Otto R Gutierrez Jr. v. Carolyn W Colvin

Filing 21

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OTTO R. GUTIERREZ, JR., 12 Plaintiff, 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 19 I. ) Case No. CV 16-6957-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for supplemental security income benefits 21 (“SSI”). 22 Magistrate Judge under 28 U.S.C. § 636(c). 23 the Court on the parties’ Joint Stipulation, filed July 3, 2017, 24 which the Court has taken under submission without oral argument. 25 For the reasons stated below, the Commissioner’s decision is The parties consented to the jurisdiction of a U.S. The matter is before 26 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. 1 1 affirmed. 2 II. 3 BACKGROUND Plaintiff was born in 1990. 4 138.) 5 College. 6 (Administrative Record (“AR”) He completed high school and attended Cerritos Community (AR 69, 285, 528.) He has never worked. (AR 75, 174.) On January 29, 2013, Plaintiff filed an application for SSI, 7 alleging that he had been unable to work since June 24, 2008 (AR 8 66, 138), because of Asperger’s disorder, speech disorder, 9 anxiety disorder, allergies, asthma, and insomnia (AR 66). After 10 his application was denied (AR 82-86), he requested a hearing 11 before an Administrative Law Judge (AR 87-89). 12 held on November 13, 2014, at which Plaintiff testified, as did 13 Plaintiff’s mother and a vocational expert.2 14 written decision issued March 6, 2015, the ALJ found Plaintiff 15 not disabled. 16 Appeals Council denied on August 5, 2016. 17 followed. 18 III. STANDARD OF REVIEW 19 (AR 26-34.) A hearing was (AR 38-59.) In a Plaintiff requested review, which the (AR 1-4.) This action Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. The ALJ’s findings and 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 24 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 25 26 27 28 2 Plaintiff was not represented at the November 13, 2014 hearing (AR 40), but he retained counsel several months before the ALJ issued his decision (AR 135-37) and was represented during the Appeals Council proceedings (AR 198-200). 2 1 evidence means such evidence as a reasonable person might accept 2 as adequate to support a conclusion. 3 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 4 It is more than a scintilla but less than a preponderance. 5 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 7 substantial evidence supports a finding, the reviewing court 8 “must review the administrative record as a whole, weighing both 9 the evidence that supports and the evidence that detracts from Richardson, 402 U.S. at To determine whether 10 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 11 720 (9th Cir. 1998). 12 either affirming or reversing,” the reviewing court “may not 13 substitute its judgment” for the Commissioner’s. 14 IV. “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or has lasted, or is expected to 19 last, for a continuous period of at least 12 months. 20 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 21 1992). 42 U.S.C. 22 A. The Five-Step Evaluation Process 23 The ALJ follows a five-step sequential evaluation process to 24 assess whether a claimant is disabled. 20 C.F.R. 25 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 26 1995) (as amended Apr. 9, 1996). 27 Commissioner must determine whether the claimant is currently 28 engaged in substantial gainful activity; if so, the claimant is In the first step, the 3 1 not disabled and the claim must be denied. § 416.920(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting his ability to do basic work 6 activities; if not, the claimant is not disabled and the claim 7 must be denied. 8 9 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to 10 determine whether the impairment or combination of impairments 11 meets or equals an impairment in the Listing of Impairments 12 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 13 1; if so, disability is conclusively presumed. 14 § 416.920(a)(4)(iii). 15 If the claimant’s impairment or combination of impairments 16 does not meet or equal an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient residual functional capacity (“RFC”)3 to perform 19 his past work; if so, he is not disabled and the claim must be 20 denied. 21 proving he is unable to perform past relevant work. 22 F.2d at 1257. 23 case of disability is established. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if 24 3 25 26 27 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, __ F.3d __, No. 15-15776, 2017 WL 3496031, at *2 (9th Cir. Aug. 16, 2017) (citing § 416.920(a)(4)). 