant 7 credibility and stating clear and convincing reasons for each.”). 8 “This is not an easy requirement to meet: The clear and convincing 9 standard is the most demanding required in Social Security cases.” 10 not credible by making specific findings as to Garrison, 759 F.3d at 1015 (citation omitted). 11 12 13 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 14 15 (1) ordinary techniques of credibility evaluation, such 16 as 17 inconsistent 18 other testimony by the claimant that appears less than 19 candid; 20 failure to seek treatment or to follow a prescribed 21 course 22 activities. the claimant’s (2) of reputation statements concerning unexplained treatment; for or and (3) the lying, symptoms, inadequately the prior and explained claimant’s daily 23 24 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 25 omitted). 26 conduct, or internal contradictions in the claimant’s testimony, 27 also may be relevant. 28 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th 28 1 1997). In addition, the ALJ may consider the observations of 2 treating and examining physicians regarding, among other matters, 3 the functional restrictions caused by the claimant’s symptoms. 4 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 5 it is improper for an ALJ to reject subjective testimony based 6 “solely” on its inconsistencies with the objective medical evidence 7 presented. 8 (9th Cir. 2009) (citation omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 9 10 Further, the ALJ must make a credibility determination with 11 findings that are “sufficiently specific to permit the court to 12 conclude that the ALJ did not arbitrarily discredit claimant’s 13 testimony.” 14 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 15 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 16 credible must be sufficiently specific to allow a reviewing court 17 to conclude the adjudicator rejected the claimant’s testimony on 18 permissible grounds and did not arbitrarily discredit a claimant’s 19 testimony regarding pain.”) (citation omitted). 20 interpretation of a claimant’s testimony may not be the only 21 reasonable one, if it is supported by substantial evidence, “it is 22 not [the court’s] role to second-guess it.” 23 857. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Although an ALJ’s Rollins, 261 F.3d at 24 25 The ALJ found that Plaintiff’s severe impairments cause some 26 limitations in her ability to perform work activity but do not 27 preclude all basic work activity, as Plaintiff alleged. 28 28). (AR 26- The ALJ provided specific, clear, and convincing reasons, 29 1 supported by evidence in the record, to find Plaintiff’s complaints 2 of disabling mental symptomology only partially credible. 3 28). 4 decision. (AR 27- These reasons are sufficient to support the Commissioner’s 5 6 First, the ALJ found that Plaintiff’s allegations of disabling 7 mental symptoms are inconsistent with her activities of daily 8 living, which indicate that “her symptoms do not prevent her from 9 engaging in activities including self-care, housework, errands 10 (including driving and shopping in stores), and social and leisure 11 activities.” 12 concluding that daily activities are inconsistent with testimony 13 about pain, because impairments that would unquestionably preclude 14 work and all the pressures of a workplace environment will often 15 be consistent with doing more than merely resting in bed all day.” 16 Garrison, 17 (“Inconsistencies between a claimant’s testimony and the claimant’s 18 reported 19 credibility determination.”). 20 consider the claimant’s daily activities in weighing credibility. 21 Tommasetti, 533 F.3d at 1039. 22 is inconsistent with the claimant’s asserted limitations, it has a 23 bearing on credibility. Garrison, 759 F.3d at 1016. By Plaintiff’s 24 own admissions, her symptoms are not debilitating. 25 her statements and testimony, she acknowledged preparing her own 26 meals, doing housework, driving, shopping, and socializing. 27 54-58, 189, 191-94). 28 from volunteering annually at the Renaissance Pleasure Fair. 759 (AR 28). F.3d activities at “ALJs must be especially cautious in 1016; provide see a Burrell, valid 775 reason F.3d for an at 1137 adverse Nevertheless, an ALJ properly may If a claimant’s level of activity (AR 27-28). In (AR Plaintiff’s symptoms have not prevented her 30 (AR 1 428, 468). She is able to watch television and read. (AR 553). 