William J. Adcock v. Commissioner Social Security

Filing 25

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WILLIAM J. ADCOCK,

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Case No. EDCV 16-1222 SS

Plaintiff,

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v.

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NANCY A. BERRYHIL,1
Acting Commissioner of Social
Security,
Defendant.

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MEMORANDUM DECISION AND ORDER

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I.

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INTRODUCTION

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William J. Adcock (“Plaintiff”) brings this action seeking to
overturn the decision of the Commissioner of the Social Security
Administration
application

(the

for

“Commissioner”

Disability

or

Insurance

“Agency”)

denying

his

Benefits

(“DIB”)

and

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).
1

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Supplemental

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consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of

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the undersigned United States Magistrate Judge.

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13).

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Commissioner’s decision.

For

Security

the

Income

reasons

(“SSI”)

stated

benefits.

below,

the

The

parties

(Dkt. Nos. 12-

Court

AFFIRMS

the

application

for

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II.

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PROCEDURAL HISTORY

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On

April

16,

2012,

Plaintiff

filed

an

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Disability Insurance Benefits (“DIB”) and for Supplemental Security

12

Income (“SSI”).

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alleged that he became unable to work on December 7, 2011 due to

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emphysema, chronic obstructive pulmonary disease (“COPD”), blood

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clots in the lungs, pneumonia, and a fungal infection.

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853).

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(AR 706-710).

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application upon reconsideration.

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Plaintiff requested a hearing before an Administrative Law Judge

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(“ALJ”).

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conducted a hearing to review Plaintiff’s claim.

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September 25, 2014, the ALJ found that Plaintiff was not disabled

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under the Social Security Act.

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review of the ALJ’s decision before the Appeals Council.

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Appeals Council denied Plaintiff’s application on April 8, 2016.

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(AR 1-7).

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the Commissioner.

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9, 2016.

(Administrative Record (“AR”) 828-40).

Plaintiff

(AR 834,

The Agency denied Plaintiff’s application on August 7, 2012.
On May 8, 2013, the Agency denied Plaintiff’s

(AR 720-21).

(AR 712-717).

On July 2, 2013,

On June 30, 2014, ALJ Alan Markiewicz

(AR 609-26).

(AR 628-61).

On

Plaintiff sought
The

The ALJ’s decision then became the final decision of
Plaintiff commenced the instant action on June

(Dkt. No. 1).
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III.

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FACTUAL BACKGROUND

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Plaintiff was born on September 2, 1955. (AR 864).

He was 56

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years old as of the alleged disability onset date of December 7,

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2011.

He was 58 years old when he appeared before the ALJ.

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632).

Plaintiff graduated from high school and completed one year

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of junior college.

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clerk, hotel clerk, and security guard.

(AR 632).

(AR

He previously worked as a sales
(AR 880).

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A.

Plaintiff’s Testimony

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Plaintiff testified that he lives by himself at the Desert

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Lodge hotel.

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doing “as much work to work off” the room as he can.

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stated

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Specifically, Plaintiff checks people in and out of the hotel.

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650). He stands while working at the front desk. (Id.). Plaintiff

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also sits down to do paperwork.

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bit”, including wiping down the counter and sweeping the floor.

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(Id.).

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minutes.

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(Id.).

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8:30 to 10:30 in the morning.

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room to rest.

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(Id.).

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to rest.

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that he can work is “maybe two hours” at a time.

that

(AR 648).

he

He stays there “for free” in exchange for

mainly

works

at

the

(Id.).

front

(Id.).

desk.

He

(Id.).
(AR

He also cleans a “little

When he sweeps the floors, it usually takes about ten
(Id.).

He is short of breath once he is done sweeping.

Plaintiff testified that he typically tries to work from

(Id.).

(AR 655).

He then goes back to his

He returns to the office if he is needed.

After he does what is needed, he will return to his room
(Id.).

Plaintiff stated that the longest amount of time

3

(Id.).

He

1

testified that he tries to do this work as much as he can.

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648).

(AR

3
4

Plaintiff testified that his last full-time job consisted of

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light maintenance, cleaning, and front desk work at the Palm Grove

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hotel.

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came down with pneumonia and blood clots.

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testified that he worked at the Palm Grove hotel for approximately

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four years.

(AR 633).

He stopped working in February of 2012 when he

(AR 633).

(Id.).

Plaintiff

Before that, he worked in retail at an

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adult bookstore called Perez Images for almost nine years.

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634).

(AR

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Plaintiff testified that the main reason he stopped working

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was because of his COPD.

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tries to do work he has to take breaks due to his breathing. (Id.).

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Plaintiff testified that he can only walk about 50 or 60 feet

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without stopping to rest.

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do “minimal standing.”

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minutes without moving if he has to.

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testified that he can sit for “maybe two hours” at a time.

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646-646).

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month before the hearing.

(AR 637-638).

(AR 644-645).
(AR 645).

He stated that when he

He testified that he can

He can stand for about five
(AR 649-650).

He further
(AR

Plaintiff testified that he began using a walker the
(AR 647).

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Plaintiff stated that he has had issues with depression since

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his health began to decline.

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not recently taken any medicines to help with his depression.

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(Id.).

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and was on a “depression pill.”

(AR 647).

He testified that he has

He testified that in the past he was seeing a psychiatrist
(Id.).
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He stated that he started

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feeling better but stopped taking the medicine after about six

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months because he did not like it.

(AR 647-648).

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Plaintiff testified that his driver’s license expired a few

5

years back.

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transportation.

(AR 649).

He stated that he takes the Sun bus for

(Id.).

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B.

Consultative Examiner, Kara Cross, Ph.D., ABFE, ABPS

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On April 6, 2013, consultative examiner Dr. Kara Cross, Ph.D.

