Nikolas Paul Shank v. Carolyn W. Colvin
Filing
34
MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
CENTRAL DISTRICT OF CALIFORNIA
8
9
NIKOLAS PAUL SHANK,
10
Plaintiff,
11
12
13
Case No. CV 16-0444 (SS)
v.
MEMORANDUM DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,
14
Defendant.
15
16
17
I.
18
INTRODUCTION
19
20
21
22
23
Nikolas P. Shank (“Plaintiff”) brings this action seeking to
reverse the decision of the Commissioner of the Social Security
Administration
(“Commissioner”
application
disability
for
or
benefits.
“Agency”)
The
denying
parties
his
consented,
24
pursuant
25
undersigned United States Magistrate Judge. For the reasons stated
26
below, the Court AFFIRMS the Commissioner’s decision.
27
28
//
to
28
U.S.C.
§
636(c),
to
the
jurisdiction
of
the
1
II.
2
PROCEDURAL HISTORY
3
4
Plaintiff
filed
an
application
for
Supplemental
Security
5
Income (“SSI”) on December 6, 2011.
(Administrative Record (“AR”)
6
235).
7
1, 2009, (AR 235), due to bipolar disorder, post-traumatic stress
8
disorder, social phobia, and a history of shoulder surgery.
9
136).
Plaintiff alleged that he became unable to work as of July
(AR
The Agency denied the application initially on March 8,
10
2012, and on reconsideration on June 12, 2012.
(AR 136-40, 146-
11
51).
12
54), which Administrative Law Judge (“ALJ”) Catherine R. Lazuran
13
conducted on February 11, 2014.
14
unfavorable decision on May 29, 2014, finding that Plaintiff was
15
not disabled within the meaning of the Social Security Act.
16
25-39).
17
29, 2014, which the Appeals Council denied on November 16, 2015.
18
(AR 1-3).
19
of the Commissioner.
20
January 20, 2016.
On August 15, 2012, Plaintiff requested a hearing, (AR 152-
(AR 46).
The ALJ issued an
(AR
Plaintiff requested review of the ALJ’s decision on May
The ALJ’s determination then became the final decision
(AR 1).
Plaintiff filed this action on
(Dkt. No. 1).
21
22
III.
23
FACTUAL BACKGROUND
24
25
Plaintiff
is
was
a
born
high
on
school
October
4,
graduate,
1985.
50,
San
235).
26
Plaintiff
27
Community College from 2007 to 2010, and is fourteen units away
28
from obtaining an associate’s degree in sound recording.
2
attended
(AR
Francisco
(AR 51,
1
55, 84).
Prior to the onset date of his alleged disability,
2
Plaintiff
3
cashier,
4
maintains
5
anxiety,
6
substance addiction in remission.
worked
as
barista,
that
he
a
and
busboy,
technician,
salesperson.
suffers
insomnia,
audio
from
attention
(AR
server,
52-61).
Plaintiff
disorder,
bipolar
deficit
food
depression,
disorder
(“ADD”),
and
(AR 33, 62-64, 69).
7
8
A.
Plaintiff’s Relevant Mental Health History
9
10
1.
Donald H. Stanford, M.D.
11
12
Dr. Donald H. Stanford was Plaintiff’s treating psychiatrist
13
from March 2009 to May 2010.
(AR 305-10).
Dr. Stanford met with
14
Plaintiff thirteen times and diagnosed Plaintiff with bipolar
15
disorder, ADD, anxiety, and depressive disorder NOS.
(AR 426).
16
17
Dr.
Stanford’s
clinical
notes
describe
Plaintiff’s
18
medications and their side effects.
19
initial consultation, Dr. Stanford reported that Plaintiff “just
20
want[ed] anxiety med[ication]s.”
21
Dr. Stanford prescribed Clonazepam to be taken at the dose of one
22
milligram per day.
23
the entire month’s prescription in ten days.
24
15, 2009, Plaintiff requested more anti-anxiety medicine because
25
he
26
immediate
27
marijuana.
28
Plaintiff to limit his Clonazepam intake.
“need[ed]
(AR 305).
On
On March 16, 2009,
Plaintiff over-consumed the medication, using
something
relief.”
(AR 306-07, 309, 310).
Dr.
to
calm
Stanford
his
(AR 306).
N[erves]”
noted
that
and
On April
“want[ed]
Plaintiff
“uses”
On April 29, 2009, Dr. Stanford “again” counseled
3
(AR 307).
1
Dr. Stanford’s treatment notes indicate that Plaintiff “does
2
live sound w[or]k,” “set up for bands” as a freelance audio
3
engineer, and “promo music on line.”
4
(“rare[ly]” earns money freelancing)). Dr. Stanford indicated that
5
Plaintiff was attending community college and served as a volunteer
6
tutor in software and sound recording at the YMCA.
7
Plaintiff had friends, (AR 305), was busy, and reported his “life
8
[wa]s go[ing] well,” (AR 307).
9
“seems . . . stable.”
(AR 305-07; but see AR 309
(AR 309).
Dr. Stanford opined that Plaintiff
(AR 309).
10
11
2.
Cottage Hospital
12
13
Plaintiff was admitted to Cottage Health System on July 9,
14
2011, for the chief complaint of “detoxing for a few weeks, extreme
15
insomnia, PTSD, and bipolar phase II.”
16
2012, Plaintiff was admitted to Cottage Hospital’s residential
17
treatment center for “increased mood lability” in a manic state.
18
Doctors diagnosed Plaintiff with bipolar I disorder and assigned a
19
global assessment of functioning (“GAF”) score of 65.
20
While in the facility, Plaintiff “deflected & denied & refused
21
additional medications.”
22
for
23
psychiatric tx [treatment] as [the hospital] felt th[e] facility
24
did not provide sufficient containment.”
25
///
26
///
27
///
28
///
twenty-two
days,
(AR 316-23).
In January
(AR 352).
Plaintiff participated in the program
but
was
4
“referred
on
for
(AR 354).
additional
1
3.
Terrance Early, M.D.
2
3
Plaintiff began seeing Dr. Terrance Early, M.D., in July 2011.
4
(AR 316-23).
Dr. Early was Plaintiff’s treating physician from
5
August 1, 2011, through December 6, 2011, and began treating him
6
again on April 9, 2013.
7
until Plaintiff moved to San Francisco in December 2013.
8
AR 428-53).
Dr. Early treated Plaintiff once a month
(AR 458;
9
10
On August 1, 2011, Dr. Early diagnosed Plaintiff with major
11
depressive
disorder
12
phobia, and ADD and assessed a GAF score of 55.
13
Dr. Early noted that “[Plaintiff] will consent only to above meds.
14
Refuses antipsychotics/mood stabilizers.”
15
reported that Hell’s Angels had “threatened to kill him” and
16
“hack[ed]
17
fantastic on current meds.”
18
with good hygiene,” and without hallucinations or delusions.
19
Early assessed Plaintiff’s mood as “[n]o depression whatsoever”
20
and his affect as euthymic.
21
father, Dr. Paul Shank, stated that Plaintiff is paranoid and “that
22
the Hell’s Angels are not against/out to get him,” and Plaintiff
23
“is lying about current symptoms, and may be manic and paranoid.”
24
(AR 453).
into
his
“vs”
bipolar
facebook
disorder
account.”
(AR 452).
mixed
type,
social
(AR 453, 458).
(AR 453).
Plaintiff
Plaintiff
was
“doing
Plaintiff was “talkative,
Dr.
Dr. Early reported that Plaintiff’s
25
26
On August 21, 2011, Dr. Early noted that Plaintiff requested
27
a refill of Klonopin.
Dr. Early had prescribed 60 milligrams of
28
Klonopin one week prior and reported that he was concerned about
5
1
“the potential for over use of Klonopin.”
Dr. Early advised
2
Plaintiff that using more medication than prescribed had the risk
3
of inducing seizures upon withdrawal.
4
milligram tablets not to be refilled prior to two weeks.
Dr. Early prescribed 60 one(AR 451).
5
6
On September 26, 2011, Dr. Early’s mental status examination
7
assessed Plaintiff as tearful, anxious, and depressed.
8
characterized the symptoms as “mixed.”
9
Plaintiff
10
had
consumed
a
medication in two weeks.
one-month
Dr. Early
Dr. Early noted that
prescription
of
anxiety
(AR 450).
11
12
On October 18, 2011, Dr. Early informed Plaintiff that he was
13
escalating his Klonopin dose to a level that would produce a risk
14
of seizures upon withdrawal.
15
having a “good” mood and “euthymic” affect.
Dr. Early assessed Plaintiff as
(AR 449).
16
17
On November 2, 2011, Dr. Early noted that Plaintiff was “doing
18
better overall.”
(AR 448).
19
slightly depressed affect.
Dr. Early assessed a low mood and
(AR 447).
20
21
On December 6, 2011, Plaintiff reported irritability, periods
22
of good mood and then irritability, and no opiate use for eight
23
months.
24
appearance and behavior as mildly irritable and his affect as
25
momentarily tearful.
(AR
446).
Dr.
Early
assessed
Plaintiff’s
general
(AR 446).
26
27
28
Plaintiff stopped seeing Dr. Early in December 2011, and began
to see him again in April 2013.
(AR 382, 329-30; AR 445).
6
Dr.
1
Early
noted
during
Plaintiff’s
April
9,
2013,
session
that
2
Plaintiff “had pretty severe social anxiety, which ha[s] been
3
improved with [K]lonopin.”
(AR 445).
4
as tearful and depressed.
(AR 445).
Dr. Early assessed Plaintiff
5
6
On April 25, 2013, Dr. Early noted that Plaintiff was calm
7
and insightful and had a “good” mood and euthymic affect.
8
444).
9
Dr. Early concluded that Plaintiff was “[d]oing well.”
(AR
On May 22, 2013, Plaintiff had “a bit more anxiety,” but
June
1,
2013,
Plaintiff
reported,
“I’m
(AR 443).
10
On
definitely
happy.”
11
Plaintiff also reported irritability upon missing a dose of his
12
subutex and social anxiety that was “less overall.”
(AR 442).
13
14
On July 13, 2013, Plaintiff denied depression and mood swings
15
and reported that his social phobia was “not too bad.”
Dr. Early
16
assessed Plaintiff’s mood also as “[n]ot too bad” and his affect
17
as anxious and dysphoric.
18
bipolar disorder was in “fair” control.
19
2013, Dr. Early noted a euthymic affect and “good” mood.
Dr. Early opined that Plaintiff’s
(AR 441).
On July 27,
(AR 440).
20
21
On
August
6,
2013,
Dr.
Early
assessed
Plaintiff
with
a
22
“somewhat low” mood and an anxious and depressed affect.
23
however, characterized Plaintiff’s general appearance and behavior
24
as motivated and open.
25
noted
26
overconsumption and was trying to taper it back in anticipation of
27
a move to San Francisco. Plaintiff had been using medical marijuana
28
for plantar fasciitis and nausea.
that
Plaintiff
(AR 439).
had
been
On August 31, 2013, Dr. Early
rationing
7
He also,
his
Klonopin
due
to
Dr. Early noted that Plaintiff
1
was “still battl[ing] anxiety and social isolation.”
2
status
3
appearance and behavior as “a bit anxious,” his mood as “[p]retty
4
good,” and his affect as “anxious but optimistic.”
examination,
Dr.
Early
assessed
On mental
Plaintiff’s
general
(AR 437).
5
6
On September 10, 2013, Plaintiff was depressed and had been
7
so for about a week.
(AR 436).
Early noted Plaintiff was anxious
8
and near tears, his mood was low, and his affect was depressed.
9
(AR 436).
On September 14, 2013, Plaintiff stated he was irritable
10
and had argued with his father.
Dr. Early noted that Plaintiff’s
11
mood was “fantastic” and his affect was euthymic.
12
September 21, 2013, Plaintiff reported waking feeling “horribly
13
depressed” but then noted he “feels better today.”
14
opined that Plaintiff was under stress due to his potential move.
15
Plaintiff reported a mild degree of mania.
16
Plaintiff’s mood as “better.”
(AR 435).
On
Dr. Early
Dr. Early characterized
(AR 434).
17
18
On October 5, 2013, Plaintiff reported feeling “happy.”
19
Early noted a euthymic affect, “[p]retty good” mood, and “improved”
20
bipolar depression.
21
reported that Plaintiff’s therapist indicated Plaintiff might be a
22
“little
23
Plaintiff had a mild increased rate of speech and elevated mood,
24
which might have been attributable to his new puppy.
manic.”
(AR 432).
Plaintiff
Dr.
On October 23, 2013, Dr. Early
reported
taking
too
much
Valium.
(AR 430).
25
26
On November 7, 2013, Plaintiff reported that he had been a
27
“little manic.”
Dr. Early noted that Plaintiff’s mood was “good”
28
and his affect was euthymic.
(AR 429).