2 Everyday activities “may be grounds for discrediting the claimant’s 3 testimony to the extent that they contradict claims of a totally 4 debilitating impairment.” 5 (9th Cir. 2012). Molina v. Astrue, 674 F.3d 1104, 1113 6 7 Plaintiff contends that “[t]here can be a great distance 8 between a patient who responds to treatment and one who is able to 9 enter the workforce.” (Dkt. No. 16 at 17) (citation omitted). 10 However, the ALJ did not conclude from Plaintiff’s subjective 11 statements and treatment records that she was capable of full-time 12 work. 13 and subjective statements contradicted Plaintiff’s allegations of 14 debilitating symptoms. Instead, the ALJ properly found that the treatment records (AR 27-28). 15 Second, 16 the ALJ properly concluded that “[Plaintiff’s] 17 treatment records reflect mental stability through the period at 18 issue, with effective symptomatic mitigation with conservative 19 treatment (per [Plaintiff] reporting and clinical observation).” 20 (AR 28). 21 basis 22 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th 23 Cir. 2008). 24 evidence cannot be the sole ground for rejecting a claimant’s 25 subjective testimony, it is a factor that the ALJ may consider when 26 evaluating credibility. 27 400 F.3d 676, 681 (9th Cir. 2005); Rollins, 261 F.3d at 857; see 28 SSR 16-3p, at *5 (“objective medical evidence is a useful indicator “Contradiction with the medical record is a sufficient for rejecting the claimant’s subjective testimony.” While inconsistencies with the objective medical Bray, 554 F.3d at 1227; Burch v. Barnhart, 31 1 to help make reasonable conclusions 2 persistence of symptoms, including the effects those symptoms may 3 have on the ability to perform work-related activities”). 4 discussed above, throughout the relevant period, mental status 5 examinations 6 thought process, orientation, and concentration. 7 411, 423, 425, 428). 8 poor 9 examination was unremarkable. consistently concentration, indicated about normal the intensity appearance, and As speech, (AR 403, 405, In July 2014, other than an anxious mood and insight and judgment, (AR 422). a mental status Similarly, in September, 10 other than a depressed mood, restricted affect, and fair insight 11 and judgment, a mental status examination was normal. (AR 411). 12 13 The ALJ found that Plaintiff responded well to conservative (AR 27-28). “Impairments that can be 14 treatment and medications. 15 controlled effectively with medication are not disabling for the 16 purpose of determining eligibility for SSI benefits.” 17 F.3d at 1006. 18 are largely ameliorated. 19 409, 422, 423, 427, 446-47, 450). 20 supports an adverse credibility finding. 21 at 1040 (“The record reflects that Tommasetti responded favorably 22 to 23 inflammatory medication [and] a transcutaneous electrical nerve 24 stimulation unit . . . . Such a response to conservative treatment 25 undermines Tommasetti’s reports regarding the disabling nature of 26 his pain.”); Crane, 76 F.3d at 254 (“evidence suggesting that [the 27 claimant] 28 credibility finding). Warre, 439 When Plaintiff is medicine compliant, her symptoms conservative (AR 27-28, 317, 336-37, 403, 405, 407, treatment responded well A good response to treatment See Tommasetti, 533 F.3d including . . . to treatment” 32 the use supports of an anti- adverse 1 Plaintiff argues that her treatment was not conservative 2 because “[p]sychotropic medications, such as those prescribed [for 3 her], are not given lightly, as they may cause serious side- 4 effects, 5 ‘debilitating’ 6 irreversible’ . . . .” 7 no evidence in the medical record that Plaintiff has tardive 8 dyskinesia. 9 stabilized with no reported side effects from her medications. 10 including tardive movement dyskinesia, . . . disorder that [which] is (Dkt. No. 16 at 17-18). is a ‘frequently However, there is Indeed, Plaintiff’s mental impairments have been (AR 27-28, 403, 405, 407, 409, 411, 423). 11 Finally, the ALJ noted “the significant gaps in [Plaintiff’s] 12 13 treatment history, which are not necessarily 14 allegations of disabling impairment.” 