Lilley v. Berryhill

Filing 21

ORDER by Judge Kandis A. Westmore Denying 17 Plaintiff's Motion for Summary Judgment; Granting 19 Defendant's Motion for Summary Judgment. (kawlc3, COURT STAFF) (Filed on 9/28/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD RAY LILLEY,
Plaintiff,

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ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY
JUDGMENT; GRANTING
DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT

v.
NANCY A. BERRYHILL,
Defendant.

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United States District Court
Northern District of California

Case No. 4:17-cv-04381-KAW

Re: Dkt. Nos. 17, 19

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Plaintiff Donald Ray Lilley ("Plaintiff") seeks judicial review, pursuant to 42 U.S.C. §

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405(g), of the Commissioner's final decision, and the remand of this case for benefits or further

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proceedings.

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Pending before the Court is Plaintiff's motion for summary judgment (Dkt. No. 17) and

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Defendant's cross-motion for summary judgment (Dkt. No. 19). 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

On August 29, 2012, Plaintiff applied for Title XVI Supplemental Security Income,

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alleging a disability that began on April 8, 2006. (Administrative Record ("AR") 18, 46, 65.)

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Plaintiff alleged "various mental [health] and physical impairments" (AR 46, 129) and was given a

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primary priority impairment diagnosis of "anxiety disorders" (AR 45, 58, 59), with a secondary

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priority impairment diagnosis of "affective disorders" (AR 45, 58, 59), a later secondary diagnosis

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of "disorders of back (discogenic & degenerative)" (AR 65) and other priority impairment

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diagnoses of "spine disorders" (AR 58) and "asthma" (AR 58). The Social Security

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Administration ("SSA") denied Plaintiff's application initially on August 30, 2013. (AR 45, 67-

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71.) On October 28, 2013, Plaintiff then filed a written request for a hearing before an

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Administrative Law Judge ("ALJ"). (AR 73.) The SSA, however, processed this as a request for

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reconsideration. (AR 74.) The SSA denied Plaintiff's application upon reconsideration on March

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14, 2014. (AR 75-19.) On April 17, 2014, Plaintiff filed another written request for a hearing

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before an ALJ. (AR 81.) The assigned ALJ, Richard P. Laverdure, held a hearing on January 20,

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2016, at which Plaintiff, Medical Expert ("ME") Dr. Ann Monis and Vocational Expert ("VE")

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Lynda Berkley testified. (AR 18, 433.) The Plaintiff was represented by Attorney Suzanne Zalev

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at the hearing. (AR 18, 433.)

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During the hearing, the ALJ noted that there were two prior adverse ALJ decisions, the
most recent one dated May 18, 2012 and the other one an abandonment dismissal dated sometime

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Northern District of California

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in 2010. (AR 433-34, 437.) Plaintiff also testified at the hearing that the last job he had was

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working as a van driver for Marriott in 2008 or 2009, where he was paid weekly. (AR 435.) In

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2006, he worked for: the Saunders Hotel, Swift Transportation, Toms Company and Tomdra

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Incorporated, but for Tomdra, he "tried to train for about a week" and "couldn't do that one." (AR

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436-37.) Plaintiff also testified that he attended college for three years, studying anthropology and

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then creative writing, but did not complete a degree program. (AR 437.)

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Also at the hearing, ME Monis identified Exhibit 18F (AR 407-13) noting the impairments

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in Plaintiff of post traumatic stress disorder ("PTSD") and major depression, Exhibit C-11F (AR

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349-53) indicating a diagnosis of PTSD, Exhibit C-8F (AR 327-34) indicating diagnoses of

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anxiety disorder, Exhibit C-4F (AR 289-90) indicating diagnoses of amnestic mild cognitive

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impairment, social phobia, PTSD, major depressive disorder, and general anxiety disorder. (AR

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440.) ME Monis also testified that all the aforementioned diagnoses were "single examinations,

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which is something that concerned [her] in this entire file" because the file appeared to "have

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contradictory data," and "lacks treatment notes," she "did not receive anything that indicates that

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the client has been in any kind of ongoing therapy" and she did have "single-visit exams that do

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span over the course of the last, approximately, four years, but nothing dating back to 2006." (AR

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441.) This led ME Monis to conclude that "[a]ll in all, the client [or Plaintiff] did not meet any of

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the listings, alone or in combination." (Id.)
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As an example, ME Monis noted for "Exhibit C-8F [AR 327-34], dated 7/29/13, by Dr.

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Sardy, we have a full scale I.Q. of 122 [for Plaintiff], and a working memory index of 108 with a

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corresponding GAF score of 53. Yet the year before, nearly exactly a year before, 7/11/12,

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[Plaintiff] suffers from amnestic cognitive impairment" which "would mean that his memory is

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not working." (AR 441-42.) Because the above data was "ten standard deviations above the norm,"

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and revealed "mild to moderate symptoms in some of [Plaintiff's] evaluations, yet severe

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symptoms in others" ME Monis found it "odd" and "contradictory" for memory, because there

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were "many mental status exams that come out normal" and the data does not show Plaintiff

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"meeting or exceeding the cut-off criteria on any of his many mental status exams." (AR 442.)
Another issue that ME Monis found with one of the evaluations, specifically for Exhibit C-

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United States District Court
Northern District of California

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8F (AR 327-34) again, was that one of the evaluators, Dr. Robert Sardy, PhD, used "a gradient of

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moderate to severe rather than checking a box that actually corresponds with an answer" and

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"[u]nfortunately, a gradient doesn't work because it leaves too much ambiguity. Yet [Dr. Sardy]

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rates [Plaintiff's] GAF [Global Assessment of Functioning]1 of 53, which is moderate. So to err on

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the side of caution, I had to sort of try to collaborate the record [Dr. Sardy] himself is submitting. I

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erred on the moderate side." (Id.) ME Monis further testified that "[y]ou will continue to see

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[Plaintiff's] GAFs that vary between the 45 and 41 range, yet the [evaluations] themselves say

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there is nothing of note, no issues, and the many mental status exams come up normal. Everything

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is within normal limits, and then we see a GAF score [that] says [Plaintiff is] 45, and the

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[Plaintiff] saying that his memory is impaired and he can't remember anything" and "[y]et nothing

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was in the evaluation indicating that [Plaintiff] wasn't able to answer the questions." (AR 443.)

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ME Monis also testified that Exhibit C-19F (AR 414-28), which contains handwritten

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notes dated 12/11/15 involving a mental impairment questionnaire from Melissa Anderson, a

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licensed marriage and family therapist at West Berkley Family Practice who Plaintiff saw weekly

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since 7/21/15, contained "consistent" and "well founded" diagnoses of the Plaintiff's mental health

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"GAF stands for 'Global Assessment of Functioning.['] The GAF is a scale from 0 to 100 where
higher scores indicate greater levels of functioning. Optimal mental health and coping capabilities
are represented by scores in the 91 – 100 range. Persons with mild psychological problems fall in
the 71 – 90 range." See https://www.mentalhelp.net/advice/what-does-gaf-stand-for/
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with the rest of the record. (AR 444-45.) ME Monis also remarked that "even this clinician from

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7/21/2015 indicates that the GAF score for the past year is in the 60s, which means that we're

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looking at 20 point improvements from the years before." (AR 445.) ME Monis also indicated that

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Plaintiff had "fair consistency in attendance since July" and his diagnoses appears to be "fairly

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consistent once he started attending. The diagnoses [also] do seem to be within range...his GAF

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score seems to be going up, which is indicative that he's getting better." (Id.)

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Overall, given the internal inconsistency in records, ME Monis stated that Plaintiff

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"consistently reports difficulty with social interactions and difficulty with coworkers" and to "err

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on the side of caution," she rated Plaintiff "mild" in "restriction of daily activities of daily living,"
"moderate" in "difficulties in maintaining social functioning," "mild" in "difficulties in

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maintaining concentration, persistence, or pace" and "none" for "repeated episodes of

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deterioration." (AR 447-48.) Also, when questioned by the ALJ, ME Monis suggested – judging

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by Plaintiff's report – that a work capacity with limitations on interactions with others, particularly

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with the public, would be appropriate. (AR 448.)

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When questioned by Attorney Zalev on what helped draw conclusions about Plaintiff's

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conditions other than GAF scores, ME Monis testified that: "I believe the diagnoses are internally

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consistent. They do repeat themselves. I did explore his test scores. I compared them to other test

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scores a year later. I evaluated each and every independent evaluation he's received and tried to

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understand where these scores were derived from and how they've changed over time, hardly

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focused only on the GAF score. Like I said, he has [a] 122 I.Q., a working memory of 108, and yet

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a year before, he was diagnosed with amnestic disorder. This would be consistent with the

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possibility of malingering [or feigning illness]. Someone has an amnestic disorder one year, and

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then has a 108 score the following year would be something to investigate." (AR 448-49.) In

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addition, ME Monis described Exhibit C-1F (AR 260-76), which describes a MCMI-III test for

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malingering performed on Plaintiff by Dr. Katherine Wiebe, Ph.D. (finding that Plaintiff was not

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malingering) as something that does not "measure the overall assessment of an individual" and

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which must be taken into account along with "his clinical interview, and all of his other testing" in

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order to "establish whether your client is malingering." (AR 449-50.)
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Nonetheless, ME Monis stated that she had "no doubt that [Plaintiff's] scores on the

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MCMI-III are indeed valid" but even though "we may be looking at a valid test result," this

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"doesn't change the entire evidence in the file dating back four or five years indicating varying

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results of varying credibility and changing scores that may or may not be reliable." (AR 450-51.)

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ME Monis also affirmed the ALJ's inquiry that there's a question of whether or not Plaintiff may

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be truly malingering, given some of the inconsistencies she has seen. (AR 451.) ME Monis also

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testified that Plaintiff indicated "varying symptoms of depressive disorders throughout the file,

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some of which are he doesn't want to leave home. He's not able to do things for himself. He's sad.

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He's not feeling well...he spends time on his computer. He doesn't go out. The home is cluttered.
He has difficulty performing chores. He's not capable of tidying areas that are too large, only

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United States District Court
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things that [are] accessible to him. He can only do simple meals. Going out in public makes him

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anxious. Seeing people makes him anxious. He doesn't like to leave his home," the symptoms she

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saw more evidence of were "post traumatic stress" and "ongoing anxiety" although "major

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depression" came up several times, preceded by PTSD, and "that, overall, he's experiencing

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anxiety and depression." (AR 452.)

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ME Monis further stated that Plaintiff's PTSD affects him by making him experience

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"emotional withdrawal and isolation, some difficulty in concentration, and his mood" from

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depression, described above. (AR 453.) In addition, when questioned by Attorney Zalev on

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Plaintiff's conditions limiting his daily living activities, she said it is very difficult for her to

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"answer a question from six months of records and establish that a person is disabled, which

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requires a minimum of 12 months of ongoing symptoms and treatment" and that you are required

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"to have symptoms for a minimum of 12 months in order to fall into the criteria of mental

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disability" which the ALJ remarked as a "reference to what we have to apply in terms of whether

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or not a person meets the durational requirement for severity." (AR 453-55.)

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ME Monis also testified that the specific trauma that Plaintiff reported as forming the basis

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for the PTSD diagnosis came from the Plaintiff's childhood and involved hospitalization and

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potential emotional, physical and/or sexual abuse from a family member, possibly a sister. (AR

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456-57.) Moreover, ME Monis described the record as being "internally inconsistent" ("[f]or
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example, having amnesia one year and having [a] 108 score in working memory the following.

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Please note that in six months of therapy, there isn't one mention of amnesia") and lacking "a

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history of 12 months of ongoing treatment." (AR 458-59.) ME Monis also did not reach a definite

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conclusion about Plaintiff's ability to handle working or substantial gainful employment given his

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impairments, citing to contradictory and inconsistent reports in the record. (AR 458-60.)

