Chapple v. Colvin

Filing 20

ORDER by Judge Kandis A. Westmore denying 15 Plaintiff's Motion for Summary Judgment and granting 16 Defendant's Cross-Motion for Summary Judgment. (kawlc2, COURT STAFF) (Filed on 8/29/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAYMOND DARELL CHAPPLE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-06048-KAW
ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT'S
CROSS-MOTION FOR SUMMARY
JUDGMENT

v.
NANCY A. BERRYHILL,
Defendant.

Re: Dkt. Nos. 15, 16

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Plaintiff Raymond Chapple seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the

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Commissioner's final decision, and the remand of this case for payment of benefits, or, in the

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alternative, for further proceedings. Pending before the Court is Plaintiff's motion for summary

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judgment and Defendant's cross-motion for summary judgment. Having considered the papers

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filed by the parties, and for the reasons set forth below, the Court DENIES Plaintiff's motion for

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summary judgment, and GRANTS Defendant's cross-motion for summary judgment.

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I.

BACKGROUND

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On October 27, 2011, Plaintiff filed an application for Title XVI benefits, alleging

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disability beginning on January 1, 1981. (Administrative Record ("AR") 242.) Plaintiff was 45

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years of age at the time of the filing of his application. (AR 54.) He did not complete high school,

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and has never worked. (AR 269, 270.) Rather, Plaintiff has spent most of his adult life in and out

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of jail, and has thus never held a full-time job. (AR 291, 590, 626.) Plaintiff's disability report

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lists medical conditions of depression, anxiety, hallucinations, right leg pain, and psychosis. (AR

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269.) The Social Security Administration ("SSA") denied Plaintiff's applications initially and on

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reconsideration. (AR 71, 88.) Plaintiff requested a hearing before an Administrative Law Judge

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("ALJ"). (AR 108.) The assigned ALJ held a hearing on June 5, 2014. (AR 33.)

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The ALJ considered a number of different medical opinions in making her determination.

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Puran Khalsa, Psy.D, assessed Plaintiff on the referral of Plaintiff's prior attorney on December 2,

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2011. (AR 590-596.) Plaintiff reported that with little support, he relied on his girlfriend for help

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with daily activities like laundry and cooking. (AR 590.) Dr. Khalsa's report states that Plaintiff

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first developed psychiatric symptoms when he was fifteen years old, reporting excessive paranoia.

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(AR 591.) Since his early teens, Plaintiff also experienced periods of severe agitation, delusions

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of persecution, and auditory hallucinations. Plaintiff also experienced traumatic attacks leading to

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injury, including a beating in 1988, a stabbing in 1991, and a shooting in 2005. (Id.) Plaintiff was

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being treated with antipsychotic medication, but showed little relief from the reported symptoms.
(Id.) Instead, Plaintiff's delusions of persecution created a pattern of isolation and fear of going

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outside, and auditory hallucinations disrupted his sleep and eating patterns. (Id.) Plaintiff also

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reported a period of drug use prior to turning 21, but denied any form of drug use after becoming

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an adult other than occasional alcohol use. (Id.) Dr. Khalsa described Plaintiff as looking

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"scattered" upon arrival, "with eyes darting around the room." (Id.) Plaintiff was "extremely

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agitated and panicking[,] making paranoid statements about people being after him." (Id.)

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Despite his anxiety, Plaintiff's speech was slowed and slurred, and the right side of his face visibly

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drooped while his facial expression did not change throughout the assessment, showing severely

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restricted affect. Plaintiff's thought flow was tangential and incorporated wild and unrelated

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concepts, and his thoughts revolved around suicidality and assaultive ideas. Plaintiff was also

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excessively paranoid, repeated auditory and visual hallucinations, and showed significantly

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impaired insight. (Id.)

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Dr. Khalsa performed a number of tests, and found severe impairments in memory, severe

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impairments in attention/concentration, marked limitations in language, marked impairments in

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executive functioning, and severe impairments in visual/spatial abilities. (AR 592-93.) Overall,

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Dr. Khalsa concluded that Plaintiff might be suffering from schizophrenia, based on his paranoia,

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delusions of reference and persecution, and auditory hallucinations, but that without a prior

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diagnosis, it was "unlikely." (AR 595.) Dr. Khalsa also found that Plaintiff showed signs of

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severe agitation, and that Plaintiff might suffer from PTSD based on prior attacks, which led to
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Plaintiff becoming obsessed with themes of violence and avoiding most public places in fear of

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being attacked. (Id.) Dr. Khalsa found that Plaintiff was completely inappropriate for any type of

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job setting, and stated that his prognosis was "extremely poor." (Id.)

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On April 27, 2012, Plaintiff had a consultative exam with Patricia Spivey, Psy.D. (AR
626-629.) During the exam, Plaintiff claimed that he had not had an alcohol or drug problem, and

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denied abuse of any substances currently or historically, both verbally and on intake forms. (AR

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626.) Dr. Spivey noted that Plaintiff had admitted on prior psychological evaluations to cocaine

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and opiate abuse, and was diagnosed with polysubstance dependence and substance-induced

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psychosis. (Id.) The report stated that Plaintiff was able to perform most activities of daily living,

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and that he could get around on public transportation. (AR 627.) Dr. Spivey observed Plaintiff as

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being guarded about his legal and drug history, but was not acutely psychotic or visibly anxious,

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and showed no signs of responding to internal stimuli or losing concentration. (Id.) Dr. Spivey

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also found that Plaintiff's speech, thought process, and content were normal, that he had no loose

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associations or other signs of thought disturbance, and that he demonstrated a full affect and

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neutral mood. (Id.) Dr. Spivey performed a number of exams. (AR 627-28.) Dr. Spivey

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determined that Plaintiff's symptoms of psychosis were "possibly real but attributable to drug use."

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Dr. Spivey also found that Plaintiff was not presenting as a person with schizophrenia and was not

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on medication. (AR 628.) Dr. Spivey concluded that Plaintiff had no impairments in any of his

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work-related abilities. (Id.)

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Following his consultative exam, Plaintiff was in jail. (AR 20.) There, he was treated by

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Fred Rosenthal, M.D., for depression and anxiety. (AR 655.) In his September 26, 2012

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assessment, Dr. Rosenthal found current symptoms of depression, flat affect, and anxiety. Dr.

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Rosenthal also noted a history of substance abuse, including the use of cocaine in July 2011. (Id.)

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On October 5, 2012, Plaintiff complained of auditory hallucinations, which Dr. Rosenthal found

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"somewhat questionable" and vague as to content. (AR 657.) Dr. Rosenthal also observed

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Plaintiff as calm with no evidence of a thought disorder or any severe disturbance in mood. Dr.

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Rosenthal also opined that Plaintiff's claims of auditory hallucinations might be drug-seeking, in

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light of his history. Dr. Rosenthal prescribed Zyprexa. (AR 657.) On October 24, 2012, Dr.
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Rosenthal reported that Plaintiff stated the medication made him jittery but that the auditory

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hallucinations had decreased. (AR 658.) On November 2, 2012 and November 14, 2012, Dr.

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Rosenthal again observed that the complaints of auditory hallucination were questionable, and that

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there was no evidence of a thought disorder or any severe disturbance in mood. (AR 659, 660.)

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Plaintiff reported that the medication had reduced the auditory hallucinations. (Id.) On November

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28, 2012, Plaintiff again reported that the medication was helpful, and was observed as being

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cooperative, alert, fully oriented, well-groomed, engaging, and having good eye contact. (AR

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661.)

