Marc Abbink v. Carolyn W. Colvin

Filing 22

MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARC ABBINK,
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,

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Defendant.

) Case No. SACV 16-0324-JPR
)
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) MEMORANDUM DECISION AND ORDER
) AFFIRMING COMMISSIONER
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I.

PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision

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denying his applications for Social Security disability insurance

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benefits (“DIB”) and supplemental security income benefits

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(“SSI”).

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undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).

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matter is before the Court on the parties’ Joint Stipulation,

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filed November 3, 2016, which the Court has taken under

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submission without oral argument.

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the Commissioner’s decision is affirmed.

The parties consented to the jurisdiction of the

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The

For the reasons stated below,

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II.

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BACKGROUND
Plaintiff was born in 1962.

(Administrative Record (“AR”)

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168.)

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an architectural draftsman, general laborer, and tutor (AR 220).

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On January 17, 2013, Plaintiff filed an application for DIB

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and on January 22 he filed one for SSI, alleging in each that he

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had been unable to work since December 30, 2012 (AR 168, 170),

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because of a head injury, physical limitations, anxiety,

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arthritis, and diabetes (AR 218).

He completed two years of college (AR 219) and worked as

After his applications were

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denied initially and on reconsideration (AR 73-74, 105-06), he

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requested a hearing before an Administrative Law Judge (AR 127).

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A hearing was held on September 21, 2015, at which Plaintiff, who

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was represented by counsel, testified, as did a vocational

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expert.

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2015, the ALJ found Plaintiff not disabled.

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Plaintiff requested review from the Appeals Council, and on

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January 28, 2016, it denied review.

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followed.

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III. STANDARD OF REVIEW

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(AR 33-48.)

In a written decision issued October 27,
(AR 16-32.)

(AR 1-6.)

This action

Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits.

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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.

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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra

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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
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The ALJ’s findings and

Substantial

Richardson, 402 U.S. at

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It is more than a scintilla but less than a preponderance.

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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substantial evidence supports a finding, the reviewing court

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“must review the administrative record as a whole, weighing both

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1996).

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either affirming or reversing,” the reviewing court “may not

To determine whether

Reddick v. Chater, 157 F.3d 715,

“If the evidence can reasonably support

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substitute its judgment” for the Commissioner’s.

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IV.

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to

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last, for a continuous period of at least 12 months.

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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

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1992).

42 U.S.C.

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A.

The Five-Step Evaluation Process

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The ALJ follows a five-step sequential evaluation process to

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assess whether a claimant is disabled.

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§§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821,

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828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996).

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step, the Commissioner must determine whether the claimant is

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currently engaged in substantial gainful activity; if so, the

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claimant is not disabled and the claim must be denied.

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§§ 404.1520(a)(4)(I), 416.920(a)(4)(I).

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20 C.F.R.

In the first

If the claimant is not engaged in substantial gainful
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activity, the second step requires the Commissioner to determine

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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting his ability to do basic work

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activities; if not, the claimant is not disabled and his claim

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must be denied.

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§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

If the claimant has a “severe” impairment or combination of

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments set

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forth at 20 C.F.R. part 404, subpart P, appendix 1; if so,

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disability is conclusively presumed.

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416.920(a)(4)(iii).

§§ 404.1520(a)(4)(iii),

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If the claimant’s impairment or combination of impairments

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does not meet or equal an impairment in the Listing, the fourth

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)1 to perform

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his past work; if so, he is not disabled and the claim must be

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denied.

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has the burden of proving he is unable to perform past relevant

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work.

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burden, a prima facie case of disability is established.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

Drouin, 966 F.2d at 1257.

The claimant

If the claimant meets that
Id.

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If that happens or if the claimant has no past relevant

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work, the Commissioner then bears the burden of establishing that

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the claimant is not disabled because he can perform other

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substantial gainful work available in the national economy.

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. §§ 404.1545, 416.945; see Cooper
v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
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§§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257.

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That determination comprises the fifth and final step in the

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sequential analysis.

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Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v);

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B.

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At step one, the ALJ found that Plaintiff had not engaged in

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substantial gainful activity since December 30, 2012, the alleged

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onset date.

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had severe impairments of “status post remote motorcycle accident

The ALJ’s Application of the Five-Step Process

(AR 21.)

At step two, he concluded that Plaintiff

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in 1980; status post remote cardiac arrest; status post fracture

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and reconstructive surgery of right tibia; and anxiety

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disorders.”

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impairments did not meet or equal a listing.

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(Id.)

At step three, he determined that Plaintiff’s
(AR 23.)

At step four, the ALJ found that Plaintiff had the RFC to

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perform medium work, was able to lift and carry 25 pounds

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frequently and 50 pounds occasionally, could sit and stand about

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six hours in an eight-hour workday, and could perform “no greater

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than simple routine tasks” with “no more than occasional contact

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with the public and coworkers.”

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(AR 24.)

Based on the VE’s testimony, the ALJ concluded that

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Plaintiff could not perform his past relevant work.

(AR 26.)

At

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step five, he relied on the VE’s testimony to find that given

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Plaintiff’s RFC for medium work “impeded by additional

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limitations,” he could perform two “representative” medium,

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unskilled occupations in the national economy: (1) “dishwasher,”2

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Although the VE and the ALJ both used the job title
“dishwasher,” the DOT number provided by the VE and repeated by
the ALJ corresponds to the job of “kitchen helper,” which is a
medium, unskilled position.
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DOT 318.687-010, 1991 WL 672755, and (2) “hand packager,” DOT

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920.587-018, 1991 WL 687916.

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Plaintiff not disabled.

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V.

(AR 26-27.)

Accordingly, he found

(AR 27.)

DISCUSSION

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Plaintiff argues that the ALJ erred in (1) considering and

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evaluating the opinion of Dr. Jason B. Miller and (2) assessing

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Plaintiff’s credibility.

(See J. Stip. at 3.)