8
1
On December 6, 2013, Dr. Early indicated Plaintiff was “doing
2
well” and his mood was “good.”
Plaintiff reported that his social
3
phobia was “still an issue, but he [wa]s working on it.”
(AR 428).
4
5
4.
Deborah DiGiaro, Ph.D.
6
7
Examining
consultative
psychologist
Dr.
Deborah
8
examined Plaintiff on February 19, 2012.
9
noted that Plaintiff was neatly and casually dressed, showed “some
10
psychomotor slowing,” but there was “no evidence of delusions,
11
hallucinations,
12
broadcasting.”
13
a GAF score of 55.
paranoia,
ideas
(AR 383-84).
of
(AR 381-85).
DiGiaro
reference,
Dr. DiGiaro
[or]
thought
Dr. DiGiaro assessed Plaintiff with
(AR 385).
14
15
Dr. DiGiaro opined in her functional capacity assessment that
16
Plaintiff is able to perform simple and repetitive tasks; accept
17
instructions from supervisors; and interact with coworkers and the
18
public.
19
impaired in maintaining regular attendance at work, completing a
20
normal workday/work week without interruptions from a psychiatric
21
condition, and performing work activities on a consistent basis.
22
(AR 385).
Dr.
DiGiaro
further
declared
Plaintiff
“moderately”
23
24
5.
Dr. Pedro Guimaraes, M.D.
25
26
Plaintiff was treated by Dr. Pedro Guimaraes from February
27
2012 through January 2013.
(AR 66).
28
Plaintiff reported doing well since starting treatment at Cottage
9
On February 10, 2012,
1
Hospital.
(AR 404).
Dr. Guimaraes noted that Plaintiff was well-
2
groomed and his attention and memory were normal.
3
further reported, however, that Plaintiff’s mood was anxious, his
4
thought process was racing, and his thought content was delusional
5
in a persecutory manner.
6
score of 60.
(AR 405).
Dr. Guimaraes
Dr. Guimaraes assessed a GAF
(AR 406).
7
8
9
During
subsequent
visits,
Dr.
Guimaraes
reported
that
Plaintiff responded well to treatment and assessed Plaintiff with
10
higher GAF scores between 70 and 80.
11
Guimaraes noted under “subjective” that Plaintiff was “doing very
12
well
13
Plaintiff’s attention and memory as “[g]ood” and his mood as
14
euthymic.
on
current
tx
[treatment].”
On March 23, 2012, Dr.
Dr.
Guimaraes
assessed
(AR 401).
15
16
On April 20, 2012, Plaintiff reported his mood was “good aside
17
from anx[iety].”
18
attention
19
“[r]esponding well to current tx [treatment],” and assigned a
20
current GAF score of 78 (noting a past GAF score from the last year
21
of 78).
and
(AR 403).
memory
as
Dr. Guimaraes assessed Plaintiff’s
“[g]ood,”
noted
that
Plaintiff
was
(AR 403).
22
23
On May 11, 2012, Plaintiff reported, “‘I just feel good.’”
24
Dr.
Guimaraes
assessed
25
“[g]ood,” assigned a GAF score of 75, and noted that Plaintiff was
26
“[r]esponding well to current tx [treatment].”
Dr. Guimaraes,
27
however,
intermittently
28
depressed.
indicated
that
Plaintiff’s
Plaintiff’s
(AR 402).
10
attention
mood
was
and
memory
as
1
On July 20, 2012, Plaintiff reported having “some anxiety,”
2
and Dr. Guimaraes assessed Plaintiff’s attention as fair, his
3
memory as good, and his mood as anxious.
4
assigned a GAF score of 75.
Dr. Guimaraes nonetheless
(AR 417).
5
6
On August 3, 2012, Plaintiff reported “doing well” and Dr.
7
Guimaraes opined that “this is the best he had been doing in
8
awhile.” Plaintiff had “[g]ood” memory/attention, a euthymic mood,
9
and a GAF score of 80.
(AR 416).
On August 31, 2012, Plaintiff
10
reported “feeling well.”
Dr. Guimaraes assessed Plaintiff’s mood
11
as anxious but nonetheless assigned a GAF score of 70.
(AR 415).
12
13
On October 16, 2012, Plaintiff reported he was “doing well.”
14
Dr. Guimaraes noted “[g]ood” memory and attention and a GAF score
15
of 70.
(AR 414).
16
17
On
January
28,
18
overal[l].”
19
depressed nor anxious and assigned a GAF score of 75.
20
opined that Plaintiff was showing signs of improvement.
Dr.
2013,
Guimaraes
Plaintiff
noted
that
reported
Plaintiff
“doing
was
well
neither
He also
(AR 412).
21
22
B.
Plaintiff’s Relevant Testimony
23
24
In 2011, Plaintiff served food as a church volunteer for
25
several weeks.
(AR 61).
26
in
for
27
terminated.
28
Plaintiff was employed as a museum audiovisual technician for
March
2010
Plaintiff worked as a busboy and server
approximately
(AR 52-54).
three
weeks
prior
to
being
From August 2008 through June 2009,
11
1
approximately eight to twelve hours per week.
2
months in 2008, Plaintiff worked between fifteen to thirty hours
3
per
of
his
4
community college assisting students with equipment rentals.
(AR
5
56).
6
in a temporary position as a server and cashier in a movie theater.
7
(AR 54).
8
approximately three to four months.
9
months in 2005, Plaintiff worked approximately thirty hours per
week
in
the
broadcasting
electronics
(AR 52).
department
For six
For several months in 2006, Plaintiff was employed part-time
Also in 2006, Plaintiff worked at a restaurant for
(AR 55).
(AR 56).
For less than three
10
week as a barista.
In 2003 and 2004, Plaintiff was
11
employed at a ski shop approximately eighteen to twenty-five hours
12
per week and left this position to relocate.
(AR 58).
13
14
Plaintiff claims that, since the onset of his disability, he
15
could not hold a simple job like a cashier because he “probably
16
wouldn’t have been reliable.”
17
hold a job that involves simple two-step tasks because, due to his
18
bipolar symptoms, he “would not be stable” and “would not be able
19
to handle it.
20
would just not comply.”
(AR 77).
Plaintiff also could not
[He] would probably walk out or something [and]
(AR 78).
21
22
Plaintiff, however, also testified that his health improved
23
since the July 2009 alleged onset of his disability.
24
ALJ asked whether Dr. Guimaraes’s opinion that Plaintiff was “doing
25
really well” and improving was true, and Plaintiff testified that
26
this “definitely” was true.
27
he was “sticking” to Dr. Guimaraes’s prescribed medication regime
28
and he was improving continuously.
(AR 66-67).
12
(AR 62).
The
Plaintiff explained that
(AR 67).
Plaintiff also
1
testified that while his bipolar disorder is not fully controlled,
2
he is “getting to a point where [he is] able to handle [his]
3
symptoms better.”
4
in his health to his sobriety and a strict medication regime.
5
62, 65, 67).
6
ability to work and “to just function in general.”
(AR 69).
Plaintiff attributed the improvement
(AR
Plaintiff conceded that his drug use had impeded his
(AR 73).
7
8
9
The ALJ challenged Plaintiff’s sobriety and his compliance
with his physicians’ prescribed medication regimens.
The ALJ
10
referred Plaintiff to January 2012 emergency room records noting
11
opiate dependence and indicating that Plaintiff was in withdrawal.
12
When the ALJ inquired whether Plaintiff had in fact used opiates,
13
Plaintiff explained that he had had surgery in March 2011 and began
14
taking opiate pain killers.
(AR 63-64).
15
16
The ALJ also questioned Plaintiff regarding his admission to
17
Cottage Hospital’s drug rehabilitation treatment program in January
18
2012.
19
days, leaving prior to the expiration of the program’s 28-day
20
standard stay. (AR 64-65, 71). According to Plaintiff, the program
21
informed him that he was “too [bipolar],” he was not in treatment
22
for addiction, and he should leave because he “wasn’t like the
23
other people” in the program.
24
treatment records suggested that the facility discharged Plaintiff
25
because he was not taking recommended medications.
26
The ALJ further noted that the program’s first diagnosis was
27
“polysubstance dependence,” with secondary diagnoses of “[bipolar]
28
one” and “anxiety NOS.”
Plaintiff conceded that he attended the program only for 22
(AR 71).
(AR 72).
13
The ALJ pointed out that
(AR 72; AR 73).
Plaintiff insisted that it was
1
“no[t]
true
at
2
noncompliance.
all”
that
the
facility
discharged
him
for
(AR 72, 65).
3
4
Plaintiff testified that he “tr[ies] to do as many chores as
5
[he] can.”
(AR 73).
6
dishes,
7
Plaintiff also cooks frozen meals in a pan or the oven, buys
8
groceries independently, and takes his dog on one-hour walks three
9
times a day.
keep
things
He “tr[ies]” to wash his clothes, do the
organized,
(AR 74, 82).
and
work
out.
(AR
73,
74).
Plaintiff attended at least 32
10
Alcoholics Anonymous meetings between 2009 and January 2012.
(AR
11
75).
12
to twenty hours over a two-week period in 2011. (AR 82). Plaintiff
13
has a hard time concentrating and cannot enjoy simple hobbies.
14
While he does watch television, he has difficulty enjoying it
15
because he lacks focus.
16
because he cannot focus.
Plaintiff also worked as a volunteer for a total of sixteen
Plaintiff does not spent time reading
(AR 76).
17
18
Plaintiff testified that he has friends and they sometimes
19
come over to visit.
(AR 75, 81).
Plaintiff uses a computer for a
20
couple of hours a day to check e-mail and communicate with friends
21
and family through social media.
22
computer is on for several hours a day, he uses it only periodically
23
to check, respond to, and write messages.
24
public transit in San Francisco “almost every day.”
25
Plaintiff also writes lyrical prose approximately three days a week
26
for about five hours total.
27
he would like or up to “par” “with [his] abilities.”
28
80 (would like to be writing “all day every day”)).
(AR 76, 81).
(AR 81).
Although his
Plaintiff uses
(AR 77).
Plaintiff does not write as much as
14
(AR 76; AR
Plaintiff
1
began writing a screenplay but has not finished it.
(AR 76).
2
Plaintiff’s day revolves around taking care of his puppy and
3
himself.
(AR 84).
4
5
C.
Lay Witness Testimony
6
7
Plaintiff’s mother, Janice Lloyd, completed a third-party
8
function report, (AR 258-71), conceding that Plaintiff can bathe,
9
shave,
eat,
and
use
the
restroom,
but
“never
without
his
10
medications.”
Plaintiff will wash dishes and tidy his room but
11
only when on his medication.
12
own ready-made meals, takes his dog for walks, and sometimes goes
13
to the library.
14
regular social life or own a car, and he is “not very good with
15
money.”
16
groceries. (AR 261-62).
Plaintiff independently prepares his
(AR 259-60, 262).
Plaintiff does not have a
He does, however, use public transportation and shops for
17
18
According to Ms. Lloyd, Plaintiff can be manic, which makes
19
it difficult for him to get along with family and friends.
He also
20
does not always complete projects, has trouble concentrating and
21
focusing, and can only pay attention for approximately ten minutes
22
(or more if on medication).
23
very well and “jump[s] ahead and misinterpret[s] instructions.”
24
(AR 263).
25
not handle stress or changes in routine well, and is unable to
26
“hold down a job.”
Plaintiff cannot follow instructions
Plaintiff is unreliable to work with, not punctual, does
(AR 264).
27
28
15
1
Plaintiff’s father, Dr. Paul Shank, submitted a letter stating
2
that
Plaintiff
has
3
relationships; does not interact well even with family; has extreme
4
fear – not based in reality – of being followed by Hell’s Angels,
5
drug dealers and others; has a phobia about the way he interacts
6
with people; has extreme situational anxiety at the slightest
7
interaction;
8
expletives.
and
an
inability
barrages
to
socialize
strangers
and
retain
inappropriately
with
(AR 454).
9
10
Plaintiff’s therapist, Eti Valdez-Kaminsky, MFT, completed a
11
psychiatric
medical
source
statement
12
functioning.
13
Plaintiff’s
14
concentration, persistence, and pace; dealing with the public;
15
understanding, remembering, following, and carrying out complex
16
instructions;
17
relating predictably in social situations.
18
Kaminsky assessed a GAF score of 44.
Valdez-Kaminsky
daily
and
behaving
in
assessed
social
an
assessing
marked
restrictions
activities;
emotionally
Plaintiff’s
stable
in
maintaining
manner;
(AR 455-57).
and
Valdez-
(AR 455).
19
20
Plaintiff’s brother-in-law, Paul Gerding, Jr., submitted a
21
letter.
Mr. Gerding stated that Plaintiff has outbursts, sometimes
22
could
23
remembering the demands of life on a day-to-day basis.
24
94).
