Vargas Nava v. Kijakazi, No. 3:2020cv01498 - Document 17 (S.D. Cal. 2022)
Court Description: ORDER denying 14 Plaintiff's Motion for Summary Judgment; Granting 15 Defendant's Motion for Summary Judgment. The ALJs decision is affirmed. Case is Closed. Signed by Magistrate Judge Bernard G. Skomal on 9/12/2022. (exs)
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Vargas Nava v. Kijakazi Doc. 17 Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.616 Page 1 of 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CRISTIAN N., Case No.: 20-cv-1498-BGS Plaintiff, 12 13 v. 14 KILOLO KIJAKAZI, Commissioner of Social Security,1 15 ORDER (1) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT and (2) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 16 17 18 [ECF 14-15] 19 20 I. 21 INTRODUCTION Plaintiff Cristian N. (“Plaintiff”) filed a Complaint seeking judicial review of the 22 Commissioner of the Social Security Administration’s (“Commissioner” or “Defendant”) 23 denial of disability insurance benefits under the Social Security Act, (ECF 1), and the 24 Commissioner has filed the Administrative Record (ECF 13). 25 26 27 28 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021 and is therefore substituted for Andrew Saul as Defendant. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 1 20-cv-1498-BGS Dockets.Justia.com Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.617 Page 2 of 30 1 Plaintiff’s Motion for Summary Judgment seeks reversal of the final decision 2 denying benefits and an order for the payment of benefits or, in the alternative that the 3 Court remand the case for further administrative proceedings. (ECF 14.) Plaintiff argues 4 the Administrative Law Judge (“ALJ”) failed to provide clear and convincing reasons 5 supported by substantial evidence for rejecting Plaintiff’s testimony. (ECF 14 at 4-16. 2) 6 The Commissioner’s Opposition to Plaintiff’s Motion argues that the ALJ provided 7 numerous reasons for discounting Plaintiff’s allegations, including the objective medical 8 evidence, Plaintiff’s treatment history, Plaintiff’s activities of daily living, and that the 9 ALJ also properly relied on the medical-opinion evidence. (ECF No. 15.) Plaintiff did not 10 file a Reply brief.3 11 After careful consideration of the parties’ arguments, the Administrative Record and 12 the applicable law and for the reasons discussed below, Plaintiff’s Motion for Summary 13 Judgment is DENIED and the Commissioner’s Cross Motion for Summary Judgment is 14 GRANTED. 15 II. 16 PROCEDURAL HISTORY4 Plaintiff’s applications for disability benefits, alleging disability commencing on 17 January 18, 2018, were denied initially on July 17, 2018 and on reconsideration on 18 October 2, 2018. (AR 57-69 (initially); AR 71-83 (reconsideration).) At Plaintiff’s 19 request, a hearing was held before an ALJ on August 2, 2019. (AR 33-56 (hearing 20 transcript), 99-100 (request for hearing).) The ALJ issued an unfavorable decision on 21 September 6, 2019. (AR 21-31.) Plaintiff’s request for Appeals Council review was 22 23 2 24 25 26 27 28 Unless otherwise noted, the Court cites the CM/ECF electronic pagination for the parties’ briefs and the Administrative Record pagination for cites to it. 3 Plaintiff did file a Notice of New Authority related to the constitutionality of the appointment of the Commissioner of Social Security (ECF 16) that the Court briefly addresses below. (See Section V.) 4 The following procedural history is drawn largely from Plaintiff’s summary of the case and Defendant’s introduction and procedural background. (ECF 14-1 at 2; ECF 15 at 3.) Because this history is not in dispute, it is only briefly summarized. 2 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.618 Page 3 of 30 1 denied on June 4, 2020. (AR 2-8 (denial), 175 (request for review).) 2 III. 3 ALJ DECISION The decision explains the five-step evaluation process for determining whether an 4 individual is eligible for disability benefit and then proceeds through steps one through 5 five of the evaluation process. (AR 21-31.5) At step two, the ALJ found Plaintiff had the 6 following medically determinable severe impairments: “neurocognitive disorder 7 secondary to childhood petroleum ingestion; borderline intellectual functioning; and 8 major depressive disorder.” (AR 24.) The ALJ found other medically determinable 9 impairments were not severe. (AR 24.) 10 The ALJ found Plaintiff did not meet a listing at step three, specifically 11 considering listings 12.02, 12.04, and 12.11 and evaluating the “paragraph B” criteria. 12 (AR 24-25.) The ALJ found Plaintiff had moderate limitation as to understanding, 13 remembering, or applying information; mild limitation in interacting with others; 14 moderate limitation in concentrating, persisting, or maintaining pace; and mild limitation 15 in adapting or managing himself. (AR 24-25.) 16 In conducting this analysis, the ALJ made findings that identified Plaintiff’s 17 reports of difficulties, including with memory and his ability to follow written 18 instructions, (AR 24), and being unable to maintain concentration to complete tasks (AR 19 25). Then, as to each of these areas and two others—interacting with others and adapting 20 or managing oneself—the ALJ made findings as to what Plaintiff could do in each area 21 with detailed citations of the record. (AR 24-25.) 22 23 After clarifying that the “paragraph B criteria” are not a residual functional capacity (“RFC”), the ALJ then assessed the following RFC: 24 After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all 25 26 27 28 5 The Court only briefly summarizes the ALJ decision here. Relevant portions of the decision, including discussion of the specific records the ALJ cited and relied on for the decision’s findings, are discussed in greater detail below. 3 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.619 Page 4 of 30 1 2 3 4 exertional levels but with the following non-exertional limitations: noncomplex routine tasks that are goal oriented, can be taught with visual demonstration, and do not require a fast production pace, such as conveyor belt or assembly line jobs; simple work-related decisions; and maintain concentration for two-hour periods with normal breaks in the workday to address lapses in concentration. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (AR 25-26.) The decision then explains that in making this finding as to Plaintiff’s RFC, the ALJ has considered all Plaintiff’s symptoms taking into account their consistency with the objective medical evidence and other evidence as well as the medical opinions. (AR 26.) The ALJ then explains the two-step process to evaluate Plaintiff’s symptoms. (AR 26.) The decision identifies the first step as determining if an underlying impairment could reasonably be expected to produce Plaintiff’s symptoms. (AR 26.) The ALJ describes the second step as an evaluation of the intensity, persistence and limiting effects of Plaintiff’s symptoms to determine the extent to which they limit Plaintiff’s functional limitations. (AR 26) The ALJ notes that whenever Plaintiff’s statements about the severity of his “symptoms are not substantiated by objective medical evidence, [the ALJ] must consider other evidence in the record to determine if the claimant’s symptoms limit the ability to do work-related activities.” (AR 26.) The decision summarizes Plaintiff’s allegations and testimony as follows: The claimant alleges disability due to depression, anxiety, borderline intellectual functioning, and neurocognitive disorder secondary to childhood petroleum ingestion. At the hearing, the claimant testified that he experiences depressed and anxious mood, sleep disturbance, short term memory loss, and cognitive deficits. The claimant also testified that these symptoms limit the ability to engage in daily activities that involve short-term memory and adaptive functioning, such as maintaining personal hygiene, preparing meals, managing his medication, traveling, and making plans for himself independently of 28 4 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.620 Page 5 of 30 1 2 his spouse. Furthermore, the claimant testified that he is unable to leave his home without getting lost. 3 (AR 26.) 