Hodge v. Commissioner of Social Security

Filing 22

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER signed by Magistrate Judge Sandra M. Snyder on 8/19/2015. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHELLE HODGE,

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Plaintiff,

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v.

CASE NO. 1:14-CV-584-SMS
ORDER AFFIRMING AGENCY’S
DENIAL OF BENEFITS AND ORDERING
JUDGMENT FOR COMMISSIONER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
(Docs. 17, 20)
Defendant.

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Plaintiff Michelle Hodge, by her attorneys, Dellert Baird Law Offices, PLLC, seeks

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judicial review of a final decision of the Commissioner of Social Security (“Commissioner”)

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denying her application for disability insurance benefits pursuant to Title XVI of the Social

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Security Act (42 U.S.C. § 301 et seq.) (the “Act”). The matter is currently before the Court on the

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parties’ cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M.

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Snyder, United States Magistrate Judge. Following a review of the complete record and

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applicable law, this Court finds the decision of the Administrative Law Judge (“ALJ”) to be

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supported by substantial evidence in the record as a whole and based on proper legal standards.

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I.

Background

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A. Procedural History

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On February 26, 2011, Plaintiff applied for disability insurance benefits. Plaintiff alleged

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an onset of disability date of November 18, 2009. The Commissioner initially denied the claims on

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August 24, 2011, and upon reconsideration again denied the claims on February 6, 2012. On May

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20, 2012, Plaintiff filed a timely request for a hearing.

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On September 4, 2012, and represented by counsel, Plaintiff appeared and testified at a

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hearing presided over by Daniel Heely, Administrative Law Judge (“the ALJ”). See 20 C.F.R.

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404.929 et seq. An impartial vocational expert, David M. Dettmer (“the VE”), also appeared and

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testified.

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On September 26, 2012, the ALJ denied Plaintiff’s application. The Appeals Council

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denied review on February 25, 2014. The ALJ’s decision thus became the Commissioner’s final

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decision. See 42 U.S.C. § 405(h). On April 22, 2014, Plaintiff filed a complaint seeking this

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Court’s review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

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B. Plaintiff’s Testimony

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At the administrative hearing, Plaintiff was thirty-seven years old. She had graduated high

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school and could communicate in English. She lived with her spouse, who did not work due to

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disability, in Oakdale, California. Plaintiff worked for three years as a housekeeper, but she quit

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because of mental problems.

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Plaintiff testified that going out and dealing with people made her nervous or upset. She

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was being seen by a doctor and took medications according to the doctor’s orders. One of the

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medications had a negative side effect of seeing spots so she stopped taking it and began taking

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something else. At the time of the hearing she did not have negative side effects from medication.

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She did not receive one-on-one counseling from a psychiatrist because her insurance, Medi-Cal,

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did not provide it. She desired regular mental health appointments, and would “absolutely” go if

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she had insurance that covered them.

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In addition, Plaintiff had severe herniated discs which caused lower back pain, but did not

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need surgery. She had tried to lose weight to alleviate the pain. At one point she lost 130 pounds.

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She was a smoker for fifteen years but quit about two weeks before the hearing.

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Plaintiff testified that on a normal day she might do light housework, but she had trouble

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with completing tasks such as cooking and laundry. She would also watch TV for about three or

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four hours. She did not drive because she did not have a license and did not take public

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transportation. She relied on her husband for transportation. Plaintiff did not use a computer or go
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on the internet. She also visited her mother about once a month. Her mother would pick her up and

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take her to her home in Turlock, California, where they would read the Bible and watch TV.

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Plaintiff testified that she had problems keeping a schedule and remembering her appointments.

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C. Relevant Medical Record
Oak Valley Hospital District
Plaintiff’s medical records reveal ongoing treatment at Oak Valley Hospital District for

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back and shoulder pain, for which she received medication, as well as irregular periods, and dental

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pain. However, because her physical impairments are not at issue on this appeal, they will not be

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summarized here.

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Plaintiff did not receive any one-on-one counseling for mental impairments. She did not

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see a psychiatrist and it is not clear which. Her records show that she had been prescribed Xanax

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and Lexapro also from Oak Valley Hospital District, with notes indicating depression-bipolar and

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anxiety.