28 4 1 the claimant has no past relevant work, the Commissioner then 2 bears the burden of establishing that the claimant is not 3 disabled because he can perform other substantial gainful work 4 available in the national economy. 5 966 F.2d at 1257. 6 final step in the sequential analysis. 7 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. § 416.920(a)(4)(v); Drouin, That determination comprises the fifth and § 416.920(a)(4)(v); 8 B. The ALJ’s Application of the Five-Step Process 9 At step one, the ALJ found that Plaintiff had not engaged in 10 substantial gainful activity since January 29, 2013, the 11 application date. 12 Plaintiff had severe impairments of “paranoid schizophrenia and 13 Asperger’s syndrome.” 14 Plaintiff’s impairments did not meet or equal a listing. 15 29.) 16 (AR 28.) (Id.) At step two, he concluded that At step three, he determined that (AR At step four, the ALJ found that Plaintiff had the RFC to 17 perform all physical work at all exertional levels but with the 18 following nonexertional limitations: he “can understand and 19 remember tasks; can sustain concentration and persistence; can 20 adapt to workplace changes frequently enough to perform 21 unskilled, low stress jobs that require simple instructions; and 22 should have no job requiring interaction with the general 23 public.” 24 ALJ to evaluate against this RFC. 25 testimony, he found that Plaintiff could perform jobs existing in 26 significant numbers in the national economy. 27 Accordingly, he found Plaintiff not disabled. (AR 30.) Plaintiff had no past relevant work for the 28 5 (AR 32.) Based on the VE’s (AR 33.) (AR 33-34.) 1 V. DISCUSSION 2 Plaintiff alleges that the ALJ erred in (1) assessing the 3 medical evidence (J. Stip. at 3-5, 7-8, 14) and (2) evaluating 4 his credibility (id. at 15-16, 21-22).4 5 on either basis. Remand is not warranted 6 A. 7 Plaintiff contends that his “impairments were more severe The ALJ Did Not Err in Assessing the Medical Evidence 8 than are reflected in the ALJ’s decision.” (Id. at 8.) He 9 argues that the ALJ did not recognize that his symptoms were 10 getting worse over the course of 2014 and that the ALJ’s analysis 11 of his GAF scores was misguided. 12 reasons discussed below, remand is not warranted on this basis. 13 1. (Id. at 8, 14.) For the Applicable law 14 Three types of physicians may offer opinions in Social 15 Security cases: (1) those who directly treated the plaintiff, (2) 16 those who examined but did not treat the plaintiff, and (3) those 17 who did neither. 18 opinion is generally entitled to more weight than that of an 19 examining physician, and an examining physician’s opinion is Lester, 81 F.3d at 830. A treating physician’s 20 21 22 23 24 25 26 27 28 4 For convenience and other reasons, the Court has combined the parties’ three disputed issues into two. Plaintiff also contends that the “record was inadequate because it was missing approximately one year of treatment notes.” (J. Stip. at 7.) Any error in this regard was harmless. Though the additional medical evidence was not considered by the ALJ, Plaintiff submitted it to the Appeals Council. (AR 6.) It “considered . . . the additional evidence” and “found that [the] information [did] not provide a basis for changing the [ALJ’s] decision.” (AR 2.) As such, the evidence is part of the record, see Brewes v. Astrue, 682 F.3d 1157, 1163 (9th Cir. 2012), and the only question is whether the ALJ’s decision was correct in light of it and the rest of the medical evidence. 6 1 generally entitled to more weight than that of a nonexamining 2 physician. 3 Id. This is true because treating physicians are employed to 4 cure and have a greater opportunity to know and observe the 5 claimant. 6 If a treating physician’s opinion is well supported by medically 7 acceptable clinical and laboratory diagnostic techniques and is 8 not inconsistent with the other substantial evidence in the 9 record, it should be given controlling weight. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). § 416.927(c)(2).5 10 If a treating physician’s opinion is not given controlling 11 weight, its weight is determined by length of the treatment 12 relationship, frequency of examination, nature and extent of the 13 treatment relationship, amount of evidence supporting the 14 opinion, consistency with the record as a whole, the doctor’s 15 area of specialization, and other factors. 