4 The ALJ then finds Plaintiff’s “statements concerning the intensity, 5 persistence and limiting effects of these symptoms are not entirely consistent with 6 the medical evidence and other evidence in the record for the reasons explained in 7 this decision.” (AR 26.) The decision identifies evidence in the record indicating a 8 history of “depressed mood, sleep disturbance, and cognitive deficits—i.e., 9 forgetfulness as well as difficulty with reading and writing—associated with 10 neurocognitive disorder secondary to childhood petroleum ingestion, borderline 11 intellectual functioning, and major depressive disorder.” (AR 26.) The ALJ then 12 finds Plaintiff’s testimony inconsistent with the record, making findings as to 13 decreases in the severity of symptoms with treatment and summarizing numerous 14 normal findings in medical reports and a consultive examination. (AR 27.) The 15 ALJ also addresses Plaintiff’s daily activities. (AR 27.) 16 The decision then addresses four medical opinions. (AR 27-28.) The ALJ 17 explains the extent to which each is persuasive based primarily on the degree they 18 are supported by the medical records and consistent with other evaluations of 19 Plaintiff. (AR 27-28.) The decision then finds Plaintiff’s spouse’s testimony not 20 persuasive because of its inconsistency with Plaintiff’s psychological evaluation 21 and results of an intelligence test, as well as conflicting with her hearing testimony 22 that Plaintiff is able to stay home by himself while she is at work. (AR 28.) 23 Relying in part on testimony from a vocational expert, the ALJ determined 24 at step four that Plaintiff could do his past relevant work as a hospital food service 25 worker or housekeeping cleaner. (AR 29.) The ALJ found, in the alternative, that at 26 step five, there were other jobs in the national economy that Plaintiff was also able 27 to perform: industrial cleaner, laundry worker, and kitchen helper. (AR 29-30.) 28 5 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.621 Page 6 of 30 1 IV. DISCUSSION 2 Plaintiff argues the ALJ failed to provide clear and convincing reasons for 3 rejecting Plaintiff’s testimony regarding the severity of his symptoms. (ECF 14-1 at 4- 4 14.) Plaintiff argues: (1) the ALJ’s findings that Plaintiff’s treatment had been successful 5 in managing the severity of his symptoms failed to acknowledge that the treatment did 6 not completely resolve or fully manage the severity of his symptoms (id. at 6-9); (2) the 7 ALJ’s reliance on normal findings in an MRI 6 and a consultive examination did not 8 consider contrary portions of the records or limitations of them (id. at 9-11); (3) the 9 ALJ’s analysis of Plaintiff’s daily activities relied on particular treatment notes to the 10 exclusion of others and did not explain how the activities he could actually do contradict 11 his testimony (id. at 11-16). 12 Defendant argues Plaintiff’s symptoms are simply not as severe as Plaintiff claims 13 and the ALJ provided numerous reasons supported by substantial evidence for finding 14 Plaintiff’s symptom allegations were not as severe as he asserted. (ECF 15 at 5-10.) 15 Defendant argues the ALJ appropriately relied on: Plaintiff’s treatment history, conflicts 16 between Plaintiff’s daily activities and his testimony; and numerous medical opinions, 17 unchallenged by Plaintiff, that all found Plaintiff was more capable than he alleged. (Id. 18 at 5-10.) Defendant also emphasizes that the ALJ did not find Plaintiff’s treatment 19 completely resolved his symptoms as Plaintiff suggests, but instead that they improved 20 with treatment. (Id. at 8-9.) 21 A. 22 The ALJ must engage in “a two-step analysis to determine whether a claimant’s Applicable Legal Standard 23 testimony regarding subjective pain or symptoms is credible.” Trevizo v. Berryhill, 871 24 F.3d 664, 678 (9th Cir. 2017) (“We have established a two-step analysis for determining 25 the extent to which a claimant’s symptom testimony must be credited.”); Garrison v. 26 27 6 28 The Court notes that the report cited by Plaintiff and relied on by the ALJ is from a “CT BRAIN W/O CONTRAST.” 6 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.622 Page 7 of 30 1 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 2 1035-36 (9th Cir. 2007)); 20 C.F.R. § 404.1529 (Describing how the Commissioner 3 evaluates symptoms); see also SSR 16-3p, 2017 WL 5180304, at *2-3 (Detailing the 4 Commissioner’s two-step process for evaluating symptoms). 5 At the first step, “the ALJ must determine whether the claimant has presented 6 objective medical evidence of an underlying impairment which could reasonably be 7 expected to produce the pain or other symptoms alleged.” Garrison, 871 F.3d at 678. 8 When the claimant satisfies the first step and there is no determination of 9 malingering by the ALJ, at the second step, “the ALJ must provide ‘specific, clear, and 10 convincing reasons for’ rejecting the claimant’s testimony regarding the severity of the 11 claimant’s symptoms.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 12 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); Smith v. 13 Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021); Garrison, 759 F.3d at 1014-15; Parra v. 14 Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citations omitted). Plaintiff accurately 15 indicates, and Defendant does not dispute, the ALJ found that Plaintiff satisfied the first 16 step. (ECF 14-1 at 5; AR 26 (“I find that the claimant’s medically determinable 17 impairments could reasonably be expected to cause the alleged symptoms”).) 18 “[T]he ALJ must identify the specific testimony that he discredited and explain the 19 evidence undermining it.” Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020); see also 20 Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is 21 not credible and what facts in the record lead to that conclusion.”). The ALJ’s findings 22 must be “sufficiently specific to permit the court to conclude that the ALJ did not 23 arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 24 (9th Cir. 2008). 25 In assessing a claimant’s characterization of their symptoms, the “ALJ may weigh 26 inconsistencies between the claimant’s testimony and his or her conduct, daily activities, 27 work record” and “testimony from physicians and third parties concerning the nature, 28 severity and effect of the symptoms of which he complains.” Bray v. Comm’n of Soc. 7 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.623 Page 8 of 30 1 Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009) and Light v. Soc. Sec. Admin., 119 2 F.3d 789, 792 (9th Cir. 1997) (citations omitted); 20 C.F.R. § 404.1529; SSR 16-3p at *6- 3 8. 7 4 Courts “reverse only if the ALJ’s decision was not supported by substantial 5 evidence in the record as a whole or if the ALJ applied the wrong legal standard.” Ahearn 6 v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). “If the ALJ’s finding is supported by 7 substantial evidence, the court ‘may not engage in second-guessing.’” Tommasetti, 533 8 F.3d at 1039 (quoting Thomas v Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). Substantial 9 evidence “means—and means only—such relevant evidence as a reasonable mind might 10 accept as adequate to support a conclusion.” Ahearn, 988 F.3d at 1115 (quoting Biestek v. 11 Berryhill, 139 S. Ct. 1148, 1154 (2019)). “[T]he threshold for such evidentiary 12 sufficiency is not high.” Biestek, 139 S. Ct. at 1154. “The ‘evidence must be more than a 13 mere scintilla but not necessarily a preponderance.’” Tommasetti, 533 F.3d at 1038 14 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Ahearn, 988 15 F.3d at 1115 (“The evidence must be more than a mere scintilla but may be less than a 16 preponderance.”). “To determine whether substantial evidence supports the ALJ’s 17 determination, we must assess the entire record, weighing the evidence both supporting 18 and detracting from the agency’s conclusion.” Ahearn, 988 F.3d at 1115 (citing Mayes v. 19 Massanari, 276 F.3d 453 459 (9th Cir. 2001)). However, courts “may not reweigh the 20 21 7 22 23 24 25 26 27 28 The Court notes that some cases articulating the analysis under the second step use the term credibility, and SSR 16-3p explicitly removed the term “credibility” from the Commissioner’s sub-regulatory policy. However, the Ninth Circuit has explained that SSR 16-3p “makes clear what our precedent already require: the assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p). Regardless of the use of the term credibility, the Court’s application of Ninth Circuit authority here is consistent with Trevizo’s explanation of credibility and SSR 16-3p. 8 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.624 Page 9 of 30 1 evidence or substitute our judgment for that of the ALJ.” Id. “Where the evidence is 2 susceptible to more than one rational interpretation, one of which supports the ALJ’s 3 decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954 (citing Morgan 4 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). 