Lolita D. Davis v. Nancy A. Berryhill

Filing 20

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LOLITA DENEANNE DAVIS,
Plaintiff,

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v.

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CASE NO. CV 17-2558 SS

MEMORANDUM DECISION AND ORDER

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

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I.

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INTRODUCTION

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21

Lolita

Deneanne

Davis

(“Plaintiff”)

brings

this

action

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seeking to overturn the decision of the Acting Commissioner of

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Social

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application for Supplemental Security Income (“SSI”).

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consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of

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the undersigned United States Magistrate Judge.

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13).

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Commissioner’s decision.

Security

For

the

(the

“Commissioner”

reasons

stated

or

below,

“Agency”)

the

denying

her

The parties

(Dkt. Nos. 11-

Court

AFFIRMS

the

1

II.

2

PROCEDURAL HISTORY

3
4

On

March

28,

2013,

Plaintiff

filed

an

application

for

5

Supplemental Security Income (“SSI”) pursuant to Title XVI of the

6

Social Security Act alleging a disability onset date of February

7

22,

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Plaintiff’s applications initially and on reconsideration.

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129-56).

2013.1

(AR

214-22,

230-32).

The

Commissioner

denied
(AR

Thereafter, Plaintiff requested a hearing before an

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Administrative Law Judge (“ALJ”) (AR 172-74), which took place on

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September 23, 2015 (AR 35-70).

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on November 4, 2015, finding that Plaintiff was not disabled

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because there are jobs that exist in significant numbers in the

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national economy that she can perform.

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31,

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review.

2017,

the

Appeals

(AR 3-5).

The ALJ issued an adverse decision

Council

denied

(AR 22-31).
Plaintiff’s

On January
request

for

This action followed on April 3, 2017.

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1

Plaintiff was previously found not disabled in a final decision dated
February 21, 2013, based on a prior SSI application filed on July 11,
2011.
(AR 22, 114-25).
“The principles of res judicata apply to
administrative decisions . . . . The claimant, in order to overcome the
presumption of continuing nondisability arising from the first
administrative law judge’s findings of nondisability, must prove ‘changed
circumstances’ indicating a greater disability.” Chavez v. Bowen, 844
F.2d 691, 693 (9th Cir. 1988) (citation omitted). Here, the ALJ found
that Plaintiff “has not [made] a showing of a changed circumstance
material to the determination of disability.” (AR 22).

2

1

III.

2

FACTUAL BACKGROUND

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4

Plaintiff was born on May 19, 1969. (AR 230).

She was forty-

5

six years old when she appeared before the ALJ on September 23,

6

2015.

(AR 35).

Plaintiff completed the eleventh grade and does

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not have a GED.

(AR 41-42). She is not married and is homeless.

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(AR 40, 54).

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(AR 42).

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Plaintiff last worked in 2008 doing in-home support.

She alleges disability due to: spinal injury, depression,

insomnia and back injury.

(AR 234).

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12

A.

Plaintiff’s Testimony

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14

Plaintiff testified that she is unable to work because of

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auditory hallucinations, insomnia, depression and back pain.

(AR

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42-46).

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her mental health issues, and Trazadone for her insomnia, all of

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which provide some relief.

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effects from her medications.

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caries her possessions in a backpack, uses Access Services to get

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around and is unable to walk more than a half block before needing

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to rest.

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(AR 57).

She takes Norco for her back pain, Abilify and Zoloft for

(AR 47, 52-53).
(AR 52-53).

She denied any side

Plaintiff is homeless,

(AR 41, 46, 54-56). She denied using drugs or alcohol.

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25
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3

1

B.

Treatment History

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3

In September 2009, Plaintiff was the victim of a home invasion

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and was shot.

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hip.

(AR 309).

A bullet fragment remains in her left

(AR 309).

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7

On April 9, 2012, Plaintiff presented to Salvador E. Lasala,

8

M.D., complaining of depression, lack of motivation, poor energy,

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anxiety and insomnia.

(AR 306).