16 17 § 416.927(c)(2)-(6). When a treating or examining physician’s opinion is not contradicted by other evidence in the record, it may be rejected 18 19 5 20 21 22 23 24 25 26 27 28 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, 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, 804 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. 3:15-CV-05925-DWC, 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”). Accordingly, citations to 20 C.F.R. § 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 7 1 only for “clear and convincing” reasons. 2 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 3 (quoting Lester, 81 F.3d at 830-31). 4 the ALJ must provide only “specific and legitimate reasons” for 5 discounting it. 6 weight given an examining physician’s opinion, moreover, depends 7 on whether it is consistent with the record and accompanied by 8 adequate explanation, among other things. 9 These factors also determine the weight afforded the opinions of 10 11 See Carmickle v. When it is contradicted, Id. (quoting Lester, 81 F.3d at 830-31). nonexamining physicians. The § 416.927(c)(3)-(6). § 416.927(e). The ALJ’s findings and decision should be upheld if they are 12 free of legal error and supported by substantial evidence based 13 on the record as a whole. 14 402 U.S. at 401; Parra, 481 F.3d at 746. 15 all the medical opinions “together with the rest of the relevant 16 evidence.” 17 susceptible to more than one rational interpretation,’ the ALJ’s 18 decision should be upheld.” 19 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 20 21 See 42 U.S.C. § 405(g); Richardson, 20 C.F.R. § 416.927(b). 2. The ALJ must consider If the “‘evidence is Ryan v. Comm’r of Soc. Sec., 528 Relevant facts To support his application for SSI, Plaintiff provided 22 almost six years of clinical records (see AR 224) and almost four 23 years of treatment notes from various doctors at Kaiser 24 Permanente (see AR 280-471, 541-53). 25 notes from 12 visits with Dr. Oscar Estrada, Plaintiff’s treating 26 psychiatrist, through January 21, 2014. 27 461, 483, 489, 491, 495, 497, 499, 505.) 28 open for 30 days after Plaintiff’s hearing to allow him to obtain 8 These included treatment (AR 335, 428, 447, 454, The ALJ held the record 1 and submit an evaluation from Dr. Estrada regarding his mental 2 condition as it applied to his ability to work. 3 58.) 4 three months before the ALJ issued his decision — Plaintiff never 5 submitted an evaluation by Dr. Estrada or any additional 6 treatment notes from him to the ALJ. 7 (AR 53-55, 57- Despite obtaining counsel shortly after the hearing — and To supplement the record, the ALJ ordered a psychological 8 consultative examination (AR 63), which was completed on June 25, 9 2014, by Dr. Kara Cross (AR 527-31). Dr. Cross assigned 10 Plaintiff a global assessment of functioning (“GAF”) score of 11 52.6 12 limitations in understanding and following simple tasks for an 13 eight-hour day and 40-hour workweek as long as he was not under 14 any time pressure and wasn’t working with the public; he had 15 moderate limitations in performing complex tasks for long hours 16 and interacting properly with peer supervisors and the public. 17 (AR 530.) 18 (AR 530.) She found that Plaintiff had no significant Plaintiff began treatment with Dr. Estrada in December 2010. 19 (AR 335.) 20 [symptoms, including] insomnia, variable appetite, irritability 21 and sadness.” 22 55. He “report[ed] experiencing depressive and anxiety (AR 337.) (AR 336.) Dr. Estrada assigned him a GAF score of In August 2012, Plaintiff complained of similar 23 24 25 26 27 28 6 GAF scores assess a person’s overall psychological functioning on a scale of 1 to 100. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). A GAF score of 51 to 60 indicates moderate symptoms or difficulty in social, occupational, or school functioning. See id. 9 1 symptoms and was also experiencing “polyphagia,7 fear of being 2 alone, [and] excessive worry”; he said he “ha[d] become isolated, 3 irritable and verbally aggressive.” 4 observed that Plaintiff’s attitude was “uncooperative, defensive 5 and somewhat hostile,” his mood was “sad and irritable,” and his 6 affect was “blunted.” 7 medication” (id.), and his GAF score was 45 (AR 430).8 8 9 (Id.) (AR 429.) Dr. Estrada Plaintiff was “[n]on-compliant with By January 2013, after Plaintiff became “compliant with medication,” he reported that “[h]is mood [had] improved [and he 10 was] experiencing less tantrums and irritability.” 11 Dr. Estrada noted that his attitude was “cooperative” though his 12 mood was “anxious.” 