Magdziak v. Berryhill

Filing 31

REPORT AND RECOMMENDATION re 26 MOTION for Summary Judgment filed by Daryl M Magdziak, 27 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill. Objections to R&R due by 8/28/2019 Replies due by 9/4/2019. Signed by Magistrate Judge Robert N. Block on 8/14/2019. (All non-registered users served via U.S. Mail Service) (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARYL M. MAGDZIAK,

Case No.: 3:17-cv-01367-JAH (RNB)
Plaintiff,

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v.

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REPORT AND
RECOMMENDATION REGARDING
CROSS-MOTIONS FOR SUMMARY
JUDGMENT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

(ECF Nos. 26, 27)

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This Report and Recommendation is submitted to the Honorable John A. Houston,

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United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule

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72.1(c) of the United States District Court for the Southern District of California.

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On July 6, 2017, plaintiff filed a pro per Complaint pursuant to 42 U.S.C. § 405(g)

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seeking judicial review of a decision by the Commissioner of Social Security denying his

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application for a period of disability and disability insurance benefits. (ECF No. 1.)

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Now pending before the Court and ready for decision are the parties’ cross-motions

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for summary judgment. For the reasons discussed hereafter, the Court recommends that

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plaintiff’s motion for summary judgment be DENIED, that the Commissioner’s cross-

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motion for summary judgment be GRANTED, and that Judgment be entered affirming the

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decision of the Commissioner and dismissing this action with prejudice.
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3:17-cv-01367-JAH (RNB)

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PROCEDURAL BACKGROUND

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On February 19, 2014, plaintiff protectively filed an application for a period of

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disability and disability insurance benefits under Title II of the Social Security Act, alleging

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disability beginning October 6, 2011. (Certified Administrative Record [“AR”] 141-42;

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see also AR 23.) After his applications were denied initially and upon reconsideration (AR

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83-87, 90-94), plaintiff requested an administrative hearing before an administrative law

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judge (“ALJ”). (AR 96-97.) An administrative hearing was held on April 19, 2016.

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Plaintiff was represented by counsel and testimony was taken from him, his father, and a

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vocational expert. (AR 37-63.) At the outset of the administrative hearing, plaintiff’s

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counsel amended plaintiff’s alleged onset date to September 29, 2013, one day prior to his

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date last insured of September 30, 2013. (AR 40.)

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As reflected in his May 6, 2016 decision, the ALJ found that plaintiff had not been

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under a disability, as defined in the Social Security Act, at any time from his amended

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alleged onset date through his date last insured. (AR 23-31.) The ALJ’s decision became

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final on June 9, 2017, when the Appeals Council denied plaintiff’s request for review. (AR

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1-5.) This timely civil action followed.

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SUMMARY OF THE ALJ’S FINDINGS

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In rendering his decision, the ALJ followed the Commissioner’s five-step sequential

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evaluation process. See 20 C.F.R. § 404.1520.1 At step one, the ALJ found that plaintiff

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did not engage in substantial gainful activity during the period from his original alleged

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onset date of October 6, 2011 through his date last insured of September 30, 2013. (AR

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25.)

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Unless otherwise indicated, all references herein to the Commissioner’s regulations
are to the regulations in effect at the time of the ALJ’s decision.
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3:17-cv-01367-JAH (RNB)

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At step two, the ALJ found that plaintiff had the following medically determinable

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impairments: obsessive compulsive disorder (“OCD”); anxiety; and asthma. However,

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plaintiff did not have an impairment or combination of impairments that significantly

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limited the ability to perform basic work-related activities for 12 consecutive months.

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Therefore, plaintiff did not have a severe impairment or combination of impairments. (AR

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25.)

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Because plaintiff did not establish that he had a severe impairment or combination

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of impairments on or prior to his date last insured, the ALJ found that plaintiff was not

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disabled. (AR 30.)

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PLAINTIFF’S CLAIMS OF ERROR

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In his summary judgment motion, plaintiff purported to incorporate two briefs he

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previously had filed in this case. (See ECF No. 26 at 2.) In his first brief, plaintiff made

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the following claims (see ECF No. 5 at 3-4):

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1.

Plaintiff is disabled due to OCD, anxiety, low Global Assessment

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of Functioning (“GAF”) scores, and panic attacks, brought on by asthma

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attacks, diagnoses he has had since childhood.

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2.