25
///
26
///
27
///
28
///
not
get
out
of
bed,
has
16
great
trouble
organizing
and
(AR 292-
1
Plaintiff’s family friend, Deborah Heil, opined in a January
2
14, 2014, e-mail that Plaintiff is forgetful, distractible, and
3
sometimes
4
thinking; has difficulty making and keeping friends and lacks a
5
solid
6
illogical
7
concentration.
nervous;
peer
ground;
rants;
is
socially
has
is
withdrawn;
different
intolerant
moods,
of
suffers
anger
others;
from
odd
outbursts,
and
has
and
poor
(AR 291).
8
9
D.
Adult Function and Disability Reports
10
11
Dr. Early completed a medical source statement on February 6,
12
2014.
(AR 458-61).
Dr. Early assessed a GAF of 50 and opined that
13
Plaintiff would not be able to perform simple, one- or two-step
14
tasks, maintain productivity, or stay on task over the course of
15
an eight-hour day.
16
is limited in the amount of work stress he can tolerate, is unable
17
to adapt to changes in routine, is not reliable in attending
18
appointments, and would likely miss more than four days of work
19
per month.
20
mental
21
concentrate for a two-hour period by between 30 to 90 percent.
22
459).
23
did
24
Plaintiff was stable on suboxone.
25
///
26
///
27
///
28
///
(AR 460).
(AR 459-60).
illness
would
Dr. Early also noted that Plaintiff
Dr. Early further opined that Plaintiff’s
interfere
with
his
ability
to
focus
or
(AR
Dr. Early opined that Plaintiff’s substance abuse disorder
not
interfere
with
his
ability
17
to
perform
(AR 460).
work
because
1
Dr. Early also assessed Plaintiff’s functional limitations
2
due to mental illness – by way of a check-the-box medical source
3
statement – as a 25 percent loss of sustained function in following
4
work
5
attention/concentration, responding to work changes, and following
6
simple instructions; a 50 percent loss of function in relating to
7
co-workers,
8
standards; a 100 percent loss of function in dealing with the
9
public, demonstrating reliability in attendance/work, following
rules,
or
interacting
functioning
detailed
with
a
supervisor,
independently,
instructions,
and
using
maintaining
setting
judgement,
limits
and
10
complex
directing
11
activities, completing tasks, attending work on a daily basis,
12
behaving in an emotionally stable manner, and relating predictably
13
in social situations; and between a 25 and 100 percent loss of
14
function in caring for himself and using public transportation.
15
(AR 459).
16
17
On
August
31,
2013,
Dr.
DiGiaro
completed
a
functional
18
capacity assessment and opined that Plaintiff is able to perform
19
simple and repetitive tasks; accept instructions from supervisors;
20
and interact with coworkers and the public.
Dr. DiGiaro further
21
declared
maintaining
22
attendance at work; completing a normal workday/work week without
23
interruptions from a psychiatric condition; and performing work
24
activities on a consistent basis.
Plaintiff
moderately
impaired
in
regular
(AR 385).
25
26
In a letter dated June 10, 2013, Dr. Stanford provided a
27
narrative in support of Plaintiff’s application for disability.
28
Dr. Stanford reported that, over time, a “more definitive symptom
18
1
picture emerged” which indicated that Plaintiff is “psychiatrically
2
disabled.”
Dr. Stanford noted that Plaintiff’s bipolar disorder
3
results
erratic
4
control, poor judgment, some degree of paranoia, and grandiosity.
5
According to Dr. Stanford, Plaintiff “was never able to keep
6
appointments” or “take medication consistently.”
7
although Plaintiff attempted to work, his efforts “were just as
8
erratic as his efforts to keep regular appointments with [Dr.
9
Stanford].”
in
more
behavior,
mood
instability,
poor
impulse
In addition,
Dr. Stanford opined that Plaintiff’s ADD “only makes
10
it
difficult
for
him
to
function
in
11
consistent manner and accomplish his goals.”
a
predictable
and
(AR 426-27).
12
13
On September 25, 2012, Dr. Guimaraes filled out a check-the-
14
box
“MENTAL
INTERROGATORIES”
form
opining
15
“markedly” or “moderately” limited in various areas of performance
16
relevant to a work setting.
17
GAF score of 50 and reported that Plaintiff’s highest score was
18
70.
(AR 407-10).
that
Plaintiff
was
Dr. Early assessed a
(AR 410).
19
20
On June 5, 2012, Dr. R.E. Brooks, a non-examining reviewing
21
physician, submitted a report regarding Plaintiff’s functional
22
capacity.
23
significantly limited in his ability to carry out short and simple
24
instructions;
25
regular attendance, and be punctual; work in coordination with or
26
proximity to others without being distracted by them; and make
27
///
28
///
(AR 129-34).
perform
Dr. Brooks opined that Plaintiff was not
activities
19
within
a
schedule,
maintain
1
simple work-related decisions.
(AR 131-32).
Dr. Brooks further
2
concluded that Plaintiff is not disabled although he would be
3
limited to unskilled work because of his impairments.
(AR 133).
4
5
IV.
6
THE FIVE STEP SEQUENTIAL EVALUATION PROCESS
7
8
To
qualify
for
disability
benefits,
a
claimant
must
9
demonstrate a medically determinable physical or mental impairment
10
that prevents him from engaging in substantial gainful activity
11
and that is expected to result in death or to last for a continuous
12
period of at least twelve months.
13
721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).
14
impairment must render the claimant incapable of performing the
15
work he previously performed and incapable of performing any other
16
substantial gainful employment that exists in the national economy.
17
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42
18
U.S.C. § 423(d)(2)(A)).
Reddick v. Chater, 157 F.3d 715,
The
19
20
To decide if a claimant is entitled to benefits, an ALJ
21
conducts a five-step inquiry.
22
20 C.F.R. §§ 404.1520, 416.920.
steps include the following:
23
24
25
26
27
(1)
Is the claimant presently engaged in substantial
gainful activity?
If so, the claimant is found
not disabled. If not, proceed to step two.
(2) Is the claimant’s impairment severe? If not, the
claimant is found not disabled. If so, proceed to
step three.
28
20
The
1
(3) Does the claimant’s impairment meet or equal one
on the list of specific impairments described in
20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
the claimant is found disabled. If not, proceed
to step four.
2
3
4
(4) Is the claimant capable of performing his past
work? If so, the claimant is found not disabled.
If not, proceed to step five.
5
6
(5) Is the claimant able to do any other work? If not,
the claimant is found disabled.
If so, the
claimant is found not disabled.
7
8
9
10
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,
11
262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at
12
1098-99); 20 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).
13
In between steps three and four, the ALJ must determine the
14
15
claimant’s
residual
functional
capacity
(“RFC”).
20
CFR
16
416.920(e).
To determine the claimant’s RFC, the ALJ must consider
17
all of the claimant’s impairments, including impairments that are
18
not severe.
20 CFR § 416.1545(a)(2).
19
The claimant has the burden of proof at steps one through four
20
21
and
the
Commissioner
22
Bustamante, 262 F.3d at 953-54.
23
affirmative duty to assist the claimant in developing the record
24
at every step of the inquiry.”
25
claimant meets his burden of establishing an inability to perform
26
past work, the Commissioner must show that the claimant can perform
27
some
28
national economy, taking into account the claimant’s RFC, age,
other
work
that
has
the
exists
burden
of
21
at
step
five.
“Additionally, the ALJ has an
Id. at 954.
in
proof
If, at step four, the
“significant
numbers”
in
the
1
education, and work experience.
Tackett, 180 F.3d at 1098, 1100;
2
Reddick,
20
3
416.920(g)(1).
4
vocational
5
Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2
6
(commonly known as “the grids”).
7
1157, 1162 (9th Cir. 2001).
8
(strength-related) and non-exertional limitations, the Grids are
9
inapplicable and the ALJ must take the testimony of a vocational
157
F.3d
at
721;
C.F.R.
§§
404.1520(f)(1),
The Commissioner may do so by the testimony of a
expert
or
by
reference
to
the
Medical-Vocational
Osenbrock v. Apfel, 240 F.3d
When a claimant has both exertional
10
expert.
Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing
11
Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).
12
13
V.
14
THE ALJ’S DECISION
15
16
The ALJ employed the five-step sequential evaluation process
17
and concluded that Plaintiff was not disabled within the meaning
18
of the Social Security Act.
19
ALJ observed that Plaintiff had not engaged in substantial gainful
20
activity since his application for benefits date of December 6,
21
2011.
22
impaired by bipolar disorder, anxiety, social phobia, ADD, and drug
23
abuse.
24
not have an impairment or combination of impairments that met or
25
medically equaled one of the listed impairments in 20 C.F.R. Part
26
404, Subpart Part P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925-
27
26).
(AR 30).
(AR 30).
(AR 30-39).
At the first step, the
At step two, the ALJ found that Plaintiff was
At step three, the ALJ found that Plaintiff did
(AR 30-31).
28
22
1
The ALJ then found that Plaintiff possessed the RFC to perform
2
a full range of work at all exertional levels but with the following
3
nonexertional limitations:
4
repetitive tasks and some detailed ones, not involving work with
5
the public,” and “can do work involving a low level of pressure in
6
terms of strict deadlines.”
Plaintiff “can do simple, routine,
(AR 31).
7
8
At step four, the ALJ determined that Plaintiff would be
9
unable to perform his past relevant work as a busboy, audio
10
technician, service worker, cook, salesperson, and cashier.
(AR
11
37).
12
Plaintiff’s RFC, age, education, and work experience, there are
13
jobs that exist in significant numbers in the national economy that
14
Plaintiff could perform.
15
expert,
16
representative occupations such as yard worker and farm worker.
17
(AR 38).
18
a disability, as defined by 20 C.F.R. § 416.920(g), since the date
19
of his application for benefits.
20
///
21
///
22
///
23
///
24
///
25
///
26
///
27
///
28
///
Finally, at step five, the ALJ concluded that, based on
Plaintiff
was
(AR 37-38).
able
to
According to the vocational
perform
the
requirements
of
Therefore, the ALJ concluded that Plaintiff was not under
23
(AR 38).
1
VI.
2
STANDARD OF REVIEW
3
4
Under 42 U.S.C. § 405(g), a district court may review the
5
Commissioner’s decision to deny benefits.
“The court may set aside
6
the Commissioner’s decision when the ALJ’s findings are based on
7
legal error or are not supported by substantial evidence in the
8
record as a whole.”
9
(9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen v.
10
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,
11
885 F.2d 597, 601 (9th Cir. 1989)).
Auckland v. Massanari, 257 F.3d 1033, 1035
12
13
“Substantial evidence is more than a scintilla, but less than
14
a preponderance.”
15
Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).
16
evidence which a reasonable person might accept as adequate to
17
support a conclusion.”
18
Smolen,
19
evidence supports a finding, the court must “‘consider the record
20
as a whole, weighing both evidence that supports and evidence that
21
detracts from the [Commissioner’s] conclusion.’”
22
F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.
23
1993)).
24
or reversing that conclusion, the court may not substitute its
25
judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21
26
(citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
27
1457 (9th Cir. 1995)).
80
F.3d
Reddick, 157 F.3d at 720 (citing Jamerson v.
at
It is “relevant
Id. (citing Jamerson, 112 F.3d at 1066;
1279).
To
determine
whether
substantial
Auckland, 257
If the evidence can reasonably support either affirming
28
24
1
VII.
2
DISCUSSION
3
4
Plaintiff asserts five claims.
First, Plaintiff contends that
5
the ALJ improperly evaluated the treating and examining physicians’
6
opinions.
7
discounted Plaintiff’s credibility.
8
the ALJ improperly evaluated the lay witness statements.
9
Plaintiff asserts that the ALJ erred in assessing Plaintiff’s RFC.
10
Fifth, Plaintiff claims that the ALJ erred at step five by giving
11
an incomplete hypothetical to the vocational expert.
12
Mem. In Supp. of Compl. (“Pl’s Mem.”) at 2).
13
discussed below, the Court AFFIRMS the ALJ’s decision.
Second, Plaintiff maintains that the ALJ erroneously
Third, Plaintiff argues that
Fourth,
Plaintiff’s
For the reasons
14
15
A.
16
The ALJ Did Not Err In Evaluating The Opinions Of Plaintiff’s
Treating And Examining Physicians
17
18
Plaintiff asserts that the ALJ erred by failing to evaluate
19
Dr. Stanford’s opinion at all and by according insufficient weight
20
to the opinions of Drs. Early, DiGiaro, and Brooks.
21
2).
(Pl’s Mem. at
The Court disagrees.
22
23
There are three types of medical opinions in social security
24
cases:
The opinions of (1) treating physicians, who examine and
25
treat, (2) examining physicians, who examine but do not treat, and
26
(3)
27
Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir.
28
2009).
non-examining
physicians
who
neither
examine
nor
treat.
