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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WILLIAM J. ADCOCK, 12 Case No. EDCV 16-1222 SS Plaintiff, 13 v. 14 NANCY A. BERRYHIL,1 Acting Commissioner of Social Security, Defendant. 15 16 MEMORANDUM DECISION AND ORDER 17 18 19 I. 20 INTRODUCTION 21 22 23 24 25 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 26 27 28 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 1 Supplemental 2 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of 3 the undersigned United States Magistrate Judge. 4 13). 5 Commissioner’s decision. For Security the Income reasons (“SSI”) stated benefits. below, the The parties (Dkt. Nos. 12- Court AFFIRMS the application for 6 7 II. 8 PROCEDURAL HISTORY 9 10 On April 16, 2012, Plaintiff filed an 11 Disability Insurance Benefits (“DIB”) and for Supplemental Security 12 Income (“SSI”). 13 alleged that he became unable to work on December 7, 2011 due to 14 emphysema, chronic obstructive pulmonary disease (“COPD”), blood 15 clots in the lungs, pneumonia, and a fungal infection. 16 853). 17 (AR 706-710). 18 application upon reconsideration. 19 Plaintiff requested a hearing before an Administrative Law Judge 20 (“ALJ”). 21 conducted a hearing to review Plaintiff’s claim. 22 September 25, 2014, the ALJ found that Plaintiff was not disabled 23 under the Social Security Act. 24 review of the ALJ’s decision before the Appeals Council. 25 Appeals Council denied Plaintiff’s application on April 8, 2016. 26 (AR 1-7). 27 the Commissioner. 28 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). 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on September 2, 1955. (AR 864). He was 56 5 years old as of the alleged disability onset date of December 7, 6 2011. He was 58 years old when he appeared before the ALJ. 7 632). Plaintiff graduated from high school and completed one year 8 of junior college. 9 clerk, hotel clerk, and security guard. (AR 632). (AR He previously worked as a sales (AR 880). 10 11 A. Plaintiff’s Testimony 12 13 Plaintiff testified that he lives by himself at the Desert 14 Lodge hotel. 15 doing “as much work to work off” the room as he can. 16 stated 17 Specifically, Plaintiff checks people in and out of the hotel. 18 650). He stands while working at the front desk. (Id.). Plaintiff 19 also sits down to do paperwork. 20 bit”, including wiping down the counter and sweeping the floor. 21 (Id.). 22 minutes. 23 (Id.). 24 8:30 to 10:30 in the morning. 25 room to rest. 26 (Id.). 27 to rest. 28 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. 2 648). (AR 3 4 Plaintiff testified that his last full-time job consisted of 5 light maintenance, cleaning, and front desk work at the Palm Grove 6 hotel. 7 came down with pneumonia and blood clots. 8 testified that he worked at the Palm Grove hotel for approximately 9 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 10 adult bookstore called Perez Images for almost nine years. 11 634). (AR 12 13 Plaintiff testified that the main reason he stopped working 14 was because of his COPD. 15 tries to do work he has to take breaks due to his breathing. (Id.). 16 Plaintiff testified that he can only walk about 50 or 60 feet 17 without stopping to rest. 18 do “minimal standing.” 19 minutes without moving if he has to. 20 testified that he can sit for “maybe two hours” at a time. 21 646-646). 22 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). 23 24 Plaintiff stated that he has had issues with depression since 25 his health began to decline. 26 not recently taken any medicines to help with his depression. 27 (Id.). 28 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.). 4 He stated that he started 1 feeling better but stopped taking the medicine after about six 2 months because he did not like it. (AR 647-648). 3 4 Plaintiff testified that his driver’s license expired a few 5 years back. 6 transportation. (AR 649). He stated that he takes the Sun bus for (Id.). 7 8 B. Consultative Examiner, Kara Cross, Ph.D., ABFE, ABPS 9 10 On April 6, 2013, consultative examiner Dr. Kara Cross, Ph.D. 11 in Clinical Psychology, performed a Complete Mental Evaluation of 12 Plaintiff. 13 psychiatric records for review. (AR 993-98). Dr. Cross noted that there were no (AR 993). 