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On March 11, 2013, Plaintiff had a second consultative exam with Ute Kollath, Ph.D. (AR
666-669.) Dr. Kollath recorded Plaintiff's chief complaints as the gunshot wound to his right leg,

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Northern District of California

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paranoid ideation, and auditory hallucination. (Id.) Dr. Kollath observed Plaintiff as being

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friendly and cooperative, making good eye contact and with adequate facial expressions. Plaintiff

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interacted appropriately with the examiner and office staff, and did not exhibit any bizarre

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behavior. (Id.) Plaintiff stated that he had psychotic symptoms, auditory hallucinations, and

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paranoid ideation since he was fifteen years old, and that past psychiatric medication was effective

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but that he was not medication compliant. (Id.) He reported a history of substance abuse, but

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claimed that the last time he used drugs was a couple of years prior. (AR 667.) Plaintiff was

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independent for basic activities, did not need help with preparing meals, was able to make change

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at the store, and typically spent his day sitting in the park. (AR 667.) Dr. Kollath conducted

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several exams, and found that Plaintiff's attention and concentration were impaired. (AR 668.)

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Dr. Kollath observed, however, that the test results were "an unreliable representation of the

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claimant's current psychological functioning," due to Plaintiff's "suboptimal efforts." (AR 668.)

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Thus, the "results cannot be considered as a reasonably valid or reliable estimate of his level of

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functioning. (Id.) Dr. Kollath concluded that Plaintiff was unimpaired in all work-related

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abilities. (AR 669.)

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At the June 5, 2014 hearing, Dr. C. Richard Johnson testified on behalf of Plaintiff, finding

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diagnoses of depressive disorder, poly-substance dependence, post-traumatic stress disorder,

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schizo affective disorder, and generalized anxiety disorder. (AR 35.)
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Dr. Johnson opined that

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Plaintiff had marked limitations based on Dr. Khalsa's opinion and a medical source statement

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from July 2011, prior to Plaintiff's application date. (AR 36.) The medical source statement was

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signed by Dr. Rosenthal and clinician Sarah M. Ulloa, and assessed marked functional limitations.

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(AR 548.) When the ALJ inquired as to why Dr. Johnson relied on these opinions rather than the

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opinions by Dr. Spivey and Dr. Kollath, which were later and showed improvement, Dr. Johnson

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responded that the later opinions were one-time examinations. (AR 40.) The ALJ then pointed

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out that Dr. Khalsa's opinion was also a one-time examination, which Dr. Johnson did not

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contradict. (Id.)

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The ALJ issued an unfavorable decision on June 23, 2014. (AR 10-24.) A request for
review of the hearing decision was filed with the Appeals Council on August 21, 2014. (AR 9.)

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On October 26, 2015, the Appeals Court denied Plaintiff's request for review. (AR 1-6.) On

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December 23, 2015, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. §

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405(g). (Compl., Dkt. No. 1.)

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On September 26, 2016, Plaintiff filed a motion for summary judgment. (Plf.'s Mot., Dkt.

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No. 15.) On October 24, 2016, Defendant filed an opposition and cross motion for summary

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judgment. (Def.'s Opp'n, Dkt. No. 16.) On December 7, 2016, Plaintiff filed a reply. (Plf.'s

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Reply, Dkt. No. 19.)

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II.

LEGAL STANDARD

A court may reverse the Commissioner's denial of disability benefits only when the

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Commissioner's findings are 1) based on legal error or 2) are not supported by substantial

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evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097

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(9th Cir. 1999). Substantial evidence is "more than a mere scintilla but less than a

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preponderance"; it is "such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion." Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In

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determining whether the Commissioner's findings are supported by substantial evidence, the

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Court must consider the evidence as a whole, weighing both the evidence that supports and the

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evidence that detracts from the Commissioner's conclusion. Id. "Where evidence is susceptible

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to more than one rational interpretation, the ALJ's decision should be upheld." Ryan v. Comm'r
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of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Under SSA regulations, disability claims are evaluated according to a five-step sequential

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evaluation. Reddick, 157 F.3d at 721. At step one, the Commissioner determines whether a

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claimant is currently engaged in substantial gainful activity. Id. If so, the claimant is not disabled.

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20 C.F.R. § 404.1520(b). At step two, the Commissioner determines whether the claimant has a

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"medically severe impairment or combination of impairments," as defined in 20 C.F.R. §

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404.1520(c). Reddick, 157 F.3d 715 at 721. If the answer is no, the claimant is not disabled. Id.

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If the answer is yes, the Commissioner proceeds to step three, and determines whether the

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impairment meets or equals a listed impairment under 20 C.F.R. § 404, Subpart P, Appendix 1. 20

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C.F.R. § 404.1520(d). If this requirement is met, the claimant is disabled. Reddick, 157 F.3d 715

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at 721.

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If a claimant does not have a condition which meets or equals a listed impairment, the

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fourth step in the sequential evaluation process is to determine the claimant's residual functional

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capacity ("RFC") or what work, if any, the claimant is capable of performing on a sustained basis,

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despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can

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perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal

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standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. §

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404.1545(a). If the claimant meets the burden of establishing an inability to perform prior work,

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the Commissioner must show, at step five, that the claimant can perform other substantial gainful

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work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the

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burden of proof in steps one through four. Bustamante, 262 F.3d at 953-954. The burden shifts to

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the Commissioner in step five. Id. at 954.

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III.

THE ALJ'S DECISION

On June 23, 2014, the ALJ issued an unfavorable decision. (AR 13-24.) At step one, the

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ALJ determined that Plaintiff had not been engaged in substantial gainful activity since October

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24, 2011, the application date. (AR 15.)

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At step two, the ALJ determined that Plaintiff suffered from the following severe

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impairments: status-post gunshot wound to the right leg, polysubstance dependence, and
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depressive disorder. (Id.)

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At step three, the ALJ determined that Plaintiff did not have an impairment or combination

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of impairments that met or medically equaled the severity of a listed impairment. (AR 15-17.) In

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reaching this determination, the ALJ found that Plaintiff did not satisfy the paragraph B or C

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criteria. First, the ALJ found that Plaintiff had "mild restriction" in activities of daily living, based

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on his ability to perform most daily activities and care for his personal hygiene. (AR 16.) Second,

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the ALJ found that Plaintiff had "moderate difficulties" in social functioning, based on his history

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of fights since childhood. The ALJ also acknowledged that Plaintiff had "endorsed hallucinations

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and felt that people stared at him," but explained that "[m]oderating these problems, prison
officials have not felt the need to isolate the claimant. He shares his cell with another inmate,"

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developed and maintained relationships during the relevant period, rode public transportation, and

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spent time in parks. (Id.) Such activities put him in contact with other people, which in turn

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demonstrated an ability for individual and social interactions. Third, the ALJ found that Plaintiff

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had "moderate difficulties" in concentration, persistence, or pace, based primarily on the

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evaluation of Dr. Spivey. (Id.) The ALJ acknowledged that Dr. Khalsa classified Plaintiff's

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memory and concentration as "extremely low," but concluded that Dr. Khalsa's observations "do

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not outweigh the intact functioning reported by Dr. Spivey." (AR 16-17.) Finally, the ALJ found

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no episodes of decompensation of an extended duration. (AR 17.) Based on these findings, the

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ALJ concluded that Plaintiff did not satisfy the Paragraph B criteria because the claimant's mental

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impairments did not cause at least two "marked" limitations or one "marked" limitation and

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repeated episodes of decompensation. The ALJ also concluded that Plaintiff did not satisfy the

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Paragraph C criteria because there were no repeated episodes of decompensation, a disease that

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would cause decompensation, or an inability to function outside a highly supportive living

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arrangement. (Id.)