The ALJ failed to properly consider all the factors in 20 C.F.R. §

404.1529(c)(3) in discrediting plaintiff’s subjective complaints.2

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3.

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The ALJ failed to give adequate weight to the medical opinion

evidence.

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4.

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The ALJ failed to provide “specific rationale” for rejecting the

testimony of plaintiff’s father.

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Although plaintiff also referenced 20 C.F.R. § 416.929(c)(3), that regulation applies
only to applications for Supplemental Security Income (“SSI”) benefits. The instant case
arises solely out of the denial of plaintiff’s application for disability insurance benefits.
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3:17-cv-01367-JAH (RNB)

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5.

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The ALJ’s credibility finding is not supported by substantial

evidence.

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6.

The ALJ erred by not complying with Social Security Ruling

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(“SSR”) 82-62 and discussing the specific mental demands of plaintiff’s past

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work before summarily deciding that plaintiff could return to work.

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7.

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The ALJ should have accorded controlling weight to the opinions

of medical professionals who assessed low GAF scores.

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8.

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The Appeals Council wrongly refused to consider plaintiff’s

appeal.

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Although not enumerated in the section of his first brief where he listed his claims,

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plaintiff also made the following claim in the body of the brief (see ECF No. 5 at 11, 14):

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9.

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The ALJ erred by not finding plaintiff disabled pursuant to the

Commissioner’s Listing of Impairments.

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In his second brief, plaintiff made the following additional claim (see ECF No. 19
at 2):
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The post-hearing determination by the Social Security

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Administration (“SSA”) that plaintiff was disabled and entitled to receive SSI

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benefits should “be applied to pass through” to his application for disability

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insurance benefits.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

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determine whether the Commissioner’s findings are supported by substantial evidence and

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whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846

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(9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a

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preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of
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3:17-cv-01367-JAH (RNB)

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Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is

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“such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole

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and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-

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30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation,

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the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452

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(9th Cir. 1984).

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DISCUSSION

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Since most of plaintiff’s claims are interrelated and some go to the same issue, the

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Court is not addressing the claims in the same order raised by plaintiff.

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A.

Reversal is not warranted based on the ALJ’s alleged failure to properly

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consider the opinions of his treating medical sources.

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Plaintiff’s third and seventh claims of error go to the issue of whether the ALJ failed

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to properly consider certain medical opinion evidence.

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In 2012, the year before his amended alleged onset of disability, plaintiff saw several

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doctors at Vista Community Clinic for issues unrelated to his allegedly disabling

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impairments, including a finger injury, an eye injury after observing a welding, joint pain,

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concern about thyroid problems, and an ear infection. (AR 259, 295, 296, 300, 303, 307.)

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In July 2012, plaintiff told his treating physician, Dr. Donald Ong, that he had not had an

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asthma attack in a long time. (AR 303.) Treatment notes from October and November

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2012 showed normal mental status findings. (AR 295, 299, 303.)

Summary of relevant medical evidence

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Plaintiff saw Dr. Ong again in April 2013, five months before his date last insured,

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complaining of a cyst in his groin for the past five years. (AR 290.) Mental status

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examination findings again were unremarkable. (AR 291.) Plaintiff was oriented and

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behaved appropriately for his age. (Id.) Plaintiff’s only medication was Albuterol. (Id.)
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3:17-cv-01367-JAH (RNB)

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On February 25, 2014, nearly five months after his date last insured, plaintiff saw

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Dr. Ong again. Plaintiff reporting a history of OCD and anxiety, but with only mild

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symptoms. (AR 287.) Plaintiff told Dr. Ong he had taken Lorazepam, most recently in

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2008, and Amitriptyline, which he alleged did not work and caused dizziness. (Id.) On

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examination, plaintiff was anxious, with age-inappropriate and compulsive behavior, but

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he was oriented, with appropriate mood and affect, and he exhibited no agitation,

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anhedonia, memory loss, obsessive thoughts, or paranoia. (AR 288.) His attention span,

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concentration, insight, and judgment were normal.

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prescribed Zoloft and Lorazepam, and referred plaintiff to a psychologist. (AR 256-58,

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(Id.)

Dr. Ong assessed OCD,

288.)

