Shannan K Irish v. Carolyn W Colvin

Filing 33

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons discussed below, the ALJs decision is AFFIRMED. (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 2:16-cv-03401-KES

SHANNAN K. IRISH,
Plaintiff,

MEMORANDUM OPINION
AND ORDER

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

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Plaintiff Shannan K. Irish (“Plaintiff”) appeals the final decision of the

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Administrative Law Judge (“ALJ”) denying her application for Disability Insurance

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Benefits (“DIB”). For the reasons discussed below, the ALJ’s decision is

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AFFIRMED.

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I.

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BACKGROUND

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Plaintiff filed her disability claim applications on May 30, 2012, alleging the

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onset of disability on January 15, 2012. Administrative Record (“AR”) 192-93. An

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ALJ conducted a hearing on September 15, 2014, at which Plaintiff, who was

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represented by an attorney, appeared and testified. AR 54-70. The ALJ published

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an unfavorable decision on October 3, 2014. AR 29-47.
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The ALJ found that Plaintiff suffers from the severe impairment of “status

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post C4-6 and C6-7 discectomy and fusion (May 2012 [AR 333]); generalized

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anxiety disorder; major depression, recurrent; and neurotic excoriations from

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picking at skin.” AR 34. Despite these impairments, the ALJ found that Plaintiff

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retained the residual functional capacity (“RFC”) to perform light work as defined

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in 20 C.F.R. § 404.1567(b) with some additional exertional and mental limitations.

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AR 35. The mental limitations were “limitation to unskilled work not requiring

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interaction with the public, i.e., only incidental contact and minimal interaction with

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coworkers, i.e., can work side by side, but verbal collaboration should not be a

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primary component of the job.” Id.
Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ

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found that Plaintiff could not perform her past relevant work as a nurse at the

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county jail where she worked from 1996 until January 2012. AR 40, 214. Plaintiff

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could, however, work as a housekeeper or retail marker. AR 41. The ALJ

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therefore concluded that Plaintiff is not disabled. AR 42.

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II.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s

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decision to deny benefits. The ALJ’s findings and decision should be upheld if

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they are free from legal error and are supported by substantial evidence based on

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the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389,

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401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial

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evidence means such relevant evidence as a reasonable person might accept as

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adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less

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than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial

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evidence supports a finding, the reviewing court “must review the administrative
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record as a whole, weighing both the evidence that supports and the evidence that

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detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715,

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720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or

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reversing,” the reviewing court “may not substitute its judgment” for that of the

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Commissioner. Id. at 720-21.

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“A decision of the ALJ will not be reversed for errors that are harmless.”

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Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an error is

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harmless if it either “occurred during a procedure or step the ALJ was not required

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to perform,” or if it “was inconsequential to the ultimate nondisability

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determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.

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2006).

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A.

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The Evaluation of Disability.
A person is “disabled” for purposes of receiving Social Security benefits if he

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is unable to engage in any substantial gainful activity owing to a physical or mental

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impairment that is expected to result in death or which has lasted, or is expected to

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last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A);

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Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A claimant for disability

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benefits bears the burden of producing evidence to demonstrate that he was

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disabled within the relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432

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(9th Cir. 1995).

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B.

The Five-Step Evaluation Process.

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The ALJ follows a five-step sequential evaluation process in assessing

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whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester

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v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996). In the first step, the Commissioner

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must determine whether the claimant is currently engaged in substantial gainful

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activity; if so, the claimant is not disabled and the claim must be denied. 20 C.F.R.

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§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

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If the claimant is not engaged in substantial gainful activity, the second step
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requires the Commissioner to determine whether the claimant has a “severe”

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impairment or combination of impairments significantly limiting his ability to do

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basic work activities; if not, a finding of not disabled is made and the claim must be

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denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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If the claimant has a “severe” impairment or combination of impairments, the

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third step requires the Commissioner to determine whether the impairment or

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combination of impairments meets or equals an impairment in the Listing of

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Impairments (“Listing”) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if

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so, disability is conclusively presumed and benefits are awarded. Id.

