Rose Munoz v. Andrew Saul
Filing
20
MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For the foregoing reasons, the decision of the Commissioner is AFFIRMED. (et)
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UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
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11
ROSE M. 1,
12
Case No. CV 19-7681-AS
Plaintiff,
MEMORANDUM OPINION
13
14
v.
ANDREW M. SAUL, Commissioner
of Social Security,
15
Defendant.
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For the reasons discussed below, IT IS HEREBY ORDERED that,
pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s
decision is affirmed.
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1
Plaintiff’s name is partially redacted in accordance with
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation
of the Committee on Court Administration and Case Management of
the Judicial Conference of the United States.
1
Proceedings
2
On September 5, 2019, Plaintiff filed a Complaint seeking
3
review of the Commissioner’s denial of Plaintiff’s application for
4
a period of disability and disability insurance benefits (“DIB”)
5
6
under Title II of the Social Security Act.
(Dkt. No. 1).
On
7
February 25, 2020, Defendant filed an Answer and the Administrative
8
Record (“AR”).
9
proceed before a United States Magistrate Judge.
10
11
12).
(Dkt. Nos. 15-16).
The parties have consented to
(Dkt. Nos. 10,
On June 11, 2020, the parties filed a Joint Stipulation
(“Joint Stip.”) setting forth their respective positions regarding
12
Plaintiff’s claims.
(Dkt. No. 19).
13
14
15
The Court has taken this matter under submission without oral
argument.
See C.D. Cal. C. R. 7-15.
16
17
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
18
19
On May 31, 2016, Plaintiff, previously employed as a bank
20
collection clerk (see AR 241), filed a DIB application alleging a
21
disability onset date of July 6, 2015.
22
application was denied initially on October 19, 2016 (AR 65, 81-
23
84), and upon reconsideration on December 8, 2016 (AR 78, 86-90).
(AR 144-45).
Plaintiff’s
24
25
On September 14, 2018, Administrative Law Judge (“ALJ”) Edward
26
T. Bauer heard testimony from Plaintiff, who was represented by
27
counsel, and vocational expert (“VE”) Elizabeth G. Ramos.
28
2
(AR 35-
1
53).
2
Plaintiff’s application.
On November 21, 2018, the ALJ issued a decision denying
(See AR 15-30).
3
4
The ALJ applied the requisite five-step process to evaluate
5
Plaintiff’s case.
6
not been engaged in substantial gainful activity since July 6,
7
2015, the alleged onset date.
8
that Plaintiff has the following severe impairments: diabetes
9
mellitus,
obesity,
hypertriglyceridemia,
10
depressive
disorder,
anxiety
11
insomnia.
12
Plaintiff’s impairments do not meet or equal a listing found in 20
13
C.F.R Part 404, Subpart P, Appendix 1.
14
found that Plaintiff has the following Residual Functional Capacity
15
(“RFC”): 2
(AR
At step one, the ALJ found that Plaintiff has
18).
At
(AR 18).
step
At step two, the ALJ found
disorder,
three,
migraine,
panic
the
ALJ
(AR 18).
major
disorder,
and
determined
that
Next, the ALJ
16
17
[Plaintiff can] perform medium work as defined in 20 CFR
18
404.1567(c)[ 3] except that she can lift and carry 50
19
pounds occasionally and 25 pounds frequently; can stand
20
and/or walk for six hours; can sit without limitation;
21
can
22
limited to simple, routine tasks; can have no public
23
contact;
perform
can
all
climbing
have
activities
only
occasional
frequently;
contact
is
with
24
2
25
26
27
28
A Residual Functional Capacity is what a claimant can
still do despite existing exertional and nonexertional limitations.
See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1).
3
“Medium work involves lifting no more than 50 pounds at
a time with frequent lifting or carrying of objects weighing up to
25 pounds.” 20 C.F.R. 404.1567(c).
3
1
supervisors and co-workers; and is limited to low stress
2
work, which is defined to mean work involving no strict
3
production deadlines or quotas.
4
5
(AR 21).
6
7
At step four, the ALJ found that Plaintiff is unable to perform
8
her past relevant work as a collection clerk.