5 B. 6 Plaintiff’s Motion is organized into three main issues: (1) Plaintiff’s treatment Analysis 7 (ECF 14-1 at 6-9); (2) no abnormality assessed in MRI nor at the consultive examination 8 (id. at 9-11); and (3) activities of daily living (id. at 11-14). Defendant addresses each of 9 these issues and also raises an additional reason the ALJ decision should be affirmed that 10 was unaddressed by Plaintiff—numerous medical opinions that did not find him as 11 limited as he alleged. (ECF 15 at 7-8, 10.) The Court largely follows this organization of 12 the issues. 1. Objective Medical Evidence8 13 14 Plaintiff identifies the following errors in the ALJ’s analysis of the objective 15 medical evidence: (1) relying on the lack of intracranial abnormality in brain imaging; (2) 16 relying on treatment reports for normal findings without addressing other portions 17 showing only minimal improvement; and (3) cherry picking portions of the consultive 18 examination report. (ECF 14-1 at 9-11.) Defendant counters that the ALJ did not cherry 19 pick the medical evidence relied on. (ECF 15 at 8.) Rather, the ALJ appropriately 20 assessed mild-to-moderate limitations from depression, anxiety, sleep disturbance, and 21 cognitive deficits and identified normal findings indicating Plaintiff was capable of the 22 range of mental functioning assessed in the RFC. (ECF 15 at 6-7, 8 (citing AR 24-29 23 (ALJ decision) and AR 357, 381, 399, 493-95.) 24 25 8 26 27 28 Plaintiff’s second issue is “No abnormality assessed in MRI nor at the consultive examination.” However, given Defendant raises the objective medical evidence as a reason the ALJ properly relied on for discounting Plaintiff’s testimony, the Court addresses both parties’ arguments regarding the objective medical evidence in this section. 9 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.625 Page 10 of 30 1 The ALJ begins the analysis of the objective medical evidence by identifying 2 Plaintiff’s allegations of disabling limitation in mental functioning. (AR 27.) This is 3 consistent with the ALJ’s summary of his testimony that he was unable to engage in 4 activities “involv[ing] short-term memory and adaptive functioning” and an inability to 5 “leave home without getting lost.” (AR 26.) The ALJ then goes on to identify a list of 6 normal findings in brain imaging, mood, affect, intact long-term memory, and ability to 7 follow verbal commands. (AR 27 (citing AR 415 [Ex. 3F at 24], AR 337 [Ex. 14E at 2], 8 AR 381 [Ex. 2F at 3], AR 493-94 [Ex. 8F at 3-4].9) The ALJ also relies on a consultive 9 examination report provided by Dr. Whitehead indicating Plaintiff has normal thought 10 processes, normal thought content, adequate general memory, the ability to perform 11 simple mathematical calculations, and is in the borderline range in an assessment of 12 nonverbal intelligence. (AR 27 (citing AR 493-95 [Ex. 8F at 3-5]).) The Court’s own 13 review of the records cited by the ALJ indicates that each of them supports the 14 proposition they are cited for and provides substantial evidence in support of the ALJ’s 15 finding that they do not support the level of disabling limitation in mental functioning 16 that Plaintiff alleges. Biestek, 139 S. Ct. at 1154 (Finding substantial evidence “means— 17 and means only—such relevant evidence as a reasonable mind might accept as adequate 18 to support a conclusion.”) (citations omitted). 19 Plaintiff asserts that the ALJ was “simply not qualified to interpret raw medical 20 data in functional terms” as to the finding of no intracranial abnormality. (ECF 14-1 at 9.) 21 However, the ALJ did not interpret Plaintiff’s CT scans. The record cited is a radiology 22 report (“CT report”) with findings as to numerous areas of the brain followed by a 23 24 25 26 27 28 9 The ALJ also discusses these findings, among others, earlier in the decision in addressing limitations in: understanding, remembering, or applying information (AR 2425); concentrating, persisting, or maintaining pace (AR 25); and adapting or managing oneself (AR 24). The ALJ addresses Plaintiff’s allegations of difficulty with memory and being unable to follow written instruction as well as his reports of being unable to maintain concentration to complete tasks. (AR 24-25.) 10 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.626 Page 11 of 30 1 “Conclusion” section that indicates “no intracranial abnormality.” (AR 415 [Ex. 3F at 2 24].) The ALJ appropriately relied on it for that conclusion. (AR 27 (“no intracranial 3 abnormality was revealed by diagnostic imaging of the brain in November 2017.”).) 4 Plaintiff argues the “ALJ fails to identify that a neurologist (Dr. Kristoffer) 5 interpreted the normal brain scan that it is reassuring and therefore was able to create a 6 plan to help [Plaintiff] with his worsening cognitive limitations.” (ECF 14-1 at 9 (citing 7 AR 359 [Ex. 1F at 10]).) Plaintiff does not explain why the ALJ was required to discuss 8 Dr. Kristoffer’s treatment note interpreting the CT scans or, more importantly, how it 9 would have undermined the ALJ’s reliance on this normal finding in the CT report. The 10 Court assumes Plaintiff is arguing this portion of the treatment note was of significance 11 because Dr. Kristoffer also identified the need to address Plaintiff’s cognitive deficits. 12 However, as explained below, the ALJ did not find Plaintiff did not have cognitive 13 deficits. (AR 26.) Additionally, as to interpretation of the brain scan, Dr. Kristoffer’s 14 treatment note supports rather than undermines the ALJ’s quoted conclusion from the CT 15 report. It adds additional positive findings from the CT report, “virtually no atrophy or 16 white matter changes” which Dr. Kristoffer finds “reassuring.” (AR 359, AR 415 (CT 17 report).) This interpretation reiterates some of the specific findings from the CT report 18 and, like the ALJ, interprets it favorably. (AR 359.) 19 Additionally, the lack of explicit acknowledgement that Plaintiff has cognitive 20 deficits in this specific paragraph of the ALJ’s decision does not undermine the ALJ’s 21 assessment of the objective medical evidence. The ALJ already found “[t]he evidence 22 within the record reflects a history of depressed and anxious mood, sleep disturbance, and 23 cognitive deficits—i.e., forgetfulness as well as difficulty with reading and writing— 24 associated with neurocognitive disorder secondary to childhood petroleum ingestion, 25 borderline intellectual functioning, and major depressive disorder.” (AR 26.) The ALJ did 26 not mischaracterize Plaintiff’s condition or cherry pick this CT report. The ALJ cited it as 27 a normal finding, along with numerous other normal findings, to support the conclusion 28 that Plaintiff’s allegations of disabling limitations in mental functioning were not 11 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.627 Page 12 of 30 1 consistent with this objective medical evidence. (AR 27.) The ALJ did not indicate 2 Plaintiff had no deficits because of this normal finding, nor was that necessary. Rather, 3 the ALJ indicates his mental functioning is not as severe as alleged because of this and 4 other normal finding in the objective medical evidence. (AR 24-25, 27.) 5 As to the treatment reports the ALJ cited for normal mood and affect, intact long- 6 term memory, and Plaintiff’s ability to follow verbal command’s appropriately, Plaintiff 7 seems to argue that the ALJ should not have relied on these findings because the 8 treatment notes also indicated Plaintiff had only minimal improvement in sleep, waking 9 at 3:00 AM, and ongoing depression. (ECF 14-1 at 10.) However, those symptoms do not 10 change that Plaintiff was assessed as having normal mood and affect, his long-term 11 memory was intact, and that he followed commands appropriately. (AR 337 [Ex. 14E at 12 2], AR 381 [Ex 2F at 3].) If anything, that Plaintiff was suffering from insomnia and 13 depression, but still demonstrated normal mood and affect, intact long-term memory, and 14 the ability to follow verbal commands, might support rather than undermine the ALJ’s 15 findings because the findings are still normal despite those remaining issues. Again, the 16 ALJ did not conclude that these findings meant Plaintiff did not suffer from insomnia, 17 depression, anxiety, and cognitive deficits. (AR 26.) The ALJ simply found Plaintiff’s 18 allegations of disabling limitations in mental functioning were not consistent with these 19 normal findings in his treatment reports. The lack of support in medical evaluations for a 20 plaintiff’s complaint undermines those complaints. See Morgan, 169 F.3d at 600 21 (Approving ALJ’s reliance on inconsistency between a plaintiff’s complaints and 22 physicians’ reports). 