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§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant’s impairment or combination of impairments does not meet or

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equal an impairment in the Listing, the fourth step requires the Commissioner to

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determine whether the claimant has sufficient residual functional capacity (“RFC”)

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to perform his past work; if so, the claimant is not disabled and the claim must be

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denied. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden

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of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If

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the claimant meets that burden, a prima facie case of disability is established. Id.

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If that happens or if the claimant has no past relevant work, the

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Commissioner then bears the burden of establishing that the claimant is not

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disabled because he can perform other substantial gainful work available in the

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national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That

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determination comprises the fifth and final step in the sequential analysis. Id.

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§§ 404.1520, 416.920; Lester, 81 F.3d at 828 n. 5; Drouin, 966 F.2d at 1257.

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III.

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ISSUE PRESENTED

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Plaintiff’s appeal presents the sole issue of whether the ALJ properly

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considered the opinions of Plaintiff’s treating psychiatrist, Dr. David Bot, M.D.

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Dkt. 32, Joint Stipulation (“JS”) at 4.
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IV.

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DISCUSSION

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A.

The Treating Physician Rule.
“As a general rule, more weight should be given to the opinion of a treating

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source than to the opinion of doctors who do not treat the claimant.” Turner v.

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Comm’r of SSA, 613 F.3d 1217, 1222 (9th Cir. 2010) (citation omitted). This rule,

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however, is not absolute. Where the treating physician’s opinion is not contradicted

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by an examining physician, that opinion may be rejected only for “clear and

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convincing reasons.” Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999).

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Where, however, the opinions of the treating and examining physicians conflict, if

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the ALJ wishes to disregard the opinion of the treating physician, the ALJ must

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give “specific, legitimate reasons for doing so that are based on substantial evidence

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in the record.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citation

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omitted). See also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“If the ALJ

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wishes to disregard the opinion of the treating physician, he or she must make

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findings setting forth specific, legitimate reasons for doing so that are based on

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substantial evidence in the record.” (citation omitted)).

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Here, Plaintiff saw other treating physicians besides Dr. Bot. Plaintiff

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received mental health treatment from her primary care doctors – first Dr.

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Weisenberger, then Dr. Linford – who prescribed her Prozac (anti-depressant) and

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Ativan (anti-anxiety). See, e.g., AR 296, 317 (2011 treating records); AR 330

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(May 15, 2012 record); AR 260 (Plaintiff’s DIB application, stating she had been

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taking anxiety medications since 1999). Neither of these doctors’ records note that

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Plaintiff’s anxiety or depression caused serious functional limitations. See, e.g.,

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AR 439 (June 2012 initial visit for “depression”; Plaintiff reports a continuation of

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initial symptoms and “denies any aggravating factors”); AR 439-40 (Plaintiff will

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continue with Xanax, stop Prozac and start Cymbalta; she demonstrates

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“appropriate mood and affect”); AR 422-23 (2013 “follow up visit” for anxiety;
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Plaintiff continues on Effexor and Xanax and demonstrates “appropriate mood and

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affect”).

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In May 2012, treating physician Jeffrey Larson of Coeur d’Alene Spine and

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Brain found Plaintiff had “fluent speech” with “no deficit of memory or mentation,”

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and that her “attention span and concentration [were] adequate.” AR 331; see also

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AR 343 (September 2012 treatment record noting “no memory loss”). In

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November 2012, treating physician Dr. Magnuson at the North Idaho Pain

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Management Clinic reported that Plaintiff presented as “non-anxious” with “grossly

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normal intellect.” AR 370. He referred Plaintiff to a social worker for cognitive

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therapy, and in January 2013, the social worker noted that Plaintiff’s memory,

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speech, affect, and though process were all within normal limits. AR 371-72.

