Brian Scott Wade v. Carolyn W. Colvin

Filing 27

MEMORANDUM AND OPINION by Magistrate Judge Karen L. Stevenson re: The Court finds that the Commissioners decision is supported by substantial evidence and free from material legal error. Neither reversal of the ALJs decision nor remand is warranted . Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security administration. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. (rh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 ) NO. CV 16-1789-KS ) ) ) MEMORANDUM OPINION AND ORDER ) NANCY A. BERRYHILL,1 Acting ) Commissioner of Social Security, ) Defendant. ) _________________________________ ) BRIAN SCOTT WADE, Plaintiff, v. 11 12 13 14 15 16 17 INTRODUCTION 18 19 20 Brian Scott Wade (“Plaintiff”) filed a Complaint on March 16, 2016, seeking review 21 of the denial of his application for supplemental security income (“SSI”). On March 10, 22 2017, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 23 undersigned United States Magistrate Judge. (Dkt. Nos. 10, 24, 25.) On January 11, 2017, 24 the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt. No 23.) Plaintiff seeks an order 25 reversing the Commissioner’s decision and remanding for further proceedings. (Joint Stip. at 26 27 28 1 The Court notes that Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended to substitute Nancy A. Berryhill for Carolyn Colvin as the defendant in this action. 1 1 12.) The Commissioner requests that the ALJ’s decision be affirmed or, in the alternative, 2 remanded for further proceedings. (See id. at 13.) The Court has taken the matter under 3 submission without oral argument. 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 7 On May 31, 2012, Plaintiff, who was born on May 18, 1967, protectively filed an 8 application for SSI.2 (See Administrative Record (“AR”) 189.) Plaintiff alleged disability 9 commencing January 1, 2009 due to “depression, mental impairments, bi-polar, severe 10 anxiety, autism, [and] schizophrenia.” (AR 219.) Plaintiff previously worked as a home 11 attendant (DOT 354.377-014). (AR 37, 220.) After the Commissioner denied Plaintiff’s 12 applications initially (AR 121) and on reconsideration (id. 135), Plaintiff requested a hearing 13 (see id. 152). Administrative Law Judge Philip J. Simon (“ALJ”) held a hearing on January 14 9, 2014 (id. 47). Plaintiff, who was represented by counsel, testified before the ALJ as did 15 vocational expert (“VE”) Gregory Jones. (See AR 50-88.) On April 8, 2014, the ALJ issued 16 an unfavorable decision, denying Plaintiff’s application for SSI. (Id. 12-41.) On February 5, 17 2016, the Appeals Council denied Plaintiff’s request for review. (Id. 1-3.) 18 19 SUMMARY OF ADMINISTRATIVE DECISION 20 21 The ALJ found that Plaintiff had not engaged in substantial gainful activity since his 22 May 31, 2012 application date. (AR 19.) The ALJ further found that Plaintiff had the 23 following severe impairments: mild degenerative disc disease of the lumbar spine; history of 24 motor vehicle accident with multiple fractures; obesity; asthma; depression; anxiety; and a 25 history of methamphetamine abuse. (AR 21-24.) The ALJ concluded that Plaintiff did not 26 have an impairment or combination of impairments that met or medically equaled the 27 2 28 Plaintiff was 45 years old on the application date and thus met the agency’s definition of a younger individual. See 20 C.F.R. § 416.963(c). 2 1 severity of any impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 2 416.920(d), 416.925, 416.926). (Id. 24-26.) The ALJ determined that Plaintiff had the 3 residual functional capacity (“RFC”) to perform light work with the following limitations: 4 5 [Plaintiff] can occasionally climb ladders, ropes, and scaffolds; cannot be 6 exposed to concentrated fumes, dusts, gases, unprotected heights, and 7 dangerous machinery; and is further limited to simple routine work with no 8 more than occasional contact with the public as a function of job duties. 9 10 (AR 27.) 