Jason Jonathan William Erstad v. Carolyn W. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (mba)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11
12

JASON JONATHAN WILLIAM
ERSTAD,
Plaintiff,

13

16

MEMORANDUM OPINION
AND ORDER

v.

14
15

Case No. CV 16-1629-DFM

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

17
18
19

Jason Jonathan William Erstad (“Plaintiff”) appeals from the Social

20

Security Commissioner’s final decision denying his application for

21

Supplemental Security Income (“SSI”). For the reasons discussed below, the

22

Commissioner’s decision is affirmed and this matter is dismissed with

23

prejudice.

24

///

25
26
27
28

On January 23, 2017, Berryhill became the Acting Social Security
Commissioner. Thus, she is automatically substituted as Defendant under
Federal Rule of Civil Procedure 25(d).
1

1

I.

2

BACKGROUND

3

Plaintiff was born in 1992. Administrative Record (“AR”) 182, 191. In

4

January 2003, he filed an application for SSI; the application was approved

5

and he began receiving benefits. AR 19, 92. After the Social Security

6

Administration (“SSA”) began to suspect that Plaintiff was malingering, a

7

Cooperative Disability Investigations Unit (“CDI Unit”) opened an

8

investigation and found that Plaintiff was “functioning at a higher level than

9

his allegations.”2 AR 366. The SSA terminated Plaintiff’s SSI benefits in

10
11

August 2010. AR 19, 27, 92.
On May 15, 2012, Plaintiff filed a new application for SSI. AR 19, 103,

12

182-90. After his application was denied, Plaintiff requested a hearing before

13

an administrative law judge (“ALJ”). AR 115-17. A hearing was held on

14

August 27, 2013, at which Plaintiff, who was represented by counsel, testified,

15

as did a vocational expert. AR 40-79.3

16

In a written decision issued August 21, 2014, the ALJ denied Plaintiff’s

17

claim for benefits. AR 19-32. The ALJ found that Plaintiff had the following

18

“severe combination of impairments”: asthma, headaches, obesity, “a mood

19

disorder with psychotic features,” anxiety disorder, and borderline intellectual

20

functioning; as of December 29, 2012, the date Plaintiff was in a car accident

21

and injured his left eye, Plaintiff’s severe combination of impairments also

22

The SSA and the SSA’s Office of the Inspector General established the
CDI program to investigate suspected fraud in disability claims. See
Cooperative Disability Investigations (CDI), Office of the Inspector General,
https://oig.ssa.gov/cooperative-disability-investigations-cdi (last accessed July
26, 2017).

23
24
25
26
27
28

2

The ALJ stated that a “continued hearing” was held on January 28,
2014, at which Plaintiff’s mother and the VE testified. AR 19. The transcript
from that hearing was not included in the administrative record.
3

2

1

included “corneal staining (due to chronic hyphema),” vitreous hemorrhage,

2

and retinal detachment.4 AR 21. The ALJ found that Plaintiff retained the

3

residual functional capacity (“RFC”) to perform “a full range of work at all

4

exertional levels but with the following non-exertional limitations: he remains

5

able to do work consisting of simple, repetitive tasks, cannot interact with the

6

public, has only monocular vision with no stereo function, and should avoid

7

hazards.” AR 26. Based on the VE’s testimony, the ALJ found that Plaintiff

8

could perform jobs that existed in significant numbers in the national

9

economy. AR 31-32. He therefore concluded that Plaintiff was not disabled.

10

AR 32.

11

Plaintiff requested review of the ALJ’s decision. AR 14-15. After

12

considering new evidence submitted by Plaintiff, the Appeals Council denied

13

review on January 19, 2016. AR 1-6.5 This action followed.

14

II.

15

DISCUSSION

16

Plaintiff argues that the ALJ erred in (1) discounting the opinion of his

17

treating psychiatrist, Dr. Desmond B. Chiong, and (2) assessing his credibility.

18

Joint Stipulation (“JS”) at 6. For the reasons discussed below, the Court finds

19
20
21
22
23
24
25
26
27
28

The ALJ found that Plaintiff’s asthma was not severe, but he
nonetheless considered it in evaluating whether Plaintiff was disabled. AR 2122. He found that Plaintiff’s mental condition was properly characterized as a
mood disorder with psychotic features, not schizophrenia. AR 22-23. And he
concluded that Plaintiff’s alleged back pain was not a medically determinable
impairment. AR 23. Plaintiff has not challenged those findings.
4

When the Appeals Council considers new evidence in deciding whether
to review an ALJ’s decision, “that evidence becomes part of the administrative
record, which the district court must consider when reviewing the
Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r of
Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
5

3

1

that the ALJ did not err.6

2

A.

3
4

Dr. Chiong’s Opinion
Plaintiff argues that the ALJ erred by according little to no weight to Dr.

Chiong’s opinion. JS at 6-17.

5

1.