On examination, Plaintiff’s

10

appearance, behavior and speech were unremarkable.

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had an appropriate affect, normal thought processes and abstract

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thinking, anxious and depressed mood, and poor insight, judgment

13

and reality assessments.

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homicidal ideations.

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Abilify,2 finding that Plaintiff’s medications were stabilizing and

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reducing her symptoms.

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complained of depression and insomnia.

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her appearance, behavior, affect, thought, abstract thinking and

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speech were unremarkable and appropriate.

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depressed and her insight, judgment and reality assessment were

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poor.

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dosages.

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3, and December 18, 2012, mental status examinations were largely

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unremarkable:

(AR 303).
(AR 303).

(AR 306).

(AR 306).

(AR 306).

She denied suicidal

She

or

Dr. Lasala continued doxepin and

(AR 306).

On May 22, 2012, Plaintiff
(AR 303).

On examination,

(AR 303).

Her mood was

Dr. Lasala increased her doxepin and Abilify
During follow-up visits on July 13, October

Plaintiff’s

appearance,

behavior,

thoughts

and

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2

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Sinequan (doxepin) is used to treat depression and anxiety.
<www.drugs.com/mtm/doxepin-sinequan.html> (last visited Dec. 5, 2017).
Abilify (aripiprazole) is an antipsychotic medication used to treat the
symptoms of schizophrenia and bipolar disorder. <www.drugs.com/abilify>
(last visited Dec. 5, 2017).

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1

speech were normal.

(AR 298, 299, 301).

On February 12, 2013,

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Plaintiff complained of insomnia and increased anxiety and pain.

3

(AR 297).

A mental status examination was largely unremarkable.

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(AR 297).

While Plaintiff exhibited an anxious mood and poor

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insight, judgment and reality assessment, her appearance, behavior,

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thoughts and speech were all normal.

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Plaintiff admitted that she had improved mood and sleep.

(AR 297).

On April 9,
(AR 296).

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9

On July 29, 2013, Peter Bradley, Ph.D., a nonexamining state

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agency consultant, reviewed the medical record and concluded that

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Plaintiff has a mild restriction of activities of daily living and

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moderate difficulties in maintaining social functioning and in

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maintaining concentration, persistence or pace.

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Bradley opined that Plaintiff is moderately limited in the ability

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to understand, remember and carry out detailed instructions but

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can learn and remember basic work instructions and tasks of one or

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two steps.

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state

19

psychological

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mental status.

(AR 137-38).

agency

consultants

(AR 134).

Dr.

On January 27 and March 24, 2014, the
recommended

consultative

that

examination

the

to

Agency

assess

order

a

Plaintiff’s

(AR 145, 147).

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22

On February 14, 2013, Plaintiff began treating with Stanley

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H. Schwartz, M.D.

(AR 276).

She complained of severe hip and back

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pain related to a 2009 gunshot wound.

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fatigue, weakness or sleep disorder.

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that Plaintiff has a bullet fragment in her left thigh.

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At a routine follow-up on February 27, 2013, Plaintiff was well

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developed and nourished, in no acute distress.
5

(AR 276).

(AR 277).

She denied

An x-ray confirmed
(AR 280).

(AR 282).

She was

1

diagnosed with pain in her lower back, left hip and left knee and

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prescribed baclofen, Norco and tramadol.3

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5, 2013, Plaintiff was alert and cooperative, with a normal mood

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and affect and normal attention span and concentration.

(AR 282-84).

On April

(AR 286).

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6

On January 29, 2014, Plaintiff began treating with the Los

7

Angeles

County

Department

of

Mental

Health.

(AR

309-13).

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Plaintiff complained of paranoia and insomnia, along with difficult

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interpersonal relationships with friends and family.

(AR 309).

A

10

mental status examination was generally unremarkable.

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Plaintiff’s

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intellectual functioning, memory, fund of knowledge, affect and

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thought content were all normal.