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in Clinical Psychology, performed a Complete Mental Evaluation of

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Plaintiff.

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psychiatric records for review.

(AR 993-98).

Dr. Cross noted that there were no
(AR 993).

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Under “Chief Complaints,” Dr. Cross commented that Plaintiff

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stated that he “has COPD and trouble concentrating.

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that he feels anxious about his health.

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thinking ‘oh what if.’”

He state[d]

He spends a lot of time

(AR 993).

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Under “History of Present Illness,” Dr. Cross noted that

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Plaintiff “had outpatient counseling services back in 1989.

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went for two weeks and stopped.

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in 1989 for wanting to kill himself.

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two solid weeks.

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suicidal and does not feel homicidal.”

He

He states that he was hospitalized
He was in the hospital for

[Plaintiff] reports that he no longer feels
(AR 994).

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Under “Habits,” Dr. Cross noted that Plaintiff “used to smoke
pot back in 1970s.

He used to drink alcohol at parties but does
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not use either anymore.”

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Cross commented that Plaintiff “was arrested once for shoplifting

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and spent one and a half days in jail.”

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History,” Dr. Cross noted that Plaintiff worked in retail for nine

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years and “last worked in 2009.

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(Id.).

(AR 994).

Under “Legal History,” Dr.

(Id.).

Under “Employment

He stated that he was laid off.”

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Dr. Cross noted that Plaintiff is able to pay bills and can
handle cash appropriately.

(AR 995).

He is able to go out alone.

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(Id.).

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(Id.).

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difficulty completing household tasks.

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difficulty making his decisions.

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a daily basis, Plaintiff

Plaintiff’s relationships with family and friends are good.
Plaintiff can focus attention.

(Id.).
(Id.).

(Id.).

Plaintiff has no
Plaintiff has no

Dr. Cross noted that, on

15
can dress and bathe, cook, clean, run errands, and go
shopping.
He maintains his own residence as far as
cleanliness is concerned. He cleans rooms for his room
and board. He states that he is living in a hotel and
is cleaning rooms in exchange for a place to live and
food to eat. He states that he can do light cleaning in
these rooms but cannot do the heavy cleaning. He feels
very sad and depressed over his deteriorating health and
stamina.

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(AR 995).

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Under “Thought Processes,” Dr. Cross noted that Plaintiff was

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coherent and organized.

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Cross

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(Id.).

stated

that

(AR 996).

Plaintiff

was

Under “Thought Content,” Dr.
relevant

and

non-delusional.

Dr. Cross further commented that there “is no bizarre or

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psychotic thought content.

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paranoid ideation during the interview.

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auditory or visual hallucinations.

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be responding to internal stimuli during the interview.”

There is no suicidal, homicidal or
[Plaintiff] denies recent

[Plaintiff] does not appear to
(Id.).

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Under “Mood and Affect,” Dr. Cross commented that “[m]ood is

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somewhat sad and affect is a little tearful and congruent with

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thought content.

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[Plaintiff] denies any feeling of hopelessness, helplessness or

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worthlessness.”

[Plaintiff] is tearful.

[Plaintiff] is anxious.

(Id.).

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Under “Speech,” Dr. Cross stated that speech was “normally

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and

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neologisms, tangentiality, circumstantiality or loosened, unusual

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or blocked associations.”

clearly

articulated,

without

stammering,

dysarthria,

(Id.).

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Dr. Cross further noted that Plaintiff was alert and oriented

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to time, place, person, and purpose.

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Plaintiff was able to repeat four digits forward and backward.

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(Id.).

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after five minutes. (Id.).

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Washington was and a school day attended as a child.

(Id.).

Dr. Cross stated that

Plaintiff was able to recall three items immediately and
Plaintiff was able to recall who George
(Id.).

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Under “Concentration and Calculation,” Dr. Cross stated that

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Plaintiff “could not perform serial threes.

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4 dollars plus 5 dollars is 9 dollars.

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to do alpha numeric reasoning.

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conversation [with Dr. Cross] well.”

[Plaintiff] knew that

[Plaintiff] was not able

[Plaintiff] was able to follow []

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(Id.).

Later, she commented

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that Plaintiff could do serial threes but not serial sevens.

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997).

Plaintiff could say the months of the year.

(AR

(Id.).

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Dr. Cross noted that she asked Plaintiff how an airplane and

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helicopter are the same.

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the sky and they fly around.”

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how “up” and “south” are the same.

(Id.).

He responded, “[t]hey are up in
(Id.).

However, he did not know

(Id.).

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Dr. Cross commented that Plaintiff’s insight and judgement

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appeared to be intact regarding his current situation.

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Dr. Cross diagnosed Plaintiff with Dysthymia and a general anxiety

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disorder.

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Functioning (“GAF”) score of 60.2

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Cross stated that “[f]rom a psychiatric standpoint, [Plaintiff’s]

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condition is deemed fair.”

(Id.).

(Id.).

Dr. Cross gave Plaintiff a Global Assessment
(Id.).

Under “Prognosis,” Dr.

(Id.).

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Under “Functional Assessment,” Dr. Cross stated that, based

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on her examination, Plaintiff is able “to understand, remember,

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and carry out simple one or two-step job instructions … [u]nable

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to do detailed and complex instructions.”

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he has mild impairments relating and interacting with co-workers

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and the public.

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impairments maintaining concentration and attention, persistence

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and pace.

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maintaining regular attendance in the work place and performing

(Id.).

(AR 998).

(Id.).

She noted that

She further noted that he has mild

She also stated that he has mild impairments

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2
A GAF score of 51–60 reflects moderate symptoms or moderate
difficulty in social or occupational functioning. Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed. Text Rev. 2000).