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A.

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Plaintiff contends that the ALJ failed to properly consider

The ALJ Properly Assessed the Medical Evidence

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and evaluate Dr. Miller’s medical opinion, including that

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Plaintiff would be “off task 30% or more of the time.”

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3-7.)

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on this ground.

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(Id. at

For the reasons discussed below, remand is not warranted

1.

Applicable law

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Three types of physicians may offer opinions in Social

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Security cases: (1) those who directly treated the plaintiff, (2)

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those who examined but did not treat the plaintiff, and (3) those

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who did neither.

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opinion is generally entitled to more weight than an examining

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physician’s, and an examining physician’s opinion is generally

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entitled to more weight than a nonexamining physician’s.

Lester, 81 F.3d at 830.

A treating physician’s

Id.

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This is so because treating physicians are employed to cure

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and have a greater opportunity to know and observe the claimant.

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Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

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treating physician’s opinion is well supported by medically

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acceptable clinical and laboratory diagnostic techniques and is

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not inconsistent with the other substantial evidence in the

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record, it should be given controlling weight.
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If a

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§§ 404.1527(c)(2), 416.927(c)(2).

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opinion is not given controlling weight, its weight is determined

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by length of the treatment relationship, frequency of

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examination, nature and extent of the treatment relationship,

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amount of evidence supporting the opinion, consistency with the

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record as a whole, the doctor’s area of specialization, and other

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factors.

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If a treating physician’s

§§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).

When a treating physician’s opinion is not contradicted by
other evidence in the record, it may be rejected only for “clear

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and convincing” reasons.

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Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81

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F.3d at 830-31).

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only “specific and legitimate reasons” for discounting it.

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(citing Lester, 81 F.3d at 830-31).

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not accept the opinion of any physician, including a treating

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physician, if that opinion is brief, conclusory, and inadequately

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supported by clinical findings.”

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947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. Sec.

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Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).

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2.

See Carmickle v. Comm’r, Soc. Sec.

When it is contradicted, the ALJ must provide
Id.

Furthermore, “[t]he ALJ need

Thomas v. Barnhart, 278 F.3d

Relevant background

Plaintiff severely injured his head, brain stem, and tibia

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in a motorcycle accident in 1980.

(AR 261.)

From 2006 to 2010,

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he was evaluated and treated by Dr. James S. Sands.

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99, 449-54.)

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depression.

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complained of an earlier anxiety attack but was noted to be

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“doing well on meds.”

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was referred to Dr. Aimee David for treatment and counseling.

(See AR 368-

In 2007, Dr. Sands diagnosed anxiety and
(AR 449, 451.)

On July 22, 2010, Plaintiff

(AR 368.)

On January 1, 2013, Plaintiff

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(AR 410.)

In 2013, Dr. David noted that Plaintiff complained of

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stress and anxiety, wanted to finish an architect degree, was

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completing training classes, and was taking Paxil.3

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On February 18, 2013, Plaintiff reported to a doctor that he

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“desire[d] to be placed on disability” and noted that he had

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stopped taking his medications.

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reported to Dr. David that although he felt “overwhelmed,” his

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anxiety was “not bad” and he was a “pretty happy guy.”

(AR 408.)

(AR 402-04.)

On April 8, 2013, he

(AR 570.)

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On May 23, 2013, state consulting psychologist Sonia G.

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Martin completed a psychological examination and evaluation.

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426-30.)

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stem injury in 1980 and that he was taking Paxil, metformin, and

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simvastatin.4

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and attention span, “average” intellectual functioning, and

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“intact” insight and judgment.

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Plaintiff with anxiety disorder and assigned him a global

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assessment of functioning (“GAF”) score of 70.5

(AR

Dr. Martin noted Plaintiff’s history of head and brain-

(AR 427.)

Plaintiff showed “good” concentration

(AR 428.)

Dr. Martin diagnosed

(AR 429.)

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3

Paxil is a selective serotonin reuptake inhibitor used to
treat depression and other conditions. Paroxetine, MedlinePlus,
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a698032.html
(last updated Nov. 15, 2014).

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4

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Metformin is used to treat diabetes. Metformin,
MedlinePlus, https://medlineplus.gov/druginfo/meds/a696005.html
(last updated Apr. 15, 2016). Simvastatin is used to reduce
cholesterol. Simvastatin, MedlinePlus, https://medlineplus.gov/
druginfo/meds/a692030.html (last updated Sept. 15, 2014).
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GAF scores assess a person’s overall psychological
functioning on a scale of 1 to 100. See Diagnostic and
Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000).
A GAF score of 61 to 70 indicates “some mild symptoms (e.g.,
depressed mood and mild insomnia) OR some difficulty in social,
occupational, or school functioning . . . but generally
functioning pretty well, has some meaningful interpersonal
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Plaintiff was “unimpaired” in his ability to follow simple — and

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complex or detailed — instructions; maintain adequate pace or

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persistence to perform one- or two-step simple repetitive tasks

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or complex tasks; maintain adequate attention or concentration;

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adapt to changes in job routine; and interact appropriately with

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coworkers, supervisors, and the public on a regular basis.

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430).

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stress of a routine workday and adapt to the changes, hazards,

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and stressors in a workplace setting.

(AR

He had mild impairment in his ability to withstand the

(Id.)

His prognosis was

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“good with comprehensive mental health services to address his

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anxiety.”

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(Id.)

On June 18, 2013, state-agency medical consultant Dr. Dan

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Funkenstein6 completed the psychiatric portion of the disability

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determination for Plaintiff’s SSI and DIB claims.

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72.)

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limitations” in his mental functioning (AR 54, 66); no

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restrictions in his activities of daily living; no difficulty

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maintaining social functioning; and “mild” difficulty maintaining

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concentration, persistence, or pace (AR 55, 67).