13 treatment notes show, he was “overall stable and open to 14 medication for depression and anxiety” (AR 491 (May 21, 2013)), 15 “moderate[ly] improv[ing] . . . since he restarted his 16 medication” (AR 495 (July 19, 2013)), “not explosive anymore and 17 . . . less anxious” (AR 497 (Aug. 25, 2013)), and not 18 experiencing “any psychiatric” symptoms” (AR 499 (Oct. 22, 19 2013)). 20 GAF scores after July 2013, when he assigned him a score of 50. 21 (See AR 496.) 22 rage and aggressive behavior” as well as “increasing anxiety, 23 insomnia and irritability.” 24 recorded that there were “no major changes since [Plaintiff’s] (Id.) (AR 455.) Throughout 2013, Plaintiff’s Dr. Estrada’s treatment notes stop recording Plaintiff’s In January 2014, Plaintiff reported “episodes of (AR 505.) Nonetheless, Dr. Estrada 25 26 7 Polyphagia is the medical term for excessive eating. Stedman’s Medical Dictionary 1424 (27th ed. 2000). 27 8 28 A GAF score of 41 to 50 indicates “serious symptoms.” DSM-IV 32. 10 See 1 last visit,” his attitude was “cooperative,” and he was “stable.” 2 (AR 505-06.) 3 The treatment notes Plaintiff submitted with his appeal 4 spanned four visits with Dr. Estrada, from January 21, 2014, 5 through January 7, 2015. 6 of those visits, in January 2014, were before the ALJ (see 505- 7 06, 542-44), so the additional evidence represents treatment 8 notes from three doctor’s visits (see AR 545-47 (Apr. 2014), 548- 9 50 (June 2014), 551-53 (Jan. 2015)). (AR 5, 542-53.) The records from one In April 2014, Plaintiff 10 was “cooperative, [though] initially agitated.” 11 reported symptoms of “insomnia, irritability, excessive worry and 12 agitation.” 13 for outpatient treatment” though “non-compliant with medication.” 14 (Id.) 15 “stable,” and was “compliant with medication.” 16 Treatment notes show that his “stressors” included his SSI appeal 17 and his brother’s wedding. 18 Plaintiff was “cooperative” though “very upset because [his] SSI 19 [had been] denied for the 3rd time.” 20 “stable” and “compliant with medication.” 21 22 (Id.) (AR 546.) He Dr. Estrada noted that Plaintiff was “stable By June 2014, Plaintiff reported similar symptoms, was 3. (Id.) (AR 549.) Finally, in January 2015, (AR 552.) He was still (AR 553.) Analysis Plaintiff claims the ALJ erred in evaluating “the severity 23 of [his] symptoms.” 24 allegedly worsening symptoms shown in the evidence he submitted 25 with his appeal and on the supposed ambiguity noted by the ALJ in 26 his GAF scores. 27 28 (J. Stip. at 14.) He relies on the (Id. at 8, 14.) Although Plaintiff implies that the ALJ did not give enough weight to Dr. Estrada’s opinion (see id. at 7-8 (citing law 11 1 regarding rejecting treating physician’s opinion but not 2 explicitly raising issue)), the ALJ in fact relied on Dr. 3 Estrada’s treatment notes (see, e.g., AR 31), as well as Dr. 4 Cross’s psychological evaluation (see AR 527-31),9 in assessing 5 Plaintiff’s mental impairments, and substantial evidence supports 6 the ALJ’s decision. Dr. Estrada’s four years of treatment notes — including 7 8 those submitted for the first time to the Appeals Council — show 9 that Plaintiff was stabilizing over time and that his enduring 10 symptoms were managed through medication. See Presley-Carrillo 11 v. Berryhill, __ F. App’x __, No. 15-17286, 2017 WL 2839505, at 12 *2 (9th Cir. July 3, 2017) (holding ALJ’s discounting of 13 claimant’s testimony supported by substantial evidence when 14 treatment notes indicated treatment rendered her mentally 15 stable); § 416.929 (allowing ALJ to consider effectiveness of 16 treatment as factor in determining severity of claimant’s 17 symptoms). 18 with Dr. Estrada over the course of 2014 — provides further 19 support for the ALJ’s finding that although Plaintiff had severe 20 mental impairments “impos[ing] more than a minimal effect on 21 [his] ability to perform basic work activities” (AR 28), 22 “treatment [had] been generally successful in controlling those 23 symptoms” (AR 31). 24 from 2014 show that his symptoms were worsening. 25 8.) His new medical evidence — made up of three meetings Plaintiff argues that Dr. Estrada’s notes (J. Stip. at He cites treatment notes from January 2014 to show that he 26 27 9 28 The ALJ gave “great weight” to Dr. Cross’s opinion (AR 32), which Plaintiff has not challenged. 12 1 “continued having episodes of rage and aggressive behavior” 2 (id.), but Dr. Estrada also noted at the time that he was “stable 3 [though] having problems coping with stress” (AR 543). 