6

Three types of physicians may offer opinions in Social Security cases:

Applicable Law

7

those who treated the plaintiff, those who examined but did not treat the

8

plaintiff, and those who did neither. See 20 C.F.R. § 416.927(c); Lester v.

9

Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996). A treating

10

physician’s opinion is generally entitled to more weight than an examining

11

physician’s opinion, which is generally entitled to more weight than a

12

nonexamining physician’s. Lester, 81 F.3d at 830. When a treating or

13

examining physician’s opinion is uncontroverted by another doctor, it may be

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Social Security Regulations regarding the evaluation of opinion
evidence and credibility were amended effective March 27, 2017. Where, as
here, the ALJ’s decision is the final decision of the Commissioner, the
reviewing court generally applies the law in effect at the time of the ALJ’s
decision. See Lowry v. Astrue, 474 F. App’x 801, 805 n.2 (2d Cir. 2012)
(applying version of regulation in effect at time of ALJ’s decision despite
subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647
(8th Cir. 2004) (“We apply the rules that were in effect at the time the
Commissioner’s decision became final.”); Spencer v. Colvin, No. 15-05925,
2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405
does not contain any express authorization from Congress allowing the
Commissioner to engage in retroactive rulemaking”); cf. Revised Medical
Criteria for Determination of Disability, Musculoskeletal System and Related
Criteria, 66 Fed. Reg. 58010, 58011 (Nov. 19, 2001) (“With respect to claims
in which we have made a final decision, and that are pending judicial review in
Federal court, we expect that the court’s review of the Commissioner’s final
decision would be made in accordance with the rules in effect at the time of the
final decision.”). Accordingly, the Court applies the versions of 20 C.F.R.
§§ 416.927 and 416.929 that were in effect at the time of the ALJ’s August
2014 decision.
6

4

1

rejected only for “clear and convincing reasons.” See Carmickle v. Comm’r

2

Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d

3

at 830-31). Where such an opinion is contradicted, the ALJ must provide only

4

“specific and legitimate reasons” for discounting it. Id.; see also Garrison v.

5

Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Moreover, “[t]he ALJ need not

6

accept the opinion of any physician, including a treating physician, if that

7

opinion is brief, conclusory, and inadequately supported by clinical findings.”

8

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v.

9

Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The weight accorded to a

10

physician’s opinion depends on whether it is consistent with the record and

11

accompanied by adequate explanation, the nature and extent of the treatment

12

relationship, and the doctor’s specialty, among other things. § 416.927(c).

13
14
15

2.

Relevant Facts
a.

Dr. Rosa Colonna

On June 24, 2010, Dr. Colonna, a psychologist, examined Plaintiff at the

16

SSA’s request. AR 358-62. Dr. Colonna diagnosed mood disorder and

17

borderline intellectual functioning. AR 361. She concluded that Plaintiff would

18

be able to understand, remember, and carry out “short, simplistic

19

instructions.” Id. He had a “mild inability” to understand, remember, and

20

carry out detailed instructions. Id. Plaintiff would be able to make “simplistic

21

work-related decisions without special supervision.” Id. He was “socially

22

appropriate” and “present[ed] with the ability to interact appropriately with

23

supervisors, coworkers and peers.” AR 362.

24
25

b.

Medical Consultants

On August 1, 2012, at the SSA’s request, psychologist Sonya Adamo

26

reviewed Plaintiff’s medical records and rendered an opinion as to his mental

27

limitations. AR 83-89. Dr. Adamo opined that Plaintiff was moderately

28

limited in his ability to remember and carry out detailed instructions and
5

1

interact appropriately with the general public. AR 86-87. She opined that he

2

was “not significantly limited” in all other listed functional areas, including the

3

ability to remember and carry out very short and simple instructions,

4

remember work procedures, maintain a schedule, work with others, and make

5

simple decisions. AR 86-87. Dr. Adamo wrote that Plaintiff “may have some

6

difficulty with recalling detailed instructions, but [he] is able to complete and

7

remember short, basic instructions” and “simple tasks.” Id. She believed that

8

Plaintiff’s “anxiety and restricted affect may create problems if interacting with

9

the public occupies a large part of his work; he is able to conform his behaviors

10

in superficial work settings.” AR 87.

11

On November 2, 2012, Dr. F.L. Williams reviewed Plaintiff’s medical

12

records and rendered an assessment similar to Dr. Adamo’s. AR 98-102. Dr.

13

Williams concluded that Plaintiff could perform only nonpublic, simple,

14

repetitive tasks. AR 101.

15

c.

Dr. Chiong

16

On December 12, 2013, Dr. Chiong met with Plaintiff for the first time

17

and he completed an “Initial Medication Support Service” form. AR 782-84.

18

In the section of the form for listing “Chief Complaint/Presenting

19

Problem/Client Goals,” Dr. Chiong wrote that Plaintiff was “unable to do a

20

job” and “disabled for job,” and that he had a history of “mood swings,”

21

“hear[ing] voices,” and other symptoms. AR 782.