Treating physicians are given the greatest weight because
25
1
they are “employed to cure and [have] a greater opportunity to know
2
and observe the patient as an individual.”
3
881 F.3d 747, 751 (9th Cir. 1989).
4
physician’s opinion is refuted by another doctor, the ALJ may not
5
reject this opinion without providing specific and legitimate
6
reasons supported by substantial evidence in the record.
7
v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (ALJ must provided
8
clear and convincing reasons for rejecting an unrefuted treating
9
physician’s opinions); see also Ryan v. Comm’r of Soc. Sec., 528
10
Magallanes v. Bowen,
Accordingly, where a treating
Lester
F.3d 1194, 1198 (9th Cir. 2008).
11
12
Similarly,
the
Commissioner
may
reject
the
controverted
13
opinion of an examining consultative physician only for “specific
14
and legitimate reasons that are supported by substantial evidence.”
15
Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1164 (9th
16
Cir. 2008) (quoting Lester, 81 F.3d at 830-31).
17
of
18
treating physician, the opinion of the nontreating source may be
19
substantial evidence.
20
Cir. 1995).
21
the conflict.”
a
consultative
examining
physician
When the opinion
contradicts
that
of
a
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th
“It is then solely the province of the ALJ to resolve
Id.
22
23
The opinion of a non-examining, non-treating physician does
24
not
constitute
substantial
evidence
25
opinion of either an examining or a treating physician unless it
26
is consistent with and supported by other evidence in record.
27
Lester, 81 F.3d at 831; Morgan v. Comm’r of Soc. Sec., 169 F.3d
28
26
to
justify
rejecting
the
1
595, 600-01 (9th Cir. 1998).
An ALJ need not accept the opinion
2
of any physician, including a treating physician, if that opinion
3
is brief, conclusory, and inadequately supported by the clinical
4
findings.
5
see also Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195 (9th
6
Cir. 2004).
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002);
7
8
1.
9
The ALJ’s Failure To Consider Dr. Stanford’s Opinion’s
Was Harmless
10
11
Plaintiff contends that the ALJ’s failure to mention and weigh
12
the opinion of his treating physician Dr. Stanford constitutes
13
reversible error.
(Pl’s Mem. at 3).
The Court disagrees.
14
15
Admittedly, the failure to mention a treating physician’s
16
opinion is error.
17
Cir.
18
opinion; “[b]ecause a court must give ‘specific and legitimate
19
reasons’ for rejecting a treating doctor’s opinions, it follows
20
even more strongly that an ALJ cannot in its decision totally
21
ignore a treating doctor and his or her notes, without even
22
mentioning them”) (citation omitted); Garrison v. Colvin, 759 F.3d
23
995, 1012 (9th Cir. 2014) (“Where an ALJ does not explicitly reject
24
a medical opinion . . . he errs.”).
25
not require remand because it is harmless.
26
///
27
///
28
///
2015)
(ALJ
Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th
erred
by
not
mentioning
27
treating
physician’s
The error here, however, does
“A decision of the ALJ
1
will not be reversed for errors that are harmless.”
Burch v.
2
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see Marsh, 792 F.3d
3
at 1173 (harmless error analysis applies to an ALJ’s failure to
4
mention a treating physician’s opinion).
5
6
“ALJ errors in social security cases are harmless if they are
7
‘inconsequential to the ultimate nondisability determination,’”
8
Marsh, 792 F.3d at 1172-73 (quoting Stout, 454 F.3d at 1055-56).
9
“‘[A] reviewing court cannot consider [an] error harmless unless
10
it can confidently conclude that no reasonable ALJ, when fully
11
crediting the testimony, could have reached a different disability
12
determination.’”
13
1050, 1055-56 (9th Cir. 2006)).
14
the case show a substantial likelihood of prejudice, remand is
15
appropriate so that the agency can decide whether re-consideration
16
is necessary.
17
borderline
18
appropriate.’”
19
quotation marks omitted).
Id. (quoting Stout v. Commissioner, 454 F.3d
“‘[W]here the circumstances of
By contrast, where harmlessness is clear and not a
question,
remand
for
reconsideration
is
not
Id. (quoting McLeod, 640 F.3d at 888) (internal
20
21
Plaintiff asserts in conclusory form, and with no citation to
22
record support, that Dr. Stanford’s opinions concerned the “nature
23
and severity of plaintiff’s impairments made in functional terms
24
applicable to determining disability.”
25
C.F.R. § 404.1527(a)(2))).
26
not contain a functional assessment of Plaintiff’s limitations.
27
While Dr. Stanford opines that over time a “more definitive symptom
28
picture emerged” indicating that Plaintiff is “psychiatrically
(Pl’s Mem. at 3 (citing 20
Dr. Stanford’s opinions, however, do
28
1
disabled” as a result of his mental disorders, (AR 426), the
2
existence of a psychiatric illness, as identified by a doctor, is
3
not dispositive of a disability under the Social Security Act.
4
5
Moreover, Dr. Stanford’s letter describes Plaintiff’s bipolar
6
symptoms
as
erratic
behavior,
mood
instability,
poor
impulse
7
control/judgment, paranoia, and grandiosity, (AR 426), and his
8
treatment notes identify Plaintiff’s medications and side effects
9
as well as reference his school attendance and freelance work.
(AR
10
305-07, 309).
He further opined that Plaintiff’s ADD made it more
11
difficult for Plaintiff to function in a predictable manner.
12
426-27).
13
assessment of Plaintiff’s limitations. These descriptions – absent
14
an opinion regarding their impact on Plaintiff’s work-related
15
functioning – are not indicative of an inability to work and would
16
not have altered the ALJ’s final decision.
(AR
However, Dr. Stanford’s opinion contains no functional
17
18
The error also was harmless because Dr. Stanford’s opinion is
19
contradicted by other evidence in the record, including Plaintiff’s
20
activities, his conservative and effective treatment, the objective
21
medical evidence, and the opinions of Drs. DiGiaro and Brooks.
22
infra § VII.A.2.b, B.1, B.3, B.4.
23
since his alleged disability onset he has been “doing really well,”
24
his health is improving and his improvement has been continuing.
25
(AR 66-67; see also AR 69 (while his bi-polar disorder is not fully
26
controlled, he is “getting to a point where [he is] able to handle
27
[his] symptoms better”).
28
29
See
Plaintiff further testified that
1
Finally, Dr. Stanford’s opinion fails to consider the impact
2
of Plaintiff’s substance abuse on his functioning.
3
overusing his Klonopin and using marijuana during his treatment
4
with Dr. Stanford.
5
since July 2009 due to sobriety, (AR 62, 65, 67), Plaintiff was
6
abusing opiates in early 2011, (AR 446; 63-64), detoxing in July
7
2011, (AR 316-23), and in a substance abuse rehabilitation program
8
in January 2012.
9
impeded his ability to work and “to just function in general.”
(AR 306-07).
(AR 352).
Plaintiff was
Despite claims of improved health
Plaintiff concedes that his drug use
(AR
10
73). Yet, Dr. Stanford failed to consider how overuse of medication
11
and other substances impeded Plaintiff’s functioning in a work
12
setting.
13
14
For these reasons, based on the evidence in the record as a
15
whole, any failure to consider Dr. Stanford’s opinion was harmless.
16
Thus, remand is not required.
17
18
2.
19
The ALJ Provided Specific And Legitimate Reasons To
Discount Dr. Early’s Opinion
20
21
Plaintiff contends that the ALJ erred by giving too little
22
weight to Dr. Early’s opinion.
(Pl’s Mem. at 2, 13).
Dr. Early
23
opined that Plaintiff would not be able to perform simple tasks,
24
maintain productivity, or stay on task throughout a full workday.
25
(AR 460).
26
tolerating
27
unreliable, and likely to miss more than four work days per month.
28
(AR 459-60).
He further concluded that Plaintiff is limited in
stress,
unable
to
adapt
to
changes
in
routine,
He opined that Plaintiff’s mental illness would
30
1
impair his ability to focus for a two-hour period.
2
additionally
3
sustained function in following work rules, interacting with a
4
supervisor,
5
work changes, and following simple instructions; a 50 percent loss
6
of function in relating to co-workers, functioning independently,
7
and setting limits and standards; a 100 percent loss of function
8
in
9
attendance/work, following complex or detailed instructions, using
10
judgement, directing activities, completing tasks, attending work
11
on a daily basis, behaving in an emotionally stable manner, and
12
relating predictably in social situations; and between a 25 and
13
100 percent loss of function in caring for himself and using public
14
transportation.
dealing
opined
that
maintaining
with
the
Plaintiff
had
a
25
percent
attention/concentration,
public,
demonstrating
(AR 459).
loss
responding
reliability
He
of
to
in
(AR 459).
15
16
The ALJ characterized Dr. Early’s opinion as “essentially
17
opin[ing] that [Plaintiff] is unable to work.”
(AR 36).
18
discounted the opinion on three grounds:
19
largely on Plaintiff’s subjective allegations that the ALJ deemed
20
were “not very credible”; (2) it was inconsistent with Plaintiff’s
21
daily activities; and (3) the consultative psychologist’s opinion
22
was “more objective and more consistent with the record as a whole.”
23
(AR 36).
24
///
25
///
26
///
27
///
28
///
(1) the opinion was based
These reasons are specific and legitimate.
31
The ALJ
1
a.
2
Opinion Premised Largely On Plaintiff’s Discredited
Subjective Complaints
3
4
An ALJ may disregard a treating opinion if the opinion relies
5
heavily on a patient’s descriptions of his symptoms and the ALJ
6
properly has determined that the patient’s statements are not
7
credible.
8
613 F.3d 1217, 1223 (9th Cir. 2010).
9
Early based his findings on his own mental status examinations
10
documenting mood swings, rapid speech, grandiosity, depressed mood,
11
and euthymic (positive) affect and on Plaintiff’s response to
12
medications.
13
and rapid speech, however, says little about the severity of his
14
work-related
15
statements, and not Dr. Early’s mental status examinations, largely
16
formed
17
“essentially . . . unable to work.”
Andrews, 53 F.3d at 1043; Turner v. Comm’s of Soc. Sec.,
the
(Pl’s Mem. at 13).
functioning.
basis
for
Dr.
Plaintiff claims that Dr.
That Plaintiff had mood swings
Rather,
Early’s
Plaintiff’s
opinion
that
subjective
Plaintiff
was
(AR 36).
18
19
Because the ALJ properly found Plaintiff to be not fully
20
credible, see infra § VII.B, and Dr. Early’s opinions largely were
21
based on these discredited statements, the ALJ did not err in
22
giving little to no weight to Dr. Early’s opinion.
23
24
b.
Opinion Inconsistent With Plaintiff’s Activities
25
26
The ALJ also properly relied on Plaintiff’s daily activities
27
to discount Dr. Early’s opinion.
28
Plaintiff’s daily activity level as “fairly normal” and “not as
32
(AR 36).
The ALJ characterized
1
limited as one would expect from an individual with debilitating
2
symptoms.”
3
and mental abilities and social interactions required in order to
4
perform these activities are the same as those necessary for
5
obtaining
6
identified Plaintiff’s activities as volunteer work at a church,
7
looking for work, doing household chores, cooking, shopping, going
8
to the gym at times, attending AA meetings, traveling to Oregon
9
for a wedding in August 2013, using a computer daily for a few
(AR 33, 34).
and
The ALJ opined that “some of the physical
maintaining
writing
prose,
employment.”
doing
(AR
laundry,
34).
and
The
using
ALJ
10
hours,
public
11
transportation, maintaining friendships, and walking his dog.
12
32, 33).
13
[Plaintiff] cannot use public transit on his own or shop on his
14
own.”
(AR
The ALJ noted that “[t]here is no indication that
(AR 36).
15
16
The ALJ’s characterization of Plaintiff’s daily activities as
17
inconsistent with Dr. Early’s opinions is supported by substantial
18
evidence.
19
many chores as he could, used the bus “occasionally to go grocery
20
shopping,”1 and worked as a volunteer for only a brief, two-week
21
period, (Pl’s Mem. at 14), the Court must weigh the evidence as a
22
whole
23
susceptible to more than one rational interpretation.
24
F.3d at 680-81.
and
While Plaintiff contends that he only “tried” to do as
affirm
the
ALJ’s
decision
where
the
evidence
is
Burch, 400
25
26
27
28
1
Although Plaintiff testified that he used the bus “occasionally”
for the specific purpose of going grocery shopping, he testified
more generally that he uses public transportation “almost every
day.” (AR 77).
33
1
Weighing the evidence as a whole, Plaintiff’s activities were
2
inconsistent with Dr. Early’s opinions.
3
720 (citations omitted).
4
Plaintiff has between a 15 and 50 percent loss of function in his
5
ability
6
personal grooming and hygiene.
7
to the opposite.