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At step four, the ALJ determined that Plaintiff had the RFC to perform medium work,

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restricted to simple, routine tasks with no public contact and only occasional interaction with

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coworkers and supervisors. (AR 17.) The ALJ found that Plaintiff could maintain attention and

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concentration for two-hour increments with normal breaks. The ALJ reviewed Plaintiff's past
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history of mental impairments and the medical reports, and concluded that the medically

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determinable impairments could reasonably be expected to cause the alleged symptoms, but that

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Plaintiff's statements concerning the intensity, persistence, and limiting effects were not entirely

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credible. (AR 21.) First, the ALJ pointed to the lack of Plaintiff's work history as undermining

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credibility. (Id.) Second, the ALJ found that the medical records further undermined Plaintiff's

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credibility, based on Plaintiff's failure to attend at least two consultative examinations that were

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scheduled after his release from prison, and his inconsistency in admitting substance abuse to the

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consultative examiners. (Id.) Further, the ALJ found that Plaintiff's mental health issues appeared

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to improve on prescription medications, and that even when Plaintiff was noncompliant in
continuing treatment, he did not suffer any decompensations and exhibited normal presentation.

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(Id.) Finally, the ALJ found that the RFC was consistent with Plaintiff's daily activities, including

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going to the park and riding public transportation, which reflected some level of social interaction.

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(Id.)

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The ALJ then analyzed the medical opinions, stating that Dr. Spivey's opinion received

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great weight for her opinion that Plaintiff had mild impairments and a good prognosis, based on

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Plaintiff's normal performance, Dr. Spivey's review of prior reports, and her note that Plaintiff

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incorrectly denied his substance abuse history. (AR 21-22.) The ALJ noted that the two State

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agency consultants gave different opinions, and gave the most weight to the consultant who

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restricted Plaintiff to simple tasks with limited public interaction as consistent with Dr. Spivey and

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the rest of the medical record. (AR 22.) The ALJ gave less weight to the consultant who found no

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severe impairments. Next, the ALJ gave Dr. Kollath little weight for his opinion that Plaintiff was

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unimpaired, as the statement conflicted with Dr. Kollath's description of inconclusive cognitive

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performance and the ample records which supported the existence of some limitations. (Id.) The

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ALJ also gave little weight to Dr. Khalsa's opinion that Plaintiff had an extremely poor prognosis

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and was unable to perform any job, explaining that that determination was reserved to the

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Commissioner. (Id.) The ALJ stated that while she still considered Dr. Khalsa's opinion, it

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conflicted with the two subsequent examinations. The ALJ gave little weight to the July 2011

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medical source statement from Ms. Ulloa and Dr. Rosenthal, stating that the opinion was
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incomplete and gave no explanation for the restrictions, which predated the relevant period. (Id.)

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Finally, the ALJ gave little weight to Dr. Johnson for his hearing testimony, noting that Dr.

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Johnson could not explain his decision to focus on some evaluations and not others. (Id.)
At step five, the ALJ concluded there were jobs that existed in significant numbers in the

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national economy that Plaintiff could perform, based on the RFC. (AR 23.)

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IV.

DISCUSSION

In his motion for summary judgment, Plaintiff argues that the ALJ erred in denying his

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application for social security benefits for five reasons: (1) the ALJ erred in evaluating the medical

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evidence, (2) the ALJ erred in determining Plaintiff's severe impairments at step two, (3) the ALJ

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erred in determining that Plaintiff did not meet or equal a listing at step three, (4) the ALJ erred in

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evaluating Plaintiff's credibility, and (5) the ALJ erred in determining Plaintiff's RFC.

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A.

Weighing of Medical Evidence

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Plaintiff argues that the ALJ improperly weighed the medical evidence by: (1) giving little

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weight to the treating source's opinion, (2) assigning the greatest weight to examining physician

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Dr. Spivey, and (3) giving little weight to examining physician Dr. Kollath. (Plf.'s Mot. at 4-11.)

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Conversely, Defendant argues that the ALJ properly addressed the various opinions. (Def.'s Opp'n

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at 3.)

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In evaluating medical evidence from different physicians, the Ninth Circuit distinguishes

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among the opinions of three types of physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1995). The three types are classified as: (1) those who treat the claimant (treating physicians); (2)

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those who examine but do not treat the claimant (examining physicians); and (3) those who neither

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examine nor treat the claimant (non-examining physicians). Id. A treating physician's opinion is

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entitled to controlling weight if it is well-supported and consistent with other substantial evidence

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in the record. 20 C.F.R. § 404.1527(d)(2). The opinions of treating medical sources may be

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rejected only for clear and convincing reasons if not contradicted by another doctor, and, if

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contradicted, only for specific and legitimate reasons supported by substantial evidence. Chater,

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81 F.3d at 830. Where the ALJ fails to provide adequate reasons for rejecting the opinion of a

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treating or examining physician, that opinion is accepted as true. Id. at 834.
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i.

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July 2011 Medical Source Statement

First, Plaintiff challenges the ALJ decision to give little weight to a July 2011 medical

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source statement by treating physician Dr. Rosenthal and Ms. Ulloa.1 (Plf.'s Mot. at 4.) The July

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2011 medical source statement is a one-page document, which states that Plaintiff "appears to

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have symptoms of paranoia," that the conditions were expected to last (but not how long), and that

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Plaintiff was incarcerated and symptoms were still present. (AR 548.) The 2011 medical source

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statement assessed "marked" limitations on Plaintiff's daily living activities, ability to maintain

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social functioning, and abilities to concentrate. (Id.) The 2011 medical source also noted three

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episodes of decompensation within a 12-month period, each of at least two weeks of duration.

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(Id.)
The 2011 medical source statement is contradicted by examining medical expert Dr.

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Northern District of California

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Spivey's opinion that Plaintiff had mild impairments and a good prognosis, examining medical

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expert Dr. Kollath's opinion that Plaintiff had no impairments, and the two agency consultants.

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The 2011 medical source statement is also contradicted by Dr. Rosenthal's own treatment notes

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from 2012, which found that there was no evidence of thought disorders or any severe disturbance

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in mood, that medication reduced hallucinations, and that Plaintiff's claims of auditory

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hallucinations might be drug-seeking. (AR 655-62.) Since the 2011 medical source statement is

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contradicted, the ALJ must provide specific and legitimate reasons for rejecting this opinion of the

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treating physician. See Chater, 81 F.3d at 830.

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The ALJ gave the 2011 medical source statement "little weight" because the opinion was

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"incomplete" and provided no explanation for the restrictions, which predate the relevant period

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by three months. (AR 22.) The Court finds that the failure to provide an explanation for the

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restrictions is a specific and legitimate reason for rejecting the opinion. The Ninth Circuit has held

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that an ALJ may reject 'check-off reports that did not contain any explanation of the bases of their

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Plaintiff argues generally that the ALJ erred in assigning little weight to the opinion of treating
physician Dr. Rosenthal, but focuses solely on the ALJ's review of the 2011 medical source
statement. (Plf.'s Mot. at 4-5.) Plaintiff does not appear to challenge the ALJ's review of Dr.
Rosenthal's later treatment notes, which found no evidence of thought disorders or any severe
disturbance in mood, and questioned Plaintiff's claims of hallucinations as "drug-seeking." (See
AR 655-62.)
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conclusions." Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1995); see also Molina v. Astrue, 674

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F.3d 1104, 1111-12 (9th Cir. 2012) (finding that ALJ properly rejected an opinion that "consisted

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primarily of a standardized, check-the-box form in which she failed to provide supporting

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reasoning or clinical findings"). Applying this principal, courts in this circuit have found that

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ALJs could reject medical source statements that contained only check-the-box opinions. In

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Huntsman v. Colvin, the district court concluded that the ALJ could reject a treating physician's

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medical source statement solely because the physician "did not explain any of the objective bases

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for his opinions that plaintiff had disabling functional limitations." Case No. EDCV 13-1300 JC,

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2014 WL 808020, at *4 (C.D. Cal. Feb. 28, 2014). The district court observed that the physician

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"did not reference any medically acceptable clinical or laboratory diagnostic findings--either his

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own or from another doctor--to support his opinions." Id. Similarly, in Jimenez v. Colvin, the

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district court rejected a medical source statement where the physician diagnosed moderate

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shoulder pain but "failed to explain how the Claimant's impairments impose the severe exertional

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and postural limitations he assessed when the identified diagnosis involves only the right upper

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extremity." Case No. CV 12-1676-JEM, 2013 WL 3200523, at *4 (C.D. Cal. June 24, 2013).