9
five, based on Plaintiff’s RFC, age, education, work experience,
10
and the VE’s testimony, the ALJ determined that there are jobs that
11
exist in significant numbers in the national economy that Plaintiff
12
can perform, including machine feeder, factory helper, and laundry
13
worker I.
14
is not disabled.
(AR 29).
(AR 28).
At step
Accordingly, the ALJ concluded that Plaintiff
(AR 30).
15
16
On July 25, 2019, the Appeals Council denied Plaintiff’s
17
request to review the ALJ’s decision.
18
seeks judicial review of the ALJ’s decision, which stands as the
19
final decision of the Commissioner.
(AR 1-3).
Plaintiff now
See 42 U.S.C. § 405(g).
20
21
STANDARD OF REVIEW
22
23
This Court reviews the Administration’s decision to determine
24
if it is free of legal error and supported by substantial evidence.
25
See
26
“Substantial evidence” is more than a mere scintilla, but less than
27
a preponderance.
28
2014).
Brewes
To
v.
Comm’r,
682
F.3d
1157,
1161
(9th
Cir.
2012).
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
determine
whether
substantial
4
evidence
supports
a
1
finding, “a court must consider the record as a whole, weighing
2
both evidence that supports and evidence that detracts from the
3
[Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033,
4
1035 (9th Cir. 2001) (internal quotation omitted).
5
“[i]f the evidence can support either affirming or reversing the
6
ALJ’s conclusion, [a court] may not substitute [its] judgment for
7
that of the ALJ.”
8
(9th Cir. 2006).
As a result,
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
9
10
DISCUSSION
11
12
Plaintiff claims that the ALJ erred in considering the medical
13
opinions of two treating psychiatrists, Dr. Alicia Desai Kohm and
14
Dr.
15
consideration of the record as a whole, the Court finds that the
16
Commissioner’s findings are supported by substantial evidence and
17
are free from material legal error. 4
Novellyn
Heard.
(Joint
Stip.
at
2-13,
20-21).
After
18
19
A.
Legal Standard for ALJ’s Assessment of Medical Opinions
20
21
In
an
ALJ’s
assessment
of
medical
opinions,
a
treating
22
doctor’s opinion is generally afforded the greatest weight, though
23
it is not binding on an ALJ with respect to the existence of an
24
impairment or the ultimate determination of disability.
Batson v.
25
4
26
27
28
The harmless error rule applies to the review of
administrative decisions regarding disability.
See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be
reversed for errors that are harmless).
5
1
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004);
2
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “Generally,
3
a
4
examining physician’s, and an examining physician’s opinion carries
5
more weight than a reviewing physician’s.”
6
246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. Chater, 81
7
F.3d 821, 830 (9th Cir. 1995).
8
physician’s
9
sufficient medical data and is consistent with other evidence in
treating
physician’s
opinion
opinion
depends
carries
more
weight
than
an
Holohan v. Massanari,
The weight given a treating
on
whether
it
is
supported
by
10
the record.
11
871 F.3d 664 (9th Cir. 2017).
12
is not controlling, it is weighted based on factors such as the
13
length
14
examination, the nature and extent of the treatment relationship,
15
supportability,
16
specialization of the physician.
17
If a treating or examining doctor’s opinion is contradicted by
18
another doctor, the ALJ must provide “specific and legitimate
19
reasons” for rejecting the opinion.
20
632 (9th Cir. 2007); Lester, 81 F.3d at 830-31.
of
20 C.F.R. § 416.927(c)(2); see Trevizo v. Berryhill,
the
treatment
When a treating physician’s opinion
relationship
consistency
with
the
and
the
record
as
frequency
a
whole,
of
and
20 C.F.R. § 416.927(c)(2)-(6).
Orn v. Astrue, 495 F.3d 625,
21
22
B.
ALJ’s Assessment of Dr. Kohm’s Opinion
23
24
Psychiatrist Alicia Desai Kohm, M.D., treated Plaintiff on
25
two occasions – first on August 13, 2015 (AR 569-84), and then
26
about a month later, on September 17, 2015 (AR 624-35).
27
dates,
Dr.
Kohm
assessed
Plaintiff’s
28
6
“mental
On both
functional
1
impairments” (AR 575, 628), and extended Plaintiff’s disability
2
leave (which began prior to Dr. Kohm’s treatment) (AR 576-77, 629).