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Medical records from April and July 2009 do not mention mental impairments. In

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November 2009 Plaintiff was prescribed Xanax. She had been off psychiatric medication for about

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four years and had been cutting herself. Wellbutrin and Prozac had not been effective previously.

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She felt anxious about her marriage. A few weeks later she was doing well on Xanax and was

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prescribed Zoloft. The medical notes indicate that she had been to the Stanislaus Behavioral

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Center. In January 2010 she stopped Zoloft because of negative side effects and was prescribed

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Lexapro. She had been cutting. In June 2010, Plaintiff had stopped Lexapro because it did not

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help, but she continued with Xanax which helped anxiety. Also around June 2010, she had lost a

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hundred pounds and was feeling better. In October 2010, Plaintiff stated that she was off of

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Lexapro and Xanax for a month and had begun to hit herself again but was not cutting herself. In

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February 2011, she reported that she has not needed Xanax much. She reported in May 2011 that

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she felt Lexapro was working well. In September 2011, she was doing well on Xanax but stopped

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Lexapro. In October 2011, Plaintiff had been out of Lexapro for several months and felt depressed

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and had increased anxiety and mood swings. In January 2012, the medical notes say that Lexapro,

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Zoloft, and Paxil had not helped, but Xanax helped when she was in a rage, and rage was often.
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She was prescribed Buspar.

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Stanislaus Behavioral Health & Recovery Services

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In May 2012 and June 2012, Plaintiff was seen by the Brief Crisis Intervention Program at

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the Stanislaus Behavioral Health & Recovery Services. AR 312. The record does not contain

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details regarding these visits.

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Consultative Examination by Tania Shertock, PhD.

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On August 7, 2011, psychologist Tania Shertock, PhD., performed a comprehensive

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mental status examination and report. AR 255. Dr. Shertock observed that Plaintiff arrived on

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time, was generally cooperative throughout the session, and appeared to be a reliable historian.

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Plaintiff reported that she was diagnosed with a panic disorder thirteen years prior, and diagnosed

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with bipolar disorder about two years prior. Dr. Shertock noted that Plaintiff saw a psychiatrist

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who prescribed Xanax and Lexapro, but Plaintiff could not remember the name of her psychiatrist.

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Dr. Shertock observed that Plaintiff was in no obvious distress. She was jumpy and

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nervous. Her speech, perception, thought content, thought process, sensorium, memory,

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calculations, abstractions, insight/judgment, general knowledge, and reliability were all normal.

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Dr. Shertock noted significant impairments in social functioning. Plaintiff described relations with

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supervisors as generally okay, but poor with coworkers and others. Considering Plaintiff’s

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paranoia, Dr. Shertock predicted that she would have difficulties interacting with others.

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Dr. Shertock concluded that Plaintiff would be unable to maintain concentration,

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persistence, and pace due to severe anxiety and moderately impaired concentration, persistence,

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and pace. She further concluded that Plaintiff could perform simple, repetitive tasks but not on a

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consistent basis, and could not perform detailed and complex tasks. Plaintiff would have difficulty

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maintaining a schedule consistently, and may have difficulty adapting to work stress and changes.

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Plaintiff reported adequately handling some responsibilities of daily living, including keeping

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appointments.

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State Agency Medical Consultants

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On August 30, 2011, psychologist Deborah Hartley, PhD., reviewed Plaintiff’s record and
assessed her functional limitations AR 273. She reviewed Dr. Shertock’s evaluation and agreed
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that Plaintiff had mild limitations performing activities of daily living and moderate limitations in

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concentration, but found only moderate limitations in maintaining social interaction. Dr. Hartley

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completed a mental residual functional capacity assessment. AR 277-279. She found that Plaintiff

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was markedly limited in the ability to understand, remember, and carry out detailed instructions,

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and in the ability to interact appropriately with the general public. She found that Plaintiff was not

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significantly limited in any other way. Dr. Hartley specified that Plaintiff could perform simple

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tasks with routine supervision, could relate to supervisors and peers on a superficial work basis,

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could not relate to the general public, and could adapt to a work situation.

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On January 28, 2012, psychologist D. B. Johnson reviewed Plaintiff’s medical record and

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affirmed Dr. Hartley’s opinion on reconsideration.

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Consultative Examination by Robert L. Morgan, PhD.