23 The Court is also not persuaded that the ALJ erred in relying on certain findings 24 from Dr. Whitehead’s evaluation without discussing the findings cited by Plaintiff. 25 Plaintiff argues the ALJ cherry picked the positive findings supportive of her assessment. 26 (ECF 14-1 at 10.) Plaintiff points to the examination indicating anxious mood with a flat 27 affect showing few signs of emotional expression, Plaintiff’s inability to count down 28 from ten to one, and the evaluator’s reliance on mathematical calculations instead of 12 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.628 Page 13 of 30 1 serial threes or sevens. (Id. at 10.) Plaintiff also asserts the assessment of adequate 2 general memory conflicted with the memory for designs test where Plaintiff was at the 3 borderline intellect level. (Id. at 10.) 4 Again, the Court is not persuaded that the ALJ was required to explicitly discuss 5 every finding in the evaluation in order to rely on it for the propositions that Plaintiff was 6 “fully alert and oriented with normal thought processes, normal thought content, and 7 adequate general memory during his psychological consultive examination,” that the 8 “examination report documents the claimant’s ability to perform mathematical 9 calculations,” and shows Plaintiff scored in the borderline range on a standardized test of 10 nonverbal intelligence. (AR 27.) The ALJ appropriately relied on findings from a 11 psychologist’s report. (AR 28.) 12 Additionally, to address other points raised by Plaintiff further, the Court is not 13 persuaded the ALJ erred in not specifically discussing Plaintiff’s claimed inability to 14 count down from ten. Dr. Whitehead’s report indicates “[h]e reports that he was not able 15 to perform a countdown from ten to one.” (AR 494 [Ex. 8F at 4].) And then states, 16 “[h]owever, I did not have much confidence that the claimant was putting forth much 17 effort.” (AR 494. 10) While the Court need not speculate, because the ALJ was not 18 required to discuss every detail of the report to rely on it, it is possible the ALJ did not 19 discuss that information because the report itself indicates it might be an unreliable 20 finding. 21 The Court is also not persuaded the ALJ erred in relying on the report because 22 serial threes and sevens were not part of the exam. (ECF 14-1 at 10.) Although serial 23 threes or sevens might be commonly used for mental status exams, as asserted by 24 25 10 26 27 28 In the assessment portion of the report, it indicates “his scores are viewed with a lower level of confidence than in some cases, due to what seemed to be less than full effort such as giving up without trying or just stating that the testing tasks could not be performed, possibly resulting in lower scores than the claimant is truly capable of.” (AR 495 [Ex. 8F at 5]).) 13 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.629 Page 14 of 30 1 Plaintiff, 11 he fails to cite the Court to any authority that would allow this Court to 2 substitute its judgment for that of a psychologist as to what tests should be used. Nor can 3 the Court find the ALJ erred in relying on the report because the psychologist 4 administering the exam decided not to use serial threes or sevens. Additionally, although 5 Plaintiff argues there is a contradiction in the psychologist’s assessment of adequate 6 general memory and the borderline intellect level on the Memory for Designs Test 7 (MFD), (ECF 14-1 at 10 (citing AR 493 and 495), the report itself addresses this test and 8 Plaintiff’s lack of memory issues. (AR 495). It states, “[h]e performed in the borderline 9 range on the TONI-4 today, with MFD scores consistent with that. Thus, there is no 10 indication of memory problems, since his memory and intellectual abilities are 11 borderline, and this is likely a life-long level of function.” (AR 495.) The ALJ did not err 12 in relying on Dr. Whitehead’s report for these findings. 13 Collectively, the ALJ did not err in her reliance on the objective medical evidence 14 cited nor can the Court find the ALJ cherry picked the medical evidence cited to the 15 exclusion of contradictory medical evidence. 16 2. Treatment 17 Plaintiff asserts that the ALJ’s finding that Plaintiff’s depression, anxiety, and 18 sleep disturbance decreased in severity with medication and that his cognitive deficits 19 improved and stabilized with management of these conditions is not a clear and 20 convincing reason. (ECF 14-1 at 6-7.) In support of this argument, Plaintiff discusses 21 each exhibit cited by the ALJ. As detailed below, Plaintiff argues the exhibits do not 22 support the ALJ’s finding because other portions of each treatment record disclose that 23 the treatment was only partially effective or the ALJ’s analysis of them lacked important 24 25 11 26 27 28 The website identified in Plaintiff’s brief is an abstract of an article reporting on a study of the benefits of standardizing the use of these tests. (ECF 14-1 at 10 n.2.) It also notes the lack of uniform administration has led some to conclude they are not useful. There is nothing that would indicate these tests are required or whether they are better or worse than mathematical calculations. 14 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.630 Page 15 of 30 1 information. (ECF 14-1 at 6-7 (discussing AR 336 [Ex. 14E at 1], AR 359 [Ex. 1F at 10], 2 AR 380-81 [Ex. 2F at 2-3], AR 427 [Ex. 3F at 36], AR 442 [Ex. 5F at 4]).) 3 Defendant, relying primarily on the same records Plaintiff addressed, argues the 4 ALJ properly relied on Plaintiff’s longitudinal treatment records to conclude treatment 5 was effective in managing the severity of Plaintiff’s symptoms. (ECF 15 at 7.) Defendant 6 notes, relying on AR 336, 359, and 381, that Plaintiff began medication in December 7 2017, just a month before his alleged onset date, and almost immediately reported some 8 improvement. (ECF 15 at 7.) Defendant argues the ALJ was not finding Plaintiff’s 9 impairments were resolved by treatment, as Plaintiff suggests. (ECF 15 at 8-9 10 (Explaining that “the ALJ nowhere found medication cured Plaintiff’s mental 11 impairments or otherwise rendered him symptom free.”).) Defendant then points out that 12 even with medication, the ALJ found “Plaintiff’s neurocognitive disorder, borderline 13 intellectual functioning, and major depressive disorder continued to be severe 14 impairments that rendered him unable to perform more” than the RFC assessed by the 15 ALJ. (ECF 15 at 9 (citing AR 24, 26).) As discussed further below, Defendant does not 16 specifically address Plaintiff’s argument regarding AR 442 or AR 487, the June 14, 2018 17 treatment notes that address Plaintiff’s medication change. 18 Plaintiff argues AR 336, part of a treatment note relied on by the ALJ, indicates 19 that medication helps with his anxiety, but also indicates he still has anxiety and it only 20 partially helps. (ECF 14-1 at 7 (discussing AR 336 [Ex. 14E at 1].) Plaintiff asserts that 21 the ALJ presented the anxiety as completely resolved and this is incorrect given the note 22 indicates medication only partially helps. (ECF 14-1 at 7.) As to two other treatment 23 notes the ALJ cited, Plaintiff acknowledges that they indicate Plaintiff’s sleep has 24 improved with medication. (ECF 14-1 at 8 (discussing AR 380-81 [Ex. 2F at 2-3] and AR 25 427 [Ex. 3F at 36]).) However, he argues, as to AR 380-81 that “[c]onveniently missing 26 from the ALJ’s assessment of that treatment note is that although [Plaintiff] stated that 27 the medication has improved his sleeping, it continues to be poor.” (ECF 14-1 at 8.) And, 28 as to AR 427, Plaintiff argues the ALJ relied on the subjective portion of the statement 15 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.631 Page 16 of 30 1 that indicated “its helping.” (ECF 14-1 at 8.) Plaintiff also argues AR 359, another 2 portion of a treatment note relied on by the ALJ, did not say that the medication would 3 improve Plaintiff’s symptoms to a normal level or that the severity was managed. (ECF 4 14-1 at 7-8 (discussing AR 359 [Ex. 1F]).) Plaintiff points to the portion of the note that 5 says Plaintiff’s “depression and anxiety may result in worsening cognitive deficits due to 6 impairment in attention and concentration.” (ECF 14-1 at 7-8 (citing AR 359).) 