3
4
On
August
13,
2015,
Dr.
Kohm
opined
that
Plaintiff
had
5
moderate-to-severe limitations in the following areas: “[a]bility
6
to control emotions and maintain composure, free of crying spells,
7
anger outbursts”; and “[a]bility to deal with the usual stressors
8
encountered in the workplace, maintain regular attendance, and
9
complete a normal workday or work week.”
(AR 575).
Dr. Kohm
10
stated, moreover, that Plaintiff was moderately impaired in her
11
“[a]bility to perform detailed and complex tasks”; “[a]bility to
12
maintain concentration, attention, persistence, and pace”; and
13
“[e]nergy level.”
14
mild-to-moderate limitations in the following areas: “[a]bility to
15
perform
16
[d]ecision-making i.e. ability to plan, organize and do things”;
17
“[a]bility to perform activities without special or additional
18
supervision”;
19
transportation.”
20
Plaintiff was only mildly impaired in her “[a]bility to relate and
21
interact with co-workers and the public,” and she had no impairment
22
in her “[h]ygiene and grooming”; “[a]bility to accept instructions
23
from supervisors”; “[a]bility to control threatening or dangerous
24
behaviors”; and “[a]wareness of hazards.”
simple
(AR 575).
and
and
Dr. Kohm found that Plaintiff had
repetitive
tasks”;
“[a]bility
(AR
575).
to
“[p]roblem
drive
Finally,
Dr.
or
Kohm
solving
take
&
public
opined
that
(AR 575).
25
26
On September 17, 2015, Dr. Kohm’s assessment was somewhat less
27
restrictive.
28
Plaintiff had only a moderate impairment (as opposed to moderate-
(AR 628).
Among other things, Dr. Kohm found
7
1
to-severe) in her “[a]bility to control emotions and maintain
2
composure, free of crying spells, anger outbursts”; and “[a]bility
3
to deal with the usual stressors encountered in the workplace,
4
maintain regular attendance, and complete a normal workday or work
5
week.”
6
moderate limitation (as opposed to moderate) in her “[e]nergy
7
level”
8
persistence, and pace”; and no limitation (as opposed to mild) in
9
her “[a]bility to relate and interact with co-workers and the
(AR 628).
and
Dr. Kohm also found Plaintiff had a mild-to-
“[a]bility
to
maintain
concentration,
attention,
10
public.”
11
still extended Plaintiff’s disability leave.
12
additionally noted Plaintiff should continue her current dosage of
13
Paxil that she had been taking for just the past week, and advised
14
Plaintiff to follow up with a therapist (or group therapy) and
15
return for a follow-up psychiatry appointment in one to two months,
16
but with a different provider because Dr. Kohm was leaving the
17
office at the end of September.
(AR 628).
Despite the apparent improvements, Dr. Kohm
(AR 629).
Dr. Kohm
(AR 628-29).
18
19
The ALJ gave Dr. Kohm’s assessments “limited” or “partial
20
weight.”
21
Dr. Kohm’s August 2015 assessment, which included some severe
22
limitations, was not “intended to last for 12 months,” given that
23
Dr. Kohm’s subsequent assessment, in September, showed improvement
24
and included only “moderate” limitations, at most.
25
575 (August), 628 (September)).
26
Dr.
27
longitudinal medical records and other evidence,” as discussed in
28
the decision
(AR 24).
Kohm’s
Among other things, the ALJ determined that
assessments
(AR 24).
were
(AR 24; see AR
Overall, the ALJ determined that
not
“fully
consistent
with
the
The ALJ included the following mental
8
1
limitations in the RFC: “[Plaintiff] is limited to simple, routine
2
tasks; can have no public contact; can have only occasional contact
3
with supervisors and co-workers; and is limited to low stress work,
4
which is defined to mean work involving no strict production
5
deadlines or quotas.”
(AR 21).
6
7
Plaintiff claims that the ALJ failed to provide specific and
8
legitimate reasons for giving less than significant weight to Dr.
9
Kohm’s opinion.
(Joint Stip. at 6-13).