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dysphoric,

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judgments

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Plaintiff was diagnosed with chronic PTSD and major depressive

17

disorder

with

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Zoloft.4

(AR

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appearance and thought process were unremarkable, but her speech

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and behavior were slow and she demonstrated impaired insight and

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paranoia.

appearance,

hopeless
and

and

insight,

motor

and

(AR 315).

318).

mood,

irrational

features
On

speech,

(AR 312).

anxious

psychotic
313,

activity,

and

February

orientation,

She did exhibit a

impaired

concentration,

ideations.

prescribed
26,

(AR 312).

2014,

(AR

312).

Abilify

and

Plaintiff’s

On April 23, 2014, Plaintiff reported feeling

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3

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Baclofen is a muscle relaxer used to treat muscle pain and stiffness.
<www.drugs.com/baclofen.html> (last visited Dec. 5, 2017). Norco is an
opioid pain medication containing a combination of acetaminophen and
hydrocodone and is used to relieve moderate to severe pain.
<www.drugs.com/norco.html> (last visited Dec. 5, 2017). Tramadol is a
narcotic-like pain reliever used to treat moderate to severe pain.
<www.drugs.com/tramadol.html> (last visited Dec. 5, 2017).
4

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Zoloft (sertraline) is an antidepressant used to treat depression,
panic disorder, anxiety disorder and PTSD. <www.drugs.com/zoloft.html>
(last visited Dec. 5, 2017).

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better with her medications but still suffering from auditory

2

hallucinations.

3

groomed, well oriented to time, place, date and purpose, and

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exhibiting linear thoughts.

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continued Abilify and increased the Zoloft dosage. (AR 314).

(AR 314).

She was casually dressed, properly

(AR 314).

Tehmina Usmani, M.D.,

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7

April 24, 2014, Khushro Unwalla, M.D., a board-certified

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psychiatrist, reviewed some of the medical records and examined

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Plaintiff on behalf of the Commissioner.

(AR 321-25).

Plaintiff

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presented in a disheveled and unkempt state, using a cane to

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ambulate.

(AR 321).

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(AR 321).

She complained of depression, auditory hallucinations,

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paranoia and severe memory problems.

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alcohol or drug abuse and does not use tobacco.

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reported “adequate” self-care skills of dressing, bathing, eating,

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toileting and safety precautions.

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her own money but cannot do any household chores, errands, shopping

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or

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Plaintiff’s speech was slowed and soft, her mood described as

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depressive, her affect flat and blunted and her thought processes

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slowed.

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people are following her.

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orientation, memory, concentration, abstract thinking, fund of

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knowledge, insight and judgment were all deficient.

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Dr. Unwalla observed psychomotor slowing and problems processing

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information.

cooking

without

(AR 323).

She replied “I don’t know” to most questions.

assistance.

(AR 322).

(AR 323).

(AR

323).

Plaintiff denied
(AR 322).

She

Plaintiff manages

On

examination,

She denied suicidal ideation but claimed that

(AR 323).

(AR 323).

Plaintiff’s cognition,

(AR 323-24).

He diagnosed major depressive disorder

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7

1

with psychiatric features and rule out malingering.5

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opined that Plaintiff has mild difficulties in maintaining social

3

functioning,

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attention, and marked difficulties in concentration, persistence

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and pace.

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severe cognitive deficits and poor insight and opined that she has

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moderate limitations in all areas of mental functioning.

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He opined that Plaintiff’s prognosis is guarded and that she is

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unable to handle funds on her own behalf.

marked

(AR 324).

difficulties

focusing

and

(AR 324).

He

maintaining

Dr. Unwalla concluded that Plaintiff has

(AR 324).

(AR 325).

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11

On May 21, 2014, David O. Hill, Ph.D., reviewed the medical

12

file,

including

Dr.

Unwalla’s

evaluation,

and

concluded

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Plaintiff has a mild restriction of activities of daily living and

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moderate difficulties in maintaining social functioning and in

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maintaining concentration, persistence or pace.

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Hill found Plaintiff’s allegations of depression and auditory

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hallucinations only partially credible because of inconsistencies

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in her self-reports and because medical records indicate that her

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symptoms improve when she is compliant with treatment.

