Larsen v. Colvin

Filing 29

REPORT AND RECOMMENDATION: It is this Court's Report and Recommendation that defendant's motion for summary judgment (ECF No. 21 ) be granted and plaintiff's motion (ECF No. 20 ) be denied. Objections are due fourteen days from service of this report. Responses are due fourteen days after being served with any objection. Signed by Magistrate Judge Andrew G. Schopler on 02/05/2018. (All non-registered users served via U.S. Mail Service)(mxa)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

Case No.: 16-cv-2847-JM-AGS

Christopher Michael LARSEN,
Plaintiff,

11
12

v.

13

REPORT AND RECOMMENDATION
ON SUMMARY JUDGMENT
MOTIONS (ECF Nos. 20 & 21)

Nancy A. BERRYHILL,

14

Defendant.

15
16

“[D]eception, withholding of evidence, fraud, manipulation”—these incendiary

17

allegations rarely appear outside of criminal indictments. (See ECF No. 20, at 1.) And,

18

despite plaintiff’s protests, they don’t belong in this Social Security appeal either. This

19

Court recommends affirming the decision to deny plaintiff disability benefits.

20

I.

21

BACKGROUND

22

Plaintiff Christopher Larsen applied for disability benefits to cover a 17-month

23

period—from October 13, 2014, to March 13, 2016—when he was purportedly unable to

24

work due to severe pain and other ailments. (See AR 20, 28, 67.) The Administrative Law

25

Judge concluded that Larsen suffered from four severe impairments: “obesity, left

26

spermatocele, major depression, and an anxiety disorder.” (AR 22.) But the ALJ found that

27

Larsen’s symptoms were not as serious as he claimed and that he could engage in

28

“unskilled, sedentary work,” within certain limits. (AR 25-26, 28.) After determining that
1
16-cv-2847-JM-AGS

1

such work was available, the ALJ concluded that Larsen was not disabled during the

2

relevant time frame and denied his request for benefits. (AR 32.) In this appeal, Larsen

3

asserts that his Social Security proceedings were riddled with errors.

4

II.

5

DISCUSSION

6

A.

Standard of Review

7

A court “may set aside a denial of benefits only if it is not supported by substantial

8

evidence or is based on legal error.” Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929

9

(9th Cir. 2014) (citation omitted); see also 42 U.S.C. § 405(g). “Substantial evidence means

10

more than a scintilla but less than a preponderance; it is such relevant evidence as a

11

reasonable mind might accept as adequate to support a conclusion.” Vasquez v. Astrue, 572

12

F.3d 586, 591 (9th Cir. 2008) (citation omitted). The “substantial evidence” standard is

13

even “more deferential [to the agency] than ‘clearly erroneous.’” Stern v. Marshall, 564

14

U.S. 462, 515 (2011) (citation omitted); see also Dickinson v. Zurko, 527 U.S. 150, 152-

15

53 (1999) (explaining that the “clearly erroneous” standard allows “somewhat closer

16

judicial review” than the more deferential “substantial evidence” standard used for

17

evaluating agency decisions (citations omitted)).

18

B.

Fraud

19

Larsen first takes to task the ALJ, and indeed the Social Security Administration at

20

large, for defrauding him of Social Security benefits. The Court interprets these various

21

claims as an argument for Larsen’s due-process right to an impartial adjudicator. See

22

Hummel v. Heckler, 736 F.2d 91, 93 (9th Cir. 1984) (describing right to “an unbiased

23

judge,” which is “applicable to administrative as well as judicial adjudications” (citations

24

omitted)). To prevail, Larsen “must show that the ALJ’s behavior, in the context of the

25

whole case, was so extreme as to display clear inability to render fair judgment.” Bayliss

26

v. Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005) (citation and quotation marks

27

omitted). The Court begins “with a presumption that the ALJ was unbiased,” but that

28

presumption may be rebutted “by showing a conflict of interest or some other specific
2
16-cv-2847-JM-AGS

1

reason for disqualification.” Id. at 1215 (citation and quotation marks omitted). In his

2

papers, Larsen weaves a web of institutional graft from three threads, addressed below.

