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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DWIGHT A. STATEN, Plaintiff, 12 v. 13 14 15 CASE NO. CV 17-3973 SS MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 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 20 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

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