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On April 2, 2014, plaintiff’s mother took him to see Dr. Harvey Oshrin at

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Neighborhood Healthcare. (AR 251.) Plaintiff reported a history of chronic anxiety and

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excessive handwashing and alleged symptoms of panic attacks, excessive worry,

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obsessions, and compulsions. (AR 251-52.). However, plaintiff denied depression or

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mania. (AR 252.) Plaintiff said a psychologist had evaluated him once, but he had never

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received any psychiatric treatment, and although he had prescriptions for Zoloft and

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Lorazepam, he had not yet taken these medications. (Id.) Plaintiff said he had worked as

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an administrative assistant until 2006, when he was laid off, and he subsequently had

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worked some temporary jobs. (Id.) He spent his time looking for work, writing poetry,

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and corresponding with friends by email. (Id.) On examination, plaintiff presented with

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an anxious affect and mood, and made poor eye contact. (AR 253.) However, his memory,

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attention, and concentration were intact; and he showed fair judgment and insight. (Id.)

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Dr. Oshrin diagnosed OCD and assigned a current GAF score of 45. (AR 254.) He referred

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plaintiff to therapy and recommended follow-up in three months. (Id.)

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Later that same month, on April 28, 2014, plaintiff saw psychologist Joseph Suozzo,

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at Neighborhood Healthcare. (AR 326.) When asked about current medications, plaintiff

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expressed wariness about making things part of the record, claiming that he had had trouble

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getting insurance for a preexisting condition and therefore had a gap in psychiatric
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3:17-cv-01367-JAH (RNB)

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treatment. (Id.) On examination, plaintiff presented with underlying anxiety and some

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depressed feelings, but he was cooperative and polite, with good hygiene, linear thought

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process, and good eye contact. (Id.) Plaintiff said he was a good worker and got around

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his anxiety, but he was concerned that he appeared anxious in interviews and thought this

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might affect his ability to get a job. (AR 228, 326.) Dr. Suozzo mentioned hypnosis, but

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plaintiff declined due to his religious beliefs, claiming that demons could enter during the

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process. (AR 326-27.) Dr. Suozzo diagnosed OCD, assigned a current GAF score of 35

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with a top score of 36 in the last year, and recommended relaxation and grounding

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techniques. (AR 326-27.)

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In July 2014, after reviewing the evidence of record, Disability Determination

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Services (DDS) psychologist Nadine Genece found insufficient evidence to substantiate

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the presence of an anxiety related disorder prior to plaintiff’s date last insured. (AR 68.)

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Plaintiff met with psychologist Cornelia Penn on three occasions after his date last

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insured. The first such occasion was on August 19, 2014, more than a month after the SSA

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initially denied his application for disability insurance benefits. Plaintiff told Dr. Penn that

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he was unable to work due to anxiety and OCD. (AR 323.) He said that he had had OCD

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as a child but was still a good student, always on the honor roll, and that he had held two

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long-term jobs as an administrative assistant after graduation. (AR 322-23.) He reported

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his strengths as being intelligent and friendly. (AR 323.) On examination, plaintiff

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presented with an anxious mood and affect, but adequate grooming, fluent speech, and

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intact comprehension. (Id.) Dr. Penn diagnosed OCD and panic disorder, assigned a GAF

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score of 50, and told plaintiff to return in two weeks. (AR 324.)

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In October 2014, after reviewing the evidence of record, DDS psychologist Heather

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Barrons found insufficient evidence to find any limitations prior to the date last insured.

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(AR 77-78.) Dr. Barrons noted that there was no medical evidence that related to the

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alleged period of disability prior to the date last insured and that plaintiff’s subjective

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claims were not consistent with the evidence, as plaintiff had no consistent treatment and

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contrary to a third-party report that he was unable to go outside, evidence showed that he

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shopped in stores. (Id.)

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Plaintiff saw Dr. Penn a second time on October 17, 2014, two months after his first

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visit and nine days after the SSA denied his benefits application on reconsideration.

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Plaintiff reported increased isolation over the past few years, claiming that he was even

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avoiding part-time work and services at Kingdom Hall, and stating that he had difficulty

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leaving the house due to OCD and anxiety. (AR 319.) On examination, plaintiff presented

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with an anxious mood and affect, and pressured, rapid speech. However, he had fair insight

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and judgment, and logical thought processes. (Id.) Dr. Penn encouraged increased activity

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to combat symptoms of anxiety, and she suggested that plaintiff consider medication. (AR

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319-20.) Plaintiff agreed to participate in weekly church services, spend extra time at the

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grocery store, and consider seeing a psychiatrist in the future. (AR 319.)