22

Under the section of the form for listing Plaintiff’s “mental status,” Dr.

23

Chiong wrote, “stays home, graduated H.S., no college, worked [at] Career

24

Partners 2.5 months (unable to do the job), no job. Mood stable.” AR 783.

25

Although the form is difficult to read, it appears that Dr. Chiong noted that

26

Plaintiff’s anxiety was “high,” he was paranoid, and he heard voices calling his

27

name. Id. Under “assessment,” Dr. Chiong wrote, “p[atient] is disabled for

28

work.” AR 784. He diagnosed “severe generalized anxiety disorder (v. severe
6

1

anxiety),” “panic disorder” with panic attacks “once a w[ee]k,” schizophrenia,

2

and “chronic paranoia.” Id. At the end of the form, Dr. Chiong reiterated, “Pt.

3

is disabled for work and is totally [and] permanently disabled.” AR 784.

4

On December 20, 2013, Dr. Chiong completed a Medi-Cal Presumptive

5

Disability Certification. AR 778-79. Dr. Chiong listed Plaintiff’s conditions as

6

“chronic schizophrenia,” “severe generalized anxiety disorder (very severe),”

7

and “panic disorder (panic attack once a week).” AR 778.

8

On January 13, 2014, Dr. Chiong completed a mental-impairment

9

questionnaire. AR 786. He stated that he first treated Plaintiff on December 12,

10

2013, and he listed the “date of most recent exam” as “12/ /13,” leaving the

11

date blank. Id. Dr. Chiong stated that he had seen Plaintiff twice and that he

12

would thereafter be seeing Plaintiff every two months. Id.

13

Dr. Chiong listed Plaintiff’s impairments as “schizophrenia, paranoid”

14

and “panic disorder.” Id. He checked boxes indicating that Plaintiff was

15

irritable, emotionally labile, and easily distracted; his thinking was illogical; his

16

immediate memory was poor; and his sleep was erratic. AR 787. Dr. Chiong

17

indicated that Plaintiff displayed difficulty thinking or concentrating; agitation;

18

generalized or persistent anxiety; paranoia or suspiciousness; persistent

19

irrational fears; recurrent panic attacks; vigilance and scanning; “[d]eeply

20

ingrained, maladaptive patterns of behavior”; impulsive or damaging behavior;

21

intense and unstable interpersonal relationships; “[p]athological dependence,

22

passivity, or aggressiveness”; social withdrawal or isolation; and delusions. Id.

23

Dr. Chiong checked boxes indicating that Plaintiff had “marked”

24

limitation—which was defined as “symptoms constantly interfere with

25

ability,” the highest degree of limitation listed on the form—to perform all 23

26

listed mental activities, including understanding and carrying out one- to two-

27

step instructions, making simple work-related decisions, and asking simple

28

questions or requesting assistance. AR 788. When asked whether Plaintiff
7

1

experienced “any other work-related limitations,” Dr. Chiong wrote, “unable

2

to hold down a job.” AR 789. Dr. Chiong believed that Plaintiff would be

3

absent from work as a result of his impairments more than three times a

4

month, and that the described symptoms and limitations existed as of April 24,

5

2010. Id. In the section for writing additional comments, Dr. Chiong wrote

6

that Plaintiff was “totally [and] permanently disabled.” Id.

7

On February 5, 2014, Dr. Chiong wrote a letter “to whom it may

8

concern,” stating that Plaintiff suffered from chronic paranoid schizophrenia

9

and “extremely high anxiety.” AR 790. Dr. Chiong wrote that Plaintiff was

10

“extremely restricted in his functioning capacity due to his illness” and that he

11

was “totally and permanently disabled for work.” Id. Dr. Chiong wrote that

12

Plaintiff had “very little insight into his illness” and needed long-term

13

medication treatment, supportive therapy, and “psycho-education.” Id.

14

In a treatment note signed on February 5, 2014, Dr. Chiong noted that

15

Plaintiff had suffered from “severe schizophrenia” since he was 11 years old.

16

AR 824.7 Dr. Chiong noted that Plaintiff had “little insight” into his illness and

17

disability and that he was “unable to work and [was] disabled for work totally

18

and permanently.” Id. In a separate note that was also signed February 5,

19

2014, Dr. Chiong wrote that Plaintiff had “poor insight into his illness [and]

20

thought he could work” and that he was “disabled for work totally and

21

permanently.”8 AR 823.

22
23

On March 13, 2014, Dr. Chiong noted that Plaintiff was nervous and
complained of worrying “all the time” and “every day.” AR 822. Dr. Chiong

24
25
26
27
28

This note was dated December 12, 2013, but it was signed on February
5, 2014. AR 824.
7

This note was dated January 16, 2014, but it was signed on February 5,
2014. AR 823.
8

8

1

noted that Plaintiff was “better” but was “still depressed over not getting SSI.”