4 to Dr. Estrada’s observance of possible “paranoid delusions” in 5 April 2014 (J. Stip. at 8), but at that time his attitude was 6 “cooperative” and his thought process was “coherent” (AR 546). 7 Moreover, the “[p]ossibly paranoid [d]elusions” correlated with 8 Plaintiff’s “non-complian[ce] with medication.” 9 Estrada’s treatment notes for June 2014 reveal that secondary (Id.) He refers Dr. 10 stressors, such as his SSI case and his brother’s wedding, 11 contributed to Plaintiff’s anxiety, as they might with anyone. 12 (See AR 549.) 13 appointment with Dr. Estrada, Dr. Cross found that Plaintiff had 14 only a few moderate limitations (AR 530), which the ALJ accepted 15 and incorporated into the RFC and which Plaintiff has not 16 challenged. 17 continued anxiety regarding his SSI denial, Plaintiff was 18 “compliant with medication” and “stable for outpatient 19 treatment.” 20 Moreover, at about the same time as his June 2014 Finally, in January 2015, despite exhibiting (AR 553.) Nothing requires a claimant to be entirely free of symptoms See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 21 in order to work. 22 1989) (noting that disability benefits are intended for “people 23 who are unable to work; awarding benefits in cases of 24 nondisabling pain would expand the class of recipients far beyond 25 that contemplated in the statute”). 26 Plaintiff’s limitations and incorporated them into the RFC, see 27 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 28 2008) (moderate limitations accounted for by restriction in RFC 13 The ALJ properly assessed 1 to “simple, routine, repetitive tasks”), and Dr. Estrada’s few 2 later treatment notes were consistent with those findings. 3 Plaintiff’s claim about the ALJ’s analysis of his GAF scores 4 is similarly unconvincing. 5 weight on them, noting that the scores “were only a snapshot in 6 time.” 7 unreliable as an “indication of his overall mental health over a 8 twelve month period” (id.), especially as Dr. Estrada stopped 9 recording the score around the time Plaintiff once again became (AR 31.) The ALJ did not ultimately place much Moreover, Plaintiff’s fluctuating GAF score was 10 stable and compliant with medication. Further, to the extent 11 Plaintiff contends his scores show that his condition was 12 serious, his most recent GAF assessment, a score of 52, was 13 completed by Dr. Cross in June 2014 (AR 530) and indicates only 14 moderate symptoms or difficulty in social, occupational, or 15 school functioning, see Diagnostic and Statistical Manual of 16 Mental Disorders 32 (revised 4th ed. 2000). 17 issue with the ALJ’s statement that a “score of 50 is very close 18 to a finding of moderate symptoms” when in fact the score 19 indicates “serious” symptoms. 20 But his most recent GAF score was 52, squarely in the “moderate” 21 range, where the majority of his scores fell. 22 Commissioner has declined to endorse GAF scores, Revised Medical 23 Criteria for Evaluating Mental Disorders and Traumatic Brain 24 Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20 25 C.F.R. pt. 404) (GAF score “does not have a direct correlation to 26 the severity requirements in our mental disorders listings”), and 27 the most recent edition of the DSM “dropped” the GAF scale, 28 citing its lack of conceptual clarity and questionable Plaintiff takes (J. Stip. at 8 (citing AR 31).) 14 In any case, the 1 psychological measurements in practice. Diagnostic and 2 Statistical Manual of Mental Disorders 16 (5th ed. 2012). 3 Thus, the ALJ’s decision was supported by substantial 4 evidence based on the record as a whole, and remand is not 5 warranted on this basis. 6 B. The ALJ Properly Assessed Plaintiff’s Credibility 7 Plaintiff argues that the ALJ erred because he “dismissed 8 the Plaintiff’s complaints without the most recent medical 9 evidence” (J. Stip. at 16), his “activities of daily living are 10 more restricted [than] those presented by the ALJ” (id. at 21), 11 and the ALJ’s analysis of his treatment plan did not recognize 12 its intensive nature (id. at 22). 13 below, the ALJ did not err, and if he did, any error was 14 harmless. 15 16 1. For the reasons discussed Applicable law An ALJ’s assessment of symptom severity and claimant 17 credibility is entitled to “great weight.” 18 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 19 F.2d 528, 531 (9th Cir. 1986). 20 believe every allegation of disabling pain, or else disability 21 benefits would be available for the asking, a result plainly 22 contrary to 42 U.S.C. § 423(d)(5)(A).” 