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When Plaintiff was questioned by Attorney Zalev about his work history, he indicated that

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his last job was in 2006 with Tomdra, which he left after a week during training because he had "a

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mental breakdown because it was just far too complex." (AR 462.) He "walked out" of his job

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before that as a van driver for a hotel in Tucson, Arizona, that he had for four months because he
missed appointments, had been written up for missing one of them and afterwards, he found it

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United States District Court
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impossible to face his employers. (AR 463.) Prior to the van driver job, Plaintiff drove a truck

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with his friend Shawn for Swift Transportation for about six months before quitting because he

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never learned how to back up a trailer and never understood any of the paperwork, hence, all the

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work fell on Shawn, who couldn't take it after a while and who soon quit, with Plaintiff quitting at

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the same time because there was no way he "would be able to do it" by himself. (AR 465.) Before

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that, Plaintiff worked for the Brownsboro Inn, a hotel in Louisville, Kentucky, where he served in

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a nighttime position responsible for taking care of the kitchen, cooking breakfast for recruits for

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the military, cleaning up afterwards and driving those recruits to their recruiting station. (AR 465-

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66.) Plaintiff says he was threatened by a worker who was responsible for painting the kitchen and

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after that, the rest of the workers said that his "actions were very erratic for the rest of that shift"

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and that he remembered that he'd lost the job because of that moment. (AR 466.)

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All the positions Plaintiff mentioned previously were full-time jobs he had since 2000, and

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he also worked a full-time clerical job for a staffing agency of the Department of Labor in Georgia

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where he was mainly responsible for filing W-2s for the State of Georgia. (AR 466-67.) This job

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also lasted a couple of months before Plaintiff quit because his co-workers were trying to pick

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fights with him and kick him out, and going in every day started "becoming too difficult" and

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"fearful for some reason." (AR 467.) He also worked part-time at a metaphysical book store in

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North Georgia for about two or three years. (AR 467-78.) When asked by Attorney Zalev about
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why he hasn't worked since 2006, Plaintiff said: "[i]t came to the point at which I just got tired of

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trying and fighting and not being able to do it. And I wanted to know what was really wrong,

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because I could never get an answer. I did not have a diagnosis. I did not have anything. I had no

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clue what in the world was going wrong. I just knew that I wasn't getting better." (AR 469-70.)
Plaintiff also testified during the hearing that the frequency of flashbacks he experiences is

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"very erratic" and when he experiences one, he ends up damaging his surroundings without being

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aware that he did so, shaking a lot, and performs angry conversations with nobody. (AR 470-71.)

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His flashbacks to his childhood mainly consist of memories of a sister beating him up or getting

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beaten by other kids at school. (AR 472.) He also said his doctor in Tucson reported to him after

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an X-ray that there were some deformations in his spine, and he felt a "very sharp pain" in those

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United States District Court
Northern District of California

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areas, as well as in his limbs, whenever he experienced trauma associated with anxiety. (Id.)

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Plaintiff also remarks that when he told that doctor that he'd ask for his help in this social security

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case, the doctor "went from telling [him] that [his spinal issues] could cause potential paralysis to

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it's no big deal" and he doesn't understand why his "story suddenly changed." (AR 473.) Due to

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these spinal issues, he also experienced pain while sitting down during a bingo game and avoids

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roller coasters. (Id.) He also testified that he could handle lifting about 50 pounds at one time. (Id.)

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VE Berkley classified Plaintiff's prior jobs as follows: truck driver (DOT 905.663-014,

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exertion level: medium, specific vocational preparation (SVP): 4), van driver (DOT 913.663-018,

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exertion level: medium, SVP: 3), file clerk (DOT 206.387-034, exertion level: light, SVP: 3). (AR

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474.) The ALJ then presented VE Berkley with a hypothetical person who had Plaintiff's age,

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education and work experience, a capacity for light, simple and repetitive tasks, and who also had

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a job requiring no public interaction (incidental contact is okay), with no more than occasional

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coworker interaction. (AR 474-75.) When the ALJ asked VE Berkley if there were any jobs at the

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light level that could be performed by this hypothetical person, VE Berkley responded with:

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housekeeping cleaner (e.g. could be a maid in a hotel) with a DOT of 323.587-014, exertional

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level: light, and an SVP of 2 (approximately 141,000 in the national economy; 15,000 in the State

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of California; and there is no talking or hearing required to perform this job); a mail clerk or mail

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sorter (e.g. someone that sorts mail all day) with a DOT of 209.687-026, exertional level: light,
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and an SVP of 2 (approximately 25,800 jobs in the national economy; 12,000 in the State of

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California; and there is no talking but occasional hearing required for performing this job); a

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marker, retail (e.g. someone that tags products) with a DOT of 209.587-034, exertional level: light

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and an SVP of 2 (approximately 271,000 jobs in the national economy; approximately 30,000 in

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the State of California; and there is no talking or hearing required to perform the duties of this

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job). (AR 475-76.) The typical tolerances for absences from the workplace for the above

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mentioned jobs are also not to exceed one absence per month. (AR 476.) VE Berkley also testified

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that based on her professional experience, if the hypothetical employee was off task 20% of the

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time, they could not complete the duties of any full-time employment. (AR 476-77.) Discussing a

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housekeeping job, as an example, where the use of checklists in keeping track of completed tasks

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(which would also be turned into the supervisor at the end of the day) is customary (AR 481-82),

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VE Berkley also testified that the hypothetical employee would not be able to maintain

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employment if they were, for example, putting the wrong number of towels in 20% of the rooms,

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or weren't able to accept and follow simple daily instructions or criticism from supervisors. (AR

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481-82.) For the jobs VE Berkeley discussed, the hypothetical employee would also need to

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remember simple, repetitive tasks (AR 481) and do a job within 30 days from starting (AR 484).

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The ALJ issued an unfavorable decision on February 19, 2016, finding that Plaintiff had

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not been under a disability, as defined in the Social Security Act, since August 29, 2012, the date

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the application was filed. (AR 15-17, 18-30, 31-33, 34-44.) The ALJ also found Plaintiff to have

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the severe impairments of degenerative disc disease, spondylosis, anxiety disorder/social phobia,

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depressive disorder, and probable personality disorder. (AR 20.) On April 14, 2016, Plaintiff filed

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a request for review of the ALJ's decision. (AR 13, 124, 125.) The Appeals Council denied

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Plaintiff's request for review on August 1, 2017. (AR 6-10.) On August 2, 2017, Plaintiff

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commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.)

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On January 9, 2018, Plaintiff filed a motion for summary judgment. (Plf.'s Mot., Dkt. No.

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17.) On February 6, 2018, Defendant filed an opposition as well as cross-motion for summary

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judgment. (Def.'s Opp'n, Dkt. No. 19.) On February 15, 2018, Plaintiff filed a reply brief. (Plf.'s

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Reply, Dkt. No. 20.)
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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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Northern District of California

of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
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Under SSA regulations, disability claims are evaluated according to a five-step sequential
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evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir.1998). At step one, the Commissioner
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determines whether a claimant is currently engaged in substantial gainful activity. Id. If so, the
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claimant is not disabled. 20 C.F.R. § 404.1520(b). At step two, the Commissioner determines
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whether the claimant has a "medically severe impairment or combination of impairments," as
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defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 721. If the answer is no, the
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claimant is not disabled. Id. If the answer is yes, the Commissioner proceeds to step three, and
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determines whether the impairment meets or equals a listed impairment under 20 C.F.R. § 404,
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Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is met, the claimant is
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disabled. Reddick, 157 F.3d 715 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

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On February 19, 2016, the ALJ issued an unfavorable decision. (AR 15-17, 18-30.)

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At step one, the ALJ determined that there was no evidence that Plaintiff engaged in

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substantial gainful activity since August 29, 2012, the application date. (AR 20.)
At step two, the ALJ identified the following severe impairments: degenerative disc

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Northern District of California

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disease, spondylosis, anxiety disorder/social phobia, depressive disorder, and probable personality

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disorder. (Id.) The ALJ stated that the above listed medical impairments were severe because they

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more than minimally limited the Plaintiff's ability to perform basic work activities. (Id.) Moreover,

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the ALJ notes that even though the representative asserted Plaintiff's health problems included

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asthma and gastroesophageal reflex disease (GERD) (AR 239-48), these two conditions are not

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severe impairments because they are controlled and there is also no evidence that they affect

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Plaintiff's ability to perform basic work activity. (AR 20.)

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

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impairments that met or medically equaled a listed impairment. (Id.) The ALJ explained that "the

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medical records do not describe limitation of motion in the spine with motor loss and sensory or

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reflex loss, as required by section 1.04 for a listing level disorder of the spine." (AR 21.) The ALJ

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further explained that the "severity of [Plaintiff's] mental impairments, considered singly and in

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combination, do not meet or medically equal the criteria of listings 12.04 and 12.06." (Id.)

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In making this finding, the ALJ considered whether the "paragraph B" criteria were

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satisfied, and to do so, the mental impairments of Plaintiff must result in at least two of the

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following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining

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social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4)

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repeated episodes of decompensation, each of extended duration. (Id.) A marked limitation means
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more than moderate but less than extreme, and repeated episodes of decompensation, each of

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extended duration, means three episodes within 1 year, or an average of once every 4 months, each

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lasting for at least 2 weeks. (Id.) In activities of daily living, the ALJ found that Plaintiff had a

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mild restriction because he reported being able to prepare meals almost daily, perform household

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chores such as laundry and cleaning with encouragement, use public transportation, drive, and

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according to Dr. Sardy's evaluation, describe no problems with the activities of daily living and

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manage his own finances. (AR 22.) In social functioning, the ALJ found that Plaintiff had

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moderate difficulties because he reported spending time with friends, attending movies, playing

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games, attending local events two to three times per month (although he needed encouragement),
stated – at Dr. Schnurr's evaluation – that he had a supportive boyfriend and friends in a motor

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cycle group, informed Dr. Kalich that he consumed beer socially every few weeks, and according

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to the progress notes, Plaintiff stated he attends the gym and lifts weights several times per week.

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(Id.) For concentration, persistence or pace, the ALJ found that Plaintiff had mild difficulties

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because he reported that he went grocery shopping two times per week, used public transportation,

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was able to drive, and in August 2012, Plaintiff informed Dr. Kayman that he read books to pass

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time and that he used the Internet "a lot." (Id.) In January 2013, Plaintiff even indicated that he

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was working on a book and in July 2013, Plaintiff was able to complete psychometric testing and

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achieved a Full Scale IQ of 122. (Id.) The ALJ found no evidence of decompensation.2 (Id.)

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Therefore, because Plaintiff's mental impairments do not cause at least two "marked" limitations

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or one "marked" limitation and "repeated" episodes of decompensation, each of extended duration,

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the "paragraph B" criteria were not satisfied. (Id.)
The ALJ also found that the "paragraph C" criteria were not satisfied because the records

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did not indicate episodes of decompensation,3 or a residual disease process that has resulted in

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such marginal adjustment that a minimal increase in mental demands or environment would be

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Decompensation, or decompensate is defined as "to lose the ability to maintain normal or
appropriate psychological defenses, sometimes resulting in depression, anxiety, or delusions." See
https://www.dictionary.com/browse/decompensate.
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The term "episodes of decompensation" is "used by psychiatrists and psychologists to describe
the deterioration of the mental health of an individual who, up till that point, was maintaining his
or her mental illness." See https://www.disabilitysecrets.com/mic2.html
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predicted to cause decompensation, or an inability to function outside a highly supportive living

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arrangement, or finally a complete inability to function independently outside the area of the

3

Plaintiff's home. (Id.) The ALJ also notes that the limitations identified in the "paragraph B"

4

criteria are not a residual functional capacity ("RFC") assessment, but are used to rate the severity

5

of mental impairments at steps 2 and 3 of the sequential evaluation process. (Id.) Thus, the mental

6

RFC assessment utilized at steps 4 and 5 requires a more detailed assessment that itemizes various

7

functions contained in the broad categories found in paragraph B of the adult mental disorders

8

listing in 12.00 of the Listing of Impairments (SSR 96-8p). (Id.) Thus, the RFC assessment reflects

9

the degree of limitation that the ALJ found in the "paragraph B" mental function analysis. (Id.)