7 The Court agrees that the ALJ did not find Plaintiff’s symptoms resolved based on 8 these or any other treatment records. In discounting Plaintiff’s statements regarding the 9 intensity, persistence, and limiting effects of his symptoms, the ALJ found Plaintiff’s 10 “treatment . . . successful in managing the severity of the claimant’s disabling 11 conditions.” (AR 27 (emphasis added).) Then, the ALJ states, [s][pecifically, treatment 12 records reveal that [Plaintiff’s] depression, anxiety, and sleep disturbance decreased in 13 severity with the use of medication—sedatives and antidepressants—which were first 14 prescribed on December 28, 2017.” (AR 27 (citing AR 336-37 [Ex. 14E at 1-2], AR 380- 15 81 [Ex. 2F at 2-3], AR 427 [Ex. 3F at 36]) (emphasis added).) 16 In this respect, these records are not “conveniently missing” important information 17 related to the medication only helping partially or that sleep is still poor despite helping. 18 As to AR 336, 380-81, and 427, the indications in the treatment notes that Plaintiff still 19 experienced symptoms or that the medication only partially resolved them does not, in 20 isolation, undermine the ALJ’s finding that medication managed the severity of his 21 symptoms. 22 As to AR 359, the language Plaintiff quotes—Plaintiff’s “overlying depression and 23 anxiety may result in worsening cognitive deficits due to impairment in attention and 24 concentration”—also does not undermine the ALJ’s finding. (ECF 14-1 at 7-8 (citing AR 25 359 [Ex. 1F at 10]).) Not only is this a forward-looking statement explaining why the 26 physician plans to “address his mood symptoms and insomnia to uncover if any true 27 progressive deficits exist,” but it also suggests that decreasing the severity of symptoms is 28 anticipated with medication. (AR 359.) This December 28, 2017 visit appears to be 16 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.632 Page 17 of 30 1 Plaintiff’s first with Dr. Kristoffer. (Id.12) While it does not indicate improvement, it 2 states his mood symptoms and insomnia are being addressed, conveys the expectation 3 that these symptoms will improve with medication, and identifies this as the point when 4 Plaintiff started receiving medication to treat depression and anxiety. (AR 359 (“Will 5 proceed by treating depression and anxiety. Start citalopram 10 mg po qd x 14 days, the 6 increase to 20mg po qd until next visit . . . Start melatonin 5mg po qhs for sleep”).)13 7 Although not a record indicating symptoms are already managed or decreasing with 8 treatment, the ALJ did not err in citing it, along with other records, to support these 9 findings. 10 Plaintiff’s argument as to AR 442 is different. Plaintiff argues that it does not 11 support the ALJ’s finding because it actually indicates Plaintiff had to stop taking one 12 medication because of a suboptimal response to it and start another. (ECF 14-1 at 8 13 (discussing AR 442 [Ex. 5F at 4]) and citing AR 487 [Ex. 6F at 31]).) Plaintiff also 14 argues it should not be relied on because it was incomplete and not signed. (ECF 14-1 at 15 8 (citing AR 441-43).) Overall, Plaintiff argues the ALJ ignored or misstated important 16 evidence in these treatment notes that did not support the ALJ’s RFC instead of 17 considering the record as a whole. (ECF 14-1 at 9 (citing Gallant v. Heckler, 753 F.2d 18 1450, 1456 (9th Cir. 1984)).) 19 This particular treatment note was not explicitly addressed by Defendant. It is not 20 clear if the note is incomplete or a version of it that lacks information provided in a more 21 complete duplicate treatment note for the same visit. (AR 442 [Ex. 5F at 4] (cited by the 22 ALJ), AR 487 [Ex. 6F at 31] (cited by Plaintiff).) Regardless, it does not indicate that 23 Plaintiff has been helped by, seen a decrease in the severity of symptoms, or otherwise 24 25 12 26 27 28 The treatment note indicates Plaintiff was referred for “evaluation and management of cognitive changes” (AR 352) and later in the same treatment record indicates “this patient was new to me and my clinic.” (AR 368.) 13 A later treatment record confirms this assessment. (AR 487 (“I believe his [cognitive deficits are] static with apparent worsening due to depression.”). 17 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.633 Page 18 of 30 1 suggest he is benefiting from taking medication with the exception of simply indicating 2 he is taking medication. (AR 442.) However, it indicates that he is switching from one 3 medication to another and identifies a new medication added for sleep. (AR 442.) A 4 different record cited by Plaintiff from the same doctor covering the same visit explains 5 the change. (AR 487.) It indicates that “[u]nfortunately he has had a suboptimal response 6 to citalopram even at 40 mg po qd. It is reasonable to try another SSRI in attempt to 7 obtain a more robust response.” (AR 487.) The ALJ does not specifically address the 8 medication change disclosed in the record the ALJ cited (AR 442) or address the reason 9 for the medication change in a treatment record for the same visit, i.e. the “suboptimal 10 response” to the existing medication that required a change to “obtain a more robust 11 response.” (AR 487.) 12 These two records alone do not support the ALJ’s finding that medication was 13 managing the severity of his symptoms. They indicate only that he was taking medication 14 and it was being changed. (AR 442, AR 359 (December 2017 visit where medications 15 were started).) The question then is whether these records undermine the ALJ’s overall 16 finding that medication was decreasing the severity of Plaintiff’s symptoms based on the 17 prior treatment records and one subsequent treatment record also cited by the ALJ. 18 “While ALJs obviously must rely on examples to show why they do not believe that a 19 claimant is credible, the data points they choose must in fact constitute examples of 20 broader development to satisfy the applicable ‘clear and convincing’ standard.” Garrison, 21 759 F.3d at 1018 (emphasis in original). The records must be sufficient that a “reasonable 22 mind might accept them as adequate to support” the finding that the severity of his 23 symptoms decreased from this treatment. See Tommasetti, 533 F.3d at 1038 (“Substantial 24 evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion.”) (quoting Thomas, 278 F.3d at 958). 26 One interpretation might view AR 487’s identification of a suboptimal response to 27 existing medication as casting doubt on the efficacy of all his medications up to that 28 point. Plaintiff’s physician found his medication regimen produced a suboptimal response 18 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.634 Page 19 of 30 1 that required a change could be interpreted as an indicator he was not improving with 2 medication. And as to the subsequent record indicating improvement, it is only minimal, 3 and he still wakes early. (AR 337 [Ex. 14E at 2] (“minimal improvement, sleep still 4 interrupted waking at 3am. Early morning awakenings are consistent with ongoing 5 depression.”) However, it also says sleep initiation has improved. (AR 337 (“Zolpidem 6 helps with sleep initiation.”) 7 However, falling short of “optimal” and changing for a “more robust response” 8 does not necessarily mean the treatment up to that point, or even at that point, was not 9 decreasing the severity of his symptoms. As discussed above, the ALJ did not find 10 Plaintiff’s depression, anxiety, and sleep disturbance symptoms were resolved; only that 11 the severity was decreased to a manageable level. (AR 27.) These treatment records could 12 mean his doctor simply sought a better outcome. This would be consistent with the 13 physician’s explanation that “[i]t is reasonable to try another SSRI in an attempt to obtain 14 a more robust response.” (AR 337 (emphasis added).) And, as noted above, the treatment 15 record following this medication change, also relied on by the ALJ, while indicating only 16 minimal improvement, does indicate improvement and that the added medication helps 17 with sleep initiation. (AR 337.) 18 The Court might find one of these interpretations more compelling, but when 19 evidence is “susceptible to more than one rationale interpretation, one of which supports 20 the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954; 21 Ahearn, 988 F.3d at 1115 (Courts “may not reweigh the evidence or substitute our 22 judgment for that of the ALJ.”). Here, the ALJ relied on a series of treatment notes, in the 23 short period of time Plaintiff had been receiving treatment, and overall the ALJ found 24 they showed improvement to a level that decreased the severity of Plaintiff’s symptoms. 