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50).

(AR 148-49).

that

Dr.

(AR 149-

Dr. Hill opined that Plaintiff is moderately limited in the

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26
27
28

5

A “rule-out” diagnosis “means here is good evidence that the patient
meets the criteria for that diagnosis, and the doctor needs more
information to rule it out.” Cha Yang v. Comm’r of Soc. Sec. Admin.,
488 F. App’x 203, 207 (9th Cir. 2012) (Ikuta, J., dissenting); see Hansen
ex rel. J.H. v. Republic R-III Sch. Dist., 632 F.3d 1024, 1028 n.3 (8th
Cir. 2011) (“A ‘rule-out’ diagnosis . . . means the patient meets some
criteria for the disorder, but the doctor needs more information to rule
it out and would not be comfortable diagnosing it at that time.”);
Lockhart v. Colvin, No. 14 CV 0121, 2015 WL 5834284, at *4 (E.D. Cal.
Oct. 1, 2015) (“A ‘rule-out’ notation means that the patient meets some
criteria of the disorder but the doctor is unwilling to diagnose it and
more information is needed.”).

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1

ability to understand, remember and carry out detailed instructions

2

but can learn and remember basic work instructions and tasks of

3

one or two steps.

4

because

5

hallucinations, Plaintiff’s ability to deal with the public on a

6

sustained basis is limited.

7

because

8

compliant with treatment[,] . . . she would be able to perform

9

simple, no-public work-like activity.”

of

(AR 152-53).

her

residual

Plaintiff’s

Dr. Hill further opined that

paranoia

and

(AR 153).

“mental

occasion

auditory

Dr. Hill concluded that

limitations

improve

when

she

is

(AR 150).

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11

On July 22, 2014, Plaintiff reported fair response to her

12

medications.

(AR 342).

13

still hears voices on occasion and is paranoid around people that

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she feels will harm her. (AR 342). On examination, her appearance,

15

behavior, thoughts, speech and mood were normal.

(AR 342).

16

September

paranoia

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acknowledged that her depression was improving and denied auditory

18

hallucinations.

19

behavior, thoughts, speech and mood were normal.

17,

Her depression “comes and goes” but she

Plaintiff

(AR

reported

341).

On

continuing

examination,

her

On
but

appearance,

(AR 341).

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21

On January 14, 2015, Plaintiff reported doing “ok” with her

22

medications.

23

auditory

24

improved.

25

thought process, speech, affect and mood were normal.

26

On

27

working.

28

and

hallucinations
(AR 339).

February

her

(AR 339).

12,

have

decreased

and

her

appetite

has

On examination, her appearance, behavior,

Plaintiff

(AR 338).
insomnia

While paranoia is still present, her

reported

that

her

(AR 339).

medications

were

Her auditory hallucinations have decreased

and

appetite
9

have

improved

but

she

still

1

experiences paranoia.

(AR 338).

On April 9, Plaintiff reported

2

“doing a lot better.”

(AR 337).

While she still feels paranoid,

3

her

better

4

hallucinations only three times a month.

5

appetite are improved and she is able to socialize.

6

examination, Plaintiff was casually dressed and made good eye

7

contact.

8

a linear thought process.

9

mood

10

depression

is

(AR 337).

was

“better”

ideations.

and

she

experiences
(AR 337).

auditory

Her sleep and
(AR 337).

On

She was oriented, calm and cooperative, with

and

(AR 337).
she

denied

She had a sad affect but her
any

suicidal

or

homicidal

(AR 337).

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IV.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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To

qualify

for

disability

benefits,

a

claimant

must

16

demonstrate a medically determinable physical or mental impairment

17

that prevents the claimant from engaging in substantial gainful

18

activity and that is expected to result in death or to last for a

19

continuous period of at least twelve months.

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157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).

21

The impairment must render the claimant incapable of performing

22

work

23

employment that exists in the national economy.