2

Id. Plaintiff heard voices “randomly.” Id. Dr. Chiong noted that Plaintiff had

3

“made up [with] his girlfriend.” Id. He opined that Plaintiff was “disabled for

4

work.” Id.
d.

5
6

The ALJ’s findings

With respect to Plaintiff’s mental limitations, the ALJ accepted the

7

opinions of the medical consultants, Drs. Adamo and Williams, finding that

8

their opinions that Plaintiff could perform simple, repetitive, nonpublic tasks

9

were consistent with the objective medical evidence, Dr. Colonna’s opinion,

10

and Plaintiff’s reported activities. AR 29. The ALJ accorded “little weight” to

11

Dr. Chiong’s opinion. AR 30.

12

3.

13

The ALJ provided legally sufficient reasons for discounting Dr. Chiong’s

14

controverted opinion. As an initial matter, the ALJ permissibly discounted the

15

portions of Dr. Chiong’s opinions stating that Plaintiff was disabled and unable

16

to work, finding that those were issues “reserved to the Commissioner of the

17

Social Security Administration.” AR 31; § 416.927(d)(1) (“A statement by a

18

medical source that you are ‘disabled’ or ‘unable to work’ does not mean that

19

we will determine that you are disabled.”).

20

Discussion

The ALJ also provided specific and legitimate reasons for discounting

21

Dr. Chiong’s opinion that Plaintiff suffered from extreme mental limitations.

22

First, the ALJ found that Dr. Chiong’s findings were “inconsistent with

23

progress notes from longtime treating doctors, which show essentially good

24

response to medication(s) with improved symptoms.” AR 31. Indeed, in

25

August 2011, one of Plaintiff’s treating physicians, Dr. R. Scott Bailey II,

26

noted that Plaintiff had constricted affect and reported auditory hallucinations,

27

but he had good grooming and cooperation; fair eye contact, insight, and

28

judgment; normal speech; “okay” mood; and a linear thought process. AR
9

1

401. Dr. Bailey noted that Plaintiff had a good response to medication with no

2

adverse effects and a good prognosis. Id. In May 2012, Dr. Bailey noted that

3

Plaintiff’s symptoms were “all improved somewhat with medication,” with

4

better functioning at home, better communication, and decreased isolative

5

behavior. AR 402. Dr. Bailey noted that Plaintiff had an anxious affect but an

6

“okay” mood; good grooming, eye contact, cooperation, insight, and

7

judgment; normal speech; linear and goal-directed thought process; and no

8

delusions. Id. Plaintiff denied auditory and visual hallucinations. Id. Dr. Bailey

9

noted that Plaintiff had good medication compliance, a good response to

10

medication with no adverse effects, and a good prognosis. Id. In May 2013,

11

Dr. Bailey noted that Plaintiff’s mood was irritable but “appropriate” and he

12

had appropriate affect, appearance, behavior, and speech; logical association;

13

intact memory; fair insight; and adequate judgment. AR 495. Plaintiff was

14

oriented and attentive and he did not have any hallucinations or delusions. Id.

15

Dr. Bailey noted that Plaintiff was complying with his medication and did not

16

have any significant side effects. Id. He believed that Plaintiff’s prognosis was

17

good. Id.

18

In treatment notes dating from December 2012 to September 2013, Dr.

19

Marta Blesa, who also treated Plaintiff for anxiety and psychiatric issues, AR

20

314, 668, consistently noted that mental-status examinations were negative for

21

anxiety, depression, and psychiatric symptoms and that Plaintiff was oriented

22

with intact memory, normal insight and judgment, and appropriate mood and

23

affect. See AR 679, 687, 689, 696, 698, 717, 719-20, 727, 729, 735, 741, 743,

24

749, 751, 757, 759, 765, 767, 772, 775. And in July 2014, a different doctor in

25

Dr. Chiong’s office, Dr. Ju Zhang, noted that Plaintiff’s medication had

26

“decreased [his] symptoms and signs” and that Plaintiff had no side effects.

27

AR 820. Dr. Zhang noted that Plaintiff had constricted affect and endorsed

28

intermittent auditory and visual hallucinations that people were “there talking
10

1

to him,” but he had no delusions, his mood was “fine,” and he was “calm with

2

organized thoughts.” Id. Such lack of support in the record as a whole was a

3

specific and legitimate reason for discounting Dr. Chiang’s opinion.9 See

4

Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (“[A]n ALJ may

5

discredit treating physicians’ opinions that are conclusory, brief, unsupported

6

by the record as a whole, or by objective medical findings.” (citations

7

omitted)); § 416.927(c)(4) (“Generally, the more consistent an opinion is with

8

the record as a whole, the more weight we will give to that opinion.”).

9

Second, the ALJ permissibly discounted Dr. Chiong’s opinions as based

10

on only “cursory examination[s]” of “dubious thoroughness.” AR 30-31.