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2013, state-agency medical consultant Dr. Richard Kaspar7

(AR 49-60, 61-

Dr. Funkenstein found that Plaintiff had “mild to no

On December 22,

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relationships.” DSM-IV 34. GAF scores have been excluded from
the latest edition of DSM because of concerns about their
reliability and lack of clarity, however. See DSM-V 15-16 (5th
ed. 2013).
6

Dr. Funkenstein’s signature line includes a medicalconsultant code of “20,” indicating “[n]eurology” (AR 54); see
Program Operations Manual System (POMS) DI 24501.004, U.S. Soc.
Sec. Admin. (May 5, 2015), https://secure.ssa.gov/poms.nsf/lnx/
0424501004.

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Dr. Kaspar’s signature line includes a medical-consultant
code of “38,” indicating “[p]sychology” (AR 82); see POMS DI
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completed the psychiatric portion of the disability determination

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for Plaintiff’s SSI and DIB claims on reconsideration.

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89, 90-104.)

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(AR 81-82, 96-97.)

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(AR 75-

Dr. Kaspar confirmed Dr. Funkenstein’s assessment.

Plaintiff reported symptoms of anxiety to various healthcare

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professionals in 2014; his symptoms waxed and waned.

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AR 512 (Sept. 4, 2014: “I’m so anxious.

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(Sept. 11, 2014: feeling “much better . . . less anxious and on

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edge”; reported exercising and interacting socially with others),

(See, e.g.,

It’s debilitating”), 510

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495 (Oct. 10, 2014: reporting symptoms of anxiety).)

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6, 2014, Plaintiff stated that he “just want[ed] to kick back and

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be happy” and was “[h]oping to get SSI” because he “does not feel

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able to look for or maintain a new job,” but he was “heading out

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after [the] appointment to help a friend paint her kitchen” and

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had slept “12 straight hours after doing physical labor with [a]

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friend.”

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his ex-wife had recently died and that he “can’t control [his]

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emotions.”

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normal given [the] situation”8 and that he otherwise reported

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“good sleep and more stabilization of his mood overall with the

(AR 493.)

On November

On December 4, 2014, Plaintiff reported that

(AR 491.)

Dr. David noted that his “grief appear[ed]

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24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), https://
secure.ssa.gov/poms.nsf/lnx/0424501004.
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Indeed, Plaintiff’s anxiety apparently increased in
response to normal stressors, such as visits with his parents.
(See, e.g., AR 513 (Sept. 4, 2014: Dr. David noting “[v]isit with
father triggered past memories and poor emotional presence and
support from father”), 704 (June 18, 2015: Dr. David noting
Plaintiff’s “increased irritability” when his mother was
visiting).) At other times his symptoms were well controlled.
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use of citalopram.”9

(Id.)

On November 3, 2014, Plaintiff was evaluated by therapist

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Tanya White at a behavioral health center.

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Plaintiff was apparently advised to go to the center by his

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attorney, following the initial denials of his SSI and DIB

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claims.

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symptoms as “moderate[ly]” severe mood, anxiety, attention, and

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conduct problems.

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atorvastatin,10 citalopram, and metformin; he found all three

(AR 2384.)

(See AR 2383-405.)

White described Plaintiff’s self-reported

(AR 2384-85.)

Plaintiff was taking

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drugs “helpful.”

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was alert, oriented, and cooperative and had intact concentration

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and appropriate attention and judgment.

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diagnosed “Depressive Disorder” and a “moderate” occupational

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impairment, noting that Plaintiff had “impulsively said

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inappropriate statements to his employers that has led to his

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being fired from multiple jobs.”

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significant impairment or “probability of deterioration” in “an

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important area of life functioning.”

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that Plaintiff had been working part time for the past three

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years as an extra in movies.

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eight jobs since 2002 but “was not fired for his behavior at

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work” but because “the economy was changing.”

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that Plaintiff “does not meet criteria for [behavioral health]

(AR 2401.)

In a mental-status exam, Plaintiff

(AR 2394.)

(AR 2395-96.)

(AR 2397.)

(AR 2403.)

White

She found no

White noted

He had been fired from

(Id.)

White found

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Citalopram is used to treat depression and social phobia.
Citalopram, MedlinePlus, https://medlineplus.gov/druginfo/meds/
a699001.html (last updated Nov. 15, 2014).
10

Atorvastatin is used to reduce the risk of heart attack
and stroke. Atorvastatin, MedlinePlus, https://medlineplus.gov/
druginfo/meds/a600045.html (last updated Aug. 15, 2015).
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services” and discharged him because of “No Medical Necessity.”

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(AR 2390.)

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On December 18, 2014, Plaintiff remarked to Dr. David that

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he was “feeling good” and “happier now than [he] ever was

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before.”

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psychologist who apparently first saw Plaintiff on December 19,

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2014, interviewed him and administered a series of

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neuropsychological tests.

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Miller completed a “Neuropsychological Assessment” form (AR 656-

(AR 489.)

On January 7, 2015, Dr. Miller, a clinical

(AR 656, 667.)

On January 26, Dr.

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65) and a “Medical Source Statement of Ability to do Work Related

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Activities” (AR 667-69), both apparently based on the January 7

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visit.

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Plaintiff was friendly, cooperative, and attentive during

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the testing.

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articulation defect and mild disinhibition, Plaintiff showed no

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negative cognitive, language, psychotic, emotional, or physical

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symptoms.

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“sometimes impulsive, angry, and resentful,” and “his ability to

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concentrate and attend” were likely to be “significantly

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compromised” because he was “plagued by worry.”

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“memory, language, calculation, construction, sensorimotor

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skills, learning, attention, adaptive behavior and social

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cognition remained within normal limits, with only relative

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weaknesses in verbal memory and visual-motor speed.”

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He may “sometimes evidence confusion, distractibility, and

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difficulty concentrating.”

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being friendly . . . to hostility, poorly controlled anger, and

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harsh self-criticism.”

(AR 657.)

(AR 657-58.)

