Dwight A Staten v. Nancy A. Berryhill

Filing 23

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (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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DWIGHT A. STATEN,
Plaintiff,

12
v.

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14
15

CASE NO. CV 17-3973 SS

MEMORANDUM DECISION AND ORDER

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

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17
18

I.

19

INTRODUCTION

20
21

Dwight A. Staten (“Plaintiff”) brings this action seeking to

22

overturn the decision of the Acting Commissioner of Social Security

23

(the

24

Supplemental Security Income (“SSI”).

25

pursuant

26

undersigned United States Magistrate Judge.

27

For the reasons stated below, the Court AFFIRMS the Commissioner’s

28

decision.

“Commissioner”

to

28

or

U.S.C.

“Agency”)

§

636(c),

denying

to

his

application

for

The parties consented,
the

jurisdiction

of

the

(Dkt. Nos. 13-15).

1

II.

2

PROCEDURAL HISTORY

3
4

On

August

20,

2015,

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 August 1,

7

2015.

8

application, which was designated as a “prototype case.”1

9

44).

(AR

114-23).

Thereafter,

The

Plaintiff

Commissioner

requested

a

denied

hearing

Plaintiff’s
(AR 35-

before

an

10

Administrative Law Judge (“ALJ”), which took place on November 14,

11

2016.2

12

January 12, 2017, finding that Plaintiff was not disabled because

13

there are jobs that exist in significant numbers in the national

14

economy that he can perform.

15

1

(AR 27-34, 54).

The ALJ issued an adverse decision on

(AR 11-21).

On April 5, 2017, the

17

A “prototype case” designates a single decision maker to make the
initial determination and eliminates the reconsideration step in
the administrative review process. See 20 C.F.R. §§ 404.906(a),
416.1406(a).

18

2

16

19
20
21
22
23
24
25
26
27
28

At the November 14, 2016 hearing, Plaintiff did not appear, but
his attorney was present.
(AR 29-30).
Plaintiff’s counsel
indicated that she had spoken with Plaintiff prior to the hearing
and was informed that he would attend.
(AR 11, 29).
The ALJ
determined that Plaintiff constructively waived his right to
appear, and the hearing was held in his absence to take the
vocational expert’s testimony. (AR 11, 29-30). Subsequent to the
hearing, the ALJ issued a Notice to Show Cause for Failure to
Appear.
(AR 105-07).
In a letter dated November 19, 2016,
Plaintiff’s counsel asserted, “both myself and [Plaintiff] had
significant delays getting to the hearing office in time for the
hearing due to excessive traffic in the Los Angeles area.” (AR
108). In a letter dated November 29, 2017, Plaintiff indicated
that he has spoken to counsel prior to the hearing, who informed
him that she would be late to the hearing. (AR 109-10). The ALJ
concluded that “failure to account for traffic conditions does not
constitute good cause for failure to appear.” (AR 11) (citing 20
C.F.R. §§ 416.1411, 416.1436, 416.1457(b)).
2

1

Appeals Council denied Plaintiff’s request for review.

2

(AR 1-3).

This action followed on May 26, 2017.

3
4

III.

5

FACTUAL BACKGROUND

6
7

Plaintiff was born on November 2, 1964, and was fifty (50)

8

years old on the date the application was filed.

9

Plaintiff has a high-school degree and completed one year of
(AR 135, 492).

(AR 114).

10

college.

He has never been married and lives with

11

his siblings.

12

1998 because he “was incarcerated for 17 years.”

13

alleges disability due to high blood pressure, bipolar disorder,

14

and rheumatoid arthritis.

(AR 114, 493).

Plaintiff stopped working in April
(AR 134).

He

(AR 134).

15
16

Plaintiff has a history of anxious, depressive, and psychotic

17

symptoms.

While he was incarcerated, Plaintiff was diagnosed with

18

bipolar disorder and schizoaffective disorder.

19

Nevertheless, the prison records indicate that while compliant with

20

his medications, Plaintiff’s mental condition was unremarkable.

21

(AR 247, 546, 548, 550-51).