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On August 6, 2012, psychologist Robert L. Morgan, PhD., performed a comprehensive

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psychological evaluation. AR 314. Dr. Morgan observed that Plaintiff arrived on time for her

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evaluation. Plaintiff appeared to be a reliable historian. Dr. Morgan noted that Plaintiff had been in

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ongoing office appointments with psychiatrist Charles Edwards, M.D., from Stanislaus County

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Department of Behavioral Health & Recovery Resources for approximately two years, but no

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records were provided from Dr. Edwards. Plaintiff reported that she had been prescribed a variety

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of medications by Dr. Edwards and her primary care physician, but was only taking Xanax at the

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time of the evaluation.

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Dr. Morgan discussed Plaintiff’s medical records including Dr. Shertock’s examination

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and Dr. Hartley’s review. Dr. Morgan stated, “Even with report of ongoing psychiatric care and

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utilization of various psychotropic medications over the course of the last two years Mrs. Hodge

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reports that her emotional functioning remains unmodulated.” AR 316. Plaintiff reported that she

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was home all day with constant stress, insomnia, and anxiety. She reported strained family and

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social relationships because she was embarrassed and would “fly off the handle” easily.

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Dr. Morgan found that Plaintiff presented with a marked impairments in her ability to

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maintain activities of daily living, in her ability to maintain social functioning, in concentration,

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persistence, and pace, in her ability to perform activities without interruptions and maintain
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regular attendance, in her ability to complete a normal work day and work week and perform

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consistently, and in her ability to interact with coworkers and the public and withstand the stress of

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a routine workday and deal with changes in the work setting. He noted an episode of emotional

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deterioration in her last employment and opined that there was a high likelihood that she would

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emotionally deteriorate in a work setting.

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D. Vocational Expert Testimony

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At the administrative hearing, the VE classified Plaintiff’s past work as hospital cleaner

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(DOT # 323.687-010, medium, SVP 2). The ALJ asked the VE to assume a hypothetical person of

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the same age, education, and work history as Plaintiff, but who could sit, stand, and walk less than

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two hours a day; lift and carry less than ten pounds even occasionally; never climb, balance, stoop,

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kneel, crouch, or crawl; would not have sufficient concentration for simple, routine tasks; and

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could have less than occasional public contact. The VE opined that there were no fulltime jobs to

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be found with that profile.

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The ALJ then directed the VE to assume a hypothetical person of the same age, education,

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and work history as Plaintiff, and could perform simple, repetitive tasks; could have occasional

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public contact; could sit, stand, and walk, six hours in an eight-hour day with normal breaks; lift

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and/or carry fifty pounds occasionally and twenty-five pounds frequently; and could never climb

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ladders, ropes or scaffolds; but could occasionally climb ramps or stairs. The VE opined that the

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hypothetical person could perform the hospital cleaner job. The VE further opined that such an

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individual could perform other unskilled, medium work including hand packager (DOT #

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920.587-018, medium, SVP 2) and kitchen helper (DOT #318.687-010, medium, SVP 2). The VE

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testified that there were a significant number of available jobs nationwide and in California.

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E. Disability Determination

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After considering the evidence, the ALJ found that Plaintiff had not engaged in substantial

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gainful activity since the alleged onset date of disability. He found that Plaintiff had the following

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severe impairments –mood disorder, anxiety disorder, disorder of the back, and obesity– which

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significantly limited her ability to perform basic work activities. The ALJ found that Plaintiff did

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not have an impairment that met or medically equaled the severity of a listed impairment. He
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found that Plaintiff had the RFC to perform “medium work” as defined in 20 C.F.R. 416.967(c).

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He found that Plaintiff had the RFC to sit, stand, and walk six hours each out of an eight-hour day

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with normal breaks, light and carry fifty pounds occasionally and twenty-five pounds frequently.

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He limited Plaintiff to never climbing ladders, ropes, or scaffolds, but occasionally climb ramps or

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stairs. He further limited Plaintiff to simple, routine, repetitive tasks and occasional public contact.

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The ALJ concluded that Plaintiff was capable of performing her past relevant work as a hospital

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cleaner and that there were other jobs existing in significant numbers in the national economy that

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Plaintiff could perform. Hence, he determined that Plaintiff was “not disabled.”

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II.