25 There was no error in the ALJ’s conclusion and it is supported by substantial evidence. 26 27 28 3. Activities of Daily Living Plaintiff raises a number of issues with the ALJ’s findings regarding Plaintiff’s daily activities. (ECF 14-1 at 11-13.) In addition to disputing some findings and the 19 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.635 Page 20 of 30 1 evidence the ALJ relied on, Plaintiff also argues the ALJ should have addressed other 2 evidence not addressed by the ALJ. (ECF 14-1 at 11-13.) Plaintiff also argues the ALJ 3 was required to establish a nexus between the daily activities identified and full-time 4 work. (ECF 14-1 at 12.) Defendant asserts that the ALJ did not find these daily activities 5 were equivalent to the rigors of full-time work, (ECF 15 at 9), but rather reasonably 6 found the degree of limitation alleged by Plaintiff conflicted with his daily activities 7 based on evidence in the record (ECF 15 at 7). 8 9 An “ALJ [is] permitted to consider daily living activities in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see also Molina v. 10 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. 11 § 404.1502(a). Daily activities “form the basis for an adverse credibility determination” 12 when: (1) the daily activities meet the threshold for transferable work skills or (2) the 13 daily activities contradict the claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 14 639 (9th Cir. 2007); see also Trevizo, 871 F.3d at 682. As discussed further below, the 15 ALJ relied on the second here; Plaintiff’s daily activities undermined his testimony. 16 Even when a plaintiff’s daily activities might be interpreted more favorably, if the 17 ALJ’s interpretation is rational, it must be upheld. Burch, 400 F.3d at 680-81 (“Although 18 the evidence of [plaintiff’s] daily activities may also admit of an interpretation more 19 favorable to [plaintiff], the ALJ’s interpretation was rational, and we must uphold the 20 ALJ’s decision where the evidence is susceptible to more than one rational 21 interpretation.”). If the ALJ’s credibility finding is supported by substantial evidence in 22 the record, we may not engage in second-guessing. See Thomas, 278 F.3d at 959 (citing 23 Morgan, 169 F.3d at 600)). 24 The ALJ found Plaintiff’s daily activities “reveal[] that the claimant is able to 25 engage in a level of daily activity and interaction that supports the ability to perform 26 27 28 20 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.636 Page 21 of 30 1 simple, routine, and noncomplex tasks that are goal oriented, can be taught with visual 2 demonstration, and do not require a fast production pace,” i.e. the RFC.14 3 Before addressing Plaintiff’s specific arguments, the Court notes that the ALJ 4 addressed Plaintiff’s daily activities multiple times in the decision. (AR 24-25, 27.) The 5 Court’s analysis here focuses primarily on the portion of the decision specifically 6 addressing Plaintiff’s testimony. (AR 27.) However, because Plaintiff raises challenges 7 associated with Plaintiff’s function report, (AR 240-25 [Ex. 4E]), that the ALJ addressed 8 earlier in the decision, and that analysis also supports the ALJ’s findings as to Plaintiff’s 9 testimony, some of the Court’s analysis relies on the earlier discussion of Plaintiff’s daily 10 activities and the function report. In that portion of the decision, the ALJ identifies daily 11 activities that undermined Plaintiff’s claims regarding difficulty with memory, (AR 24), 12 and being unable to maintain concentration to complete tasks, (AR 25). The ALJ also 13 found that he had only mild limitations in interacting with others and adapting and 14 managing oneself. (AR 25.) 15 The ALJ did not err in relying on Dr. Whitehead’s evaluation report as to 16 Plaintiff’s activities at home or taking public transportation. The psychologist’s report, 17 cited by the ALJ, indicates that Plaintiff reported “he can still perform the tasks of 18 picking up and straightening out around the house, taking out the trash, dusting, general 19 cleaning mopping, sweeping, vacuuming, laundry, dishes, and other general household 20 tasks and duties.” (AR 493 [Ex. 8F at 3].) “He also indicates he can cook and prepare 21 simple foods, requires no assistance showering, dressing, bathing, toileting, or other 22 23 14 24 25 26 27 28 The Court notes that if this were the entirety of the ALJ’s analysis it would be insufficient because saying only that daily activities are not consistent with the RFC is insufficient. Schultz v. Colvin, 32 F. Supp. 3d 1047, 1059 (N.D. Cal. 2014) (citing Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011)). However, as noted above, the ALJ had already explained how Plaintiff’s reports were undermined by his daily activities in the earlier portion of the decision. (AR 24-25.) And, as discussed in addressing Plaintiff’s challenges, the ALJ goes on to identify daily activities that conflict with his testimony. (AR 27.) 21 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.637 Page 22 of 30 1 person hygiene activities.” (AR 493.) He indicates “he is able to drive and take public 2 transportation.” (AR 493.) As to the activities other than driving, addressed separately 3 below, Plaintiff argues these activities do not meet the threshold for a workplace and that 4 evidence a claimant can participate in basic human function is not determinative of 5 disability. (ECF 14-1 at 13 (citing Orn, 495 F.3d at 639 and Magallanes v. Bowen, 881 6 F.2d 747, 756 (9th Cir. 1989)).) Plaintiff also argues these activities should not have been 7 relied on because he had some difficulty with them and could only do them on his own 8 schedule. (ECF 14-1 at 11, 13.) Plaintiff also asserts the ALJ should have instead relied 9 on his inability to track medical appointments, manage his medication, pay bills, or use a 10 11 remote. (ECF 14-1 at 12-13.) Here, as Defendant points out, the ALJ did not find these activities were 12 transferrable to the workplace. (ECF 15 at 9.) Rather, the ALJ found they undermined the 13 degree of limitation Plaintiff alleged. (ECF 15 at 9 (citing AR 24-25, 27).) This is 14 apparent from the ALJ’s discussion of them in finding Plaintiff’s reports of memory 15 difficulties and being unable to concentrate to complete tasks were undermined by his 16 reports of being able to engage in these activities. (AR 24-25.) It is also evident this was 17 the ALJ’s reason for relying on them because most of these activities, i.e. maintaining 18 personal hygiene and preparing meals, were listed in the summary of his testimony as 19 things he could not do because of his claimed limitations in short-term memory and 20 adaptive functioning. (AR 26.) These activities conflicted with his testimony as to the 21 severity of his symptoms, and the ALJ was permitted to rely on them to discount his 22 testimony. Nor is the Court persuaded the ALJ erred because Plaintiff could only do these 23 activities on his own schedule. As noted above, they were not relied on as transferrable to 24 a work setting, but as undermining his testimony. Additionally, even where daily 25 activities suggest some difficulty functioning, “they may be grounds for discrediting the 26 claimant’s testimony to the extent that they contradict a claim of totally debilitating 27 impairment.” Molina, 674 F.3d at 1110. 28 22 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.638 Page 23 of 30 1 Plaintiff argues the ALJ’s analysis is missing discussion of other daily activities 2 (tracking appointments, managing medication, paying bills, and using a remote) arguing 3 these activities have more application in a work setting that those relied on by the ALJ, 4 and then points to Plaintiff’s own function report as to his abilities. (ECF 14-1 at 13 5 (citing AR 353 (treatment note), AR 243-44 (Plaintiff’s function report)).) The Court 6 recognizes that the ALJ may not rely on evidence of certain daily activities a claimant 7 can do and ignore other evidence to the contrary. See Diedrich v. Berryhill, 874 F.3d 634, 8 642-43 (9th Cir. 2017) (citing Gallant, 753 F.2d at 1456). However, here, the primary 9 evidence Plaintiff points to is Plaintiff’s own function report that the ALJ had already 10 discounted in the decision. The ALJ did not ignore this evidence. The ALJ found the 11 daily activities discussed above along with his ability to perform mathematical 12 calculations, carry out test evaluation instructions without major difficulty, complete a 13 standardized test of nonverbal intelligence and score in the borderline range, and 14 demonstrate normal thought processes and the ability to successfully perform mental 15 calculations, undermined his claims in the function report. (AR 24-25.) It is not surprising 16 the ALJ did not address the function report again given the earlier discounting of it. And, 17 as to the additional daily activities the ALJ did not discuss, they do not contradict the 18 ALJ’s findings. The ALJ’s analysis might have benefited from a discussion of the 19 activities, but they are not contrary to the daily activities the ALJ relied on to discount 20 Plaintiff’s testimony. 