22

oriented, with a stable mood, congruent affect, normal memory and

23

concentration, and an intact perception.

24

denied any suicidal or homicidal ideations.

25

was released from prison in August 2015.

(AR 247, 546).

He was relaxed and contented, fully

(AR 247).
(AR 247).

Plaintiff
Plaintiff

(AR 134, 139).

26
27
28

In November 2015, Gul Ebrahim, M.D., performed a consultative
psychiatric evaluation at the request of the Agency.
3

(AR 491-95).

1

Plaintiff

complained

of

a

seventeen-year

history

of

bipolar

2

depression caused partly by a history of childhood trauma.

3

491-92).

4

mental status examination was largely unremarkable.

5

Plaintiff exhibited normal eye contact, adequate grooming and

6

hygiene,

7

thought process, no evidence of auditory or visual hallucinations,

8

full cognitive orientation and memory, normal concentration and

9

memory, and intact insight and judgment.

(AR

Other than Dr. Ebrahim observing an anxious affect, a

calm

psychomotor

activity,

linear

and

(AR 493-94).

goal

(AR 493-94).

directed

Dr. Ebrahim

10

observed no manifestations of a bipolar disorder.

11

opined that Plaintiff’s ability to relate to and interact with

12

coworkers,

13

understand and carry out simple instructions are normal.

14

Dr. Ebrahim further opined that Plaintiff’s ability to maintain

15

focus and concentration to do work related activities is “normal

16

limited.”

17

Plaintiff’s ability to understand and carry out complex or detailed

18

instructions and his ability to cope with workplace stress are

19

“mildly limited.”

colleagues,

(AR

494).

and

supervisors,

Finally,

Dr.

and

Ebrahim

(AR 494).

his

ability

He

to

(AR 494).

concluded

that

(AR 494-95).

20
21

In December 2015, Plaintiff underwent an initial mental health

22

evaluation at the Los Angeles County Department of Mental Health

23

(“LACDMH”).

24

and appetite, nightmares, and psychotic features.

25

than Plaintiff’s mood reflecting a known stressor, a mental status

26

examination

Plaintiff

received

27

further treatment at LACDMH between March and July 2016.

(AR 557-

28

61, 570-71, 573, 580).

(AR 582).

was

Plaintiff complained of disturbed sleep

unremarkable.

(AR

582).

(AR 582).

Other

Plaintiff complained of mood shifts,
4

1

auditory and visual hallucinations, and manic episodes.

(AR 557,

2

571, 580).

3

blunted affect. (AR 580). The provider also observed a cooperative

4

attitude, full orientation, unimpaired speech, normal eye contact,

5

linear and goal directed associations, appropriate grooming, calm

6

motor activity, unimpaired intellectual funding and memory, no

7

apparent hallucinations or delusions, and no suicidal or homicidal

8

ideations.

9

a

On examination, his treatment provider observed a

(AR 570-71, 580, 583).

treatment

provider

that

his

In March 2016, Plaintiff told
psychotropic

medications

were

10

“tremendously” helpful at managing his symptoms.

11

In May 2016, Plaintiff reported feeling “pretty good” with his

12

medications.

13

and motivation as “good.”

(AR 578).

(AR 504-05, 580).

He described his concentration, energy,
(AR 578).

14
15

In

January

2016,

Luanna

evaluation

18

hallucinations and feelings of hopelessness.

19

reported

20

situation and lack of income.

21

history of incarceration and substance abuse.

22

indicated that Plaintiff’s general intelligence is significantly

23

below average.

24

average work pace, a pleasant, friendly and cooperative attitude,

25

casual

26

evidence of unusual behaviors.

27

the

28

depression.

stressors,

(AR 587).

appropriate

(AR

including

an

(AR 585-87).

of

(AR 585-87).
“unstable”

He

living

He acknowledged a
(AR 585).

Testing

Nevertheless, Dr. Cabrera observed an

and

Dr.

full

(AR 586).

Inventory

587).