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Plaintiff met with Dr. Penn a third time more than two months later, on January 6,

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2015. Plaintiff reported he was still anxious about coming to the session, driving, and

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parking, although slightly less so. (AR 317.) Plaintiff mentioned the loss of a friend. (Id.).

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Dr. Penn encouraged plaintiff to leave the house daily and to volunteer at a library or senior

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center; however, plaintiff was reluctant, claiming he did not want to be asked to lift things

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given his “weak abdominal wall.” (Id.) Plaintiff believed he had been terminated from his

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last job of three years after refusing to lift a box. (Id.) On examination, plaintiff presented

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with an anxious mood, but findings on mental status examination were otherwise normal.

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(AR 317-18.) Plaintiff was oriented, with intact comprehension and linear, concrete

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thought process. (Id.)

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On March 9, 2016, one month before the administrative hearing, Dr. Penn completed

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a medical impairment questionnaire, at the request of plaintiff’s lawyer. (AR 310-15.) She

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wrote that she had seen plaintiff on just three occasions – in August 2014, October 2014,

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and January 2015. (AR 310.) Diagnoses included OCD and panic disorder. (Id.) Dr. Penn

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indicated that the focus of the three sessions was to decrease plaintiff’s anxiety related to

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therapy. (Id.). Dr. Penn opined that plaintiff had serious to no useful ability to function in
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3:17-cv-01367-JAH (RNB)

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multiple areas, including the mental aptitudes and abilities needed to do unskilled work.

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(AR 312.)

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At the April 19, 2016 administrative hearing, plaintiff’s attorney acknowledged that

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plaintiff did not start seeing a psychologist until well after his date last insured. He further

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acknowledged that the psychologist (Dr. Penn) had declined to opine as to the onset of

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plaintiff’s allegedly disabling conditions, as she had not treated plaintiff during 2013. (AR

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41-42.) Nonetheless, citing SSR 83-20,3 the attorney argued that the ALJ should infer from

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the current evidence that plaintiff was disabled as of September 29, 2013. (AR 42.)

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2.

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Under the Commissioner’s regulations, an ALJ must consider all medical source

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opinions based on the factors outlined in 20 C.F.R. § 404.1527. These factors include the

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length of the treatment relationship and the frequency of examination, supportability,

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consistency with the record as a whole, and other factors such as the medical source’s

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familiarity with social security disability programs and their evidentiary requirements. Id.

Law applicable to consideration of medical opinion evidence

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As noted by the Commissioner, SSR 83-20 (Onset of Disability) (rescinded on
October 2, 2018 and replaced by SSR 18-1p and SSR 18-2p) provides guidance on how to
establish disability onset date in an individual found disabled. Thus, if the ALJ had found
that plaintiff was disabled and that the medical evidence was not definite as to the onset
date, SSR 83–20 would have required that the ALJ enlist a medical expert to assist in
drawing inferences from the record to determine a remote date of onset. See Armstrong v.
Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998); DeLorme, 924 F.2d at 848.
Here, however, the ALJ determined that plaintiff was not disabled prior to the expiration
of his insured status. Accordingly, the need for a medical expert to assist in inferring an
onset date did not arise. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir.2008) (“Because
the ALJ found that Sam was not disabled ..., the question of when he became disabled did
not arise and the procedures prescribed in SSR 83-20 did not apply.”); see also Lair-Del
Rio v. Astrue, 380 F. App’x 694, 696 (9th Cir. 2010) (requirement to call a medical expert
under SSR 83-20 “only applies where a claimant has been found disabled”); Blair–Bain v.
Astrue, 356 F. App’x 85, 88 (9th Cir. 2009) (where the ALJ found the claimant “not
disabled prior to the last date insured, we have no cause to remand under SSR 83-20”);
DeBerry v. Comm'r of Soc. Sec. Admin., 352 F. App’x 173, 175-76 (9th Cir. 2009) (same).
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3:17-cv-01367-JAH (RNB)

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The Ninth Circuit has held that a treating physician’s opinions are entitled to special

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weight because a treating physician is employed to cure and has a greater opportunity to

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know and observe the patient as an individual. See Smolen v. Chater, 80 F.3d 1273, 1285

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(9th Cir. 1996); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The treating

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physician’s opinion is not, however, necessarily conclusive as to either a physical condition

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or the ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

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1989). The weight given a treating physician’s opinion depends on whether it is supported

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by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R.

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§ 404.1527(d)(2).