11

Indeed, in his December 2013 note, Dr. Chiong stated only that Plaintiff’s

12

mood was stable, his anxiety was “high,” he was paranoid, and he

13

occasionally heard voices calling his name. AR 783. And in his February and

14

March 2014 notes, Dr. Chiong mainly noted only that Plaintiff was nervous

15

and worried, had poor insight into his illness, reported that he heard voices

16

“randomly,” and was “still depressed over not getting SSI.” See AR 822-24.

17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff’s treatment records showing a good response to medication
and milder symptoms are consistent with treating psychiatrist Barbara Huynh’s
June 2015 mental-impairment opinion, which Plaintiff submitted to the
Appeals Council after the ALJ rendered his opinion. See AR 4; Brewes, 682
F.3d at 1163. Dr. Huynh listed Plaintiff’s diagnoses as mood disorder,
generalized anxiety disorder, and posttraumatic stress disorder. AR 832. On a
list of 46 “signs and symptoms,” Dr. Huynh checked only “persistent or
generalized anxiety,” AR 833, and on a list of 23 work-related mental
functions, Dr. Huynh checked that Plaintiff had a “moderate” limitation in his
ability to accept instructions and respond appropriately to criticism, AR 835.
She found that Plaintiff had “none-to-mild” limitation—which was defined as
symptoms “do not” or only “rarely” “interfere with ability”—in all other areas.
Id. Dr. Huynh opined that Plaintiff psychiatric condition “should not have
major limitation on his ability to work in a normal work environment w/
normal work pressures w/o special accommodations.” AR 836.
9

11

1

Such limited examination findings fail to support Dr. Chiong’s finding that

2

Plaintiff was so debilitated by his mental illness as to have “marked” limitation

3

in every work-related functional area. See Thomas, 278 F.3d at 957 (“The ALJ

4

need not accept the opinion of any physician, including a treating physician, if

5

that opinion is brief, conclusory, and inadequately supported by clinical

6

findings.”); accord Batson, 359 F.3d at 1195.
Finally, the ALJ noted that Dr. Chiong provided “little treatment based

7
8

on the few progress notes of record.” AR 31. This, too, was a permissible

9

reason for discounting Dr. Chiong’s opinion. See § 416.927(c)(2)(i)-(ii) (in

10

assessing treating-physician opinion, ALJ may consider “[l]ength of the

11

treatment relationship and the frequency of examination” and the “[n]ature

12

and extent of the treatment relationship”).
Remand is not warranted on this ground.

13
14
15
16

B.

Plaintiff’s Credibility
Plaintiff contends that the ALJ erred in finding that Plaintiff’s subjective

complaints were not fully credible. JS at 23-29.

17

1.

18

To determine whether a claimant’s testimony about subjective pain or

Applicable Law

19

symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter

20

v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must

21

determine whether the claimant has presented objective medical evidence of an

22

underlying impairment ‘[that] could reasonably be expected to produce the

23

pain or other symptoms alleged.’” Id. at 1036 (citation omitted). Once a

24

claimant does so, the ALJ “may not reject a claimant’s subjective complaints

25

based solely on a lack of objective medical evidence to fully corroborate the

26

alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)

27

(en banc).

28

If the claimant meets the first step and there is no affirmative evidence of
12

1

malingering, the ALJ must provide specific, clear and convincing reasons for

2

discrediting a claimant’s complaints. Robbins v. Soc. Sec. Admin., 466 F.3d

3

880, 883 (9th Cir. 2006) (citing Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th

4

Cir. 1996)). “General findings are insufficient; rather, the ALJ must identify

5

what testimony is not credible and what evidence undermines the claimant’s

6

complaints.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as

7

amended) (citation omitted). The ALJ may consider, among other factors, a

8

claimant’s reputation for truthfulness, inconsistencies either in his testimony or

9

between his testimony and his conduct, unexplained or inadequately explained

10

failure to seek treatment or follow a prescribed course of treatment, his work

11

record, and his daily activities. Light v. Soc. Sec. Admin., 119 F.3d 789, 792

12

(9th Cir. 1997) (as amended); Smolen, 80 F.3d at 1283-84 & n.8. If the ALJ’s

13

credibility finding is supported by substantial evidence in the record, the

14

reviewing court “may not engage in second-guessing.” Thomas, 278 F.3d at

15

959.

16

2.

17

In an undated disability report, Plaintiff stated that he had been unable

Relevant Facts

18

to work since September 30, 2011, because of anxiety, “psychological issues,”

19

a learning disorder, hearing voices, “see[ing] things,” an “anger problem,”

20

depression, and headaches. AR 206.

21

In a July 2012 function report,10 Plaintiff wrote that he lived in a house

22

with family, gave his dogs water and sometimes walked them, and needed his

23

mother to remind him to bathe, care for his hair, and shave because he was

24

“forgetful.” AR 241-42. Plaintiff also needed reminders to take his medication

25

and go to doctor’s appointments. AR 243, 245. He prepared his own meals,

26

which included oatmeal, “T.V. dinners,” sandwiches, and cereal. AR 243. He

27
28

10

Some of this report is illegible.
13

1

took the trash out if his legs were “ok” and he did not have a migraine. Id.