Department

Plaintiff complained of auditory

attire,

Depression

the

a

Rehabilitation.

multiple

of

performed

17

(AR 585-88).

request

Ph.D.,

psychological

Beck

the

Cabrera,

16

and

at

E.

with

no

Plaintiff’s scores on

indicated

Cabrera
5

orientation,

mild

diagnosed

symptoms

of

schizophrenia,

1

learning disorder, mathematics disorder, and personality disorder.

2

(AR 587).

3

vocational training.

Nonetheless, she found that Plaintiff was ready for
(AR 588).

4
5

In March 2016, Plaintiff underwent a mental health evaluation

6

at Telecare Mental Health Urgent Care Center.

7

complained of insomnia, restlessness, and auditory and visual

8

hallucinations.

9

when

he

is

(AR 525).

compliant

(AR 525).

Plaintiff

Plaintiff acknowledged, however, that

with

his

(AR 498, 531).

medications,

the

voices

are

10

“contained.”

Other than finding circumstantial

11

thought process and decreased judgment and impulse control, the

12

evaluating psychiatrist’s examination was largely unremarkable.

13

(AR 533).

14

attitude, normal speech, euthymic mood, appropriate affect, logical

15

thought processes, normal eye contact, normal insight and mood,

16

and no suicidal or homicidal ideations.

The psychiatrist observed full orientation, engaged

(AR 528, 533).

17
18

IV.

19

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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21

To

qualify

for

disability

benefits,

a

claimant

must

22

demonstrate a medically determinable physical or mental impairment

23

that prevents the claimant from engaging in substantial gainful

24

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

25

continuous period of at least twelve months.

26

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

27

The impairment must render the claimant incapable of performing

28

work

previously

performed

or

any
6

other

Reddick v. Chater,

substantial

gainful

1

employment that exists in the national economy.

2

180

3

§ 423(d)(2)(A)).

F.3d

1094,

1098

(9th

Cir.

1999)

Tackett v. Apfel,

(citing

42

U.S.C.

4
5

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

6

conducts a five-step inquiry.

7

20 C.F.R. §§ 404.1520, 416.920.

The

steps are:

8
9

(1)

Is the claimant presently engaged in substantial gainful

10

activity?

11

not, proceed to step two.

12

(2)

Is

the

If so, the claimant is found not disabled.

claimant’s

impairment

13

claimant is found not disabled.

14

severe?

If

not,

If

the

three.

15

(3)

If so, proceed to step

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

16

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

17

Subpart P, Appendix 1?

18

disabled.

19

(4)

If so, the claimant is found

If not, proceed to step four.

Is the claimant capable of performing his past work? If

20

so, the claimant is found not disabled.

21

to step five.

22

(5)

If not, proceed

Is the claimant able to do any other work?

23

claimant is found disabled.

24

If not, the

If so, the claimant is found

not disabled.

25
26

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

27

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

28

(g)(1), 416.920(b)-(g)(1).
7

1

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

2

and

the

3

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

4

affirmative duty to assist the claimant in developing the record

5

at every step of the inquiry.

6

claimant meets his or her burden of establishing an inability to

7

perform past work, the Commissioner must show that the claimant

8

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

9

in

the

Commissioner

national

has

the

economy,

burden

of

at

step

five.

Additionally, the ALJ has an

Id. at 954.

taking

proof

into

If, at step four, the

account

the

claimant’s

10

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

11

experience.

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

vocational expert (“VE”).

20

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

21

1988)).

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

Osenbrock v. Apfel,

When a claimant has both

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

22
23

V.

24

THE ALJ’S DECISION

25
26

The ALJ employed the five-step sequential evaluation process

27

and concluded that Plaintiff was not disabled within the meaning

28

of the Social Security Act.

(AR 20-21).
8

At step one, the ALJ

1

found

that

Plaintiff

has

2

activity since August 20, 2015, the application date.

3

At step two, the ALJ found that Plaintiff’s asthma, hypertension,

4

personality

5

impairments.

6

Plaintiff does not have an impairment or combination of impairments

7

that meet or medically equal the severity of any of the listings

8

enumerated in the regulations.

disorder,

and

(AR 13).

not

engaged

in

schizoaffective

substantial

disorder

gainful
(AR 13).

are

severe

At step three, the ALJ determined that

(AR 14).