24

180

25

§ 423(d)(2)(A)).

previously

F.3d

1094,

performed

1098

or

(9th

any

Cir.

26
27
28
10

other

1999)

Reddick v. Chater,

substantial

gainful

Tackett v. Apfel,

(citing

42

U.S.C.

1

To decide if a claimant is entitled to benefits, an ALJ

2

conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920.

3

The

steps are:

4
5

(1)

Is the claimant presently engaged in substantial gainful

6

activity?

7

not, proceed to step two.

8

(2)

9

Is

the

If so, the claimant is found not disabled.

claimant’s

impairment

severe?

claimant is found not disabled.

10

If

not,

If

the

If so, proceed to step

three.

11

(3)

Does the claimant’s impairment meet or equal one of the

12

specific impairments described in 20 C.F.R. Part 404,

13

Subpart P, Appendix 1?

14

disabled.

15

(4)

If so, the claimant is found

If not, proceed to step four.

Is the claimant capable of performing his past work? If

16

so, the claimant is found not disabled.

17

to step five.

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(5)

If not, proceed

Is the claimant able to do any other work?

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claimant is found disabled.

20

If not, the

If so, the claimant is found

not disabled.

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22

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

23

262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-

24

(g)(1), 416.920(b)-(g)(1).

25
26

The claimant has the burden of proof at steps one through four

27

and

the

Commissioner

has

the

burden

28

Bustamante, 262 F.3d at 953-54.
11

of

proof

at

step

five.

Additionally, the ALJ has an

1

affirmative duty to assist the claimant in developing the record

2

at every step of the inquiry.

3

claimant meets his or her burden of establishing an inability to

4

perform past work, the Commissioner must show that the claimant

5

can perform some other work that exists in “significant numbers”

6

in

7

residual functional capacity (“RFC”), age, education, and work

8

experience.

9

721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

the

national

economy,

Id. at 954.

taking

into

If, at step four, the

account

the

claimant’s

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at
The Commissioner

10

may do so by the testimony of a VE or by reference to the Medical-

11

Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

12

Appendix 2 (commonly known as “the grids”).

13

240 F.3d 1157, 1162 (9th Cir. 2001).

14

exertional (strength-related) and non-exertional limitations, the

15

Grids are inapplicable and the ALJ must take the testimony of a

16

vocational expert (“VE”).

17

Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.

18

1988)).

Osenbrock v. Apfel,

When a claimant has both

Moore v. Apfel, 216 F.3d 864, 869 (9th

19
20

V.

21

THE ALJ’S DECISION

22
23

The ALJ employed the five-step sequential evaluation process

24

and concluded that Plaintiff was not disabled within the meaning

25

of the Social Security Act.

26

that Plaintiff has not engaged in substantial gainful activity

27

since March 28, 2013, the application date.

28

the ALJ found that Plaintiff’s lumbar spine strain, left hip

(AR 31).

12

At step one, the ALJ found

(AR 25).

At step two,

1

bursitis, history of gunshot wound, obesity, depression, PTSD and

2

anxiety are severe impairments.

3

determined

4

combination

equal

the

5

severity of any of the listings enumerated in the regulations.

(AR

6

25-26).

that
of

(AR 25).

At step three, the ALJ

Plaintiff

does

not

have

impairments

that

meet

or

an

impairment

medically

or

7
8

The ALJ then assessed Plaintiff’s RFC and concluded that she

9

can perform medium work, as defined in 20 C.F.R. § 416.967(c),6

10

except:

11
12

[Plaintiff can] sit for two hours out of an eight hour

13

workday; stand/walk for six hours out of an eight hour

14

workday, with the use of a knee brace and a cane to

15

ambulate;

16

occasionally climb ramps and stairs; occasionally climb

17

ladders and scaffolds; and frequently balance, stoop,

18

kneel, crouch, and crawl.

19

repetitive

20

Additionally,

21

simple, routine tasks.

push/pull

use

of

within

weight

limitations;

[Plaintiff] is precluded from

her

[Plaintiff]

the

left
is

lower

limited

to

extremity.
non-public,

22
23

(AR 26-27).