3

1. Deceptive Letterhead

4

First, Larsen accuses the Administration of “using the letterhead for [Supplemental

5

Security Income] in a purposeful act of deception with the sole purpose of deceiving me

6

and causing me to miss my deadline for an appeal of my application for [Social Security

7

Disability Insurance] benefits.” (ECF No. 20, at 2.) In this initial rejection letter, the

8

Administration informed Larsen in the opening paragraph that “you are not disabled”

9

(AR 127) and ultimately advised him that he did not qualify either “for Supplemental

10

Security Income (SSI) payments” or “for Social Security benefits.” (AR 127-28.) Larsen

11

nevertheless claims the letter was misleading because its caption does not specifically

12

reference Social Security Disability Insurance and instead is titled:

13
15

SOCIAL SECURITY ADMINISTRATION
SUPPLEMENTAL SECURITY INCOME
Notice of Disapproved Claims

16

(AR 127.) If this boilerplate heading was an insidious attempt to steer Larsen into

17

procedural default, it was poorly executed. The Administration never raised Larsen’s

18

lateness at any stage of the proceedings, and Larsen successfully obtained review before

19

an ALJ and now this Court. At any rate, there is no evidence that the ALJ was involved in

20

this letter or its titling. Thus, the letter’s perhaps-incomplete caption is no basis for

21

disqualifying the ALJ or the Administration.

14

22

2. Scheming Psychiatrist

23

Larsen argues that the Administration acted fraudulently by having him evaluated

24

by psychiatrist Dr. Camellia Clark, who “manipulate[d], plot[ted] and scheme[d] . . . to

25

exact revenge” against him. (ECF No. 20, at 11.) According to Larsen, Dr. Clark sprayed

26

him with an air freshener twice, which Larsen considers an “assault and battery.” (See

27

AR 296-97.) Almost a month later, he reported this incident to the police, but the

28

investigating officer recommended against charges. (AR 331.) Larsen also alleges that
3
16-cv-2847-JM-AGS

1

Dr. Clark “perverted her authority and position of public trust to exact revenge in the

2

cruelest, most tortuous way she could devise through her manipulation of the SSA and the

3

[California Highway Patrol] by way of filing false, malicious reports.” (AR 299.) In

4

particular, he blames Dr. Clark for reporting that he had suicidal ideations and a firearm,

5

which he believes led law enforcement to subject him to a mental-health-check phone call.

6

(See AR 298-99, 755.) Based on these and similar grievances, Larsen later sued and filed

7

a disciplinary complaint against Dr. Clark. (See AR 268-93.)

8

In addition to this provocative history, Larsen objects to Dr. Clark’s psychiatric

9

evaluation, which undermined his disability case. Other than the aforementioned suicidal

10

ideations, Dr. Clark concluded that Larsen had no mental limitations and that his behavior

11

“strongly suggests malingering.” (AR 755.) But she conceded, “If in fact the claimant is

12

telling the truth about his suicidal ideation and recent ER visit on a 5150 [involuntary

13

psychiatric hold], he would appear to meet criteria for disability.” (Id.)

14

Larsen’s checkered history with this one contract psychiatrist does not prove any

15

institutional fraud. In fact, when Larsen objected to seeing Dr. Clark for a follow-up

16

evaluation, the Administration promptly scheduled him to see a different psychiatrist. (See

17

AR 298.) As for the ALJ, he apparently had no role in the initial Dr. Clark appointment or

18

its aftermath. Regardless, the ALJ eventually relied more heavily on the second

19

psychiatrist, who Larsen never criticized.1

20

3. Missing Reports

21

The final strand in Larsen’s proffered web of fraud is his accusation that the

22

Administration withheld two of Dr. Clark’s “reports”: (1) a psychiatric evaluation, dated

23

March 2015, relating to Larsen’s ill-fated initial appointment (see AR 753-55); and (2) a

24

services bill, dated April 2015, reflecting that Larsen’s next appointment was “not kept,”

25

(see AR 757). In the initial denial letter, the Administration mentioned that both of these

26
27
28

1

Larsen also mentions a complaint against a different physician in Dr. Clark’s
practice, but never explains its relevance. Thus, the Court need not address it.
4
16-cv-2847-JM-AGS

1

“report(s) were used to decide your claim.” (See AR 127.) Yet Larsen alleges that the

2

Administration delayed disclosing the first document to him, and that he never even saw

3

the second.