11 12 The ALJ found that Plaintiff was unable to perform his past relevant work as a home 13 attendant. (AR 37.) However, the ALJ determined that Plaintiff was capable of performing 14 jobs that exist in significant numbers in the national economy, including the representative 15 occupations of cafeteria attendant (DOT 311.677-010), routing clerk (DOT 222.687-022), 16 and product assembler (DOT 706.687-010). (Id. 39-40.) Accordingly, the ALJ determined 17 that Plaintiff had not been under a disability, as defined in the Social Security Act, from the 18 alleged onset date through the date of the ALJ’s decision. (Id. at 41.) 19 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 23 determine whether it is free from legal error and supported by substantial evidence in the 24 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence 25 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of 27 Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the 28 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s 3 1 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 2 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 3 4 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 5 nonetheless must review the record as a whole, “weighing both the evidence that supports 6 and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v. 7 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); 8 Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ 9 is responsible for determining credibility, resolving conflicts in medical testimony, and for 10 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 11 12 The Court will uphold the Commissioner’s decision when the evidence is susceptible 13 to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 14 2005). However, the Court may review only the reasons stated by the ALJ in his decision 15 “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 16 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not 17 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error 18 is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error, 19 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487, 20 492 (9th Cir. 2015) (internal citations omitted). 21 DISCUSSION 22 23 24 There are two issues in dispute: (1) whether the ALJ properly applied res judicata to 25 an earlier ALJ decision; and (2) whether the ALJ properly evaluated the opinion of 26 Plaintiff’s treating doctor. (Joint Stip. at 2.) 27 \\ 28 \\ 4 1 I. Res Judicata 2 3 Plaintiff’s first contention is that the ALJ erred in applying a presumption of 4 continuing non-disability based on a January 29, 2010 denial of Plaintiff’s earlier 5 applications by Administrative Law Judge Michael J. Kopicki (“ALJ Kopicki”). (See Joint 6 Stip. at 3-4; see also AR 93-103 (ALJ Kopicki’s decision).) 7 contends that “Plaintiff ignores . . . that the ALJ gave only limited res judicata effect to [ALJ 8 Kopicki’s] decision” and fails to explain how the ALJ’s decision to give limited res judicata 9 effect to ALJ Kopicki’s decision was improper.” (Id. at 6) (emphasis added). In response, Defendant 10 11 A. Applicable Law 12 13 “The principles of res judicata apply to administrative decisions, although the doctrine 14 is applied less rigidly to administrative proceedings than to judicial proceedings.” Chavez v. 15 Bowen, 844 F.2d 691, 693 (9th Cir. 1988). “Normally, an ALJ’s findings that a claimant is 16 not disabled creates [sic] a presumption that the claimant continued to be able to work after 17 that date.” Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009). “The presumption does 18 not apply, however, if there are ‘changed circumstances.’” Lester v. Chater, 81 F.3d 821, 19 827 (9th Cir. 1994) (citation omitted); SSR 97-4(9). Examples of changed circumstances 20 include “[a]n increase in the severity of the claimant’s impairment,” “a change in the 21 claimant’s age category,” and a new issue raised by the claimant, “such as the existence of 22 an impairment not considered in the previous application.” Lester, 81 F.3d at 827-28 23 (citations omitted); see also SSR 97-4(9). The presumption also does not apply “where the 24 claimant was unrepresented by counsel at the time of the prior claim.” Lester, 81 F.3d at 25 827-28 (citing Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988)). 