Other than a moderate speech-

Dr. Miller noted that Plaintiff was

(Id.)

(Id.)

(AR 659.)

His

(AR 664.)

He “can rapidly shift from

Dr. Miller opined that as a result
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of his brain injury, “changes in routine, unexpected events, and

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contradictory information” were likely to cause Plaintiff

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“untoward stress and subsequent decompensation.”

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Miller opined that mental-health services would be “fairly

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challenging” and “difficult” for Plaintiff, and thus he did not

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recommend any.

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“pursue disability benefits as an alternative to employment.”

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(Id.)

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(AR 665.)

(Id.)

Dr.

Instead, he recommended that Plaintiff

In the check-box “Medical Source Statement,” Dr. Miller

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noted that Plaintiff had no limitations in most areas of mental

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ability, including his ability to understand, remember, and carry

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out short and simple, as well as detailed, instructions; maintain

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attention and concentration for extended periods of time; perform

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activities within a schedule, maintain regular attendance, and be

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punctual; sustain an ordinary routine without special

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supervision; make simple work-related decisions; ask simple

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questions or request assistance; maintain socially appropriate

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behavior and adhere to basic standards of neatness and

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cleanliness; be aware of normal hazards and take appropriate

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precautions; travel to unfamiliar places or use public

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transportation; and set realistic goals or make plans

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independently of others.

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restrictions of daily living or difficulty maintaining

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concentration, persistence, and pace.

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performance would be precluded for 10 percent of a normal eight-

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hour workday by his limitations in responding appropriately to

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changes in a work setting.

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precluded for more than 15 percent of an eight-hour workday by

(AR 667-68.)

(Id.)

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He also had no

(AR 668.)

Plaintiff’s

His performance would be

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his limitations in working in coordination with, or in proximity

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to, others without being distracted by them; completing a normal

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workday and workweek without interruptions from psychologically

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based symptoms and performing at a consistent pace without an

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unreasonable number and length of rest periods; interacting

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appropriately with the general public; accepting instructions and

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responding appropriately to criticism from supervisors; and

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getting along with coworkers or peers without distracting them or

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exhibiting behavioral extremes.

(AR 667-68.)

His difficulty

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maintaining social functioning would also result in a 15 percent

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preclusion of performance.

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that Plaintiff would “never” be absent from work because of his

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impairments, but they would cause him to be “off task” more than

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30 percent of the time.

(AR 668.)

(AR 669.)

Dr. Miller anticipated

Dr. Miller wrote,

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[Plaintiff] has a history of aggressive behavior stemming

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from a traumatic brain injury.

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job terminations, the dissolution of his marriage, &

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physical confrontation with roommates. This occurs under

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perceived slights & under duress.

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legal consequences for his behavior is high.

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This has led to numerous

The potential for

(Id.)
In 2015, Plaintiff reported symptoms of anxiety that were

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generally under control.

(See, e.g., AR 799 (Jan. 2015:

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“[r]eports explosive episodes about 1x/month” but “[m]ood appears

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stable,” “[a]nxiety appears under control”), 748 (Feb. 2015:

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“[m]ood and anxiety appear stable and controlled,” he

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“[c]ontinues to do part-time work for film industry,” “began

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tutoring auto CAD (computer animated design),” and “[f]eels much
14

1

more relaxed and peaceful”), 746 (Mar. 2015: “goes from joking

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and laughter to tearfulness,” but anxiety caused by “continued

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resentment” of father and “does not interfere with daily

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functioning or sleep,” and he “[c]ontinues to get out daily for

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walks, coffee, and meals”), 741 (Apr. 2015: reported anxiety but

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“coping relatively well” and “[e]ngaging with others well in

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brief encounters”), 736 (May 2015: reported emotional instability

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caused by “recent stressor” of apparently finding out former

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girlfriend was diagnosed with cancer, but “anxiety well under

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control”).)

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AR 719, 1684.)

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“increased irritability after . . . surgery, altered routine,

13

presence of mother for over 1 month,” but he was “coping well

14

with temporary change in functional status and routine,” was

15

“us[ing] therapy well,” and reported “feel[ing] really good.”

16

(AR 704.)

17

discontinuing citalopram because of “sexual side effects,” but

18

she recommended that he continue using it.

19

citalopram “has been working well” and that he had exhibited

20

“[d]ecreased anxiety since starting [it]” from when she first saw

21

him “several years ago.”

22

Plaintiff had open heart surgery in May 2015.

(See

In June 2015, Dr. David noted that Plaintiff had

Dr. David noted that Plaintiff was interested in

3.

(Id.)

She noted that

(Id.)

Analysis

The ALJ found that Plaintiff could perform medium work but

23
24

was limited to “no greater than simple routine tasks” and “no

25

more than occasional contact with the public and coworkers.”

26

24.)

27

the opinion of Dr. Miller.

28

Miller’s “more restrictive limitations,” such as his opinion that

(AR

In so finding, the ALJ considered and gave “some weight” to
(Id.)

15

He gave “no weight” to Dr.

1

Plaintiff would be “off task 30% or more.”

2

Miller’s opinion was contradicted by other medical opinions in

3

the record, the ALJ had to give only specific and legitimate

4

reasons for discounting all or part of it.

5

F.3d at 1164.

6

(Id.)

Because Dr.

See Carmickle, 533

As discussed below, the ALJ did so.

As an initial matter, it is not clear that Dr. Miller was

7

among Plaintiff’s treating physicians.

8

Miller apparently first saw Plaintiff on December 19, 2014 (AR

9

667), interviewed him and administered a series of tests on

The record shows that Dr.

10

January 7, 2015 (AR 656), and completed two reports (AR 665,

11

669).

12

from December 19, 2014.

13

be based only on Plaintiff’s January 7, 2015 visit.

14

69.)

15

however, the length of the treatment relationship is relevant in

16

assessing whether the ALJ gave specific and legitimate reasons

17

for rejecting his opinion to the extent he did so, as the ALJ

18

correctly found (AR 24).