4

(a) Psychiatric Evaluation

5

It is very likely the Administration postponed divulging the psychiatric evaluation.

6

An Administration employee placed this warning in the record: “ALERT- Due to the

7

history of this claimant and CE [consultative examination] provider [Dr. Clark’s office] . . .

8

claimant should NOT be provided a copy of this CE report as it could have an adverse

9

effect.” (AR 237.) Still, Larsen’s attorney obtained a copy of it because he urged the ALJ

10

to disregard “the findings and opinions expressed by Camellia Clark, Ph.D., in Exhibit 6F

11

[Dr. Clark’s psychiatric evaluation].” (See AR 294, 753-55.)

12

At any rate, Dr. Clark’s psychiatric report had virtually no impact on the ALJ’s

13

ultimate decision. The ALJ only mentions it four times. One citation actually helped

14

Larsen’s disability cause. In discussing the mental status examinations, the ALJ noted that

15

Larsen’s four Global Assessment of Functioning scores ranged from 50 (“[s]erious

16

symptoms”) to 65 (“mild symptoms”). See Keyes-Zachary v. Astrue, 695 F.3d 1156,

17

1162 n.1 (10th Cir. 2012) (defining GAF ranges); (AR 29). The only score in the serious

18

range was recorded by Dr. Clark. (See AR 29, 755.) Two other references to the psychiatric

19

evaluation were entirely inconsequential. (See AR 28 (acknowledging Larsen’s request that

20

he not consider Dr. Clark’s report); AR 29 (noting that both “Dr. Clark and Dr. Nicholson

21

indicated that the claimant retained the capacity to understand simple instructions,” which

22

Larsen does not dispute).) Finally, the ALJ cited this report in addressing Larsen’s possible

23

malingering (AR 30), which was at worst harmless error. (See Section II.C.1.(e) below.)

24

By contrast, the ALJ mentioned the name or findings of the other psychiatrist—

25

Dr. Nicholson—15 times. (See AR 23-30.) Unlike Dr. Clark, who found no limitations

26

outside of the suicidal ideation, Dr. Nicholson believed Larsen had “mild functional

27

limitations.” (AR 30.) The ALJ explicitly gave this opinion “some weight” (AR 30),

28

whereas he never explicitly afforded Dr. Clark’s opinion any weight. In short, Larsen had
5
16-cv-2847-JM-AGS

1

access to Dr. Clark’s psychiatric evaluation in time for his disability hearing, and it did not

2

affect the proceedings’ outcome.

3

(b) Services Bill

4

As for the services bill, Larsen may believe he never saw that “report,” because it

5

hardly merits the label. Yet that seems to be what the Administration was referencing in

6

the initial denial notice. (Compare AR 757 (services bill from Dr. Clark’s office regarding

7

“4/07/15,” with the note: “Appt. on 4/7 not kept”) with AR 127 (initial denial letter,

8

referencing report from Dr. Clark’s office “received 04/20/2015”).)

9

The ALJ cites this document only once, noting that “the claimant was a no show for

10

a psychiatric consultative evaluation scheduled for April 7, 2015, and there is no evidence

11

of good cause for the claimant’s failure to comply and cooperate in the disability process.”

12

(AR 29; see AR 757.) The ALJ erred to the extent he relied on this missed appointment as

13

proof that Larsen’s symptoms were mild, because Larsen had good cause to skip his second

14

visit with Dr. Clark. In light of the many other times Larsen failed to comply with

15

treatment, however, any such error was harmless. (See Section II.C.1.(c) below.)

16

Thus, Larsen has not shown an agency-wide scheme to defraud him, and none of the

17

evidence rebuts the presumption that the ALJ was unbiased. See Bayliss, 427 F.3d at 1215.

18

C.

