Suzanne Joy Mackelvey v. Carolyn W. Colvin
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. (twdb)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SUZANNE JOY MACKELVEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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) Case No. 2:16-cv-08044-KES
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) MEMORANDUM OPINION AND
) ORDER
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Plaintiff Suzanne Joy MacKelvey (“Plaintiff”) appeals the final decision of
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the Administrative Law Judge (“ALJ”) denying her application for Supplemental
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Security Income (“SSI”) disability benefits. For the reasons discussed below, the
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ALJ’s decision is AFFIRMED.
I.
BACKGROUND
Plaintiff filed her relevant benefits application on July 9, 2013, alleging the
onset of disability in 1996. Administrative Record (“AR”) 191. An ALJ
conducted a hearing on December 4, 2014, at which Plaintiff, who was represented
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by an attorney, appeared and testified. AR 57-95. The ALJ published an
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unfavorable decision on January 9, 2015. AR 38-56.
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The ALJ found that Plaintiff does not suffer from any medically
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determinable severe physical impairment. AR 45. The ALJ, however, found that
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Plaintiff suffers from the severe mental impairments of polysubstance dependence,
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bipolar disorder, and anxiety disorder. AR 44. Despite these impairments, the
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ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to
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perform work at any exertional level with several limitations attributable to her
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mental impairments: “she is unable to understand, remember, and carry out
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detailed or complex tasks and she can perform work functions with no more than
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occasional contact with co-workers, supervisors and the general public.” AR 47.
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In the social security context, “occasional” means up to one-third of the time.
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Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5.
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While Plaintiff had no past relevant work, based on this RFC and the
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testimony of a vocational expert (“VE”), the ALJ found that Plaintiff could work
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as (1) a hand packager (Dictionary of Occupational Titles [“DOT”] 920.587.018);
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(2) a small products assembler (DOT 706.684-022); or (3) a caretaker (DOT
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301.687-010). AR 52. Based on these findings, the ALJ concluded that Plaintiff is
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not disabled. Id.
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The ALJ noted that disability benefits may not be granted to claimants
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whose “drug addiction or alcoholism is material to the determination of disability.”
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AR 43. If the ALJ had found Plaintiff disabled, then the ALJ would have been
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obligated to conduct a differentiating analysis to determine if Plaintiff would still
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be disabled without considering the functional limitations caused by her
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polysubstance dependence. AR 44, n.2. In such an analysis, the claimant bears the
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burden of proof to show that his/her drug use is not the cause of the functional
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limitations material to the finding of disability. Id. The ALJ did not conduct a
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differentiating analysis in this case, having concluded that Plaintiff is not disabled
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even when considering all her functional limitations, whatever their source.
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II.
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ISSUES PRESENTED
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Issue One: Whether the ALJ erred in evaluating the opinions of treating
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psychiatrist, Dr. Thomas Hoffman, M.D. Dkt. 23, Joint Stipulation (“JS”) at 4.
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Plaintiff contends that the ALJ failed to give any reason – let along a
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specific and legitimate reason – for rejecting Dr. Hoffman’s two-page “Medical
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Source Statement – Mental.” JS at 4, citing AR 276-77. The Commissioner
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contends that the ALJ did not “reject” Dr. Hoffman’s opinions, but instead
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determined Plaintiff’s RFC consistent with them. JS at 7-8.
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Issue Two: Whether the ALJ’s RFC determination is supported by
substantial evidence. JS at 4.
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Plaintiff contends that the Appeals Counsel should have accepted as
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evidence a “Medical Source Statement of Ability to do Work-Related Activities
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(Mental)” completed by Plaintiff’s treating psychologist, Esther Lee, Ph.D., and
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dated January 28, 2016, i.e., about a year after the ALJ’s January 9, 2015 decision.
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JS at 11. Per Plaintiff, had those materials been accepted as evidence, then
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substantial evidence would not support the ALJ’s RFC determination. JS at 11-17.
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The Commissioner argues that the Appeals Counsel correctly declined to
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accept Dr. Lee’s 2016 materials as evidence because those materials “post-dated
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the ALJ’s decision.” JS at 17.
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III.
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DISCUSSION.
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A.
Issue One: The ALJ’s Evaluation of Dr. Hoffman’s Opinions.
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1.
The Treating Physician Rule.
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“As a general rule, more weight should be given to the opinion of a treating
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source than to the opinion of doctors who do not treat the claimant.” Turner v.
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Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (citation omitted). This
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rule, however, is not absolute. Where the treating physician’s opinion is not
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contradicted by an examining physician, that opinion may be rejected only for
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“clear and convincing reasons.” Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir.