19

The record does not contain any notes or treatment records
Indeed, Dr. Miller’s reports appear to
(See AR 656-

Even if the Court assumes Dr. Miller was a treating doctor,

See §§ 404.1527(c), 416.927(c).

To the extent the ALJ rejected portions of Dr. Miller’s

20

opinion, he gave legally sufficient reasons for doing so.

21

the ALJ gave “no weight” to Dr. Miller’s “more restrictive

22

limitations,” such as his opinion that Plaintiff would be “off

23

task 30% or more,” because they were inconsistent with the

24

medical record and “not well supported” by diagnostic evidence.

25

(AR 24.)

26

30% or more” is inconsistent with the other findings in Dr.

27

Miller’s reports, including that he would not be significantly

28

limited in performing sustained work on a mental basis.

First,

Indeed, the opinion that Plaintiff would “be off task

16

(AR 24,

1

664, 667-68.)

After administering a series of psychological

2

tests, Dr. Miller found that Plaintiff’s attention was within

3

normal limits (AR 664) and had no limitations in his ability to

4

maintain attention and concentration for extended periods of

5

time; perform activities within a schedule, maintain regular

6

attendance, and be punctual within customary tolerances; and

7

sustain an ordinary routine without special supervision (AR 667-

8

68).

9

maintaining concentration, persistence, and pace.

He had no restrictions of daily living or difficulty
(AR 668.)

10

These findings are inconsistent with an opinion that Plaintiff

11

would be off task for more than 30 percent of the time in a work

12

setting.

13

The other medical evidence in the record does not support an

14

opinion that Plaintiff would often be off task in a workplace

15

setting.

16

depression, other than Dr. Miller, no doctor or clinician opined

17

that he would be significantly impaired in his ability to be on

18

task at work.

19

“good” concentration and attention span (AR 428) and was

20

“unimpaired” in his ability to maintain adequate pace or

21

persistence to perform simple and complex tasks, maintain

22

adequate attention and concentration, adapt to changes in job

23

routine, and interact appropriately with coworkers, supervisors,

24

and the public on a regular basis (AR 430).

25

Funkenstein and Kaspar also determined that Plaintiff had only

26

mild difficulty maintaining concentration, persistence, or pace.

27

(AR 55, 67.)

28

concentration and appropriate attention and judgment.

Although Plaintiff reported symptoms of anxiety and

Indeed, Dr. Martin found that Plaintiff showed

State-agency doctors

Therapist White found that Plaintiff had intact

17

(AR 2394.)

1

And Dr. David, who treated Plaintiff from at least 2013 to 2015,

2

did not mention any limitation in his ability to remain on task.

3

Inconsistency with the medical record and lack of diagnostic

4

evidence are permissible reasons for the ALJ to have given

5

portions of Dr. Miller’s opinion little or no weight.

6

Batson, 359 F.3d at 1195 (ALJ may discredit treating physicians’

7

opinions that are “unsupported by the record as a whole”);

8

Thomas, 278 F.3d at 957 (ALJ need not accept treating-physician

9

opinion that is “inadequately supported by clinical findings”);

See

10

cf. §§ 404.1527(c)(3), 416.927(c)(3) (“The more a medical source

11

presents relevant evidence to support an opinion, particularly

12

medical signs and laboratory findings, the more weight we will

13

give that medical opinion.”).

14

The ALJ found the opinion of Dr. Martin “fully credible” in

15

“showing [Plaintiff] is not significantly limited in performing

16

sustained work on a mental basis,” in part because it was

17

“buttressed by a GAF score of 70.”

18

examined Plaintiff, her opinion alone can be substantial evidence

19

for the ALJ to rely on.

20

1149 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th

21

Cir. 1995).

22

(AR 24.)

Because Dr. Martin

See Tonapetyan v. Halter, 242 F.3d 1144,

Finally, the ALJ noted that “[o]ther treating sources noted

23

improvement with treatment.”

(AR 24.)

24

treated Plaintiff over several years, consistently noted

25

improvement with the use of medication and therapy.

26

AR 748 (Feb. 2015: “[m]ood and anxiety appear stable and

27

controlled”), 704 (June 2015: Plaintiff “us[ing] therapy well”

28

and showing “[d]ecreased anxiety since starting citalopram”).)
18

Indeed, Dr. David, who

(See, e.g.,

1

Improvement with treatment and medication can be substantial

2

evidence supporting an ALJ’s nondisability determination.

3

Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th

4

Cir. 2006) (“Impairments that can be controlled effectively with

5

medication are not disabling for the purpose of determining

6

eligibility for . . . benefits.”); Thomas, 278 F.3d at 957; Allen

7

v. Comm’r of Soc. Sec., 498 F. App’x 696, 697 (9th Cir. 2012).

8

Moreover, Dr. Miller’s opinion that Plaintiff would not benefit

9

from mental-health treatment (AR 665) was inconsistent with

See

10

Plaintiff’s substantial beneficial treatment history and thus was

11

properly discounted.

12

Plaintiff argues that Dr. Miller’s opinion is consistent

13

with the record (J. Stip. at 4), but this claim is not supported

14

by the medical evidence.

15

cites is Dr. Miller’s own report (see id. (citing AR 664)),

16

which, as discussed above, is not consistent with a finding that

17

Plaintiff’s limitations would cause him to often be off task.

18

also cites to the report of therapist White (see id. at 5 (citing

19

AR 2384)), but none of White’s findings support an opinion that

20

Plaintiff would be off task 30 percent of the workday.

21

For example, the “record” Plaintiff

He

Plaintiff also argues that the ALJ improperly dismissed Dr.

22

Miller’s opinion “because he only began treating [Plaintiff] in

23

2014”11 and that “this could not constitute a specific and

24

legitimate reason to dismiss Dr. Miller’s opinion.”