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Because Dr. Bot’s opinions are contradicted by the findings of these other

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treating sources, under Andrews and Orn, the dispositive question is whether the

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ALJ gave “specific, legitimate reasons” for discounting Dr. Bot’s opinions.

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B.

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Summary of Dr. Bot’s Medical Evidence.
Dr. Bot’s first saw Plaintiff on May 30, 2012. AR 465. Plaintiff had never

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previously received treatment from a psychiatrist. Id. Dr. Bot lives in Spokane,

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Washington. AR 472. Plaintiff testified that after she stopped working in

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California, she moved to Idaho because her father, a psychiatrist, lives there. AR

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67, see also AR 364 (July 2012 treatment note from Dr. Bot). When that living

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arrangement “didn’t work out,” she moved back to California. AR 67. She

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apparently established her treating relationship with Dr. Bot while in Idaho and

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maintained it via telephone upon returning to California. See AR 62-63 (Plaintiff’s

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testimony describing how she has had “telephone consults” with Dr. Bot for two to

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three months while she was looking for a new psychiatrist).

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Dr. Bot provided several medical opinions in 2013 and 2014 concerning

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Plaintiff’s claims for California benefits. See AR 398, 402, 404, 408. At the

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September 2014 hearing, Plaintiff testified that Dr. Bot was treating her with Xanax
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and Effexor but “not really so much counselling or therapy.” AR 62-63. Regarding

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her mental health medication, she testified that she was “really happy with where

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I’m at right now.” AR 63. She also testified, however, that she could probably

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handle the exertional demands of light work, but her depression and anxiety kept

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her from job hunting. AR 61-64.

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In August 2014, Dr. Bot completed a Psychiatric Impairment Questionnaire.

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AR 465. The Questionnaire defined a “moderate” limitation as one that

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“significantly affects but does not totally preclude the individual’s ability to

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perform the activity.” AR 467. A “marked” limitation was defined as one that

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“effectively precludes the individual from performing the activity in a meaningful

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manner.” Id. Using these definitions, he rated Plaintiff’s abilities in several

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functional categories. AR 468-70. He opined that Plaintiff would have moderate to

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marked limitation in the ability to perform activities within a schedule, maintain

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regular attendance, and be punctual. AR 468. He also opined that Plaintiff has

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moderate to marked limitations completing a normal workweek without

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interruptions from psychologically-based symptoms and performing at a consistent

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pace. AR 469. He opined that she would miss work more than three times a month

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due to her impairments. AR 471.

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In a different form opining that Plaintiff meets Listings 12.04 and 12.06 for

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depression and anxiety, Dr. Bot indicated that Plaintiff is “markedly” limited in

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conducting activities of daily living, functioning socially, and maintaining

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concentration, persistence, and pace. AR 418. If the ALJ had accepted Dr. Bot’s

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opinions, then no work would be available for a person with Plaintiff’s RFC. JS at

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C.

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The ALJ’s Reasons for Discounting Dr. Bot’s Opinions.
The ALJ first summarized Dr. Bot’s opinions. AR 37-38. The ALJ then

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gave them “little weight” for being (1) internally inconsistent and confusing,

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(2) inconsistent with other medical evidence, and (3) relying heavily on Plaintiff’s
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discredited subjective complaints, as follows:

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While a treating physician’s opinion is generally entitled to significant

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weight, that is only applicable if supported by objective medical

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evidence, and such is not the case herein. Dr. Bot certified that the

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claimant was permanently disabled with multiple moderate to market

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limitations (Exhibits 23F [AR 402-03] and 24F [AR 404-07]). Dr.

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Bot’s opinions are not supported by his own progress notes and those

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of other treating and examining physicians that generally reflect

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positive response to medication. His opinions are also confusing and

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inconsistent (Exhibits 20F [AR 398], 23F [AR 402-03], 24F [AR 404-

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07], 25F [AR 408-21] and 28F [AR 465-72]), for instance stating he

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was uncertain whether the claimant would deteriorate in a work setting

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(Exhibit 28F [AR 470]).