26 27 However, when a claimant overcomes the presumption of continuing non-disability, a 28 prior ALJ’s individual findings are still entitled to some res judicata consideration absent 5 1 new information not presented to the earlier adjudicator. See SSR 97-4(9) (if the claimant 2 rebuts the presumption, adjudicators must give effect to certain findings contained in the 3 final decision by an ALJ or the Appeals Council on the prior claim): see also Stubbs- 4 Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (discussing holding in Chavez that 5 “a previous ALJ’s findings concerning residual functional capacity, education, and work 6 experience are entitled to some res judicata consideration and such findings cannot be 7 reconsidered by a subsequent judge absent new information not presented to the first judge”) 8 (citing Chavez, 844 F.2d at 694). 9 10 B. Discussion 11 12 13 The ALJ made the following assessment of the effect of ALJ Kopicki’s January 29, 2010 unfavorable decision: 14 15 [Plaintiff] fails to rebut the presumption of continuing nondisability. The record 16 reflects no material change in his condition – at least none that indicates a 17 greater disability – as discussed in the body of this decision . . . As a result, I 18 must adopt [ALJ] Kopicki’s findings, as explained further below. By the same 19 token, because I conclude that there has been some slight change of 20 circumstance – including some changes in [Plaintiff’s] medically determinable 21 impairments discussed further below – I am not obligated to accept the prior 22 findings of [ALJ] Kopicki in these respects, and, accordingly, I give limited res 23 judicata effect to the decision of [ALJ] Kopicki in this regard. 24 25 (AR 16-17.) 26 27 With respect to Plaintiff’s medically determinable impairments, the ALJ found that, in 28 addition to the severe medically determinable impairments assessed by ALJ Kopicki – mild 6 1 degenerative disc disease of the lumbar spine, history of vehicle accident with multiple 2 fractures, obesity, asthma, depression, anxiety, and history of methamphetamine use (AR 95) 3 – Plaintiff also had the nonsevere medically determinable impairments of: 4 deviated septum requiring septoplasty; left forearm fracture; neuropathy; old right foot 5 fractures; hypertension; and hyperlipidemia (AR 20). The ALJ correctly concluded that 6 these additional medically determinable impairments constituted a “changed circumstance” 7 that overcame the presumption that Plaintiff continued to be able to work after ALJ 8 Kopicki’s 2010 decision. See Vasquez, 572 F.3d at 598 n. 9 (9th Cir. 2009) (“claimant 9 defeats the presumption of continuing nondisability by raising a new issue in a later 10 application,” including the existence of any new medically determinable impairment 11 regardless of its severity). shingles; 12 13 Nevertheless, as stated above, when a claimant overcomes the presumption of 14 continuing non-disability, a prior ALJ’s individual findings are still entitled to some res 15 judicata consideration absent new information not presented to the earlier adjudicator. See 16 SSR 97-4(9); see also Stubbs-Danielson, 539 F.3d at 1173. Accordingly, it was not legal 17 error for the ALJ to accord res judicata consideration to some of ALJ Kopicki’s prior 18 findings, most notably his assessment of Plaintiff’s residual functional capacity, in the 19 absence of new information. Specifically, the ALJ found that “the evidence fails to establish 20 ‘a change in circumstance’ such that the residual functional capacity of [ALJ] Kopicki is no 21 longer applicable” (AR 28), and, on that basis, adopted ALJ Kopicki’s residual functional 22 capacity assessment that Plaintiff could perform light work with the following limitations: 23 “[Plaintiff] can . . . occasionally climb ladders, ropes, and scaffolds, cannot be exposed to 24 concentrated fumes, dusts, gases, unprotected heights, and dangerous machinery. [Plaintiff] 25 is further limited to simple, routine work with no more than occasional contact with the 26 public as a function of job duties.” (AR 28, 96.) 