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work activities on a consistent basis.

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is unimpaired in his ability to associate with day-to-day work, to

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accept

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activities without special or additional supervision.

instructions

from

(Id.).

supervisors,

and

She noted that he

to

perform

work

(Id.).

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C. State Agency Physician, Gina Rivera-Miya, M.D.

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On

March

8,

2013,

Dr.

G.

Rivera-Miya,

M.D.,

Plaintiff’s record at the reconsideration stage.

reviewed

(AR 697-703).

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Dr. Rivera-Miya listed Plaintiff’s diagnoses as chronic pulmonary

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insufficiency, COPD, affective disorder, and anxiety disorder. (AR

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697).

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adjudicator/examiner V. Casison.

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Plaintiff did not assert psychological impairments at the initial

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application level.

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later alleged anxiety and depression regarding his health and

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stamina.

Dr. Rivera-Miya agreed with a recommendation by disability

(Id.).

(Id.).

Casison stated that

However, Casison noted that Plaintiff

(Id.).

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Casison noted that Plaintiff had mild limitations from his

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mental health conditions.

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activities of daily living were adequate with no limitations in

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social functioning.

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not

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concluded that these findings suggest Plaintiff’s mental health

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conditions are not severe.

taking

any

(Id.)

(Id.).

Casison noted that Plaintiff’s

Casison commented that Plaintiff is

psychological

medications.

(Id.).

Casison

(Id.).

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Dr. Rivera-Miya commented that the “evidence does not support
ongoing severe psych limitations.
9

Benign findings on exam and

1

[activities of daily living] are functional.

2

Psych is nonsevere.”

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Miya determined that Plaintiff had no restriction in activities of

4

daily living and maintaining social functioning, but he had mild

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difficulties in maintaining concentration, persistence or pace and

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one or two episodes of decompensation.

No recent psych tx.

(Id.) (emphasis in original).

Dr. Rivera-

(Id.).

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8
9

Dr. Rivera-Miya determined that Dr. Cross’s opinion about
Plaintiff’s limitations was more restrictive than her own.

(AR

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701)

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inconsistencies, rendering it less persuasive.”

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that “[t]he opinion is without substantial support from other

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evidence of record, which renders it less persuasive.”

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also commented that Dr. Cross’s opinion “is an overestimate of the

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severity of the individual’s restrictions/limitations and based

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only on a snapshot of the individual’s functioning.”

Dr. Rivera-Miya noted that Dr. Cross’s opinion “contains
(Id.).

She stated

(Id.).

She

(Id.).

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D.

Vocational Expert Testimony

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Vocational

Expert

(“VE”)

Sandra

Fioretti

testified

at

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Plaintiff’s hearing before the ALJ. (AR 656-659). The VE testified

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that she would classify Plaintiff’s previous work as a hotel clerk

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as light3, semiskilled.

(AR 656).

She testified that his previous

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“Light work. Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up
to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you must have
3

10

1

work cleaning at the hotel classified as light, unskilled work.

2

(AR 657).

3

classified as light, semiskilled.

She stated that his previous work as a sales clerk
(Id.).

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5

The ALJ asked the VE to consider a series of factors in

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creating three hypotheticals for determining Plaintiff’s ability

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to work.

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same age and with the same education and work experience as

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Plaintiff.

The ALJ’s first hypothetical included an individual the

(AR 657).

The hypothetical included an individual with

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certain postural and environmental limitations.

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VE testified that an individual with the described limitations

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could perform work as a sales clerk or hotel clerk as it’s done in

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the national economy.

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individual could not perform the work as Plaintiff previously

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performed it because they could not clean with the described

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limitations.

(AR 658).

(AR 657-658).

The

However, the VE testified, the

(Id.)

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18

The ALJ’s second hypothetical included all the limitations

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described in the first hypothetical, however the individual was

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further limited to simple, repetitive tasks.

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testified that an individual with these hypothetical limitations

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could not do Plaintiff’s past work or work as a sales clerk or

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hotel clerk.

(Id.).

The VE

(Id.).

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the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.”
20 C.F.R. § 404.1567 (b).
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1

The ALJ’s third hypothetical included an individual with more

2

restrictive postural limitations than the first two hypotheticals.

3

(AR 659).

4

not do any of Plaintiff’s past work.

The VE testified that this hypothetical individual could
(Id.).

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6

IV.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

8
9

To

qualify

for

disability

benefits,

a

claimant

must

10

demonstrate a medically determinable physical or mental impairment

11

that prevents her from engaging in substantial gainful activity

12

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

13

period of at least twelve months.

14

721

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impairment must render the claimant incapable of performing the

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work she previously performed and incapable of performing any other

17

substantial gainful employment that exists in the national economy.

18

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42

19

U.S.C. § 423(d)(2)(A)).

(9th

Cir.

1998)

(citing

42

Reddick v. Chater, 157 F.3d 715,
U.S.C.

§ 423(d)(1)(A)).

The

20
21
22

To decide if a claimant is entitled to benefits, an ALJ
conducts a five-step inquiry:

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24

(1)

Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is found not
disabled. If not, proceed to step two.

(2)

Is the claimant’s impairment severe? If not, the
claimant is found not disabled. If so, proceed to
step three.

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26
27
28

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(3)

Does the claimant’s impairment meet or equal one of
the specific impairments described in 20 C.F.R.
Part 404, Subpart P, Appendix 1?
If so, the
claimant is found disabled.
If not, proceed to
step four.

(4)

Is the claimant capable of performing his past
work? If so, the claimant is found not disabled.
If not, proceed to step five.

(5)

1

Is the claimant able to do any other work? If not,
the claimant is found disabled. If so, the claimant
is found not disabled.