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1999). Where, however, the opinions of the treating and examining physicians
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conflict, if the ALJ wishes to disregard the opinion of the treating physician, the
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ALJ must give “specific, legitimate reasons for doing so that are based on
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substantial evidence in the record.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th
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Cir. 1995) (citation omitted). See also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.
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2007) (“If the ALJ wishes to disregard the opinion of the treating physician, he or
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she must make findings setting forth specific, legitimate reasons for doing so that
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are based on substantial evidence in the record.” (citation omitted)).
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Thus, under Andrews and Orn, the dispositive questions are (1) whether the
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ALJ’s RFC determination rejected any of Dr. Hoffman’s opinions and adopted
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contradictory opinions by other medical sources, and if so, (2) did the ALJ give
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“specific, legitimate reasons” for doing so.
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2.
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Dr. Hoffman works for the Los Angeles County Department of Mental
Summary of Dr. Hoffman’s Opinions.
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Health. AR 297, 331. On June 14, 2012, Dr. Hoffman complete a two-page
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“Medical Source Statement – Mental” form. AR 276-77. The form requires
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checking boxes to rate the patient’s ability to do certain work-related activities “on
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a day-to-day basis in a regular (40 hour) work setting.” AR 276. The four
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available ratings are unlimited, good, fair, or poor. Id. Dr. Hoffman only used the
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“fair” or “poor” ratings. Fair was defined as “the individuals’ capacity to perform
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the activity is impaired, but the degree/extent of the impairment needs to be further
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described.” AR 276. Poor was defined as “the individual cannot usefully perform
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or sustain the activity.” Id.
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Dr. Hoffman opined Plaintiff has a “fair” ability to understand and
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remember “very short and simple instructions” and react appropriately to
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workplace hazards. AR 276-77. He opined she had a “poor” ability to
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(1) understand and remember “detailed or complex instructions,” (2) carry out
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instructions (without specifying detailed or complex), (3) concentrate, (4) work
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without supervision, (5) interact with the public, coworkers and supervisors, and
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(6) adapt to workplace changes. Id.
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The same “medical findings” supported all Dr. Hoffman’s opinions about
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Plaintiff’s functionality. AR 276-77. Those findings were “self-reported history
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and observations clinically during appointments.” AR 276. Dr. Hoffman
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diagnosed Plaintiff with a mood disorder, borderline personality disorder,
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posttraumatic stress disorder, and polysubstance dependence. Id. He opined that
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consistent with these diagnoses, “patient has difficulty with mood stability,
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anxiety, irritability, concentration, and interpersonal functioning.” Id. Dr.
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Hoffman does not indicate which limitations or degrees of limitation he attributed
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to Plaintiff’s polysubstance dependence. Id.
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3.
The RFC Compared to Dr. Hoffman’s Medical Source Statement.
a.
Understanding, Remembering, and Carrying Out Instructions.
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The ALJ gave “significant weight” to the opinions of Dr. Erhart. AR 50.
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Dr. Erhart opined that Plaintiff’s “ability to understand, remember and perform
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instructions for simple tasks was intact.” AR 283. He opined, however, that her
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“ability to understand, remember and perform instructions for complex tasks was
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severely impaired based on clustered deficits on a cognitive exam indicating
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prioritized problems with strategizing, maintaining attention and vigilance, and
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producing recurring instances where she asked even moderately complex questions
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to be reiterated.” Id. He expressly found that the limitations in his report reflected
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Plaintiff’s “neurological problems” rather than “cocaine exposure.” AR 284.
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In his RFC determination, the ALJ adopted Dr. Erhart’s opinions concerning
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Plaintiff’s reasoning abilities by finding that Plaintiff cannot “understand,
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remember, and carry out detailed or complex tasks.” AR 47. The ALJ also found
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that Plaintiff could work as a hand packager, small products assembler, or
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caretaker, all jobs that require level 2 reasoning per their DOT description.1 Jobs
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requiring level 2 reasoning are simple, repetitive jobs. Salazar v. Astrue, No. 07-
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00565, 2008 WL 4370056, at *7 (collecting cases).
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These findings do not contradict Dr. Hoffman’s opinion that Plaintiff cannot
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usefully understand and remember “detailed or complex instructions.” AR 276.
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These findings also do not contradict Dr. Hoffman’s opinion that Plaintiff has a
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“fair” ability to understand and remember simple instructions, because “fair” was
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not defined to preclude the activity. Rather, Dr. Hoffman’s “fair” rating only
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indicated that Plaintiff’s ability to understand and remember simple instructions in
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a regular work setting was “impaired” to an unknown degree/extent. AR 276.