27 28 7 1 Plaintiff does not contend that the ALJ erred in his assessment of Plaintiff’s RFC, only 2 that the ALJ ignored the presence of “changed circumstances” by giving ALJ Kopicki’s 3 decision res judicata consideration. (See generally Joint Stip. at 2-5.) However, the record 4 shows that the ALJ acknowledged Plaintiff’s changed circumstances and, on that basis, 5 determined that he was not obligated to accept ALJ Kopicki’s prior findings. Plaintiff also 6 does not contend that any of the new information post-dating ALJ Kopicki’s decision 7 required the ALJ to depart from ALJ Kopicki’s nondisabilty determination and/or RFC 8 assessment. (See generally Joint Stip. at 2-5.) Accordingly, the Court finds no error with 9 respect to the ALJ’s decision to accord limited res judicata consideration to ALJ Kopicki’s 10 RFC assessment. 11 12 II. The ALJ’s Evaluation Of The Reports Of Plaintiff’s Treating Psychiatrist 13 14 A. Plaintiff’s Mental Health Records 15 16 The record shows that Plaintiff received mental health treatment from at least three 17 different psychiatrists since 2010. First, the records show that, in 2010, Plaintiff received 18 treatment from S. Eklund, M.D., through San Bernardino Department of Behavioral Health. 19 (See AR 575-76.) During that period, Plaintiff reported depression, difficulty socializing, 20 and bouts of anxiety or panic. (See, e.g., AR 575 (3/8/10 – difficulty at birthday party, could 21 stay only a few minutes because he can’t tolerate being around people), 576 (2/8/10 – reports 22 agoraphobia, feeling depressed and panicky).) Plaintiff did not report auditory or visual 23 hallucinations. (See generally AR 575-85.) 24 25 In June 2012, Plaintiff commenced treatment with Dr. William Vicary. At his initial 26 evaluation, Plaintiff reported that his primary problems were depression and agoraphobia 27 and that he heard voices. 28 depression and anxiety disorder. (Id.) Dr. Vicary saw Plaintiff every one to two months for (AR 331-32.) Dr. Vicary diagnosed Plaintiff with major 8 1 treatment during a period of eight months. On July 24, 2012, Plaintiff reported that he was 2 experiencing decreased anxiety. (AR 330.) On September 21, 2012, Plaintiff reported that 3 he felt “scattered,” “tired,” and depressed and was having difficulty controlling his emotions. 4 (AR 329.) 5 6 On October 24, 2012, after seeing Plaintiff for less than six months, Dr. Vicary 7 completed a “Mental Disorder Questionnaire Form” that stated the following: Plaintiff’s 8 current attitude and behavior are “labile” and “down” (AR 337); Plaintiff’s intellectual 9 functioning is within normal limits (AR 337); Plaintiff’s mood is “3 out of 10,” he is 10 overwhelmed and hopeless with no motivation (AR 338); Plaintiff reports hearing voices in 11 his head (AR 338); Plaintiff’s ability to perform his daily activities is within normal limits 12 (AR 338); socially, Plaintiff is “withdrawn” (AR 339); Plaintiff’s ability to complete tasks 13 and sustain concentration is hindered by “dysphoria” (AR 339); Plaintiff’s ability to adapt to 14 work or work-like situations is “compromised by depression and lack of motivation” (AR 15 339); Plaintiff’s medications are Viibryd, a serotinergic antidepressant, and Xanax (AR 340); 16 Plaintiff’s diagnosis is major depression (AR 340); and improvement in Plaintiff’s condition 17 is “possible with further rx and meds” (AR 340). 18 19 On April 3, 2013, Dr. Vicary completed a second Mental Disorder Questionnaire Form 20 with the following information: Plaintiff’s current mental status is “labile, tearful, 21 desperate” (AR 349); Plaintiff’s intellectual functioning is within normal limits (AR 349); 22 Plaintiff’s reality contact and ability to perform daily activities is within normal limits (AR 23 350); socially, Plaintiff is withdrawn (AR 351); Plaintiff’s concentration and task completion 24 abilities are “impaired” (AR 351); Plaintiff’s ability to adapt to work or work-like situations 25 is “compromised by [increased] depression” (AR 351); Plaintiff’s medications are Cymbalta, 26 Viibryd, and Adderall (AR 352); Plaintiff’s diagnosis is major depression and ADD (AR 27 352); improvement in Plaintiff’s condition remains “possible with further rex and meds” 28 9 1 (AR 352); and Dr. Vicary last saw Plaintiff for treatment two months earlier on February 28, 2 2013 (AR 352). 