10

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

United States District Court
Northern District of California

11

defined in 20 CFR 416.976(c), except that Plaintiff could perform non-public simple repetitive

12

tasks in positions that require no more than occasional interaction with co-workers (although

13

incidental public contact can be tolerated, however). (AR 22-23.) In making this finding, the ALJ

14

considered all symptoms and the extent to which these symptoms can reasonably be accepted as

15

consistent with the objective medical evidence and other evidence, based on the requirements of

16

20 CFR 416.929 and SSRs 96-4p and 96-7p, and also considered opinion evidence in accordance

17

with the requirements of 20 CFR 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p. (AR 23.)

18

The Plaintiff initially alleged disability based on "various mental and physical

19

impairments." (AR 23, 129, 209.) Counsel for Plaintiff also alleged that Plaintiff experienced the

20

impairments of generalized anxiety disorder, major depressive disorder, social anxiety disorder,

21

PTSD, avoidant personality disorder, panic disorder, personality disorder, asthma, GERD, back

22

pain, scoliosis and spina bifida occulta. (AR 23, 241.) In a June 2013 Function Report, Plaintiff

23

contended that his impairments affected his ability to speak, hear, memorize, complete tasks,

24

concentrate, understand, follow instructions (if at home but not at work and could not handle any

25

stress), get along with others, walk for 30 minutes before needing to rest, and having to use a cane

26

on rare occasions (2 to 3 times per year for periods that could last for weeks) due to sciatic pain.

27

(AR 23, 224-25.) At the hearing, Plaintiff also testified that he has not worked since 2006 and has

28

primarily been supported by friends. (AR 23, 435-38, 462-71.)
12

1

The ALJ then found, upon careful consideration of the evidence, that Plaintiff's medically

2

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

3

Plaintiff's statements concerning the intensity, persistence and limiting effects of those symptoms

4

are not entirely credible for reasons explained in his decision. (AR 23.) The ALJ further noted that

5

the treatment record concerning physical conditions was sparse and primarily reflected routine

6

care. (Id.) For example, the Plaintiff exhibited mild shortness of breath in connection with

7

pneumonia in 2013, but there were no persistent respiratory complaints throughout the record.

8

(AR 23, 297.) Nonetheless, there was only one complaint of back pain (from July 2012), and

9

providers noted that Plaintiff was working out at a gym two to three times per week. (AR 23, 282,

10

United States District Court
Northern District of California

11

296-97, 300-05, 308-12, 378-95.)
Next, the ALJ addressed the opinion evidence for both Plaintiff's physical and mental

12

conditions. For Plaintiff's physical conditions, the opinion evidence consisted of evaluations from

13

consultative examiners Drs. Rana, McMillan and Hernandez, as well as Dr. Williams, an

14

examining state agency medical consultant. (AR 24.) In assessing the physical component of the

15

residual functional capacity ("RFC"), the ALJ gave greatest weight to Dr. Rana's assessment, and

16

less weight to the opinions of Drs. McMillan, Hernandez, and Williams because "Dr. Rana was the

17

only examining source that reviewed imaging studies of the back, thus giving him greater insight

18

into the claimant's back pathology." (Id.)

19

For Plaintiff's mental conditions, the opinion evidence consisted of evaluations from Dr.

20

Weibe (examining), Dr. Flastro (examining), Dr. Kayman (treating), Dr. Sardy (consultative

21

examiner), Dr. Schnurr (examining), Dr. Lucila (non-examining), Dr. Edmunds (treating), Dr.

22

Kalich (examining), Melissa Anderson, Licensed Marriage and Family Therapist ("LMFT")

23

(treating) and Dr. Monis, the medical expert (ME) that testified at the administrative hearing on

24

January 20, 2016 based on her review of the medical evidence in the record. (AR 24-28.)

25

The ALJ accorded great weight to Dr. Lucila's assessment because her conclusions were

26

consistent with the treatment record that reflected few mental status abnormalities and a positive

27

response to medication. (AR 28.) The ALJ also accorded great weight to Dr. Monis' opinion

28

because she had "the most complete record to review." (Id.) The ALJ accorded little weight to the
13

1

opinions of Drs. Weibe, Sardy, Schnurr and Kalich because their assessments were "based on one-

2

time examinations," "they did not have the benefit of reviewing the underlying treatment record,"

3

and their conclusions were "based largely on the claimant's self-reports" where "contemporaneous

4

treatment notes show[ed] virtually no clinical abnormalities." (Id.) The ALJ also accorded little

5

weight to the GAF scores of 41 and 45 that Drs. Weibe and Kayman respectively obtained from

6

Plaintiff because "all progress notes show[ed] little to no mental status abnormalities. In other

7

words, the scores are inconsistent with the clinical data and narrative reports." (Id.)

8
9

The ALJ concluded that the evidence failed to support greater limitations than provided in
the RFC. (Id.) Specifically, the ALJ held that the physical examination findings did not support
the assertions that Plaintiff can only walk 30 minutes or that he requires a cane two to three times

11
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Northern District of California

10

per year due to sciatic pain, as there is only one complaint of back pain since 2012. (Id.) The ALJ

12

also held that Plaintiff's reported social phobia and avoidance of going out were inconsistent with

13

reports he made to providers stating that he worked out at the gym several times a week (AR 300),

14

spent time with friends attending movies, playing games or attending local events two to three

15

times per month (AR 223, 351), that he walked a lot (AR 398), went to a Halloween party and

16

took a trip to Disneyland (AR 422), all activities that the ALJ concluded were not consistent with

17

allegations of debilitating social phobia. Moreover, the ALJ notes that Dr. Kayman remarked

18

Plaintiff wanted disability paperwork completed at his first visit and was "flustered" to find out

19

that was not possible. (AR 314.) This led the ALJ to state "[t]hat suggests that the claimant's

20

motive for that visit was not treatment, but was to obtain documentation for his claim." (AR 28.)

21

At step five, the ALJ found the Plaintiff unable of performing any past relevant work. The

22

ALJ notes that VE Berkley classified Plaintiff's past work as a truck driver (DOT 900.566-013,

23

medium exertion, SVP 4), van driver (DOT 913.663-018, medium exertion, SVP 3) and file clerk

24

(DOT 206.387-034, light exertion, SVP 3). (Id.) Based on the mental limitations of Plaintiff, the

25

ALJ therefore found that the demands of Plaintiff's past relevant work exceeded the RFC. (Id.)

26

Furthermore, considering the Plaintiff's age, high school education, ability to communicate in

27

English, RFC, work experience, and how transferability of job skills is not material to the

28

determination of disability because using the Medical-Vocational Rules as a framework supports a
14

1

finding that Plaintiff is "not disabled" (whether or not the Plaintiff has transferable job skills), the

2

ALJ concluded that there are jobs that exist in significant numbers in the national economy that

3

the Plaintiff can perform. (AC 29.)

4

The ALJ stated that he asked VE Berkley whether jobs existed in the national economy

5

for an individual with Plaintiff's age, education, work experience, and RFC. (Id.) VE Berkley

6

testified that given all of these factors, that individual would be able to perform the requirements

7

of the following representative occupations (AR 29-30) as reflected below:

8
9
10

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Northern District of California

11
12





Housekeeper (DOT 323.687-014), light exertional level, SVP
2, 11,000 positions in the national economy and 15,000 in
California
Mail clerk/Sorter (DOT 209.687-026), light exertional level,
SVP 2, 25,800 positions in the national economy and 1,200 in
California
Marker, Retail (DOT 209.587-034), light exertional level, SVP
2, 271,000 positions in the national economy and 30,000 in
California

13

The ALJ also determined, pursuant to SSR 00-4p, that the vocational expert's testimony is

14

consistent with the information contained in the Dictionary of Occupational Titles ("DOT"). (AR

15

30.) Therefore, based on the testimony of VE Berkley, the ALJ concluded that considering

16

Plaintiff's age, education, work experience and RFC, Plaintiff is capable of making a successful

17

adjustment to other work that exists in significant numbers in the national economy, and a finding

18

of "not disabled" is therefore appropriate. (Id.) As a result, the ALJ found Plaintiff not being under

19

a disability, as defined in the Social Security Act, since August 29, 2012, the date the application

20

was filed. (AR 30.)

21

IV.

DISCUSSION

22

Plaintiff appeals the ALJ's decision on six presented issues. First, did the ALJ err in

23

evaluating the medical opinions? (Plf.'s Mot. at 5.) Second, did the ALJ err in failing to find Post-

24

Traumatic Stress Disorder (PTSD) and Panic Disorder severe impairments at step two? (Id.) Third,

25

did the ALJ err in determining Plaintiff's RFC? (Id.) Fourth, did the ALJ err in evaluating

26

Plaintiff's credibility? (Id.) Fifth, did the Appeals Council err in rejecting material evidence? (Id.)

27

Sixth and finally, should the Court remand for payment of benefits or further proceedings? (Id.)

28
15

1

A.

The ALJ's Evaluation of The Medical Opinions

In evaluating medical evidence from different physicians, the Ninth Circuit distinguishes
2
among the opinions of three types of physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
3
1995). The three types are classified as: (1) those who treat the claimant (treating physicians); (2)
4
those who examine but do not treat the claimant (examining physicians); and (3) those who neither
5
examine nor treat the claimant (non-examining physicians). Id. "If a treating or examining
6
doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by
7
providing specific and legitimate reasons that are supported by substantial evidence." Bayliss v.
8
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Where the record contains conflicting medical
9
evidence, the ALJ must make a credibility determination and resolve the conflict. Chaudhry v.
10
Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Benton v. Barnhart, 331 F.3d 1030, 1040 (9th
11
United States District Court
Northern District of California

Cir. 2003)). "The ALJ need not accept the opinion of any physician, including a treating physician,
12
if that opinion is brief, conclusory, and inadequately supported by clinical findings." Bray v.
13
Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (citations omited).
14
Plaintiff argues that the ALJ erred in evaluating the medical opinions, specifically in
15
giving little weight to the opinions of Drs. Wiebe, Sardy, Schnurr, and Kalich and treating source
16
Dr. Kayman in providing GAF scores of 45, and in giving great weight to the opinions of the non17
examining, non-treating ME Dr. Monis and the non-examining source Dr. Lucila. (Id. at 7-19).
18
1. Drs. Wiebe, Sardy, Schnurr & Kalich
19
Specifically, for the four examining psychologists Drs. Wiebe, Sardy, Schnurr, and Kalich,
20
Plaintiff argues that the "ALJ failed to provide reasons specific to any one of these evaluations for
21
rejecting their conclusions" and "[f]urthermore, even if the ALJ's reasons had been specific, the
22
stated reasons were neither legitimate nor supported by substantial evidence." (Id. at 8-9.)
23
For example, Plaintiff argues that the ALJ failed to provide any reasons specific to Dr.
24
Wiebe for discounting her opinion, aside from it being a one-time examination. (Id. at 9.) Plaintiff
25
also states that examining physicians like Dr. Wiebe by definition perform limited-scope
26
examinations, thus, the law requires ALJs to provide specific and legitimate reasons, supported by
27
substantial evidence, to reject the opinion of examining physicians. (Id. at 10.) Plaintiff further
28
16

argues that the ALJ should not have discounted Dr. Wiebe's opinion based on how she did not

2

review the underlying treatment records because Dr. Wiebe reviewed the treatment records that

3

were available at the time. (Id.) Plaintiff provides similar reasons as to why he feels the ALJ gave

4

insufficient weight to Dr. Sardy's opinion, e.g. the ALJ's stated reasons for discounting Dr. Sardy's

5

opinion (it was a one-time examination, Dr. Sardy did not review underlying treatment records,

6

but he did review the prior ALJ decision which contained an overview and discussion of treatment

7

records) are neither specific, nor legitimate nor supported by substantial evidence. (Id. at 12.)

