Sells v. Colvin

Filing 18

ORDER: The final decision of the Commissioner of Social Security is affirmed. The Clerk of Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 7/26/17.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sean Sells,

No. CV-16-04330-PHX-JAT
Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff Sean Sells’s appeal from the Social Security

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Commissioner’s (the “Commissioner’s”) partial denial of his application for disability

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insurance benefits and Supplemental Security Income (“SSI”) under the Social Security

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Act. Plaintiff argues that the administrative law judge (“ALJ”) erred by: (1) providing an

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insufficient basis for rejecting Dr. Robert A. Briggs’s neuropsychological evaluation;

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(2) finding Plaintiff’s testimony to be non-credible without providing clear and

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convincing reasons, supported with substantial evidence; (3) failing to completely review

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the record; (4) failing to consider the State of Arizona’s finding that Plaintiff is seriously

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mentally ill (“SMI”); and (5) providing an insufficient basis for rejecting licensed clinical

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social worker (“LCSW”) Eileen Ripsin’s opinions. (Doc. 15 at 1, 23–24). The Court now

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rules on Plaintiff’s appeal.

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I.

BACKGROUND

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A.

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Plaintiff filed for disability insurance benefits on August 31, 2012, alleging

Procedural Background

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disability as of February 10, 2010. (Tr. 26; Doc. 15 at 1–2). 1 He also filed a concurrent

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application for SSI under Title XVI of the Social Security Act. The ALJ held a hearing in

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February 2015, in which both Plaintiff and a Vocational Expert (the “VE”) testified.

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(Tr. 49–79). The ALJ issued a decision finding Plaintiff not disabled. (Tr. 26–46). In

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October 2016, the Appeals Council denied Plaintiff’s request for review, making the

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ALJ’s decision to deny benefits the Commissioner’s final decision. (Tr. 1–5).

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B.

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Plaintiff was born on March 4, 1965. (Tr. 38, 81). He has 157 college credits, but

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he did not graduate from college. (Tr. 434). His subsequent employment included work

Plaintiff’s Background

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as a directory assistant, survey taker, and telemarketer. (Tr. 72).

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II.

LEGAL STANDARD

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The ALJ’s decision to deny benefits will be overturned “only if it is not supported

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by substantial evidence or is based on legal error.” Magallanes v. Bowen,

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881 F.2d 747, 750 (9th Cir. 1989) (quotation marks omitted). “Substantial evidence”

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means more than a mere scintilla, but less than a preponderance. Reddick v. Chater,

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157 F.3d 715, 720 (9th Cir. 1998).

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“The inquiry here is whether the record, read as a whole, yields such evidence as

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would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

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Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether

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there is substantial evidence to support a decision, the Court considers the record as a

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whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence

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that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is

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susceptible of more than one rational interpretation, it is the ALJ’s conclusion which

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must be upheld; and in reaching [her] findings, the ALJ is entitled to draw inferences

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logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

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also Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This

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Citations to “Tr.” are to the certified administrative transcript of record.
(Doc. 14).
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is because “[t]he trier of fact and not the reviewing court must resolve conflicts in the

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evidence, and if the evidence can support either outcome, the court may not substitute its

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judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);

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see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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The ALJ is responsible for resolving conflicts in medical testimony, determining

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credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039

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(9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence

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supports the Commissioner’s decision, the Court must affirm it. See Hammock v. Bowen,

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879 F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g) (2012). On the other hand,

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the Court “may not affirm simply by isolating a specific quantum of supporting

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evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation marks omitted).

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Notably, the Court is not charged with reviewing the evidence and making its own

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judgment as to whether a plaintiff is or is not disabled. Rather, the Court’s inquiry is

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constrained to the reasons asserted by the ALJ and the evidence relied upon in support of

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those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

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A.

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To qualify for disability benefits under the Social Security Act, a claimant must

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show that, among other things, he is “under a disability.” 42 U.S.C. § 423(a)(1)(E)

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(2012). The Social Security Act defines “disability” as the “inability to engage in any

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substantial gainful activity by reason of any medically determinable physical or mental

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impairment which can be expected to result in death or which has lasted or can be

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expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A).

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A person is:

Definition of Disability

under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.

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Id. § 423(d)(2)(A).

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B.

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The Social Security Regulations (the “SSRs”) set forth a five-step sequential

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process for evaluating disability claims. 20 C.F.R. § 404.1520(a)(4) (2016); see also

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Reddick, 157 F.3d at 721. A finding of “not disabled” at any step in the sequential

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process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden

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of proof at the first four steps, but the burden shifts to the Commissioner at the final step.

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Reddick, 157 F.3d at 721. The five steps are as follows:

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Five-Step Evaluation Process

1. First, the ALJ determines whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled.

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2. If the claimant is not gainfully employed, the ALJ next determines whether the

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claimant has a “severe medically determinable physical or mental impairment.”

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Id. § 404.1520(a)(4)(ii). To be considered severe, the impairment must “significantly

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limit[] [the claimant’s] physical or mental ability to do basic work activities.”

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Id. § 404.1520(c). Basic work activities are the “abilities and aptitudes to do most jobs,”

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such as lifting, carrying, reaching, understanding, carrying out and remembering simple

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instructions, responding appropriately to co-workers, and dealing with changes in

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routine. Id. § 404.1521(b). Further, the impairment must either have lasted for “a

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continuous period of at least twelve months,” be expected to last for such a period, or be

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expected “to result in death.” Id. § 404.1509 (incorporated by reference in

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20 C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device to

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dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If

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the claimant does not have a severe impairment, then the claimant is not disabled.

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3. Having found a severe impairment, the ALJ next determines whether the

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impairment “meets or equals” one of the impairments listed in the regulations.

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20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is found disabled without further

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inquiry. If not, before proceeding to the next step, the ALJ will make a finding regarding

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the claimant’s “residual functional capacity [“RFC”] based on all the relevant medical

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and other evidence in [the] case record.” Id. § 404.1520(e). A claimant’s RFC is the most

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he can still do despite all his impairments, including those that are not severe, and any

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related symptoms. Id. § 404.1545(a)(1).

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4. At step four, the ALJ determines whether, despite the impairments, the claimant

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can still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To make this

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determination, the ALJ compares his RFC “assessment . . . with the physical and mental

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demands of [the claimant’s] past relevant work.” Id. § 404.1520(f). If the claimant can

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still perform the kind of work he previously did, the claimant is not disabled. Otherwise,

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the ALJ proceeds to the final step.

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5. At the final step, the ALJ determines whether the claimant “can make an

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adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In

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making this determination, the ALJ considers the claimant’s RFC and his “age,

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education, and work experience.” Id. § 404.1520(g)(1). If the claimant can perform other

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work, he is not disabled. If the claimant cannot perform other work, he will be found

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disabled.

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In evaluating the claimant’s disability under this five-step process, the ALJ must

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consider all evidence in the case record. See id. §§ 404.1520(a)(3), 404.1520b. This

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includes medical opinions, records, self-reported symptoms, and third-party reporting.

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See id. §§ 404.1527, 404.1529; SSR 06-3P, 71 Fed. Reg. 45593–97 (Aug. 9, 2006).

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C.

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At step one of the sequential evaluation process, the ALJ found that Plaintiff did

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not engage in substantial gainful activity since his alleged onset date. (Tr. 29). At step

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two, the ALJ concluded that Plaintiff had the following severe impairments: “obstructive

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sleep apnea, obesity, major depressive disorder, generalized anxiety disorder, and

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personality disorder.” (Tr. 29–30). At step three, the ALJ determined that Plaintiff’s

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mental and physical impairments did not meet or equal any of the listed impairments in

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the SSRs. (Tr. 30–32).