3 4 On May 16, 2013, approximately one month after Dr. Vicary’s April 3, 2013 report, 5 Plaintiff commenced treatment with the psychiatric outpatient team at Kaiser Permanente. 6 (See AR 363.) Plaintiff stated that his insurance had changed, and he needed refills of his 7 prescriptions for Viibryd and Cymbalta. 8 hallucinations or mania. (AR 364.) He stated that he was “functioning at home with a lot of 9 effort.” (AR 364.) He stated that he has moodiness and tearfulness, especially while off his 10 medication, and experienced poor motivation, poor self-esteem, poor concentration, poor 11 memory, anxiety attacks, and increased irritability. (AR 364.) Jerry Sparks, the licensed 12 clinical social worker (LCSW) who initially saw Plaintiff, observed that Plaintiff exhibited 13 good grooming, an anxious mood, an appropriate affect, good insight, unimpaired judgment, 14 good memory, and good concentration. (AR 367.) He diagnosed Plaintiff with depression 15 NOS and generalized anxiety disorder. 16 indicating moderate symptoms or difficulty in social, occupational, or school functioning.3 17 (AR 367.) (AR 363.) (AR 367.) Plaintiff reported no audiovisual He assessed a GAF score of 60, 18 19 Two days later, on May 18, 2013, Plaintiff had a psychiatric exam with Sade Udoetuk, 20 M.D. (AR 373.) Dr. Udoetuk described Plaintiff as “a difficult historian” who reported that 21 his medication regime is complicated and “some providers ‘can’t handle it.’” (AR 374.) Dr. 22 Udoetuk observed that Plaintiff’s attire was disheveled, his mood was anxious, his affect was 23 euthymic, his insight was fair, and his judgment was unimpaired. (AR 376.) Dr. Udoetuk 24 diagnosed major depressive disorder and agoraphobia by history and assessed a GAF score 25 of 60. (AR 376.) Dr. Udoetuk prescribed Cymbalta, Zyprexa, and Adderall. (AR 376-77.) 26 3 27 28 The Commissioner has stated that the GAF scale “does not have a direct correlation to the severity requirements in [the] mental disorders listings,” 65 Fed. Reg. 50764, 50764-65 (Aug. 21, 2000), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 16 (5th ed. 2012). 10 1 On July 3, 2013, Plaintiff saw Dr. Udoetuk for a follow up visit. Plaintiff stated that 2 he had gone to see Dr. Vicary again because he missed his scheduled follow up appointment 3 with Dr. Udoetuk. (AR 433-34.) Plaintiff was upset that his disability application was 4 denied. (AR 433.) He stated that he was “trying to work” as a hair dresser. (AR 433.) Dr. 5 Udoetuk observed that Plaintiff exhibited good grooming and a calmer affect than his first 6 visit. (AR 434.) Dr. Udoetuk assessed Plaintiff with a GAF score of 69, indicating only 7 mild difficulty in social, occupation, or school functioning. (AR 435.) Dr. Udoetuk adjusted 8 Plaintiff’s medications and dosages. (AR 435.) 9 10 On August 13, 2013, Plaintiff saw Dr. Udoetuk again. (AR 479.) Dr. Udoetuk 11 described Plaintiff as being “the most . . . stable” he had ever observed Plaintiff to be. (AR 12 481.) He described Plaintiff’s mood and affect as euthymic. (AR 480.) 13 14 On November 8, 2013, three months after Plaintiff’s August 13, 2013 appointment 15 with Dr. Udoetuk, Dr. Vicary prepared a “Report on Individual with Mental Impairment,” 16 which stated that: Plaintiff exhibited delusional behavior, inappropriate affect, anhedonia, 17 emotional withdrawal, and difficulty concentrating or thinking (AR 558); Plaintiff exhibited 18 anxiety with autonomic hyperactivity, recurrent severe panic attacks (AR 559); Plaintiff 19 exhibited inflexible or maladaptive personality traits that cause either significant impairment 20 in social or occupational functioning or subjective distress (AR 560). Dr. Vicary stated that 21 Plaintiff experienced “marked” restrictions in his daily life, “marked” difficulty in 22 maintaining social functioning, “marked” deficiencies in concentration, and “marked” 23 frequency of episodes of deterioration or decompensation in work related or other situations. 