Subjective Symptom Testimony

19

In evaluating the credibility of subjective symptom testimony, “the ALJ can only

20

reject the claimant’s testimony about the severity of the symptoms if [the ALJ] gives

21

‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d

22

1154, 1163 (9th Cir. 2014) (citation omitted). “General findings are insufficient; rather, the

23

ALJ must identify what testimony is not credible and what evidence undermines the

24

claimant’s complaints.” Id. (citation omitted). These adverse credibility findings must be

25

“sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily

26

discredit [the] claimant’s testimony.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,

27

1224 n.3 (9th Cir. 2010) (citation omitted). In weighing that testimony, the ALJ may

28

consider all the typical credibility factors, such as prior inconsistent statements, falsehoods,
6
16-cv-2847-JM-AGS

1

and discrepancies between the claimant’s statements and conduct. Ghanim, 763 F.3d at

2

1163.

3
4

The ALJ raised five reasons for disbelieving Larsen’s symptom testimony. Larsen
also takes issue with two grounds the ALJ did not explicitly rely on.

5

1. The ALJ’s Reasoning

6

(a) Objective Medical Evidence

7

The ALJ found that Larsen’s “statements concerning the intensity, persistence and

8

limiting effects of [his] symptoms are not entirely consistent with the medical evidence.”

9

(AR 28.) “While subjective pain testimony cannot be rejected on the sole ground that it is

10

not fully corroborated by objective medical evidence, the medical evidence is still a

11

relevant factor in determining the severity of the claimant’s pain and its disabling effects.”

12

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citation omitted); see also Parra

13

v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (upholding adverse credibility finding when

14

the ALJ referred to “specific evidence in the record, including numerous medical reports,”

15

that contradicted the plaintiff’s “subjective complaint”). Larsen does not dispute this legal

16

principle, but instead complains that the ALJ “cherry-picked [the] medical evidence.” (ECF

17

No. 20, at 7.)

18

Contrary to Larsen’s characterization, however, the ALJ provided a fair summary of

19

the medical evidence. For instance, the ALJ noted that “very few objective findings . . .

20

support the claimant’s allegations of disabling pain due to a mass in his groin” and that

21

“physical examination” of that area “revealed only mild tenderness and no sign of

22

infection.” (AR 28.) He referenced multiple objective medical records that supported this

23

observation. (See, e.g., AR 27 (citing AR 449, 607 (hip X-ray normal); AR 433-44 (“mildly

24

tender” groin, no tenderness elsewhere in the region, no infection, no deep-vein

25

thrombosis)).)

26

The ALJ likewise concluded that the objective medical record undercuts Larsen’s

27

purported “classic symptoms of depression” and “anxiety”—a conclusion that Larsen has

28

not challenged. (See AR 28.) At the disability hearing, Larsen testified that he had been
7
16-cv-2847-JM-AGS

1

unable to work because “[e]very day it seemed like I was overcome with emotion and it

2

was so powerful that it actually felt like physical pain.” (AR 70.) Yet the ALJ pointed out

3

that Larsen’s mental status examinations were “unremarkable,” with GAF scores routinely

4

in the “high range,” and that his progress notes showed “appropriate” psychiatric findings,

5

as well as “improved mood and improved focus.” (See AR 29.) The ALJ’s supporting

6

citations back up these conclusions, and the record as a whole supports it as well. (See, e.g.,

7

AR 471 (“GAF Score: 70-61: Mild symptoms”); AR 677 (normal mental status

8

examination except “appears mildly agitated”); AR 700 (“GAF Score: 60-51: Moderate

9

symptoms”); AR 707 (“GAF Score: 70-61: Mild to moderate symptoms”); AR 713 (normal

10

MSE except “fair” insight, “somewhat flat” affect, and feeling “overwhelmed” and

11

“fatigued”); AR 714 (“GAF= 60”); AR 716 (normal MSE except “melancholy but

12

pleasant” mood and “fleeting thoughts” of suicidal ideation two weeks prior); AR 718

13

(“GAF Score: 70-61: Mild Symptoms”); AR 719 (normal MSE); AR 721-22 (normal

14

MSE); AR 724 (“GAF Score: 70-61: Mild Symptoms”); AR 726 (“Current GAF: 65”);