2
3
4
5
6
7
8
9

See

20

C.F.R.

10

Massanari,

11

§§

404.1520,

416.920;

see

also

Bustamante

v.

omitted).

262

F.3d

949,

953-54

(9th

Cir.

2001)

(citations

12
13

In between steps three and four, the ALJ must determine the

14

claimant’s

residual

15

416.920(e).

To determine the claimant’s RFC, the ALJ must consider

16

all of the claimant’s impairments, including impairments that are

17

not severe.

functional

capacity

(“RFC”).

20

CFR

20 CFR § 416.1545(a)(2).

18
19

The claimant has the burden of proof at steps one through

20

four, and the Commissioner has the burden of proof at step five.

21

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

22

affirmative duty to assist the claimant in developing the record

23

at every step of the inquiry.”

24

claimant meets her burden of establishing an inability to perform

25

past work, the Commissioner must show that the claimant can perform

26

some

27

national economy, taking into account the claimant’s RFC, age,

28

education, and work experience.

other

work

that

exists

“Additionally, the ALJ has an

Id. at 954.

in

If, at step four, the

“significant

numbers”

in

the

Tackett, 180 F.3d at 1098, 1100;
13

1

Reddick,

2

416.920(g)(1).

3

vocational

4

Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2

5

(commonly known as “the Grids”).

6

1157, 1162 (9th Cir. 2001).

7

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

8

inapplicable and the ALJ must take the testimony of a vocational

9

expert.

10

157

F.3d

at

721;

20

C.F.R.

§§

404.1520(g)(1),

The Commissioner may do so by the testimony of a

expert

or

by

reference

to

the

Medical-Vocational

Osenbrock v. Apfel, 240 F.3d

When a claimant has both exertional

Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing

Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

11
12

V.

13

THE ALJ’S DECISION

14
15

The ALJ employed the five-step sequential evaluation process

16

and concluded that Plaintiff is not disabled within the meaning of

17

the Social Security Act.

18

that Plaintiff met the insured status requirements of the Social

19

Security Act through March 31, 2014, and that Plaintiff had not

20

engaged in substantial gainful activity since December 7, 2011,

21

the alleged disability onset date.

22

ALJ found that Plaintiff’s severe impairments were COPD with a

23

history of pulmonary emboli and cellulitis of the left ankle.

24

615). The ALJ found that Plaintiff’s medically determinable mental

25

impairment of dysthymia was not severe.

(AR 622).

At step one, the ALJ observed

(AR 614).

At step two, the

(AR

(Id.).

26
27
28

In

making

functional

this

areas

set

finding,
out

in

the

ALJ

the

disability

14

considered

four

broad

regulations

for

1

evaluating mental disorders and in section 12.00C of the Listing

2

of Impairments, known as the “paragraph B” criteria. See 20 C.F.R.,

3

Part 404, Subpart P, Appendix 1.

4

include

5

concentration,

persistence,

6

decompensation.

(AR 615-16).

a

claimant’s

daily

The “paragraph B” criteria

activities;
or

social

pace;

and

functioning;
episodes

of

7
8
9

The ALJ found that Plaintiff did not meet any of the “paragraph
B” criteria.

(AR 615-16).

The ALJ determined that “[Plaintiff]

10

has no limitation [regarding his daily activities],” because he

11

lives alone and “is able to maintain his grooming and hygiene, take

12

public

13

errands, and perform household chores.”

14

Plaintiff testified that “he is able to assist with simple chores

15

and paper work at a hotel.”

transportation,

manage

his

finances,

cook,

(AR 615).

shop,

run

Moreover,

(Id.).

16
17

The ALJ found that Plaintiff has no limitation in the area of

18

social functioning.

19

“reported that his relationships with family and friends are good

20

and that he is able to go out alone.”

21

Plaintiff has a mild limitation in the area of concentration,

22

persistence, and pace.

23

“[d]espite

24

admitted that he is able to focus attention.”

25

the ALJ noted that a “mental status examination revealed he was

26

alert and oriented to time, place, person, and purpose; able to

27

repeat four digits forward and backward; he was able to recall

28

three items immediately and after five minutes; he was able to

(Id.).

(Id.).

[Plaintiff’s]

The ALJ observed that Plaintiff

(Id.).

The ALJ found that

Specifically, the ALJ found that

complaints

15

of

poor

concentration,

(AR 615).

he

Moreover,

1

perform simple math; he was able to perform serial threes; and he

2

was able to follow a conversation.”

3

Plaintiff was unable to perform serial sevens or do alpha-numeric

4

reasoning.

5

has mild limitations in this functional area.

(AR 616).

(AR 615-16).

However,

Accordingly, the ALJ found that Plaintiff

6
7

Lastly,

the

ALJ

found

that

Plaintiff

had

experienced

no

8

episodes of decompensation of extended duration.

9

the ALJ determined that, because Plaintiff’s medically determinable

10

mental impairment causes no more than “mild” limitations in any of

11

the

12

decompensation of extended duration in the fourth area, it is non-

13

severe. (Id.).

14

complaints

15

specialized mental health treatment since 1989.”

first

three

of

functional

areas

and

(Id.).

“no”

Thus,

episodes

of

The ALJ also noted that, despite Plaintiff’s
poor

concentration,

he

“has

not

received

any

(Id.).

16
17

In making this determination, the ALJ gave “little weight” to

18

Dr. Cross’s opinion.

19

opinion was based on a one-time examination of Plaintiff rather

20

than on a longitudinal treatment history.

21

the minimal objective findings from Dr. Cross’s examination were

22

not consistent with her own opinion.

23

that

24

medical evidence and the record as a whole, “which revealed that

25

[Plaintiff] has not sought specialized mental health treatment

26

since 1989.”

