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)

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

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