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improvement, in July 2012 noting surgery helped the neck and the

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claimant was off opiates, and planning to return to work. The claimant

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has handwritten notes over records from Dr. Bot (Exhibit 20F [AR

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398], 22F [AR 400-01]). … The opinions of Drs. Bot and Linford rely

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heavily on the subjective report and symptoms and limitations provided

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by the claimant, and the totality of the evidence does not support these

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opinions.

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While asserting disability, he notes

AR 40.
Elsewhere in her decision, the ALJ gave additional reasons for discounting

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Dr. Bot’s opinions. She noted that the extent of Dr. Bot’s treating relationship was

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seeing “claimant every month to six months and [he] was noted to treat the claimant

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by telephone.” AR 39, citing Ex. 27F (see, e.g., AR 453). The ALJ found that such

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“treatment is inconsistent with the severity alleged, and Dr. Bot’s own treatment

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records reflect that the [Plaintiff] never required psychiatric hospitalizations or

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emergency room treatment for symptoms.” AR 39.
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As a fifth reason, the ALJ noted that “claimant’s activities throughout the

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period she alleges disability include traveling to Idaho and back, and in May 2012

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she reported she was at the ‘giddy stage’ with a new boyfriend. She enjoyed family

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and did well with people, although she noted she had anxiety disorder since age 18.

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[AR 365.] These activities are inconsistent with the limitations alleged by the

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claimant and by Dr. Bot.” AR 39.

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D.

The ALJ Gave Specific and Legitimate Reasons for Discrediting Dr. Bot’s

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Opinions, and These Reasons are Supported by Substantial Evidence.

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Reason One: Internal Inconsistency.

The ALJ may disregard a treating physician’s opinion when it is internally

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inconsistent. Johnson v. Shalala, 60 F.3d at 1432-33; Matney v. Sullivan, 981 F.2d

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1016, 1020 (9th Cir. 1992) (concluding that internal inconsistencies and

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ambiguities within the doctor’s opinion provided specific and legitimate reasons for

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the ALJ to reject the opinion).

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Here, in February 2014, Dr. Bot opined that Plaintiff is “markedly” limited in

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her activities of daily living, social functioning, and maintaining concentration,

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persistence and pace. AR 407, 418. He further opined that she had suffered “one

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or two” episodes of decompensation, each of extended duration. Id. He checked

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this box rather than one labeled “insufficient evidence.” Id.

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His subsequent notes indicate Plaintiff was improving. In May 2014, he

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noted that Plaintiff was “feeling better” and “less scattered” on Effexor and “sounds

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good on phone.” AR 453. He further noted that Plaintiff and her boyfriend “are

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doing well.” Id. By August 2014, Dr. Bot did not find her markedly limited in any

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area of social functioning. AR 469. He opined that there was “no evidence of

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limitation” concerning Plaintiff’s abilities to interact appropriately with the general

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public and maintain socially appropriate behavior. Id.

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Dr. Bot’s subsequent treatment notes are also inconsistent with his earlier
notes. For example, despite his February 2014 note that Plaintiff had experienced
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“one or two episodes” of decompensation, when asked the same question in August

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2014, he wrote, “Uncertain. She last worked February 2012. This was 3 months

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before I met her.” AR 470.

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His notes are also inconsistent regarding Plaintiff’s ability to return to work.

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In the July 2012 treatment note cited by the ALJ, Dr. Bot noted that Plaintiff

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“doesn’t plan to return to work.” AR 462. In November 2012, Dr. Bot estimated

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that Plaintiff could return to work in May 2013. AR 400. In 2014, however,

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despite the fact that his treatment notes indicated improvement in Plaintiff’s

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condition, he opined that her mental impairments were so severe that she was

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disabled under Listings 12.04 and 12.06. AR 404-21; AR 403 (“poor prognosis for

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return to work”).

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Even within the same record, Dr. Bot sometimes gave inconsistent opinions.