15 alleged onset date in May 2012, when she was treated in the 16 emergency room for abdominal pain, nausea, and vomiting resulting 17 from stress and anxiety, Plaintiff did not seek any treatment until 18 almost two years later, in March 2014. 19 ALJ may find a claimant’s statements less credible when treatment 20 is inconsistent with the level of complaints. 21 at 1114. (AR 28). consistent with Indeed, after her (AR 27, 301, 335-37). An See Molina, 674 F.3d 22 Plaintiff suggests that the “most likely explanation” for the 23 24 gap in her treatment is because her “severe anxiety . . . 25 interferes with her ability to leave her home.” 26 16). 27 shopping, or being out in public. 28 Plaintiff began treating with Orange County Behavioral Services in (Dkt. No. 16 at However, Plaintiff explicitly denied any problems driving, 33 (AR 55, 192). Further, after 1 April 2014, she made regular monthly visits without any apparent 2 issues from being out in public. 3 also argues that a person with mental illnesses may not be aware 4 that she has a disorder requiring treatment. 5 17). 6 for treatment of her anxiety. (AR 394-441, 461-72). Plaintiff (Dkt. No. 16 at 16- However, Plaintiff began seeing a psychiatrist at age twenty (AR 433). 7 8 9 Furthermore, the ALJ did not completely reject Plaintiff’s subjective statements. found the Plaintiff’s psychologists’ assessments were not restrictive enough. 12 In 13 depression, and her credible difficulties with concentration and 14 mood control, with secondary physical effects (AR 26-28), the ALJ 15 limited her to simple, routine, and repetitive tasks that have no 16 more than occasional interactions with coworkers, supervisors and 17 the general public (AR 26). 18 from performing her past relevant work, the ALJ found that she was 19 capable of performing work that is less demanding. longitudinal that to 11 Plaintiff’s ALJ due credible of the partially 10 light statements, Indeed, history of State agency (AR 28). anxiety and While this RFC precluded Plaintiff (AR 28-30). 20 21 In sum, the ALJ offered clear and convincing reasons, 22 supported by substantial evidence in the record, for his adverse 23 credibility findings. 24 supports the ALJ’s assessment of Plaintiff’s credibility, no remand 25 is required. Accordingly, because substantial evidence 26 27 28 34 1 C. The RFC Is Consistent With The Medical Record 2 3 The ALJ found, at step three, that Plaintiff has moderate 4 difficulties in maintaining social functioning and in maintaining 5 concentration, persistence, or pace. 6 at the hearing relied on by the ALJ limited Plaintiff to simple, 7 routine, and repetitive tasks with the ability to sustain attention 8 and concentration skills sufficient to carry out work-like tasks 9 with reasonable pace and persistence, and no more than occasional 10 interaction with coworkers, supervisors, and the general public. 11 Plaintiff contends that “the restriction to simple, routine, and 12 repetitive tasks says nothing about [her] ability to concentrate 13 over a period of time, persist at tasks, or maintain a particular 14 work pace over the course of a workday or workweek.” 15 at 18). 16 describe moderate limitations in concentration, persistence, or 17 pace in a work environment.” 18 the Court disagrees. (AR 26). The hypothetical (Dkt. No. 16 Thus, Plaintiff argues that the RFC “fails to accurately (Id.). After careful consideration, 19 20 “A claimant’s residual functional capacity is what he can 21 still do despite his physical, mental, nonexertional, and other 22 limitations.” 23 Cir. 1989) (citing 20 C.F.R. § 404.1545). 24 requires the ALJ to consider a claimant’s impairments and any 25 related symptoms that may “cause physical and mental limitations 26 that affect what [he] can do in a work setting.” 27 § 404.1545(a)(1). 28 considers all relevant evidence, including residual functional Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th In determining 35 a An RFC assessment claimant’s RFC, 20 C.F.R. the ALJ 1 capacity assessments made by consultative examiners, State Agency 2 physicians and medical experts. 3 also id. § 404.1513(c). 4 ALJ, not the claimant’s physician, to determine residual functional 5 capacity.” 