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Here, the 2011 medical source statement states that Plaintiff "appears to have symptoms of

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paranoia." (AR 548.) In response to the question of whether the impairments remain severe in the

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absence of substance use, the 2011 medical source statement notes that Plaintiff was incarcerated

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and that the symptoms were still present, although it does not indicate that the symptoms were

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severe.2 (Id.) The 2011 medical source statement does not, however, reference any clinical or

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laboratory diagnostic findings to support the opinion, instead referring only to Plaintiff

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"appear[ing]" to have symptoms of paranoia. (Id. (emphasis added).) The 2011 medical source

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statement also fails to explain why the symptoms of paranoia would lead to marked restrictions of

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daily living, difficulties in maintaining social functioning, or deficiencies in concentration.

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Contrast with Smolen, 80 F.3d at 1288 (finding that the ALJ should not have rejected responses to

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Plaintiff suggests that an "inference" can be drawn from this that Plaintiff's symptoms are not
related to substance abuse. Notably, as the ALJ noted, Dr. Rosenthal later questioned Plaintiff's
allegations of hallucinations as "drug seeking," thus contradicting this inference. (AR 20, 657.)
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questions that called for only yes-or-no answers where the physician's responses were

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accompanied by comments explaining the reasons for each of his responses). Given the lack of

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explanation connecting what appeared to be symptoms of paranoia to the marked limitations, the

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ALJ did not err in rejecting the 2011 medical source statement.

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Plaintiff next argues that there is ample evidence showing multiple symptoms, pointing to

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prior treatment notes by Dr. Rosenthal and Ms. Ulloa showing hallucinations, rapid stutters, and

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depressed and anxious mood. (Plf.'s Mot. at 5.) None of these symptoms or treatment notes,

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however, were referred to by the 2011 medical source statement in concluding that Plaintiff had

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marked limitations. Thus, the ALJ's finding that the 2011 medical source statement lacked an

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explanation for the restrictions is valid.
Alternatively, Plaintiff contends that the ALJ had a duty to re-contact the treating

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physician to ascertain what the treating physician's opinion was based on. (Plf.'s Mot. at 6.) "The

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ALJ in a social security case has an independent duty to fully and fairly develop the record and to

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assure that the claimant's interests are considered." Tonapetyan v. Halter, 242 F.3d 1144, 1150

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(9th Cir. 2001) (internal quotation omitted). An ALJ may, however, reject a conclusory and brief

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opinion that is unsupported by clinical findings when confronted with conflicting medical

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opinions. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 ("an ALJ may discredit

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treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole,

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or by objective medical findings"). Such is the case here, where the 2011 medical source

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statement's diagnosis of marked limitations is contradicted not only by examining physicians, but

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by the treating physician's later examinations, which found no evidence of thought disorder or

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severe disturbance in mood. Compare with Davis v. Colvin, No. C13-1209 HRL, 2014 WL

23

3962663, at *3 (N.D. Cal. Aug. 13, 2014) (explaining that an ALJ did not have to "conduct an

24

inquiry whenever presented with an unsubstantiated opinion," particularly where "the record,

25

containing opinions from multiple medical doctors, was sufficiently developed to allow for proper

26

evaluation").

27
28

Finally, Plaintiff contends that the ALJ should have considered the opinion despite
predating the relevant period by three months. (Plf.'s Mot. at 6-7.) Plaintiff argues that the
12

1

records were relevant because they established that the onset of his mental disorders "occurred

2

very early in life and persisted throughout." (Id. at 7.) As discussed above, the ALJ validly

3

rejected the 2011 medical source statement based on its failure to explain the restrictions.

4

Moreover, the ALJ did review Plaintiff's long history of mental impairments, describing Plaintiff's

5

impairments from the age of 16 and reviewing the various reports. (AR 19.) The 2011 medical

6

source statement adds little to this discussion, particularly where the document includes no

7

reference to any past clinical results or patient history.
Thus, the Court finds that the ALJ did not err in assigning little weight to the 2011 medical

8
9

source statement.

10

ii.

Second, Plaintiff argues that the ALJ erred in assigning the greatest weight to the opinion

11
United States District Court
Northern District of California

Dr. Patricia Spivey

12

of examining physician, Dr. Spivey. (Plf.'s Mot. at 8.) The ALJ assigned Dr. Spivey great weight

13

for her examining opinion that Plaintiff had a mild impairment in maintaining emotional stability

14

and a good prognosis, based on Plaintiff's normal performance during the evaluation. (AR 21-22.)

15

The ALJ also noted that Dr. Spivey took time to review prior reports and noted that Plaintiff had

16

incorrectly denied his substance abuse history. (AR 22.)

17

In challenging the weight given to Dr. Spivey, Plaintiff contends that Dr. Spivey

18

misinterpreted the results of the administered exams because his test results placed him in low

19

percentiles. (Plf.'s Mot. at 8.) Specifically, Plaintiff points to his examination results that gave

20

him an IQ score of 72 (3rd percentile), auditory memory in the 5th percentile, and visual memory

21

in the 12th percentile. (Id. at 9; AR 627.) Plaintiff also points to his results in the Trails A/B,

22

which Plaintiff asserts indicates a mild and severe impairment respectively.3 (Plf.'s Mot. at 9.)

23

Plaintiff argues that "[t]hese test scores do not show a person with no functional limitations, but

24
25
26
27
28

3

Plaintiff also argues that the Trails results were disqualifying because of their proximity to the
tests conducted by Dr. Khalsa, relying on the Handbook of Psychological Assessment's (which the
Court cannot independently verify because Plaintiff did not provide the Handbook to the Court)
statement that "retesting in a 6 to 12 month period shows the lowest overall reliability for
schizophrenics of only .36 on Trial [sic] A." (Plf.'s Mot. at 9.) This, however, assumes Plaintiff
has schizophrenia, which is not clear from the record, as only Dr. Khalsa found that Plaintiff might
be suffering from schizophrenia, before noting that "it is unlikely." (AR 595.)
13

1

rather . . . they show a person with severe functional abilities," and thus Dr. Spivey's conclusion

2

that Plaintiff was mildly impaired was a misinterpretation of the results, and thus does not support

3

the ALJ's assignment of great weight. (Id. at 8-9.) Plaintiff also challenges the ALJ's finding that

4

Dr. Spivey reviewed the record, arguing that Dr. Spivey only examined one note from Santa Rita

5

jail, an excerpt of a psychological evaluation, and a January 2012 evaluation by Dr. Rana. (Id. at

6

9.)

7

The Court finds that the ALJ gave specific and legitimate reasons, and therefore did not err

8

in assigning Dr. Spivey great weight. Plaintiff primarily challenges Dr. Spivey's opinion based on

9

her impairment findings in light of the administered exams; Dr. Spivey's evaluation, however, was
not based solely on the administered exams. Dr. Spivey is clear that her diagnosis is based not

11
United States District Court
Northern District of California

10

only on the test score, but the clinical interview and mental status exam. (AR 628.) In the clinical

12

interview, Dr. Spivey observed that Plaintiff was "not acutely psychotic and did not appear

13

anxious," and "exhibited no signs of responding to internal stimuli or losing concentration." (AR

14

627.) Plaintiff was also able to perform most activities of daily living and get around on public

15

transportation. (Id.) From the mental status exam, Dr. Spivey found that Plaintiff's speech,

16

thought process, and content were normal. There was also no evidence of poor reality testing, no

17

response to internal stimuli, and no loose associations or other signs of thought disturbance.