2

Plaintiff could drive and he shopped in stores with his mother or girlfriend two

3

or three times a month for medication or personal items. AR 244. He could

4

count change but he could not pay bills or manage a savings or checking

5

account because that was “too much for [him] to handle.” Id. His hobbies

6

included model cars, swimming, watching television, and playing video and

7

computer games. AR 245. He did not spend time with others, and he went to

8

church a “few times a month if [he] fe[lt] well enough on Sunday.” Id. Plaintiff

9

needed someone to accompany him when he went to church. Id.

10

Plaintiff reported that he had trouble getting along with others because

11

he argued “throughout the day.” AR 246. His conditions affected his ability to

12

walk, hear, climb stairs, remember, complete tasks, concentrate, understand,

13

follow directions, and get along with others. Id. He could walk a block or two

14

before needing to rest for 5 or 10 minutes. Id. He could pay attention “not too

15

long.” Id. He did not follow written instructions well because he got “confused

16

easily.” Id. He was better at following spoken instructions but they had to be

17

repeated to him “a few times.” Id. Plaintiff got along with authority figures.

18

AR 247. He did not handle stress or changes in routine well and he had

19

unusual behaviors or fears. Id.

20

At the August 27, 2013 hearing, Plaintiff testified that every day he had

21

“a lot of pain” in his lower back, and that in the morning he would “almost fall

22

down” because his back would give way. AR 45. Lifting and “falling” made

23

his back pain worse and he could not lift more than 40 pounds. AR 45-46.

24

Medication was effective in treating his pain, but it did not completely resolve

25

it. AR 46. Plaintiff stated that his doctors had suggested back surgery but “they

26

try and send us out to so far away” and there was “no way to get out there.”

27

AR 46-47.

28

Plaintiff testified that had “really bad asthma” and got migraines a few
14

1

times a week, which lasted between a couple hours and all day. AR 48-49. His

2

medication helped him be able to “walk around” and “function somewhat”

3

despite his migraines. AR 49. Plaintiff vomited every morning from anxiety,

4

AR 50, he had anxiety all day, and he played video games to keep himself

5

“side tracked,” AR 51-52. Medication controlled his anxiety a “little bit.” AR

6

54. Given his anxiety, Plaintiff could work for only 10 to 20 minutes before he

7

would “[s]tart freaking out.” AR 55. Plaintiff testified that he also had “anger

8

and depression issues” and that his medication did not help him because he

9

went to a “kid’s place,” the Enki Clinic, that was limited in the medication it

10

could prescribe.11 AR 54-55, 60. Plaintiff also testified that his medication,

11

Seroquel, helped “a lot” in controlling his auditory and visual hallucinations,

12

but he complained that he had “really, really weird . . . reactions” to that

13

medication in that he woke up at 4 a.m. “freaking out, sweating, clothes

14

soaked.” AR 60.

15

When the ALJ asked whether Plaintiff had ever sought treatment at an

16

“adult clinic,” Plaintiff testified that he “would, but they’re all so far away”

17

and that his mother was busy taking care of Plaintiff’s disabled father and

18

brother and could not drive Plaintiff there. AR 55-56. When asked whether

19

Plaintiff had sought treatment at an adult facility when he had had his own

20

car, before his December 2012 car accident, Plaintiff testified that he had not

21

because he “wasn’t on the Social Security thing” and was “just trying to

22

work,” and it was “very stressful” and “uncomfortable” for him to drive to a

23

different clinic. AR 55-58.

24
25
26
27
28

Although Plaintiff testified at the hearing that because the Enki Clinic
was a “kid’s place,” his doctor there could provide only certain medications,
AR 60, in the joint stipulation, Plaintiff states that the Enki Clinic treated
“children and adolescents and severely and persistently mentally ill adults
throughout Los Angeles,” JS at 8 n.3.
11

15

1

Plaintiff testified that he had abscesses on his legs that affected his ability

2

to walk, he did not like to sit for very long because it hurt his neck and back,

3

and he had to get up and walk around after sitting for a half hour to an hour.

4

AR 61-62. Plaintiff testified that he spent his time building model cars, helping

5

his mom with “little things” like fixing her bike, and trying to play basketball.

6

AR 62-63. He would lie down three or four hours a day. AR 64. His mom

7

reminded him to brush his teeth. AR 67. He showered every other day. Id.

8

Plaintiff did his own laundry but it made him “stressed out.” AR 66-67. He

9

heard voices throughout the day that sounded like people calling him. AR 67-

10

68. Plaintiff would go to his friend’s house, but it was “kinda rough.” AR 68.

11

He went to the grocery store but stayed in the car because he did not want “to

12

be around all those people.” AR 68-69.

13

3.

14

The ALJ concluded that Plaintiff’s statements concerning the intensity,

Discussion

15

persistence, and limiting effects of his symptoms were not credible to the extent

16

they were inconsistent with his RFC for simple, repetitive, nonpublic, and

17

nonhazardous work that could be performed with only “monocular vision.”