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That some unspecified (and perhaps slight) degree of impairment exists in a
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regular work setting is not equal to an opinion that Plaintiff would be unable to
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understand and remember simple instructions in a workplace environment
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protected from other sources of stress, such as frequent interactions other people.
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The Medical Source Statement form that Dr. Hoffman used differentiated
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between “complex” and “simple” instructions when asking about understanding
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and remembering, but it did not differentiate between “complex” and “simple”
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instructions when asking about carrying out. AR 276. Dr. Hoffman therefore
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presumably intended for his opinion about carrying out to encompass both
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“complex” and “simple” instructions, which is why he rated Plaintiff’s ability as
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“poor.” Id. Dr. Hoffman did not provide an opinion that addressed only Plaintiff’s
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A job’s level of simplicity is addressed by its DOT general educational
development (“GED”) reasoning development rating. GED reasoning levels range
from 1 (simplest) to 6 (most complex). GED level 2 requires the ability to “apply
commonsense understanding to carry out detailed but uninvolved written or oral
instructions” and “deal with problems involving a few concrete variables in or
from standardized situations.” See DOT, App. C.
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ability to carry out simple instructions. Thus, Dr. Hoffman did not provide an
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opinion that conflicts with Dr. Erhart’s opinion that Plaintiff retains the ability to
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“perform … simple tasks.” AR 283.
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b.
Interacting with Other People.
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Dr. Erhart opined that Plaintiff’s “ability to interact with the public,
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coworkers and supervisor was moderately impaired by cross sectional features of
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an impatient and impulsive response style as well as difficulties maintaining focus
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both of which will be frustrating to potential employers.” AR 283. The ALJ relied
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on this opinion to include in Plaintiff’s RFC a limitation that she can interact with
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others at work no more than one third of the time. AR 47.
Dr. Hoffman opined that Plaintiff cannot usefully “perform or sustain”
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interactions with others in a regular work setting. AR 276-77. It would not be
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reasonable to interpret Dr. Hoffman as opining that Plaintiff cannot “perform” any
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work-related, interpersonal interactions, because his own treatment notes reflect his
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awareness that she can and does interact with others on a limited basis, such as her
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boyfriend, her mother, and medical service providers. AR 332-34. Dr. Hoffman
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must therefore have meant that, in his opinion, Plaintiff cannot “sustain”
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interpersonal reactions in a regular work setting. The Medical Source Statement
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form that Dr. Hoffman used, however, does not define or quantify the term
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“sustain.” Dr. Hoffman might agree that a person who can only interact with
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others at work up to one-third of the time has no useful ability to “sustain” that
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activity.
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4.
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The ALJ neither discussed Dr. Hoffman by name and nor discussed the
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opinions in AR 276-77. The ALJ did discuss Plaintiff’s treating records from
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“Downtown Mental Health,” i.e., the Los Angeles County Department of Mental
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Health. AR 45, citing Ex. B7F/3-5 (AR 332-34 [medication support service
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treating notes by Dr. Hoffman]). The ALJ also considered the opinions of Dr.
Analysis.
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Erhart, state agency psychologist Cheryl Woodson-Johnson, Psy.D., and state
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agency psychiatrist R. Singh, M.D. AR 50. The state agency doctors reviewed Dr.
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Hoffman’s findings in the context of the medical record and opined that Plaintiff
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would be able to perform simple, routine, and repetitive tasks with limited
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interpersonal contact. AR 114-15, 118-25.
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An ALJ need not discuss “all evidence” presented by a claimant. Vincent v.
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Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, the ALJ need only
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explain why he “rejected” significant, probative evidence. Id. Ultimately, the
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RFC adopted by the ALJ did not “reject” the opinions of Dr. Hoffman in favor of
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those of Drs. Erhart, Woodson-Johnson, or Singh. Rather, Dr. Hoffman’s opinions
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in the Medical Source Statement form are not well quantified, and they can
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reasonably be interpreted as consistent with the other doctors and the RFC
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determined by the ALJ, as discussed above. For these reasons, Plaintiff has failed
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to show that the ALJ erred by failing to give reasons for “rejecting” Dr. Hoffman’s
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opinions.
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Even if there was error, it was harmless. “A decision of the ALJ will not be
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reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th
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Cir. 2005). Generally, an error is harmless if it either “occurred during a procedure
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or step the ALJ was not required to perform,” or if it “was inconsequential to the
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ultimate nondisability determination.” Stout v. Comm’r of SSA, 454 F.3d 1050,
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1055 (9th Cir. 2006).