6 2001); see 20 C.F.R. §§ 404.1546(c) (“[T]he administrative law 7 judge . . . is responsible for assessing your residual functional 8 capacity.”), 416.946(c) (same). 20 C.F.R. § 404.1545(a)(3); see Further, “it is the responsibility of the Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 9 Consistent with Plaintiff’s treating physicians’ diagnoses, 10 11 the ALJ found that Plaintiff’s anxiety and major depressive 12 disorder are severe impairments. 13 428). 14 technique, as described in 20 C.F.R. §§ 404.1520a and 416.920a, 15 and found that Plaintiff has moderate limitations with regard to 16 concentration, persistence, or pace. 17 supported by Plaintiff’s credible statements, Dr. Ngo’s opinion, 18 and the State agency psychologists’ assessments.4 19 73, 83-85, 194, 20 the 21 restrictions than those assessed by the State agency psychologists, 22 the ALJ found that Plaintiff also has moderate limitations in 23 maintaining social functioning, which is supported by Plaintiff’s (AR 25, 403, 409, 411, 423, 424, At step three, the ALJ conducted the psychiatric review hearing 476). level (AR 26). This finding is (AR 28, 52 70- In addition, because evidence received at supported a finding of greater functional 24 25 26 27 28 4 As noted above, the ALJ found Plaintiff partially credible and rejected only Dr. Ngo’s extreme functional limitations. 36 1 credible testimony, the medical records, and Dr. Ngo’s opinion.5 2 (AR 26, 28, 476). 3 4 However, the limitations identified in step three are not an SSR 96-8p, at *4. Instead, “[t]he mental RFC 5 RFC assessment. 6 assessment . . . requires a more detailed assessment by itemizing 7 various functions contained in the broad categories found [in the 8 psychiatric review technique]” at step three. 9 mental RFC assessment “must be expressed in terms of work-related Id. at *6. Id. Further, the 10 functions.” 11 narrative discussion describing how the evidence supports each 12 conclusion, 13 findings) 14 observations).” 15 and evaluate any RFC assessments by State agency consultants or 16 consultative examiners, the ALJ is solely responsible for making 17 the RFC assessment. 18 6p, at *4; SSR 96-5p, at *2. 19 such a narrative discussion expressed in terms of work-related 20 functions. citing and “The RFC assessment must include a specific nonmedical medical evidence Id. at *7. facts (e.g., (e.g., daily laboratory activities, Finally, while the ALJ must consider 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96Dr. Ngo’s opinion did not include 21 22 As required by the SSR, the ALJ engaged in a more detailed 23 assessment of Plaintiff’s functional limitations when determining 24 Plaintiff’s RFC than when making his step-three finding. The ALJ 25 26 27 28 5 Plaintiff acknowledges that the moderate limitation in social functioning is adequately addressed by the RFC’s limitation to only occasional interaction with coworkers, supervisors, and the general public. (Dkt. No. 16 at 18). 37 1 gave some weight to the State agency psychologists’ assessments, 2 who 3 maintaining concentration, persistence, or pace, she “can learn 4 and 5 steps[,] . . . follow a schedule, make decisions and complete basic 6 work tasks on a consistent basis[, and] . . . adapt to changes and 7 handle the normal stressors of full time employment.” 8 85). 9 which found that remember despite basic Plaintiff’s work moderate instructions and difficulties tasks of in 1-2 (AR 28, 73, This finding is consistent with mental status examinations, indicted some as moderate discussed deficiencies above. When but were Plaintiff otherwise 10 unremarkable, has been 11 compliant with her medications, her symptoms have largely been 12 ameliorated. 13 restricted 14 Plaintiff’s 15 concentration, and orientation were all normal. 16 in converting Plaintiff’s moderate limitations in concentration, 17 persistence, or pace to an RFC assessment consistent with the 18 medical evidence, the ALJ limiting her to the performance of 19 simple, routine, and repetitive tasks, but with the ability to 20 sustain attention and concentration skills sufficient to carry out 21 work-like tasks with reasonable pace and persistence. 