18

AR 26-27. As discussed below, the ALJ provided clear and convincing

19

reasons, supported by substantial evidence, for discounting Plaintiff’s

20

credibility.

21

First, the ALJ discounted Plaintiff’s credibility because the 2010 “CDI

22

investigation shows [Plaintiff] as independent in activities of daily living

23

without signs of physical or mental limitations,” AR 27, and no “progress

24

notes or reports from a reliable treating source” showed that Plaintiff’s

25

functioning had thereafter dramatically declined, AR 29. Indeed, CDI

26

investigators noted that Plaintiff had alleged that he “needs reminders to take

27

care of his personal needs/grooming, does not like to go out alone, and rarely

28

drives,” and that he “has difficulty with memory, completing tasks,
16

1

concentration, understanding, following instructions, and getting along with

2

others.” AR 366-67. But investigators observed Plaintiff drive with a woman

3

about five miles to a strip mall, enter a store, exit about 10 minutes later, and

4

drive away. AR 367. A shopkeeper in Plaintiff’s neighborhood reported that a

5

few times a month, Plaintiff went to a store in his neighborhood with “several

6

individuals about the same age as” Plaintiff and that he bought cigarettes and

7

sweets. AR 367. A neighbor told investigators that Plaintiff drove and cleaned

8

a vehicle, cleaned the yard, and carried objects outside his residence. AR 368.

9

Both the shopkeeper and the neighbor stated that Plaintiff did not appear to

10

have any mental or physical impairment. AR 367-68.

11

Plaintiff told the CDI investigators that he was able to dress, bathe,

12

groom, and feed himself. Id. He drove a car unaccompanied; drove himself to

13

school; shopped at various stores and made purchases with cash; performed

14

some car repairs with assistance, such as replacing the battery and changing

15

the oil; washed and waxed his car; performed household chores such as

16

maintaining his bedroom, helping with laundry, and cleaning up after his dog;

17

operated a computer; and socialized with friends and relatives in public. Id.

18

Plaintiff reported that he usually spent his days playing interactive video

19

games, watching television, and listening to music. Id. He handled his own

20

finances but needed help with some calculations. Id. He could stay home alone

21

and did not require daily care or assistance. Id. The ALJ permissibly relied on

22

the CDI investigators’ findings regarding Plaintiff’s extensive daily activities

23

and lack of mental or physical symptoms to discount Plaintiff’s credibility. See

24

Rothery v. Berryhill, __ F. App’x __, 2017 WL 1089545, at *1 (9th Cir. Mar.

25

23, 2017) (finding that substantial evidence supported ALJ’s credibility

26

assessment in part because CDI Unit “found that [plaintiff] shopped more

27

frequently than he reported in his disability application and that his observed

28

demeanor was inconsistent with someone suffering from [his] claimed
17

1

symptoms”); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (stating

2

that ALJ may discredit claimant’s testimony when “claimant engages in daily

3

activities inconsistent with the alleged symptoms” (citation omitted)); id. at

4

1113 (stating that even when plaintiff’s “activities suggest some difficulty

5

functioning, they may be grounds for discrediting the [his] testimony to the

6

extent that they contradict claims of a totally debilitating impairment”); cf.

7

Elmore v. Colvin, 617 F. App’x 755, 757 (9th Cir. 2015) (stating that ALJ

8

permissibly relied on evidence related to CDI Unit investigation and noting

9

that “there is nothing nefarious about ensuring that only deserving claimants

10
11

receive benefits”).
Second, the ALJ permissibly discounted Plaintiff’s alleged limitations

12

because they were not supported by the medical evidence. See Burch v.

13

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical

14

evidence cannot form the sole basis for discounting pain testimony, it is a

15

factor that the ALJ can consider in his credibility analysis.”); Carmickle, 533

16

F.3d at 1161 (“Contradiction with the medical record is a sufficient basis for

17

rejecting the claimant’s subjective testimony.”). The ALJ found that “[w]ith

18

respect to [Plaintiff’s] mental impairments, the longitudinal record shows that

19

[he] is doing well mentally on medications, and his symptoms have improved

20

despite little consistent mental health treatment from a specialist, Dr. Bailey,

21

who appeared to be just monitoring [Plaintiff].” AR 27-28. Indeed, as

22

discussed in Section A.3, Dr. Bailey noted that Plaintiff’s symptoms improved

23

with medication and that Plaintiff no longer suffered from hallucinations. And

24

as also previously discussed, Dr. Blesa similarly noted that Plaintiff’s mental-

25

status examinations were negative for anxiety, depression, and psychiatric

26

symptoms and that Plaintiff was oriented with intact memory, normal insight

27

and judgment, and appropriate mood and affect. Indeed, Plaintiff himself

28

reported to another doctor that his medication “took care of [his]
18

1

hallucinations.” AR 30, 646 (Plaintiff reporting to doctor after car accident that

2

he was on Seroquel “started with 400 mg and went down to 100 mg which

3

took care of the hallucinations”).

