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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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OTTO R. GUTIERREZ, JR.,

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Plaintiff,

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v.

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

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Defendant.

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I.

) Case No. CV 16-6957-JPR
)
)
) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision

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denying his application for supplemental security income benefits

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(“SSI”).

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Magistrate Judge under 28 U.S.C. § 636(c).

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the Court on the parties’ Joint Stipulation, filed July 3, 2017,

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which the Court has taken under submission without oral argument.

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For the reasons stated below, the Commissioner’s decision is

The parties consented to the jurisdiction of a U.S.
The matter is before

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Nancy A. Berryhill is substituted in as the correct
Defendant.
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affirmed.

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II.

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BACKGROUND
Plaintiff was born in 1990.

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138.)

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College.

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(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,

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alleging that he had been unable to work since June 24, 2008 (AR

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66, 138), because of Asperger’s disorder, speech disorder,

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anxiety disorder, allergies, asthma, and insomnia (AR 66).

After

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his application was denied (AR 82-86), he requested a hearing

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before an Administrative Law Judge (AR 87-89).

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held on November 13, 2014, at which Plaintiff testified, as did

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Plaintiff’s mother and a vocational expert.2

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written decision issued March 6, 2015, the ALJ found Plaintiff

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not disabled.

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Appeals Council denied on August 5, 2016.

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followed.

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III. STANDARD OF REVIEW

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(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

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Commissioner’s decision to deny benefits.

The ALJ’s findings and

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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.

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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra

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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

Substantial

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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).
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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

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It is more than a scintilla but less than a preponderance.

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

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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substantial evidence supports a finding, the reviewing court

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“must review the administrative record as a whole, weighing both

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the evidence that supports and the evidence that detracts from

Richardson, 402 U.S. at

To determine whether

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the Commissioner’s conclusion.”

Reddick v. Chater, 157 F.3d 715,

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720 (9th Cir. 1998).

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either affirming or reversing,” the reviewing court “may not

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substitute its judgment” for the Commissioner’s.

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IV.

“If the evidence can reasonably support

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to

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last, for a continuous period of at least 12 months.

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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

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1992).

42 U.S.C.

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A.

The Five-Step Evaluation Process

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The ALJ follows a five-step sequential evaluation process to

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assess whether a claimant is disabled.

20 C.F.R.

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§ 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.

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1995) (as amended Apr. 9, 1996).

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Commissioner must determine whether the claimant is currently

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engaged in substantial gainful activity; if so, the claimant is

In the first step, the

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not disabled and the claim must be denied.

§ 416.920(a)(4)(i).

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine

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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting his ability to do basic work

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activities; if not, the claimant is not disabled and the claim

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must be denied.

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§ 416.920(a)(4)(ii).

If the claimant has a “severe” impairment or combination of
impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments

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(“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix

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1; if so, disability is conclusively presumed.

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§ 416.920(a)(4)(iii).

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If the claimant’s impairment or combination of impairments

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does not meet or equal an impairment in the Listing, the fourth

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)3 to perform

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his past work; if so, he is not disabled and the claim must be

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denied.

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proving he is unable to perform past relevant work.

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F.2d at 1257.

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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

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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)).

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the claimant has no past relevant work, the Commissioner then

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bears the burden of establishing that the claimant is not

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disabled because he can perform other substantial gainful work

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available in the national economy.

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966 F.2d at 1257.

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final step in the sequential analysis.

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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);

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B.

The ALJ’s Application of the Five-Step Process

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At step one, the ALJ found that Plaintiff had not engaged in

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substantial gainful activity since January 29, 2013, the

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application date.

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Plaintiff had severe impairments of “paranoid schizophrenia and

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Asperger’s syndrome.”

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Plaintiff’s impairments did not meet or equal a listing.

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29.)

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(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

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perform all physical work at all exertional levels but with the

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following nonexertional limitations: he “can understand and

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remember tasks; can sustain concentration and persistence; can

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adapt to workplace changes frequently enough to perform

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unskilled, low stress jobs that require simple instructions; and

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should have no job requiring interaction with the general

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public.”

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ALJ to evaluate against this RFC.

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testimony, he found that Plaintiff could perform jobs existing in

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significant numbers in the national economy.

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Accordingly, he found Plaintiff not disabled.