18

Plaintiff also presented with a full affect and neutral mood. (Id.) The ALJ could reasonably find

19

that this normal performance supported Dr. Spivey's opinion, and assign great weight accordingly.

20

As to the examination of the record, even though Dr. Spivey's review of prior reports was limited,

21

this does not preclude the ALJ from assigning Dr. Spivey great weight, particularly when her

22

assessment was based on her own independent examination of Plaintiff. See Castaneda v. Astrue,

23

344 Fed. Appx. 396, 398 (9th Cir. 2009) ("Even assuming [the examining physician] did not

24

review [the plaintiff's] MRI, the ALJ did not err [because the examining physician's] assessment

25

rested on his own independent examination of [the plaintiff] and was consistent with the record as

26

a whole").

27
28

iii.

Dr. Puran Khalsa

Third, Plaintiff challenges the ALJ's decision to give little weight to Dr. Khalsa's opinion.
14

1

(Plf.'s Mot. at 10.) The ALJ gave little weight to Dr. Khalsa's opinion that the claimant had an

2

extremely poor prognosis and was unable to perform any job, explaining that such a determination

3

was reserved to the commissioner under 20 C.F.R. § 416.927(e). (AR 22.) The ALJ stated that

4

she still considered the opinion, but noted that it conflicted with the more recent examinations by

5

Dr. Spivey and Dr. Kollath. (Id.)
Plaintiff argues that the ALJ incorrectly cited 20 C.F.R. § 416.927(e), which pertains to

6

non-examining sources, rather than 20 C.F.R. § 416.927(d). (Plf.'s Mot. at 10.) Plaintiff also

8

argues that even if Dr. Khalsa's report conflicts with the two subsequent evaluations, there was

9

substantial evidence elsewhere in the record which support the schizoaffective and psychosis

10

diagnoses, although Plaintiff fails to provide any citations to the record. (Id. at 11.) Finally,

11
United States District Court
Northern District of California

7

Plaintiff challenges the two subsequent evaluations, in particular arguing that Dr. Kollath admitted

12

in his report that the test results were an "unreliable representation of [Plaintiff's] current

13

psychological functioning." (Id.) Defendants respond that the ALJ could reject Dr. Khalsa's

14

opinion based on the two subsequent evaluations. (Def.'s Opp'n at 8-9.)4
The Court finds that the ALJ adequately explained her decision to give little weight to Dr.

15
16

Khalsa's opinion about Plaintiff's prognosis and ability to perform any job. With respect to

17

Plaintiff's assertion that the ALJ cited to the wrong regulation, while Plaintiff appears to be correct

18

that the wrong section was identified, Plaintiff fails to explain why this mistake was prejudicial.

19

Indeed, 20 C.F.R. § 416.927(d) describes issues that are reserved to the Commissioner, including

20

whether a claimant is disabled and the residual functional capacity. Citation to the wrong section

21

is not harmful in this case because the ALJ correctly explained the principal of law being applied,

22

which Plaintiff does not challenge. As such, the Court rejects this argument.
Likewise, the Court rejects Plaintiff's argument that there is "substantial evidence" of

23
24

schizoaffective and psychosis diagnoses, as Plaintiff provides no citations to the record in support

25

of this conclusory statement. See Pulido v. Comm'r of Soc. Sec., No. 2:14-CV-2611-CMK, 2016

26
27
28

4

Defendant also argues that the ALJ rejected Dr. Khalsa's opinion based on the GAF score, but
the ALJ did not refer to the GAF score in explaining why she gave little weight to Dr. Khalsa's
opinion. (Def.'s Opp'n at 8-9; AR 22.)
15

WL 1170856, at *9 (E.D. Cal. Mar. 25, 2016) ("The court rejects plaintiff's conclusory statement.

2

Plaintiff provides no citation to the record supporting mental limitations not included in the ALJ's

3

residual functional capacity assessment"). The Court also rejects Plaintiff's argument that the two

4

subsequent evaluations were problematic. As discussed above, Dr. Spivey's evaluation was

5

adequate. With respect to Dr. Kollath, while Dr. Kollath did find that his test results were an

6

"unreliable representation" of Plaintiff's abilities, this was due to Plaintiff's "suboptimal efforts."

7

(AR 668.) Moreover, Dr. Kollath's opinion was not limited to the mental status exam, but the

8

clinical interview as well. (AR 669.) Dr. Kollath described Plaintiff as being friendly and

9

cooperative, and with good eye contact and adequate facial expression. (AR 666.) Plaintiff was

10

also observed interacting appropriately with Dr. Kollath and the staff, and displaying no bizarre

11
United States District Court
Northern District of California

1

behavior. (Id.) Plaintiff also reported being independent for basic activities. (AR 667.) Taken

12

together, Plaintiff's focus on Dr. Kollath's statement that the test results were an "unreliable

13

representation" alone does not invalidate Dr. Kollath's opinion, such that the ALJ could not find

14

that Dr. Khalsa's opinion was contradicted by two subsequent examinations. The Court finds that

15

the ALJ gave specific and legitimate reasons in giving little weight to Dr. Khalsa's opinion.

16

B.

Step Two Severe Impairments

17

Next, Plaintiff argues that the ALJ erred by not finding that Plaintiff suffered

18

schizoaffective disorder, PTSD, and anxiety. (Plf.'s Mot. at 11.) Plaintiff also argues that the ALJ

19

erred by finding Plaintiff's polysubstance abuse to be severe. (Id.) The second step of the

20

sequential evaluation process is the determination of whether the claimant's impairment or

21

combination of impairments is "severe." Reddick, 157 F.3d at 721. Under the de minimis step

22

two standard, "an impairment or combination of impairments may be found not severe only if

23

evidence establishes a slight abnormality that has no more than a minimal effect on an individual's

24

ability to work." Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005). Step two is a "de

25

minimis screening device [used] to dispose of groundless claims." Id. at 687. An ALJ may only

26

find that a claimant lacks a medically severe impairment or combination of impairments when the

27

conclusion is based on "clearly established medical evidence." Id.

28

In support of his argument, Plaintiff points to a March 9, 2008 medical record which lists a
16

1

secondary diagnosis of schizophrenia/psychosis, as well as Dr. Khalsa's examination. (Plf.'s Mot.

2

at 12.) With respect to Plaintiff's contention that the ALJ erred by finding Plaintiff's

3

polysubstance abuse to be severe, Plaintiff offers no legal or factual argument in support.

4

Defendant responds that only Dr. Khalsa diagnosed schizophrenia, PTSD, and anxiety, and that

5

Dr. Khalsa's opinion was properly discounted by the ALJ. (Def.'s Opp'n at 11-12.)
The Court finds that the ALJ did not err in not finding schizophrenia, PTSD, and anxiety.

