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

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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ROSE M. 1,

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Case No. CV 19-7681-AS
Plaintiff,
MEMORANDUM OPINION

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v.
ANDREW M. SAUL, Commissioner
of Social Security,

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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

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On September 5, 2019, Plaintiff filed a Complaint seeking

3
review of the Commissioner’s denial of Plaintiff’s application for
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a period of disability and disability insurance benefits (“DIB”)
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under Title II of the Social Security Act.

(Dkt. No. 1).

On

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February 25, 2020, Defendant filed an Answer and the Administrative

8

Record (“AR”).

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proceed before a United States Magistrate Judge.

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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

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Plaintiff’s claims.

(Dkt. No. 19).

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The Court has taken this matter under submission without oral
argument.

See C.D. Cal. C. R. 7-15.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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On May 31, 2016, Plaintiff, previously employed as a bank

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collection clerk (see AR 241), filed a DIB application alleging a

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disability onset date of July 6, 2015.

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application was denied initially on October 19, 2016 (AR 65, 81-

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84), and upon reconsideration on December 8, 2016 (AR 78, 86-90).

(AR 144-45).

Plaintiff’s

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On September 14, 2018, Administrative Law Judge (“ALJ”) Edward

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T. Bauer heard testimony from Plaintiff, who was represented by

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counsel, and vocational expert (“VE”) Elizabeth G. Ramos.

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2

(AR 35-

1

53).

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Plaintiff’s application.

On November 21, 2018, the ALJ issued a decision denying
(See AR 15-30).

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4

The ALJ applied the requisite five-step process to evaluate

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Plaintiff’s case.

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not been engaged in substantial gainful activity since July 6,

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2015, the alleged onset date.

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that Plaintiff has the following severe impairments: diabetes

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mellitus,

obesity,

hypertriglyceridemia,

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depressive

disorder,

anxiety

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insomnia.

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Plaintiff’s impairments do not meet or equal a listing found in 20

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C.F.R Part 404, Subpart P, Appendix 1.

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found that Plaintiff has the following Residual Functional Capacity

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(“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

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[Plaintiff can] perform medium work as defined in 20 CFR

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404.1567(c)[ 3] except that she can lift and carry 50

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pounds occasionally and 25 pounds frequently; can stand

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and/or walk for six hours; can sit without limitation;

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can

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limited to simple, routine tasks; can have no public

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contact;

perform

can

all

climbing

have

activities

only

occasional

frequently;

contact

is

with

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2

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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

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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.

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(AR 21).

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At step four, the ALJ found that Plaintiff is unable to perform

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her past relevant work as a collection clerk.

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five, based on Plaintiff’s RFC, age, education, work experience,

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and the VE’s testimony, the ALJ determined that there are jobs that

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exist in significant numbers in the national economy that Plaintiff

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can perform, including machine feeder, factory helper, and laundry

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worker I.

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is not disabled.

(AR 29).

(AR 28).

At step

Accordingly, the ALJ concluded that Plaintiff

(AR 30).

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On July 25, 2019, the Appeals Council denied Plaintiff’s

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request to review the ALJ’s decision.

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seeks judicial review of the ALJ’s decision, which stands as the

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final decision of the Commissioner.

(AR 1-3).

Plaintiff now

See 42 U.S.C. § 405(g).

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STANDARD OF REVIEW

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This Court reviews the Administration’s decision to determine

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if it is free of legal error and supported by substantial evidence.

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See

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

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a preponderance.

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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

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[Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033,

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1035 (9th Cir. 2001) (internal quotation omitted).

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“[i]f the evidence can support either affirming or reversing the

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ALJ’s conclusion, [a court] may not substitute [its] judgment for

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that of the ALJ.”

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(9th Cir. 2006).

As a result,

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882

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DISCUSSION

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Plaintiff claims that the ALJ erred in considering the medical

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opinions of two treating psychiatrists, Dr. Alicia Desai Kohm and

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Dr.

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consideration of the record as a whole, the Court finds that the

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Commissioner’s findings are supported by substantial evidence and

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are free from material legal error. 4

Novellyn

Heard.