21 Plaintiff also challenges the ALJ’s finding that Plaintiff could travel independently 22 to medical appointments. (ECF 14-1 at 12 (citing AR 27).) Plaintiff argues first that this 23 is not a transferrable work activity, but also argues the evidence cited is insufficient to 24 support the finding and points to three different appointments where Plaintiff was 25 accompanied by his spouse. (Id. (citing AR 492, 411, 352).) Plaintiff also argues there is 26 a significant difference between being able to travel independently to get to appointments 27 and being accompanied to them, but not having the accompanying person come into the 28 room for treatment. (Id.) 23 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.639 Page 24 of 30 1 The ALJ found Plaintiff “is able to travel independently in medical appointments” 2 and cited three records. (AR 27 (citing AR 336 [Ex. 14E at 1], AR 380 [Ex. 2F at 2], and 3 AR 397 [Ex. 3F at 6]).) Each record is a treatment note indicating either that that Plaintiff 4 “returns to the visit unaccompanied,” (AR 336) or “presents to the appointment 5 unaccompanied” (AR 397, 380). Plaintiff accurately points out that two, AR 380 and 397, 6 are for the same visit on February 28, 2018. The ALJ’s phrasing, “travel independently in 7 medical appointments” might suggest the ALJ is finding Plaintiff was able to handle his 8 appointments himself independently not necessarily travel to them alone. However, the 9 Court can understand how Plaintiff has interpreted it as finding actual travel to get to the 10 11 appointments given the use of the word travel. Assuming, as Plaintiff does, the ALJ meant Plaintiff could travel to the 12 appointments alone based on these medical records, the ALJ still did not err. Although 13 Plaintiff speculates that he might have been accompanied traveling there and not into the 14 room for his appointment, it would not be unreasonable for the ALJ to conclude he both 15 traveled there independently and went into the room alone based on medical records 16 indicating the claimant was “unaccompanied.” Additionally, that it was only two 17 appointments and Plaintiff points to other appointments where his wife was there, does 18 not negate the ALJ’s finding. The ALJ is not finding he travels to all his appointments 19 independently, she is finding he is “able to travel independently in medical 20 appointments.” (AR 27 (emphasis added).) The ALJ did not err in this finding or relying 21 on it to discount Plaintiff’s testimony. 22 Plaintiff also challenges the ALJ’s reliance on Dr. Whitehead’s report to find 23 Plaintiff could drive. (ECF 14-1 at 11 (citing AR 493 [Ex. 8F at 3].) Plaintiff argues the 24 ALJ should have addressed the function report completed by Plaintiff in which he 25 indicated he did not drive because of a driving incident; an incident he explained more at 26 his hearing. (Id. (citing AR 245 [Ex. 4E at 6] (function report), AR 44-45 (testimony).) 27 Defendant counters that the ALJ did not err in relying on Dr. Whitehead’s report 28 24 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.640 Page 25 of 30 1 regarding Plaintiff’s ability to drive because Plaintiff reported this ability at his June 6, 2 2018 examination. (ECF 15 at 9 (citing AR 493 [Ex. 8F at 3]).) 3 As noted above, Plaintiff’s assertion the ALJ erred by not explicitly addressing 4 Plaintiff’s function report is not persuasive given the ALJ had already addressed it at 5 length. However, Plaintiff accurately points out that one of Plaintiff’s treatment record, 6 AR 408, also notes his inability to drive, and Plaintiff’s testimony regarding a particular 7 incident while driving that stopped him from driving is rather specific. 8 Even assuming the ALJ should have analyzed the conflict between Plaintiff’s 9 claim he could not drive and his reports to Dr. Whitehead that he could more thoroughly, 10 any deficiency in not explicitly addressing it is harmless. 15 The extremely limited RFC 11 assessed by the ALJ does not require that he drive. And, the ALJ identifies numerous 12 other daily activities Plaintiff reported engaging in that the ALJ properly relied on to 13 discount his testimony. (AR 26.) As discussed above, the ALJ identifies his ability to 14 independently shower, dress, bathe and take care of personal hygiene activities, prepare 15 simple meals and perform household cleaning chores, such as taking out the trash, 16 dusting, mopping, sweeping, laundry, and washing dishes, and “travel independently in 17 medical appointments” and use public transportation. (AR 27 (citing AR 353 [Ex. 1F at 18 4], AR 493 [Ex. 8F at 3]) .) These findings are from Plaintiff’s reports to Dr. Whitehead 19 and a treatment note cited by the ALJ. (AR 27 (citing AR 493, 353).) 20 21 22 23 24 25 26 27 28 15 This particular point, Plaintiff’s ability to drive, is a closer question than all the other daily activities the ALJ relies on because his claimed inability to drive is supported by evidence other than his own claims to the agency through his function report and testimony. (AR 408 (medical note cited by Plaintiff).) The Court is not finding the ALJ erred in relying on Dr. Whitehead’s report. It clearly indicates that he could drive and the ALJ is permitted to rely on evidence in the record, particularly a psychologist’s evaluation. (AR 493.) The close question is whether the ALJ should have discussed his inability to drive further given there was more evidence he did not drive beyond his reports to the agency in his function report and testimony. 25 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.641 Page 26 of 30 1 2 4. Identification of Testimony and Evidence Undermining Plaintiff generally asserts that the ALJ “must specifically identify the testimony 3 she finds not credible and must explain what evidence undermines the testimony.” (ECF 4 14-1 at 6 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)).) Plaintiff 5 does not expand on this argument other than as to the specific issues already discussed 6 above, however, the Court briefly addresses it further. 7 The Court agrees that the ALJ is required “to specifically identify the testimony 8 from a claimant [the ALJ] finds not to be credible and . . . explain what evidence 9 undermines this testimony.” Treichler, 775 F.3d at 1102. ALJs are “not require[d] to 10 perform a line-by-line exegesis of the claimant’s testimony, nor [are] they require[d] . . . 11 to draft dissertations when denying benefits.” Lambert, 980 F.3d at 1277 (citing 12 Treichler, 775 F.3d at 1103). 13 Here, the ALJ’s analysis of Plaintiff’s testimony is sufficient that the Court can 14 determine “the ALJ did not arbitrarily discredit claimant’s testimony.” Tommasetti, 533 15 F.3d at 1039 (ALJ’s finding must be “sufficiently specific to permit the court to conclude 16 that the ALJ did not arbitrarily discredit claimant’s testimony.”); see also Treichler, 775 17 F.3d at 1103 (“Explaining “the ALJ’s analysis need not be extensive” but “must provide 18 some reasoning in order for [the Court] to meaningfully determine whether the ALJ’s 19 conclusions were supported by substantial evidence.”). 20 As noted above, the ALJ’s summary of Plaintiff’s testimony included his 21 testimony that “he experiences depressed and anxious mood, sleep disturbance, short 22 term memory loss and cognitive deficient” that “limit [his] ability to engage in daily 23 activities that involve short-term memory and adaptive functioning such as personal 24 hygiene, preparing meals, managing his medication, traveling, and making plans for 25 himself independently of his spouse.” (AR 26.) The ALJ also notes his testimony that “he 26 is unable to leave his home without getting lost.” (AR 26.) The ALJ sufficiently 27 identified Plaintiff’s testimony. 