24

to perform any past relevant work.

25

RFC, age, education, work experience and the VE’s testimony, the

26

6

27
28

At step four, the ALJ found that Plaintiff is unable
(AR 29).

Based on Plaintiff’s

“Medium work involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she can also do
sedentary and light work.” 20 C.F.R. § 416.967(c).

13

1

ALJ determined at step five that there are jobs that exist in

2

significant numbers in the national economy that Plaintiff can

3

perform, including industrial cleaner, kitchen helper and hand

4

packager.

5

was not under a disability as defined by the Social Security Act

6

since March 28, 2013, the date the application was filed.

(AR 30-31).

Accordingly, the ALJ found that Plaintiff

(AR 31).

7
8

VI.

9

STANDARD OF REVIEW

10
11

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

12

Commissioner’s decision to deny benefits.

The court may set aside

13

the Commissioner’s decision when the ALJ’s findings are based on

14

legal error or are not supported by substantial evidence in the

15

record as a whole.

16

2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050,

17

1052 (9th Cir. 2006)); Auckland v. Massanari, 257 F.3d 1033, 1035

18

(9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v.

19

Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,

20

885 F.2d 597, 601 (9th Cir. 1989)).

Garrison v. Colvin, 759 F.3d 995 (9th Cir.

21
22

“Substantial evidence is more than a scintilla, but less than

23

a preponderance.”

24

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

25

evidence which a reasonable person might accept as adequate to

26

support a conclusion.”

27

Smolen,

28

evidence supports a finding, the court must “‘consider the record

80

F.3d

Reddick, 157 F.3d at 720 (citing Jamerson v.

at

It is “relevant

Id. (citing Jamerson, 112 F.3d at 1066;

1279).

To

14

determine

whether

substantial

1

as a whole, weighing both evidence that supports and evidence that

2

detracts from the [Commissioner’s] conclusion.’”

3

F.3d at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

4

1993)).

5

or reversing that conclusion, the court may not substitute its

6

judgment for that of the Commissioner.

7

21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

Auckland, 257

If the evidence can reasonably support either affirming

Reddick, 157 F.3d at 720-

8
9

VII.

10

DISCUSSION

11
12
13

Plaintiff contends that the ALJ impermissibly rejected the
examining physician’s opinion.

(Dkt. No. 18 at 5-12).

14
15

“To

reject

an

uncontradicted

opinion

of

a

treating

or

16

examining doctor, an ALJ must state clear and convincing reasons

17

that are supported by substantial evidence.”

18

427 F.3d 1211, 1216 (9th Cir. 2005); see Lester v. Chater, 81 F.3d

19

821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) (“As is the

20

case with the opinion of a treating physician, the Commissioner

21

must provide ‘clear and convincing’ reasons for rejecting the

22

uncontradicted

23

treating or examining doctor’s opinion is contradicted by another

24

doctor’s opinion, an ALJ may only reject it by providing specific

25

and legitimate reasons that are supported by substantial evidence.”

26

Bayliss, 427 F.3d at 1216; see Lester, 81 F.3d at 830-31 (“And like

27

the opinion of a treating doctor, the opinion of an examining

28

doctor,

even

opinion

if

of

an

contradicted

examining

by
15

another

Bayliss v. Barnhart,

physician.”).

doctor,

can

“If

only

a

be

1

rejected for specific and legitimate reasons that are supported by

2

substantial evidence in the record.”).

3

conflicting medical opinions, an ALJ may reject an opinion that is

4

conclusory, brief, and unsupported by clinical findings.

5

427 F.3d at 1216; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

6

Cir. 2001).

Further, when weighing

Bayliss,

7
8
9

Dr. Unwalla, an examining physician, conducted a consultative
examination on April 24, 2014.

(AR 321-25).

Plaintiff presented

10

disheveled and unkempt, her speech slow and soft, with difficulty

11

processing information.

12

know” to most questions.

13

Plaintiff

14

attention and marked difficulties in concentration, persistence

15

and pace.