25

But the length of the treatment relationship is relevant to how

(Id. at 6.)

26
27
28

11

Again, the ALJ may have been generous in so finding, as
it appears that Dr. Miller evaluated Plaintiff only once, on
January 7, 2015. (AR 656.)
19

1

much weight a doctor’s opinion should be accorded.

See

2

§§ 404.1527(c), 416.927(c).

3

date of December 30, 2012, but Dr. Miller’s ability to assess

4

Plaintiff’s mental state in the two years prior to when he first

5

saw him was likely limited.

6

747, 754 (9th Cir. 1989) (ALJ properly rejected opinion of doctor

7

who had “no direct personal knowledge” of claimant’s condition

8

until two years after alleged onset date); cf. Vincent ex rel.

9

Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per

Moreover, Plaintiff alleged an onset

See Magallanes v. Bowen, 881 F.2d

10

curiam) (ALJ properly ignored opinion of psychiatrist who

11

examined Plaintiff because “[a]fter-the-fact psychiatric

12

diagnoses are notoriously unreliable”).

13

considered Plaintiff’s apparently limited relationship with Dr.

14

Miller and gave his opinion “only partial weight” because of it.

15

The ALJ properly

Because the ALJ gave specific and legitimate reasons for

16

giving Dr. Miller’s opinion partial weight, remand is not

17

warranted on this basis.

18

B.

19

Plaintiff argues that the ALJ failed to articulate legally

The ALJ Properly Assessed Plaintiff’s Credibility

20

sufficient reasons for rejecting his testimony.

21

24.)

22
23

(J. Stip. at 21-

For the reasons discussed below, the ALJ did not err.
1.

Applicable law

An ALJ’s assessment of symptom severity and claimant

24

credibility is entitled to “great weight.”

25

Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779

26

F.2d 528, 531 (9th Cir. 1986).

27

believe every allegation of disabling pain, or else disability

28

benefits would be available for the asking, a result plainly

See Weetman v.

“[T]he ALJ is not required to

20

1

contrary to 42 U.S.C. § 423(d)(5)(A).”

2

F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d

3

597, 603 (9th Cir. 1989)).

4

Molina v. Astrue, 674

In evaluating a claimant’s subjective symptom testimony, the

5

ALJ engages in a two-step analysis.

6

at 1035-36.

7

has presented objective medical evidence of an underlying

8

impairment [that] could reasonably be expected to produce the

9

pain or other symptoms alleged.”

See Lingenfelter, 504 F.3d

“First, the ALJ must determine whether the claimant

Id. at 1036.

If such objective

10

medical evidence exists, the ALJ may not reject a claimant’s

11

testimony “simply because there is no showing that the impairment

12

can reasonably produce the degree of symptom alleged.”

13

80 F.3d at 1282 (emphasis in original).

14

Smolen,

If the claimant meets the first test, the ALJ may discredit

15

the claimant’s subjective symptom testimony only if he makes

16

specific findings that support the conclusion.

17

Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).

18

affirmative evidence of malingering, the ALJ must provide “clear

19

and convincing” reasons for rejecting the claimant’s testimony.

20

Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as

21

amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

22

1102 (9th Cir. 2014).

23

(1) ordinary techniques of credibility evaluation, such as the

24

claimant’s reputation for lying, prior inconsistent statements,

25

and other testimony by the claimant that appears less than

26

candid; (2) unexplained or inadequately explained failure to seek

27

treatment or to follow a prescribed course of treatment; (3) the

28

claimant’s daily activities; (4) the claimant’s work record; and

See Berry v.
Absent a finding or

The ALJ may consider, among other factors,

21

1

(5) testimony from physicians and third parties.

Rounds v.

2

Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as

3

amended); Thomas, 278 F.3d at 958-59.

4

finding is supported by substantial evidence in the record, the

5

reviewing court “may not engage in second-guessing.”

6

F.3d at 959.

7

2.

If the ALJ’s credibility

Thomas, 278

Relevant background

8

In a May 23, 2013 “Disability Summary” prepared by

9

Plaintiff, apparently to assist his treating doctors and the

10

agency, he reported a variety of physical ailments stemming from

11

his 1980 motorcycle accident.

12

reported treatment for anxiety and depression in 1984 and again

13

in 2013, and he noted that his physical symptoms had “left [him]

14

with lots of emotional anxiety.”

15

his anxiety “leads to compulsive, erratic decision making” and

16

that he “[c]an’t sustain employment.”

17

(See AR 260-63, 691-93.)

(AR 692-93.)

He

He reported that

(AR 693.)

On February 18, 2013, Plaintiff reported to a doctor that he

18

“desire[d] to be placed on disability” and that he had stopped

19

taking his medications.

20

completed on March 16, 2013, Plaintiff noted that he typically

21

spent his day “look[ing] for employment, apply[ing] for jobs,

22

[using] social network[s,] and attend[ing] school for further

23

training.”

24

(id.); prepared his own food (AR 241); did his own cleaning,

25

laundry, and dishes (id.); shopped “once or twice per week” (AR

26

242); and socialized “with others” – dined, watched movies, went

27

for coffee – most days (AR 243).

28

to three hours and could finish activities once he started them.

(AR 240.)

(AR 408.)

In a Function Report

He had no problems with personal care

22

He could pay attention for two

1

(AR 244.)

2

instructions “well” but that he often got agitated or annoyed.

3

(Id.)

4

with authority figures,” he responded that he “get[s] along well

5

with most everyone.”

6

“several jobs due to being unable to inhibit” his emotions (id.)

7

and because of his “impulsive decision making or behavior” (AR

8

259).12

9

He noted that he could follow written and spoken

In response to the question, “How well do you get along

(AR 245.)

He noted that he had lost

On November 6, 2014, Plaintiff told Dr. David that he “just

10

want[ed] to kick back and be happy” and was “hoping to get SSI”

11

because he “does not feel able to look for or maintain a new

12

job,” but he was “heading out after [the] appointment to help a

13

friend paint her kitchen” and had recently slept “12 straight

14

hours after doing physical labor with [a] friend.”