Plaintiff contends, first,
10
that the ALJ mischaracterized the difference between Dr. Kohm’s
11
August
12
consider that Dr. Kohm still found that Plaintiff was unable to
13
return to work in September 2015, despite some improvements from
14
the earlier assessment.
15
that the ALJ had no basis for assuming that Dr. Kohm’s August 2015
16
opinion was not intended to last for twelve months.
17
at 7).
18
the record on this issue.
and
September
assessments,
particularly
(Id. at 6-7).
by
failing
to
Thus, Plaintiff asserts
(Joint Stip.
Instead, Plaintiff argues, the ALJ had a duty to develop
(Id.).
19
20
However, Plaintiff has failed to show that the ALJ misstated
21
or overlooked anything in Dr. Kohm’s assessments.
22
the
23
reasonable inferences from them.
24
reduced limitations in the September assessment, it was reasonable
25
to infer that the more severe limitations opined in the August
26
assessment were intended only to describe Plaintiff’s functioning
27
during that particular assessment and not over a long-term period
28
(i.e., more than twelve months).
ALJ
accurately
described
the
9
two
To the contrary,
assessments
and
drew
Specifically, in light of the
Plaintiff may interpret the
1
opinion differently, but “[w]here evidence is susceptible to more
2
than one rational interpretation, it is the ALJ’s conclusion that
3
must be upheld.”
4
2005).
5
that
6
September 2015 does not render Dr. Kohm’s assessments “ambiguous”
7
or insufficiently clear so as to trigger the ALJ’s duty to develop
8
the record.
9
Cir. 2001) (ALJ’s duty to develop the record is triggered only when
10
there is “ambiguous evidence” or when “the record is inadequate to
11
allow for proper evaluation of the evidence”); see also McLeod v.
12
Astrue, 640 F.3d 881, 884 (9th Cir. 2011) (ALJ had no duty to
13
request more information from two physicians where their records
14
from the relevant period were before the ALJ, and there “was nothing
15
unclear or ambiguous about what they said”).
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
Moreover, notwithstanding Plaintiff’s contention, the fact
Dr.
Kohm
still
extended
Plaintiff’s
disability
leave
in
See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
16
17
Plaintiff contends that the ALJ erred “by stating that the
18
limitations suggested by Dr. Kohm in September of 2015 are not
19
‘inconsistent’ with plaintiff’s RFC.”
20
AR 24).
21
include in the RFC any limitations related to being off-task or
22
missing workdays, despite Dr. Kohm’s opinion that Plaintiff was
23
moderately limited in her ability to maintain regular attendance,
24
complete a normal workweek, and control her emotions and maintain
25
composure.
26
claims that the RFC’s restriction to “simple routine tasks” is less
27
limited than Dr. Kohm’s assessment of a moderate impairment in
(Joint Stip. at 9) (citing
In particular, Plaintiff asserts that the ALJ failed to
(Joint Stip. at 9) (citing AR 21, 628).
28
10
Plaintiff also
1
performing “simple and repetitive tasks.”
2
(citing AR 21, 628).
(Joint Stip. at 9)
3
4
However, even to the extent that the RFC may diverge from the
5
limitations in Dr. Kohm’s September 2015 assessment, Plaintiff has
6
failed to demonstrate any error because the ALJ did not purport to
7
adopt Dr. Kohm’s assessments in any respect.
8
merely
9
September 2015 assessment were not “clearly inconsistent” with the
remarked
that
the
moderate
Instead, the ALJ
limitations
in
Dr.
Kohm’s
10
RFC.
11
not find [Dr. Kohm’s assessments] to be fully consistent with the
12
longitudinal medical records and other evidence . . . .”
13
thus gave Dr. Kohm’s assessments only “limited weight to the extent
14
that they are in line with” the RFC finding.
15
provided specific and legitimate reasons for this determination.
(AR 24).
At the same time, the ALJ expressly stated: “I do
(AR 24).
The ALJ
The ALJ
16
17
Plaintiff disputes the ALJ’s finding that Plaintiff’s mental
18
“impairments are generally managed with conservative treatment
19
measures.”
20
her psychiatrists have prescribed her “a variety of psychotropic
21
medications, and changed the dosages frequently, since the alleged
22
onset date.”