4

The ALJ also found that the treatment for Plaintiff’s physical problems,

5

other than his left-eye condition that had resulted from a car accident, was

6

“routine,” and that nothing substantiated the alleged severity of Plaintiff’s

7

asthma and back pain. AR 28. Indeed, as the ALJ found, nothing shows that

8

Plaintiff required emergency-room treatment or hospitalization for his asthma,

9

and examinations showed that his lungs were usually clear. AR 21-22; see,

10

e.g., 676 (Dr. Blesa finding that examination was negative for cough, dyspnea,

11

and wheezing), 686 (same), 695 (same), 706 (same), 689 (Dr. Blesa noting that

12

lungs were clear and respiratory effort was normal), 708 (same), 702 (Dr. Blesa

13

noting that asthma was “stable”), 724 (Dr. Blesa diagnosing asthma, “Fairly

14

Controlled”). Moreover, Plaintiff testified that he had “a lot” of low-back pain

15

every day and that he would “almost fall down” because his back would give

16

way. AR 45-47. He reported that his doctors had recommended back surgery

17

and that because of his back pain, he could not lift more than 40 pounds. Id.

18

But as the ALJ noted, “the record contains no objective evidence to

19

substantiate the etiology of such complaints other than rare muscle spasms”

20

and no “imaging studies, such as x-rays,” supported “the existence of a back

21

impairment.” AR 23; see also AR 678-79 (Dr. Blesa noting spine tenderness

22

and diagnosing “Backache, unspecified”), 720 (Dr. Blesa diagnosing “[l]ow

23

back pain . . . , [s]table”). Nor does the evidence show that any doctor

24

recommended surgery for Plaintiff’s back condition. Indeed, the ALJ found

25

that Plaintiff’s alleged back pain was not a medically determinable impairment,

26

AR 23, and Plaintiff has not challenged that finding. The ALJ did not err in

27

discounting Plaintiff’s subjective complaints based on the lack of objective

28

evidence supporting them.
19

1

The ALJ also noted that inconsistencies in Plaintiff’s statements “greatly

2

diminished” his credibility. AR 28-29. For example, Plaintiff stated in a

3

disability report that he had only an 11th-grade education and could not read

4

English or write more than his name. AR 205, 207. But Plaintiff completed an

5

eight-page written function report in connection with this case, AR 29, 241-48

6

(listing Plaintiff’s name as “[n]ame of person completing this form”), and

7

Plaintiff’s later testimony and his high-school records show that he graduated

8

from high school with a regular diploma, AR 29, 44, 426, 428, 430, 432. The

9

ALJ also noted that Plaintiff alleged “significant side effects” from his

10

psychiatric medication, but that was contradicted by Dr. Bailey’s and other

11

doctors’ findings that Plaintiff did not experience any adverse side effects. AR

12

28, 401-02, 495, 819 (Dr. Barbara Huynh’s Oct. 2014 treatment note stating

13

that Plaintiff had “fairly good” response to medication with no side effects),

14

820 (Dr. Zhang’s July 2014 treatment note stating that Plaintiff’s medication

15

was effective and he had no side effects), 832 (Dr. Huynh’s opinion stating that

16

Plaintiff had no side effects from medications); see also AR 403, 418 (Dr.

17

Bailey’s medication order sheets), AR 27-28 (ALJ’s summary of Dr. Bailey’s

18

notes).

19

The ALJ also discounted Plaintiff’s credibility because he had a “poor

20

work history and has never shown any real commitment to work.” AR 29; see

21

Thomas, 278 F.3d at 959 (finding that ALJ permissibly discounted claimant’s

22

credibility when claimant “had an ‘extremely poor work history’ and ‘has

23

shown little propensity to work in her lifetime’”). But as the ALJ also

24

acknowledged, AR 29, Plaintiff testified that he had had many job interviews

25

but no one would hire him, AR 44 (Plaintiff testifying that he had looked for

26

work and had “many, many interviews, but no one wants to hire me”). Thus,

27

this portion of ALJ’s reasoning may not be supported by substantial evidence.

28

But any error was harmless because the ALJ gave other, legally sufficient
20

1

reasons for discounting Plaintiff’s credibility. See Carmickle, 533 F.3d at 1162

2

(“So long as there remains ‘substantial evidence supporting the ALJ’s

3

conclusions on . . . credibility’ and the error ‘does not negate the validity of the

4

ALJ’s ultimate [credibility] conclusion,’ such is deemed harmless and does not

5

warrant reversal.” (alterations in original) (citations omitted)).

6

Remand is not warranted.

7

III.

8

CONCLUSION

9
10

For the reasons stated above, the decision of the Social Security
Commissioner is AFFIRMED and the action is DISMISSED with prejudice.

11
12

Dated: July 28, 2017
__________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21