9
10

The ALJ assessed Plaintiff’s RFC and concluded that he can

11

“perform the full range of work at all exertional levels but with

12

the following nonexertional limitations: no more than simple tasks;

13

no public contact; no more than occasional contact with coworkers

14

and supervisors; and no concentrated exposure to dust, fumes, and

15

chemicals.”

16

has no past relevant work.

17

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

18

determined

19

significant numbers in the national economy that Plaintiff can

20

perform,

21

Accordingly, the ALJ found that Plaintiff is not under a disability

22

as defined by the Social Security Act, since August 20, 2015, the

23

application date.

(AR 14).

at

step

including

At step four, the ALJ found that Plaintiff

five

hand

(AR 19).

that

there

packager

(AR 20).

24
25
26
27
28
9

Based on Plaintiff’s RFC,

are

and

jobs

that

laborer.

exist

(AR

in

20).

1

VI.

2

STANDARD OF REVIEW

3
4

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

5

Commissioner’s decision to deny benefits.

“[The] court may set

6

aside the Commissioner’s denial of benefits when the ALJ’s findings

7

are based on legal error or are not supported by substantial

8

evidence in the record as a whole.”

9

1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see

10

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

11

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

Aukland v. Massanari, 257 F.3d

12
13

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

14

a preponderance.”

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

15

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

16

evidence which a reasonable person might accept as adequate to

17

support a conclusion.”

18

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

19

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

20

detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d

21

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

22

1993)).

23

or reversing that conclusion, the court may not substitute its

24

judgment for that of the Commissioner.

25

21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

26

1457 (9th Cir. 1995)).

(Id.).

It is “relevant

To determine whether substantial

If the evidence can reasonably support either affirming

27
28
10

Reddick, 157 F.3d at 720-

1

VII.

2

DISCUSSION

3
4

In his sole claim, Plaintiff contends that the ALJ improperly

5

rejected the medical opinions of his treating physicians.

(Dkt.

6

No. 21 at 3).

7

conclusion [n]or a legally sufficient reason why he [sic] rejects

8

the opinion[s] of Dr. Chung and Dr. Fam.”

He argues that the ALJ “neither offered a legitimate

(Id. at 4).

9
10

The medical opinion of a claimant’s treating physician is

11

given “controlling weight” so long as it “is well-supported by

12

medically acceptable clinical and laboratory diagnostic techniques

13

and is not inconsistent with the other substantial evidence in [the

14

claimant’s]

15

416.927(c)(2).

16

controlling, it is weighted according to factors such as the length

17

of the treatment relationship and the frequency of examination,

18

the

19

supportability,

20

Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citing 20 C.F.R.

21

§ 404.1527(c)(2)–(6)); see also 20 C.F.R. § 416.927(c)(2)-(6).

22

Greater weight is also given to the “opinion of a specialist about

23

medical issues related to his or her area of specialty.”

24

§§ 404.1527(c)(5), 416.927(c)(5).

nature

case

record.”
“When

and

a

extent

and

20

C.F.R.

treating

of

§§

doctor’s

404.1527(c)(2),
opinion

the

consistency

treatment

with

the

is

not

relationship,

record.”

Revels

v.

20 C.F.R.

25
26

“To

reject

an

uncontradicted

opinion

of

a

treating

or

27

examining doctor, an ALJ must state clear and convincing reasons

28

that are supported by substantial evidence.”
11

Bayliss v. Barnhart,

1

427 F.3d 1211, 1216 (9th Cir. 2005).

2

doctor’s opinion is contradicted by another doctor’s opinion, an

3

ALJ may only reject it by providing specific and legitimate reasons

4

that

5

Reddick, 157 F.3d at 725 (The “reasons for rejecting a treating

6

doctor’s credible opinion on disability are comparable to those

7

required for rejecting a treating doctor’s medical opinion.”).

8

“The ALJ can meet this burden by setting out a detailed and thorough

9

summary of the facts and conflicting clinical evidence, stating

are

supported

by

substantial

“If a treating or examining

evidence.”