8
himself
9
transportation
to
use
public
Cf. Reddick, 157 F.3d at
Dr. Early opined, for example, that
transportation
alone
(AR 459).
and
care
for
his
Yet, Plaintiff testified
Plaintiff confirmed that he dresses and grooms
without
assistance.
(AR
independently
on
73).
a
He
daily
also
uses
basis.
public
(AR
77).
10
Plaintiff’s mother confirmed that Plaintiff dresses and grooms
11
himself and uses public transportation alone.
(AR 259, 261).
12
13
Similarly,
while
Dr.
Early
opined
that
Plaintiff
cannot
14
maintain a clean residence, (AR 459), Plaintiff’s testimony is
15
inconsistent with this conclusion.
16
many chores as [he] can,” including washing his clothes and dishes
17
and keeping things organized.
18
suggest
19
Plaintiff’s mother confirmed that he will wash dishes and tidy his
20
room provided he is on his medication.
that
his
cleaning
Plaintiff “tr[ies] to do as
(AR 73, 674).
efforts
were
Plaintiff did not
fruitless.
Moreover,
(AR 260).
21
22
Dr. Early opined that Plaintiff has a 25 percent loss of
23
function in his ability to shop for groceries alone.
24
Plaintiff’s testimony, however, suggests otherwise.
25
whether he “has been going shopping for groceries” since July 2009,
26
Plaintiff answered “yes” and provided no further limitation on his
27
response.
28
shops for groceries at times independently.
(AR 74).
(AR 459).
When asked
Plaintiff’s mother confirmed that Plaintiff
34
(AR 261).
1
Dr. Early opined that Plaintiff has a 50 percent impairment
2
in his ability to function independently.
(AR 459).
As discussed,
3
however, Plaintiff dresses and grooms himself independently.
4
also works out and tries to stay healthy, spends his day caring
5
for himself and his dog, cooks his meals in the oven or on the
6
stovetop, tries to do as many chores as he can and to maintain
7
organization, uses public transportation without assistance on
8
almost a daily basis, takes his dog on long, one-hour walks three
9
times a day, maintains friendships, and corresponds with friends
He
10
and family by e-mail and social media.
Plaintiff also attended 32
11
AA meetings from 2009 and January 2012, and attended four years of
12
college from 2007 to 2010.
13
of these activities is inconsistent with a finding of a marked
14
restriction on Plaintiff’s ability to function independently.2
(AR 51, 73-74, 76-77, 84).
The breadth
15
16
Dr. Early also opined that Plaintiff has a complete loss of
17
function
in
the
ability
to
deal
18
predictably in social situations.
with
the
public
and
relate
These opinions are inconsistent
19
2
20
21
22
23
24
25
26
27
28
Plaintiff also testified that he “tr[ies]” to do as many chores
as he can, has a hard time concentrating and cannot enjoy simple
hobbies, has difficulty enjoying television because he lacks focus,
cannot spend time reading due to his lack of focus, writes lyrical
prose at a level not up to “par” “with his abilities” and writes
only five hours a week instead of “all day every day” as he would
like, has not finished his screenplay, and is fourteen credits shy
of obtaining his associate’s degree in sound recording. (AR 51,
76, 80). Loss of the ability to enjoy leisure activities, write
lyrical prose, or complete college or a screenplay, however, is
not persuasive evidence indicative of a general impairment in
Plaintiff’s ability to function independently.
Nor is it
indicative of a disability within the meaning of the Social
Security Act. Moreover, when evidence is capable of more than one
rational interpretation, the Court must uphold the ALJ’s decision.
Birch, 400 F.3d at 680-81.
35
1
with
Plaintiff’s
testimony.
Plaintiff
confirmed
that
he
has
2
friends and corresponds daily with others through e-mail and social
3
media.
4
in the areas of dealing with the public and relating predictably
5
in social situations.
These contacts are inconsistent with a complete restriction
(AR 75, 81).
6
7
For
these
a
reasons,
8
constituted
legitimate
9
Early’s opinion.
Plaintiff’s
and
specific
inconsistent
reason
to
activities
discount
Dr.
Remand is not warranted.
10
11
c.
12
Dr. Early’s Opinion Is Contradicted By Dr. DiGiaro’s
Opinion
13
14
The ALJ properly relied on the opinion of the consultative
15
psychologist, Dr. DiGiaro, to discount Dr. Early’s opinion.
(AR
16
36).
17
to perform simple and repetitive tasks “more objective and more
18
consistent with the record as a whole.”
The ALJ declared Dr. DiGiaro’s finding that Plaintiff is able
(AR 36, 385).
19
20
When
the
opinion
of
a
consultative
examining
physician
21
contradicts that of a treating physician, the opinion of the
22
nontreating source may be substantial evidence.
23
at 1041.
24
the conflict.” Id. The ALJ’s conclusion that Dr. DiGiaro’s opinion
25
was more objective and consistent than Dr. Early’s opinion was
26
supported by substantial evidence.
Andrews, 53 F.3d
“It is then solely the province of the ALJ to resolve
27
28
36
1
As discussed, Plaintiff’s activities do not support Dr. Early’s
2
functional assessments, supra § VII.A.2.b, but rather are more
3
consistent
4
limitations.
5
document Plaintiff’s mood as “good” and affect as euthymic or
6
“good.”
7
Plaintiff is doing well, id., and Plaintiff confirmed at the
8
hearing that he has improved since July 2009.
9
DiGiaro’s assessment also is more consistent with the medical
with
Dr.
DiGiaro’s
assessment
of
Plaintiff’s
In addition, Plaintiff’s physicians’ notes primarily
Infra
§
VII.A.2.b.
They
indicate
Infra § VII.B.3, B.4.
repeatedly
Supra § III.B.
that
Dr.
10
evidence as a whole.
Substantial evidence
11
thus supports the ALJ’s conclusion that Dr. DiGiaro’s opinion was
12
more objective and consistent with the evidence in the record as a
13
whole.
14
15
The ALJ provided specific and legitimate reasons supported by
16
substantial evidence for rejecting Dr. Early’s findings.
The ALJ
17
thus did not err by relying on Dr. DiGiaro’s opinion to discount
18
Dr. Early’s treating opinion.
19
20
3.
The ALJ Did Not Err By Failing To Recontact Dr. DiGiaro
21
22
Plaintiff
contends
that
the
ALJ
erred
in
evaluating
the
23
opinion of consultative examiner Dr. DiGiaro.
(Pl’s Mem. at 15).
24
The ALJ noted that Dr. DiGiaro opined in her functional capacity
25
assessment that Plaintiff is able to perform simple and repetitive
26
tasks, accept instructions from supervisors, and interact with
27
coworkers and the public.
28
further declared Plaintiff “moderately” impaired in maintaining
(AR 35; see also AR 385).
37
Dr. DiGiaro
1
regular attendance at work, completing a normal workday/work week
2
without interruptions from a psychiatric condition, and performing
3
work activities on a consistent basis.
4
The ALJ gave Dr. DiGiaro’s opinion “some weight” and relied on it
5
to establish Plaintiff’s functional limitations.
6
ALJ thereafter noted that she found Dr. DiGiaro’s opinion “vague
7
regarding what she means by ‘moderate’ limitations but [the ALJ]
8
note[d] that the mental status examination was fairly good and the
9
GAF of 55 indicates ability to do some sorts of work.”
(AR 35; see also AR 385).
(AR 35).
The
(AR 35).
10
11
Plaintiff contends that because the ALJ declared “moderate”
12
to be vague, the ALJ had a duty to “seek clarification from Dr.
13
DiGiaro as to the definition of moderate.”
14
Commissioner will recontact medical sources only when the medical
15
evidence “is inadequate” for the Commissioner to determine whether
16
a claimant is disabled.
17
also will either seek additional evidence or clarification from
18
the treating physician when a medical report contains a “conflict”
19
or an “ambiguity” that must be resolved. 20 C.F.R. § 416.912(e)(1).
(Pl’s Mem. at 15).
20 C.F.R. § 416.912(e).
The
The Commissioner
20
21
Here,
the
record
was
not
inadequate
and
there
were
no
22
conflicts or ambiguities that had to be resolved.
While Plaintiff
23
points out that the ALJ characterized “moderate” as “vague,” this
24
finding is not the equivalent of a finding that the record was
25
inadequate.
Nor did the ALJ make a specific finding of inadequacy.
26
27
28
Moreover, the ALJ had an adequate record to evaluate Dr.
DiGiaro’s opinion.
The ALJ did not reject Dr. DiGiaro’s findings
38
1
of moderate impairment.
2
findings as a whole and construed the opined moderate impairments
3
in the context of a GAF of 55 and “fairly good” mental status
4
examination.
5
opinion “some weight” and “rel[ied] on it regarding [Plaintiff’s]
6
functional limitations.”
7
definition of moderate did not preclude the ALJ from properly
8
evaluating and relying upon Dr. DiGiaro’s opinion.
(AR 35).
Instead, the ALJ considered the doctor’s
Based on this evaluation, the ALJ gave the
(AR 35).
The absence of a more specific
9
10
Finally, although Plaintiff maintains that clarification was
11
necessary to fully develop the record, Plaintiff does not contend
12
that a more specific definition of “moderate” would prove that his
13
functional impairment was worse.
14
explanation would have direct relevance to Plaintiff’s disability
15
claim, therefore, is speculative.
16
that
17
disabling impairments is insufficient to warrant a remand.
additional
evidence
might
Any claim that Dr. DiGiaro’s
Mere conjecture or speculation
have
been
obtained
and
shown
18
19
For these reasons, the ALJ’s duty to develop the record was
20
not triggered.
Cf. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
21
Cir. 2001) (only ambiguous evidence triggers the ALJ’s duty to
22
develop the record).
Remand is not required.
23
24
4.
The ALJ Did Not Err By Relying On Dr. R.E. Brooks’ Opinion
25
26
The ALJ agreed with Dr. Brooks’ opinion that Plaintiff can do
27
simple and some detailed tasks but should not work with the public.
28
(AR 37).
Plaintiff argues that the opinion of a non-examining
39
1
physician cannot by itself constitute substantial evidence that
2
justifies the rejection of the opinion of an examining or treating
3
physician.
4
Dr. Brooks’ opinion to reject the opinions of Plaintiff’s treating
5
or examining physicians.
(Pl’s Mem. at 16).
The ALJ, however, did not rely on
6
7
Moreover, even if the ALJ relied on Dr. Brooks opinion, the
8
opinion of a non-examining, non-treating physician can constitute
9
substantial evidence when supported by other evidence in the record
10
and consistent with that evidence.
11
522 (9th Cir. 1996). The ALJ noted that both Plaintiff’s activities
12
and the record as a whole supported her agreement with Dr. Brooks’
13
conclusions.
14
activities are not consistent with the limitations assessed by Dr.
15
Early or Plaintiff’s subjective complaints of disabling symptoms.
16
Supra § VII.A.2.b.
17
limitations.
18
finding.
(AR 37).
Salee v. Chater, 94 F.3d 520,
The Court already has held that Plaintiff’s
Rather, these activities support Dr. Brooks’
Thus,
substantial
evidence
supports
the
ALJ’s
Accordingly, remand is not required.
19
20
B.
The ALJ Did Not Err In Rejecting Plaintiff’s Credibility
21
22
23
Plaintiff asserts that the ALJ erred by finding his statements
not fully credible.
(Pl’s Mem. at 2).
The Court disagrees.
24
25
To
determine
whether
a
claimant’s
testimony
regarding
26
subjective pain or symptoms is credible, an ALJ must engage in a
27
two-step analysis.
28
claimant has presented objective medical evidence of an underlying
First, the ALJ must determine whether the
40
1
impairment “which could reasonably be expected to produce the pain
2
or other symptoms alleged.”
3
1035-36 (9th Cir. 2007) (internal quotation marks omitted).
4
claimant,
5
reasonably be expected to cause the severity of the symptom she
6
has alleged; she need only show that it could reasonably have
7
caused some degree of the symptom.”
8
at 1282).
9
is no evidence of malingering, “the ALJ can reject the claimant’s
10
testimony about the severity of her symptoms only by offering
11
specific, clear and convincing reasons for doing so.”
12
F.3d at 1281.
however,
“need
Lingenfelter v. Astrue, 504 F.3d 1028,
not
show
that
her
impairment
The
could
Id. (quoting Smolen, 80 F.3d
Second, if the claimant meets this first test, and there
Smolen, 80
13
14
In assessing a claimant’s testimony, the ALJ may consider the
15
following factors:
16
F.3d at 958-59; (2) any inadequately or unexplained failure to
17
pursue treatment or follow treatment, Tommasetti v. Astrue, 533
18
F.3d 1035, 1039 (9th Cir. 2008); (3) conservative treatment, Parra
19
v.
20
techniques of credibility evaluation.”
21
Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (internal quotations
22
omitted).
23
subjective testimony based “solely” on its inconsistencies with
24
the objective medical evidence presented, Bray v. Comm’r of Soc.