16

cognitive deficits and poor insight and that she has moderate

17

limitations in all areas of mental functioning.

18

Unwalla opined that Plaintiff’s prognosis was guarded and that she

19

is unable to handle funds on her own behalf.

has

marked

(AR 324).

(AR 321, 323).
(AR 321).

difficulties

She answered “I don’t
Dr. Unwalla opined that

focusing

and

maintaining

He concluded that Plaintiff has severe

(AR 324).

(AR 325).

20
21

The ALJ gave “little weight” to Dr. Unwalla’s opinion:

22
23

I find this opinion to be unsupported by [Plaintiff’s]

24

record as a whole.

25

[Plaintiff’s] appearance was unremarkable and she was

26

able to recall details of her life and symptoms.

In other mental status examinations,

27
28
16

At the

Dr.

1

hearing, [Plaintiff] was able to adhere to proper decorum

2

and testify on her own behalf.

3
4

(AR 29).

5
6

Plaintiff

contends

that

(Dkt. No. 18 at 10).

the

ALJ’s

finding

is

“broad

and

7

vague.”

She argues that the ALJ does not

8

specifically reference which “other mental status examinations”

9

belie Dr. Unwalla’s opinion.

(Id.).

To the contrary, the ALJ

10

cited four different examinations where Plaintiff’s appearance,

11

behavior, thoughts and speech were largely unremarkable.

12

29).

13

mood and poor insight, her appearance, behavior, thoughts and

14

speech were all normal.

15

acknowledged that she had improved mood and sleep.

16

January 29, 2014, Plaintiff’s appearance, motor activity, speech,

17

orientation, intellectual functioning, memory, fund of knowledge,

18

affect and thought content were all normal.

19

on April 9, 2015, Plaintiff reported “doing a lot better.”

20

337).

21

linear thought process, and was oriented, calm and cooperative.

22

(AR 337).

23

where she exhibited the disheveled and unkempt appearance and

24

severe cognitive deficits that Dr. Unwalla observed.

25

Dr. Unwalla suspected possible malingering.

26

the ALJ properly afforded Dr. Unwalla’s opinion little weight

27

because it was inconsistent with other evidence in the record.

28

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

(AR 28-

On February 12, 2013, while Plaintiff exhibited an anxious

(AR 297).

On April 9, 2013, Plaintiff
(AR 296).

(AR 312).

On

Finally,
(AR

She was casually dressed, made good eye contact, had a

Further, Plaintiff does not identify any examinations

17

Indeed, even

(AR 28, 324).

Thus,

See

1

Plaintiff

identifies

multiple

records

indicating

paranoid

2

ideations, anxiety, auditory hallucinations, PTSD and depression.

3

(Dkt. No. 18 at 10-11).

4

with disabilities.

5

anxious, and obese yet still perform full-time work.”

6

Barnhart, 430 F.3d 865, 868 (7th Cir. 2005). As the Seventh Circuit

7

explained: “[c]onditions must not be confused with disabilities.

8

The social security disability benefits program is not concerned

9

with health as such, but rather with ability to engage in full-

Plaintiff appears to confuse conditions

For example, a “person can be depressed,
Gentle v.

10

time gainful employment.”

Id. (citation omitted); accord Cody v.

11

Colvin, No. 16 CV 5664, 2017 WL 218802, at *3 (W.D. Wash. Jan. 19,

12

2017).

13

support

14

difficulties

15

difficulties in concentration, persistence and pace.

Further, the records cited by Plaintiff do not necessarily
Dr.

Unwalla’s
focusing

conclusion
and

that

Plaintiff

marked

attention

maintaining

has
and

marked

16
17

The ALJ acknowledged that Plaintiff’s depression, anxiety and

18

PTSD were severe impairments.

19

Plaintiff’s

20

medications, . . .

21

admitted in recent records that she was feeling better and had

22

improved.”

23

Plaintiff

24

functioning and in maintaining concentration, persistence or pace.

25

(AR 148).