14 15 Under “Chief Complaints,” Dr. Cross commented that Plaintiff 16 stated that he “has COPD and trouble concentrating. 17 that he feels anxious about his health. 18 thinking ‘oh what if.’” He state[d] He spends a lot of time (AR 993). 19 20 Under “History of Present Illness,” Dr. Cross noted that 21 Plaintiff “had outpatient counseling services back in 1989. 22 went for two weeks and stopped. 23 in 1989 for wanting to kill himself. 24 two solid weeks. 25 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). 26 27 28 Under “Habits,” Dr. Cross noted that Plaintiff “used to smoke pot back in 1970s. He used to drink alcohol at parties but does 5 1 not use either anymore.” 2 Cross commented that Plaintiff “was arrested once for shoplifting 3 and spent one and a half days in jail.” 4 History,” Dr. Cross noted that Plaintiff worked in retail for nine 5 years and “last worked in 2009. 6 (Id.). (AR 994). Under “Legal History,” Dr. (Id.). Under “Employment He stated that he was laid off.” 7 8 9 Dr. Cross noted that Plaintiff is able to pay bills and can handle cash appropriately. (AR 995). He is able to go out alone. 10 (Id.). 11 (Id.). 12 difficulty completing household tasks. 13 difficulty making his decisions. 14 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. 16 17 18 19 20 21 22 (AR 995). 23 24 Under “Thought Processes,” Dr. Cross noted that Plaintiff was 25 coherent and organized. 26 Cross 27 (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 28 6 1 psychotic thought content. 2 paranoid ideation during the interview. 3 auditory or visual hallucinations. 4 be responding to internal stimuli during the interview.” There is no suicidal, homicidal or [Plaintiff] denies recent [Plaintiff] does not appear to (Id.). 5 6 Under “Mood and Affect,” Dr. Cross commented that “[m]ood is 7 somewhat sad and affect is a little tearful and congruent with 8 thought content. 9 [Plaintiff] denies any feeling of hopelessness, helplessness or 10 worthlessness.” [Plaintiff] is tearful. [Plaintiff] is anxious. (Id.). 11 12 Under “Speech,” Dr. Cross stated that speech was “normally 13 and 14 neologisms, tangentiality, circumstantiality or loosened, unusual 15 or blocked associations.” clearly articulated, without stammering, dysarthria, (Id.). 16 17 Dr. Cross further noted that Plaintiff was alert and oriented 18 to time, place, person, and purpose. 19 Plaintiff was able to repeat four digits forward and backward. 20 (Id.). 21 after five minutes. (Id.). 22 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.). 23 24 Under “Concentration and Calculation,” Dr. Cross stated that 25 Plaintiff “could not perform serial threes. 26 4 dollars plus 5 dollars is 9 dollars. 27 to do alpha numeric reasoning. 28 conversation [with Dr. Cross] well.” [Plaintiff] knew that [Plaintiff] was not able [Plaintiff] was able to follow [] 7 (Id.). Later, she commented 1 that Plaintiff could do serial threes but not serial sevens. 2 997). Plaintiff could say the months of the year. (AR (Id.). 3 4 Dr. Cross noted that she asked Plaintiff how an airplane and 5 helicopter are the same. 6 the sky and they fly around.” 7 how “up” and “south” are the same. (Id.). He responded, “[t]hey are up in (Id.). However, he did not know (Id.). 8 9 Dr. Cross commented that Plaintiff’s insight and judgement 10 appeared to be intact regarding his current situation. 11 Dr. Cross diagnosed Plaintiff with Dysthymia and a general anxiety 12 disorder. 13 Functioning (“GAF”) score of 60.2 14 Cross stated that “[f]rom a psychiatric standpoint, [Plaintiff’s] 15 condition is deemed fair.” (Id.). (Id.). Dr. Cross gave Plaintiff a Global Assessment (Id.). Under “Prognosis,” Dr. (Id.). 16 17 Under “Functional Assessment,” Dr. Cross stated that, based 18 on her examination, Plaintiff is able “to understand, remember, 19 and carry out simple one or two-step job instructions … [u]nable 20 to do detailed and complex instructions.” 21 he has mild impairments relating and interacting with co-workers 22 and the public. 23 impairments maintaining concentration and attention, persistence 24 and pace. 25 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 26 27 28 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). 