23 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair, 885 F.2d at 603). 24 25 See Weetman v. “[T]he ALJ is not required to Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the ALJ engages in a two-step analysis. 26 27 28 15 See Lingenfelter, 504 F.3d 1 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).10 2 “First, the ALJ must determine whether the claimant has presented 3 objective medical evidence of an underlying impairment [that] 4 could reasonably be expected to produce the pain or other 5 symptoms alleged.” 6 objective medical evidence exists, the ALJ may not reject a 7 claimant’s testimony “simply because there is no showing that the 8 impairment can reasonably produce the degree of symptom alleged.” 9 Smolen, 80 F.3d at 1282 (emphasis in original). 10 Lingenfelter, 504 F.3d at 1036. If such If the claimant meets the first test, the ALJ may discredit 11 the claimant’s subjective symptom testimony only if the ALJ makes 12 specific findings that support the conclusion. 13 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 14 affirmative evidence of malingering, the ALJ must provide “clear 15 and convincing” reasons for rejecting the claimant’s testimony. 16 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 17 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 18 1102 (9th Cir. 2014). 19 (1) ordinary techniques of credibility evaluation, such as the 20 claimant’s reputation for lying, prior inconsistent statements, 21 and other testimony by the claimant that appears less than 22 candid; (2) unexplained or inadequately explained failure to seek 23 treatment or to follow a prescribed course of treatment; (3) 24 See Berry v. Absent a finding or The ALJ may consider, among other factors, the claimant’s daily activities; (4) the claimant’s work record; 25 26 27 28 10 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 28, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect on March 6, 2015, however, when the ALJ issued his decision. 16 1 and (5) testimony from physicians and third parties. 2 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 3 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 4 2002). 5 substantial evidence in the record, the reviewing court “may not 6 engage in second-guessing.” Thomas, 278 F.3d at 959. Relevant background Dr. Cross completed her psychological evaluation of 8 9 If the ALJ’s credibility finding is supported by 2. 7 Rounds v. Plaintiff on June 25, 2014. (AR 527-31.) Her observations of 10 Plaintiff included that “[h]e had no impairment to [his] fine 11 motor skills, . . . [s]peech, hearing [or] vision.” 12 “He was not having trouble with attention or concentration.” 13 528.) 14 not appear to be angry or in distress but was anxious.” 15 529.) 16 put out good effort.” 17 was “not sleeping well or eating well”: “he [said] he feels 18 hungry because he is stressed a lot” and wasn’t sleeping well 19 because of “ghosts that haunt him at night.” 20 (AR 527-28.) (AR She noted that his mood was “mostly stable,” and “[h]e did (AR She said he “was slow to process information,” but “[h]e (AR 528.) She reported that he claimed he (AR 529.) Plaintiff told Dr. Cross that he was able to “do household 21 chores and to dress and bathe.” 22 helping out around the house and exercising” and is able to drive 23 a car. 24 assessed Plaintiff as able to work. 25 “great weight” to Dr. Cross’s evaluation because it was 26 “supported by the treating records, the claimant’s own 27 statements, reported activities of daily living, and [other] 28 objective findings.” (Id.) (Id.) “He spends his day She noted a few moderate limitations but otherwise (AR 32.) 17 (AR 530.) The ALJ gave 1 Dr. Cross’s evaluation largely aligns with Dr. Estrada’s 2 treatment notes. Dr. Estrada first saw Plaintiff in December 3 2010 and noted that his mood was anxious and his affect was 4 blunted. 5 “uncooperative, defensive and somewhat hostile.” 6 2013, Plaintiff showed increased stability, though his symptoms 7 still fluctuated: in January, “[h]is mood [had] improved [and he 8 was] experiencing less tantrums and irritability” (AR 455); in 9 February, July, August, and October he was “improving and stable” (AR 336.) In August 2012, Plaintiff was (AR 429.) By 10 (AR 463); but in May he complained of “increasing depressive” 11 symptoms (AR 492). 12 Plaintiff was “stable but having problems coping with stress.” 13 (AR 506.) 14 “insomnia, irritability, excessive worry and agitation,” but he 15 had a “cooperative” attitude and was “stable for outpatient 16 treatment.” 17 with medication.” 