15

(AR 493.)

At the September 21, 2015 hearing, Plaintiff testified that

16

he “see[s] a psychologist on a steady basis,” which he found

17

helpful.

(AR 39.)

He was able to cook, shop, and clean up after

18

himself.

(AR 40.)

He stated that when he was “under stress or

19

pressure” he sometimes “speak[s] harshly” or will “fly off the

20

handle.”

21

better” since taking medication (AR 42), but he sometimes

22

suffered from “uncontrollable crying spells” (AR 43).

(AR 41.)

He acknowledged that his anxiety had “gotten

23
24
25
26
27
28

12

This contradicts the November 3, 2014 report of therapist
White, who noted — apparently based on what Plaintiff told her —
that Plaintiff had been fired from eight jobs since 2002 but “was
not fired for his behavior at work” but because “the economy was
changing.” (AR 2403.)
23

1

3.

2

Analysis

The ALJ found Plaintiff “not credible to the extent of

3

establishing disability,” finding that although his “medically

4

determinable impairments could reasonably be expected to cause

5

the alleged symptoms,” his “statements concerning the intensity,

6

persistence and limiting effects of [those] symptoms” were not

7

credible to the extent they were inconsistent with his RFC.

8

25.)

9

capacity to perform medium work, could lift and carry 25 pounds

(AR

He found that Plaintiff had the residual functional

10

frequently and 50 pounds occasionally, and could sit and stand

11

about six hours during an eight-hour workday.

12

perform “no greater than simple routine tasks,” however,

13

“involving no more than occasional contact with the public and

14

coworkers.”

(AR 24.)

He could

(Id.)

15

Plaintiff argues that the ALJ improperly rejected his

16

allegation that he “would be unable to work because of his

17

distractibility, confusion, emotional liability, difficulty with

18

changes in routine, unexpected events, and contradictory

19

instructions.”

20

the ALJ’s credibility assessment only as to his alleged mental

21

impairment; he does not contest any credibility assessment

22

related to his alleged physical symptoms.

23

34.)

24

complaints of decreased mental functioning: he limited Plaintiff

25

to “no greater than simple routine tasks,” “involving no more

26

than occasional contact with the public and coworkers.”

27

As discussed below, to the extent the ALJ rejected Plaintiff’s

28

subjective complaints of mental-health impairment, he provided

(J. Stip. at 23.)

Indeed, Plaintiff objects to

(See id. at 21-24, 32-

The ALJ afforded some weight to Plaintiff’s subjective

24

(AR 24.)

1

clear and convincing reasons for doing so.

2

First, the ALJ found that Plaintiff’s activities of daily

3

living were inconsistent with his statements about his severe

4

impairments and “indicate the capacity to perform focused and

5

sustained activities similar to the capacity required to perform

6

work duties at many jobs.”

7

testified that he was able to keep his house clean, cook, and

8

shop.

9

for jobs, using social networks, and attending school for further

(AR 40.)

(AR 25.)

At the hearing, Plaintiff

He typically spent his day looking and applying

10

training.

11

2014 (AR 2403) and February 2015 (AR 748), when he was also

12

looking into volunteering opportunities (id.).

13

most days.

(AR 240.)

He worked as an extra in movies in November

He socialized

(AR 243.)

14

Keeping a house clean, shopping once or twice a week,

15

socializing most days, seeking and applying for jobs daily, and

16

attending training classes are inconsistent with Plaintiff’s

17

allegation that he would be unable to sustain the level of

18

concentration needed to maintain employment and that his anxiety

19

was so great he would not be able to hold a job.

20

Plaintiff spent “most days” socializing with other people at a

21

local coffee shop (AR 243, 510), lived with roommates (AR 748),

22

and reported that he “get[s] along well with most everyone” (AR

23

245), belying his claims of anxiety so great he could not work

24

with others.

25

credibility when his daily activities are inconsistent with his

26

subjective symptom testimony.

27

may discredit claimant’s testimony when “claimant engages in

28

daily activities inconsistent with the alleged symptoms” (citing

Indeed,

An ALJ may properly discount a plaintiff’s

See Molina, 674 F.3d at 1112 (ALJ

25

1

Lingenfelter, 504 F.3d at 1040)).

“Even where those [daily]

2

activities suggest some difficulty functioning, they may be

3

grounds for discrediting the claimant’s testimony to the extent

4

that they contradict claims of a totally debilitating

5

impairment.”

6

Comm’r of Soc. Sec. Admin., 534 F. App’x 608, 610 (9th Cir. 2013)

7

(substantial evidence supported ALJ’s adverse credibility finding

8

because claimant “was social and had no difficulty getting along

9

with other people” despite allegations of anxiety); Gerard v.

Molina, 674 F.3d at 1113; see also Blodgett v.

10

Astrue, 406 F. App’x 229, 231 (9th Cir. 2010) (ALJ properly

11

disregarded medical opinion of severe anxiety and relational

12

problems when claimant testified that “she left her house to shop

13

for clothes and groceries, to attend GED classes, and to visit

14

with her mother”).

15

In January 2013, Plaintiff was completing training classes.

16

(AR 402.)

17

2013.

18

the “structure” of his day and was “look[ing] into volunteering

19

activities.”

20

training classes is inconsistent with Plaintiff’s allegation that

21

he would be unable to remain on task in a workplace setting.

22

Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (finding that

23

ALJ properly considered claimant’s completion of training course

24

when rejecting his subjective pain testimony).

25

He was attending school for further training in March

(AR 240.)

In February 2015, he was advised to increase

(AR 748.)

His ability to attend and complete

See

Second, the ALJ found that Plaintiff’s “[n]oncompliance with

26

medical advice tends to diminish [his] credibility.”

27

Indeed, Plaintiff stopped taking his prescribed medication on at

28

least two occasions; each time the doctor recommended that he
26

(AR 25.)