6
7

Plaintiff primarily relies on Dr. Khalsa's opinion, but as discussed above, the ALJ properly

8

explained why she discounted Dr. Khalsa's opinion.5 While Plaintiff points to other medical

9

records which state that Plaintiff had schizophrenia and that he was taking medication for anxiety,
these medical records do not demonstrate that Plaintiff's schizophrenia or anxiety had any effect

11
United States District Court
Northern District of California

10

on his ability to work.6 (AR 470, 471, 474, 479, 480, 485, 486, 489, 495.) "Having a diagnosis

12

and taking medication for over one year does not automatically render an impairment severe for

13

the purposes of step two." Saballos v. Colvin, Case No. 13-cv-5943-KAW, 2015 WL 1481563, at

14

*7 (N.D. Cal. Mar. 31, 2015). Similarly, these records provide no information on whether the

15

medication was effective, such that with medication, the effects were mild or had more than a

16

minimal effect on Plaintiff's ability to work. See id.; see also AR 491 (finding that Plaintiff's

17

agitation and paranoia "improved significantly" after being placed on Seroquel).
Further, even if the ALJ had erred in not finding schizophrenia, PTSD, and anxiety,

18
19

Plaintiff fails to identify how any error was harmful given that the ALJ considered these

20

symptoms when continuing the sequential analysis. See Lewis v. Astrue, 498 F. 3d 909, 911 (9th

21

Cir. 2007) (harmless error when decision reflects that the ALJ considered the plaintiff's limitations

22

at step four). At step three, the ALJ considered Plaintiff's allegations of hallucinations and

23
24
25

5

It is also not clear Dr. Khalsa's opinion supports a diagnosis of schizophrenia, as Dr. Khalsa
stated that such a diagnosis was "unlikely." (AR 595.)
6

26
27
28

The Court notes that these medical records were from 2008, well before the relevant period. See
Tate v. Colvin, Case No. ED CV 14-1248-DFM, 2015 WL 5234015, at *4 (C.D. Cal. Sept. 8,
2015) ("records that predate the relevant period by two to four years are of only limited
relevance"); Fair v. Brown, 885 F.2d 597, 600 (9th Cir. 1989) (finding that a medical report that
predated the period at issue was relevant only to the claimant's burden of proving that his
condition had worsened since).
17

1

paranoia in determining that Plaintiff had moderate difficulties in social functioning. (AR 16.)

2

Those hallucinations and paranoia were the basis of Dr. Khalsa's finding that Plaintiff could be

3

suffering from schizoaffective disorder. (AR 595.) The ALJ also considered these symptoms in

4

determining Plaintiff's RFC, recounting Plaintiff's hallucinations and paranoia, before noting that

5

his condition improved on medications and that several medical doctors, including treating

6

physician Dr. Rosenthal, questioned the allegations of hallucinations. (AR 19-20.)

7

As to Plaintiff's argument that the ALJ erred by finding Plaintiff's polysubstance abuse to

8

be severe, again, Plaintiff provides no argument in support. Absent any explanation, the Court

9

need not entertain this argument. See Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1210 n.4
(9th Cir. 2013) (declining to consider assertions unsupported by argument). In any case, the

11
United States District Court
Northern District of California

10

record contains significant evidence that Plaintiff had abused drugs, and that these actions may

12

have caused Plaintiff's symptoms. (See AR 628 (finding that Plaintiff's reported symptoms of

13

psychosis were "possibly real but attributable to drug use"), 657 (finding that Plaintiff's claims of

14

auditory hallucinations "may be drug seeking in view of his history").)

15
16
17
18
19

Accordingly, the Court concludes that the ALJ's decision not to include schizophrenia,
PTSD, and anxiety as severe impairments was supported by substantial evidence.
C.

Step Three Listing
i.

Paragraph A Criteria

Plaintiff argues that the ALJ erred because she failed to consider whether Plaintiff met the

20

A criteria for a 12.03, 12.04, and/or 12.06 listing. (Plf.'s Mot. at 13.) While the ALJ did not

21

discuss whether Plaintiff met the A criteria, this was not error. In order to meet a listing in

22

Appendix 1 for a mental disorder, a claimant must satisfy criteria in paragraph A of the listings,

23

which medically substantiate the presence of a mental disorder, and the criteria in paragraphs B or

24

C, which describe the functional limitations associated with the disorder that are incompatible

25

with the ability to work. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00. Thus, even if Plaintiff met

26

the A criteria, he would still need to demonstrate that he met the criteria in paragraphs B or C.

27

The ALJ did, however, consider whether Plaintiff met the B or C criteria for a 12.03, 12.04, 12.06,

28

and 12.09 listing. (AR 16 ("Contrary to the testimony of medical expert . . . the severity of the
18

1

claimant's mental impairments, considered singly and in combination, do not meet or medically

2

equal the criteria of listings 12.03, 12.04, 12.06, and 12.09) (emphasis added).) As discussed

3

below, the ALJ's decision that Plaintiff did not meet the B or C criteria was supported by

4

substantial evidence. Thus, the ALJ's failure to explicitly consider whether Plaintiff met the A

5

criteria for 12.03, 12.04, and/or 12.06 listing was harmless.

6
7

ii.

Paragraph B Criteria

In order to satisfy the criteria in paragraph B, Plaintiff's paragraph A impairment must

8

result in at least two of the following: (1) marked restriction in the activities of daily living; (2)

9

marked difficulties in maintaining social functioning; (3) deficiencies of concentration,
persistence, or pace resulting in frequent failure to complete tasks in a timely manner (in work

11
United States District Court
Northern District of California

10

settings or elsewhere); or (4) repeated episodes of decompensation, each of extended duration (i.e.,

12

three episodes within one year, or an average of once every four months, each lasting for at least

13

two weeks). 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.04(B).

14

First, Plaintiff argues that the ALJ erred in determining that Plaintiff had only a mild

15

impairment in activities of daily living. Plaintiff contends that the ALJ should not have relied on

16

Dr. Spivey's and Dr. Kollath's findings, and that Plaintiff had informed Dr. Khalsa that his

17

girlfriend helped with chores such as washing laundry and cooking meals. (Plf.'s Mot. at 16.) The

18

Court finds that the ALJ's finding was supported by substantial evidence. Dr. Spivey found that

19

Plaintiff was able to perform most activities of daily living. (AR 627.) Dr. Kollath's report also

20

indicated that Plaintiff was independent for basic activities of daily living, and that he did not need

21

help with preparing meals. (AR 667.) The fact that Plaintiff informed Dr. Khalsa that his

22

girlfriend helped with chores such as washing laundry and cooking meals does not alone

23

demonstrate that Plaintiff had a marked impairment in activities of daily living, particularly when

24

later examinations found that Plaintiff did not require assistance in activities of daily living,

25

including with meals.

26

Second, Plaintiff contends that the ALJ erred in finding that Plaintiff was only moderately

27

impaired in social functioning. (Plf.'s Mot. at 16.) Plaintiff relies on the July 2011 medical source

28

statement, Dr. Khalsa's report, and Dr. Johnson's testimony. The Court finds that the ALJ did not
19

1

err in finding that Plaintiff was only moderately impaired. The ALJ explained that Plaintiff had a

2

history of fights and violence, which suggested social deficits, as well as endorsing hallucinations

3

and felt that people stared at him. (AR 16.) The ALJ found, however, that moderating these

4

problems, Plaintiff was able to share his cell with another inmate, was able to develop and

5

maintain relationships during the relevant period, and engaged in activities that put him in contact

6

with other people, such as riding the bus and spending time in the park. (AR 16.) Thus, contrary

7

to Plaintiff's reports of being paranoid of other people and avoiding public places in fear of being

8

attacked, Plaintiff demonstrated that he was able to interact with others and did go to public

9

places, where he would be put in contact with other people. Further, as discussed above, the ALJ
did not err in finding that the July 2011 medical source statement and Dr. Khalsa's report were

11
United States District Court
Northern District of California

10

entitled to little or no weight. As for Dr. Johnson's testimony, Dr. Johnson explained that his

12

opinion was reliant on the July 2011 medical source statement and Dr. Khalsa's report. (AR 36.)