The ALJ’s Evaluation under the Five-Step Process

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Before moving on to step four, the ALJ conducted a RFC determination in light of

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Plaintiff’s testimony and the objective medical evidence. (Tr. 33–38). The ALJ found that

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Plaintiff had the RFC, during the period of January 25, 2006 to December 1, 2009, to:

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perform a full range of work at all exertional levels but with
the following non-exertional limitations: He can never climb
ladders, ropes, or scaffolds. He should avoid concentrated
exposure to nonweather related extreme cold, dangerous
machinery with moving mechanical parts, and unprotected
heights that are high or exposed. He should avoid
concentrated exposure to toxic or caustic chemicals, poorly
ventilated areas, and pulmonary irritants such as fumes,
odors, dusts, and gases. He can perform work where only
occasional simple decision-making is required and work with
only occasional routine changes in the work environment. He
can have minimal interaction with the public, coworkers, and
supervisors, but can still work in the vicinity of others. He can
work with things, not data or people.

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(Tr. 33). At step four, the ALJ found that Plaintiff could not perform any past relevant

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work. (Tr. 38). Finally, the ALJ concluded at step five that, based on Plaintiff’s RFC, age,

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education, and work experience, Plaintiff could perform a significant number of jobs

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existing in the national economy. (Tr. 39). Consequently, the ALJ found that Plaintiff

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was not disabled under the Social Security Act during the period beginning on February

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10, 2010 and ending on April 27, 2015. (Tr. 40, 41).

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III.

ANALYSIS

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Plaintiff makes four arguments for why the Court should reverse the ALJ’s

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decision. Specifically, Plaintiff asserts that the ALJ committed the following errors:

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(1) failing to “mention, consider, evaluate, or provide any reason for rejecting examining

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specialist, Robert Briggs’s . . . neuropsychological evaluation,” (Doc. 15 at 15–17);

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(2) rejecting Plaintiff’s credibility without clear and convincing reasons for doing so, (id.

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at 17–21); (3) failing to completely review the record, (id. at 21–22); (4) failing to

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consider a State of Arizona finding that Plaintiff is SMI while rejecting the third-party

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evidence, (id. at 22–23); and (5) rejecting LCSW Eileen Ripsin’s opinion without

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providing “specific reasons, germane to” Ms. Ripsin, (id. at 23–24). The Court will now

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address each argument in turn.

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A.

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Plaintiff first argues that the ALJ erred when she failed to consider or mention Dr.

Whether the ALJ Properly Considered Dr. Robert Briggs’s Evaluation

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Briggs’s neuropsychological evaluation. (Id. at 15). The Commissioner rejoins that the

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ALJ considered Dr. Briggs’s neuropsychological evaluation, and, alternatively, any lack

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of consideration by the ALJ was harmless error. (Doc. 16 at 3–8).

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1.

Legal Standard

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With respect to medical testimony, the Ninth Circuit Court of Appeals (the “Ninth

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Circuit”) distinguishes between the opinions of three types of physicians: (1) those who

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treat the claimant (“treating physicians”); (2) those who examine but do not treat the

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claimant (“examining physicians”); and (3) those who neither examine nor treat the

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claimant (“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830–31

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(9th Cir. 1995). As a general rule, the opinion of an examining physician is entitled to

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greater weight than the opinion of a non-examining physician, but less than a treating

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physician. Andrews, 53 F.3d at 1040–41.

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An “ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,

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533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b) (2007)). Although

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an ALJ “is not bound by an expert medical opinion on the ultimate question of disability,

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she must provide ‘specific and legitimate’ reasons for rejecting the opinion” of an

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examining physician. Id.; see also Lester, 81 F.3d at 830 (“And like the opinion of a

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treating doctor, the opinion of an examining doctor, even if contradicted by another

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doctor, can only be rejected for specific and legitimate reasons that are supported by

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substantial evidence in the record.”). This burden is satisfied where an ALJ sets out “a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating

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[her] interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751 (citation

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omitted).

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2.

Analysis

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Here, the ALJ erred by failing to consider and weigh examining physician Dr.

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Briggs’s neuropsychological evaluation. The ALJ made three citations to Dr. Briggs’s

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evaluation, none of which actually referred to Dr. Briggs’s evaluation of Plaintiff. (See

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Tr. 30, 34 (citing Tr. 801–803)). For example, the ALJ cited to Dr. Briggs’s evaluation to

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recognize that the “record makes note of a conversion disorder, which the medical

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records fail to support.” (Tr. 30 (citing Tr. 801)). However, Dr. Briggs’s evaluation

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simply refers to the conversion disorder diagnosis from nurse practitioner Evette Campos

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rather than any independent diagnosis. (Tr. 801). Thus, the Court finds that the ALJ erred

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by failing to consider or even give “specific and legitimate reasons that are supported by

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substantial evidence” to reject Dr. Briggs’s evaluation. Tommasetti 533 F.3d at 1041; see

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also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“Where an ALJ does not

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explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting

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one medical opinion over another, he errs.”).

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Next, the Court must consider whether the ALJ’s error was harmless. See Marsh v.

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Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We hold that harmless error analysis

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applies in this case to assess the impact of the ALJ’s failure to . . . mention [a treating or

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examining phyisican] . . . [or] give ‘specific and legitimate reasons that are supported by

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substantial evidence’ for rejecting a treating source’s medical opinion.” (quoting

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Garrison, 759 F.3d at 1012)). An error is harmless if it is “inconsequential to the ultimate

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nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055

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(9th Cir. 2006). “[A] reviewing court cannot consider [an] error harmless unless it can

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confidently conclude that no reasonable ALJ, when fully crediting the testimony, could

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have reached a different disability determination.” Id. at 1056.

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Here, Plaintiff argues that a number of Dr. Briggs’s opinions concerning

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Plaintiff’s functioning would have led the ALJ to conclude that Plaintiff could not work

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had she credited Dr. Briggs’s opinion as true. (Docs. 15 at 16; 17 at 4). Plaintiff

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summarized these opinions as follows:

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one-third of Plaintiff’s neuropsychological functioning tests
were in the brain-damaged range, his concentration and
attention likely are “significantly compromised” by worry, he
is likely to manifest a variety of maladaptive behaviors in an
attempt to control his anxiety, he suffers anxiety in
interactions where “unconditional acceptance is not
guaranteed,” . . . and his “bilateral brain-related sensorimotor
impairment” is “consistent with residual deficits from
multiple head injuries.”

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(Doc. 15 at 16 (quoting Tr. 809–13)). The Commissioner rejoins that the ALJ’s error was

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harmless because Dr. Briggs’s evaluation was not inconsistent with the ALJ’s RFC

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determination. (Doc. 16 at 6).

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The Court agrees with the Commissioner and concludes that the opinions of Dr.

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Briggs are consistent with the ALJ’s RFC determination. First, the ALJ’s RFC

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determination comported with Dr. Briggs’s observations of Plaintiff’s brain impairment.

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For example, Dr. Briggs noted that 30% of Plaintiff’s scores on the component Halstead

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Impairment Index tests were within the brain-damaged range. (Tr. 809). Dr. Briggs also

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noted that Plaintiff’s score on the General Neuropsychological Deficit Scale indicated

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“mild impairment of brain functioning.” (Tr. 809). Dr. Briggs concluded that Plaintiff

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“displayed a generally consistent pattern of abilities demonstrating good and intact

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abilities,” and, although Dr. Briggs recognized “residual deficits from multiple closed

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head injuries,” Plaintiff’s “cognitive abilities (including memory) are generally intact.”