Dr.

Cross’s

(Id.).

opinion

was

The ALJ reasoned that Dr. Cross’s

(Id.).

inconsistent

(Id.).

27
28
16

(Id.)

Additionally,

The ALJ also noted
with

the

objective

1

By contrast, the ALJ gave “significant weight” to the opinion

2

of the State agency psychological consultant that Plaintiff has no

3

severe mental impairment.

4

agency consultant’s opinion was “reasonable and consistent with

5

the objective medical evidence.”

6

there were “minimal clinical findings to support the degree of

7

limitation alleged by the [plaintiff].”

8

consultant’s “determination is consistent with the lack of any

9

regular mental health treatment.”

(Id.).

The ALJ reasoned that the State

(Id.).

The ALJ commented that

(Id.).

Moreover, the

(Id.).

10
11

At step three, the ALJ found that Plaintiff does not have an

12

impairment or combination of impairments that meets or medically

13

equals one of the listed impairments in 20 C.F.R. Part 404, Subpart

14

Part P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

15

416.920(d), 416.925-26).

(AR 617).

16
17

The ALJ then found that Plaintiff had the following RFC:

18
19
20
21
22
23
24

[C]laimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he can lift and/or carry 20 pounds
occasionally and 10 pounds frequently; he can stand
and/or walk for six hours in an eight-hour workday with
customary breaks; he is precluded from climbing ladders,
ropes, or scaffolds; he can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; and he
should avoid even moderate exposure to fumes, odors,
dusts, gases, and poor ventilation.

25
26

(AR 617).

27
28
17

1

In arriving at his conclusion, the ALJ found that Plaintiff’s

2

testimony regarding the intensity, persistence, and limiting effect

3

of his symptoms was “less than fully credible.”

4

stated that: (1) Plaintiff’s daily activities and interactions

5

undermined his allegations of disabling functional limitations; (2)

6

Plaintiff failed to follow treatment recommendations; (3) Plaintiff

7

was not taking medications for his respiratory conditions and

8

denied seeing a doctor in recent months; (4) although Plaintiff

9

alleges

difficulty

concentrating,

Plaintiff

(AR 619).

did

not

The ALJ

exhibit

10

difficulty concentrating while at the hearing; (5) Plaintiff was

11

jailed for committing a crime of moral turpitude, which placed

12

doubt on the veracity of his allegations; (6) Plaintiff made

13

inconsistent statements regarding matters relevant to disability;

14

and (7) the record does not list restrictions recommended by a

15

treating physician.

(AR 619-20).

16
17

The ALJ noted, “[a]lthough the medical evidence of record

18

reveals that the [plaintiff] has a history of alcohol and cannabis

19

abuse, there is no credible evidence that this abuse prevented him

20

from being able to perform work activities on a regular and

21

continuing basis.”

22

alcohol abuse was not a contributing factor material to the issue

23

of disability.

(AR 620).

The ALJ concluded that Plaintiff’s

(Id.).

24
25

At step four, the ALJ determined that Plaintiff could perform

26

his past relevant work as a sales clerk and hotel clerk.

27

Therefore, the ALJ concluded, Plaintiff is not disabled, as defined

28
18

(AR 621).

1

by

2

416.920(f)).

the

Social

Security

Act

(20

C.F.R.

§§

404.1520(f)

and

(AR 621-22).

3
4
5

VI.

6

STANDARD OF REVIEW

7
8
9

Under 42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits.

“The court may set aside

10

the Commissioner’s decision when the ALJ’s findings are based on

11

legal error or are not supported by substantial evidence in the

12

record as a whole.”

13

(9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen v.

14

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

15

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

Auckland v. Massanari, 257 F.3d 1033, 1035

16
17

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

18

a preponderance.”

19

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

20

evidence which a reasonable person might accept as adequate to

21

support a conclusion.”

22

Smolen, 80 F.3d at 1279). To determine whether substantial evidence

23

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

24

whole, weighing both evidence that supports and evidence that

25

detracts from the [Commissioner’s] conclusion.’”

26

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

27

1993)).

28

or reversing that conclusion, the court may not substitute its

Reddick, 157 F.3d at 720 (citing Jamerson v.
It is “relevant

Id. (citing Jamerson, 112 F.3d at 1066;

Auckland, 257

If the evidence can reasonably support either affirming

19

1

judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21

2

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

3

1457 (9th Cir. 1995)).

4
5

VII.

6

DISCUSSION

7
8
9
10

Plaintiff

contends

that

the

ALJ

consultative examiner Dr. Cross’s opinion.

erred

in

rejecting

(Memorandum in Support

of Plaintiff’s Complaint (“Pl. MSO”) at 5-11).

11
12

The Court disagrees.

The record demonstrates that the ALJ

13

gave proper weight to Dr. Cross’s opinion.

14

reasons discussed below, the Court finds that the ALJ’s decision

15

must be AFFIRMED.

Accordingly, for the

16
17
18

A. The

ALJ’s

Findings

Regarding

Plaintiff’s

Alleged

Mental

Impairment Do Not Require Remand

19
20
21
22
23
24
25
26

As a threshold matter, the ALJ’s finding that Plaintiff’s
mental impairment is non-severe does not warrant remand.

Plaintiff

fails to directly raise this issue in his Memorandum in Support of
the Complaint.

Rather, Plaintiff’s only claim is that “[w]here

the ALJ fails to give specific and legitimate reasons for rejecting
the opinions of the consultative psychologist, the court should
reverse and remand.”

(Pl. MSO at 5).

27
28
20

1

Thus, any argument that the ALJ erred in finding Plaintiff’s

2

alleged mental impairment non-severe is waived for failure to

3

properly raise the issue.