26

and occasional auditory hallucinations despite her medications,

27

the

28

routine tasks.

state

treatment,

has

which

appeared

(AR 28).

(AR 25).
was

to

be

The ALJ found that

“limited
effective

to

counseling

since

and

[Plaintiff]

The state agency consultant opined that

moderate

difficulties

in

maintaining

social

Because Plaintiff was experiencing residual paranoia

agency

consultant

limited

(AR 27, 29, 150, 153).
18

Plaintiff

to

non-public,

The ALJ properly relied on

1

the state agency physician’s opinion in rejecting Dr. Unwalla’s

2

opinion.

3

Cir. 1995) (the ALJ may reject an examining physician’s opinion in

4

reliance on the report of a nonexamining advisor “when it is not

5

contradicted

6

omitted) (emphasis in original); Social Security Ruling (“SSR”)

7

96-6p,7 at *2-3 (S.S.A. July 2, 1996) (“State agency medical and

8

psychological

9

psychologists who are experts in the evaluation of the medical

10

issues in disability claims under the Act. . . . In appropriate

11

circumstances, opinions from State agency medical and psychological

12

consultants and other program physicians and psychologists may be

13

entitled

14

examining sources.”).

(AR 29); see Andrews v. Shalala, 53 F.3d 1035, 1041 (9th

to

by

all

other

consultants

greater

evidence

are

weight

in

highly

than

the

the

record”)

qualified

opinions

(citation

physicians

of

treating

and

or

15
16

Finally, Plaintiff contends that the ALJ’s reliance on her

17

decorum at the hearing to reject Dr. Unwalla’s opinion amounts to

18

“quintessential prohibited ‘sit-and-squirm’ jurisprudence that the

19

Ninth Circuit has condemned.”

20

Ninth Circuit prohibits “an ALJ who is not a medical expert [from]

21

subjectively arriv[ing] at an index of traits which he expects the

22

claimant to manifest at the hearing.”

23

F.2d 727, 731 (11th Cir. 1982); accord Perminter v. Heckler, 765

24

F.2d 870, 872 (9th Cir. 1985) (“The ALJ’s reliance on his personal

(Dkt. No. 18 at 11).

Indeed, the

Freeman v. Schweiker, 681

25
7

26
27
28

Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but
they are binding on ALJs nonetheless.”
Bray, 554 F.3d at 1224. They
“reflect the official interpretation of the [Agency] and are entitled to
some deference as long as they are consistent with the Social Security
Act and regulations.” Id. (citation omitted).

19

1

observations of Perminter at the hearing has been condemned as ‘sit

2

and squirm’ jurisprudence.”) (citing Freeman, 681 F.2d at 731).

3

Here, however, the ALJ is citing Plaintiff’s decorum and ability

4

to

5

contradicting Dr. Unwalla’s opinion.

6

Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“The inclusion of the

7

ALJ’s

8

improper.”) (citation omitted).

9

to testify on her own behalf undermine Dr. Unwalla’s opinion that

testify

on

personal

has

her

own

behalf

as

observations

marked

does

one

more

piece

of

evidence

Morgan v. Comm’r of Soc. Sec.

not

render

the

decision

Plaintiff’s decorum and ability

10

Plaintiff

difficulties

focusing

and

maintaining

11

attention and marked difficulties in concentration, persistence

12

and pace.

13
14

In sum, the ALJ provided specific and legitimate reasons,

15

supported by substantial evidence in the record, for giving Dr.

16

Unwalla’s opinion little weight.

17

evidence supports the ALJ’s assessment of Dr. Unwalla’s opinion,

18

no remand is required.

Accordingly, because substantial

19
20
21
22
23
24
25
26
27
28
20

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, IT IS ORDERED that Judgment be

5

entered AFFIRMING the decision of the Commissioner.

The Clerk of

6

the Court shall serve copies of this Order and the Judgment on

7

counsel for both parties.

8
9

DATED:

December 7, 2017

10
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.

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17
18
19
20
21
22
23
24
25
26
27
28
21