25
Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citing Bunnell
26
v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)), an ALJ may consider
27
such inconsistencies as one factor, among many, bearing on the
28
credibility of a claimant’s subjective testimony.
Astrue,
481
(1) inconsistent daily activities, Thomas, 278
F.3d
742,
750-51
(2007);
and
(4)
“ordinary
Turner v. Comm’r of Soc.
In addition, while it is improper for an ALJ to reject
41
See, e.g.,
1
Thomas,
2
objective
3
credibility of subjective testimony regarding the severity of
4
impairments and pain); Morgan v. Comm’r of Soc. Sec., 169 F.3d 595,
5
599-600 (9th Cir. 1999) (same).
6
pain testimony not to be credible, the ALJ must make “findings . .
7
. sufficiently specific to allow a reviewing court to conclude the
8
[ALJ] rejected [the] claimant’s testimony on permissible grounds
9
and
10
278
did
F.3d
at
medical
not
958-60
evidence
arbitrarily
(ALJ
and
properly
other
considered
factors
in
lack
of
evaluating
If the ALJ finds the claimant’s
discredit
the
claimant’s
testimony.”
Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001).
11
12
Here, the ALJ found Plaintiff’s claims of disabling symptoms
13
not entirely credible.
14
his bipolar disorder, ADD, post-traumatic stress disorder, and
15
social
16
worsened and he is less able to engage in activities; his right
17
shoulder impairment limits his use of his right shoulder; he is
18
not able to focus or concentrate; and he is less able to care for
19
himself
20
Plaintiff’s “medically determinable impairments could reasonably
21
be expected to cause some of the alleged symptoms.”
22
however,
23
intensity, persistence and limiting effects of these symptoms were
24
not entirely credible.”
25
///
26
///
27
///
28
///
phobia
and
prevented
his
found
The ALJ noted that Plaintiff claimed that
mother
that
him
helps
from
him.
Plaintiff’s
(AR 32).
42
working;
The
his
ALJ
“statements
symptoms
determined
have
that
The ALJ,
concerning
the
1
The ALJ gave four reasons for finding Plaintiff’s subjective
2
complaints not credible:
(1) inconsistent daily activities; (2)
3
failure to comply with medical treatment; (3) conservative and
4
effective treatment; and (4) the objective medical record.
5
32-34).
(AR
These reasons were specific, clear and convincing.3
6
7
1.
Inconsistent Activities
8
9
The ALJ properly relied on Plaintiff’s inconsistent activities
10
to reject his credibility.
(AR 33).
These activities included
11
volunteer work at a church, looking for work, doing household
12
chores, cooking, shopping, going to the gym at times, attending AA
13
meetings, traveling to Oregon for a wedding in August 2013, using
14
a computer daily for a few hours, writing prose, doing laundry,
15
///
16
///
17
18
19
20
21
22
23
24
25
26
27
28
The ALJ also discounted Plaintiff’s credibility because
Plaintiff’s father described Plaintiff as “lying” about his
symptoms.
(AR 34).
Plaintiff argues that the ALJ parses Dr.
Shank’s statement that Plaintiff lies about his symptoms and
construes it out of context. The Court agrees. Dr. Early reported
that Dr. Shank stated Plaintiff “has been verbally abusing his
mother, and has been out of control,” Plaintiff is paranoid and
“that the Hell's Angels are not against/out to get him,” and
Plaintiff “is lying about current symptoms, and may be manic and
paranoid. I do not see current grounds for commitment on 5150.”
(AR 453). It appears that by “lying” Dr. Shank meant that Plaintiff
falsely believed that Hell’s Angels were out to get him.
In
context, it does not appear that Dr. Shank intended to convey that
Plaintiff was lying about his symptoms of mania, depression,
anxiety, or paranoia. The Court therefore agrees that the ALJ’s
reliance on Dr. Shank’s statement to reject Plaintiff’s credibility
thus was not supported by substantial evidence.
However, the
remaining reasons given to reject Plaintiff’s credibility are
sufficient to affirm the ALJ’s decision.
3
43
1
and using public transportation.
The ALJ characterized this daily
2
activity level as “fairly normal” and “not as limited as one would
3
expect from an individual with debilitating symptoms.”
4
34).
(AR 33,
5
6
The Court already has determined that substantial evidence
7
supported the ALJ’s finding that these activities were inconsistent
8
with Dr. Early’s assessed limitations.
9
same reasons, they are inconsistent with Plaintiff’s complaints of
symptoms.
disabling
11
Plaintiff’s activities translated into the ability to perform
12
appropriate work activities.
13
activities thus constituted a specific, clear and convincing reason
14
to discount Plaintiff’s credibility.
Cf. Barnhart, 278 F.3d at
15
958-59
inconsistencies
16
plaintiff’s
17
credibility).
properly
relied
complaints
and
ALJ
specifically
For the
10
(ALJ
The
Supra §VII.A.2.b.
(AR 33).
on
that
The ALJ’s reliance on these
the
daily
determined
activities
in
between a
assessing
18
19
2.
Failure To Comply With Treatment
20
21
The ALJ concluded that Plaintiff’s credibility was undermined
22
by his failure to comply with prescribed medical treatment.
23
34).
(AR
The ALJ’s findings were supported by substantial evidence.
24
25
The ALJ noted that Plaintiff stopped taking his lamictal or
26
lowered the dose in September 2011.
27
physician noted overuse of Klonopin and expressed concern that he
28
was escalating the dose of Klonopin to a level that would produce
44
In October 2011, Plaintiff’s
1
the risk of seizures upon withdrawal.
2
stopped his lamictal again on his own.
3
overused suboxone and tamezepam.
4
trying to ration his use of Klonopin due to prior overuse.
In
5
October 2013, Plaintiff admitted that he took too much valium.
(AR
6
34; see also AR 306 (in March 2009, Plaintiff consumed a one-
7
month’s supply of clonazepam in ten days); AR 307 (in April 2009,
8
Plaintiff’s
9
clonazepam intake); AR 451 (in August 2011, Plaintiff overused his
10
doctor
“again”
In July 2011, Plaintiff
In December 2012, Plaintiff
In August 2013, Plaintiff was
counseled
Plaintiff
to
limit
his
Klonopin)).
11
12
Other evidence also supported the ALJ’s finding that Plaintiff
13
failed to comply with his medical treatment.
14
Plaintiff consented to using only certain medications and refused
15
to take antipsychotics or mood stabilizers.
(AR 453).
In early
16
2012,
treatment
program,
17
Plaintiff “deflected & denied & refused additional medications.”
18
(AR 354).
at
Cottage
Hospital’s
residential
In August 2011,
19
20
Substantial evidence in the record thus supported the ALJ’s
21
finding that Plaintiff failed to follow his prescribed course of
22
treatment.
23
prescribed treatment constituted a specific and legitimate reason
24
to reject his credibility.
25
///
26
///
27
///
28
///
Accordingly,
Plaintiff’s
non-compliance
with
Cf. Tommasetti, 533 F.3d at 1039.
45
his
1
3. Conservative And Effective Treatment
2
3
The ALJ also properly relied on Plaintiff’s conservative and
4
effective treatment to support her adverse credibility finding.
5
(AR 34).
6
mainly conservative since December 2011.
7
Plaintiff denied side effects from his medications, and Plaintiff
8
testified that his bipolar disorder and depressive symptoms now
9
are controlled with medications.
The ALJ characterized Plaintiff’s medical treatment as
that
Plaintiff’s
She also noted that
(AR 34, 33).
10
found
11
depressive symptoms as long as Plaintiff is not taking illicit
12
drugs.
13
evidence.
(AR 33).
prescribed
The ALJ further
medications
control
his
These findings were supported by substantial
14
15
Plaintiff’s
physicians
prescribed
Klonopin
and
other
16
medications to treat his symptoms of anxiety and his bipolar
17
disorder.
18
443, 445).
19
reported doing well in February 2012, August 2012, January 2013,
20
May 2013; being happy in June 2013; and feeling “really good” and
21
“fantastic” after an adjustment in medication in September 2013.
22
(AR 32).
23
Plaintiff was “[r]esponding well” to his current treatment and
24
“doing well overal[l].”
25
Plaintiff reported improvement in his social anxiety on Klonopin,
26
///
27
///
28
///
(AR 32, 34; see also AR 411, 414, 416, 435, 436, 442,
As discussed above, the ALJ noted that Plaintiff
In March 2012, April 2012, May 2012, and January 2013,
(AR 401, 403, 402, 412).
46
In April 2013,
1
and by May 2013 he was doing well on his medication regime.
(AR
2
32).
3
social
4
Plaintiff’s bipolar disorder had improved and his mood and anxiety
5
were stable.
In June 2013, the ALJ noted that Plaintiff reported that his
anxiety
was
less,
and
by
October
and
November
2013,
(AR 32-33).
6
7
In addition to this evidence, Plaintiff testified at the
8
hearing that his health improved since he stopped using drugs and
9
started “doing lots of yoga” and “sticking to a strict medical
10
regimen with my psychiatrist and my therapist.”
11
further confirmed that his physician’s representation that he was
12
“doing really well” was “definitely” true.
(AR 66-67).
Plaintiff
13
further denied any side effects from his medication.
(AR 63).
14
Plaintiff also testified that, while his bipolar disorder is not
15
fully controlled, he is “getting to a point where [he is] able to
16
handle [his] symptoms better.”
17
improvement in his health to his sobriety and adhering to a strict
18
medication regime.
19
drug use impeded his ability to work and “to just function in
20
general.”
(AR 69).
(AR 62, 65, 67).
(AR 62).
He
Plaintiff attributed the
Plaintiff testified that his
(AR 73).
21
22
Plaintiff argues that his symptoms of depression wax and wane
23
and that it was error for the ALJ to pick out a few isolated
24
instances of improvement over a period of months.
25
Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
26
contends that the ALJ’s references to controlled depression are
27
not supported by the record, (Pl’s Mem. at 19), the Court’s review
28
of the record shows otherwise.
47
Cf. Garrison v.
While Plaintiff
1
According to Plaintiff, Dr. Early indicates that Plaintiff
2
continued
to
have
depression
during
3
Plaintiff cites Dr. Early’s notes from December 6, November 7,
4
October 8, 9, and 16, September 14 and 10, August 31, August 6, and
5
July 22, 2013, to support this claim.
6
428, 429, 431, 435, 436, 437, 439, 440)).
7
cites, however, only those from August 6 and September 10 reference
8
depressed symptoms.
9
diagnosis of bipolar depression but do not report any active
(AR 436, 439).
a
period
of
abstinence.
(Pl’s Mem. at 18 (citing AR
Of the notes Plaintiff
The remainder note Plaintiff’s
10
depressed symptoms.
(AR 428, 429, 431, 435, 437, 440).
Instead,
11
they report a “good” mood and that Plaintiff is “doing well,” (AR
12
428), a “good” mood and “euthymic” affect on two separate sessions,
13
(AR 429, 440), a “fantastic” mood and “euthymic” affect, (AR 435),
14
and a “pretty good” mood and “anxious but optimistic” affect, (AR
15
437).
16
on September 10, 2013, and a “somewhat low” mood and “anxious”
17
depressed affect on August 6, 2013, as discussed below, these
18
reports constitute isolated instances of depression that, viewed
19
in the context of the entire record, do not alter the outcome.
20
436, 439).
While Dr. Early reports a “low” mood and “depressed” affect
(AR
21
22
Admittedly, Dr. Early’s notes also contain other references
23
to depressed or negative symptoms.
24
generally are susceptible to more than one rational interpretation,
25
which precludes this Court from remanding.
26
720-21 (when the evidence can reasonably support either affirming
27
or reversing an ALJ’s conclusion, the Court may not substitute its
28
judgment for that of the Commissioner).
48
These instances, however,
Reddick, 157 F.3d at
Thus, for example, while
1
Dr. Early assessed a low mood and slightly depressed affect in
2
November 2011, his notes also indicate that Plaintiff was “doing
3
better overall.”
4
depressed in April 2013, Dr. Early noted that it was because
5
Plaintiff’s dog had been diagnosed with lymphoma.
6
Dr. Early assessed Plaintiff’s affect as anxious and dysphoric in
7
July 2013, he determined Plaintiff’s mood was “[n]ot too bad” an
8
opined that Plaintiff’s bipolar symptoms were in fair control.
9
441).
(AR 447).
While Plaintiff was tearful and
(AR 445).
While
(AR
In August 2013, Plaintiff’s mood was “somewhat low” and his
10
affect anxious and depressed, but Dr. Early assessed Plaintiff’s
11
general appearance and behavior as nonetheless motivated and open.
12
(AR 439).
13
that Plaintiff might be a “little manic,” and Dr. Early noted an
14
elevated mood and mild increased rate of speech, he opined that
15
this might be due to Plaintiff’s new puppy.
In October 2013, while Plaintiff’s therapist reported
(AR 430).