4

1158 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001) (finding

5

that claims raised by Appellant for the first time on appeal—

6

including challenges to the ALJ's rejection of subjective testimony

7

and conclusory Step 3 equivalence finding—were waived); see also

8

Hilfinger-Dowell ex rel. Dowell v. Astrue, 232 F. App'x 744, 746

9

(9th Cir. 2007) (finding that Appellant waived arguments regarding

10

ALJ's credibility determinations and residual functional capacity

11

assessment by failing to raise them in the district court).

See Edlund v. Massanari, 253 F.3d 1152,

12
13

Even had Plaintiff raised this issue, the ALJ did not err in

14

finding Plaintiff’s mental impairment to be non-severe.

15

testified that he currently performs hotel work in exchange for a

16

place to stay. (AR 648).

17

he mainly works at the front desk, checking people in and out.

18

(Id.).

19

of cleaning, including wiping down the counters and sweeping.

20

(Id.).

21

room when his employer needs him.

Plaintiff

Specifically, Plaintiff testified that

He also does paperwork.

(Id.).

He also does a little bit

Plaintiff testified that he returns to the office from his
(AR 655).

22
23

Thus, findings of both the VE and ALJ that Plaintiff has the

24

mental capacity to perform his past work at a hotel are supported

25

by

26

alleged

27

functioning in an employment setting.

He is able to perform work

28

and interact with a supervisory figure.

Additionally, results from

substantial

evidence

psychological

in

the

record.

impairments

21

do

Clearly,
not

prevent

Plaintiff’s
him

from

1

Plaintiff’s consultative examination indicate that he can focus

2

attention.

(AR

3

decisions.

(Id.).

4

unimpaired in his ability to associate with day-to-day work, to

5

accept

6

activities without special or additional supervision.

995).

instructions

Plaintiff

Results

from

also

has

no

indicate

supervisors,

and

difficulty
that

to

making

Plaintiff

perform

is

work

(AR 998).

7
8

As the ALJ stated:

9
Despite his impairments, the [plaintiff] has
engaged in a somewhat normal level of daily activity
and interaction. He admitted activities of daily
living, including maintaining his grooming and
hygiene, taking public transportation, managing his
finances, cooking, running errands, shopping,
performing household chores, and assist[ing] with
simple chores and paperwork at a hotel. [] Some
of the physical and mental abilities and social
interactions required to perform these activities
are the same as those necessary for obtaining and
maintaining employment.

10
11
12
13
14
15
16
17
18

(AR 619).

19
20

Accordingly, the evidence would support a finding of a non-

21

severe impairment at step-two.

22

part-time

23

limitations, even if accepted as true, necessarily prevent him from

24

working full-time in the same position.

at

the

hotel

where

While Plaintiff currently works
he

25
26
27
28
22

stays,

none

of

his

alleged

1
2

B. The ALJ Provided Specific And Legitimate Reasons For Rejecting
Dr. Cross’s Opinion

3
4

There are, in general, three types of medical opinions in

5

social security cases:

6

who examine and treat, (2) examining physicians who examine but do

7

not treat, and (3) non-examining physicians who neither examine

8

nor treat.

9

692 (9th Cir. 2009).

the opinions of (1) treating physicians

Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685,
Treating physicians are given the greatest

10

weight because they are “employed to cure and [have] a greater

11

opportunity to know and observe the patient as an individual.”

12

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Connett v.

13

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

14

treating physician’s opinion is refuted by another doctor, the ALJ

15

may

16

legitimate reasons supported by substantial evidence in the record.

17

Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (ALJ must

18

provide clear and convincing reasons for rejecting an unrefuted

19

treating physician’s opinions); see also Ryan v. Comm’r of Soc.

20

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

not

reject

this

opinion

without

Accordingly, where a

providing

specific

and

21
22

Similarly,

the

Commissioner

may

reject

the

controverted

23

opinion of an examining consultative physician only for “specific

24

and legitimate reasons that are supported by substantial evidence.”

25

Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1164 (9th

26

Cir. 2008) (quoting Lester, 81 F.3d at 830-31).

The opinion of a

27

non-examining,

not

28

substantial evidence that justifies rejecting the opinion of either

non-treating

physician

23

does

constitute

1

an examining or a treating physician unless it is consistent with

2

and supported by other evidence in record. Lester, 81 F.3d at 831;

3

Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600-01 (9th Cir.

4

1998);

5

opinion is with the record as a whole, the more weight we will give

6

to that opinion.”)

§

404

.1527(c)(4)

(“Generally,

the

more

consistent

an

7
8
9

Plaintiff contends that the ALJ failed to provide specific
and

legitimate

reasons

to

reject

the

opinion

of

consultative

10

examining psychologist, Dr. Cross, in favor of the State agency

11

physician’s opinion.

(Pl. MSO at 5).

12
13

Specifically, Plaintiff asserts that (1) the ALJ may not

14

reject Dr. Cross’s opinion solely because it was based on a one-

15

time encounter, rather than a longitudinal treatment history; (2)

16

the ALJ incorrectly found that the minimal objective findings from

17

Dr. Cross’s examination were not consistent with her opinion; (3)

18

the ALJ may not reject Dr. Cross’s opinion on the basis that

19

Plaintiff has not had specialized treatment since 1989 because “it

20

is

21

underreported illnesses in the country because those afflicted

22

often do not recognize that their conditions reflects a potentially

23

serious mental illness”; and (4) the “summary of the opinions of

24

Dr. Rivera-Miya included the inability to complete serial threes,

25

sevens, or do alphanumeric reasoning, or his inability to know the

26

difference of ‘up’ and ‘south’.”

common

knowledge

that

depression

27
28
24

is

one

of

(Pl. MSO at 8-10).

the

most

1
2

This Court disagrees and finds that the ALJ provided specific
and legitimate reasons for rejecting Dr. Cross’s opinion.

