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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 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. 16 17 18 19 20 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. 21 22 23 24 25 26 27 28 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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