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(Tr. 813). The ALJ reached a similar conclusion, finding that Plaintiff’s functional

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limitations required that Plaintiff “perform work where only occasional simple decision-

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making is required and work with only occasional routine changes in the work

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environment.” (Tr. 33). Thus, the ALJ’s RFC determination comports with Dr. Briggs’s

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conclusions regarding Plaintiff’s brain impairment.

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Next, the ALJ’s RFC determination is similar to Dr. Briggs’s findings on

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Plaintiff’s ability to concentrate. For example, although Plaintiff indicated on the

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Personality Assessment Inventory that he experienced “a discomforting level of anxiety

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and tension,” which likely “significantly compromised” his “ability to concentrate and

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attend,” Dr. Briggs noted there was “no indication of impaired attention or concentration

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in the evaluation.” (Tr. 810–11). Dr. Briggs further recorded that Plaintiff’s performance

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on the Halstead-Reitan Neuropsychological Test Battery “indicated no impairment of his

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attentional capacities.” (Tr. 805). Finally, Dr. Briggs noted that Plaintiff’s scores on the

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Wechsler Adult Intelligence Scale indicated Plaintiff’s “ability to sustain attention,

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concentrate, and exert mental control . . . in the very superior range [and Plaintiff]

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performed better than approximately 98% of his peers in this area.” (Tr. 808). The Court

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finds that the ALJ’s RFC determination is consistent with Dr. Briggs’s unremarkable

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findings regarding Plaintiff’s level of concentration.

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The ALJ’s RFC determination is consistent with Dr. Briggs’s findings in other

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areas as well. For example, Dr. Briggs found that Plaintiff’s “pattern of responses reveals

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that he is likely to display a variety of maladaptive behavior patterns aimed at controlling

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anxiety” and Plaintiff’s “self-description indicates significant suspiciousness and hostility

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in his relations with other.” (Tr. 811). Similarly, the ALJ recognized that Plaintiff “can

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have minimal interaction with the public, coworkers, and supervisors, but can still work

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in the vicinity of others,” and, relatedly, Plaintiff “can work with things, not data or

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people.” (Tr. 33).

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Finally, Dr. Briggs noted evidence of “bilateral sensorimotor difficulties,”

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suggesting “bilateral brain-related sensorimotor impairment that is consistent with

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residual deficits from multiple closed head injuries although [Plaintiff’s] cognitive

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abilities (including memory) are generally intact.” (Tr. 813). At step five, the ALJ

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appeared to consider Plaintiff’s sensorimotor impairment in identifying office cleaner as

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one of the representative occupations Plaintiff could perform. (Tr. 39); see Stubbs-

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Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (recognizing that even if “the

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ALJ’s RFC finding erroneously omitted [the claimant’s] postural limitations . . ., any

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error was harmless since sedentary jobs require infrequent stooping, balancing,

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crouching, or climbing”). Indeed, the Dictionary of Occupational Titles recognizes that

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the job of office cleaner requires a “low degree of aptitude ability” for motor

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coordination, finger dexterity, and manual dexterity. See U.S. Dep’t of Labor, Dictionary

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of Occupational Titles 1,792 (4th ed. 1991); see also Pinto v. Massanari,

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249 F.3d 840, 845–46 (9th Cir. 2001) (“[T]he best source for how a job is generally

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performed is usually the Dictionary of Occupational Titles.” (citations omitted)). Further,

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as the ALJ recognized, in the national economy, 220,000 office cleaner jobs exist.

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(Tr. 39); see Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528 (9th Cir. 2014)

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(holding that “25,000 jobs [in the national economy] meets the statutory standard”).

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Thus, consideration of Dr. Briggs’s assessments related to Plaintiff’s bilateral brain-

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related sensorimotor impairment would not have altered the ALJ’s ultimate finding that

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Plaintiff could perform the requirements of an office cleaner.

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Plaintiff fails to mention any specific portion of Dr. Briggs’s opinion that is

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inconsistent with the ALJ’s decision. For example, in his Reply, Plaintiff

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comprehensively states the standard for harmless error but fails to provide any analysis;

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instead, Plaintiff offhandedly states, “If Dr. Briggs’[s] opinions concerning Plaintiff’s

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functioning were credited, Plaintiff would have been found unable to work, per VE

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testimony.” (Doc. 17 at 4). Such a conclusory and unsupported statement is not enough to

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show that the ALJ’s error was harmful. See Shinseki v. Sanders, 556 U.S. 396, 398

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(2009) (“The burden of showing harmfulness is normally on the party attacking an

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agency’s determination.”). Further, although Plaintiff cites to additional contents of Dr.

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Briggs’s report, these quotations are not opinions of Dr. Briggs but, rather, self-reported

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statements by Plaintiff. (See Doc. 17 at 3 (citing Tr. 811 (“[Plaintiff] describes himself as

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a socially isolated individual who has few interpersonal relationships that could be

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described as close and warm.”))). Thus, these excerpts are not the opinions of Dr. Briggs.

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The facts presented here are also different from cases like Marsh v. Colvin, where

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the Ninth Circuit held an ALJ committed harmful error by failing to mention a treating

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source’s medical opinion. 792 F.3d at 1173. In Marsh, the district court had found

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harmless error because the ignored opinion was “brief and conclusionary.” See Marsh v.

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Comm’r of Soc. Sec. Admin., No. C 11-02096 CRB, 2012 WL 1496142, at *6 (N.D. Cal.

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Apr. 27, 2012). In vacating the district court’s decision, the Ninth Circuit noted that,

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because the doctor’s opinion contradicted the ALJ’s findings, it could not “confidently

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conclude that the [ALJ’s] error was harmless.” 792 F.3d at 1173 (quotation marks

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omitted); see also Wright v. Astrue, No. CV-09-164-CI, 2010 WL 2264960, at *9 (E.D.

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Wash. June 2, 2010) (rejecting the Commissioner’s harmless error argument because “the

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assessments of sedentary and light work . . . [by the doctors] were qualified by additional

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limitations which were not considered by the ALJ” (emphasis added)). In essence, these

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cases held a failure to mention a medical opinion is harmful error where the ignored

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opinion contained limitations that the ALJ otherwise did not consider. Here, however, the

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Court cannot find—and Plaintiff has failed to present—any portion of Dr. Briggs’s

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opinion that is inconsistent with the ALJ’s ultimate decision. Thus, the Court can

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“confidently conclude” that the ALJ’s error was harmless.

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B.

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Plaintiff next argues that the ALJ erred when she determined that Plaintiff’s

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testimony regarding the intensity, persistence, and limiting effects of his impairments was

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“not fully credible.” (Doc. 15 at 17–21; see Tr. 35). The Commissioner rejoins that the

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ALJ “considered [Plaintiff’s] complaints, compared them to the evidence of record, and

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gave legally sufficient reasons for discounting them.” (Doc. 16 at 8).

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Whether the ALJ Properly Discredited Plaintiff’s Symptom Testimony

1.

Legal Standard

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The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities. Reddick, 157 F.3d at 722. If credibility is critical,

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the ALJ must make an explicit credibility finding. Greger v. Barnhart, 464 F.3d 968, 972

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(9th Cir. 2006).

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In assessing the credibility of a claimant’s testimony regarding subjective pain or

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the intensity of his symptoms, the ALJ must engage in a two-step analysis. Molina v.