Legal Standard
A. The Five-Step Sequential Analysis
An individual is considered disabled for purposes of disability benefits if she is unable to

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engage in any substantial, gainful activity by reason of any medically determinable physical or

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mental impairment that can be expected to result in death or that has lasted, or can be expected to

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last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)

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(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment(s) must result from

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anatomical, physiological, or psychological abnormalities that are demonstrable by medically

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accepted clinical and laboratory diagnostic techniques and must be of such severity that the

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claimant is not only unable to do her previous work but cannot, considering her age, education,

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and work experience, engage in any other kind of substantial, gainful work that exists in the

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national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).

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To encourage uniformity in decision making, the Commissioner has promulgated

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regulations prescribing a five-step sequential process for evaluating an alleged disability. 20

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C.F.R. §§ 404.1520 (a)-(f); 416.920 (a)-(f). In the five-step sequential review process, the burden

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of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.

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See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). If a claimant is found to be disabled or

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not disabled at any step in the sequence, there is no need to consider subsequent steps. Id. at

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1098–99; 20 C.F.R. §§ 404.1520, 416.920.

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In the first step of the analysis, the ALJ must determine whether the claimant is currently
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engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, in the

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second step, the ALJ must determine whether the claimant has a severe impairment or a

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combination of impairments significantly limiting her from performing basic work activities. Id.

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§§ 404.1520(c), 416.920(c). If so, in the third step, the ALJ must determine whether the claimant

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has a severe impairment or combination of impairments that meets or equals the requirements of

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the Listing of Impairments, 20 C.F.R. 404, Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If

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not, in the fourth step, the ALJ must determine whether the claimant has sufficient RFC, despite

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the impairment or various limitations to perform his past work. Id. §§ 404.1520(f), 416.920(f). If

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not, in step five, the burden shifts to the Commissioner to show that the claimant can perform

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other work that exists in significant numbers in the national economy. Id. §§ 404.1520(g),

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416.920(g).

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B. Standard of Review
Congress has provided a limited scope of judicial review of the Commissioner’s decision

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to deny benefits under the Act. The record as a whole must be considered, weighing both the

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evidence that supports and the evidence that detracts from the Commissioner’s decision.

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks

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omitted). In weighing the evidence and making findings, the Commissioner must apply the proper

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legal standards. See, e.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). If an ALJ

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applied the proper legal standards and the ALJ’s findings are supported by substantial evidence,

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this Court must uphold the ALJ’s determination that the claimant is not disabled. See, e.g., Ukolov

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v. Barnhart, 420 F.3d 1002, 104 (9th Cir. 2005); see also 42 U.S.C. § 405(g). Substantial

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evidence means “more than a mere scintilla but less than a preponderance.” Ryan v. Comm’r of

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Soc. Sec., 528 F.3d 1194, 1998 (9th Cir. 2008). It is “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

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2005). Where the evidence as a whole can support either outcome, the Court may not substitute its

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judgment for the ALJ’s, rather, the ALJ’s conclusion must be upheld. Id.

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III.

Discussion
Plaintiff argues that the ALJ improperly rejected the opinions of consultative examining
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psychologists Dr. Tania Shertock and Dr. Robert Morgan. Plaintiff argues that she would have

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been found disabled if the ALJ had given proper weight to their opinions. In his RFC analysis, the

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ALJ gave reduced weight to Dr. Shertock and Dr. Morgan’s opinions and gave significant weight

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to the State agency mental consultants.

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A. Applicable Law

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Physicians render two types of opinions in disability cases: (1) medical, clinical opinions

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regarding the nature of the claimant’s impairments and (2) opinions on the claimant’s ability to

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perform work. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). An ALJ is “not bound by

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an expert medical opinion on the ultimate question of disability.” Tommasetti v. Astrue, 533 F.3d

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1035, 1041 (9th Cir. 2008); S.S.R. 96-5p, 1996 SSR LEXIS 2. The ALJ is responsible for

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resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722

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(9th Cir. 1998) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)).