Id.;

see

also

10

his interpretation thereof, and making findings.”

Trevizo v.

11

Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted).

12

“When an examining physician relies on the same clinical findings

13

as a treating physician, but differs only in his or her conclusions,

14

the conclusions of the examining physician are not ‘substantial

15

evidence.’ ”

16

Additionally, “[t]he opinion of a nonexamining physician cannot by

17

itself constitute substantial evidence that justifies the rejection

18

of the opinion of either an examining physician or a treating

19

physician.”

20

(emphasis in original). Finally, when weighing conflicting medical

21

opinions, an ALJ may reject an opinion that is conclusory, brief,

22

and unsupported by clinical findings.

23

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

Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)

Bayliss, 427 F.3d at 1216;

24
25

A.

Dr. Chung

26
27

On May 17, 2016, Sujin Chung, M.D., a psychiatrist with

28

LACDMH, completed a mental capacity assessment form at Plaintiff’s
12

1

request.

(AR 510-12).

2

impairments cause “marked” limitations in Plaintiff’s ability to

3

maintain attention and concentration for extended periods and

4

“moderate” limitations in his ability to remember locations and

5

work-like procedures; understand, remember and carry out detailed

6

instructions; work in coordination with or in proximity to others

7

without

8

decisions; complete a normal workweek without interruptions from

9

psychologically based symptoms; perform at a consistent pace with

10

a standard number and length of rest periods; accept instructions

11

and respond appropriately to criticism from supervisors; get along

12

with coworkers or peers without distracting them or exhibiting

13

behavioral extremes; respond appropriately to changes in the work

14

setting; travel in unfamiliar places or use public transportation;

15

and set realistic goals or make plans independently of others.

16

510-12) (emphasis in original).

17

Plaintiff

18

understand and remember very short and simple instructions; carry

19

out very short and simple instructions; perform activities within

20

a schedule, maintain regular attendance, and be punctual within

21

customary tolerances; sustain an ordinary routine without special

22

supervision; complete a normal workday without interruptions from

23

psychologically based symptoms; interact appropriately with the

24

general

25

maintain

26

standards of neatness and cleanliness; and be aware of normal

27

hazards and take appropriate precautions.

being

had

public;

Dr. Chung opined that Plaintiff’s mental

distracted

only

them;

“slight”

ask

socially

by

simple

make

work-related

(AR

Dr. Chung also concluded that
limitations

questions

appropriate

simple

behavior

28
13

in

or

his

request

and

ability

to

assistance;

adhere

(AR 510-12).

to

basic

1

Plaintiff argues that the ALJ “failed to articulate a legally

2

sufficient rationale to reject [Dr. Chung’s] opinion[ ].”

(Dkt.

3

No. 21 at 3).

4

“significant probative weight.”

5

Chung’s opinion was “supported by the objective medical evidence,

6

which shows a history of complaints of depressive and psychotic

7

symptoms, as well as some abnormalities of speech, but otherwise

8

mostly normal cognitive, expressive, intellectual, receptive, and

9

social functioning.”

To the contrary, the ALJ gave Dr. Chung’s opinion

(AR 18).

(AR 18).

The ALJ found that Dr.

The ALJ further acknowledged that

10

Dr. Chung’s “lengthy treating relationship” with Plaintiff “lends

11

her opinion additional probative weight.”

(AR 18).

12
13

Nevertheless, Plaintiff asserts that the ALJ “ignore[d] the

14

marked limitation found by Dr. Chung in assessing the residual

15

functional

16

Essentially, Plaintiff’s argument is that the ALJ failed to fully

17

incorporate Dr. Chung’s opinion in Plaintiff’s RFC.

18

determining a claimant’s RFC, the ALJ must consider all relevant

19

evidence, including residual functional capacity assessments made

20

by

21

416.945(a)(3); see also id. §§ 404.1513(a)(2), 416.913(a)(2).

capacity

treating

of

[Plaintiff].”

physicians.

20

(Dkt.

C.F.R.

No.

21

at

5).

Indeed, in

§§ 404.1545(a)(3),

22
23

Here,

Dr.