28 26 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.642 Page 27 of 30 1 The decision proceeds through step one of the credibility analysis, finding 2 Plaintiff’s impairments could cause the symptoms alleged and citing evidence of 3 “depressed and anxious mood, sleep disturbance, and cognitive deficits” as well as 4 “borderline intellectual functioning and major depressive disorder.” (AR 26.) The ALJ 5 then indicates generally that Plaintiff’s statements regarding the intensity persistence, and 6 limiting effects of his symptoms are inconsistent with the record because the record 7 evidence establishes Plaintiff “retains the capacity to perform simple, routine, and 8 noncomplex tasks that are goal oriented, can be taught with visual demonstration, and do 9 not require fast production pace,” i.e. Plaintiff’s RFC.16 10 The ALJ then proceeds to provide reasons to discredit Plaintiff’s testimony 11 regarding the severity of his symptoms, including as detailed above, Plaintiff’s treatment 12 decreasing the severity of his depression, anxiety, and sleep disturbance, the objective 13 medical evidence, and Plaintiff’s daily activities. (AR 27.) Each of these are discussed in 14 detail above in addressing Plaintiff’s specific challenges. For purposes of this analysis, 15 the ALJ has identified the testimony being discredited and the evidence that undermines 16 it sufficiently for the Court “to determine whether the ALJ’s conclusions were supported 17 by substantial evidence.” Treichler, 775 F.3d at 1103 (“Although the ALJ’s analysis need 18 19 16 20 21 22 23 24 25 26 27 28 The phrasing of this statement could also have been problematic without the additional analysis that follows (AR 27) and the analysis that preceded it regarding Plaintiff’s allegations as to his limitations (AR 24-25). The Ninth Circuit has explained that boilerplate language that discredits “testimony regarding the intensity, persistence, and limiting effects of . . . symptoms to the extent that testimony [is] ‘inconsistent with the above residual functional capacity assessment’” is error and illogical because a claimant’s testimony must be considered in determining the RFC. Laborin v. Berryhill, 867 F.3d. 1151, 1152-54 (9th Cir. 2017) (emphasis added) (quoting boilerplate language from an ALJ decision and describing it as “put[ting] the cart before the horse.”). The language here is different than the prohibited boilerplate language because the ALJ indicates Plaintiff’s testimony is being rejected for being inconsistent with the record, however, the ALJ also states that the record supports the capabilities equivalent to the RFC. (AR 27.) Even if it were not different, “[t]he use of this generic language itself is not reversible error” if the analysis is otherwise sufficient. Trevizo, 871 F.3d 678 n.6. 27 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.643 Page 28 of 30 1 not be extensive, the ALJ must provide some reasoning in order for us to meaningfully 2 determine whether the ALJ’s conclusions were supported by substantial evidence.”); see 3 also Molina, 674 F.3d at 1121 (The Court “must uphold [the agency’s decision] if the 4 agency’s path may reasonably be discerned.”). 5 The Court finds the ALJ provided clear and convincing reasons—objective 6 medical evidence, treatment history, and daily activities—supported by substantial 7 evidence for discounting Plaintiff’s symptom testimony. 8 9 5. Medical Opinions Plaintiff’s Motion for Summary Judgment did not raise any issues with the ALJ’s 10 analysis of or reliance on the medical opinion evidence as to Plaintiff’s symptom 11 testimony or in arriving at Plaintiff’s RFC. However, in Defendant’s Cross Motion and 12 Opposition to Plaintiff’s Motion, Defendant argues the ALJ properly relied on the 13 medical opinion evidence, noting that no physician found that Plaintiff was more 14 restricted than the RFC assessed by the ALJ. (ECF 15 at 8.) Defendant summarizes the 15 opinions of Dr. Whitehead discussed above, and three additional physician opinions, Dr. 16 Chahal, Dr. Dalton, and Dr. Nissinen, with all of them finding Plaintiff retained the 17 ability to perform a restricted range of work consistent with his RFC. (ECF 15 at 8 (citing 18 AR 27-28 (ALJ discussion of the medical opinions); AR 66-67 (Dr. Chahal); AR 77 (Dr. 19 Dalton); AR 432 (portion of Dr. Nissinen’s form completed for Plaintiff’s waiver for 20 exception from U.S. citizenship test); AR 495-96 (Dr. Whitehead).) Defendant argues 21 “Plaintiff’s failure to address the ALJ’s reliance on the medical opinions further warrants 22 affirming the ALJ decision.” (ECF 15 at 10.) Defendant argues the RFC assessed by the 23 ALJ was narrowly tailored to accommodate Plaintiff’s reported limitations and Plaintiff 24 failed to show that the ALJ was required to include further limitations in his RFC. (ECF 25 15 at 10.) 26 The parties in this case followed the briefing schedule set out in the Local Rules 27 that provide for plaintiff’s filing of their merits brief within 35 days of the Administrative 28 Record being filed, defendant’s opposition 35 days later, and plaintiff’s reply 14 days 28 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.644 Page 29 of 30 1 later. CivLR 7.1.e.6.e). Despite Defendant’s argument regarding the medical opinions, 2 Plaintiff did not file a reply addressing this argument. 3 Although the Court need not reach this issue given the Court is affirming the ALJ 4 decision, the Court notes the issue was raised by Defendant in their cross motion for 5 summary judgment and Plaintiff did not address it despite the option to file a brief in 6 response. Additionally, having reviewed the medical opinions, the Court find the ALJ’s 7 RFC was consistent with and supported by the medical opinions. 8 V. Notice of New Authority 9 After the summary judgment briefing was complete, Plaintiff filed a two-page 10 Notice of New Authority with citation to Collins v. Yellen, 141 S. Ct. 1761, 1783-84 (2021). 11 The Notice indicates that Collins applies Seila Law LLC v CFPB, 140 S. Ct. 2183, 2192 12 (2020). (ECF 16.) 13 Plaintiff notes these decisions and an Office of Legal Counsel (OLC) decision “casts 14 significant doubt onto the constitutionality of the appointment of the Commissioner of 15 Social Security.” (ECF 16 at 1 (citing Constitutionality of the Commissioner of Social 16 Security’s Tenure Protection, 45 Op. O.L.C. (July 8, 2021).) Plaintiff indicates that 17 “Andrew Saul held the office of Commissioner of Social Security as the sole person 18 dischargeable only for cause between July 17, 2019 and July 11, 2021” and that Plaintiff 19 “filed this claim on February 8, 2018, participated in a hearing on August 2, 2019, received 20 a decision dated September 6, 2019, and received a denial of request for review dated June 21 4, 2020.” (ECF 16 at 1-2.) 22 Although not explicitly stated, the Court can deduce Plaintiff is arguing that 23 because Andrew Saul’s appointment was unconstitutional, he lacked the authority to 24 issue decisions, like the one issued here, as to eligibility for benefits. The Ninth Circuit 25 addressed this issue in an opinion issued on April 27, 2022. Kaufman v. Kijakazi, 32 26 F.4th 843 (9th Cir. 2022). While the court found the removal provision “violates 27 separation of powers principles,” it also found it severable and that a “[c]laimant . . . must 28 demonstrate that the unconstitutional provision actually caused her harm.” Id. at 849 29 20-cv-1498-BGS Case 3:20-cv-01498-BGS Document 17 Filed 09/12/22 PageID.645 Page 30 of 30 1 (“[U]nless a claimant demonstrates actual harm, the unconstitutional provision has no 2 effect on the claimant’s case.”). 3 Plaintiff has relied only on Andrew Saul being Commissioner at the time decisions 4 were made regarding her claim for disability. (ECF 16 at 1-2.) There is no basis for 5 finding actual harm to claimant from the removal provision. When, as here, “[n]othing in 6 the record suggests any link whatsoever between the removal provision and the 7 claimant’s case,” the removal provision does not impact the validity of the ALJ decision. 8 Kaufman, 32 F.4th at 850. 9 VI. CONCLUSION 10 Plaintiff’s Motion for Summary Judgment is DENIED and Defendant’s Cross 11 Motion for Summary Judgment is GRANTED. The ALJ’s decision is affirmed. The 12 Clerk shall close the case. 13 14 IT IS SO ORDERED. Dated: September 12, 2022 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 20-cv-1498-BGS
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