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Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). First, as a threshold matter, “the ALJ must

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determine whether the claimant has presented objective medical evidence of an

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underlying impairment ‘which could reasonably be expected to produce the pain or other

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symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting

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Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the claimant meets the

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first test, then “the ALJ ‘may not discredit a claimant’s testimony of pain and deny

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disability benefits solely because the degree of pain alleged by the claimant is not

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supported by objective medical evidence.’” Orteza v. Shalala, 50 F.3d 748, 750

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(9th Cir. 1995) (quoting Bunnell, 947 F.2d at 346–47). Rather, “unless an ALJ makes a

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finding of malingering based on affirmative evidence thereof,” the ALJ may only find the

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claimant not credible by making specific findings supported by the record that provide

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clear and convincing reasons to explain his credibility evaluation. Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing Smolen, 80 F.3d at 1283–84); see also

5

Lingenfelter, 504 F.3d at 1036.

6

In rendering a credibility determination, the ALJ may consider several factors,

7

including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s

8

reputation for lying, prior inconsistent statements concerning the symptoms, and other

9

testimony by the claimant that appears less than candid; (2) unexplained or inadequately

10

explained failure to seek treatment or to follow a prescribed course of treatment; and

11

(3) the claimant’s daily activities.” Tommasetti, 533 F.3d at 1039 (quoting Smolen,

12

80 F.3d at 1284). If the ALJ relies on these factors and her reliance is supported by

13

substantial evidence, the Court “may not engage in second-guessing.” Id. (citing Thomas

14

v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)).

15

2.

Analysis

16

In this case, the ALJ found that Plaintiff’s “medically determinable impairments

17

could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s]

18

statements concerning the intensity, persistence and limiting effects of these symptoms

19

[were] not entirely credible.” (Tr. 35). In particular, the ALJ based her credibility

20

determination on Plaintiff’s: (1) receipt of unemployment benefits; (2) failure to follow

21

prescribed treatment; (3) failure to take prescribed medication; (4) work history given his

22

longstanding alleged disabilities; (5) testimony being inconsistent with the medical

23

record; and (6) daily activities. (Tr. 31–36).

24

a.

Receipt of Unemployment Benefits

25

The ALJ discounted Plaintiff’s allegations about the severity of his symptoms and

26

limitations because Plaintiff received unemployment benefits during the time he was

27

alleging disability. (Tr. 34–35). The receipt of unemployment benefits may undermine a

28

claimant’s alleged inability to work full time. Carmickle v. Comm’r, Soc. Sec. Admin.,

- 13 -

1

533 F.3d 1155, 1162 (9th Cir. 2008) (citing Copeland v. Bowen, 861 F.2d 536, 542

2

(9th Cir. 1988)). This is because unemployment benefit applications sometimes require

3

that a claimant hold himself out as available for full-time work. Copeland, 861 F.2d

4

at 542.

5

Here, Plaintiff’s unemployment benefits application is not in the record before this

6

Court. Moreover, although the ALJ stated that Plaintiff “certified each week his readiness

7

and ability to work, at least in some capacity,” the ALJ does not cite to a specific

8

document or testimony containing this language. (Tr. 35). Additionally, the record before

9

the Court does not establish whether Plaintiff held himself out as available for full-time—

10

or even part-time—work. Because the Court cannot determine whether Plaintiff made an

11

assertion regarding his availability for full-time work, his application for and receipt of

12

unemployment benefits does not constitute a clear and convincing reason for discrediting

13

Plaintiff’s credibility. See Carmickle, 533 F.3d at 1162 (recognizing that receipt of

14

unemployment benefits is only inconsistent with a claimant’s disability allegations when

15

a claimant holds himself out as available for full-time work—as opposed to part-time

16

work—in the unemployment benefits application).

17

b.

Failure to Follow Prescribed Treatment

18

In support of her adverse credibility determination, the ALJ noted that Plaintiff

19

failed to follow prescribed treatment. (Tr. 34). The Ninth Circuit has “long held that, in

20

assessing a claimant’s credibility, the ALJ may properly rely on ‘unexplained or

21

inadequately explained failure to seek treatment or to follow a prescribed course of

22

treatment.’” Molina, 674 F.3d at 1113 (quoting Tommasetti, 533 F.3d at 1039). As a

23

threshold matter, Plaintiff argues that the ALJ erred by considering Plaintiff’s failure to

24

follow prescribed treatments because she failed to consider the conditions in SSR 82-59.

25

(Doc. 15 at 19); see 1982 SSR LEXIS 25. Plaintiff’s argument misstates the law. The

26

Ninth Circuit has held that the conditions in SSR 82-59 do not apply where, like here,

27

“the ALJ determined [the claimant] was not disabled, and [the claimant’s] failure to seek

28

treatment . . . was merely a factor in the ALJ’s credibility determination.” Molina,

- 14 -

1

674 F.3d at 1114 n.6. Thus, the ALJ’s alleged noncompliance with SSR 82-59 does not

2

constitute error.

3

The ALJ recognized that Plaintiff denied “‘using his [Continuous Positive Airway

4

Pressure (“CPAP”) Machine],’ despite his concerns of shortness of breath at night and

5

fatigue.” (Tr. 34). The ALJ made specific reference to Plaintiff’s repeated complaints of

6

discomfort with the CPAP machine and concluded that his “‘multiple reasons for non-

7

compliance’ greatly undermines his credibility and suggests a lesser severity of

8

impairments than alleged.” (Tr. 34). Plaintiff argues that the ALJ should not have used

9

this as a basis to discredit Plaintiff’s credibility because “Plaintiff was often homeless.”

10

(Doc. 15 at 18). The medical record indicates that Plaintiff referred to his temporary

11

homelessness as a basis for not using his CPAP machine, (Tr. 515, 544, 548); however,

12

after moving into his own apartment, Plaintiff still refrained from using his CPAP

13

machine despite his continued affliction with sleep apnea. As the ALJ indicated, Plaintiff

14

stated multiple times that he was not using the CPAP due to discomfort rather than a lack

15

of ability or resources. (Tr. 34, 701, 1000). Thus, the ALJ properly concluded that

16

Plaintiff’s failure to follow his prescribed treatment detracted from his credibility.

17

c.

Failure to Take Prescribed Medication

18

The ALJ also discounted Plaintiff’s subjective complaints because Plaintiff failed

19

to take prescribed medications. (Tr. 34, 36). “[U]nexplained or inadequately explained

20

failure to seek treatment or to follow a prescribed course of treatment” may support a

21

negative credibility finding. Smolen, 80 F.3d at 1284; see also Scott v. Colvin,

22

No. 3:13-cv-00502-HZ, 2014 WL 1096200, at *4 (D. Or. Mar. 18, 2014) (holding that an

23

ALJ properly considered a plaintiff’s failure to take prescribed Vicodin when discounting

24

the plaintiff’s credibility).

25

Here, the ALJ recognized that Plaintiff was “‘[n]on-compliant with medications

26

due to forgetting to take them,’ [and] also reported only taking his Buspar as needed

27

rather than daily as prescribed.” (Tr. 34, 996). The ALJ further noted that “Dr. Rabara

28

recorded [Plaintiff] as saying, ‘I was given Lexapro and I don’t think I want to take it

- 15 -

1

anyway,’ thus indicating a failure to follow prescribed treatment.” (Tr. 36, 585). Plaintiff

2

argues that the ALJ should not have used this as a basis to discredit Plaintiff’s credibility

3

because “Plaintiff was often . . . without insurance.” (Doc. 15 at 18). However, the record

4

is clear—and the ALJ cited to instances where—Plaintiff often forgot or refused to take

5

his prescribed medication while he had insurance coverage. (See, e.g., Tr. 649, 996).