(AR 30.)

Plaintiff had no past relevant work for the

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(AR 32.)

Based on the VE’s

(AR 33.)
(AR 33-34.)

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V.

DISCUSSION

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Plaintiff alleges that the ALJ erred in (1) assessing the

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medical evidence (J. Stip. at 3-5, 7-8, 14) and (2) evaluating

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his credibility (id. at 15-16, 21-22).4

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on either basis.

Remand is not warranted

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A.

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Plaintiff contends that his “impairments were more severe

The ALJ Did Not Err in Assessing the Medical Evidence

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than are reflected in the ALJ’s decision.”

(Id. at 8.)

He

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argues that the ALJ did not recognize that his symptoms were

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getting worse over the course of 2014 and that the ALJ’s analysis

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of his GAF scores was misguided.

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reasons discussed below, remand is not warranted on this basis.

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1.

(Id. at 8, 14.)

For the

Applicable law

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Three types of physicians may offer opinions in Social

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Security cases: (1) those who directly treated the plaintiff, (2)

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those who examined but did not treat the plaintiff, and (3) those

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who did neither.

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opinion is generally entitled to more weight than that of an

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examining physician, and an examining physician’s opinion is

Lester, 81 F.3d at 830.

A treating physician’s

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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.
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generally entitled to more weight than that of a nonexamining

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physician.

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Id.

This is true because treating physicians are employed to

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cure and have a greater opportunity to know and observe the

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claimant.

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If a treating physician’s opinion is well supported by medically

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acceptable clinical and laboratory diagnostic techniques and is

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not inconsistent with the other substantial evidence in the

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record, it should be given controlling weight.

Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

§ 416.927(c)(2).5

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If a treating physician’s opinion is not given controlling

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weight, its weight is determined by length of the treatment

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relationship, frequency of examination, nature and extent of the

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treatment relationship, amount of evidence supporting the

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opinion, consistency with the record as a whole, the doctor’s

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area of specialization, and other factors.

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§ 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

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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.
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only for “clear and convincing” reasons.

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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)

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(quoting Lester, 81 F.3d at 830-31).

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the ALJ must provide only “specific and legitimate reasons” for

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discounting it.

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weight given an examining physician’s opinion, moreover, depends

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on whether it is consistent with the record and accompanied by

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adequate explanation, among other things.

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These factors also determine the weight afforded the opinions of

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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

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free of legal error and supported by substantial evidence based

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on the record as a whole.

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402 U.S. at 401; Parra, 481 F.3d at 746.

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all the medical opinions “together with the rest of the relevant

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evidence.”

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susceptible to more than one rational interpretation,’ the ALJ’s

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decision should be upheld.”

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F.3d 1194, 1198 (9th Cir. 2008) (citation omitted).

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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

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almost six years of clinical records (see AR 224) and almost four

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years of treatment notes from various doctors at Kaiser

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Permanente (see AR 280-471, 541-53).

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notes from 12 visits with Dr. Oscar Estrada, Plaintiff’s treating

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psychiatrist, through January 21, 2014.

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461, 483, 489, 491, 495, 497, 499, 505.)

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open for 30 days after Plaintiff’s hearing to allow him to obtain
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These included treatment

(AR 335, 428, 447, 454,
The ALJ held the record

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and submit an evaluation from Dr. Estrada regarding his mental

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condition as it applied to his ability to work.

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58.)

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three months before the ALJ issued his decision — Plaintiff never

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submitted an evaluation by Dr. Estrada or any additional

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treatment notes from him to the ALJ.

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(AR 53-55, 57-

Despite obtaining counsel shortly after the hearing — and

To supplement the record, the ALJ ordered a psychological

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consultative examination (AR 63), which was completed on June 25,

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2014, by Dr. Kara Cross (AR 527-31).

Dr. Cross assigned

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Plaintiff a global assessment of functioning (“GAF”) score of

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52.6

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limitations in understanding and following simple tasks for an

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eight-hour day and 40-hour workweek as long as he was not under

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any time pressure and wasn’t working with the public; he had

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moderate limitations in performing complex tasks for long hours

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and interacting properly with peer supervisors and the public.

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(AR 530.)

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(AR 530.)

She found that Plaintiff had no significant

Plaintiff began treatment with Dr. Estrada in December 2010.