8

Plaintiff argues the same for the ALJ discounting the opinions from Drs. Schnurr and Kalich, e.g.

9

the ALJ's reliance on how they were one-time examinations and how the Doctors did not review

10

the underlying treatment records and relied largely on Plaintiff's self-reports (e.g. they also relied

11
United States District Court
Northern District of California

1

on their own examinations, interviews and observations) were neither specific nor legitimate nor

12

supported by substantial evidence. (Id. at 13-15.)

13

In response, Defendant argues that the ALJ reasonably accorded little weight to the

14

conflicting and unsupported opinions of Drs. Wiebe, Sardy, Schnurr and Kalich because he

15

explained that their conclusions were largely based on Plaintiff's self-reports and contemporaneous

16

treatment notes that showed virtually no clinical abnormalities, and that their assessments were

17

based on one-time examinations uninformed by the benefit of the underlying treatment records.

18

(Def.'s Opp'n at 7.) Defendant also argues that the ALJ reasonably found that the opinions of the

19

examining sources were not supported by the virtually normal clinical findings, e.g., Plaintiff's

20

treatment records contained generally normal mental status examinations and Dr. Kayman even

21

reported that Plaintiff was doing fine and that medication was helping his symptoms. (Id. at 7.)

22

Defendant further asserts that the ALJ reasonably concluded, in light of the unremarkable

23

treatment notes, that the examining source opinions were based on Plaintiff's subjective

24

complaints and unreliable statements. As a result, Defendant argues that the ALJ appropriately

25

discounted those examining source opinions because they appeared to be premised on Plaintiff's

26

unreliable statements as well as not fully credible complaints. (Id. at 7-8) (citing Tommasetti v.

27

Astrue, 533 F.3d 1035, 1041 ("An ALJ may reject a treating physician's opinion if it is based 'to a

28

large extent' on a claimant's self-reports that have been properly discounted as incredible.")).
17

1

Defendant additionally contends that the ALJ permissibly considered that the examining

2

sources provided their opinions based on one-time assessments and did not have the benefit of

3

underlying treatment records because even though an examining physician can provide an

4

assessment, the source's assessment has to be supported by other record evidence; thus, as the fact-

5

finder, the ALJ properly found that the examining source opinions were not supported by

6

Plaintiff's treatment notes (Id. at 8.)

7

In reply, Plaintiff argues that Defendant fails to cite any legal authority to support the

8

ALJ's two-sentence simultaneous rejection of four examining sources, "all of whom reached the

9

same conclusion that Plaintiff is disabled." (Plf.'s Reply at 2.) Plaintiff also asserts that each of the
four examining sources of Drs. Wiebe, Sardy, Schnurr and Kalich agreed on the ultimate

11
United States District Court
Northern District of California

10

conclusion that "Plaintiff's mental impairments preclude[d] him from performing competitive,

12

renumerative work on a sustained basis" by each assigning Plaintiff an RFC that would preclude

13

all work at Step Five. (Id. at 2-3.) Thus, Plaintiff argues that each of their opinions was consistent

14

with the overall record and the only sources in the record that opined that Plaintiff's RFC did not

15

preclude all work were the non-examining, non-treating sources. (Id. at 3.) Plaintiff also contends

16

that Defendant relies on cases in which the ALJ rejected the opinion of an examining or treating

17

physician(s) in favor of another examining or treating physician(s). (Id.) Plaintiff also argues that

18

the ME Dr. Monis may have general qualifications and may possess general expertise, but she was

19

not qualified to give an opinion on Plaintiff's impairments because she had not reviewed the

20

complete record (which did not contain contradictory data as she opined) prior to the hearing, and

21

she "mischaracterized the record" because it did, in fact, contain ongoing therapy notes from

22

Melissa Anderson. (Id. at 4-5.) Plaintiff further attacks the ALJ's reliance on Dr. Lucila and argues

23

that Defendant misstated that Plaintiff had mild-to-moderate test results due to the "marked-to-

24

extreme limitations" that Dr. Wiebe observed in Plaintiff being supported by testing showing that

25

Plaintiff is "experiencing a severe mental disorder." (Id. at 5-6.) Plaintiff further asserts that

26

Defendant mischaracterizes as "unremarkable" some of Plaintiff's mental status examinations,

27

including Dr. Schnurr opining that Plaintiff had an "anxious affect and depressed mood" and Dr.

28

Kayman opining that Plaintiff had an "anxious mood with congruent affect." (Id. at 6.)
18

1

Upon consideration of the arguments from both parties, the Court finds that the ALJ did

2

not err in assigning little weight to the opinions from the four examining psychologists of Drs.

3

Wiebe, Sardy, Schnurr, and Kalich. “If a treating or examining doctor's opinion is contradicted by

4

another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons

5

that are supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

6

2014) (citing Ryan, 528 F.3d at 1198)). An ALJ can satisfy the “substantial evidence” requirement

7

by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence,

8

stating his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725. “The ALJ must

9

do more than state conclusions. He must set forth his own interpretations and explain why they,

10

United States District Court
Northern District of California

11

rather than the doctors', are correct.” Id. (citation omitted).
Contrary to Plaintiff's argument, the ALJ provided specific and legitimate reasons as to

12

why he rejected the opinions of the four examining psychologists. For example, the ALJ explained

13

that the aforementioned four opinions were largely based on Plaintiff's self-reports,

14

contemporaneous treatment notes showing virtually no clinical abnormalities and one-time

15

examinations uninformed by the benefit of reviewing underlying treatment records. (AR 28.)

16

Thus, the Court finds these explanations from the ALJ setting forth his own interpretations as to

17

why he accorded the four examining physicians little weight as specific and legitimate reasons

18

supported by substantial evidence that also go beyond mere conclusions.

19
20

2. Dr. Kayman's GAF Scores
Plaintiff further argues that the ALJ erred in giving little weight to the opinion of treating

21

provider source Dr. Joshua Kayman, who gave him a GAF (global assessment of functioning)

22

score of 45 on multiple occasions in 2012, 2013, and 2014. (Plf.'s Mot. at 15.) The ALJ also gave

23

"little weight" to Dr. Kayman's GAF scores "because all progress notes show little to no mental

24

status abnormalities. In other words, the scores are inconsistent with the clinical data and narrative

25

reports." (Id.) Plaintiff contends that a GAF score of 45 indicates either serious symptoms "OR

26

any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to

27

keep a job)." American Psychiatric Association, Diagnostic and Statistical Manual of Mental

28

Disorders 33 (4th ed. 1994) ("DSM-IV"). Plaintiff contends that a GAF score of 45 is consistent
19

1

with a lack of mental status abnormalities because the evidence shows Plaintiff has serious

2

impairments in both occupational and social functioning, and furthermore, the progress notes

3

showed mental status abnormalities on various occasions, including anxious mood and affect, as

4

well as fair insight and judgment. (Plf.'s Mot. at 15.)

5

In response, Defendant asserts that Plaintiff is incorrect in arguing that the ALJ erred in

6

assigning little weight to "the opinion of treating source Dr. Kayman." (Def.'s Opp'n at 9.)

7

Defendant argues that Dr. Kayman did not provide a medical opinion, even though he noted that

8

Plaintiff had "high hopes that [Dr. Kayman] would fill out his disability paperwork" and was

9

"quite flustered to find out that wasn't possible." (AR 306, 314.) Even though Dr. Kayman gave
Plaintiff a GAF score of 45, Defendant avers that GAF scores are not medical opinions and

11
United States District Court
Northern District of California

10

provide at most only a snapshot of a claimant's functioning. See American Psychiatric Association,

12

Diagnostic and Statistical Manual of Mental Disorder 34 (Text Rev., 4th ed. 2000) ("DSM-IV-

13

TR") (A GAF score ranges from a rating of 0 to 100, and is divided into ten ranges which consider

14

and provide an assessment of "psychological, social, and occupational functioning on a

15

hypothetical continuum of mental health-illness" at the time of the evaluation); Vargas v. Lambert,

16

159 F.3d 1161, 1162 n.2 (9th Cir. 1998) (a "GAF score is a rough estimate of an individual's

17

psychological, social, and occupational functioning used to reflect the individual's need for

18

treatment"). Defendant also points out that Plaintiff was notably assessed with a GAF of 55

19

(indicating moderate symptoms) a couple of weeks before Dr. Kayman rated Plaintiff with a GAF

20

of 45 (indicating serious symptoms). (Def.'s Opp'n at 9.) Defendant then concludes that the ALJ

21

rightly explained that he gave little weight to the GAF scores of 45 provided by Dr. Kayman and

22

his staff because the scores were inconsistent with the minimal mental status abnormalities

23

contained in the clinical data. (Id.) As a result, Defendant argues that the Court should uphold the

24

ALJ's reasonable interpretation of the evidence because the ALJ's opinion was based on a

25

reasonable interpretation of the record and the ALJ is "the final arbiter with respect to resolving

26

ambiguities in the medical evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir.

27

2008); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (if the "evidence

28

is susceptible to more than one rational interpretation, the ALJ's decision should be upheld").
20

1

In reply, Plaintiff disputes Defendants citation and interpretation of the Vargas case and

2

argues that Vargas actually has direct correlative work-related or functional limitations because a

3

GAF score can indicate at least moderate symptoms or difficulty in psychological, occupational or

4

social functioning. (Plf.'s Reply at 7) (citing Vargas, 159 F.3d at 1164, n.2). Thus, Plaintiff argues

5

that a GAF score is in fact an opinion and Dr. Kayman is indicating with a GAF score of 45 that

6

Plaintiff had either serious symptoms or a serious impairment in social, occupational or school

7

functioning on multiple occasions from 2012-2014. (Plf.'s Reply at 7) (citing DSM-IV at 33).

8
9

On balance, the Court finds that the ALJ did not err in according little weight to the GAF
scores supplied by Drs. Weibe (GAF score of 41) and Kayman (GAF score of 45). (AR 25, 28,
302, 306, 307, 313, 399.) The ALJ provided specific and legitimate reasons supported by

11
United States District Court
Northern District of California

10

substantial evidence in discounting these GAF scores because he noted that "all progress notes

12

show little to no mental status abnormalities" and in other words, "the scores are inconsistent with

13

the clinical data and narrative reports." (AR 28.) For example, just comparing the GAF scores

14

themselves, licensed marriage and family therapist (LMFT) Melissa Anderson provided Plaintiff

15

with a GAF score of 62 in December of 2015 based on weekly treatment beginning July 21, 2015.

16

(AR 27.) Dr. Flastro also assigned Plaintiff a GAF score of 55 (AR 25) and Dr. Sardy provided

17

Plaintiff with a GAF score of 53 (AR 26); thus, most of the scores (53, 55, 62), which indicate

18

"moderate" to above moderate psychological/occupational/social functionality, are on average 10-

19

20 points higher than the GAF scores ascribed by Drs. Weibe and Kayman (41, 45), which may

20

indicate "serious impairment" in social/occupational/school functioning. DSM-IV at 33. The Court

21

also agrees with Defendant that GAF scores are less formal medical opinions and more "rough

22

estimate" snapshots of "an individual's psychological, social, and occupational functioning used to

23

reflect the individual's need for treatment" at the time of evaluation. Vargas, 159 F.3d at 1162 n.2.

24

What else would explain the 10-20 point variance in GAF score measurements performed by

25

multiple different medical professionals at multiple different times?