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For example, in the Questionnaire, he did not check that Plaintiff has “poor

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memory” (AR 466), but he found her “moderately” limited in her ability to

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remember locations, work procedures, and detailed instructions (AR 468).

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For all these reasons, the ALJ’s finding that Dr. Bot’s opinions are internally
inconsistent is supported by substantial evidence.

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2.

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Generally, the more consistent a medical opinion is with the record as a

Reason Two: Inconsistency with Other Medical Evidence.

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whole, the more weight that medical opinion should receive. 20 C.F.R.

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§ 416.927(c)(4). ALJs may reject treating source medical opinions that are

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unsupported or inconsistent with other treating source evidence. Tommasetti v.

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Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding ALJ properly rejected a

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physician’s opinion that was inconsistent with the record); Rollins v. Massanari,

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261 F.3d 853, 856 (2001) (holding ALJ properly rejected treating physician’s

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opinions that “were so extreme as to be implausible and were not supported by any

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findings made by any doctor”).

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Here, the ALJ noted that while Dr. Bot opined Plaintiff was disabled due to
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her depression and anxiety, “other treating and examining physicians … generally

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reflect positive response to medication.” AR 40. The other treating records

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generally discuss Plaintiff’s medication for back pain rather than for depression or

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anxiety. Dr. Linford, however, noted twice that Plaintiff complained of depression

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or anxiety; each time, he adjusted or continued her medication, but did not make

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any other remarkable mental health findings. AR 439-40 (in June 2012, noting

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continuing symptoms of depression with “no aggravating factors” and continuing

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Prozac and Xanax), AR 422-23 (in October 2013, noting Plaintiff reported

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“anxious/fearful thoughts” and stopping Prozac).

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In November 2012, Plaintiff told the Idaho pain management clinic that her

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anxiety and depression worsen with chronic pain, and she was referred to a social

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worker for cognitive behavioral therapy. AR 371. The social worker noted that

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Plaintiff “picks at her skin and hair which has caused sores,” but she did not note

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any other behavior or symptoms outside normal limits. AR 372-73. Her treatment

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plan was therapy to achieve “stress reduction” and “emotion regulation skills.” AR

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373. Plaintiff, however, only met with the social worker that one time; she chose

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not to participate in the proposed cognitive therapy. AR 61-62 (Plaintiff’s hearing

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testimony that she “wasn’t into” the therapy because she thought the social worker

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was “a hypnotist or something”).

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In her Form SSA-3368, Plaintiff did not identify anxiety or depression as

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disabling conditions. AR 213. The only medication she was taking at that time

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(May 2012 [see AR 211, 216]) was pain medication. AR 215. At the hearing

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before the ALJ, she testified that she was “happy with where I’m at right now.”

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AR 63.

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These inconsistencies support the ALJ’s second specific and legitimate
reason for giving Dr. Bot’s opinions little weight.

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3.

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An ALJ may reject a treating physician’s opinion if it is based “to a large
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Reason Three: Reliance on Plaintiff’s Subjective Complaints.

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extent” on a claimant’s self-reports that have been properly discounted as

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incredible. Tommasetti, 533 F.3d at 1041 (holding ALJ properly rejected treating

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physician’s records that “largely reflect [the claimant’s] reports of pain, with little

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independent analysis or diagnosis”). In this appeal, Plaintiff did not challenge the

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ALJ’s adverse credibility determination as to the severity and limiting effects of her

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mental health symptoms.

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The record supports the ALJ’s conclusion that Dr. Bot was relying largely on

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Plaintiff’s self-reported condition when drafting his opinions. For example, Dr. Bot

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diagnosed Plaintiff with “generalized anxiety disorder.” AR 465. He identified

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Plaintiff’s “primary symptoms” as “anxiety” and identified the “clinical findings”

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that supported his diagnosis as “anxiety.” AR 467. When asked if Plaintiff is a

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malingerer, he answered, “no, though her motivation is limited.” AR 470. He

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noted that Plaintiff last worked in February 2012, then opined that the “earliest date

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that the description of symptoms and limitations” in the Questionnaire applied was

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also February 2012. AR 470-71. He gave this opinion even though his own

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treatment notes indicate that Plaintiff has suffered from anxiety disorder since age

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eighteen. AR 365.