(Joint

Stip.

at

2-13,

20-21).

After

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A.

Legal Standard for ALJ’s Assessment of Medical Opinions

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In

an

ALJ’s

assessment

of

medical

opinions,

a

treating

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doctor’s opinion is generally afforded the greatest weight, though

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it is not binding on an ALJ with respect to the existence of an

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impairment or the ultimate determination of disability.

Batson v.

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4

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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,

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a

4

examining physician’s, and an examining physician’s opinion carries

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more weight than a reviewing physician’s.”

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246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. Chater, 81

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F.3d 821, 830 (9th Cir. 1995).

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physician’s

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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).

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is not controlling, it is weighted based on factors such as the

13

length

14

examination, the nature and extent of the treatment relationship,

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supportability,

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specialization of the physician.

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If a treating or examining doctor’s opinion is contradicted by

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another doctor, the ALJ must provide “specific and legitimate

19

reasons” for rejecting the opinion.

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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,

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B.

ALJ’s Assessment of Dr. Kohm’s Opinion

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Psychiatrist Alicia Desai Kohm, M.D., treated Plaintiff on

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two occasions – first on August 13, 2015 (AR 569-84), and then

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about a month later, on September 17, 2015 (AR 624-35).

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dates,

Dr.

Kohm

assessed

Plaintiff’s

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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

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moderate-to-severe limitations in the following areas: “[a]bility

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to control emotions and maintain composure, free of crying spells,

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anger outbursts”; and “[a]bility to deal with the usual stressors

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encountered in the workplace, maintain regular attendance, and

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complete a normal workday or work week.”

(AR 575).

Dr. Kohm

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stated, moreover, that Plaintiff was moderately impaired in her

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“[a]bility to perform detailed and complex tasks”; “[a]bility to

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maintain concentration, attention, persistence, and pace”; and

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“[e]nergy level.”

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mild-to-moderate limitations in the following areas: “[a]bility to

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perform

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[d]ecision-making i.e. ability to plan, organize and do things”;

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“[a]bility to perform activities without special or additional

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supervision”;

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transportation.”

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Plaintiff was only mildly impaired in her “[a]bility to relate and

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interact with co-workers and the public,” and she had no impairment

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in her “[h]ygiene and grooming”; “[a]bility to accept instructions

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from supervisors”; “[a]bility to control threatening or dangerous

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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).

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26

On September 17, 2015, Dr. Kohm’s assessment was somewhat less

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restrictive.

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Plaintiff had only a moderate impairment (as opposed to moderate-

(AR 628).

Among other things, Dr. Kohm found

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1

to-severe) in her “[a]bility to control emotions and maintain

2

composure, free of crying spells, anger outbursts”; and “[a]bility

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to deal with the usual stressors encountered in the workplace,

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maintain regular attendance, and complete a normal workday or work

5

week.”

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moderate limitation (as opposed to moderate) in her “[e]nergy

7

level”

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persistence, and pace”; and no limitation (as opposed to mild) in

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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.”

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still extended Plaintiff’s disability leave.

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additionally noted Plaintiff should continue her current dosage of

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Paxil that she had been taking for just the past week, and advised

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Plaintiff to follow up with a therapist (or group therapy) and

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return for a follow-up psychiatry appointment in one to two months,

16

but with a different provider because Dr. Kohm was leaving the

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office at the end of September.

(AR 628).

Despite the apparent improvements, Dr. Kohm
(AR 629).

Dr. Kohm

(AR 628-29).

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19

The ALJ gave Dr. Kohm’s assessments “limited” or “partial

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weight.”

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Dr. Kohm’s August 2015 assessment, which included some severe

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limitations, was not “intended to last for 12 months,” given that

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Dr. Kohm’s subsequent assessment, in September, showed improvement

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and included only “moderate” limitations, at most.

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575 (August), 628 (September)).

26

Dr.

27

longitudinal medical records and other evidence,” as discussed in

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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).

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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.

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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.).

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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

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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

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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

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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).

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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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