26

Dr. Kayman's GAF score of 45 (indicating "serious" symptoms or impairments) is also

27

inconsistent with notes from his treatment of Plaintiff, including how he wrote that Plaintiff had

28

"high hopes that [Dr. Kayman] would fill out his disability paperwork" and was "quite flustered to
21

find out that wasn't possible" – thereby implying that Plaintiff's "motive for that visit was not

2

treatment, but was to obtain documentation for his claim." (AR 28, 306, 314.) Dr. Kayman also

3

reported that Plaintiff was doing fine, seeing a boyfriend he really liked (who he eventually moved

4

in with), working on a book, working out at the gym, and was tolerating medication well and

5

experiencing less depression. (AR 26, 302, 306-07, 395, 397.) The treatment notes from Dr.

6

Kayman also indicated no exacerbations of symptoms, changes in clinical findings or additional

7

mental health diagnoses, and progress notes related to physical treatment suggested that Plaintiff's

8

mental health symptoms were being adequately managed. (AR 26.) Dr. Edmonds, who worked

9

with Dr. Kayman at LifeLong Medical Care, also noted that Plaintiff's anxiety was controlled on

10

medication. (Id.) Treatment notes from other examiners also indicate that in addition to working

11
United States District Court
Northern District of California

1

out at the gym several times a week, Plaintiff also spent time with friends, attended movies, played

12

games, attended local events two to three times per month, walked "a lot," went to a Halloween

13

party and took a trip to Disneyland, all activities that were in the ALJ's view as being "not

14

consistent with allegations of debilitating social phobia." (AR 28.) Therefore, as shown above, the

15

ALJ provided more than sufficiently specific and legitimate reasons supported by substantial

16

medical evidence from the record to justify his decision to accord little weight to the GAF scores

17

of Drs. Kayman and Weibe. As a result, the Court finds that the ALJ did not err in giving those

18

GAF scores such minor weight. See Tommasetti, 533 F.3d at 1041-42 (the ALJ is "the final arbiter

19

with respect to resolving ambiguities in the medical evidence.")

20
21
22
23
24

3. Drs. Monis & Lucila
Plaintiff next argues that the ALJ erred in giving great weight to the opinions of Dr. Monis
(Plf.'s Mot. at 15-18) and Dr. Lucila (Id. at 18-19).
a. Dr. Monis
For Dr. Monis, who Plaintiff notes is a "non-treating, non-examining medical expert,"

25

Plaintiff contends that the ALJ erred in according great weight to her testimony during the

26

administrative hearing because even though Dr. Monis may have had access to the complete

27

record, she did not review the full record and her statements at the hearing indicated that she had

28

perhaps reviewed some parts of the record but not all of it, even though the ALJ concluded that
22

1

"she had the most complete record to review." (Id. at 15-17.) For example, Plaintiff points to how,

2

during the hearing, Dr. Monis seemed to be unaware that the record contained any psychological

3

treatment notes, despite how she had received those notes as part of the record and acknowledged

4

that the record contained handwritten therapy notes. (Id. at 16-17.) Plaintiff also alleges that Dr.

5

Monis categorized some medical evaluations that took place multiple times as "single evaluations"

6

and also argues that Dr. Monis' opinion was "brief, conclusory, and inadequately supported by

7

clinical findings." (Id. at 17.) Plaintiff further contends that just like how the opinions of the four

8

examining psychologists discussed above were given little weight by the ALJ because they "did

9

not have the benefit of reviewing the underlying treatment record," Dr. Monis didn't review the
entire record, was unaware that an underlying treatment record existed, and could also not

11
United States District Court
Northern District of California

10

distinguish between treating, examining and non-treating, non-examining medical sources,

12

grouping them all together as single examinations. (Id. at 18.) Plaintiff additionally maintains that

13

Dr. Monis' opinion was unreliable, unsupported, and based on her faulty, incomplete review of the

14

record, because her testimony was contradicted by, in Plaintiff's view, "all the evidence in the

15

record except for the opinions of the non-examining, non-treating DDS consultants, and even Dr.

16

Lucila's opinion is more limiting and does not support Dr. Monis' conclusion." (Id. at 18.)

17

In response, Defendant argues that the ALJ properly gave great weight to the opinion of

18

Dr. Monis that Plaintiff could work with limitations for public interaction, which was also

19

supported by Plaintiff's treatment records. (Def.'s Opp'n at 6.) Defendant also affirms the ALJ's

20

conclusion that Dr. Monis was "highly qualified" and an "expert" in "Social Security disability

21

evaluation," and correctly reasoned that the "examining medical opinions contained contradictory

22

data and conclusions." (Id. at 3.) Defendant also notes that the ALJ considered how Dr. Monis had

23

the benefit of the entire record when she provided her opinion. (Id.) In a footnote, Defendant

24

further argues that contrary to Plaintiff's contention, Dr. Monis did not mischaracterize the record

25

because Dr. Monis accurately testified that the record contained a number of reports of single

26

examinations, that there were no ongoing therapy notes and that there were therapy notes from

27

LMFT Melissa Anderson. (Id. at 6, n.3.) Defendant also argues that the ALJ reviewed the entire

28

record before assessing Plaintiff's functional capacity to work. (Id.)
23

1

In reply, Plaintiff contends that Dr. Monis may have general qualifications and may

2

possess general expertise, but she was not qualified to give an opinion on Plaintiff's impairments

3

because she had not reviewed the complete record prior to the hearing. (Plf.'s Reply at 4.) Plaintiff

4

also maintains that opposed to the statement made by Dr. Monis that the examining medical

5

opinions contained contradictory data and conclusions, all the examining medical opinions

6

contained the same ultimate conclusion. (Id.) Plaintiff further argues that Dr. Monis couldn't have

7

benefited from the treatment records when she did not review them. (Id.) Plaintiff also asserts that

8

even if Dr. Monis had reviewed the full record prior to the hearing and even if she had not

9

mischaracterized it, the ALJ could not permissibly rely on her qualifications and expertise as
reasons to justify rejecting the opinions of the aforementioned four examining sources because Dr.

11
United States District Court
Northern District of California

10

Monis is a non-examining source and her opinion, alone, cannot constitute substantial evidence,

12

no matter how well qualified she is or how much expertise she possesses. (Id. at 5.)

13

Upon consideration of the parties' arguments, the Court finds that the ALJ did not err in

14

giving great weight to the opinion of Dr. Monis because his reasoning for doing so was specific

15

and legitimate and also supported by substantial evidence. Specifically, the reason why the ALJ

16

accorded great weight to Dr. Monis' opinion was "because she had the most complete record to

17

review." (AR 28.) This statement does not assume that she reviewed everything in the record, nor

18

does it somehow require her to. Instead, all the ALJ was saying was that Dr. Monis had the benefit

19

of a complete record before her to make an assessment as a "highly qualified" medical expert who

20

is also an expert "in Social Security disability evaluation." 20 C.F.R. § 416.927(e). Thus, the Court

21

does not find persuasive Plaintiff's argument that Dr. Monis had to review the full record for her

22

opinion to be given great weight. The ALJ also gave great weight to Dr. Monis' opinion because it

23

was consistent with the rest of the record, e.g. that "many of the mental status examinations were

24

normal and that the scores from the MMSEs did not indicate cognitive dysfunction." (AR 28.)

25

Furthermore, Plaintiff's argument that Dr. Monis mischaracterized the record is of no

26

moment, not only because she later corrected herself and acknowledged that there were therapy

27

notes from LMFT Melissa Anderson (AR 440, 444), but also because the ALJ notes that Dr.

28

Monis indicated that there "was a paucity of treatment records" (AR 28), not a complete absence
24

1

of them. The testimony of Dr. Monis can also be properly followed by the ALJ even though she is

2

a "non-treating, non-examining medical expert" as Plaintiff argues because the ALJ has provided

3

specific and legitimate reasons supported by substantial evidence for according Dr. Monis' opinion

4

great weight. See Garrison, 759 F.3d at 1012. An ALJ can satisfy the “substantial evidence”

5

requirement by “setting out a detailed and thorough summary of the facts and conflicting clinical

6

evidence, stating his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725. The

7

ALJ did just that, by providing a detailed summary of Dr. Monis' findings and its consistency with

8

the other medical evidence and also describing why he gave those findings such great weight. (AR

9

27-28.) The ALJ also properly resolved the contradictory evidence Dr. Monis observed in the
record by reaffirming her opinion's consistency with the rest of the medical examination record.

11
United States District Court
Northern District of California

10

See Tommasetti, 533 F.3d at 1041-42 (the ALJ is "the final arbiter with respect to resolving

12

ambiguities in the medical evidence.") Thus, the Court finds that the ALJ did not err in giving the

13

opinion of Dr. Monis great weight.

14
15

b. Dr. Lucila
Plaintiff also argues that the ALJ erred in giving great weight to the opinion of Dr. Lucila

16

that Plaintiff could perform simple work with limited public contact "because those conclusions

17

are consistent with the treatment record, reflecting few mental stats abnormalities and a positive

18

response to medication" because every examining physician in the record found greater limitations

19

than Dr. Lucila, who found only moderate limitations in three areas. (Plf.'s Mot. at 18.) Plaintiff

20

further contends that the opinion of a non-examining physician cannot by itself constitute

21

substantial evidence that justifies the rejection of the opinion of either an examining physician or a

22

treating physician, and that Dr. Lucila's opinion was brief, conclusory, and inadequately supported

23

by clinical findings. (Id. at 18-19.)

24

In response, Defendant asserts that the ALJ properly gave great weight to Dr. Lucila's

25

assessment that Plaintiff could perform at least simple work with limited public contact because

26

Dr. Lucila's conclusions were consistent with the treatment record showing few mental status

27

abnormalities and improvement with medication. (Def.'s Opp'n at 4.) Defendant also confirms the

28

ALJ's findings that Plaintiff's mental status examinations were generally unremarkable in that they
25

1

showed "mild-moderate impairments" (Dr. Wiebe), "Plaintiff's mental status examination was

2

completely normal" he "was alert, was fully oriented, was engaged and exhibited normal speech,

3

had a euthymic (normal) mood, had an appropriate affect, had good insight and judgment, had a

4

logical thought process, and had no suicidal ideations" (Sausal Creek Outpatient Clinic), "Plaintiff

5

had a cooperative attitude, normal mood, linear and goal-directed thought process, fair insight and

6

judgment, and no hallucinations or suicidal ideation" (Dr. Kayman), "Plaintiff scored a 28/30 on

7

the MMSE" and "had an anxious affect and depressed mood, but normal speech, there was no

8

evidence of psychosis or confusion, and his insight and judgment seemed intact" (Dr. Schnurr) and

9

"Plaintiff had an anxious mood with congruent affect, but also had a cooperative attitude,
unremarkable speech, a linear and goal-directed through process, fair insight and judgment, and no

11
United States District Court
Northern District of California

10

hallucinations or suicidal ideation" (Dr. Kayman). (Id. at 4-5.)

12

Moreover, as the ALJ further considered, treatment notes indicated that Plaintiff had a

13

positive response to medication. (Id. at 5) (citing Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d

14

1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are

15

not disabling for the purpose of determining eligibility for SSI benefits.") For example, in October

16

2012, Plaintiff reported that medication (e.g. Zoloft) made his depression "manageable" (Dr.

17

Rana), in January 2013, Plaintiff took medication (Wellbutrin) and it was "being tolerated well"

18

(AR 302), was "doing fine," works out at the gym and seeing "a lot of results with working out,"

19

seeing someone who he really liked, and was "doing fine living with old friend" and took

20

medications including Citalopram, lisinopril and pravastatin (Dr. Kayman), in November 2014,

21

Plaintiff's depressive disorder was "[c]urrently doing well" and medication was continued,

22

including 10mg Citalopram and Wellbutryn, and his asthma was "[c]ontrolled with albuterol" and

23

his gastroesophageal reflux disease (GERD) was "well controlled" with current treatment with the

24

medication of omeprazole being continued, and he was taking atorvastatin and citalopram (Dr.