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Here, Dr. Hoffman expressly states that his Medical Source Statement
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opinions about Plaintiff’s limitations are supported by and consistent with all her
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diagnoses, including polysubstance dependence. AR 276. He did not distinguish
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which limitations (or degrees of limitations) were attributable to polysubstance
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dependence versus Plaintiff’s other impairments. AR 276-77. Dr. Hoffman’s
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failure to draw this distinction destroys the probative value of his opinions and
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makes any error to consider them harmless, because the ALJ cannot base a finding
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of disability on functional limitations caused by polysubstance dependence.
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B.
Issue Two: Dr. Lee’s 2016 Opinion.
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1.
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A claimant may ask the Appeals Council to review an adverse decision by
Rules Governing New Evidence.
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an ALJ. The Appeals Council will review the ALJ’s decision if it receives
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evidence “that is new, material, and relates to the period on or before the date of
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the hearing decision, and there is a reasonable probability that the additional
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evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5)
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(emphasis added). Per the regulations, if a claimant submits “additional evidence
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that does not relate to the period on or before the date of the administrative law
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judge hearing decision …, the Appeals Council will send” the claimant a notice
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that explains why it did not accept the additional evidence. 20 C.F.R. § 404.970(c)
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(emphasis added).
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If the Appeals counsel accepts new evidence and makes it part of the record,
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then the district court must consider the new evidence in analyzing whether the
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ALJ’s findings are supported by substantial evidence. Brewes v. Comm’r of SSA,
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682 F.3d 1157, 1163 (2012).
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If, however, the Appeals Council declines to accept one or more pieces of
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new evidence (such as Dr. Lee’s opinion [see AR 2]), then the claimant may ask
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the district court to remand the case to permit the ALJ to consider the new
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evidence. Remand is appropriate if (1) the new evidence is “material” and
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(2) there is “good cause” for the failure to incorporate such evidence in the record
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in a prior proceeding. Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984)
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(citing 42 U.S.C. § 405(g)).
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“To demonstrate good cause, the claimant must demonstrate that the new
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evidence was unavailable earlier.” Mayes v. Massanari, 276 F.3d 453, 463 (9th
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Cir. 2001); see also Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“If new
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information surfaces after the Secretary’s final decision and the claimant could not
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have obtained that evidence at the time of the administrative proceeding, the good
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cause requirement is satisfied.”).
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To be material, the new evidence must bear “directly and substantially on
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the matter in dispute.” Mayes, 276 F.3d at 462 (holding no remand required where
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claimant failed to demonstrate that “the [back] condition diagnosed in November
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1997 [and discussed in the new evidence] even existed when the ALJ hearing was
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held in May 1997”). This means it must be probative of the claimant’s condition at
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or before the time of the disability hearing. Sanchez v. Secretary of Health and
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Human Services, 812 F.2d 509, 511 (9th Cir. 1988) (citing 20 C.F.R. § 404.970(b))
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(holding evidence of “mental deterioration after the hearing … would be material
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to a new application, but not probative of his condition at the hearing”). Finally,
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materiality also requires plaintiffs to “demonstrate that there is a reasonable
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possibility that the new evidence would have changed the outcome of the
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administrative hearing.” Mayes, 276 F.3d at 463.
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2.
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On January 28, 2016, Esther Lee, Ph.D., Plaintiff’s treating psychologist,
Factual Background of Plaintiff’s New Evidence.
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completed a medical source statement of ability to do work-related activities
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(Mental) and an evaluation form for mental disorders in support of Plaintiff’s
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claim. Dkt. 24-1. Plaintiff submitted these documents to the Appeals Council on
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April 3, 2016, and wrote a supplement brief describing Dr. Lee’s opinions. AR
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271-273. The Appeals Council declined to include Dr. Lee’s 2016 medical source
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statement in the administrative record, finding that it was not probative of whether
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Plaintiff was disabled on or before January 9, 2015. AR 2.
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3.
The ALJ Need Not Consider Dr. Lee’s 2016 Opinion.
a.
Good Cause.
Per Plaintiff’s letter brief, Dr. Lee began treating her in July 2015. AR 271.
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This is after the ALJ’s decision in January 2015. AR 52. Plaintiff has therefore
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demonstrated “good cause” for not obtaining a treating opinion from Dr. Lee
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earlier.
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b.