6

Therefore, the ALJ’s conclusion that Plaintiff had a history of not complying with

7

prescribed treatment was supported by medical evidence, and such a conclusion was a

8

clear and convincing reason for rejecting Plaintiff’s testimony.

9

d.

Plaintiff’s Significant Work History

10

The ALJ also based her adverse credibility finding on the fact Plaintiff’s sleep

11

apnea, obesity, major depressive disorder, generalized anxiety disorder, and personality

12

disorder did not prevent past work in positions that required greater social interaction

13

than recommended by the RFC assessment. (Tr. 34). An ALJ may properly consider a

14

claimant’s ability to work in the past despite longstanding alleged impairments. See, e.g.,

15

Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (upholding an ALJ’s adverse

16

credibility determination where there existed substantial evidence in the record indicating

17

that the claimant’s “back problems had not prevented her from working” for many years);

18

Crosby v. Comm’r of Soc. Sec. Admin., 489 F. App’x 166, 168 (9th Cir. 2012) (upholding

19

an ALJ’s adverse credibility determination because the claimant’s testimony that he

20

suffered debilitating symptoms was inconsistent “with his work history showing that his

21

longstanding conditions did not preclude work in the past”).

22

Here, Plaintiff does not dispute that, despite his longstanding impairments, he was

23

able to work in jobs requiring a high degree of social interaction, such as a telemarketer.

24

(Tr. 34). Moreover, from 1995 to 2008, Plaintiff annually earned more than the threshold

25

for a presumption of SGA, (compare Tr. 244–48, with Substantial Gainful Activity, Soc.

26

Sec. Admin., http://www.ssa.gov/oact/cola/sga.html (last visited July 14, 2017)),

27

indicating Plaintiff’s ability to maintain gainful employment over a long period of time

28

despite his longstanding impairments. Accordingly, the ALJ did not err in considering

- 16 -

1

Plaintiff’s work history when assessing the credibility of his allegations.
e.

2

Inconsistencies with Medical Record

3

Next, the ALJ discounted some of Plaintiff’s subjective complaints because they

4

were inconsistent with objective findings in the medical record as well as Plaintiff’s

5

statements found within the medical record. (Tr. 34). An ALJ may discount a claimant’s

6

testimony when the claimant’s medical record reflects better functioning than alleged.

7

See, e.g., Molina, 674 F.3d at 1113; Carmickle, 533 F.3d at 1161 (“Contradiction with the

8

medical record is a sufficient basis for rejecting the claimant’s subjective testimony.”).

9

Because an ALJ cannot simply state that a claimant’s testimony is contradicted by the

10

record, see Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[G]eneral

11

findings are an insufficient basis to support an adverse credibility determination.”), the

12

ALJ must specifically identify which “testimony is not credible and what evidence

13

suggests the complaints are not credible,” Dodrill v. Shalala, 12 F.3d 915, 918

14

(9th Cir. 1993); see also Greger, 464 F.3d at 972.

15

Here, the ALJ recognized that Plaintiff stated his ability “to cope with his current

16

level of anxiety” during medical examinations. (Tr. 34, 709). The ALJ also noted that,

17

despite Plaintiff’s complaints of mental health issues, his examination results often

18

reflected normal mood, affect, behavior, judgment, and thought content. (See Tr. 34, 546,

19

956, 966, 980, 993, 1001, 1009, 1037). Plaintiff argues that the ALJ failed to consider

20

that “improved functioning while limiting environmental stressors does not always mean

21

that a claimant can perform full-time work.” (Doc. 15 at 19). However, the ALJ did not

22

make such a broad finding that the medical record indicated an established ability to

23

perform full-time work and, instead, more narrowly pinpointed some of Plaintiff’s

24

allegations regarding his ability to function that were qualified or contradicted by the

25

medical record. Thus, the inconsistencies between Plaintiff’s testimony and the objective

26

medical record are a clear and convincing reason to discount parts of Plaintiff’s

27

testimony.

28

///

- 17 -

1

f.

Plaintiff’s Daily Activities

2

Finally, the ALJ concluded that Plaintiff’s activities of daily living contradicted

3

the level of impairment he claimed. (Tr. 31–34). Daily activities may be grounds for an

4

adverse credibility finding if: (1) the plaintiff’s activities contradict his other testimony;

5

or (2) the plaintiff “is able to spend a substantial part of his day engaged in pursuits

6

involving the performance of physical functions that are transferable to a work setting.”

7

Orn, 495 F.3d at 639 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

8

Here, the ALJ noted numerous contradictions between Plaintiff’s daily activities

9

and his testimony regarding significant functional limitations. For example, Plaintiff

10

“explained that he independently takes care of his personal hygiene, exercises, prepares

11

meals, cleans his room, does laundry, and grocery shops.” (Tr. 31, 267–69, 698). Despite

12

Plaintiff’s testimony about his significant social functioning limitations, Plaintiff “noted

13

he interacts with others via a computer, uses public transportation, attends doctor

14

appointments, walks for exercise, and goes to the library.” (Tr. 31, 267, 269, 701); see

15

Attmore v. Colvin, 827 F.3d 872, 878 n.2 (9th Cir. 2016) (noting that an ALJ may

16

properly consider taking public transportation as an activity of daily living when

17

assessing the severity of a claimant’s impairment and social functioning). Plaintiff also

18

“attended Toast Masters where . . . [t]hey teach public speaking and give you

19

spontaneous topics to discuss.” (Tr. 34, 271 (quotation marks omitted)). Although

20

Plaintiff alleged poor motor coordination, he was capable of using a computer and typing

21

up to 40 words per minute. (Tr. 34, 271). In addition, despite Plaintiff’s alleged poor

22

concentration, he stated he only experienced “occasional drifts in his attention when

23

writing approximately 2,000 to 3,000 words per day.” (Tr. 34, 586). Further, he

24

“obsessively” participated in daily activities—including playing video games, listening to

25

music, watching movies, and collecting items—that the ALJ recognized suggested “some

26

ability” to concentrate. (Tr. 34, 270, 732).

27

Plaintiff argues that the ALJ should not have used Plaintiff’s daily activities as a

28

basis to reject Plaintiff’s symptom testimony because the ALJ “did not find that Plaintiff

- 18 -

1

spent a substantial part of his day engaged in” the activities the ALJ discussed. (Doc. 15

2

at 20). However, the ALJ gave “specific, clear and convincing reasons” for discounting

3

Plaintiff’s testimony about the severity and intensity of his symptoms. See Molina,

4

674 F.3d at 1112 (quotation marks omitted); see also, e.g., id. at 1113 (“The ALJ could

5

reasonably conclude that [the claimant’s] activities, including walking her two

6

grandchildren to and from school, attending church, shopping, and taking walks,

7

undermined her claims that she was incapable of being around people without suffering

8

from debilitating panic attacks.”). Further, the ALJ did not rely solely on a claimant’s

9

daily activities to discredit his subjective symptom testimony. See Burch v. Barnhart,

10

400 F.3d 676, 680–81 (9th Cir. 2005) (upholding the ALJ’s adverse credibility

11

determination based on the claimant’s daily activities alongside objective medical

12

findings and lack of consistent treatment). Here, the ALJ has not singularly relied on

13

Plaintiff’s daily activities to discredit his claim that his impairments are entirely

14

disabling; she has also relied on Plaintiff’s failure to follow prescribed treatment, his

15

work history, and contradictions with the medical record. The ALJ’s finding that

16

Plaintiff’s daily activities of living were inconsistent with his allegations of total

17

disability was therefore properly based on substantial evidence.