15

AR 727 (“Current GAF: 65”); AR 728 (“Current GAF: 65”); AR 730 (“GAF Score: 60-

16

51: Moderate difficulty”); AR 733-34 (normal MSE except “anxious” mood); AR 734

17

(“GAF Score: 70-61: Mild Symptoms”); AR 737 (“GAF Score: 60-51: Moderate

18

symptoms”); AR 739 (“GAF Score: 70-61: Mild symptoms”); AR 745 (“GAF Score: 60-

19

51: Moderate symptoms”); AR 748 (normal MSE except “anxious and labile” mood);

20

AR 749 (“GAF 60-51: Moderate difficulty”).)

21

According to Larsen, the ALJ cherry-picked evidence by “blatantly disregarding”

22

records from Kaiser Permanente, Scripps, and Tri-City, including “e-mail correspondence”

23

with his “Kaiser medical providers.” (ECF No. 20, at 5, 7-8.) In one string citation, Larsen

24

highlights 26 pages in the administrative record that supposedly make the point. (See id.

25

at 9.) But the vast majority of these documents merely memorialize his subjective

26

complaints, not any objective medical findings. For example, he points to one page

27

containing an email in which he wrote, “The pain is getting worse . . . I’m getting a stabbing

28

shooting pain [in the] lower left abdomen and the aching in my back and side are more
8
16-cv-2847-JM-AGS

1

intense.” (Id. at 9; AR 453.) That email prompted a call to Larsen, and in the “Telephone

2

Encounter” summary, the doctor noted: “His left inguinal pain is worsening. . . . I think he

3

would benefit from imaging and labs.” (AR 453.) None of this amounts to objective clinical

4

test results.

5

At best, these “blatantly disregarded” documents are a mixed bag. Several of them,

6

in fact, undermine Larsen’s claims of disabling pain. (See, e.g., AR 449 (“Left hip: He

7

exhibits normal range of motion, normal strength, no tenderness and no crepitus”); AR 455

8

(“Physical Exam” showed “no distress” and, at least in the “chest” region, “no

9

tenderness”); AR 469 (“low grade intermittent pelvic pain and testicular pain”); AR 473

10

(noting that he was “[p]ositive for abdominal pain” but was “in no distress” and had “[n]o

11

red flag symptoms”); AR 778-80 (“mild soreness left inguinal region” and “some posterior

12

[groin] region discomfort,” but the ER doctor “suspect[ed] he probably has some

13

underlying anxiety reaction that is worsening his symptoms” because the objective

14

evidence does not support the claimed “8/10” pain severity); but see AR 467 (complaining

15

of “no tenderness today,” but noting during the physical groin exam that certain parts feel

16

“dilated and bunched up” and that “chronic” achiness there is “worse with pressure to the

17

area”).)

18

Even if this medical evidence “were susceptible to more than one rational

19

interpretation, [only] one of which supports the ALJ’s decision, the ALJ’s conclusion must

20

be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Although not sufficient

21

in itself to justify the ALJ’s decision, see Rollins, 261 F.3d at 857, the objective medical

22

record was a clear and convincing reason supporting the adverse credibility finding.

23

(b) Daily Activities

24

According to the ALJ, Larsen’s daily activities contradict his complaints of suffering

25

chronic pain so severe that “he engaged in very little physical activity beyond getting up in

26

the morning” and, even as to that, “it was an effort to get up and out of bed.” (AR 24, 28,

27

30.) The ALJ gave a litany of examples: “the capacity to cook his own meals, do laundry,

28

operate a motor vehicle,” “handle bills and cash appropriately,” “independently maintain
9
16-cv-2847-JM-AGS

1

self-care including dressing, bathing, feeding and toileting,” “go out on his own,” “tak[e]

2

care of his mother,” “use the computer,” “watch[] YouTube,” care for and walk his dog,

3

“perform[] yardwork with a weed eater,” “perform[] normal chores,” “attend medical

4

appointments,” and “go to the grocery store.” (AR 24, 28, 30.) Larsen does not contest this

5

ground. A claimant “need not vegetate in a dark room” to be eligible for benefits, but these

6

sorts of everyday activities “may be grounds for discrediting the claimant’s testimony to

7

the extent that they contradict claims of a totally debilitating impairment” and indicate

8

“capacities that are transferable to a work setting.” Molina v. Astrue, 674 F.3d 1104, 1112-

9

13 (9th Cir. 2012) (citations omitted). So, this uncontested reason is also a clear and

10

convincing basis to reject Larsen’s testimony.

