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
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