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Similarly, Dr. Bot’s progress notes generally record Plaintiff’s opinions

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concerning whether she feels able to work. See, e.g., AR 457 (“doesn’t feel up to

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working generally though wonders about trying”); AR 459 (“feels too anxious to

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work”); AR 362 (“doesn’t feel she can do phone or desk job”1); AR 364 (“doesn’t

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plan to return to work”). Nothing in the record suggests that Dr. Bot ever observed

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Plaintiff in a work-like setting or administered any psychological tests designed to

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measure anxiety, coping skills, or social skills. The record does reflect that despite

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In her application for benefits, Plaintiff characterized this as Dr. Bot’s own
opinion, saying, “My psychiatrist stated ‘I cannot work a phone or desk job’ due to
my psychological limitations.” AR 247.
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reporting anxiety issues since the age of eighteen, see AR 365, Plaintiff graduated

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from high school, earned a nursing degree, and worked successfully in a stressful

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environment (i.e., a prison) for many years. AR 58. Thus, the ALJ’s conclusion

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that Dr. Bot’s opinion of total disability was based largely on Plaintiff’s subjective

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complaints is supported by substantial evidence.

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4.

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Where a treating physician recommends a course of treatment inconsistent

Reason Four: Inconsistency with Treatment Plan.

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with his/her opinion of total disability, an ALJ may rely on that inconsistency to

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discount the physician’s opinion. See Rollins, 261 F.3d at 856 (“These are not the

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sort of description and recommendations one would expect to accompany a finding

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that [the claimant] was totally disabled under the Act”); see also Seltser v. Comm’r

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of SSA, No. 12-2590, 2014 U.S. Dist. LEXIS 42676, at *6, 2014 WL 1292904, at

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*23 (S.D. Cal. Mar. 28, 2014), aff’d, 633 F. App’x 461 (9th Cir. 2016) (fact that

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treatment of claimant was mostly by telephone made medical opinion that claimant

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had marked limitations less credible).

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Here, the ALJ noted that, although Dr. Bot began treating Plaintiff in

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November 2012, his treatment of Plaintiff had switched to telephonic sessions by

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about February 2014. AR 36, 38; see also AR 455 (February 2014 record noting,

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“call in a couple days”). He continued to prescribe mental health medications for

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her, although he noted that she would run out early and demonstrated “little

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responsibility” in adhering to the prescribed dosage. AR 458. He did not explain

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cognitive therapy or follow up to ensure that Plaintiff received it, although it was

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recommended by the pain management clinic and was part of his own treatment

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plan. AR 371-73, 402-03; AR 61 (Plaintiff’s testimony that she thought cognitive

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therapist social worker was “a hypnotist or something”). Plaintiff has not seen any

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psychiatrist or therapist other than Dr. Bot and the social worker, and she

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acknowledged that Dr. Bot does “not really so much” provide “counselling or

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therapy.” AR 61-63. At the September 2014 hearing, she indicated that she was
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seeking to transition to a California psychiatrist, but she had not done so yet. AR

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62.

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This kind of laissez-faire mental health care is inconsistent with Dr. Bot’s

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opinion that Plaintiff has “marked” limitations in major functional areas and is

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precluded from all work by her anxiety. Thus, the ALJ’s third reason for

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discounting Dr. Bot’s opinions is supported by substantial evidence.

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5.

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ALJs may reject medical opinions that are inconsistent with other evidence

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of record, such as the claimant’s activities. Morgan v. Comm’r of SSA, 169 F.3d

Reason Five: Inconsistency with Plaintiff’s Activities

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595, 601 (9th Cir. 1999); see also Fisher v. Astrue, 429 F. App’x 649, 652 (9th Cir.