11

(c) Noncompliance with Treatment Plan

12

The ALJ also faulted Larsen for being “noncompliant much of the time” with his

13

prescribed medical care, including taking a months-long hiatus from treatment. (AR 26-

14

27.) Larsen does not argue otherwise, and the ALJ’s analysis is well-supported by the

15

record. (See, e.g., AR 699 (noting Larsen’s months-long “hiatus” and that he is

16

“noncompliant much of the time”); AR 707 (“noncompliant some of the time”); AR 716

17

(“compliant most of the time”); AR 736, 738, 744 (same).) In assessing Larsen’s

18

credibility, the ALJ properly relied on this “unexplained or inadequately explained failure

19

. . . to follow a prescribed course of treatment.” See Molina, 674 F.3d at 1113 (citation and

20

quotation marks omitted).

21

(d) Lack of Treatment

22

Next, the ALJ emphasized that “there are no treating records in evidence for any

23

time during 2016,” including the last two-and-a-half months of the closed disability period.

24

(See AR 20, 29.) Indeed, the latest treatment record was in July 2015. (See AR 769.) Like

25

noncompliance with a medical plan, an ALJ may fault a claimant for an “unexplained or

26

inadequately explained failure to seek treatment.” Molina, 674 F.3d at 1112 (citation and

27

quotation marks omitted). Larsen does not deny that he failed to seek treatment in 2016,

28
10
16-cv-2847-JM-AGS

1

nor explain that failure, so this was another clear and convincing reason to reject his

2

testimony.

3

(e) Malingering

4

The ALJ’s final reason was that “Dr. Clark stated that the claimant’s poor effort in

5

participation strongly suggests malingering.” (AR 30.) Dr. Clark actually found that Larsen

6

“put forth good effort into the evaluation,” but that he “was a poor historian” and was

7

“caught in several falsehoods based on clinical records and direct observation.” (AR 753-

8

54.) Because of Larsen’s “poor credibility,” which “strongly suggests malingering,” she

9

recommended further testing to “[r]ule out malingering.” (AR 755.) She stopped short of

10

finding malingering and even added that if he “is telling the truth about his suicidal

11

ideation” and psychiatric issues, “he would appear to meet the criteria for disability.” (Id.)

12

Dr. Clark never saw Larsen again, and the next psychiatrist, Dr. Nicholson, concluded that

13

Larsen “appeared to be genuine and truthful.” (AR 762.)

14

Although the record may contain more evidence of malingering,2 the ALJ only relied

15

on Dr. Clark’s comment. That comment was not substantial evidence of malingering, so

16

that was not a clear and convincing reason. On the other hand, the ALJ mentioned that it

17

was only “one factor of many” supporting his adverse credibility finding. (AR 30.) Given

18

the four proper reasons already discussed—including the undisputed points—the ALJ’s

19

reliance on any suggestion of malingering was harmless. See Bray v. Comm’r of Soc. Sec.

20

Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (holding that one erroneous reason “amounts

21

to harmless error,” when the ALJ “presented four other independent bases for discounting

22

[the claimant’s] testimony”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,

23

1162-63 (9th Cir. 2008) (holding two invalid reasons for an adverse credibility finding

24

were harmless error in light of the remaining reasoning).