Chung’s

opinion

is

fully

incorporated

into

24

Plaintiff’s RFC.

25

by Dr. Chung’s opinion that Plaintiff’s mental impairments do not

26

cause

27

remember, and carry out very short and simple instructions; sustain

28

an ordinary routine without special supervision; complete a normal

The RFC’s limitation to simple tasks is supported

significant

limitations

in

14

his

ability

to

understand,

1

workday without interruptions from psychologically based symptoms;

2

and ask simple questions or request assistance.

3

with id. 510-11).

4

mental impairments cause “moderate” limitations in his ability to

5

understand, remember, and carry out detailed instructions (AR 510)

6

is not inconsistent with a limitation to simple tasks.

7

Dr. Chung’s finding that Plaintiff has “marked” limitations in his

8

ability to maintain attention and concentration over an extended

9

period is consistent with a limitation to simple tasks.
Barnhart,

278

(Compare AR 14,

Further, Dr. Chung’s opinion that Plaintiff’s

F.3d

947,

958

(9th

Cir.

2002)

Moreover,

See Thomas

10

v.

(finding

no

11

inconsistencies with the VE’s testimony that a person with “a

12

marked limitation in her ability to maintain concentration over

13

extended periods” can perform simple tasks).

14
15

Plaintiff nevertheless contends that “a limitation to simple,

16

repetitive

17

difficulties with concentration, persistence, or pace.”

18

21 at 5) (citing Brink v. Comm’r Soc. Sec. Admin., 343 F. App’x

19

211,

20

hypothetical question to the vocational expert referenc[ing] only

21

‘simple,

22

concentration, persistence or pace . . . was error”); see also

23

Lubin v. Comm’r of Soc. Sec. Admin., 507 F. App’x 709, 712 (9th

24

Cir. 2013) (“Although the ALJ found that Lubin suffered moderate

25

difficulties in maintaining concentration, persistence, or pace,

26

the ALJ erred by not including this limitation in the residual

27

functional capacity determination or in the hypothetical question

28

to

212

the

work

(9th

by

Cir.

repetitive

vocational

itself

2009)

work,’

does

(finding

without

expert.”).

not

that

“the

including

However,
15

adequately

Brink

encompass
(Dkt. No.

ALJ’s

initial

limitations

and

Lubin

on

are

1

unpublished cases and therefore do not control the outcome here.

2

See 9th Cir. R. 36-3(a) (“Unpublished dispositions and orders of

3

this

4

published Ninth Circuit decision has arguably held otherwise.

5

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)

6

(finding that RFC limiting a claimant to simple, repetitive work

7

“adequately

8

persistence, or pace where the assessment is consistent with the

9

restrictions identified in the medical testimony”); accord Miller

10

v. Colvin, No. CV 15-7388, 2016 WL 4059636, at *2 (C.D. Cal. July

11

28,

12

limitation to simple repetitive tasks based on record”).

13

evidence is susceptible to more than one rational interpretation,

14

it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart,

15

400 F.3d 676, 679 (9th Cir. 2005).

16

that

17

irrational, the ALJ's decision must be upheld.

Court

2016)

the

are

not

precedent . . . .”).

captures

(“ALJ

ALJ’s

may

restrictions

translate

interpretation

Further,

related

moderate

of

to

an

earlier
See

concentration,

limitations

into

a

“Where

As the Court cannot conclude
Dr.

Chung’s

opinion

was

18
19

Even if the Ninth Circuit precedent were to require that

20

limitations in concentration, persistence, or pace be explicitly

21

included in the hypothetical question to the VE, the error here

22

would

Plaintiff

has

23

moderate restrictions in concentration, persistence, or pace.

(AR

24

14). However, the ALJ’s hypothetical question restricted Plaintiff

25

only

26

occasional interaction with coworkers and supervisors.”

27

Nevertheless, the jobs identified by the VE were limited to those

28

requiring only Level 2 reasoning.

be

to

harmless.

“simple

The

tasks,

ALJ

acknowledged

avoiding

16

public

that

contact,

with

only

(AR 32).