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If the treating physician’s opinion is uncontroverted by another doctor, it may be

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rejected only for “clear and convincing” reasons. See Lester v. Chater, 81 F.3d 821, 830

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(9th Cir. 1996); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where a treating

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physician’s opinion is controverted, it may be rejected only if the ALJ makes findings

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setting forth specific and legitimate reasons that are based on the substantial evidence of

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record. See, e.g., Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Orn v. Astrue,

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495 F.3d 625, 633 (9th Cir. 2007); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853

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F.2d 643, 647 (9th Cir. 1987).

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Here, to the extent plaintiff implicitly is contending that his treating sources rendered

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any opinions to the effect that plaintiff had a severe medically determinable impairment

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prior to the expiration of his insured status, those opinions were controverted by the opinion

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of the State agency physician, Dr. Barrons, that there was insufficient evidence to find any

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limitations prior to plaintiff’s date last insured. (See AR 77-78.)

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3.

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For the reasons discussed hereafter, the Court finds that reversal is not warranted

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based on the ALJ’s alleged failure to properly consider the opinions of plaintiff’s treating

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medical sources.

Analysis

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(a)

Dr. Ong’s February 25, 2014 examination report (AR 287-89)

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Plaintiff contends that the ALJ mischaracterized primary care practitioner Dr. Ong’s

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full findings at his February 25, 2014 appointment. (See ECF No. 5. at 4-5.) The Court

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disagrees. The ALJ discussed Dr. Ong’s findings from plaintiff’s February 24, 2014

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appointment, noting that plaintiff had reported the symptoms as “mild.” (See AR 27, citing

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AR 287.) While plaintiff maintains that this is misleading, as he was a “new patient to Dr.

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Ong” (see ECF No. 5 at 5), the record reflects otherwise. Plaintiff had seen Dr. Ong on

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several occasions in 2012 and 2013, prior to his date last insured, for other issues unrelated

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to any mental impairments. The 2012 and 2013 treatment records for those appointments

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documented normal mental status findings. (See AR 291, 295, 299, 303.) While Dr. Ong

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did characterize plaintiff’s mood at as “anxious” and did indicate that plaintiff’s behavior

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was “inappropriate for age” and “compulsive” in the treatment notes for the February 25,

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2014 appointment, Dr. Ong also made the following “normal” findings:

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“Orientation - Oriented to time, place, person & situation. No agitation.
No anhedonia. Appropriate mood and affect. Sufficient fund of
knowledge. Sufficient language. Patient is not in denial. Not euphoric. Not
Fearful. No flight of ideas. Not forgetful. No grandiosity. No
hallucinations. Not hopeless. Appropriate affect. No increased activity.
No memory loss. No mood swings. No obsessive thoughts. Not paranoid.
Normal insight Normal judgment Normal attention span and
concentration. No pressured speech. No suicidal ideation.” (AR 288.)

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In any event, Dr. Ong’s mere diagnosis of anxiety and OCD at the February 25, 2014

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appointment, unaccompanied by any opinion about any specific functional deficits, was

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insufficient to establish that plaintiff had a severe mental impairment. See Carmickle v.

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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164-65 (9th Cir. 2008) (at step two, ALJ did

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not err in failing to classify carpal tunnel syndrome as a severe impairment where the

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medical record did not establish work-related limitations); see also, e.g., Youngblood v.

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Berryhill, 734 F. App’x 496, 498 (9th Cir. 2018) (“An ALJ does not err by not

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incorporating a physician’s opinion when the physician had not ‘assign[ed] any specific

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limitations on the claimant.’” (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223
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(9th Cir. 2010)); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999)

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(ALJ not required to credit medical evidence that did not show how a claimant’s symptoms

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“translate into specific functional deficits which preclude work activity”).

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(b)

Dr. Penn’s March 9, 2016 opinion (AR 310-15)

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Plaintiff further contends that the ALJ erred when he gave “little weight” to Dr.

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Penn’s opinions as reflected in the medical source statement dated March 9, 2016. (See

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ECF No. 5 at 6, 8, 10-11.)

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The Court disagrees because the ALJ did provide several specific and legitimate

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reasons for according little weight to Dr. Penn’s March 9, 2016 opinions and impressions.