25
26
27
28

2

For example, Larsen’s treating therapist noted that he “embellishes” and
“dramatizes” encounters, “casting him[self] a[s] the distraught poor victim.” (AR 699.)
11
16-cv-2847-JM-AGS

1

2. Larsen’s Other Objections to the Credibility Finding

2

In addition to the stated reasons for the adverse credibility finding, Larsen faults the

3

ALJ for mentioning both his medical marijuana use and the findings of Dr. Taylor-Holmes,

4

an agency consultant. (See ECF No. 20, at 4-6.) The problem is that neither of these played

5

any role in the ALJ’s credibility assessment. The ALJ’s decision, in fact, never mentions

6

Dr. Taylor-Holmes or her writings. A few passing references to state agency “physicians”

7

or “consultants” may have implicitly included Dr. Taylor-Holmes, but never in the context

8

of credibility. (See AR 23-24, 30.) Similarly, Larsen complains that the ALJ “described me

9

as ‘using cannabis in a quasi-medicinal fashion without sanction from his providers.’” (Id.

10

at 4 (citing AR 99).) But the ALJ never wrote that. This quote appears in

11

Dr. Taylor-Holmes’s report (see AR 99), which is, again, never referenced in the ALJ’s

12

decision. The ALJ makes only passing references to Larsen’s marijuana use, but never

13

implies that it is a reason to disbelieve his testimony. (See AR 27 (“[Larsen] uses THC to

14

get some relief. . . . The claimant complained about Kaiser’s policy of not prescribing

15

narcotic pain medication for individuals using marijuana.”); id. (“Dr. Nicholson indicated

16

that the claimant continued to use marijuana[.]”).) As the ALJ did not rely on these grounds,

17

they cannot constitute reversible error.

18

Because the ALJ’s explicit reasons were specific, clear, and convincing—and these

19

additional issues were inconsequential—the adverse credibility finding was proper.

20

D.

Obesity

21

According to Larsen, the ALJ improperly focused on his obesity—“a condition that

22

I never used in my claim for SSI/SSDI benefits”—to “diminish my more serious health

23

problems . . . and to tarnish my character.” (ECF No. 20, at 6-7.) This argument is meritless.

24

Even when a claimant does not “explicitly raise[] her obesity as a disabling factor,” but it

25

is “raised implicitly in [claimant’s] report of symptoms,” the ALJ may be required to

26

include it in the analysis. Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). Larsen’s

27

reports of disabling pain and immobility, as well as his well-documented height and weight,

28

all raised the specter that his obesity might be disabling. The ALJ properly considered it.
12
16-cv-2847-JM-AGS

1

Moreover, the ALJ’s obesity findings made it more likely, not less likely, that Larsen

2

would receive disability benefits. The ALJ found that Larsen’s obesity was so “severe” that

3

“climbing flights of stairs, working on the floor, stooping, bending, twisting and squatting

4

would not be advisable in a work setting. . . .” (AR 23.) As this issue was “resolved in [the

5

claimant’s] favor,” there can be no “prejudice[]” and any error is harmless. See Burch v.

6

Barnhart, 400 F.3d 676, 682 (9th Cir. 2005).

7

E.

Side Effects

8

Larsen contends that the ALJ “failed to discuss . . . the adverse side [e]ffects that my

9

medication has on me,” including “cold sweats” and an inability to “operate heavy

10

machinery” when using “medical cannabis[] or opiate pain medication.” (ECF No. 20,

11

at 7.) Yet these side effects appeared nowhere in the record before the ALJ. For instance,

12

in his Adult Function Report, Larsen was asked, “[D]o any of your medicines cause side

13

effects?” He answered, “No.” (AR 202.) On that same page, under “SIDE EFFECT(S)

14

YOU HAVE,” he wrote “N/A” in all five boxes. (Id.) Likewise, during Larsen’s testimony,

15

the ALJ asked if his Atarax caused “[a]ny bad side effects,” to which Larsen replied, “None

16

that I’m aware of at all.” (AR 82.) The other passing mentions of side effects do not imply

17

an inability to work. (See, e.g., AR 230 (mother’s third-party function report: “I don’t

18

know” of any side effects); AR 457, 701 (“Side Effects: dry mouth”); AR 469, 732 (“no

19

side effects” from Ativan).) Thus, this argument provides no basis for reversal. See

20

Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) (affirming denial of benefits

21

because the “passing mentions of the side effects of [claimant’s] medication” revealed “no

22

evidence of side effects severe enough to interfere with [claimant’s] ability to work”).

23

F.