(AR 33) (identifying hand

1

packager, DOT 920.587-018, and laborer in a store, DOT 922.687-

2

058, as jobs that exist in sufficient numbers in the national

3

economy that someone with Plaintiff’s RFC could perform); see

4

<http://www.govtusa.com/dot>

5

920.587-018

6

visited March 7, 2018).

7

encompass moderate difficulties in concentration, persistence, or

8

pace, such as Plaintiff's.

9

498–99 (9th Cir. 2017) (“The RFC determination limiting Turner to

10

‘simple, repetitive tasks,’ which adequately encompasses Turner’s

11

moderate difficulties in concentration, persistence, or pace, is

12

compatible with jobs requiring Level 2 reasoning.”); cf. Zavalin

13

v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (finding “an inherent

14

inconsistency

15

routine tasks, and the requirements of Level 3 Reasoning”).

and

922.687-058

between

(jobs

classified

involve

Level

2

with

DOT

numbers

reasoning)

(last

Jobs with Level 2 reasoning adequately

Turner v. Berryhill, 705 F. App’x 495,

[the

claimant’s]

limitation

to

simple,

16
17

B.

Dr. Fam

18
19

On October 21, 2016, Hanaa W. Fam, M.D., completed a Mental

20

Capacity Assessment form at Plaintiff’s request.

21

Fam opined that Plaintiff’s mental impairments cause “marked”

22

limitations in Plaintiff’s ability to understand, remember and

23

carry

24

concentration for extended periods;

25

schedule, maintain regular attendance, and be punctual within

26

customary tolerances; sustain an ordinary routine without special

27

supervision; work in coordination with or in proximity to others

28

without being distracted by them; complete a normal workday or

out

detailed

instructions;

17

maintain

(AR 590-92).

attention

Dr.

and

perform activities within a

1

workweek

without

2

symptoms; perform at a consistent pace with a standard number and

3

length of rest periods; respond appropriately to changes in the

4

work

5

transportation.

6

concluded that Plaintiff would likely miss four or more days per

7

month.

setting;

and

interruptions

travel

in

from

unfamiliar

psychologically

places

or

(AR 590-92) (emphasis in original).

use

based

public

Dr. Fam also

(AR 591).

8
9

The ALJ gave Dr. Fam’s opinion “little probative weight.”

(AR

10

19).

The ALJ rejected Dr. Fam’s opinion because it was “not

11

supported by the other evidence of record, including the objective

12

medical evidence . . . or the opinion of Dr. Chung.”

13

ALJ further noted that “the record contains no evidence of Dr.

14

Fam’s

15

evidence, the undersigned cannot determine the basis for Dr. Fam’s

16

extreme assessments.”

17

not provide a legally sufficient reason for rejecting Dr. Fam’s

18

opinion but does not dispute any of the specific reasons given by

19

the ALJ.

treating

relationship

with

(AR 19).

(Dkt. No. 21 at 4).

[Plaintiff].

(AR 19).

Without

The

such

Plaintiff argues that the ALJ did

The Court disagrees.

20
21

The ALJ provided specific and legitimate reasons, supported

22

by substantial evidence, for rejecting Dr. Fam’s opinion.

23

Dr. Fam’s opinion is contrary to the objective medical evidence.

24

See Lingenfelter v. Astrue, 504 F.3d 1028, 1046 (9th Cir. 2007)

25

(“the

26

contradicts . . . the medical opinions of Lingenfelter’s treating

27

physicians”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

28

1195 (9th Cir. 2004) (“[A]n ALJ may discredit treating physicians’

weight

of

the

medical

18

evidence

in

the

First,

record

1

opinions that are conclusory, brief, and unsupported by the record

2

as a whole or by objective medical findings.”) (citations omitted).

3

As

4

[Plaintiff’s] mental condition . . . were unremarkable.”

5

Dr. Ebrahim observed normal eye contact, adequate grooming and

6

hygiene, calm

7

thought process, no evidence of auditory or visual hallucinations,

8

full cognitive orientation and memory, normal concentration and

9

memory, and intact insight and judgment.

the

ALJ

noted,

“[t]he

clinical

findings

with

respect

to

(AR 17).

psychomotor activity, linear and goal directed

(AR 493-94; see id. 17).