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2011) (concluding that conflict between a doctor’s opinion and the claimant’s daily

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activities was a legally sound reason to discount the doctor's opinion); Rivera v.

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Colvin, No. 13-160-JC, 2013 U.S. Dist. LEXIS 105301, at *21 , 2013 WL

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3879722, at *7 (C.D. Cal. July 26, 2013) (upholding ALJ’s rejection of medical

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opinion that plaintiff could do no lifting at all, where plaintiff testified that he could

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lift “[m]aybe five pounds, maybe a little less.”).

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The record reflects that Plaintiff lives with her boyfriend in an RV owned by

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her parents. AR 57, 221. In May 2012, she told Dr. Bot that she was “giddy” over

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her relationship with her boyfriend, and that she “enjoys family well and people.”

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AR 365. In her disability benefits application, she described her boyfriend as a

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“caregiver” who is willing to help her by driving her to medical appointments and

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doing other tasks. AR 221, 223. She stated that she spends time everyday talking

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with her boyfriend and parents. AR 227, 244.

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In October 2012, on a medical history form for the North Idaho Dermatology

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Clinic, she checked “no” as to psychological disorders. AR 384. She received

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cosmetic Botox treatments. AR 389, 393.

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In her disability application, she report that, despite her anxiety, she can use a
computer for online shopping. AR 222. She can also pay bills, handle a bank
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account, and use a checkbook. Id. She cooks two or three times a week, or every

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other day. AR 226, 241; see also AR 459 (December 2012 treatment note reporting

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that she makes dinner 25% of the time). She can do some laundry and dusting. AR

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226. She participated in physical therapy. AR 445.

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At the 2014 hearing, she repeatedly testified that despite persistent pain, she

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could physically perform the exertional demands of light work, but she felt unable

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to work because of her anxiety. AR 60-61 (testifying that she “was thinking about

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doing … some kind of computer management job from home” but her psychiatrist

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told her “it’s not a good idea for [her] to do that right now … because of [her] long

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history of my generalized anxiety disorder … and [her] depression”), AR 65-66

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(testifying that she could perform a desk job if she could change positions and take

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breaks, and agreeing that “the real issue … is getting this anxiety and depression

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under control”). She testified that while she was previously able to work despite

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her anxiety, she feels it has “really just gotten out of control as I’ve gotten older.”

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AR 60; see also AR 259 (disability benefits application stating, “I have had GAD

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[generalized anxiety disorder] since 1999” and “it is getting worse each year I

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age”). She testified that her anxiety causes her to “freak out …even just going into

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a gas station” or “the grocery store.” AR 66. Sometimes after she goes out,

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however, she feels better. AR 67.

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Plaintiff’s activities, particularly her ability to maintain relationships, is not

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consistent with Dr. Bot’s opinion that she is “markedly” limited in maintaining

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social functioning. AR 407, 418. Rather, her activities are consistent with an RFC

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that limits her need to interact with strangers, but does not entirely preclude her

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from working; this is the RFC of which the ALJ found Plaintiff capable. See AR

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35 (finding Plaintiff could perform “unskilled work not requiring interaction with

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the public, i.e., only incidental contact[,] and minimal interaction with coworkers.

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i.e., can work side by side, but verbal collaboration should not be a primary

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component of the job”). While Dr. Bot opined that she would miss too much work
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to maintain employment, his opinion did not consider whether Plaintiff would

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experience the same level of workplace stress (and consequent absenteeism) if her

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working environment were limited as described by the ALJ’s RFC. AR 471.

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Thus, the ALJ’s fifth reason for discounting Dr. Bot’s opinions is also

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supported by substantial evidence.

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V.

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CONCLUSION

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For the reasons stated above, IT IS ORDERED that judgment shall be

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entered AFFIRMING the decision of the Commissioner denying benefits.

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DATED: October 23, 2017
____________________________________
KAREN E. SCOTT
United States Magistrate Judge

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