8 1 work activities on a consistent basis. 2 is unimpaired in his ability to associate with day-to-day work, to 3 accept 4 activities without special or additional supervision. instructions from (Id.). supervisors, and She noted that he to perform work (Id.). 5 6 C. State Agency Physician, Gina Rivera-Miya, M.D. 7 8 9 On March 8, 2013, Dr. G. Rivera-Miya, M.D., Plaintiff’s record at the reconsideration stage. reviewed (AR 697-703). 10 Dr. Rivera-Miya listed Plaintiff’s diagnoses as chronic pulmonary 11 insufficiency, COPD, affective disorder, and anxiety disorder. (AR 12 697). 13 adjudicator/examiner V. Casison. 14 Plaintiff did not assert psychological impairments at the initial 15 application level. 16 later alleged anxiety and depression regarding his health and 17 stamina. Dr. Rivera-Miya agreed with a recommendation by disability (Id.). (Id.). Casison stated that However, Casison noted that Plaintiff (Id.). 18 19 Casison noted that Plaintiff had mild limitations from his 20 mental health conditions. 21 activities of daily living were adequate with no limitations in 22 social functioning. 23 not 24 concluded that these findings suggest Plaintiff’s mental health 25 conditions are not severe. taking any (Id.) (Id.). Casison noted that Plaintiff’s Casison commented that Plaintiff is psychological medications. (Id.). Casison (Id.). 26 27 28 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.” 3 Miya determined that Plaintiff had no restriction in activities of 4 daily living and maintaining social functioning, but he had mild 5 difficulties in maintaining concentration, persistence or pace and 6 one or two episodes of decompensation. No recent psych tx. (Id.) (emphasis in original). Dr. Rivera- (Id.). 7 8 9 Dr. Rivera-Miya determined that Dr. Cross’s opinion about Plaintiff’s limitations was more restrictive than her own. (AR 10 701) 11 inconsistencies, rendering it less persuasive.” 12 that “[t]he opinion is without substantial support from other 13 evidence of record, which renders it less persuasive.” 14 also commented that Dr. Cross’s opinion “is an overestimate of the 15 severity of the individual’s restrictions/limitations and based 16 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.). 17 18 D. Vocational Expert Testimony 19 20 Vocational Expert (“VE”) Sandra Fioretti testified at 21 Plaintiff’s hearing before the ALJ. (AR 656-659). The VE testified 22 that she would classify Plaintiff’s previous work as a hotel clerk 23 as light3, semiskilled. (AR 656). She testified that his previous 24 25 26 27 28 “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.). 4 5 The ALJ asked the VE to consider a series of factors in 6 creating three hypotheticals for determining Plaintiff’s ability 7 to work. 8 same age and with the same education and work experience as 9 Plaintiff. The ALJ’s first hypothetical included an individual the (AR 657). The hypothetical included an individual with 10 certain postural and environmental limitations. 11 VE testified that an individual with the described limitations 12 could perform work as a sales clerk or hotel clerk as it’s done in 13 the national economy. 14 individual could not perform the work as Plaintiff previously 15 performed it because they could not clean with the described 16 limitations. (AR 658). (AR 657-658). The However, the VE testified, the (Id.) 17 18 The ALJ’s second hypothetical included all the limitations 19 described in the first hypothetical, however the individual was 20 further limited to simple, repetitive tasks. 21 testified that an individual with these hypothetical limitations 22 could not do Plaintiff’s past work or work as a sales clerk or 23 hotel clerk. (Id.). The VE (Id.). 24 25 26 27 28 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). 11 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.). 5 6 IV. 7 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 15 impairment must render the claimant incapable of performing the 16 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: 23 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. 25 26 27 28 12 (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

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