3
4

1. One Time Examination

5
6

Plaintiff argues that the ALJ improperly rejected Dr. Cross’s

7

opinion because it was based on a one-time examination rather than

8

a longitudinal treatment history.

9

not

10

provide

opinion.”

a

basis

for

Plaintiff argues that this “does

rejecting

the

examining

physician’s

(Pl. MSO at 8).

11
12

Plaintiff’s characterization lacks context.

The ALJ stated

13

that he afforded “little weight” to Dr. Cross’s opinion.

(AR 616).

14

In

examining

15

relationship as one of several factors.

16

(1) the fact that the minimal objective findings from Dr. Cross’s

17

examination

18

disability and (2) the fact that her opinion was inconsistent with

19

objective medical evidence and the record as a whole.

so

doing,

the

were

ALJ

considered

inconsistent

Dr.

with

Cross’s

brief

The other factors included

her

ultimate

opinion

of

20
21

Moreover, it is entirely appropriate for the ALJ to consider

22

the length of the physician-patient relationship in determining

23

how much weight to afford a physician’s opinion.

24

specifically enumerate length of relationship as one reason why

25

treating physicians are generally afforded greater weight than

26

consultative examiners.

27

more weight to medical opinions from your treating sources, since

28

these sources are likely to be … able to provide a detailed,

The Regulations

20 C.F.R. § 404.1527 (“Generally, we give

25

1

longitudinal picture of your medical impairment(s) … that cannot

2

be obtained from the objective medical findings alone or from

3

reports

4

examinations … ”).

of

individual

examinations,

such

as

consultative

5
6

Thus,

the

fact

that

Dr.

Cross

saw

Plaintiff

once

is

a

7

reasonable factor to consider in conjunction with others when

8

affording his opinion little weight.

9
10

2. Minimal Objective Findings

11
12

Plaintiff

argues

that

the

ALJ

was

erroneous

in

his

13

determination that the minimal objective findings from Dr. Cross’s

14

examination conflicted with her ultimate opinion.

15

Plaintiff argues, rather, that the objective findings support Dr.

16

Cross’s opinion.

17

fact that he did not know how “up” and “south” were the same during

18

the examination.

19

could not do alpha numeric reasoning.

(Id.).

(Id.).

(Pl. MSO at 8).

Plaintiff bolsters his argument with the

He similarly relies on the fact that he
(Id.).

20
21

Plaintiff also points to Dr. Cross’s finding that he was

22

unable to perform serial threes4 and sevens and states that the

23

“fact that Social Security in evaluating mental listings regarding

24

concentration, persistence or pace refers to the ability to sustain

25

focused attention and concentration sufficiently long to permit

26

the timely and appropriate completion of tasks commonly found in

27
28

Dr. Cross initially notes that Plaintiff could not perform
serial threes (AR 996), but later notes that he could. (AR 997).
4

26

1

work

2

evaluate a claimant lead to one reasonable conclusion – a severe

3

mental impairment exists.”

settings

utilizes

the

serials

three

and

seven

tests

to

(Pl. MSO at 8-9).

4
5

As a threshold matter, it was entirely appropriate for the

6

ALJ to consider lack of supporting objective evidence in affording

7

little weight to Dr. Cross’s opinion.

8

the objective findings noted by Plaintiff, stating that the “mental

9

status examination revealed … [that Plaintiff] was unable to do

Moreover, the ALJ considered

10

alphanumeric reasoning or serial sevens.”

11

ALJ balanced these findings with the remainder of the objective

12

evidence from Dr. Cross’s examination, stating that “[o]therwise,

13

the findings were within normal limits.”

14

concluded that “the minimal objective findings from [Dr. Cross’s]

15

examination … are not consistent with her opinion.”

(AR 616).

However, the

(AR 616).

The ALJ

(Id.).

16
17

Thus, the ALJ appropriately afforded little weight to Dr.

18

Cross’s opinion based on the fact that certain of her conclusions

19

contradicted the majority of her objective evidence.

20
21

3. No Specialized Mental Health Treatment

22
23

Plaintiff argues that it was error for the ALJ to give little

24

weight to Dr. Cross’s opinion based on the fact that Plaintiff has

25

not had specialized mental health treatment since 1989.

26

at 9). Plaintiff asserts that the “lack of mental health treatment

27

does not mean [Plaintiff] does not have a mental illness.”

28

However,

conservative

treatment
27

can

diminish

a

(Pl. MSO

(Id.).

plaintiff’s

1

credibility regarding the severity of an impairment.

2

v. Astrue, 481 F.3d 742, 750—51 (9th Cir. 2007); see also Meanel

3

v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (Claimant's “claim

4

that she experienced pain approaching the highest level imaginable

5

was inconsistent with the ‘minimal, conservative treatment’ that

6

she received.”); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th

7

Cir.1995) (ALJ properly concluded claimant's excess pain testimony

8

was not credible because, among other reasons, claimant's treating

9

physician prescribed only conservative treatment, “suggesting a

10

See Parra

lower level of both pain and functional limitation”).

11
12

Plaintiff’s specialized treatment in 1989 indicates that, at

13

a minimum, he should have been aware of specialized treatment

14

opportunities and how to gain access to them.

15

considered the fact that Plaintiff did not have financial barriers

16

to obtaining appropriate medical care.

17

is no evidence that [Plaintiff] could not have obtained low cost

18

or no cost medical care as necessary”.

19

physician noted that since [Plaintiff] was able to find cigarettes

20

and alcohol, there was no reason why he should not be able to

21

afford [treatment].” (AR 620). Thus, the ALJ reasonably concluded

22

that Plaintiff could financially access the treatment he needed

23

for his alleged impairments.