16
17
Dr. Early’s references to any anxious or depressed symptoms
18
were balanced by competing references to positive symptoms and
19
findings that were inconsistent with an overall assessment of a
20
disabling condition.
They also were inconsistent with Dr. Early’s
21
treatment
a
22
Plaintiff was doing well and his symptoms were controlled by his
23
medications.
Substantial evidence therefore supported the ALJ’s
24
decision
discount
25
Plaintiff’s conservative and effective treatment constituted a
26
specific, clear and convincing reason for rejecting Plaintiff’s
27
credibility, cf. Parra, 481 F.3d at 750-51, and remand is not
28
required.
notes
to
as
whole,
which
Plaintiff’s
49
generally
credibility.
indicated
that
Accordingly,
1
4.
Objective Medical Record
2
3
The ALJ determined that Plaintiff’s testimony about his mental
4
impairments
was
not
entirely
credible
because
the
objective
5
findings were inconsistent with that testimony.
6
that Dr. Guimaraes’s treatment records indicate that in February
7
2012 Plaintiff reported he had been doing well since starting
8
treatment at Cottage Hospital and assigned a GAF score of 60, which
9
was indicative of moderate symptoms.
The ALJ reasoned
The ALJ further noted that
10
in May 2012 Plaintiff was responding well to treatment.
In August
11
2012, Plaintiff “reported doing well” and having no complaints,
12
and his “treating source indicated that this was the best he had
13
been doing in awhile.”
14
exam was within normal limits.
15
doing well overall.
In October 2012, Plaintiff’s mental status
In January 2013, Plaintiff reported
(AR 32).
16
17
Moreover, the ALJ noted that Dr. Early’s treatment records
18
indicated that Plaintiff reported improvement in his social anxiety
19
on
20
medication regime.
21
happy” and noted his social anxiety was less overall.
22
2013, although he presented with complaints of depression and
23
problems sleeping, Plaintiff felt Klonopin worked better than
24
Ativan for anxiety.
25
on Ambien, Sapharis, and Klonopin and stated that he felt “really
26
good now” and “fantastic.”
27
disorder was improved.
28
mood and anxiety.
Klonopin.
In
May
2013,
Plaintiff
was
doing
well
on
his
In June 2013, Plaintiff stated “I’m definitely
In September
Later, in September 2013, Plaintiff went back
In October 2013, Plaintiff’s bipolar
In November 2013, Plaintiff was stable with
(AR 32-33).
50
1
The ALJ’s findings are supported by substantial evidence.
2
Supra
§
III.A.3,
3
generally assigned GAF scores between 70 to 80 and even noted a
4
past GAF for the prior year of 78.4
5
noted that Plaintiff reported doing well in February 2012, in March
6
2012, in April 2012, in May 2012, at the beginning and end of
7
August 2012, in October 2012, and in January 2013. Supra § III.A.5.
8
Dr. Guimaraes consistently assessed Plaintiff with “good” memory
9
and
attention.
A.5.
In
Id.
treating
Plaintiff,
Id.
Importantly,
Dr.
Guimaraes
Moreover, Dr. Guimaraes
Dr.
Guimaraes
repeatedly
10
indicated throughout the course of his treatment – i.e., in March
11
2012, April 2012, May 2012, August 2012, October 2012, and January
12
2013 – that Plaintiff was responding well to his current treatment.
13
Id.
14
best [Plaintiff has] been doing in awhile.”
In early August 2012, Dr. Guimaraes noted that “this is the
Id.
15
16
Moreover,
although
Dr.
Guimaraes
in
one
note
referenced
17
intermittent depression and in three others assessed an anxious
18
mood, these were isolated instances.
19
relatively high GAF scores of between 70 to 80.
20
Thus, while Dr. Guimaraes three times assessed Plaintiff with an
21
anxious mood, (AR 405, 415, 417 (assessing an anxious mood upon
22
early
23
program and in July and August 2012)), he nonetheless assigned GAF
24
4
25
26
27
28
discharge
from
Cottage
Most importantly, he assessed
Hospital’s
Supra § III.A.5.
residential
treatment
While he did assess a GAF score of 60 during Plaintiff’s initial
session, Plaintiff had just been discharged from Cottage Hospital’s
residential treatment program prior to completing the full program
and had not complied with medication recommendations.
Supra §
VII.B.2. A. Moreover, while Dr. Guimaraes assessed a lower GAF
of 50 in his September 2012 functional assessment, (AR 410), this
score is wholly inconsistent with his other consistent scores
assessed during treatment that fell between 70 to 80.
51
1
scores
between
70
2
session.
3
intermittently
4
reported feeling good and Dr. Guimaraes GAF score of 75 was high.
5
Id.
Id.
and
80
during
Similarly,
depressed
all
while
mood
in
but
Dr.
May
Plaintiff’s
Guimaraes
2012,
initial
noted
Plaintiff
an
himself
6
7
Finally,
although
Dr.
Guimaraes
completed
a
functional
8
assessment in September 2012 opining that Plaintiff had marked or
9
moderate work-related limitations and assigned a GAF score of 50,
10
this score is wholly inconsistent with Dr. Guimaraes’s consistent
11
scores between 70 to 80.
12
with Dr. Guimaraes’s mental status findings, including his repeated
13
characterization of Plaintiff’s mood, memory, and attention as good
14
and his notations that Plaintiff was responding well to his current
15
treatment.
16
of doing well throughout the course of his treatment.
Id.
The low GAF also is inconsistent
It also is inconsistent with Plaintiff’s self-reports
Id.
17
18
Dr. Early’s notes similarly refer to Plaintiff as doing well
19
and suggest that Plaintiff’s symptoms of depression were controlled
20
with medication.
21
supported
22
evidence with substantial evidence.
23
(where the evidence is susceptible to more than one rational
24
interpretation, the Court must uphold the decision).
25
objective medical evidence may serve as one factor among many
26
detracting
from
27
testimony.
Cf. Bray, 554 F.3d at 1227; Thomas, 278 F.3d at 958-
28
60; Morgan, 169 F.3d at 599-600. Therefore, remand is not required.
her
See supra § VII.B.3.
reliance
the
on
the
inconsistent
credibility
52
The ALJ, thus, properly
objective
medical
Cf. Burch, 400 F.3d at 680-81
of
Plaintiff’s
Inconsistent
subjective
1
C.
The ALJ Did Not Err In Evaluating Lay Witness Statements
2
3
Plaintiff contends that the ALJ erred in evaluating the lay
4
witness statements of his mother Janice Lloyd, his father Dr. Paul
5
Shank, his therapist Eti Valdez-Kaminsky, his brother law Paul
6
Gerding, Jr., and family friend Deborah Heil.
7
Pl’s Reply at 6).
(Pl’s Mem. at 19;
This claim lacks merit.
8
9
In determining whether a claimant is disabled, an ALJ must
10
consider lay witness testimony regarding a claimant’s ability to
11
work.
12
of lay witnesses only if she gives “reasons that are germane to
13
each witness.”
14
1993). If an ALJ fails to expressly consider lay witness testimony,
15
the court must determine whether the ALJ’s decision remains legally
16
valid, despite such error.
17
ALJ’s
18
adequately supported by substantial evidence in the record, no
19
remand is required.
Stout, 454 F.3d at 1053.
ultimate
The ALJ may discount the testimony
Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.
Carmickle, 533 F.3d at 1162.
credibility
determination
and
If the
reasoning
are
Id. (citation omitted).
20
21
1.
Janice Lloyd
22
23
The ALJ did not fully credit the lay witness statement of
24
Plaintiff’s mother Janice Lloyd.
25
Lloyd
26
prepares his own means, washes dishes, goes out alone, shops in
27
stores, uses public transportation, takes care of his dog, and is
28
capable of functioning when on his medications.
reported
Plaintiff
has
no
53
(AR 34).
problems
The ALJ noted that Ms.
with
personal
(AR 34).
care,
1
The ALJ discounted Ms. Lloyd’s opinion regarding the severity
2
of Plaintiff’s symptoms, including her opinion that Plaintiff
3
cannot “hold down a job.”
4
Lloyd had a “familial motivation” to support Plaintiff and a
5
“financial interest in seeing [Plaintiff] receive benefits in order
6
to increase the household income since [Plaintiff] was living with
7
her at the time she completed [her written statement].”
(AR 263-64).
The ALJ reasoned that Ms.
(AR 34)
8
9
The
testimony
of
a
lay
witness
generally
should
not
be
10
rejected solely because he is a family member.
11
1289 (the fact that a lay witness is a family member cannot be a
12
ground for rejecting his testimony); Valentine v. Comm’r of Soc.
13
Sec., 574 F.3d 685, 694 (9th Cir. 2009) (same).
14
also noted that Ms. Lloyd had a financial interest in her son’s
15
receipt of disability benefits.
16
specific spouse exaggerated a claimant’s symptoms in order to get
17
access
18
‘interested party in the abstract,’ might suffice to reject that
19
spouse's testimony.”
20
did not find Ms. Lloyd exaggerated Plaintiff’s symptoms for the
21
purpose of getting access to his disability benefits.
22
evidence in the record suggest that Ms. Lloyd exaggerated her
23
statements for this purpose.
24
Plaintiff's mother and had a financial interest in Plaintiff’s
25
receipt of benefits at the time of her statements is not a proper
26
reason for rejecting her testimony.
to
his
disability
(AR 34).
benefits,
as
Smolen, 80 F.3d at
The ALJ, however,
“[E]vidence that a
opposed
Valentine, 574 F.3d at 694.
to
being
an
Here, the ALJ
Nor did any
Thus, the fact that Ms. Lloyd is
27
28
54
1
Even if the ALJ erred, however, in rejecting Ms. Lloyd’s
2
testimony on this ground, the error was harmless.
Ms. Lloyd’s
3
testimony was cumulative of Plaintiff’s own testimony, and the ALJ
4
properly rejected Plaintiff’s testimony.
5
reasons apply equally to Ms. Lloyd’s statements.
6
therefore, confidently concludes that no reasonable ALJ would have
7
reached a different decision based upon this evidence.
8
454 F.3d at 1056 (“[Where the ALJ’s error lies in a failure to
9
properly discuss competent lay testimony favorable to the claimant,
10
a reviewing court cannot consider the error harmless unless it can
11
confidently conclude that no reasonable ALJ, when fully crediting
12
the testimony, could have reached a different determination.”).
13
Thus, any error by the ALJ did not materially impact the ALJ’s
14
decision and was harmless.
Supra § VII.B.
These
The Court,
Cf. Stout,
Accordingly, remand is not required.
15
16
2.
Dr. Paul Shank
17
18
Dr. Shank stated that Plaintiff has an inability to socialize
19
and to retain relationships, does not interact well even with
20
family, has extreme fear – not based in reality – of being followed
21
by Hell’s Angeles, drug dealers and others, has a phobia about the
22
way he interacts with people has extreme situational anxiety at
23
the slightest interaction and barrages strangers inappropriately
24
with expletives. (AR 454). The ALJ rejected Dr. Shank’s statements
25
because (1) it was not clear what type of physician Dr. Shank is;
26
(2) Dr. Shank’s opinion was less objective than the opinions of
27
other medical providers because he is Plaintiff’s father; (3) it
28
was not clear how often Dr. Shank saw Plaintiff; and (4) Dr. Shank’s
55
1
statements were based mainly on Plaintiff’s subjective statements.
2
(AR 34-35).
3
these statements because the ALJ treated Dr. Shank’s statements as
4
a medical, not lay, opinion.
Plaintiff contends that the ALJ improperly evaluated
(Pl’s Mem. at 21-22).
5
6
The ALJ needed only to cite a germane reason to reject Dr.
7
Shank’s statements.
That Dr. Shank’s opinions were based largely
8
on Plaintiff’s discredited self-reported symptoms is a germane
9
reason sufficient to support the ALJ’s decision.
Even if, however,
10
the ALJ had erred, the error was harmless for the same reasons any
11
error with respect to improperly considering Ms. Lloyd’s statements
12
were harmless.
Accordingly, remand is not necessary.
13
14
3.
Eti Valdez-Kaminsky, MFT
15
16
The ALJ discounted the opinion of his therapist Eti Valdez-
17
Kaminsky, MFT.
18
testimony
19
necessarily find that a therapist is the equivalent of a “lay
20
witness.”
21
the
22
considered a medical source or a lay witness, the ALJ provided
23
specific and legitimate reasons to reject the therapist’s opinions.
as
While Plaintiff characterizes his therapist’s
“lay
witness
testimony,”
the
Court
does
not
However, for purposes of evaluating the ALJ’s decision,
distinction
is
not
material.
Whether
Valdez-Kaminsky
is
24
25
Valdez-Kaminsky
social
assessed
marked
activities;
restrictions
daily
26
activities;
27
persistence, and pace; dealing with the public; understanding,
28
remembering, following, and carrying out complex instructions;
56
maintaining
in
concentration,
1
behaving in an emotionally stable manner; and relating predictably
2
in social situations.