18

g.

The Credibility Determination Is Sufficiently Supported

19

Although the Court does not accept all of the reasons the ALJ cited to support her

20

adverse credibility determination, the ALJ provided sufficient legally adequate reasons

21

that are supported by substantial evidence in support of her credibility determination and,

22

therefore, the Court affirms that determination. See Batson, 359 F.3d at 1197 (stating that

23

the court may affirm an ALJ’s overall credibility conclusion even when not all of the

24

ALJ’s stated reasons are upheld); see also Tonapetyan v. Halter, 242 F.3d 1144, 1148

25

(9th Cir. 2001) (stating that “[e]ven if we discount some of the ALJ’s observations of [the

26

claimant’s] inconsistent statements and behavior . . . we are still left with substantial

27

evidence to support the ALJ’s credibility determination”).

28

///

- 19 -

1

C.

2

Plaintiff next argues that the ALJ erred by “cherry-picking” from the portions of

3

the record that supported her decision while ignoring evidence that was favorable to

4

Plaintiff. (Docs. 15 at 21–22; 17 at 5–6). The Commissioner argues that the ALJ

5

considered the evidence and her interpretation of the record was rational. (Doc. 16 at 16–

6

19).

7

Whether the ALJ Properly Considered the Evidence

1.

Legal Standard

8

“In determining a claimant’s RFC, and ALJ must consider all relevant evidence in

9

the record.” Robbins, 466 F.3d at 883 (quotation marks omitted). If the ALJ rejects

10

significant, probative evidence, the ALJ must explain why. Vincent v. Heckler,

11

739 F.2d 1393, 1395 (9th Cir. 1984). In other words, an ALJ cannot cherry-pick evidence

12

to support her findings. See Holohan, 246 F.3d at 1207 (holding that an ALJ erred by

13

selectively considering some entries in the medical record while ignoring others); see

14

also Davila v. Colvin, No. CV 14-2844-DFM, 2014 WL 5660455, at *4 (C.D. Cal. Nov.

15

4, 2014) (“The ALJ may not cherry-pick evidence to support the conclusion that a

16

claimant is not disabled, but most consider the evidence as a whole in making a reasoned

17

disability determination.”).

18

2.

Analysis

19

Plaintiff identifies four ways in which he argues the ALJ failed to consider the

20

entire record by cherry-picking evidence. (Doc. 15 at 21–22). In particular, Plaintiff

21

argues that the ALJ cherry-picked evidence involving the following: (1) Dr. Charles

22

House’s opinion; (2) observations from treating nurse practitioners; (3) various notes

23

regarding the need to redirect Plaintiff; and (4) Drs. David Yandell and Larry Waldman’s

24

opinions. (Id.).

25

a.

Consideration of Dr. Charles House’s Opinion

26

Plaintiff first appears to argue that the ALJ erred by giving “significant weight” to

27

Dr. House’s opinion but failing to incorporate Dr. House’s observations of “rudeness and

28

anger” into her findings. (Doc. 15 at 22; Tr. 435). Contrary to Plaintiff’s purported

- 20 -

1

argument, the ALJ explicitly considered Dr. House’s notation that Plaintiff “interacted

2

inappropriate[ly] during this examination.” (Tr. 36). Further, the ALJ gave “significant

3

weight” to Dr. House’s conclusion that Plaintiff’s “ability to get along with co[-]workers,

4

respond appropriately to supervision and maintain socially appropriate behavior is

5

moderately limited.” (Tr. 430; see also Tr. 33 (“[Plaintiff] can work with things, not data

6

or people.”)). Thus, Plaintiff’s argument that the ALJ erred by incompletely reviewing

7

Dr. House’s opinion fails.
b.

8

Consideration of the Nurse Practitioners’ Observations

9

Plaintiff next argues that the ALJ erred by “cherry-picking” observations by

10

multiple nurse practitioners. 2 (Doc. 15 at 22). In particular, although the ALJ cited to

11

notations from the nurse practitioners indicating Plaintiff’s “normal mood, affect,

12

behavior, and thought content,” Plaintiff argues that the ALJ should have also explicitly

13

considered notations about Plaintiff’s “bizarre thoughts, inappropriate judgment, [and]

14

rapid speech,” among other observations. (Id.).

15

Nurse practitioners from MIHS treated Plaintiff for various physical impairments.

16

(See Tr. 889–1043; Doc. 15 at 23–24). As part of their progress notes, the nurse

17

practitioners recorded various psychiatric observations from the appointments. In her

18

opinion, the ALJ cited to some of these psychiatric observations to contrast LCSW Eileen

19

Ripsin’s findings that Plaintiff was severely limited in various aspects of social

20

functioning. (Tr. 37, 658–59). The ALJ also cited to the same psychiatric observations in

21

echoing the findings of Dr. Michael Rabara that Plaintiff had “no more than a mild

22

limitation in concentration.” (Tr. 36). The ALJ did not give any specific weight to the

23

nurse practitioner observations and did not reject any of the observations; rather, the ALJ

24

used the observations to undermine claims that Plaintiff experienced severe barriers to

25
2

26
27
28

Plaintiff fails to cite to any page in the record when making this argument and,
instead, uses the phrase “as noted in above” to describe the source of 11 different
notations. (Doc. 15 at 22). Later in his Motion, Plaintiff repeats many of these notations
and provides multiple citations. (Id. at 24). All of these citations refer to nurse
practitioners examining Plaintiff for Maricopa Integrated Health System (“MIHS”). (See
Tr. 889–1043). Thus, the Court will assume these citations correspond with the argument
Plaintiff makes here.
- 21 -

1

proper social functioning. (Tr. 36–38).

2

Plaintiff’s argument that the ALJ erred in allegedly “cherry-picking” from the

3

evidence is misguided. As a threshold matter, although Plaintiff did not provide a specific

4

weight or reject the nurse practitioners’ observations, Plaintiff does not argue that this

5

was error. Thus, the Court will not address an argument Plaintiff did not make. See, e.g.,

6

Cherpes v. Colvin, Case No. 15-cv-05891 JRC, 2016 WL 7209629, at *2 (W.D. Wash.

7

Dec. 13, 2016) (noting that “[t]he Ninth Circuit has ‘repeatedly admonished that we

8

cannot manufacture arguments for an appellant and therefore we will not consider any

9

claims that were not actually argued in appellant’s opening brief.’” (quoting Indep.

10

Towers of Wash. v. Washington, 350 F.3d 925, 929–30 (9th Cir. 2003))).

11

As a result, Plaintiff attempts to argue that once an ALJ cites specific evidence, the

12

ALJ must provide a robust discussion of every other piece of evidence from the relevant

13

opinion; or, in this case, the ALJ would have been required to comment upon every piece

14

of evidence in the over 150 pages of nurse practitioner treatment records. 3 The Ninth

15

Circuit does not recognize such a requirement. See, e.g., Howard ex rel. Wolff v.