23
example,
24
prescribed Trazodone and Paxil as of August 27, 2017 (AR 3797),
25
and then increased the Paxil dosage at the next visit, on October
26
5, 2017, when Plaintiff complained of increasing depression (AR
27
3799).
28
increased the Paxil and Trazodone dosages.
(Joint Stip. at 10-11; AR 26).
that
(Joint Stip. at 10).
one
psychiatrist,
Dr.
Plaintiff asserts that
Plaintiff points out, for
Sultana
Ikramullah,
had
About a month later, on November 2, 2017, Dr. Ikramullah
11
(AR 3800).
Later, on
1
January 25, 2018, Dr. Ikramullah switched Plaintiff from Paxil to
2
Prozac after Plaintiff complained of feeling “spaced out” and
3
unable to concentrate.
4
has also “required treatment with various psychologists, as well
5
as group therapy.”
6
706, 848, 886, 3845-3856).
(AR 3801).
Plaintiff points out that she
(Joint Stip. at 11) (citing AR 674-678, 702-
7
8
Regardless of these facts, substantial evidence in the record
9
supports the ALJ’s finding that Plaintiff’s mental conditions were
10
generally
11
therapy and antidepressant medications such as Trazodone and Paxil.
12
The
13
“[t]hinks
14
(September
15
[Plaintiff] increased trazadone to 100 mg qhs for the past week”
16
(AR
17
depression group in the past which was helpful” (AR 989 (September
18
2016)), and noted that there was no indication that Plaintiff’s
19
mental impairments have required more aggressive interventions,
20
such as inpatient hospitalizations.
well
ALJ
637
managed
referenced
the
paxil
2015)),
(October
with
conservative
treatment
has
that
2015)),
records
helped
she
noting
reduce
her
“[r]eports
and
that
treatments,
she
that
such
Plaintiff
anxiety”
better
(AR
sleep
reportedly
as
625
since
“attended
21
22
The
ALJ
noted
that
even
“to
the
extent
that
any
of
23
[Plaintiff’s] impairments have ever been described as less than
24
well managed with conservative measures, this state of affairs may
25
be due at least in part to [Plaintiff’s] frequent failures and/or
26
refusals to comply fully with treatment advice.”
27
ALJ
28
indicating that Plaintiff was apparently skipping some prescribed
pointed
to
numerous
examples
12
from
the
(AR 27).
treatment
The
records
1
medications, taking less than recommended dosage amounts, and
2
missing scheduled appointments.
3
284, 327, 760, 802, 868, 970, 989, 3802, 3850, 3853). This finding,
4
which
5
decision to give only limited weight to Dr. Kohm’s opinion.
Plaintiff
does
not
(AR 27) (citing, e.g., AR 278,
dispute,
further
supports
the
ALJ’s
6
7
Plaintiff also disputes the ALJ’s finding that Dr. Kohm’s
8
opinion is not “well-supported by the objective data and other
9
evidence – including [Plaintiff’s] modest clinical findings . . .
10
as well as her treatment notes[.]”
11
Plaintiff contends that the objective findings overall support Dr.
12
Kohm’s opinion.
13
points to three mental status exams between 2016 and 2018.
14
Stip. at 12).
15
therapist,
16
psychomotor retardation, fatigue, and low motivation.
17
19).
18
agitated psychomotor activity, slow and emotional speech, depressed
19
mood, slow thought processes, impaired concentration, phobias of
20
heights, and compulsions.
21
on May 30, 2018, Plaintiff’s therapist, Jennifer Fog, Ph.D., noted
22
suicidal ideation with a plan, tired mood, decreased concentration,
23
and short-term memory loss.
24
the ALJ’s account of the objective evidence of mental impairments
25
is “far off the mark,” and particularly “seems to rely upon evidence
26
showing
27
considering the longitudinal treatment record.”
28
12).
Wendy
(Joint Stip. at 11-12; AR 23).
(Joint Stip. at 12).
As examples, Plaintiff
(Joint
In the first, on August 17, 2016, Plaintiff’s
Elizabeth
Marinoff,
noted
a
depressed
mood,
(AR 918-
In the second, on April 26, 2017, Dr. Ikramullah noted
plaintiff’s
(AR 3793-2794).