22 see also Withrow v. Colvin, 672 F. App’x 748, 749 (9th Cir. 2017) 23 (“claimants with moderate mental limitations are capable of doing 24 simple unskilled work”). In January 2015, for example, while her affect was and dysphoric appearance, and her insight speech, mood, and judgment thought fair, process, (AR 403). Thus, (AR 26); 25 26 The ALJ’s RFC assessment is supported by the State agency 27 psychologists’ opinions. “State agency medical and psychological 28 consultants are highly qualified physicians and psychologists who 38 1 are experts in the evaluation of the medical issues in disability 2 claims under the Act.” 3 reconsideration levels of the administrative review process, they 4 make 5 claimant’s RFC. 6 the ALJ must consider and evaluate when making a decision in a 7 particular case. findings of SSR 96-6p, at *2. fact Id. on the medical At the initial and issues, including the Their findings of fact become opinions that Id. 8 Here, Dr. Campbell, the State agency consultants, found that 9 10 Plaintiff is moderately 11 attention and 12 activities within a schedule, maintain regular attendance, and be 13 punctual 14 complete a normal workday and workweek without interruptions from 15 psychologically based symptoms and to perform at a consistent pace 16 without an unreasonable number and length of rest periods. (AR 17 73). not 18 significantly limited in her ability to carry out very short and 19 simple 20 without 21 proximity to others without being distracted by them; or make 22 simple work-related decisions. 23 that Plaintiff has no social interaction or adaption limitations. 24 (AR 73). 25 remember basic work instructions and tasks of 1-2 steps, follow a 26 schedule, 27 consistent basis, and adapt to changes and handle the normal 28 stressors of full time employment.” within However, or concentration customary Dr. detailed special limited in for her extended tolerances; Campbell found instructions; supervision; work ability and in (AR 73). maintain periods; in that sustain to the ability Plaintiff an ordinary coordination perform is to routine with or in Dr. Campbell also found Dr. Campbell concluded that Plaintiff can learn and make decisions and complete 39 basic (AR 73). work tasks on a On reconsideration, 1 Dr. Moura, another State agency consultant, concurred with Dr. 2 Campbell’s assessment. (AR 83-85). 3 4 The State agency consultants’ conclusion that Plaintiff is 5 capable of simple tasks of one-to-two steps, with the ability to 6 make decisions, complete tasks and adapt to changes and normal 7 stressors 8 assessment of simple, routine, and repetitive tasks, with the 9 ability to sustain attention and concentration skills sufficient 10 to carry out work-like tasks with reasonable pace and persistence. 11 See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 12 2008) 13 consistent with an RFC for simple, routine, and repetitive work). 14 However, because the medical records submitted at the hearing 15 level, including Plaintiff’s credible testimony, indicated that 16 Plaintiff has moderate limitations in social functioning, the ALJ 17 rejected the State agency psychologists’ finding that Plaintiff 18 has no social interaction limitations and limited Plaintiff to no 19 more than occasional contact with coworkers, supervisors, and the 20 general public. (AR 26). (the in the ALJ’s workplace finding of is encompassed moderate in mental the ALJ’s limitations RFC was 21 22 Plaintiff nevertheless contends that “the mental restrictions 23 presented in the accepted 24 [Plaintiff’s] 25 particular pace over the course of a workday or workweek.” 26 No. 16 at 19) (citing Brink v. Comm’r Soc. Sec. Admin., 343 F. 27 App’x 211, 212 (9th Cir. 2009) (finding that “the ALJ’s initial 28 hypothetical question to the vocational expert referenc[ing] only ability to hypothetical concentrate, 40 say persist, nothing or about maintain a (Dkt. 1 ‘simple, 2 concentration, persistence or pace . . . was error”) and Lubin v. 3 Comm’r of Soc. Sec. Admin., 507 F. App’x 709, 712 (9th Cir. 2013) 4 (“Although the ALJ found that Lubin suffered moderate difficulties 5 in maintaining concentration, persistence, or pace, the ALJ erred 6 by 7 capacity determination or in the hypothetical question to the 8 vocational expert.”)). 