16

Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (stating that “in interpreting the evidence

17

and developing the record, the ALJ does not need to discuss every piece of evidence”

18

(quotation marks omitted)); Harris v. Astrue, No. EDCV 09-1689 SS, 2010 WL 1641341,

19

at *9 (C.D. Cal. Apr. 21, 2010) (“Although the ALJ did not explicitly discuss or reject the

20

clinician’s assessment, the ALJ’s failure to address every single item in the

21

administrative record does not constitute legal error.”). Thus, the Court finds the ALJ did

22

not “‘cherry-pick’ from mixed evidence,” (Doc. 15 at 22), but rather cited to specific

23

evidence in the record that contradicted Ms. Ripsin’s finding that Plaintiff was severely

24

limited in social functioning. Further, even if the ALJ erred in failing to address all of the

25
3

26
27
28

The Court notes that many of the observations Plaintiff addresses were not
contradictory, and even appeared in the same summary report, as those observations cited
by the ALJ. (See, e.g., Tr. 955–56 (observing normal mood, affect, behavior, judgment,
thought content, but Plaintiff was positive for suicidal ideations), 1036–37 (observing
normal mood, affect, behavior, judgment, and thought content, but Plaintiff may not be
able to give an accurate review of systems)). Thus, Plaintiff is not just arguing that the
ALJ had a duty to explicitly consider contradictory evidence but, rather, all evidence.
- 22 -

1

nurse practitioners’ observations, Plaintiff has failed to argue—and the Court fails to

2

see—how

3

925 F.2d 1127, 1129 (9th Cir. 1990) (applying the harmless error rule to review of

4

administrative decisions regarding disability).

the

outcome

c.

5

would

be

any

different.

See

Curry

v.

Sullivan,

Consideration of Notes Regarding Redirection

6

Similarly, Plaintiff claims that the ALJ erred by failing to mention treatment notes

7

indicating difficulties in “redirecting” Plaintiff. (Doc. 15 at 22). First, contrary to

8

Plaintiff’s contention, the ALJ considered some of the references to redirection. (See,

9

e.g., Tr. 36–37 (evaluating Dr. Renee Beinfar’s observation that Plaintiff required some

10

redirection and remarking that Dr. Beinfar’s “examination notes and testing provides

11

insight into [Plaintiff’s] mental abilities and state of mind”), 652).

12

Second, Plaintiff fails to explain the significance or probative value of these

13

notations about redirection. The Court repeats that, in interpreting the evidence and

14

developing the medical record in a written determination, an ALJ is not required to

15

“discuss every piece of evidence.” Howard, 341 F.3d at 1012. Rather, an ALJ “must

16

explain why ‘significant probative evidence has been rejected.’” Vincent, 739 F.2d

17

at 1395.

18

Here, Plaintiff argues that these instances where Plaintiff was difficult to redirect

19

are significant and probative because the frequent need for redirection would lead the

20

ALJ to conclude that Plaintiff could not perform any jobs within the national economy.

21

(Doc. 15 at 22). In support, Plaintiff refers to the VE’s testimony, in which the VE opined

22

that “if [Plaintiff] need[ed] [supervision] all the time on redirect, [he could not sustain

23

the] simple jobs” that the ALJ selected in step five. (Tr. 75; see Doc. 15 at 22). However,

24

Plaintiff fails to cite to any treatment provider’s notation that indicates Plaintiff required

25

“constant” or some other prolonged redirection; rather, Plaintiff cites only to instances

26

where Plaintiff simply “required redirection to focus on the tests,” (Tr. 805), or was “not

27

easily redirected,” (Tr. 732), among similar observations. Plaintiff’s intermittent need for

28

redirection is not akin to requiring constant redirection. Thus, the Court does not find it

- 23 -

1

necessary for the ALJ to make explicit reference to every instance Plaintiff was

2

redirected. In other words, each instance of redirection is not significant probative

3

evidence, especially when the ALJ did explicitly discuss some instances of redirection.

4

See also, e.g., Cantrall v. Colvin, 540 F. App’x 607, 609 (9th Cir. 2013) (“Even assuming

5

that the ALJ failed to address Dr. Moore’s opinion about [the claimant’s] marked

6

limitations, and this aspect of his report was significant and probative such that the ALJ

7

was required to discuss it, it appears any error was harmless, as the ALJ accounted for

8

similar opinions and [the claimant] fails to argue how the marked limitations would alter

9

the [RFC] or ultimate nondisability determinations.” (citations omitted)).

10

d.

Consideration of Drs. Yandell and Waldman’s Opinions

11

Finally, Plaintiff claims that the ALJ erred by failing to specifically incorporate

12

Dr. David Yandell and Dr. Larry Waldman’s findings regarding “Plaintiff’s multiple

13

moderate limitations in the critical work area of ‘understand, remember, and carry out

14

simple instructions’ without explanation.” (Doc. 15 at 22). When an ALJ’s findings are

15

consistent with but not identical to a physician’s assessed limitations of the claimant,

16

those findings do not constitute a rejection of the physician’s opinion. See, e.g., Turner v.

17

Comm’r of Soc. Sec., 613 F.3d 1217, 1222–23 (9th Cir. 2010) (finding an ALJ’s

18

limitations in the RFC determination to be “entirely consistent,” although not identical,

19

with a medical source’s limitations); Thomas v. Colvin, No. 3:14-cv-00667-CL,

20

2015 WL 4603376, at *5 (D. Or. July 29, 2015) (same). “In other words, when the ALJ

21

evaluates a claimant’s RFC, h[er] findings must merely be consistent with the physician’s

22

conclusions rather than a carbon copy of the physician’s opinion.” Lewis v. Colvin,

23

No. 3:15-CV-02307-BR, 2017 WL 252284, at *4 (D. Or. Jan. 19, 2017).

24

Here, the ALJ gave “significant weight” to Drs. Yandell and Waldman’s opinions.

25

(Tr. 37). Each doctor’s opinion included a summary of their assessments, which stated:

26

“Overall, from a psychological perspective, claimant is able to perform simple and some

27

detailed job tasks on a sustained basis. He will do best in a setting with minimal

28

interaction with others.” (Tr. 95–96, 112–13, 136, 157). The ALJ’s RFC seemingly

- 24 -

1

parroted this assessment, noting Plaintiff “can perform work where only occasional

2

simple decision-making is required” and “minimal interaction with the public, coworkers,

3

and supervisors.” (Tr. 33). Thus, in choosing to accept Drs. Yandell and Waldman’s

4

assessment of the overall diagnostic picture, the ALJ did not err. See Holohan,

5

246 F.3d at 1205 (noting that a treating physician’s “statements must be read in context

6

of the overall diagnostic picture he draws”). Further, while Plaintiff appears to disagree

7

with the ALJ’s—and, consequently, Drs. Yandell and Waldman’s—overall interpretation

8

of the examinations, the Court must uphold the ALJ’s conclusion where the evidence is

9

susceptible to more than one rational interpretation. Tommasetti, 533 F.3d at 1041 (“ALJ

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is the final arbiter with respect to resolving ambiguities in the medical evidence.”).
Overall, the Court finds that the ALJ properly developed and considered the
evidence in the record.

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D.

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Plaintiff finally argues that the ALJ erred by failing to comply with SSR 06-03p in

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considering “other evidence.” (Docs. 15 at 22–24; 17 at 6). In particular, Plaintiff argues

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that the ALJ should have considered the State of Arizona’s finding that Plaintiff is SMI

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and provided greater weight to LCSW Rispin’s opinion. (Id.). The Commissioner argues

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that the ALJ properly discounted both pieces of evidence. (Doc. 16 at 19–23).

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Whether the ALJ Failed to Comply with SSR 06-03p

1.