3
(AR 455).
4
Plaintiff “essentially . . . was unable to work.”
Valdez-Kaminsky assessed a GAF score of 44.
The ALJ characterized Valdez-Kaminsky as opining that
(AR 36).
5
6
The ALJ gave little to no weight to Valdez-Kaminsky’s opinion
7
because the therapist was not an acceptable medical source.
8
36).
9
medical record and the therapist’s own treatment notes.
(AR
The ALJ also found that the opinion was not supported by the
(AR 36-
10
37).
The ALJ further found that the RFC’s limitation to simple
11
unskilled
12
Plaintiff was markedly limited in the areas of detailed work,
13
attention, and concentration.
work
accommodated
Valdez-Kaminsky’s
opinion
that
(AR 37).
14
15
Plaintiff concedes that Valdez-Kaminsky is not an acceptable
16
medical source, but maintains that he provided relevant lay witness
17
testimony.
18
with
19
discounting lay witness testimony.
20
1211, 1218 (9th Cir. 2005).
21
Kaminksy’s
22
including
23
allegations
24
limitations.”
(AR 36-37; AR 418, 455-57).
For
Valdez-Kaminsky
(Pl’s Mem. at 20 (citing SSR 06-3p)).
medical
evidence”
opinion
the
is
was
valid
and
germane
for
Here, the ALJ noted that Valdezby
treatment
notes,
to
reason
Bayliss v. Barnhart, 427 F.3d
“unsupported
claimant’s
pertaining
a
“Inconsistency
many
of
the
[the
medical
which
record,
indicate
therapist’s]
no
opined
25
26
example,
deemed
Plaintiff
markedly
27
impaired in his ability to maintain attention and concentration,
28
yet
on
examination
Plaintiff
had
57
fair
to
good
attention
and
1
concentration.
(AR 312, 314, 414-17). Valdez-Kaminsky opined that
2
Plaintiff was mildly to moderately impaired in his ability to use
3
public transportation and shop for groceries alone, (AR 36; AR
4
456), yet both Plaintiff and his mother acknowledged that he could
5
go out alone, use public transportation (almost daily), and grocery
6
shop.
7
Plaintiff was moderately impaired in his ability to care for his
8
personal hygiene and maintain a clean residence, yet Plaintiff
9
testified that he could perform household chores, keep things
(AR 74, 77, 261).
Valdez-Kaminsky further opined that
10
organized, and independently dress and groom.
(AR 73, 383).
In
11
fact, on examination, providers repeatedly described Plaintiff as
12
neatly, appropriately, or well groomed.
13
414, 416).
14
Kaminsky’s opinions and the medical and other record evidence, (AR
15
36-37), she provided a valid and germane reason for discounting
16
the therapist’s opinion.
17
therefore, is not warranted.
(AR 312, 314, 352, 383,
Because the ALJ noted inconsistencies between Valdez-
Cf. Parra, 481 F.3d at 750.
Remand,
18
19
4.
Paul Gerding, Jr. And Deborah Heil
20
21
Plaintiff contends that the ALJ erred when he failed to
22
discuss the statements of Paul Gerding, Jr., Plaintiff’s brother-
23
in-law, and Deborah Heil, a family friend.
24
Mr. Gerding stated that Plaintiff has outbursts, sometimes could
25
not get out of bed, and has great trouble organizing and remembering
26
the demands of life on a day-to-day basis.
27
stated that Plaintiff was forgetful, distractible, and sometimes
28
nervous; was socially withdrawn; suffered from odd thinking; had
58
(Pl’s Mem. at 23-24).
(AR 292-93).
Ms. Heil
1
difficulty making and keeping friends and lacked a solid peer
2
ground; had different moods, anger outbursts, and illogical rants;
3
was intolerant of others; and had poor concentration.
(AR 291).
4
5
“[C]ompetent lay witness testimony ‘cannot be disregarded
6
without comment.’”
7
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)).
8
however,
9
individualized, witness-by-witness basis.
need
not
Molina v. Astrue, 674 F.3d at 1114 (quoting
discuss
every
witness’s
The ALJ,
testimony
Id.
on
an
“Rather, if the
10
ALJ gives germane reasons for rejecting testimony by one witness,
11
the ALJ need only point to those reasons when rejecting similar
12
testimony by a different witness.”
13
at 694).
14
witness testimony and provide “her reasons for disregarding the
15
lay witness testimony, either individually or in the aggregate.”
16
Id.
Id. (citing Valentine, 574 F.3d
At a minimum, the ALJ must acknowledge reviewing the lay
17
18
The
ALJ
did
not
evaluate
Mr.
Gerding’s
or
Ms.
Heil’s
19
statements.
Contrary to Plaintiff’s claim, however, the ALJ did
20
not commit per se error.
21
Id. (“Where lay witness testimony does not describe any limitations
22
not already described by the claimant, and the ALJ’s well-supported
23
reasons for rejecting the claimant’s testimony apply equally well
24
to the lay witness testimony, it would be inconsistent with our
25
prior harmless error precedent to deem the ALJ’s failure to discuss
26
the lay witness testimony to be prejudicial per se.”) (citations
27
omitted).
Cf. id.
28
59
Harmless error analysis applies.
1
Mr. Gerding’s and Ms. Heil’s statements did not describe any
2
limitations not already described by Plaintiff and Valdez-Kaminsky.
3
(AR
4
Plaintiff’s
5
effective conservative treatment, and the medical record.
6
VII.B.1, B.3, B.4.
7
because they were inconsistent with the objective medical and other
8
record evidence.
9
applicable
258-65,
292-94,
418,
statements
to
454,
455-57).
because
of
The
ALJ
Plaintiff’s
rejected
activities,
Supra §
The ALJ rejected Valdez-Kaminsky’s statements
Supra § VII.C.3.
the
statements
of
These reasons are equally
Mr.
Gerding
and
Ms.
Heil.
10
Therefore, the Court confidently concludes that no reasonable ALJ
11
would have reached a different decision based upon the evidence.
12
Cf. Stout, 454 F.3d at 1056.
13
and remand is not required.
Accordingly, the error was harmless
14
15
D.
The ALJ Did Not Err In Determining Plaintiff’s RFC
16
17
Plaintiff
claims
that
the
ALJ
failed
properly
to
assess
18
Plaintiff’s RFC. Plaintiff contends that, “by improperly rejecting
19
the opinions of Drs. Early and DiGiaro, as well as the lay witness
20
information,
of
[Plaintiff’s]
21
impairments or limitations in formulating the RFC.”
(Pl’s Mem. at
22
24).
the
ALJ
fails
to
address
all
The Court disagrees.
23
24
Social Security Ruling 96-8p defines a claimant’s RFC as “an
25
assessment of an individual’s ability to do sustained work-related
26
physical and mental activities in a work setting on a regular and
27
continuing basis.”
28
basis” is further defined as meaning “8 hours a day, for 5 days a
SSR 96-8p.
The term “regular and continuing
60
1
week,
or
2
administrative finding left to the Commissioner.
3
20 C.F.R. § 416.946 (ALJ, not a doctor, is responsible for assessing
4
RFC); Vertigan v. Halter, 260 F. 3d 1044, 1049 (9th Cir. 2001) (“It
5
is
6
claimant’s physician to determine [RFC].”).
7
RFC finding on his analysis of the record as a whole, not on the
8
opinion of a single physician.
9
an ALJ’s RFC if it is supported by substantial evidence and the
clear
an
equivalent
that
it
is
work
the
schedule.”
responsibility
Id.
of
RFC
is
an
See SSR 96-8p;
the
ALJ,
not
the
The ALJ must base his
See SSR 96-8p.
A court will affirm
10
ALJ properly applies the legal standard.
11
1217.
12
differently does not impugn the ALJ’s reasoning.
13
533
14
Commissioner’s decision if it contains legal error or is not
15
supported by substantial evidence).
That
F.3d
at
a
claimant
1038
(an
would
appellate
have
Bayliss, 427 F.3d at
interpreted
court
will
the
record
See Tommasetti,
only
disturb
the
16
17
Here, the ALJ determined that Plaintiff possessed the RFC to
18
perform a full range of work at all exertional levels but with the
19
following nonexertional limitations:
20
routine, repetitive tasks and some detailed ones, not involving
21
work with the public,” and “can do work involving a low level of
22
pressure in terms of strict deadlines.”
23
this determination on the opinions of Dr. DiGiaro and Brooks,
24
Plaintiff’s
25
evidence.
26
evidence.
activities,
(AR 35, 37).
and
the
Plaintiff “can do simple,
(AR 31).
overall
The ALJ based
medical
and
record
The ALJ’s RFC was supported by substantial
27
28
61
1
Drs. DiGiaro and Brooks opined that Plaintiff could perform
2
simple,
repetitive
tasks
and
could
accept
instructions
from
3
supervisors and interact with coworkers.
4
385).
5
had a severe impairment in dealing with work stress by limiting
6
Plaintiff to “low level of pressure in terms of strict deadlines.”
7
(AR 31; AR 385).
8
supported by Plaintiff’s objective medical records, which as a
9
whole indicated that Plaintiff’s condition generally resolved when
(AR 37; AR 129, 131,
The ALJ incorporated Dr. DiGiaro’s opinion that Plaintiff
Importantly, the ALJ’s RFC finding was also
10
he complied with his physicians’ treatment recommendations.
(AR
11
32); supra § VII.B.3, 4.
12
in activities, some of which the ALJ determined were necessary to
13
obtain and maintain employment, that were inconsistent with a claim
14
of disability and consistent with the ALJ’s RFC.
15
VII.B.1.
16
opinions of Dr. Early and discounted the credibility of Plaintiff’s
17
statements describing more restrictive limitations.
18
36); supra § VII.A.2 and B.
Moreover, Plaintiff acknowledged engaging
(AR 33); supra §
Finally, the ALJ properly rejected the more restrictive
(AR 32-34,
19
20
Admittedly, the ALJ’s RFC did not contain the limitations
21
identified by Dr. Early or certain limitations identified by Dr.
22
DiGiaro.
23
determining the RFC, an ALJ is not required to incorporate evidence
24
from physicians when the ALJ previously and permissibly discounted
25
that evidence. Chaudhry, 688 F.3d at 671 (“because the ALJ provided
26
specific and legitimate reasons supported by substantial evidence
27
to give less weight to [the examining physician’s] opinion, we
28
conclude that the ALJ did not err in basing the RFC on [the DDS
The Ninth Circuit has repeatedly held, however, that, in
62
1
nonexamining physician’s] findings rather than [the examiner’s]”);
2
Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004)
3
(in determining RFC, the “ALJ was not required to incorporate
4
evidence from the opinions of [the claimant’s] treating physicians,
5
which were permissibly discounted”). Because the ALJ properly
6
rejected the severe limitations opined by Drs. Early and DiGiaro,
7
he did not err in excluding those limitations from the RFC.
8
9
For these reasons, the ALJ did not err in formulating the RFC.
10
The ALJ applied the proper legal standard and the RFC was supported
11
by substantial evidence.
Accordingly, remand is not appropriate.
12
13
E.
The ALJ Did Not Err At Step Five
14
15
Plaintiff
contends
that
the
ALJ
gave
an
incomplete
16
hypothetical to the vocational expert (“VE”).
17
rely on the testimony of a VE where the ALJ poses a hypothetical
18
“contain[ing]
19
supported by substantial evidence in the record.”
20
F.3d at 1217; see also Valentine, 574 F.3d at 690 (“The hypothetical
21
an ALJ poses to a vocational expert, which derives from the RFC,
22
must set out all the limitations and restrictions of the particular
23
claimant.”) (internal quotation marks omitted).
24
is not required to include limitations for which there was no
25
substantial evidence.
26
free to accept or reject restrictions in a hypothetical question
27
that are not supported by substantial evidence.”).
28
limitations were those that the ALJ found did not exist.
all
the
limitations
the
ALJ
An ALJ may properly
found
credible
and
Bayliss, 427
The ALJ, however,
Osenbrock, 240 F.3d at 1164-65 (“An ALJ is
63
The omitted
The ALJ
1
included all of the limitations that he found to exist, and his
2
findings were supported by substantial evidence.
3
not err in omitting the other limitations Plaintiff claimed, but
4
failed to prove.
5
2001).
The ALJ thus did
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
Accordingly, remand is not warranted.
6
7
VIII.
8
CONCLUSION
9
10
Consistent with the foregoing, IT IS ORDERED that Judgment be
11
entered AFFIRMING the decision of the Commissioner.
The Clerk of
12
the Court shall serve copies of this Order and the Judgment on
13
counsel for both parties.
14
15
DATED:
June 9, 2017
16
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
17
18
19
20
21
22
23
NOTICE
THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE.
24
25
26
27
28
64
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