18 Plaintiff resumed “complian[ce] with medication” and continued to 19 be “stable for outpatient treatment.” 20 In January 2014, Dr. Estrada noted that In April 2014, Plaintiff’s symptoms included (AR 546.) Dr. Estrada noted he was “non-compliant (Id.) In June 2014 and January 2015, (AR 549, 553.) In a Function Report completed on March 7, 2013, Plaintiff 21 noted that his daily activities included “doing [his] bedroom, 22 wash[ing] dishes/cleaning the kitchen, vaccuming [sic] the 23 apartment, doing laundry[], going to the gym, tak[ing] out the 24 trash, cleaning the bathroom, [and] check[ing] [his] email 25 accounts.” 26 walked with his parents daily. 27 problems with personal care (AR 175), prepared his own food (AR 28 176), and shopped “once or twice a week [for] about two or three (AR 175.) He watched TV, went to Bally Fitness, and (AR 178, 231.) 18 He had no 1 hours” (AR 177). He stated that he got along “very well” with 2 authority figures, namely, his teacher at school. 3 a Disability Determination Explanation completed on May 30, 2013, 4 Plaintiff was noted for “talk[ing] on the face book with others 5 daily.” 6 year during the summer” with his family. (AR 71.) (AR 180.) In He also “usually [went] to Laughlin 2 times a (AR 368.) At the November 13, 2014 hearing, Plaintiff testified that 7 8 he had attended Cerritos Community College several days a week 9 for six years, taking general-education courses and a computer 10 class. 11 going to class, studying, and doing homework. 12 claimed never to go outside the house other than to school. 13 49.) 14 to work for, discriminated against him because of his disability. 15 (AR 48-49.) 16 treatment he was receiving, Plaintiff said that he sees a 17 psychiatrist once a month and takes three pills a day (AR 45-46): 18 Zoloft, Seroquel, and Lamictal for his Asperger’s, depression, 19 and anger problems (AR 47-48). 20 at the hearing. 21 often, “maybe two or three times a day.” 22 that he is alone “all the time” and is sometimes “very rude with” 23 her. 24 25 (AR 43, 45.) Plaintiff stated that he spent his days (AR 49-50.) He (AR He alleged that people, including employers he had applied When asked by the ALJ about any mental healthcare or (AR 51.) Plaintiff’s mother also testified She stated that he cleans the house (Id.) She also said (AR 52.) 3. Analysis The ALJ discredited some of Plaintiff’s complaints, finding 26 that although his “medically determinable impairments could 27 reasonably be expected to cause the alleged symptoms,” his 28 “statements concerning the intensity, persistence and limiting 19 1 effects of [those] symptoms [were] not entirely credible.” 2 31.) 3 Plaintiff’s subjective complaints, he provided clear and 4 convincing reasons for doing so. 5 (AR As discussed below, to the extent the ALJ rejected First, the ALJ found that Plaintiff’s “daily activities 6 . . . [were] not limited to the extent one would expect, given 7 the complaints of disabling symptoms and limitations.” 8 An ALJ may properly discount a plaintiff’s credibility when his 9 daily activities are inconsistent with his subjective symptom (AR 30.) 10 testimony. See Molina, 674 F.3d at 1112 (citing Lingenfelter, 11 504 F.3d at 1040)). 12 some difficulty functioning, they may be grounds for discrediting 13 the claimant’s testimony to the extent that they contradict 14 claims of a totally debilitating impairment.” 15 Indeed, Plaintiff’s activities were considerably more wide- 16 reaching than his alleged disability would indicate. 17 did household chores, such as washing dishes, vacuuming the 18 apartment, doing laundry, and taking out the trash. 19 He checked his email, spent time on Facebook, cooked for himself, 20 and “shop[ped] once or twice a week [for] about two or three 21 hours.” 22 daily (see AR 178, 529), activities that inherently require going 23 outside and interacting with people.11 24 inconsistent with Plaintiff’s allegation that he is totally “Even where those [daily] activities suggest (AR 175-78.) Id. at 1113. He often (AR 175.) He drove himself to school and to the gym These activities are 25 26 27 28 11 Although Plaintiff indicated at the hearing that he never left the house except to go to school (AR 49), he admitted elsewhere that he went to a Bally Fitness gym every day (see, e.g., AR 178, 231). 