25

Edmunds), and in December 2014, Plaintiff was "doing well" on citalopram and Wellbutrin "and

26

is likely to continue to do well on those doses" (Dr. Kayman). Thus, Defendants conclude,

27

Plaintiff's generally unremarkable treatment notes supported Dr. Lucila's opinion that Plaintiff had

28

no disabling mental limitations. (Id. at 6.)
26

1

In reply, Plaintiff points out how Dr. Lucila is a non-examining source, and argues that his

2

opinion, alone, cannot constitute substantial evidence, no matter how qualified he is or how much

3

expertise he possesses. (Plf.'s Reply at 5.) Plaintiff also argues that the ALJ's reliance on Dr.

4

Lucila's assessment because it was "consistent with the treatment record, reflecting few mental

5

status abnormalities and a positive response to medication" misstates the findings in the record, in

6

particular Dr. Wiebe's actual findings that Plaintiff's functioning is worse than mild to moderate

7

impairments and actually "marked-to-extreme limitations" that lead to the Plaintiff's conclusion

8

that he "is experiencing a severe mental disorder." (Id. at 5-6.) Plaintiff also references that even

9

though Defendant characterizes as "unremarkable" some of Plaintiff's mental status examinations,
there was one examination with Dr. Schnurr in which Plaintiff had an "anxious affect and

11
United States District Court
Northern District of California

10

depressed mood" and an examination with Dr. Kayman in which he had an "anxious mood with

12

congruent effect." (Id. at 6.) Plaintiff finally argues that Dr. Lucila did not review all the records

13

because some records were submitted after Dr. Lucila's review. (Id.)

14

For reasons similar to the above analysis performed for the opinion of Dr. Monis, the Court

15

finds that the ALJ did not err in according great weight to the opinion of Dr. Lucila. The ALJ

16

provided specific and legitimate reasons supported by substantial evidence in according great

17

weight to Dr. Lucila's opinion because he stated that Dr. Lucila's conclusions "are consistent with

18

the treatment record, reflecting few mental status abnormalities and a positive response to

19

medication." (AR 28.) This evaluation of Dr. Lucila's assessment has voluminous support in the

20

medical evidence record, as detailed above (Def.'s Opp'n at 5-6), and therefore, is a justifiable

21

conclusion that the ALJ can properly make. As to the few evaluations that Plaintiff points out that

22

are present in the record as possibly contradicting this overarching theme of "few mental status

23

abnormalities" and a "positive response to medication," they are outliers that have been properly

24

rejected due to the ALJ's specific and legitimate reasoning, supported by substantial evidence, that

25

the treatment record predominantly reflects Plaintiff having mild to moderate impairments that

26

have responded well to treatment. Here, the ALJ satisfied the substantial evidence requirement,

27

and provided a detailed summary (AR 27-28) of Dr. Lucila's findings and its consistency with the

28

other medical evidence to explain why he gave Dr. Lucila's assessment such great weight.
27

1

Reddick, 157 F.3d at 725. The ALJ also properly resolved the contradictory evidence Dr. Lucila

2

observed in the record (e.g. Dr. Wiebe's opinion) by reaffirming how the rest of the treatment

3

record reflected few mental status abnormalities and a positive response to medication. Thus, the

4

Court finds that the ALJ did not err in giving the opinion of Dr. Lucila great weight.

5

B.

6

Plaintiff next argues that the ALJ erred in failing to find PTSD and Panic Disorder as

The ALJ's Finding that PTSD & Panic Disorder were Not Severe Impairments

7

severe impairments during Step Two. (Plf's Mot. at 19.) Plaintiff defines Step Two as a "limited

8

inquiry" where a medical impairment is found non-severe only if the medical evidence clearly

9

shows it is a slight abnormality having no more than a minimal effect on work-related abilities.
(Id.) Plaintiff asserts that the ALJ incorrectly held that the record did not adequately establish

11
United States District Court
Northern District of California

10

PTSD or panic disorder because "details of the trauma(s) are sparse and inconsistent" and that

12

even though Plaintiff reported flashbacks of childhood abuse and potential sexual abuse by his

13

family, Plaintiff once reported having no memory of sexual abuse, and suspected, at another time,

14

that he "may have been" sexually abused. (Id. at 12.) Plaintiff avers that he was diagnosed with

15

PTSD by his treating therapist, Melissa Anderson and that his former treating provider Dr.

16

Kayman also diagnosed him with Panic Disorder with Agoraphobia and gave him a rule-out

17

diagnosis for PTSD. (Id. at 19-20.) Plaintiff also points out that Drs. Wiebe, Schnurr and Kalich

18

diagnosed him with PTSD and that each one of these providers felt that these conditions had a

19

significant effect on his work-related abilities, which is sufficient, in Plaintiff's view, to overcome

20

the "de minimis" Step Two inquiry. (Id. at 20.) Plaintiff also states in a prior ALJ decision from

21

May 18, 2012, the ALJ there (Lauren R. Mathon) found that PTSD was a severe impairment at

22

Step Two. (Id. at 20.) Because the present ALJ, Richard P. Laverdure, found that "there has been a

23

change of circumstances" that overcame the presumption of continuing non-disability, Plaintiff

24

argues that ALJ Lavedure fails to explain how Plaintiff's impairments have become more severe

25

while, at the same time, one of his previously severe impairments became non-severe. (Id. at 20.)

26

In response, Defendant states that Plaintiff's argument that the ALJ improperly assessed his

27

PTSD and Panic Disorder is without merit. (Def.'s Opp'n at 9.) Defendant then asserts that if a

28

claimant has a medically determinable impairment, at Step Two of the sequential evaluation
28

1

process, the ALJ determines whether it is a "severe" impairment, and impairment is "severe" only

2

if it significantly limits an individual's ability to perform basic work activities for at least a 12-

3

month consecutive period. (Id.) Defendant further states that even if the ALJ errs in evaluating an

4

impairment at Step Two, any error is harmless if the ALJ considers the impairment later in the

5

sequential analysis. (Id. at 9) Therefore, the Defendant argues that even if the ALJ erred in not

6

finding PTSD or Panic Disorder to be severe impairments – specifically, the ALJ found PTSD and

7

Panic Disorder were not severe or sufficiently established by the record – any error is harmless

8

because the ALJ discussed the mental health evidence later on in the sequential evaluation

9

analysis, e.g. in considering Plaintiff's mental health symptoms in assessing Plaintiff's RFC. (Id.)

10

In reply, Plaintiff disputes Defendant's argument that the ALJ considered PTSD and Panic

United States District Court
Northern District of California

11

Disorder later on in his sequential analysis because if the ALJ had considered these disorders at

12

Step Five, the ALJ would have assigned a more limited RFC that included absences from work

13

and being off-task due to Plaintiff's panic attacks and flashbacks. (Plf.'s Reply at 7.)

14

On balance, the Court finds that the ALJ did not err in not finding PTSD and Panic

15

Disorder as non-severe impairments during the Step Two analysis. First, the ALJ's conclusion that

16

"the record does not adequately establish" PTSD or Panic Disorder is a reasonable one, because

17

the ALJ found that in the record, details of any trauma suffered by Plaintiff were "sparse and

18

inconsistent." (AR 21.) This inconsistent evidence includes an occasion where Plaintiff reported

19

he "believe[d] there was some sexual abuse" in his past but at another evaluation with Dr. Kalich

20

stated that "he had no memory of sexual abuse" as well as a report from Plaintiff that he was

21

molested as a child and placed in a Boy's home in Houston for six years (from ages 8 to 14) but

22

during another evaluation Plaintiff stated that he suspected "he may have been" sexually abused

23

and that he spent six months in a treatment facility, instead of six years. (AR 21, 352, 407, 419.)

24

Similarly, the ALJ also reasonably concluded that "the record does not establish a severe cognitive

25

disorder" or Panic Disorder. (AR 21.) For example, Dr. Monis found that it was odd and

26

contradictory for Dr. Weibe to diagnose Plaintiff with an amnestic mild cognitive impairment in

27

July 2012 but one year later, report that Plaintiff obtained a Full Scale IQ score of 122, with a

28

score of 108 for working memory, which was ten (10) standard deviations above the norm for
29

1

memory. (AR 21, 273, 332.) Dr. Monis also testified that those results could be indicative of

2

malingering, or feigning disease, but did not have enough information to make that conclusion.

3

(AR 451.) The ALJ further reasonably concluded that the existence of Panic Disorder was also

4

inconsistent with the information that Plaintiff was able to provide at Dr. Kalich's evaluation,

5

where Plaintiff recounted details of his life history, feelings and daily activities ("he is capable of

6

tidying areas that are accessible to him" and "is able to prepare simple meals," "attend to personal

7

hygiene," and "drive a vehicle" as well as participate in household chores, attend appointments

8

and run errands outside of his home when necessary). (AR 407-13.)

9

Furthermore, even though the ALJ did not find PTSD or Panic Disorder sufficiently
established by the record or as a severe impairment, any error in doing so is harmless because he

11
United States District Court
Northern District of California

10

"considered all mental health symptoms and findings as part of the claimant's affective, anxiety,

12

and personality disorders" and discussed them later on in his analysis in Step Four. (AR 21.) "The

13

Ninth Circuit has held that an ALJ's failure to consider a severe impairment at Step Two can

14

amount to a harmless error when the ALJ subsequently discusses the limitations posed by that

15

impairment at Step Four." Clark v. Berryhill, No. 17-cv-00371-JCS, 2018 WL 3659052, at *24

16

(N.D. Cal. Aug. 2, 2018) (citing Lewis, 498 F.3d at 910-11 (holding that the ALJ's failure to list

17

plaintiff's bursitis at Step Two constituted harmless error because the ALJ's decision "reflect[ed]

18

that the ALJ considered any limitations posed by the [plaintiff's] bursitis at Step 4")); see also

19

Bryant v. Colvin, No. 15-cv-02982 (JSC), 2016 WL 3405442, at *25 (N.D. Cal. June 21, 2016)

20

("any error was harmless, as the ALJ considered Plaintiff's right-sided weakness in assessing

21

Plaintiff's RFC."). Therefore, even if the ALJ erred in not finding PTSD or Panic Disorder as

22

severe impairments of Plaintiff – and the Court finds that the ALJ did not err as such – such an

23

error would be harmless because the ALJ later used mental health symptoms and findings (that

24

included PTSD or Panic Disorder evaluations) in Step Four to determine the Plaintiff's RFC.

25

C.

26

Next, Plaintiff argues that the ALJ erred in determining his RFC. (Plf.'s Mot. at 20.)

27

Essentially, Plaintiff argues that he would have been assigned a more restrictive RFC had the ALJ

28

not failed to account for the difficulties that Plaintiff would have – according to one or more

Whether the ALJ Erred in Determining Plaintiff's RFC

30

1

examining psychologists – in maintaining regular attendance and punctuality, in remaining on-

2

task, in completing a workday or workweek without interruptions from psychological symptoms,

3

and in withstanding the stress of a routine workday. (Id.) In support of his argument, Plaintiff cites

4

how VE, or Vocational Expert, Lynda Berkley testified that a hypothetical claimant would be

5

unemployable if he missed more than one day of work a month, how Drs. Wiebe and Kalich each

6

found marked impairment in Plaintiff's ability to maintain attendance while Dr. Schnurr stated he

7

had a poor ability to maintain attendance, how VE Berkeley also testified that an employee who

8

was off-task 20 percent of the workday would not be able to maintain employment and an

9

employee who required one additional 15-minute break every day would not be employable, how
the limitations found by any or all of the four examining psychologists would support a finding

11
United States District Court
Northern District of California

10

that Plaintiff would be off-task 20 percent of the time, how Drs. Wiebe and Kalich said Plaintiff

12

would have marked impairment in maintaining a consistent pace without an unreasonable number

13

of rest periods, how Dr. Schnurr found that Plaintiff would have difficulty completing a workday

14

without interruptions, and how Dr. Sardy found moderate-to-severe impairment in Plaintiff's

15

ability to withstand the stress of a routine workday. (Id. at 21.)