13

For that reason, the ALJ gave his hearing testimony little weight. (AR 22.) The Court finds that

14

the ALJ's assessment is supported by substantial evidence.
Finally, Plaintiff argues that the ALJ erred in finding that Plaintiff was only moderately

15
16

impaired in concentration and persistence in pace. (Plf.'s Mot. at 18.) Again, Plaintiff primarily

17

relies on Dr. Khalsa's report, to which the ALJ did not err in giving reduced weight. Plaintiff also

18

relies on the results from Dr. Spivey's testing, which gave Plaintiff low marks in IQ, verbal

19

comprehension, perceptual reasoning, working memory, and processing speed. (Id.) The ALJ

20

acknowledged these test results, but ultimately relied on Dr. Spivey's finding that Plaintiff's

21

functioning was intact, as well as Plaintiff's ability to handle money. (AR 16-17.) Dr. Spivey's

22

opinion was based not only on the test results, but on the full evaluation, which included an

23

interview with Plaintiff. The Court concludes that the ALJ's finding was supported by substantial

24

evidence.7

25
7

26
27
28

Moreover, even if the ALJ had erred in finding moderate restrictions, as opposed to marked
restrictions, in Plaintiff's concentration, persistence, and pace, the error would be harmless.
Plaintiff must demonstrate marked impairment in at least two of the four paragraph B criteria; as
discussed, the ALJ did not err in finding that Plaintiff lacked marked restrictions in activities of
daily living and social functioning. As for periods of decompensation, Plaintiff does not argue
that this requirement is satisfied under paragraph B. (See Plf.'s Mot. at 15-19.)
20

1
2

Therefore, the Court concludes that the ALJ did not err in finding that Plaintiff did not
satisfy the paragraph B criteria.

3
4

iii.

Paragraph C Criteria

Next, Plaintiff argues that the ALJ erred by finding that Plaintiff did not meet the
paragraph C criteria when she concluded that Plaintiff had experienced no episodes of

6

decompensation, which have been of extended duration. (Plf.'s Mot. at 19.) To satisfy the criteria

7

of paragraph C, Plaintiff's paragraph A impairment, of at least 2 years' duration, must cause more

8

than a minimal limitation of ability to do basic work activities, with symptoms or signs currently

9

attenuated by medication or psychosocial support, as well as one of the following: (1) repeated

10

episodes of decompensation, each of extended duration; (2) a residual disease process that has

11
United States District Court
Northern District of California

5

resulted in such marginal adjustment that even a minimum increase in mental demands or change

12

in environment would cause decompensation; or (3) current history of one or more years' inability

13

to function outside a highly supportive living arrangement. 20 C.F.R. Pt. 404, Subp. P, App'x 1 §

14

12.04(C).

15

Here, Plaintiff first relies on the July 2011 medical source statement, which indicated that

16

Plaintiff had three episodes of decompensation within a 12 month period, each of at least two

17

weeks duration. (Plf.'s Mot. at 19; AR 548.) Again, the ALJ could give the July 2011 medical

18

source statement little weight, given its lack of explanation. Moreover, the July 2011 medical

19

source statement preceded the relevant period; there is no evidence that Plaintiff suffered repeated

20

episodes of decompensation, each of extended duration, during the relevant period. Compare with

21

Fry v. Comm'r of Soc. Sec., No. 2:15-cv-2023-KJN, 2017 WL 999459, at *5 (E.D. Cal. Mar. 15,

22

2017) (no evidence that the plaintiff had experienced any episodes of decompensation during the

23

relevant period); Phillips v. Colvin, Civil Action No. 2:14CV67, 2015 WL 1268292, at *27

24

(N.D.W.V. Mar. 19, 2015) ("although Dr. Salman opined that Plaintiff had experienced three (3)

25

episodes of decompensation [citation], the record is silent as to any episodes of decompensation

26

during the relevant period"); Havens v. Colvin, Civil No. 3:13-cv-600, 2014 WL 4659957, at *9

27

("Havens' medical records do not document a single episode of decompensation within the

28

relevant period, and thus the requirements of subparagraph 1 are not met"). While Plaintiff also
21

1

points to Dr. Johnson's testimony that Plaintiff had at least four hospitalizations, Dr. Johnson did

2

not explain when these hospitalizations occurred, did not cite to any medical records, and admitted

3

that none of the episodes were of extended period. (Plf.'s Mot. at 19; AR 44.) The Court therefore

4

finds that the ALJ did not err in finding that Plaintiff did not meet the paragraph C criteria based

5

on Plaintiff suffering repeated episodes of decompensation of extended duration.

6

D.

Credibility Determination

7

Plaintiff argues that the ALJ erred in evaluating Plaintiff's credibility by failing to consider

8

the entire case record and provide clear and convincing reasons. (Plf.'s Mot. at 20.) The ALJ

9

found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of his
impairments was not entirely credible, focusing on Plaintiff's limited work history, failure to

11
United States District Court
Northern District of California

10

attend at least two consultative examinations, inconsistency in admitting substance abuse, and

12

treatment history. (AR 21.)

13

In evaluating a claimant's testimony regarding subjective pain or other symptoms, and ALJ

14

must engage in a two-step inquiry. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citation

15

omitted). An ALJ must first "determine whether the claimant has presented objective medical

16

evidence of an underlying impairment which could reasonably be expected to produce the pain or

17

other symptoms." Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotations

18

and citations omitted). At this step, a claimant need not show that her impairment "could

19

reasonably be expected to cause the severity of the symptom she has alleged; she need only show

20

that it could reasonably have caused some degree of the symptom." Id. (internal quotation and

21

citations omitted). Next, if a claimant meets this first prong and there is no evidence of

22

malingering, the ALJ must then provide "specific, clear, and convincing reasons" for rejecting a

23

claimant's testimony about the severity of her symptoms. Id. The Ninth Circuit has found that:

24
25
26
27
28

[t]he ALJ may consider many factors in weighing a claimant's
credibility, including (1) ordinary techniques of credibility
evaluation, such as the claimant's reputation for lying, prior
inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid; (2)
unexplained or inadequately explained failure to seek treatment or to
follow a prescribed course of treatment; and (3) the claimant's daily
activities. [Citations.] If the ALJ's finding is supported by
substantial evidence, the court may not engage in second-guessing.
22

1

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
Plaintiff argues that the failure to submit to psychiatric treatment is not a clear and

3

convincing reason to discount credibility. (Plf.'s Mot. at 20.) Plaintiff relies on cases in which the

4

Ninth Circuit has found that the failure of a claimant to seek treatment was not a reason to reject a

5

medical opinion. Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)

6

("Nor is Regennitter's failure, because of his poverty, to seek treatment by any mental professional

7

a valid reason for the ALJ to reject Dr. Manfield's opinion"); Nguyen v. Chater, 100 F.3d 1462,

8

1465 (9th Cir. 1996) ("the fact that claimant may be one of millions of people who did not seek

9

treatment for a mental disorder until late in the day is not a substantial basis on which to conclude

10

that Dr. Brown's assessment of claimant's condition is inaccurate"). These cases, however, "say[]

11
United States District Court
Northern District of California

2

nothing about whether a claimant's failure to follow a recommended course of treatment . . . is a

12

factor that can adversely impact the claimant's credibility concerning the severity of his psychiatric

13

symptoms." Dreesman v. Colvin, Case No. 13-cv-2009-LHK, 2014 WL 4626006, at *9 (N.D. Cal.

14

Sept. 15, 2014). Moreover, Plaintiff presents no evidence that his failure to seek treatment was

15

attributable to his mental impairment rather than personal preference. Molina, 674 F.3d at 1113-

16

14 ("a claimant's failure to assert a good reason for not seeking treatment . . . can cast doubt on the

17

sincerity of the claimant's . . . testimony"). Thus, the ALJ did not err in basing her adverse

18

credibility finding on Plaintiff's failure to seek treatment.

19

Similarly, the ALJ did not err in basing her adverse credibility finding on Plaintiff's failure

20

to attend consultative exams. Plaintiff does not explain why he failed to attend at least two

21

consultative examinations, and courts in this district have found that an "unexcused failure to

22

attend a consultative evaluation would justify an ALJ's decision to discredit that claimant's

23

testimony." Zamora v. Astrue, No. C 09-4852 JSW, 2010 WL 3768001, at *7 (N.D. Cal. Sept. 22,

24

2010), affirmed by Zamora v. Comm'r of Soc. Sec. Admin., 471 Fed. Appx. 579 (9th Cir. 2012).