20 1 disabled and unable to function, see Matthews v. Shalala, 10 F.3d 2 678, 679-80 (9th Cir. 1993) (affirming ALJ’s finding that 3 “attending school . . . [is] an activity which is inconsistent 4 with an alleged inability to perform all work”); Presley- 5 Carrillo, __ F. App’x __, 2017 WL 2839505, at *2 (discounting 6 claimant’s testimony concerning disabling nature of symptoms when 7 it conflicted with evidence of daily activities and effective 8 treatment), in particular because he allegedly has difficulty 9 being around people. 10 Second, the ALJ noted that Plaintiff received “routine 11 and/or conservative” treatment that had been “relatively 12 effective in controlling the [Plaintiff’s] symptoms.” 13 “Impairments that can be controlled effectively with medication 14 are not disabling for the purpose of determining eligibility for 15 SSI benefits.” 16 (9th Cir. 2006). 17 Plaintiff stabilized and showed “moderate improvement” after 18 becoming “compliant with medication.” 19 prescribed and agreeing to follow a treatment course of 20 Lamictal12 and Seroquel13 in November 2012 (AR 448), Plaintiff 21 showed a decrease in symptoms. (AR 31.) Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 Dr. Estrada’s treatment notes confirm that (AR 495.) After being In January 2013, he reported that 22 23 24 25 26 27 28 12 Lamictal is an antiepileptic medication that is also used to delay mood episodes in adults with bipolar disorder (manic depression). See Lamictal,, lamictal.html (last updated Apr. 30, 2015). 13 Seroquel is an antipsychotic medicine that is used to treat schizophrenia and bipolar disorder. It is also used together with antidepressants to treat major depressive disorder in adults. See Seroquel,, seroquel.html (last updated Feb. 28, 2017). 21 1 his “mood [had] improved [and that he was] experiencing less 2 tantrums and irritability.” 3 discontinuing Seroquel but continuing to take Lamictal, Plaintiff 4 “report[ed] feeling better, less irritable, impulsive and 5 [a]ggressive since his medication was adjusted.” 6 March 2013, he “report[ed] doing well since the addition of 7 Lamictal,” though his mother stated that he “forgets to take his 8 medication frequently.” 9 followup visits in August and October 2013 show that Plaintiff (AR 455.) (AR 489.) In February 2013, after (AR 462.) In Dr. Estrada’s notes from 10 was “improving and stable.” 11 January 21, 2014 visit show that Plaintiff was “stable but having 12 problems coping with stress” even though he was “compliant with 13 medication.” 14 compliant with medication” when Dr. Estrada observed that 15 Plaintiff was possibly exhibiting paranoid delusions. 16 In June 2014 and January 2015, Plaintiff was again “compliant 17 with medication” and “stable for outpatient treatment,” with no 18 further mention of possible paranoia in his treatment notes. 19 549, 553.) 20 treatment was routine or conservative, see, e.g., Childress v. 21 Colvin, No. EDCV 14-0009-MAN, 2015 WL 2380872, at *14 (C.D. Cal. 22 May 18, 2015) (finding treatment of prescription antidepressants, 23 prescription antipsychotics, and talk therapy not properly 24 characterized as conservative), he did not err in concluding that 25 it was largely effective. 26 the extent he suffered from anxiety, it did not prevent him from 27 regularly venturing out into the world. 28 (AR 506.) (AR 498, 500.) His notes from a In April 2014, Plaintiff was “non- (AR 546.) (AR Thus, even if the ALJ was wrong in finding that the Plaintiff was generally stable, and to Finally, to the extent Plaintiff argues that “the [ALJ’s] 22 1 credibility analysis was insufficient because the ALJ dismissed 2 the Plaintiff’s complaints without the most recent medical 3 evidence” (see J. Stip. at 16), that contention has been 4 dispensed with above. 5 additional visits with Dr. Estrada are part of the record and do 6 not reveal any new or significantly different information from 7 what the ALJ considered and addressed. In sum, the ALJ provided clear and convincing reasons for 8 9 The treatment notes from the three finding Plaintiff only partially credible. Because those 10 findings were supported by substantial evidence, this Court may 11 not engage in second-guessing. 12 Plaintiff is not entitled to remand on this ground. 13 VI. 14 See Thomas, 278 F.3d at 959. CONCLUSION Consistent with the foregoing and under sentence four of 42 15 U.S.C. § 405(g),14 IT IS ORDERED that judgment be entered 16 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 17 request for remand, and DISMISSING this action with prejudice. 18 19 DATED: September 13, 2017_ ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 20 21 22 23 24 25 26 27 28 14 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 23

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