Disabled-Person Parking Placard

24

A “reasonable person” must conclude that Larsen “suffer[s] from chronic acute

25

pain,” he next argues, because he is a “permanent disable[d] handicapped placard holder”

26

and he “took steps to get my doctor to complete the form.” (ECF No. 20, at 8.) The record

27

shows that a doctor “filled out” a “Dmv placard form.” (AR 465-66.) But it does not

28

establish what the doctor wrote on that form (supporting or opposing a placard), let alone
13
16-cv-2847-JM-AGS

1

the doctor’s reasoning. An ALJ may “permissibly reject” a doctor’s application “for a

2

disabled parking placard” when it does not “contain any explanation of the bases of [the

3

doctor’s] conclusions.” Wilfred-Pickett v. Berryhill, No. 15-35199, 2017 WL 6397247,

4

at *2 (9th Cir. Dec. 15, 2017) (citation omitted); see also Papin v. Barnhart, 221 F. App’x

5

540, 541 (9th Cir. 2007) (“[A]lthough the treating physician completed a disabled person

6

placard statement in support of [claimant’s] request for disabled parking privileges, the

7

ALJ was not required to consider it, . . . because it was conclusory. . . .” (citation omitted)).

8

Because the record does not contain the basis for any doctor’s recommendation for a

9

disabled parking plate, the ALJ did not err in failing to consider it.

10

G.

Vocational Expert’s Qualifications

11

In a frontal attack on the Administration’s evidence, Larsen protests that “the expert

12

witness [who] was telephonically involved in the hearing” was unqualified to testify

13

because she “lack[ed] any kind of medical degree.” (ECF No. 20, at 13.) Yet the witness

14

in question—the vocational expert—was not there to give medical testimony, but to

15

“translate factual scenarios into realistic job market probabilities.” See Johnson v. Shalala,

16

60 F.3d 1428, 1436 (9th Cir. 1995) (alterations and citation omitted). She had a master’s

17

degree in rehabilitation counseling from New York University, a certification in that same

18

field, over 25 years of experience in vocational rehabilitation, and 13 years as a vocational

19

expert. (AR 266.) At the hearing, when asked, Larsen’s counsel prudently did not object to

20

the witness “testifying as a vocational expert by phone.” (AR 85.) Larsen’s belated

21

objection now is baseless.

22

H.

Physical Consultative Examiner

23

Finally, Larsen argues that the ALJ should have ordered a consultative examination

24

of his physical condition. (ECF No. 20, at 12.) The Administration “has broad latitude in

25

ordering a consultative examination” and is typically required to do so only when

26

“additional evidence needed is not contained in the records of the claimant’s medical

27

sources” or there is “ambiguity or insufficiency in the evidence that must be resolved.”

28

Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (alterations and citations omitted).
14
16-cv-2847-JM-AGS

1

Larsen has not identified any such deficiencies. The extensive medical records regarding

2

his physical condition are not ambiguous; he simply appears to disagree with the

3

interpretation of those records by all the doctors who reviewed them. (See, e.g., AR 30

4

(“State Agency consultants” determined Larsen could perform “light level work”).) He

5

offered no countervailing medical opinions that would cast any of this straightforward

6

evidence into doubt, such as a treating doctor’s opinion. When there is “a body of largely

7

undisputed evidence” that supports the medical experts’ opinions, as here, the ALJ does

8

not “err in declining to order a [further] consultative examination.” Taylor v. Astrue, 386

9

F. App’x 629, 633 (9th Cir. 2010).

10

III.

11

CONCLUSION

12

The Court recommends that Larsen’s summary judgment motion (ECF No. 20) be

13

denied, that defendant’s cross-motion for summary judgment (ECF No. 21) be granted, and

14

that the denial of disability benefits be affirmed. The parties have 14 days from service of

15

this report to file any objections to it. See 28 U.S.C. § 636(b)(1). A party may respond to

16

any such objection within 14 days of being served with it. See Fed. R. Civ. P. 72(b)(2).

17

Dated: February 5, 2018

18
19
20
21
22
23
24
25
26
27
28
15
16-cv-2847-JM-AGS