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Three types of physicians may offer opinions in social security cases: “(1) those who

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treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the

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claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant

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(nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). A treating

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physician’s opinion is generally entitled to more weight than the opinion of a doctor who

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examined but did not treat the claimant, and an examining physician's opinion is generally entitled

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to more weight than that of a non-examining physician. Id. The Social Security Administration

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favors the opinion of a treating physician over that of nontreating physicians. 20 C.F.R. §

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404.1527; Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating physician is employed to

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cure and has a greater opportunity to know and observe the patient. Sprague v. Bowen, 812 F.2d

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1226, 1230 (9th Cir. 1987). Nonetheless, a treating physician’s opinion is not conclusive as to

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either a physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747,

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751 (9th Cir. 1989).

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Once a court has considered the source of a medical opinion, it considers whether the

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Commissioner properly rejected a medical opinion by assessing whether (1) contradictory

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opinions are in the record; and (2) clinical findings support the opinions. The ALJ may reject the
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uncontradicted opinion of a treating or examining medical physician only for clear and convincing

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reasons supported by substantial evidence in the record. Lester, 81 F.3d at 831. The controverted

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opinion of a treating or examining physician can only be rejected for specific and legitimate

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reasons supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1043

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(9th Cir. 1995). “Although the contrary opinion of a non-examining medical expert does not alone

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constitute a specific, legitimate reason for rejecting a treating or examining physician’s opinion, it

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may constitute substantial evidence when it is consistent with other independent evidence in the

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record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001), citing Magallanes, 881 F.2d

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at 752. The ALJ must set forth a detailed and thorough factual summary, address conflicting

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clinical evidence, interpret the evidence and make a finding. Magallanes, 881 F.2d at 751-55. The

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ALJ need not give weight to a conclusory opinion supported by minimal clinical findings. Meanel

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v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); Magallanes, 881 F.2d at 751. The ALJ must tie the

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objective factors or the record as a whole to the opinions and findings that he or she rejects.

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Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).

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B. Consultative Examining Psychologist Tania Shertock, PhD.

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The ALJ gave Dr. Shertock’s opinion reduced weight because it was not supported by the

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objective evidence, including Dr. Shertock’s examination. Because Dr. Shertock’s examining

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opinion is contradicted by Dr. Hartley’s, the ALJ was required to give specific and legitimate

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reasons to reject it. Plaintiff argues that the ALJ did not meet this burden.

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The ALJ discussed how Dr. Shertock’s objective findings did not support her highly

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restrictive functional assessment. First, the ALJ mentioned that Dr. Shertock found that Plaintiff

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had moderately impaired concentration, persistence, and pace, but there was no objective evidence

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of problems in this area. Indeed, Dr. Shertock found that Plaintiff’s attention and concentration

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were fair, and Plaintiff had no problems with immediate recall or short-term memory. Plaintiff had

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put forth adequate effort in the exam, was cooperative, and was a reliable historian. Her ability to

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calculate was normal. Her memory was grossly intact. Her thought process was logical, organized,

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and coherent, without loosening of associations, circumstantiality, or tangentiality. These normal

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objective findings do not support a functional finding of moderate impairment in concentration,
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persistence, and pace.
Dr. Shertock was not sure if Plaintiff could conform to a typical work schedule even

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though, objectively, Plaintiff was on time to her appointment and reported that she was able to

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adequately keep appointments. Plaintiff was also on time to her appointment with Dr. Morgan. Dr.

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Shertock’s opinion that plaintiff could not perform simple repetitive tasks on a consistent basis

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also seems to be unsupported by the objective evidence. Dr. Shertock’s evaluation does not

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indicate any impairment in memory and Plaintiff reported to Dr. Shertock that she was able to

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adequately handle hygiene and grooming and household duties. Dr. Shertock noted that Plaintiff

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was jumpy and nervous, and described her own mood as depressed and sometimes manic.

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However, these observations do not support Dr. Shertock’s findings of significant functional

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limitations.

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Further, Dr. Shertock incorrectly noted that Plaintiff was seeing a psychiatrist who

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prescribed Xanax and Lexapro. At the time of the examination, Plaintiff had not seen a

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psychiatrist, but was prescribed medication by her primary care physician. In addition, the medical

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notes show that she was not taking Lexapro at the time of Dr. Shertock’s examination in spite of

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previously indicating that she was doing well on Lexapro.