(AR 3854).
improvement
13
in
Finally, in the third,
Plaintiff contends that
the
short-term,
without
(Joint Stip. at
1
The Court disagrees.
The ALJ gave a fairly detailed account
2
of the objective medical evidence, and did not overlook the fact
3
that Plaintiff’s treating sources noted Plaintiff’s anxious or
4
depressed moods and dysphoric affect. (AR 23).
5
found,
6
impressions, the record was “largely lacking in data of clinical
7
significance,” as there are “no significantly abnormal cognitive
8
function tests, repeatedly dire mental status examination findings
9
(‘MSE’),
however,
or
that
other
aside
such
from
data
to
these
The ALJ reasonably
moderate
establish
mental
major
status
memory
loss,
10
attention and concentration deficits, mood disturbances, social
11
difficulties, or other issues.”
12
279, 284, 290, 294-95, 306, 326-27, 330, 345, 356, 869, 899, 969,
13
990-91,
14
supports the ALJ’s determination that the objective evidence and
15
data as a whole fail to demonstrate mental limitations beyond those
16
included in the RFC.
3792-3856).
(AR 23) (citing, e.g., AR 266,
Substantial
evidence
in
the
record
thus
17
18
Plaintiff additionally contends that the ALJ erred to the
19
extent
20
purported ability to engage in exercise and daily activities.
21
(Joint Stip. at 9-10).
22
exercise “for some part of the day does not prove that she is able
23
to work eight hours per day, five days per week.”
24
10).
25
showing plaintiff exercised after 2016, and there is substantial
26
evidence showing she lays down for a significant part of the day.”
27
(Joint Stip. at 10) (citing AR 637, 842, 898, 3379, 3799, 3845,
28
3849, 3852).
he
discounted
Dr.
Kohm’s
opinion
based
on
Plaintiff’s
Plaintiff asserts that her ability to
(Joint Stip. at
Plaintiff contends that the ALJ did not “cite any evidence
14
1
However,
the
ALJ
does
not
appear
to
have
considered
2
Plaintiff’s ability to exercise or engage in daily activities as a
3
basis for discounting Dr. Khom’s opinion or otherwise determining
4
Plaintiff’s mental limitations.
5
Plaintiff’s ability to engage in exercise and daily activities in
6
the course of generally noting that he considered all the opinion
7
evidence
8
Specifically, the ALJ stated that in addition to considering the
9
“formal opinions of treating providers,” such as Dr. Kohm’s two
10
assessments in August and September 2015, he also considered “the
11
less formal opinion evidence - such as the remarks from treating
12
sources (including Dr. Kohn and others) that suggest [Plaintiff]
13
has been advised that she should (and thus, presumably can) engage
14
in at least some forms of exercise.”
15
577, 629, 809, 853, 858, 3857).
16
dispute that her treatment records do contain indications that she
17
engages in exercise and was encouraged to do so, which the ALJ
18
correctly noted.
in
the
record
in
Instead, the ALJ merely mentioned
reaching
his
overall
conclusions.
(AR 23) (citing, e.g., AR
Regardless, Plaintiff does not
19
20
Accordingly, Plaintiff has failed to demonstrate any error in
21
the ALJ’s consideration of Dr. Kohm’s medical opinion, which is
22
grounded
23
substantial evidence in the record.
in
specific
and
legitimate
reasons,
supported
by
24
25
C.
ALJ’s Assessment of Dr. Heard’s Opinion
26
27
Plaintiff contends the ALJ erred by failing to address an
28
opinion of Dr. Novellyn Heard, M.D., a psychiatrist who treated
15
1
Plaintiff from October 2015 through September 2016.
2
at 20-21; AR 637, 990-92).
3
the ALJ should have addressed Dr. Heard’s notation, in several
4
treatment notes, that Plaintiff was “[u]nable to keep a regular
5
schedule.”
6
asserts that Dr. Heard’s notation qualifies as a “medical opinion”
7
under 20 C.F.R. § 404.1527, which defines “medical opinions” as
8
“statements from acceptable medical sources that reflect judgments
9
about the nature and severity of your impairment(s), including your
10
symptoms, diagnosis and prognosis, what you can still do despite
11
impairment(s), and your physical or mental restrictions.”