16

In response, Defendant asserts that the ALJ properly assessed Plaintiff's mental functional

17

ability and RFC. (Def.'s Opp'n at 2.) Defendant further states that a claimant's RFC is the most a

18

claimant can do despite his limitations, and is based on all the relevant evidence in the record. (Id.)

19

Defendant additionally argues that in making the RFC determination, the ALJ takes into account

20

those limitations for which there is record support that does not depend on properly rejected

21

evidence and subjective complaints. (Id. at 2) (citing Batson v. Comm'r, 359. F.3d 1190, 1197 (9th

22

Cir. 2004)). Defendant also points out that as the fact-finder, the ALJ weighed all the relevant

23

evidence, including Plaintiff's treatment notes, examination records, medical opinions, and

24

Plaintiff's testimony and statements, to find that Plaintiff could perform non-public simple

25

repetitive tasks in positions where he required no more than occasional interaction with co-

26

workers and incidental public contact, with that finding based on a reasonable interpretation of the

27

overall record, including generally normal clinical findings and the opinions of Social Security

28

disability experts, medical doctors, state agency psychologists, therapists and other professionals
31

1

that Plaintiff could perform work with limitations in public interaction. (Id. at 2-3.) In addition, as

2

also discussed above, Defendant notes that the ALJ reasonably gave more weight to the

3

consistently record-supported opinions of Drs. Lucila and Monis over the opinions of the other

4

medical sources that were based on one-time examinations containing contradictory data and

5

conflicting data and that were also not supported by the objective findings. (Id. at 3.)
In reply, Plaintiff merely reiterates its argument that because the ALJ erred in giving little

6
7

to no weight to the opinions of any of the aforementioned four examining physicians, the ALJ also

8

erred in determining Plaintiff's RFC. (Plf.'s Reply at 8.)
Upon consideration of the parties' arguments, the Court finds that the ALJ did not err in

9

determining Plaintiff's RFC because the ALJ is "the final arbiter with respect to resolving

11
United States District Court
Northern District of California

10

ambiguities in the medical evidence." Tommasetti, 533 F.3d at 1041-42. The ALJ acted as the

12

proper fact-finder and final arbiter by analyzing all the relevant medical evidence, in a two-step

13

process,4 to conclude that even though Plaintiff's medically determinable impairments could

14

reasonably be expected to cause some alleged symptoms, the Plaintiff's statements concerning the

15

intensity, persistence and limiting effects of those symptoms were not entirely credible. (AR 23.)

16

The ALJ backed up this reasoning by citing to medical opinions for both Plaintiff's physical

17

impairments used to evaluate the physical component of the RFC (e.g., various opinions stating

18

how many pounds Plaintiff could carry and lift, how much Plaintiff could stand and/or walk in an

19

8-hour workday, Plaintiff's range of motion, imaging studies of Plaintiff's back, and so on) and

20

Plaintiff's mental impairments used to evaluate the mental component of the RFC (e.g., various

21

psychological tests such as MCMI-III, MMSE, BDI-II, mental health questionnaires, GAF scores).

22
23
24
25
26
27
28

4

"In considering the claimant's symptoms, I must follow a two-step process in which it must first
be determined whether there is an underlying medically determinable physical or mental
impairment(s)--i.e., an impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques--that could reasonably be expected to produce the claimant's pain
or other symptoms. Second, once an underlying or mental impairment(s) that could reasonably be
expected to product the claimant's pain or other symptoms has been shown, I must evaluate the
intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to
which they limit the claimant's functioning. For this purpose, whenever statements about the
intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, I must make a finding on the credibility of the
statements based on a consideration of the entire case record." (AR 23.)
32

1

(AR 23-28.) The ALJ also cites contradictory evidence for Plaintiff's physical impairments (e.g.,

2

minor complaints of back pain, shortness of breath, etc.) such as Plaintiff stating he worked out at

3

a gym two to three times a week, and Plaintiff's mental impairments (e.g., consistent mild to

4

moderate impairment with attention, concentration and persistence) such as the Plaintiff appearing

5

"flustered" when not able to obtain completed disability paperwork from Dr. Kayman (suggesting

6

that his motive was not treatment but to obtain social security claim documentation), and how he

7

spent time with friends, attended movies, played games, attended local events two to three times

8

per month, walked a lot, went to a Halloween party and took a trip to Disneyland, all "activities

9

not consistent with debilitating social phobia." (AR 23-28.) Thus, the ALJ's determination of
Plaintiff's RFC is not only rational, justified and well-reasoned, but also supported by substantial

11
United States District Court
Northern District of California

10

evidence based upon a detailed review of the entire medical evidence record.

12

D.

13

Plaintiff next argues that the ALJ erred in evaluating Plaintiff's credibility. (Plf.'s Mot. at

Whether the ALJ Erred in Evaluating Plaintiff's Credibility

14

21.) Specifically, Plaintiff alleges that because there is no affirmative evidence of malingering, the

15

ALJ's reasons for rejecting Plaintiff's testimony about the severity of symptoms must be "clear and

16

convincing" and because Plaintiff produced medical evidence of an underlying impairment, the

17

Commissioner may not discredit the Plaintiff's testimony as to the severity of symptoms merely

18

because they are unsupported by objective medical evidence. (Id.) Plaintiff has issues with the

19

ALJ's determinations that Plaintiff's cane use and his social activities were not credible. (Id. at 22-

20

23.) Specifically, Plaintiff argues that his cane use is supported by multiple complaints of back

21

pain, or chronic pain and weakness. (Id. at 22.) For his social activity, Plaintiff cites a case stating

22

that the "Social Security Act does not require that claimants be utterly incapacitated to be eligible

23

for benefits." Fair v. Bowen, 885 F.2d 507, 603 (9th Cir. 1989). Plaintiff further contends that

24

going to one party and taking one trip during the three-year period prior to his hearing is not

25

inconsistent with a debilitating social phobia, and that the ALJ's interpretation of Dr. Kayman's

26

remarks about Plaintiff being "flustered" suggests Plaintiff's motive for that visit was not

27

treatment, but was to obtain documentation for his claim "second-guesses" the doctor's opinion.

28

(Id. at 22-23.)
33

1

In response, Defendant asserts that Congress expressly prohibits granting disability
benefits based on a claimant's subjective complaints. (Def.'s Opp'n at 10.) Defendant further

3

argues that an ALJ is required to make specific credibility findings, and such a credibility finding

4

must be properly supported by the record and sufficiently specific to ensure a reviewing court that

5

the ALJ did not "arbitrarily discredit" a claimant's subjective testimony. (Id. at 11) Defendant

6

additionally maintains that in this case, the ALJ considered Plaintiff's allegations of disabling

7

physical and mental limitations and then provided valid reasons for finding that Plaintiff's

8

allegations were not fully credible. (Id. at 11) (citing Tommasetti, 533 F.3d at 1039 ("If the ALJ's

9

finding is supported by substantial evidence, the court 'may not engage in second-guessing.'")).

10

Defendant avers that first, the ALJ reasonably found that the medical evidence failed to support

11
United States District Court
Northern District of California

2

Plaintiff's subjective complaints. (Id.)

12

Defendant confirms the ALJ's explanation that the physical examinations in the record did

13

not support Plaintiff's allegations that he could only walk 30 minutes or that he required a cane

14

two to three times per year due to sciatic pain, reasoning that the treatment record concerning

15

physical conditions was "sparse and primarily reflects routine care." (Id. at 11-12.) Defendant then

16

points out that Plaintiff does not challenge this finding but refers to more than one complaint of

17

back pain in the record. (Id. at 12.) Defendant argues that even if Plaintiff complained of back pain

18

more than one time, that does not undermine the ALJ's finding that Plaintiff's sparse treatment

19

records and routine care undermined his complaints of disabling limitations. (Id.)

20

Defendant also confirms the ALJ's finding that the mental status evidence did not support

21

Plaintiff's complaints of disabling mental limitations. (Id.) Defendant states that Dr. Kayman

22

remarked that Plaintiff wanted disability paperwork completed at the first visit and was "flustered"

23

to find out that was not possible, as the ALJ pointed out. (Id.) Defendant then argues that the ALJ

24

reasonably inferred that Plaintiff's motive was to obtain documentation for his claim not to receive

25

treatment. (Id.) Defendant also asserts that the ALJ reasonably found that Plaintiff's subjective

26

complaints were not supported by his activities, for example, despite Plaintiff's allegations that he

27

had social phobia and avoided going out, he spent time with friends attending movies and local

28

events, playing games, and went to a Halloween party as well as Disneyland. (Id. at 12-13.)
34

1

In reply, Plaintiff argues that in suggesting Plaintiff sought a visit from Dr. Kayman to

2

obtain claim documentation and not to receive treatment because he was "flustered" when told that

3

was not possible, the ALJ "impermissibly" second-guessed the doctor's opinion. (Plf.'s Reply at 8.)

4

On balance, the Court finds that the ALJ did not err in evaluating Plaintiff's credibility. In

5

assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of

6

symptoms, the ALJ must engage in a two-step inquiry. Vasquez v. Astrue, 572 F.3d 586, 591 (9th

7

Cir. 2009). An ALJ must first determine "whether the claimant has presented objective medical

8

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

9

other symptoms." Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotations
and citations omitted). At this step, a claimant need not show that her impairment "could

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United States District Court
Northern District of California

10

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

12

that it could reasonably have caused some degree of the symptom." Id. Next, if a claimant meets

13

this first prong and there is no evidence of malingering, the ALJ must then provide "specific, clear

14

and convincing reasons" for rejecting a claimant's testimony about the severity of his or her

15

symptoms. Id. (quoting Lingenfelter, 504 F.3d at 1036).

16

In evaluating the claimant's testimony, the ALJ may use “ordinary techniques of credibility

17

evaluation.” Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 n. 3 (9th Cir. 2010) (quoting

18

Smolen, 80 F.3d at 1284). For example, the ALJ may consider inconsistencies either in the

19

claimant's testimony or between the testimony and the claimant's conduct, "unexplained or

20

inadequately explained failure to seek treatment or to follow a prescribed course of treatment,"

21

Tommasetti, 533 F.3d at 1039 (quoting Smolen, 80 F.3d at 1284); and "whether the claimant

22

engages in daily activities inconsistent with the alleged symptoms," Lingenfelter, 504 F.3d at

23

1040. Even though a claimant need not "vegetate in a dark room" in order to be eligible for Social

24

Security Income benefits, certain activities or behavior may support a finding of no disability. See

25

Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir.1987) (quoting Smith v. Califano, 637 F.2d 968, 971

26

(3d Cir.1981)). For instance, the ALJ may discredit a claimant's testimony when the claimant

27

reports participation in everyday activities indicating capacities that are transferable to a work

28

setting. See Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); Fair, 885
35

1

F.2d at 603. Even when those activities suggest some difficulty functioning, they may still be used

2

as grounds for discrediting the claimant's testimony to the extent that they contradict claims of a

3

totally debilitating impairment. See Turner, 613 F.3d at 1225; Valentine v. Comm'r Soc. Sec.

4

Admin., 574 F.3d 685, 693 (9th Cir. 2009).