Legal Standard

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The SSRs differentiate between “acceptable” medical sources, such as licensed

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physicians, licensed or certified psychologists, and licensed optometrists, and “other”

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sources, which include counselors and public social welfare agency personnel. See

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20 C.F.R. § 404.1513; SSR 06-03p, 2006 SSR LEXIS 5. An ALJ can use “other” medical

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source opinions in determining the “severity of [the individual’s] ability to work.”

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20 C.F.R. § 404.1513(d). An “other” medical source may not, however, provide medical

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opinions or be given “controlling” weight as a treating medical source. See SSR 06-03p,

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2006 SSR LEXIS 5.

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An ALJ may discount an “other” medical source if the ALJ provides “germane”

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reasons. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Molina, 674 F.3d

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at 1114. The Ninth Circuit has found it sufficient if the “ALJ at least noted arguably

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germane reasons for dismissing [“other” medical source] testimony, even if [s]he did not

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clearly link [her] determination to those reasons.” Lewis v. Apfel, 236 F.3d 503, 512

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(9th Cir. 2001). Germane reasons will only be legally sufficient, however, if they are

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supported by substantial evidence in the record. See, e.g., Nguyen v. Chater,

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100 F.3d 1462, 1467 (9th Cir. 1996).

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Similarly, findings of disability by other state or federal agencies “do[] not

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necessarily compel the SSA to reach an identical result.” McCartey v. Massanari,

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298 F.3d 1072, 1076 (9th Cir. 2002) (citing 20 C.F.R. § 404.1504 (2002)). However, an

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ALJ is obligated to consider the findings in reaching her decision. Id. But see

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20 C.F.R. § 404.1504 (2017) (amending the code section to state that the SSA “will not

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provide any analysis in our determination or decision about a decision made by any other

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governmental agency or a nongovernmental entity about whether [a claimant is] disabled,

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blind, employable, or entitled to any benefits”). 4 The weight an ALJ is required to give to

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these other findings of disability, however, depends on whether the agency disability

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program has “marked similarit[ies]” to the SSA disability program. McCartey, 298 F.3d

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at 1076. One important factor in this analysis is the level of similarity between the two

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programs’ “criteria for determining disability.” Id.
2.

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Analysis
a.

State of Arizona’s SMI Determination

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Plaintiff argues that the ALJ erred by failing to provide any weight to the State of

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Arizona’s SMI determination. (Doc. 15 at 23). The SMI determination included “a

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finding that Plaintiff suffers from functional impairment in dysfunction of role

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performance, probable chronic relapsing course of his mental illness, a risk of serious

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harm to himself, or an inability to live independently without supervision.” (Id. (citing

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4

Because this amendment to the SSRs applies to claims brought after March 27,
2017, it does not apply to this case.
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Tr. 417) (emphasis added)). The ALJ provided two bases for providing little weight to the

2

SMI determination. (Tr. 38). First, the ALJ noted the determination provided “no specific

3

limitation on [Plaintiff’s] abilities to perform work-related activities.” (Tr. 38). Second,

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the ALJ recognized that the State used distinct criteria from that used by the SSA to

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determine disability. (Tr. 38). Although the ALJ appeared to reject the ultimate SMI

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determination, she recognized it “may provide evidence of the severity of [Plaintiff’s]

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mental impairments.” (Tr. 38).

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The ALJ properly considered the SMI determination and provided appropriate

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reasons to reject those findings. Plaintiff has failed to cite to—and the Court cannot

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find—any evidence in the record regarding the specific basis for the SMI determination.

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Although Plaintiff refers to the Arizona Department of Health Services Division of

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Behavioral Health Sciences Provider Manual, which gives a number of criteria that

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would independently warrant an SMI eligibility determination, no evidence actually

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states the basis for Plaintiff’s SMI determination. (See Tr. 417–19). Further, as required,

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the ALJ considered the criteria used by the SSA and the State and determined the criteria

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were too divergent to provide significant probative value for SSA purposes. (Tr. 38).

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Thus, the ALJ did not err by giving little weight to the SMI determination. See Velazquez

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v. Colvin, No. CV-14-02637-PHX-DLR, 2016 WL 537585, at *4 n.1 (D. Ariz.

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Feb. 11, 2016) (holding that an ALJ did not err in failing to consider a State of Arizona

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SMI determination because “there is no evidence in the record regarding the basis for the

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SMI determination” and, thus, “without some context and explanation, [the

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determination] has little probative value”).

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b.

LCSW Eileen Ripsin’s Opinion

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Plaintiff also argues that the ALJ erred in giving the opinion of LCSW Eileen

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Ripsin, a licensed clinical social worker, “little weight” because the ALJ “selective[ly]”

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reviewed the record. (Doc. 15 at 23–24). Ms. Ripsin treated and assessed Plaintiff’s

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mental health for nearly three months in 2013. (Tr. 655–98). In her Mental Impairment

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Report, Ms. Ripsin rated Plaintiff as having moderately-severe-to-severe impairments in

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many areas of social interaction, understanding and memory, and sustained

2

concentration. (Tr. 657–59). The report defined both a moderately severe impairment as

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that which “seriously interferes with [the] ability to function” and a severe impairment as

4

that which is an “[e]xtreme impairment of [the] ability to function.” (Tr. 657).

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The ALJ provided “little weight” to Ms. Ripsin’s opinions for two reasons. First,

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the ALJ noted that Ms. Ripsin lacked the “qualifications of an ‘acceptable medical

7

source’” and her opinion was therefore not entitled to controlling weight. (Tr. 37).

8

Although Ms. Ripsin is an “other source,” allowing the ALJ to reject the opinion for

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germane reasons supported by substantial evidence, this basis is insufficient by itself to

10

constitute substantial evidence. See Casas v. Comm’r of Soc. Sec. Admin.,

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No. CV-16-08082-PCT-JAT, 2017 WL 2222613, at *11 (D. Ariz. May 22, 2017).

12

Second, the ALJ recognized the “short treatment relationship” of a few months

13

between Plaintiff and Ms. Ripsin and the inconsistencies between Ms. Ripsin’s opinions

14

and “treatment notes indicating normal mood, affect, behavior, orientation, judgment and

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thought content.” (Tr. 37). In support, the ALJ cited psychiatric evaluation notes from

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nurse practitioner Joanne Baron, (Tr. 541–43; 546–47), and progress notes from nurse

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practitioner Dedra Wadsworth, (Tr. 955, 966, 980, 993, 1001, 1009, 1019, 1037). The

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consistency of a medical opinion with the record as a whole is a relevant factor in

19

evaluating a medical opinion. See Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631.

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Here, despite Ms. Ripsin’s numerous findings of severe impairments, the overall

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treatment record—as taken from medical providers who observed Plaintiff over longer

22

periods of time—did not conclude that Plaintiff had such debilitating impairments. The

23

ALJ further recognized that the observations of these medical providers were

24

representative of the overall treatment record. (See Tr. 36 (discussing Dr. Rabara’s

25

opinions)). Inconsistency with the overall treatment record is germane to the opinion and

26

is supported by the evidence. As a result, the ALJ committed no error. 5

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5

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Plaintiff’s arguments are largely contingent on the claim that the ALJ “cherrypicked” evidence in the record. The Court found this claim unpersuasive, as described
above.
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IV.

CONCLUSION

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For the foregoing reasons,

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IT IS ORDERED that the final decision of the Commissioner of Social Security

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is affirmed. The Clerk of Court shall enter judgment accordingly. 6
Dated this 26th day of July, 2017.

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To the extent a mandate is required, the judgment shall serve as the mandate.
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