Plaintiff’s failure to seek mental-

24

health

commensurate

25

constitutes objective evidence of conservative care.

26

reasonably concluded that such evidence contradicts Dr. Cross’s

27

opinion.

treatment

that

was

28
28

Moreover, the ALJ

The ALJ noted that “there

(AR 619).

with

“[A] treating

his

complaints
The ALJ

1

Plaintiff

contends

that

depression

is

one

of

the

most

2

underreported illnesses in the country because those afflicted

3

often do not recognize that their condition reflects a potentially

4

serious mental illness.

5

fact that he did not seek treatment is not a substantial basis for

6

rejecting Dr. Cross’s assessment.

(Pl. MSO. at 9-10).

Thus, he argues, the

(Id.).

7
8
9
10
11
12
13
14
15
16
17
18

A review of the record suggests that Plaintiff’s own testimony
belies this argument.

Plaintiff testified that he has had issues

with depression since his health began to decline.

(AR 647).

However, he testified that he has not recently taken any medicine
to help with this depression.

(Id.).

He testified that in the

past he was seeing a psychiatrist and was on a “depression pill.”
(Id.). He stated that he started feeling better but stopped taking
the medicine after about six months because he did not like it.
(AR 647-648). Thus, Plaintiff admitted having access to medication
that he knew could alleviate his alleged depression.

However, he

consciously elected not to take it.

19
20
21
22
23
24
25
26
27
28

Though Plaintiff contends that under Nguyen v. Chater, 100
F.3d 1462 (9th Cir.1996), his treatment and medication history
should not be construed against him, Nguyen is distinguishable. In
Nguyen,

the

ALJ

discounted

evidence

of

depression

because

a

claimant failed to seek treatment for any mental disorder “until
late in the day,” and the Ninth Circuit found it to be unreasonable
“to chastise one with a mental impairment for the exercise of poor
judgment in seeking rehabilitation.” 100 F.3d at 1465.

Here,

Plaintiff sought treatment in the past but discontinued recommended
29

1

medications.

2

suggests that his symptoms were not as severe as alleged. Moreover,

3

the

4

Plaintiff’s departures from prescribed treatment as part of his

5

alleged underlying mental afflictions.

record

Plaintiff’s

does

not

discontinuation

afford

any

of

compelling

care

reasonably

reason

to

view

6
7

Thus,

the

record

demonstrates

that

Plaintiff

knowingly

8

shunned treatment opportunities for an allegedly debilitating

9

condition.

The ALJ reasonably concluded that Plaintiff’s failure

10

to seek mental health treatment contradicts Dr. Cross’s opinion.

11

Because the ALJ's conclusion here was reasonable, the Court should

12

not disturb it.

13

F.3d 595, 599 (9th Cir.1999) (“Where the evidence is susceptible

14

to

15

conclusion that must be upheld.”).

more

than

See Morgan v. Comm'r of Social Sec. Admin., 169

one

rational

interpretation,

it

is

the

ALJ's

16
17

4. Non-examining physician

18
19

Plaintiff

argues

that

the

ALJ

“gave

more

weight

to

the

20

opinions of Dr. Rivera-Miya … [and that] [t]he summary of [these

21

opinions] included the inability to complete serial threes, sevens,

22

or

23

difference of ‘up’ and ‘south.’”

24

appears to argue that, because Dr. Rivera-Miya acknowledged these

25

results from Dr. Cross’s examination, the ALJ should have found

26

Plaintiff disabled when affording her opinion more weight.

do

alphanumeric

reasoning,

or

27
28
30

his

inability

to

(Pl. MSO at 10).

know

the

Plaintiff

1

Plaintiff’s argument lacks merit.

After considering and

2

balancing Plaintiff’s record, including the minimal evidence that

3

supported his allegations, Dr. Rivera-Miya’s ultimate opinion was

4

that Plaintiff is not disabled.

5

afford greater weight to Dr. Rivera-Miya’s ultimate opinion.

6

Rivera-Miya’s opinion was consistent with the majority of the

7

objective medical evidence.

It was reasonable for the ALJ to
Dr.

8
9

The opinion of a non-examining physician “cannot by itself

10

constitute substantial evidence that justifies the rejection of

11

the opinion of either an examining or a treating physician.”

12

Lester,

13

physicians may serve as substantial evidence when the opinions are

14

consistent with independent clinical findings or other evidence in

15

the record of a Social Security proceeding.

16

278

17

(“Generally, the more consistent an opinion is with the record as

18

a whole, the more weight we will give to that opinion.”)

81

F.3d

F.3d

947

at

(9th

831.

Cir.

However,

2002).

opinions

See

of

non-examining

Thomas v. Barnhart,

also

§

404.1527(c)(4)

19
20

As the ALJ noted, Dr. Rivera Miya’s opinion is “reasonable

21

and consistent with the objective medical evidence.

22

minimal clinical findings to support the degree of limitations

23

alleged

24

determination is consistent with the lack of any regular mental

25

health treatment.”

by

the

[plaintiff].

Moreover,

(AR 616).

26
27
28
31

[Dr.

There are

Rivera

Miya’s]

1

VIII.

2

CONCLUSION

3
4

Accordingly, IT IS ORDERED that judgment be entered AFFIRMING

5

the decision of the Commissioner and dismissing this action with

6

prejudice.

7

serve copies of this Order and the Judgment on counsel for both

8

parties.

IT FURTHER IS ORDERED that the Clerk of the Court shall

9
10

DATED:

June 6, 2017

11
12
13

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

14
15
16
17

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

18
19
20
21
22
23
24
25
26
27
28
32