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Dr. Shertock’s assessed functional limitations with regards to concentration, potential

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inability to conform to a work schedule, and inability to perform simple, repetitive tasks on a

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consistent basis are not supported by her objective findings, and by the record as a whole. Thus,

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the ALJ gave specific and legitimate reasons, supported by substantial evidence in the record, in

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discounting Dr. Shertock’s opinion. The remainder of Dr. Shertock’s functional assessment is not

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contradictory to the ALJ’s RFC finding. Dr. Shertock said Plaintiff was impaired in social

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functioning. Her relations with supervisors were generally okay, but poor with coworkers and

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others. The ALJ limited Plaintiff’s public contact to occasional.

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C. Consultative Examining Psychologist Robert L. Morgan, PhD.

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The ALJ gave Dr. Morgan’s opinion reduced weight because he relied too heavily on

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subjective statements, and the mental status examination did not support the reported level of

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impairment. Plaintiff again argues that the ALJ did not meet his burden to given specific and
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legitimate reasons to discount Dr. Morgan’s opinion.
“A physician’s opinion of disability ‘premised to a large extent upon the claimant's own

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accounts of his symptoms and limitations’ may be disregarded where those complaints have been

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‘properly discounted.’” Morgan v. Commissioner of the SSA, 169 F.3d 595, 602 (9th Cir. Or.

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1999)(citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)).

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Dr. Morgan relied on several statements from Plaintiff which lack credibility. The ALJ

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noted that Plaintiff reported to Dr. Morgan that she had a psychiatrist but there was no evidence of

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this and was inconsistent with Plaintiff’s testimony. Dr. Morgan states more than once in his

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report that Plaintiff was seeing a psychiatrist regularly for two years and with medication, and in

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spite of this ongoing treatment, Plaintiff’s symptoms had not improved. However, Plaintiff

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testified that she has not received treatment from a psychiatrist, and the medical record does not

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contain any records or notes from a psychiatrist. The records from the Stanislaus Behavioral

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Health & Recovery Services, where she was supposedly seeing a psychiatrist, indicate that she

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was seen there in May and June of 2012, a few months before Dr. Morgan’s examination in

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August 2012. Dr. Morgan noted that psychiatric notes were not available to him for review. Dr.

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Morgan’s opinion is therefore based upon a false premise.

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Further, Dr. Morgan notes that Plaintiff was taking Xanax, but that is not necessarily the

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case –Plaintiff was receiving Xanax refills from her primary care physician, but her last visit was

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in January 2012 and she only took Xanax as needed. Dr. Morgan implies that Plaintiff’s use of

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psychotropic medication was consistent and taken as prescribed, when her records indicate that

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was not the case. She ran out of medication a few times and stopped taking medication without

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consulting her doctor.

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The ALJ also noted that Dr. Morgan’s report stated that Plaintiff does no domestic

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activities, which are exclusively performed by her husband and children, and has no hobbies.

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Because of these and other things, Dr. Morgan found that she had marked impairment in her

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ability to maintain activities of daily living. However, Plaintiff’s report to Dr. Morgan is

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inconsistent with her testimony at the hearing and other places in the record. Plaintiff stated at the

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hearing in September 2012 that she is able to do light housework and microwaving, but that she
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would have trouble staying on task with cooking and laundry. She testified that she frequently

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watched TV and she visited her mother with whom she would watch TV and read the Bible. Her

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husband wrote in May 2011 in a function report that his wife cooks simple meals, cleans, and does

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laundry for him and their children, and feeds their dog. He wrote that she does housework and that

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she is always cleaning something because she panics over clutter. He also wrote that she does

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puzzles and reads. At that point she took their son to school regularly, but at the time of the

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hearing their son was able to get to school on his own. Plaintiff also filled out a function report in

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May 2011 and confirmed that she cooks simple meals daily, cleans, and does laundry for her

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family and feeds their dog. She also wrote that she tries to do puzzles every day and that she reads.

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Plaintiff also reported to Dr. Shertock in August 2011 that she was able to adequately handle

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household duties, but her husband and sons helped. Again, Dr. Morgan’s opinion, specifically

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regarding her impairments regarding activities of daily living, was based on information that is

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inconsistent with multiple sources in the record.

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In addition, there are a few other inaccuracies or mischaracterizations in Dr. Morgan’s

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report. He noted that Plaintiffs husband is self-employed, whereas he is on disability.