12
Stip. at 21) (quoting 20 C.F.R. § 404.1527(a)(1)).
(Joint Stip.
Specifically, Plaintiff argues that
(Joint Stip. at 20-21; AR 711, 842, 989).
Plaintiff
(Joint
13
14
However, as Defendant points out, Dr. Heard’s notation – that
15
Plaintiff was “[u]nable to keep a regular schedule” – seems to
16
refer
17
opinion of Plaintiff’s limitations or abilities.
18
at 22).
19
treatment notes as part of Plaintiff’s account of her condition
20
and activities at the time of the respective treatment sessions.
21
Indeed, the first time the notation appears, on December 16, 2015,
22
it is in a section labeled “Subjective,” which reads as follows:
to
Plaintiff’s
subjective
allegations,
not
Dr.
Heard’s
(See Joint Stip.
This is evident because the notation appears in the
23
24
[Plaintiff’s]
25
[Plaintiff’s] brother is dying of AIDS.
26
only
27
[Plaintiff’s]
28
[Plaintiff] feels depressed. Denies [suicidal ideation,
taking
grandmother
half
the
husband
died
prescribed
is
against
16
on
12/13/’15.
[Plaintiff] is
dose
her
of
taking
Paxil.
meds.
1
homicidal ideation]. Sleeps well when takes trazodone.
2
Sleeps poorly when doesn’t take trazodone. Appetite-
3
baseline. Conc, energy, interests-below baseline. Denies
4
recent panic attacks. Often feels worried and irritable.
5
6
Better, but still impaired [functioning]. Spends less
7
time in bed. Better, but below baseline bathing and
8
grooming.
9
10
Poor stress tolerance. [Plaintiff] still struggles with
11
chores. Unable to keep a regular schedule. difficulty
12
controling
13
still assists her.
[sic]
her
emotions.
[Plaintiff’s]
mother
14
15
Last worked in 7/’15. [Plaintiff] is employed in a call
16
center for Bank of America.
17
18
Denies side effects. No [complaints of] headaches.
19
20
(AR 711) (emphasis added).
21
is labeled “Current,” rather than “Subjective,” but it remains
22
clear from the context that this is still intended to represent
23
Plaintiff’s subjective account, not Dr. Heard’s own impression of
24
Plaintiff’s abilities.
25
2016 reads:
In later treatment notes, the section
For example, a treatment note from May 25,
26
27
[Complains of] increased stress. Feels depressed and
28
anxious.
Denies
panic
attacks,
17
[suicidal
ideation,
1
homicidal ideation]. Often feels worried and irritable.
2
Appetite, conc, energy, interests-below baseline. Sleep-
3
better. Impaired [functioning]-spends a lot of time in
4
bed. Below baseline bathing and grooming. Poor stress
5
tolerance. [Plaintiff] is still not mopping and ironing.
6
7
Unable to keep a regular schedule. Difficulty controling
8
[sic] her emotions. [Plaintiff’s] family still assist
9
her.
10
[Plaintiff]
didn’t
resume
attending
depression
group. Better med compliance.
11
12
Currently on DMI until 6/30/’16. [Plaintiff] is employed
13
in a call center for Bank of America. Last worked in
14
7/’15. [Plaintiff] is considering applying for SSI. Side
15
effects?-forgetfulness.
16
long
17
Migraine medication helps.
[history
of]
Denies
migraines
daytime
prior
sedation.
to
taking
Has
meds.
18
19
(AR 842) (emphasis added).
20
21
Because Dr. Heard’s notations about Plaintiff’s inability to
22
“keep
23
statements, they do not constitute a medical opinion under 20
24
C.F.R. § 404.1527(a)(1).
25
failing
26
medical opinion.
a
regular
to
schedule”
consider
these
refer
to
Plaintiff’s
subjective
Accordingly, the ALJ did not err in
statements
27
28
18
as
Dr.
Heard’s
treating
1
CONCLUSION
2
3
4
For the foregoing reasons, the decision of the Commissioner
is AFFIRMED.
5
6
LET JUDGMENT BE ENTERED ACCORDINGLY.
7
8
Dated: September 10, 2020
9
______________/s/_____________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
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