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First, the ALJ noted that Dr. Penn’s opinions and impressions were not supported by

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(a) Dr. Penn’s own objective findings, including that plaintiff had no psychotic symptoms,

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had logical thoughts, was oriented, had intact comprehension and normal eye contact, and

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(b) the evidence of record that plaintiff retained activities of daily living including the

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ability to go out on his own and to Walmart-type stores on a regular basis. (See AR 29,

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citing AR 190, 191, 317, 318, 319.) Dr. Penn’s opinions and impressions also were

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inconsistent with plaintiff’s own representation that he was a “good worker and gets around

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the anxiety.” (See AR 29, citing AR 326). See 20 C.F.R. § 404.1527(c)(4) (an opinion’s

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consistency with the record a whole is considered in the evaluation of medical opinions);

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Batson v. Comm’r of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may

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discount treating physicians’ opinions that are conclusory, brief, and unsupported by the

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record as a whole or by objective medical findings).

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Most importantly, the ALJ explained that Dr. Penn’s opinions applied only to the

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period after the expiration of plaintiff’s insured status. The ALJ noted in this regard that

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evidence in February 2014 (still after but closer in time to the date last insured) showed

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plaintiff had only complained of mild anxiety. (AR 29-30, citing AR 287.) Dr. Penn had

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not even purported to render an opinion about plaintiff’s limitations on or prior to his date

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last insured. Indeed, at the April 19, 2016 administrative hearing, plaintiff’s counsel
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acknowledged that he had asked Dr. Penn for an opinion as to the onset date of plaintiff’s

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disabling condition and that Dr. Penn had “deferred” because she “hadn’t seen him in a

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while and had not seen him back in 2013.” (See AR 43.)

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(c)

Plaintiff’s GAF scores (AR 254, 324, 326-27)

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Plaintiff also contends that the ALJ erred by failing to give “controlling weight” to

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the GAF score of 45 assessed by Dr. Oshrin on April 2, 2014, the GAF score of 35 assessed

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by Dr. Suozzo on April 28, 2014, and the GAF score of 50 assessed by Dr. Penn on August

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19, 2014. (See ECF No. 5 at 6, 7.)

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A GAF score of 31-40 indicates “[s]ome impairment in reality testing or

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communication (e.g., speech is at times illogical, obscure or irrelevant) or major

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impairment in several areas, such as work or school, family relations, judgment, thinking,

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or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child

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frequently beats up younger children, is defiant at home, and is failing at school).” Am.

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Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (“DSM”) 34 (4th

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ed., 2002 rev.). A GAF score of 41-50 indicates “[s]erious symptoms . . . [or] serious

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impairment in social, occupational, or school functioning,” such as an inability to keep a

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job. Id. However, GAF scores are not opinions of an individual’s functional abilities; they

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are snapshot assessments used to plan and measure the impact of treatment. See id. at 32-

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33.

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assessments. See 65 Fed. Reg. 50746, 50764-65 (August 21, 2000). Indeed, the GAF scale

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was eliminated from the fifth edition of the DSM. The DSM no longer recommends using

23

GAF scores to measure mental health disorders because of the scores’ “conceptual lack of

24

clarity . . . and questionable psychometrics in routine practice.”

25

Commissioner, 2016 WL 4770038, at *4 (D. Or. Sept. 12, 2016) (quoting DSM 16 (5th ed.

26

2013)); see also Sherod v. Saul, 2019 WL 3205796, at *4 (C.D. Cal. July 16, 2019).

Moreover, GAF scores are not directly correlative to Social Security severity

See Olsen v.

27

Here, the ALJ explained that he was according “little weight” to the GAF score of

28

45 assessed by Dr. Oshrin in April 2014, well after the expiration of plaintiff’s date last
13
3:17-cv-01367-JAH (RNB)

1

insured, because it was not supported by Dr. Oshrin’s own objective findings including

2

that plaintiff had no concentration or memory problems and was oriented. Nor was it

3

supported by Dr. Oshrin’s recommendation that plaintiff follow up in three months,

4

suggesting no urgent need for psychiatric services. (See AR 27, citing AR 253, 254.) The

5

ALJ also noted that plaintiff’s initial presentation to Dr. Oshrin was characterized as

6

“mild,” and that “there [was] no sustained symptomatology or pathology lasting or

7

expected to last for any continuous period of at least 12 months during the period at issue

8

that [was] consistent with more than minimal limitations.” (AR 27-28.)

9

The ALJ further explained that he was according little weight to the other assessed

10

GAF scores in plaintiff’s therapy records in the 30s, 40s, and low 50s because (a) the

11

evidence showing no significant and persistent cognitive deficits or psychotic symptoms

12

did not support GAF scores in those ranges, and (b) those scores did not “speak” to the

13

period at issue. (AR 28.)