24 (AR 561.) 25 condition, and he opined that Plaintiff could not respond appropriately to work, pressure, 26 supervision, and co-workers. (AR 562.) Plaintiff now contends that the ALJ erred in failing 27 to credit Dr. Vicary’s November 8, 2013 opinion regarding the severity of Plaintiff’s 28 symptoms and functional limitations. (See Joint Stip. at 5-6.) Dr. Vicary stated that he expected only slight improvement in Plaintiff’s 11 1 B. Applicable Law 2 3 “The ALJ is responsible for translating and incorporating clinical findings into a 4 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In 5 doing so, the ALJ must articulate a “substantive basis” for rejecting a medical opinion or 6 crediting one medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th 7 Cir. 2014); see also Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ 8 cannot in its decision totally ignore a treating doctor and his or her notes, without even 9 mentioning them”). 10 11 The opinion of a treating source is generally entitled to greater weight than the 12 opinion of doctors who do not treat the claimant because treating sources are “most able to 13 provide a detailed, longitudinal picture” of a claimant’s medical impairments and bring a 14 perspective to the medical evidence that cannot be obtained from objective medical findings 15 alone. See Garrison, 759 F.3d at 1012; see also 20 C.F.R. § 416.927(c)(2). To reject an 16 uncontradicted opinion of a treating physician, the ALJ must provide “clear and convincing 17 reasons that are supported by substantial evidence.” Ghanim v. Colvin, 763 F.3d 1154, 18 1160-61 (9th Cir. 2014). If, however, the treating physician’s opinion is contradicted by 19 another medical source, the ALJ must consider the factors set out in 20 C.F.R. § 20 416.927(c)(2)-(6) in determining how much weight to accord it. These factors include the 21 “[l]ength of the treatment relationship and the frequency of examination” by the treating 22 physician, the “[n]ature and extent of the treatment relationship” between the patient and the 23 treating physician, the “[s]upportability” of the physician’s opinion with medical evidence, 24 and the consistency of the physician's opinion with the record as a whole. The ALJ must 25 articulate “specific and legitimate reasons that are supported by substantial evidence” to 26 reject the contradicted opinions of a treating physician. Ghanim, 763 F.3d at 1161. 27 28 12 1 An ALJ may properly reject a treating physician’s conclusions that do not “mesh” 2 with the treating physician’s objective data or history, see, e.g., Tommasetti v. Astrue, 533 3 F.3d 1035, 1041 (9th Cir. 2008); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001), 4 and “need not accept the opinion of any physician, including a treating physician, if that 5 opinion is brief, conclusory and inadequately supported by clinical findings.” Thomas v. 6 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 7 Cir. 2005) (“discrepancy” between treating physician’s assessment and clinical notes is a 8 clear and convincing reason for not relying on the doctor’s opinion). 9 C. Discussion 10 11 12 The ALJ rejected Dr. Vicary’s November 8, 2013 opinion because that opinion was 13 “not consistent with other substantial evidence, including the doctor’s own progress notes” 14 and was “brief and conclusory.” (AR 29.) The ALJ also noted that Dr. Vicary’s records 15 suggest he saw Plaintiff only three times in 2012, contain few significant objective findings, 16 appear to rest primarily on Plaintiff’s subjective complaints, and reveal conservative 17 treatment relative to the degree of disability alleged in his November 8, 2013 opinion. (AR 18 29.) 19 20 Plaintiff correctly points out that the ALJ was required to set out specific reasons for 21 rejecting Dr. Vicary’s November 8, 2013 opinion. (Joint Stip. at 6.) However, Plaintiff 22 identifies no defects in the reasons cited by the ALJ. (See generally id. at 5-6.) Further, the 23 ALJ’s determinations that Dr. Vicary’s opinion is conclusory and inconsistent both with his 24 own treatment notes and with the other mental health treatment records are specific and 25 legitimate reasons supported by substantial evidence in the record for disregarding Dr. 26 Vicary’s opinion. 