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(AR 335.)

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[symptoms, including] insomnia, variable appetite, irritability

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and sadness.”

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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

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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.
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symptoms and was also experiencing “polyphagia,7 fear of being

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alone, [and] excessive worry”; he said he “ha[d] become isolated,

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irritable and verbally aggressive.”

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observed that Plaintiff’s attitude was “uncooperative, defensive

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and somewhat hostile,” his mood was “sad and irritable,” and his

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affect was “blunted.”

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medication” (id.), and his GAF score was 45 (AR 430).8

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(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

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was] experiencing less tantrums and irritability.”

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Dr. Estrada noted that his attitude was “cooperative” though his

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mood was “anxious.”

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treatment notes show, he was “overall stable and open to

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medication for depression and anxiety” (AR 491 (May 21, 2013)),

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“moderate[ly] improv[ing] . . . since he restarted his

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medication” (AR 495 (July 19, 2013)), “not explosive anymore and

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. . . less anxious” (AR 497 (Aug. 25, 2013)), and not

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experiencing “any psychiatric” symptoms” (AR 499 (Oct. 22,

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2013)).

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GAF scores after July 2013, when he assigned him a score of 50.

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(See AR 496.)

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rage and aggressive behavior” as well as “increasing anxiety,

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insomnia and irritability.”

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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

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Polyphagia is the medical term for excessive eating.
Stedman’s Medical Dictionary 1424 (27th ed. 2000).

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A GAF score of 41 to 50 indicates “serious symptoms.”
DSM-IV 32.
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See

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last visit,” his attitude was “cooperative,” and he was “stable.”

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(AR 505-06.)

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The treatment notes Plaintiff submitted with his appeal

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spanned four visits with Dr. Estrada, from January 21, 2014,

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through January 7, 2015.

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of those visits, in January 2014, were before the ALJ (see 505-

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06, 542-44), so the additional evidence represents treatment

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notes from three doctor’s visits (see AR 545-47 (Apr. 2014), 548-

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50 (June 2014), 551-53 (Jan. 2015)).

(AR 5, 542-53.)

The records from one

In April 2014, Plaintiff

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was “cooperative, [though] initially agitated.”

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reported symptoms of “insomnia, irritability, excessive worry and

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agitation.”

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for outpatient treatment” though “non-compliant with medication.”

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(Id.)

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“stable,” and was “compliant with medication.”

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Treatment notes show that his “stressors” included his SSI appeal

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and his brother’s wedding.

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Plaintiff was “cooperative” though “very upset because [his] SSI

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[had been] denied for the 3rd time.”

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“stable” and “compliant with medication.”

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(Id.)

(AR 546.)

He

Dr. Estrada noted that Plaintiff was “stable

By June 2014, Plaintiff reported similar symptoms, was

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(Id.)

(AR 549.)

Finally, in January 2015,

(AR 552.)

He was still

(AR 553.)

Analysis

Plaintiff claims the ALJ erred in evaluating “the severity

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of [his] symptoms.”

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allegedly worsening symptoms shown in the evidence he submitted

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with his appeal and on the supposed ambiguity noted by the ALJ in

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his GAF scores.

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(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
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regarding rejecting treating physician’s opinion but not

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explicitly raising issue)), the ALJ in fact relied on Dr.

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Estrada’s treatment notes (see, e.g., AR 31), as well as Dr.

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Cross’s psychological evaluation (see AR 527-31),9 in assessing

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Plaintiff’s mental impairments, and substantial evidence supports

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the ALJ’s decision.
Dr. Estrada’s four years of treatment notes — including

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those submitted for the first time to the Appeals Council — show

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that Plaintiff was stabilizing over time and that his enduring

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symptoms were managed through medication.

See Presley-Carrillo

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v. Berryhill, __ F. App’x __, No. 15-17286, 2017 WL 2839505, at

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*2 (9th Cir. July 3, 2017) (holding ALJ’s discounting of

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claimant’s testimony supported by substantial evidence when

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treatment notes indicated treatment rendered her mentally

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stable); § 416.929 (allowing ALJ to consider effectiveness of

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treatment as factor in determining severity of claimant’s

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symptoms).