1

continue to take medication for his anxiety because it was

2

effective.

3

had “taken Xanax before but didn’t like taking [it] daily –

4

stopped when feeling better,” doctor then prescribed

5

citalopram),13 408 (Feb. 8, 2013: Plaintiff alleged he could not

6

tolerate citalopram prescribed in Jan. 1 visit, had stopped

7

taking it after “couple of days”; doctor “recommended trying to

8

continue with medication”), 2401 (Dec. 2, 2014: Plaintiff

9

currently taking citalopram, which was “helpful”), 704 (June 18,

(See AR 410 (Jan. 1, 2013: Plaintiff reported that he

10

2015: Plaintiff “interested in changing” from citalopram to

11

different psychotropic medication because of “sexual side

12

effects,” Dr. David recommended waiting because “Citalopram has

13

been working well”).)

14

Plaintiff argues that he stopped taking citalopram because

15

he was “unable to tolerate” it (J. Stip. at 24 (citing AR 408)),

16

but the medical record shows that he complained only of the

17

“sexual side effects” of citalopram (AR 246, 406, 704), and in

18

June 2015 Dr. David recommended that he continue to take it

19

because she had noticed “[d]ecreased anxiety” since he started it

20

(id.).

21

allegedly being unable to tolerate it.

22

2013, Plaintiff reported that he “likes having citalopram”), 578

23

(Mar. 2013, Dr. David noting that Plaintiff had been taking

Plaintiff apparently took citalopram for years despite
(See, e.g., AR 405 (Mar.

24
25

13

27

Xanax is the brand name of a drug used to treat anxiety
and panic disorders. Alprazolam, MedlinePlus, https://
medlineplus.gov/druginfo/meds/a684001.html (last updated Mar. 15,
2017).

28

27

26

1

citalopram for “1.5 months” and was “more calm”), 2401 (Dec.

2

2014, Plaintiff taking citalopram, which was “helpful”), 736-39

3

(May 2015, Plaintiff taking citalopram daily, noting that he

4

“sleep[s] well” with “anxiety well under control”).)14

5

may rely upon a claimant’s noncompliance with treatment as a

6

clear and convincing reason for an adverse credibility finding.

7

See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)

8

(ALJ may discount claimant’s testimony in light of “unexplained

9

or inadequately explained failure to seek treatment or to follow

10

a prescribed course of treatment”); Orn v. Astrue, 495 F.3d 625,

11

638 (9th Cir. 2007).

12

An ALJ

Finally, the ALJ noted that Plaintiff received “limited and

13

conservative treatment,” which was “inconsistent with” his

14

alleged severity of symptoms.

15

dispute this finding as to his physical ailments.

16

medical record indicates that Plaintiff’s anxiety was effectively

17

managed by therapy sessions and medication and that no more

18

intensive or invasive treatment was needed.

19

2, 2014: noting currently taking three “helpful” medications),

20

799 (Jan. 22, 2015: “[s]till taking Citalopram,” “[a]nxiety

21

appears under control”), 1428 (May 23, 2015: Plaintiff reported

22

no psychiatric hospitalizations and was “coping with his

(AR 25.)

Plaintiff does not
Similarly, the

(See AR 2401 (Nov.

23
24
25
26
27
28

14

Plaintiff also complained of “increased fatigue and
drowsiness” when his citalopram dosage was increased, but that
was apparently resolved by “taking medicine before bed.” (AR
512; see also AR 246 (Mar. 2013 Function Report alleging side
effects of citalopram as “insomnia & impotence”), 516 (Sept. 2014
visit to doctor apparently because of side effect of “increased
citalopram dosing,” resolved with Plaintiff “now taking before
bed without issue”), 799 (Jan. 2015, Plaintiff reported
“[s]leeping well” and “[s]till taking [c]italopram”).)
28

1

condition”), 704 (June 18, 2015: Dr. David noting that Plaintiff

2

“[c]ontinues to use therapy well” and exhibited “[d]ecreased

3

anxiety since starting citalopram evident to this clinician since

4

first seeing [Plaintiff] several years ago”).)

5

treatment can legitimately discredit a claimant’s testimony.

6

Parra, 481 F.3d at 751.

Conservative

7

Plaintiff argues that his condition was “not amenable to

8

treatment,” pointing to Dr. Miller’s January 26, 2015 opinion

9

See

that “mental health services” were not recommended because

10

“treatment would be fairly challenging.”

11

(citing AR 664-65).)

12

examination of Plaintiff, Dr. David noted that Plaintiff “use[d]

13

therapy well” and had exhibited “[d]ecreased anxiety since

14

starting citalopram evident to this clinician since first seeing

15

[Plaintiff] several years ago.”

16

himself noted on many occasions that his mental-health treatment

17

was helpful.

18

that “see[ing] a psychologist on a steady basis” was helpful),

19

804 (Dec. 2014, Plaintiff reporting to Dr. David that he was

20

“happier now” than he “ever was before”), 2401 (Nov. 2014, noting

21

currently taking three “helpful” medications).)

22

(J. Stip. at 24, 34

But in June 2015, after Dr. Miller’s

(AR 704.)

Indeed, Plaintiff

(See, e.g., AR 39 (Sept. 2015 hearing testimony

In sum, the ALJ provided clear and convincing reasons for

23

finding Plaintiff’s symptom allegations not credible.

24

those findings were supported by substantial evidence, this Court

25

may not engage in second-guessing.

26

Plaintiff is not entitled to remand on this ground.

27

VI.

28

Because

See Thomas, 278 F.3d at 959.

CONCLUSION
Consistent with the foregoing and under sentence four of 42
29

1

U.S.C. § 405(g),15 IT IS ORDERED that judgment be entered

2

AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s

3

request for remand, and DISMISSING this action with prejudice.

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5

DATED: April 25, 2017

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______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

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That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
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