5

Here, the ALJ properly evaluated the Plaintiff's credibility under the aforementioned two-

6

step analysis. As to the first prong, the ALJ found that Plaintiff's underlying impairments could

7

reasonably be expected to cause the alleged symptoms. (AR 23.) Furthermore, the ALJ also

8

legitimately found that Plaintiff's statements considering the intensity, persistence and limiting

9

effects of those symptoms were not entirely credible. (Id.) As to the second prong, the ALJ
provided specific, clear and convincing reasons for rejecting Plaintiff's testimony of his symptoms

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Northern District of California

10

by using ordinary techniques of credibility evaluation. For example, the ALJ pointed to many

12

activities that Plaintiff engaged in that appeared inconsistent with both of Plaintiff's physical and

13

mental symptoms such as working out at a gym multiple or several times a week while also stating

14

he had to use a cane on rare occasions and that he had sciactic pain and back pain, recently moving

15

in with his boyfriend, working on a book, going online, spending time with friends, attending

16

movies, playing games or attending local events two to three times per month, walking a lot, going

17

to a Halloween party and taking a trip to Disneyland. (AR 23-28.); see also Molina v. Astrue, 674

18

F.3d 1104, 1112-13 (9th Cir. 2012) (the ALJ may consider "whether the claimant engages in daily

19

activities inconsistent with the alleged symptoms" and the "ALJ could reasonably conclude that

20

Molina's activities, including walking her two grandchildren to and from school, attending church,

21

shopping, and taking walks, undermined her claims that she was incapable of being around people

22

without suffering from debilitating panic attacks").

23

Also, contrary to Plaintiff's arguments, the ALJ's analysis is not "second-guessing" any

24

medical opinion because it is the ALJ's job to make determinations and findings based on the facts

25

and evidence in the record. Moreover, many of the social and physical activities that the ALJ

26

observed are arguably transferable to a work setting such as working out, walking, writing a book,

27

going online and socializing. And even when those aforementioned activities suggest some

28

difficulty in full social or psychological functioning, they can still be validly used by the ALJ to
36

1

discredit Plaintiff's testimony to the extent that it contradicts claims of a totally debilitating

2

impairment. See Turner, 613 F.3d at 1225; Valentine, 574 F.3d at 693. Finally, the ALJ's

3

suggestion that Plaintiff's motive for visiting Dr. Kayman was not for treatment but for obtaining

4

claim documentation (due to acting "flustered" when he found out that filling out his disability

5

paperwork was not possible during the first visit) was rational, well-reasoned and justified because

6

such behavior would appear to any fact-finder as being suspicious, and it is up to the ALJ, not

7

medical examiners, to make these fact-based credibility determinations from the record.

8

E.

9

Next, Plaintiff argues that the Appeals Council erred in rejecting material evidence. (Plf.'s

Whether the Appeals Council Erred in Rejecting Material Evidence

Mot. at 23.) Specifically, Plaintiff alleges it was error for the Appeals Council to reject its

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United States District Court
Northern District of California

10

submitted additional records for the reason that the "additional evidence does not relate to the

12

period at issue" and as a result, "did not make it part of the record." (Id.) Plaintiff also avers that

13

Defendant submitted an incomplete copy of the Administrative Transcript, and the Court should

14

consider all of the evidence Plaintiff submitted as part of the administrative record because it was

15

submitted to the Appeals Council. (Id.) Furthermore, Plaintiff also attached the previously denied

16

additional records as exhibits to its motion for summary judgment, which show that Plaintiff

17

continued to seek treatment for his symptoms of his longstanding psychological impairments,

18

including PTSD, which the ALJ had considered non-severe. (Id.)

19

In response, Defendant states that Plaintiff's argument that the Appeals Council erred in

20

rejecting evidence dated after the ALJ's decision is meritless. (Def.'s Opp'n at 13.) Defendant

21

points out that as an initial matter, federal courts "do not have jurisdiction to review a decision of

22

the Appeals Council denying a request for review of an ALJ's decision, because the Appeals

23

Council decision is a non-final agency action." (Id.) (citing Brewes v. Comm'r Soc. Sec. Admin.,

24

682 F.3d 1157, 1159-60 (9th Cir. 2012); Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228,

25

1231 (9th Cir. 2011) (when the Appeals Council declines review, "the ALJ's decision becomes the

26

final decision of the Commissioner" subject to substantial evidence review based on the record as

27

a whole). Defendant also maintains that the Appeals Council properly found that the additional

28

records submitted from Plaintiff, dated between March 2016 and May 2017, did not affect the
37

1

ALJ's decision about whether Plaintiff was disabled on or before February 19, 2016, because the

2

relevant regulations in 2011, which were in effect at the time of the ALJ's decision, state that:

3
4
5
6
7

The Appeals Council will consider all the evidence in the
administrative law judge hearing record as well as any new and
material evidence submitted to it which relates to the period on or
before the date of the administrative law judge hearing decision. If
you submit evidence which does not relate to the period on or
before the date of the administrative law judge hearing decision,
the Appeals Council will return the additional evidence to you with
an explanation as to why it did not accept the additional evidence
and will advise you of your right to file a new application.

8

20 C.F.R. § 416.1476(b)(1) (2011) (emphasis added).

9

Defendant further argues that the Appeals Council's decision to reject this evidence
because it post-dated the ALJ's decision is consistent with case law. (Def.'s Opp'n at 14) (citing

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United States District Court
Northern District of California

10

Quesada v. Colvin, 525 Fed. Appx. 627, 630 (9th Cir. 2013) (unpublished) (district court properly

12

concluded that additional evidence claimant submitted to the Appeals Council would not have

13

changed the outcome because it post-dated the ALJ's decision and, therefore, was irrelevant);

14

Brewes, 682 F.3d at 1162. Finally, Defendant asserts that even if the Court finds that the Appeals

15

Council should have found these additional medical records pertaining to the relevant disability

16

period, they still do not disturb the validity of the ALJ's decision. (Def.'s Opp'n at 14.) For

17

example, Defendant argues that the additional medical records do not undermine the ALJ's

18

reasonable finding that Plaintiff could perform non-public simple repetitive tasks in positions

19

where he required no more than occasional interaction with co-workers. (AR 22-23.) The

20

additional medical records merely show that upon testing, Plaintiff's general intellectual

21

functioning fell in the "superior range," his verbal abilities were also in the "superior range," his

22

processing speed and ability to hold information and manipulate it to solve problems was in the

23

"average range," and his visuospatial perceptual and reasoning skills were in the "very superior"

24

range. (Def.'s Opp'n at 14-15.) Moreover, the additional medical records show attention or

25

concentration tests where Plaintiff exhibited "average" to "high average" results. (Id. at 15.)

26

Finally, similar to the evidence already considered by the ALJ, the additional medical records

27

reflect Plaintiff's participations in a wide range of activities, e.g., Plaintiff indicating that he could

28

manage the activities of daily living independently, and Plaintiff also engaging in hobbies such as
38

1

walking, social media, cigars with friends, reading, writing stories, and blogging. (Id.) Thus,

2

Defendant concludes that Plaintiff's new evidence does not change the substantial evidence

3

supporting the ALJ's decision and even though Plaintiff attached those numerous records to his

4

brief, he failed to explain how any of those records would undermine the ALJ's decision. (Id.)

5

In reply, Plaintiff contends that the evidence submitted to the Appeals Council relates to
the period at issue because it supports the opinions of the examining physicians, which were

7

rejected by the ALJ: hence, Plaintiff argues, the additional records should have been considered.

8

(Plf.'s Reply at 8.) Plaintiff also points out the additional records include opinions from Dr. Peter

9

van Oot and a treating provider at Axis Health diagnosing him with PTSD, with Dr. van Oot

10

opining that although Plaintiff had average or above-average intellectual functioning in some

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United States District Court
Northern District of California

6

areas, he had extreme memory impairments in other areas. (Id.) Plaintiff additionally argues that in

12

only sending a Notice of Action and Order of Appeals Council back to Plaintiff, the Appeals

13

Council did not comply with SSA regulations by failing to return the new evidence to the Plaintiff.

14

Upon consideration of both parties' arguments and the relevant law, the Court finds that the

15

Appeals Council did not err in rejecting material evidence, or the new additional records submitted

16

by Plaintiff. Plaintiff's submission simply fails to comport with the requirements of 20 C.F.R. §

17

416.1476(b)(1) (promulgated in 2011, and in effect at the time of the ALJ's decision on January

18

20, 2016 before being changed on December 16, 2016) by being "evidence which does not relate

19

to the period on or before the date of the administrative law judge hearing decision" or January 20,

20

2016, as the documents are dated August 10, 2016 (Ex. A, Dkt. No. 17-1), March 20, 2016 to

21

August 15, 2016 (Ex. B, Dkt. No. 17-2) and October 11, 2016 to May 26, 2017 (Ex. C, Dkt. No.

22

17-3), all times or time periods clearly after January 20, 2016. Moreover, even if these additional

23

records were admitted by the Appeals Council, the ALJ's decision would be undisturbed, as the

24

additional records seem to support, and not undermine, the analysis and conclusions reached by

25

the ALJ in his decision. Also, although these additional records were considered by the Court, it

26

must be reiterated that they are not part of the record due to the decision from the Appeals Council

27

in rejecting them. Accordingly, the Court finds that the Appeals Council did not err in rejecting

28

the additional records submitted by Plaintiff.
39

1

F.

Remanding for Payment of Benefits or Further Proceedings

Plaintiff finally argues that the Court should remand for payment of benefits, or in the
2
alternative, for further proceedings. (Plf.'s Mot. at 24.) (citing Benecke v. Barnhart, 379 F.3d 587
3
(9th Cir. 2004) ("Remand for further administrative proceedings is appropriate if enhancement of
4
the record would be useful.")). Plaintiff asserts that the Court may remand to an ALJ with
5
instructions to calculate and award benefits if: (1) the record has been fully developed and further
6
administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide
7
legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;
8
and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to
9
find the claimant disabled on remand. Garrison, 758 F.3d at 1020. Plaintiff then contends that
10
once the three prongs of this "credit-as-true" rule are met, the claimant is entitled to an award of
11
United States District Court
Northern District of California

benefits unless "the record as a whole creates serious doubt as to whether the claimant is, in fact,
12
disabled," in which case remand for further proceedings would be appropriate. Id. at 1020-21.
13
Thus, Plaintiff argues that this case satisfies the "credit-as-true" rule because the record has been
14
fully developed and further administrative proceedings would serve no useful purpose, the ALJ
15
improperly rejected the opinions of the four examining physicians Drs. Sardy, Schnurr, Wiebe and
16
Kalich, and the four examining opinions, either alone or combined, would necessarily lead to a
17
finding of disability at either Step Three or Five. (Plf.'s Mot. at 24.)
18
In response, Defendant argues that the Court should instead affirm the Commissioner's
19
final decision because the ALJ's findings are supported by substantial evidence and free from
20
reversible legal error. (Def.'s Opp'n at 15.) In the event the Court overturns the ALJ's decision,
21
however, Defendant asserts that the proper remedy would be remand for further administrative
22
proceedings. Defendant further contends that the Ninth Circuit has clarified that the credit-as-true
23
rule only justifies an award of benefits in narrow circumstances. (Id.) (citing Treichler v. Comm'r,
24
775 F.3d 1090, 1099-1102 (9th Cir. 2014) ("Administrative proceedings are generally useful
25
where the record has not been fully developed, there is a need to resolve conflicts and ambiguities,
26
or the presentation of further evidence may well prove enlightening in light of the passage of
27
time.") (citations omitted)).
28
40

1

In reply, Plaintiff attempts to distinguish the Treichler case cited by Defendant by arguing

2

that this case contains no outstanding issues. (Plf.'s Reply at 9.) Moreover, Plaintiff asserts that in

3

this case, if the improperly discredited evidence (any or all of the four examining psychologists'

4

reports) is credited as true, there would be no outstanding issues to be resolved, and an award for

5

payment of benefits would be warranted. (Id.)

6

Upon consideration of the parties' arguments, the Court sees no reason to remand for

7

payment of benefits or for further proceedings. Because the ALJ's decision is supported by

8

substantial evidence and well-reasoned analysis, it is also free from reversible legal error. As a

9

result, the credit-as-true rule or the Treichler holding suggesting a remand for further proceedings

10

are inapplicable here. Accordingly, the ALJ's decision is affirmed.

United States District Court
Northern District of California

11
12

V.

CONCLUSION

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

13

Defendant's motion for summary judgment is GRANTED.

14

The Clerk of the Court shall close this case.

15

IT IS SO ORDERED.

16

Dated: September 28, 2018
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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