Materiality
Plaintiff argues that Dr. Lee’s January 28, 2016 opinion should be viewed as
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probative of her condition at or before January 9, 2015, because (1) “Dr. Lee
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examined her approximately 8-months from the ALJ’s decision,” and (2) Dr. Lee
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also worked for the Los Angeles County Department of Mental Health, such that
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Dr. Lee may have had an opportunity to “observe” Plaintiff earlier and may have
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had access to her previous chart notes. JS at 19.
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Regarding the timing, while Dr. Lee’s treating relationship with Plaintiff
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began eight months after the ALJ’s decision, Dr. Lee’s opinion is dated more than
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a year after the ALJ’s opinion. Compare Dkt. 24-1 at 7 with AR 52. This is a
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significant lapse of time, during which the limitations caused by Plaintiff’s
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impairments may have changed significantly. Medical opinions that describes a
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deterioration in the claimant’s condition after the ALJ’s decision are not probative
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of the claimant’s condition during the relevant time period. Smith v. Bowen, 849
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F.2d 1222, 1226 (9th Cir. 1988) (contrasting relevant, retrospective medical
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opinions with irrelevant medical opinions describing “any deterioration in [the
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claimant’s] condition subsequent to” the relevant cutoff date); Hall v. Secretary of
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Health, Educ. & Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979) (new evidence “was
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of extremely doubtful relevance because it was based on an examination eight
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months after [claimant’s] insured status”); Chavolla v. Colvin, No. 13-3943, 2014
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U.S. Dist. LEXIS 32132, at *5-6 (C.D. Cal. Mar. 11, 2014) (“Dr. Lane’s opinions
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from July and September 2009 were not probative evidence of plaintiff’s
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limitations during the earlier, relevant period of June 27, 2007, to May 20,
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2009….”).
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Dr. Lee did not indicate that her opinions were intended to describe
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Plaintiff’s condition a year earlier. To the contrary, Dr. Lee described Plaintiff’s
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“present illness” and “current level of functioning.” Dkt. 24-1 at 4, 6. While she
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also noted some of Plaintiff’s medical history, she did not offer opinions about
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Plaintiff’s past level of functioning. Dkt. 24-1 at 6 (opinion Plaintiff “is currently
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not able” to perform certain activities).
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Regarding Plaintiff’s argument that Dr. Lee might have obtained
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information about Plaintiff from the relevant time, Plaintiff’s argument relies on
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speculation. There is no evidence that Dr. Lee based her opinions on any
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information other than her own observations, as the form instructed her to do. Dkt.
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24-1 at 1. While she noted Plaintiff’s prior treatment at the Downtown Mental
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Health Center under “past history,” she did not cite from past treating records. Id.
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at 4.
In sum, nothing in Dr. Lee’s opinions suggests that she provided a
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retrospective opinion, because she did not have a treating relationship with
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Plaintiff until eight months after the ALJ’s decision. Plaintiff has failed to
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demonstrate that Dr. Lee’s opinion is probative of Plaintiff’s condition before
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January 9, 2015.
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4.
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Plaintiff argues that since the Appeals Council accepted her letter brief, and
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that brief summarized Dr. Lee’s 2016 opinions, those opinions became part of the
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record, such that this Court must consider them when evaluating whether the ALJ’s
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RFC determination is supported by substantial evidence. JS at 19.
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Plaintiff’s Letter Brief is Not Substantial Evidence.
Not so. The social security regulations broadly define “evidence” as
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“anything you or anyone else submits to us or that we obtain that relates to your
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claim.” 20 C.F.R. § 416.912(b). The regulations list several categories of medical
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evidence, but they do not refer to summaries of medical records in briefing as
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“evidence.” 20 C.F.R. § 416.912(b)(1)-(8).
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In Edwards v. Massanari, No. 00-0548, 2001 U.S. Dist. LEXIS 8750 (S.D.
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Ala. June 5, 2001), the administrative record included a letter brief from plaintiff’s
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counsel describing IQ testing performed by a qualified medical source. Id. at *2.
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Plaintiff contended that the ALJ “improperly rejected” this evidence. Id. The
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court determined that a letter brief reciting “a treating source’s findings does not
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constitute evidence,” such that the ALJ had no duty to discuss it. Id.
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The Court agrees with this reasoning. Given the Appeals Council’s clear
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rejection of Dr. Lee’s 2016 Medical Source Statement (AR 2), the Appeals Council
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did not accept Dr. Lee’s opinions as evidence by accepting Plaintiff’s letter brief
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discussing them.
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IV.
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CONCLUSION
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For the reasons stated above, the decision of the Social Security
Commissioner is AFFIRMED.
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Dated: October 11, 2017
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_____________________________
KAREN E. SCOTT
United States Magistrate Judge
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