9 cases and therefore do not control the outcome here. not repetitive including work,’ this without limitation including in the limitations residual on functional However, Brink and Lubin are unpublished See 9th Cir. 10 R. 36-3(a) (“Unpublished dispositions and orders of this Court are 11 not precedent . . . .”). 12 Circuit 13 Danielson, 539 F.3d at 1174 (finding that RFC limiting a claimant 14 to 15 related to concentration, persistence, or pace where the assessment 16 is consistent with the restrictions identified in the medical 17 testimony”); accord Miller v. Colvin, No. CV 15-7388, 2016 WL 18 4059636, at *2 (C.D. Cal. July 28, 2016) (“ALJ may translate 19 moderate limitations into a limitation to simple repetitive tasks 20 based on record”). 21 one rational interpretation, it is the ALJ’s conclusion that must 22 be upheld.” 23 that the ALJ’s interpretation of the State agency consultants’ 24 assessments was irrational, the ALJ's decision must be upheld. decision simple, has repetitive Further, an earlier published Ninth arguably work held otherwise. “adequately captures See Stubbs- restrictions “Where evidence is susceptible to more than Burch, 400 F.3d at 679. As the Court cannot conclude 25 26 Even if the Ninth Circuit precedent were to require that 27 limitations in concentration, persistence, or pace be explicitly 28 included in the hypothetical question to the VE, the error here 41 See Buck, 869 F.3d at 1048 (“The Court may not 1 would be harmless. 2 reverse an ALJ’s decision on account of a harmless error.”). 3 ALJ 4 concentration, persistence, or pace. 5 hypothetical 6 routine, and repetitive tasks.” 7 identified by the VE were limited to those requiring only Level 2 8 reasoning. 9 DOT 920.587-018, and laundry worker, DOT 361.685-018, as jobs that 10 exist in sufficient numbers in the national economy that someone 11 with 12 <http://www.govtusa.com/dot> 13 919.687-014, 14 reasoning) (last visited August 1, 2018). 15 reasoning 16 concentration, persistence, or pace, such as Plaintiff’s. 17 v. Berryhill, 705 F. App’x 495, 498–99 (9th Cir. 2017) (“The RFC 18 determination limiting Turner to ‘simple, repetitive tasks,’ which 19 adequately 20 concentration, 21 requiring Level 2 reasoning.”); cf. Zavalin v. Colvin, 778 F.3d 22 842, 23 between [the claimant’s] limitation to simple, routine tasks, and 24 the requirements of Level 3 Reasoning”). acknowledged that question Plaintiff restricted moderate (AR 26). Plaintiff (AR 32). restrictions in However, the ALJ’s only to “simple, Nevertheless, the jobs (AR 30) (identifying cleaner, DOT 919.687-014, packer, Plaintiff’s 846 has The RFC 920.587-018, adequately and 2015) or perform); classified 361-685-018 Turner’s persistence, Cir. (jobs encompass encompasses (9th could moderate (finding is “an DOT involve numbers Level 2 Jobs with Level 2 moderate pace, with see difficulties Turner difficulties compatible inherent in with in jobs inconsistency 25 26 In sum, the ALJ has the sole authority to review medical and 27 other record evidence and translate the evidence into work related 28 functions. 20 C.F.R. §§ 404.1527(d)(2) (“your residual functional 42 1 capacity” is an issue “reserved 2 416.927(d)(2) (same). 3 one rational interpretation, it is the ALJ’s conclusion that must 4 be upheld.” the Commissioner”), 5 that the ALJ’s RFC determination was irrational, the ALJ’s decision 6 must be upheld. 7 Plaintiff 8 repetitive tasks. 9 is responsible for translating claimant’s impairments into work- 10 related functions and determining RFC); see also Tommasetti v. 11 Astrue, 533 F.3d 1035, 1041–42 (9th Cir. 2008) (“The ALJ is 12 responsible for determining credibility, resolving conflicts in 13 medical 14 omitted). 15 substantial evidence, no remand is required. “Where evidence is susceptible to more than Burch, 400 F.3d at 679. has to As the Court cannot conclude As discussed above, the ALJ properly found that the testimony, ability to perform simple, routine, and See Stubbs-Danielson, 539 F.3d at 1174–76 (ALJ and for resolving ambiguities.”) (citation Thus, because the ALJ’s RFC assessment is supported by 16 17 18 19 20 21 22 23 24 25 26 27 28 43 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. 8 9 DATED: August 2, 2018 10 11 12 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 17 18 19 20 21 22 23 24 25 26 27 28 44 IN WESTLAW,
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