27 28 13 1 There are numerous inconsistencies between Dr. Vicary’s November 8, 2013 2 assessment of Plaintiff’s condition and his prior opinions and treating records. For example, 3 in his November 8, 2013 opinion, Dr. Vicary indicates that Plaintiff experiences “marked” 4 restrictions in his daily life (AR 561), whereas in his prior two opinions Dr. Vicary stated 5 that Plaintiff’s ability to perform daily activities is within normal limits (AR 338, 350). 6 Similarly, in his November 8, 2013 opinion, Dr. Vicary described Plaintiff as exhibiting 7 delusional behavior (AR 558) but Dr. Vicary did not describe delusional behavior in any of 8 his prior reports or treatment records and, in fact, stated in his April 2013 report that 9 Plaintiff’s reality contact was within normal limits (AR 350). Finally, in November 2013, 10 Dr. Vicary concludes that Plaintiff is wholly unable to respond appropriately to work, 11 pressure, supervision, and co-workers (AR 562), but in his two prior reports Dr. Vicary 12 stated only that Plaintiff’s ability to adapt to work or work-like situations was “compromised 13 by depression and lack of motivation” (AR 339, 351). 14 15 In addition to being inconsistent with his own treatment notes, Dr. Vicary’s 16 assessment of extreme limitations in his November 2013 opinion also conflicts with the 17 other mental health treatment records. In the months leading up to Dr. Vicary’s November 18 2013 opinion, Plaintiff saw Dr. Udoetuk three times. (See AR 373, 433, 479.) Dr. Udoetuk 19 observed that Plaintiff had a euthymic, i.e. positive, affect at his first two visits, and assessed 20 GAF scores indicating only mild to moderate limitations. (See AR 376, 435, 480.) Dr. 21 Udoetuk also noted that Plaintiff stated that he was “trying to work” as a hair dresser (AR 22 433), a statement that is difficult to reconcile with Plaintiff’s allegations of disabling mental 23 impairments and Dr. Vicary’s November 2013 assessment that Plaintiff is unable respond 24 appropriately to work, pressure, supervision, and co-workers. Finally, at Plaintiff’s final 25 visit, Dr. Udoetuk made no reference to delusional behavior or behavior that would be 26 inconsistent with Plaintiff’s ability to work or adapt to a work-like situation, instead noting 27 that Plaintiff was “the most . . . stable” he had ever observed Plaintiff to be. (AR 481.) 28 14 1 Finally, there is also no reference to delusional behavior in Plaintiff’s 2010 mental health 2 records from Dr. Eklund with San Bernardino County. (See generally AR 575-85.) 3 4 In sum, the ALJ did not err in according little weight to Dr. Vicary’s November 2013 5 opinion on the grounds that it is conclusory, inconsistent with his own treatment notes, and 6 inconsistent with Plaintiff’s mental health treatment records as a whole. See Tommasetti, 7 533 F.3d at 1041 (incongruity between treating physician’s opinion and the treating records 8 is a specific and legitimate reason for rejecting that physician’s opinion); Thomas, 278 F.3d 9 at 957 (ALJ “need not accept the opinion of any physician, including a treating physician, if 10 that opinion is brief, conclusory and inadequately supported by clinical findings.”). 11 Accordingly, the ALJ’s decision must be affirmed. 12 \\ 13 \\ 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 15 1 CONCLUSION 2 3 For the reasons stated above, the Court finds that the Commissioner’s decision is 4 supported by substantial evidence and free from material legal error. Neither reversal of the 5 ALJ’s decision nor remand is warranted. 6 7 8 Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. 9 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 11 Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for 12 defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATE: March 31, 2017 17 18 ___________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 16

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