10

Dr. Cabrera observed an average work pace, a pleasant, friendly

11

and cooperative attitude, casual and appropriate attire, and full

12

orientation,

13

symptoms of depression.

14

psychiatrist

15

attitude, normal speech, euthymic mood, appropriate affect, logical

16

thought processes, normal eye contact, normal insight and mood,

17

and no suicidal or homicidal ideations.

18

Finally, the treating providers at LACDMH observed a cooperative

19

attitude, full orientation, unimpaired speech, normal eye contact,

20

linear and goal directed associations, appropriate grooming, calm

21

motor activity, unimpaired intellectual funding and memory, no

22

apparent hallucinations or delusions, and no suicidal or homicidal

23

ideations.

no

at

evidence

of

unusual

behaviors,

(AR 586-87; see id. 17).

Telecare

observed

full

and

only

mild

The evaluating

orientation,

engaged

(AR 528, 533; see id. 17).

(AR 570-71, 580, 583; see id. 17).

24
25

As the ALJ found, “the record shows [Plaintiff’s] symptoms

26

improved with treatment.”

(AR 17).

27

reported to his LACDMH treatment providers that his psychotropic

28

medications were “tremendously” helpful.
19

In March 2016, Plaintiff

(AR 504-05, 580; see id.

1

17).

In May 2016, Plaintiff reported feeling “pretty good” with

2

his

3

concentration, energy, and motivation as “good.”

4

objective evidence undermines Dr. Fam's opinion.

medications.

(AR

578;

see

id.

17).

He

described
(AR 578).

his
This

5
6

In addition, Dr. Fam’s opinion was contrary to the opinion of

7

Dr. Chung, Plaintiff’s treating psychiatrist.

See Bayliss, 427

8

F.3d at 1216 (an ALJ may reject a treating doctor’s opinion if it

9

is contradicted by another doctor’s opinion).

While Dr. Chung

10

agreed with Dr. Fam that Plaintiff has marked limitations in his

11

ability

12

periods, in all other respects, Dr. Chung found Plaintiff to be

13

significantly less limited than Dr. Fam opined.

14

12, with id. 590-92).

15

not only because it was supported by the objective medical evidence

16

but also because of Dr. Chung’s lengthy treating relationship with

17

Plaintiff.

to

maintain

attention

and

concentration

for

extended

(Compare AR 509-

The ALJ gave Dr. Chung’s opinion more weight

(AR 18-19).

18
19

Finally, the ALJ properly rejected Dr. Fam’s opinion because

20

the record contained no evidence of her treating relationship with

21

Plaintiff.

22

physician, including a treating physician, if that opinion is

23

brief,

24

findings.”

25

brief and conclusory, but the record is devoid of any clinical

26

findings by Dr. Fam to support her extreme limitations.

27

Tonapetyan, 242 F.3d at 1149 (“When confronted with conflicting

28

medical opinions, an ALJ need not accept a treating physician’s

(AR 19).

conclusory,

“The ALJ need not accept the opinion of any

and

inadequately

Thomas, 278 F.3d at 957.

20

supported

by

clinical

Not only is Dr. Fam’s opinion

See

1

opinion that is conclusory and brief and unsupported by clinical

2

findings.”).

3

relationship with Plaintiff is a legitimate reason to reject Dr.

4

Fam's opinion.

Again, the absence of a true treating physician

5
6

In sum, the ALJ provided specific and legitimate reasons,

7

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

8

Fam’s opinion little weight.

9

evidence supports the ALJ’s assessment of Dr. Fam’s opinion, no

10

Accordingly, because substantial

remand is required.

11
12

VIII.

13

CONCLUSION

14
15

Consistent with the foregoing, IT IS ORDERED that Judgment be

16

entered AFFIRMING the decision of the Commissioner.

The Clerk of

17

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

18

counsel for both parties.

19
20

DATED:

March 12, 2018

21
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

22
23
24
25

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

26
27
28
21