25

Plaintiff also challenges the ALJ's finding that Plaintiff was inconsistent in admitting his

26

substance abuse. (Plf.'s Mot. at 21.) Plaintiff argues that he was open about his substance abuse,

27

pointing to his records from one medical provider. Plaintiff admits, however, that there are

28

"conflicting reports" from Dr. Kollath and McMillian, but argues that Dr. Kollath's results are
23

1

unreliable. (Id.) Plaintiff also theorizes that memory loss "[wa]s a particular symptom related to

2

his illness," but provides no evidence that he was suffering from memory loss at the time of Dr.

3

Kollath's examination. The Court finds the ALJ did not err in basing her adverse credibility

4

finding on Plaintiff's inconsistency in admitting substance abuse. While Plaintiff has been

5

forthcoming at some times about his drug use, he has also denied his substance abuse at other

6

times. For example, on April 27, 2012, Plaintiff told Dr. Spivey that he had not had an alcohol or

7

drug problem, and denied the abuse of any substances currently or historically, both verbally and

8

on his intake forms. (AR 626.) On March 11, 2013, Plaintiff admitted to Dr. Kollath that he had a

9

history of substance abuse, but claimed that the last time he used drugs was "a couple years ago."
(AR 667.) That very same day, however, Plaintiff informed Dr. McMillan that he had snorted

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cocaine three days prior. (AR 673.) While Plaintiff argues that Dr. Kollath described the test

12

results as "unreliable," this description concerned the test results, and does not invalidate Plaintiff's

13

own statements made to Dr. Kollath. Plaintiff's selectiveness in admitting to substance abuse

14

justifies the ALJ's adverse credibility finding.

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Next, Plaintiff challenges the ALJ's finding that Plaintiff's limited work history undermines

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credibility, arguing that this assessment is "tenuous at best and not supported by regulations or

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case law." (Plf.'s Mot. at 21.) Plaintiff provides no authority for this proposition. The Ninth

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Circuit has, in fact, found that an ALJ may consider a claimant's work record as one of the factors

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in weighing claimant credibility. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) ("The

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ALJ may consider at least the following factors when weighing the claimant's credibility: . . . [her]

21

work record"). The ALJ therefore could validly consider Plaintiff's work record as one factor in

22

weighing Plaintiff's credibility.

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Plaintiff also challenges the ALJ's discussion of Plaintiff's daily activities, which included

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going to the park and riding public transportation. In support, Plaintiff cites to authority that

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claimants need not be utterly incapacitated to be eligible for benefits. (Plf.'s Reply at 12.) Such

26

authority does not mean that the ALJ erred in considering Plaintiff's daily activities in determining

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Plaintiff's credibility; daily activities are one of the factors the Ninth Circuit has found may be

28

considered in determining credibility. Thomas, 278 F.3d at 959 (listing factors that may be
24

1

considered in weighing a claimant's credibility, including daily activities"). Given that Plaintiff

2

claimed paranoia to the point that he was afraid of leaving his home, the ALJ could find that his

3

daily activities contradicted these claims, as riding public transportation and going to the park

4

would put him in contact with the public. (AR 16, 21.) Such discrepancies would then go to

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Plaintiff's credibility. Molina, 674 F.3d at 1112 ("the ALJ may consider inconsistencies . . .

6

between the testimony and the claimant's conduct, [including] whether the claimant engages in

7

daily activities inconsistent with the alleged symptoms") (internal quotation omitted).

8

Finally, Plaintiff challenges the ALJ's findings regarding Plaintiff's improvement on
medication, arguing that "just because a person suffers from depression or anxiety and makes

10

some improvement does not mean that the person's impairment no longer seriously affect her

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ability to function in a workplace." (Plf.'s Mot. at 21 (internal quotation omitted).) Plaintiff does

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not, however, explain why this would affect Plaintiff's credibility. It is not clear how much the

13

ALJ considered Plaintiff's improvement on medication in her credibility determination; regardless,

14

the ALJ articulated multiple reasons why she did not find Plaintiff credible, including his failure to

15

seek treatment, his limited work history, his failure to attend at least two consultative

16

examinations, his inconsistency in admitting substance abuse, and the inconsistency between his

17

daily activities and claims of symptoms. Therefore, the Court concludes that the ALJ provided

18

multiple specific, clear, and convincing reasons in support of her credibility determination.

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E.

Residual Functional Capacity Determination

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Finally, Plaintiff argues that the ALJ's RFC was not based on substantial evidence. (Plf.'s

21

Mot. at 22.) A social security claimant's RFC is what the claimant is capable of doing despite his

22

or her mental and physical limitations. 20 C.F.R. §§ 404.1545(a)(1), 415.945(a)(1); Valentine v.

23

Comm'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). An RFC is "an assessment of an

24

individual's ability to do sustained work-related physical and mental activities in a work setting on

25

a regular and continuing basis." SSR 96-8p, 1996 SSR LEXIS 5. The ALJ must consider all

26

relevant evidence in formulating an RFC, and "an RFC that fails to take into account a claimant's

27

limitations is defective." Valentine, 574 F.3d at 690. The ALJ's findings may be set aside if not

28

supported by substantial evidence. McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002);
25

1

Smolen, 80 F.3d at 1040-41 (RFC excluding subjective limitations was not supported by

2

substantial evidence where the ALJ did not provide clear and convincing reasons for discrediting

3

claimant's testimony).
Here, the ALJ found that Plaintiff had the residual functional capacity to perform medium

4
5

work, and that he could occasionally stoop, kneel, and crouch. (AR 17.) The ALJ restricted

6

Plaintiff to simple, routine tasks with no public contact and only occasional interaction with

7

coworkers and supervisors. The ALJ also found that Plaintiff could maintain attention and

8

concentration for two-hour increments with normal breaks. (Id.) Plaintiff asserts that the ALJ

9

erred in this RFC determination because there was evidence of greater limitations; in support,
Plaintiff relies solely on the conclusions in the July 2011 medical source statement, Dr. Khalsa's

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10

report, and Dr. Johnson's testimony. (Plf.'s Mot. at 24.) As discussed above, the ALJ provided

12

valid explanations for why she gave these reports lower or no weight. Plaintiff does not otherwise

13

challenge the RFC, and therefore the Court concludes that ALJ's findings were supported by

14

substantial evidence.8

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V.

For the reasons set forth above, Plaintiff's motion for summary judgment is DENIED, and

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17

Defendant's cross-motion for summary judgment is GRANTED. The Clerk shall close the case.
IT IS SO ORDERED.

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CONCLUSION

Dated: August 29, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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In the reply, Plaintiff for the first time challenges the vocational expert analysis, arguing that the
ALJ did not include limitations in her hypotheticals to include the ALJ's findings that Plaintiff has
mild restrictions in activities of daily living and moderate restrictions in social functioning and
concentration, persistence, and pace. (Plf.'s Reply at 13.) As this issue was not raised in Plaintiff's
motion, it is waived. See Whiteway v. FedEx Kinkos Office & Print Servs., Inc., No. C 05-2320
SBA, 2007 WL 4531783, at *3 (N.D. Cal. Dec. 17, 2007) ("Courts decline to consider arguments
raised for the first time in reply" (internal citations omitted). In any case, the RFC reflects these
restrictions; the ALJ specifically explained that "[t]he mental impairments limit the complexity of
tasks [Plaintiff] can perform and his interactions with other people." (AR 22.) Thus, by asking
the vocational expert questions that were based on the RFC, the ALJ included these limitations.
26