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Plaintiff reported to Dr. Morgan that she did not drive, although she had a driver’s license, because

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it caused too much anxiety. However, she stated at the hearing that she did not have a driver’s

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license which was the reason she did not drive. Dr. Morgan found that Plaintiff’s depressive

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syndrome was characterized by appetite disturbance with a wide fluctuation in weight, referring to

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her weight loss mid-2010 from about 300 pounds to 170, and subsequent weight gain of about

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fifty pounds over the following two years. Plaintiff’s medical records do not indicate her weight

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loss was a result of depression or mental impairment. She testified that she lost weight to address

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her back pain, and medical notes indicate that she felt much better after the weight loss.

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The ALJ also found that Dr. Morgan’s opinion was not supported by the mental status

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examination. Specifically, the ALJ found that Dr. Morgan’s finding that Plaintiff is markedly

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impaired in concentration is not supported by his singular test of serial sevens without conducting

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a test at the lower end, which would demonstrate an ability to perform simple tasks. Dr. Morgan

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found normal thought processes, thought content, intellectual functioning, and memory.
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As a whole, Dr. Morgan’s opinion is not supported by the medical record. Plaintiff told Dr.

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Morgan that she was receiving ongoing treatment from a psychiatrist for two years, a premise

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stressed by Dr. Morgan over and over in his report. Plaintiff told Dr. Morgan that she could do no

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household chores, but she reported in her functional report, examination with Dr. Shertock, and at

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the administrative hearing that she did these things regularly. Dr. Morgan also found that marked

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impairments in concentration with only her inability to engage in serial sevens as objective

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support. The ALJ properly gave reduced weight to Dr. Morgan’s opinion for being based on

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subjective statements which were properly discounted, and for being unsupported by the medical

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record.

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D. State Agency Mental Consultants

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The ALJ gave reduced weight to consultative examiners Drs. Shertock and Morgan, while

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giving significant weight to state agency mental consultants Dr. Hartley and D. B. Johnson. The

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ALJ properly found that Dr. Hartley’s opinion, affirmed by D. B. Johnson, was supported by the

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objective medical evidence.

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The ALJ discussed how objective findings demonstrated difficulty in higher-end cognitive

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tasks, and did not preclude simple tasks. With regards to anxiety, Plaintiff was able to interact with

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examiner and her family without noted problems, as well as with her family members. Plaintiff

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reported good activities of daily living including personal care and caring for her family and pet.

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The ALJ also noted that Plaintiff had minimal mental treatment, consisting of only medication,

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with which she was not entirely compliant. Plaintiff did not see a psychiatrist or any psychologist

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or therapist from the date of disability in 2009 until mid-2012, when she may have seen a mental

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health professional at the Stanislaus Behavioral Health & Recovery Services. She received

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psychotropic medications from her doctor, but only saw her doctor approximately once every three

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months, even after she had received a new medication. There was no treating source opinion and

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minimal objective findings. There were objective findings of normal understanding, coherency,

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concentration, speaking, and responding to the examination. Thus, the objective evidence supports

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Dr. Hartley’s opinion that Plaintiff had only mild restriction in activities of daily living and

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moderate difficulties in maintaining social functioning and concentration.
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In sum, the ALJ properly discredited Dr. Shertock’s opinion for lack of support in the

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objective findings and Dr. Morgan’s opinion for relying on Plaintiff’s subjective statements

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demonstrated to be inaccurate. He discredited both Drs. Shertock and Morgan’s opinions in favor

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of the contradicting opinions of Dr. Hartley and D. B. Johnson, which he properly found to be

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supported by the medical evidence. Hence, the ALJ’s decision to give reduced weight to Drs.

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Shertock and Morgan’s opinions is without legal error and supported by substantial evidence in

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the record.

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IV.

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Conclusion and Order
For the foregoing reasons, the Court finds that the ALJ applied appropriate legal standards

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and that substantial credible evidence supported the ALJ’s determination that Plaintiff was not

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disabled. Accordingly, the Court hereby DENIES Plaintiff’s appeal from the administrative

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decision of the Commissioner of Social Security. The Clerk of Court is DIRECTED to enter

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judgment in favor of the Commissioner and against Plaintiff.

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IT IS SO ORDERED.
Dated:

August 19, 2015

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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