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with Dr. Estrada over the course of 2014 — provides further

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support for the ALJ’s finding that although Plaintiff had severe

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mental impairments “impos[ing] more than a minimal effect on

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[his] ability to perform basic work activities” (AR 28),

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“treatment [had] been generally successful in controlling those

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symptoms” (AR 31).

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from 2014 show that his symptoms were worsening.

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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

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9

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The ALJ gave “great weight” to Dr. Cross’s opinion (AR
32), which Plaintiff has not challenged.
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“continued having episodes of rage and aggressive behavior”

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(id.), but Dr. Estrada also noted at the time that he was “stable

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[though] having problems coping with stress” (AR 543).

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to Dr. Estrada’s observance of possible “paranoid delusions” in

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April 2014 (J. Stip. at 8), but at that time his attitude was

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“cooperative” and his thought process was “coherent” (AR 546).

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Moreover, the “[p]ossibly paranoid [d]elusions” correlated with

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Plaintiff’s “non-complian[ce] with medication.”

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Estrada’s treatment notes for June 2014 reveal that secondary

(Id.)

He refers

Dr.

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stressors, such as his SSI case and his brother’s wedding,

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contributed to Plaintiff’s anxiety, as they might with anyone.

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(See AR 549.)

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appointment with Dr. Estrada, Dr. Cross found that Plaintiff had

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only a few moderate limitations (AR 530), which the ALJ accepted

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and incorporated into the RFC and which Plaintiff has not

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challenged.

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continued anxiety regarding his SSI denial, Plaintiff was

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“compliant with medication” and “stable for outpatient

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treatment.”

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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.

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in order to work.

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1989) (noting that disability benefits are intended for “people

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who are unable to work; awarding benefits in cases of

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nondisabling pain would expand the class of recipients far beyond

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that contemplated in the statute”).

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Plaintiff’s limitations and incorporated them into the RFC, see

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Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir.

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2008) (moderate limitations accounted for by restriction in RFC
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The ALJ properly assessed

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to “simple, routine, repetitive tasks”), and Dr. Estrada’s few

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later treatment notes were consistent with those findings.

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Plaintiff’s claim about the ALJ’s analysis of his GAF scores

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is similarly unconvincing.

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weight on them, noting that the scores “were only a snapshot in

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time.”

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unreliable as an “indication of his overall mental health over a

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twelve month period” (id.), especially as Dr. Estrada stopped

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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

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stable and compliant with medication.

Further, to the extent

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Plaintiff contends his scores show that his condition was

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serious, his most recent GAF assessment, a score of 52, was

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completed by Dr. Cross in June 2014 (AR 530) and indicates only

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moderate symptoms or difficulty in social, occupational, or

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school functioning, see Diagnostic and Statistical Manual of

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Mental Disorders 32 (revised 4th ed. 2000).

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issue with the ALJ’s statement that a “score of 50 is very close

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to a finding of moderate symptoms” when in fact the score

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indicates “serious” symptoms.

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But his most recent GAF score was 52, squarely in the “moderate”

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range, where the majority of his scores fell.

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Commissioner has declined to endorse GAF scores, Revised Medical

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Criteria for Evaluating Mental Disorders and Traumatic Brain

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Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) (codified at 20

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C.F.R. pt. 404) (GAF score “does not have a direct correlation to

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the severity requirements in our mental disorders listings”), and

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the most recent edition of the DSM “dropped” the GAF scale,

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citing its lack of conceptual clarity and questionable

Plaintiff takes

(J. Stip. at 8 (citing AR 31).)

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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

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evidence based on the record as a whole, and remand is not

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warranted on this basis.

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B.

The ALJ Properly Assessed Plaintiff’s Credibility

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Plaintiff argues that the ALJ erred because he “dismissed

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the Plaintiff’s complaints without the most recent medical

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evidence” (J. Stip. at 16), his “activities of daily living are

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more restricted [than] those presented by the ALJ” (id. at 21),

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and the ALJ’s analysis of his treatment plan did not recognize

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its intensive nature (id. at 22).

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below, the ALJ did not err, and if he did, any error was

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harmless.

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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.

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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

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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).

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(1) ordinary techniques of credibility evaluation, such as the

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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

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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;

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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

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a car.

24

assessed Plaintiff as able to work.

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“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, Drugs.com, https://www.drugs.com/
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, Drugs.com, https://www.drugs.com/
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

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26
27
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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