14

Since the ALJ did state specific and legitimate reasons for according little weight to

15

the assessed GAF scores, the Court finds that reversal is not warranted based on the ALJ’s

16

failure to give “controlling weight” to those scores.

17
18

B.

Reversal is not warranted based on the ALJ’s alleged failure to properly

19

consider plaintiff’s subjective symptom testimony.

20

Plaintiff’s second and fifth claims of error go the same issue, namely whether the

21

ALJ failed to properly consider plaintiff’s subjective symptom testimony.

22
23

1.

24

In a Function Report completed in June 2014, plaintiff represented that he was

25

unable to work because it took him a long time to get ready for his day, he was tired at

26

work, and he experienced anxiety, panic attacks, tinnitus, retinopathy, sensitivity to light,

27

distraction around other people, and diarrhea caused by the Motrin he took for a broken

28

tailbone and trigger finger. (AR 187.) He made his own simple meals, and occasionally

Plaintiff’s subjective symptom testimony

14
3:17-cv-01367-JAH (RNB)

1

fried something or made omelets; he did not like to touch meat because it felt dirty. (AR

2

189.) He cleaned and vacuumed his bedroom, but otherwise did not like to clean. (Id.)

3

He did a little yard and house work. (AR 190.) He could drive, and occasionally shopped

4

for food, clothes, and personal care items, going out for two to three hours at a time but

5

returning home quickly to use the toilet. (Id.) He shopped for groceries and went to

6

“Walmart-type stores” only. (AR 191.)

7

Plaintiff claimed that he was agitated and irritated because he was in constant pain

8

from headaches and bodily discomfort. (AR 192.) He represented that he could walk only

9

100 feet before his side hurt, and he could resume walking only after using an inhaler. (Id.)

10

He listed his medications as Albuterol, Motrin, Lorazepam, and Zoloft – indicating that he

11

had taken Lorazepam in the past and might need it again, and that Zoloft had been

12

prescribed and he might need to take it soon. (AR 194.) Plaintiff said he used to be more

13

active in his religion and attend meetings three days a week, occasionally speaking in front

14

of an audience and answering questions. (AR 197.) He no longer attended meetings or

15

spoke from the stage, but he did volunteer writing services one hour a month. (Id.) He

16

used to weave yarn bracelets and create mazes or poems. (Id.) He still occasionally wrote

17

poetry and read about music, but he stopped braiding yarn bracelets because it hurt his

18

finger. (AR 191, 197.) Plaintiff claimed that he was cooperative and well-liked by others,

19

and he denied any work-related issues due to difficulty getting along with others. (AR

20

193.)

21

At the administrative hearing, plaintiff testified that he was born in 1979, graduated

22

from high school, and previously worked as an administrative assistant. (AR 50.) He

23

generally found work through temporary agencies, and he was occasionally hired full-time

24

after temporary assignments. (Id.) He last worked in October 2011, when he was laid off

25

from a temporary assignment. (AR 50-51.) Plaintiff claimed that he had taken Lorazepam

26

in the past for anxiety or OCD, but he took it primarily for ringing in his ears. (AR 52.) It

27

helped somewhat, but left him groggy the next day at work, and he thought it caused him

28

to make mistakes at work that were noticeable to employers. (AR 53.)
15
3:17-cv-01367-JAH (RNB)

1

Plaintiff first saw a psychiatrist in 2014, because he was considering antidepressant

2

medication, and wanted some “talk therapy.” (AR 54.) He said he waited until 2014

3

because he “wanted to continue working” and was “trying not to pursue disability,” but his

4

problems were getting worse and he thought he “better try to do something about it.” (AR

5

54.) Between September 2014 and 2015, he saw Dr. Suozzo just once and Dr. Penn four

6

or five times. (AR 54, 62.) Dr. Penn recommended volunteer work. However, plaintiff

7

declined because the job might involve lifting boxes and he found it hard to lift over 20

8

pounds; also, he did not want to be apologetic for his inability to do things, even in a

9

volunteer position.

(AR 55.)

When prompted, plaintiff added that he might have

10

difficulties in a volunteer position because of his OCD and his frequent hand washing. (AR

11

56.) Plaintiff said that, after a few appointments with Dr. Penn, he rescheduled or cancelled

12

all appointments thereafter, first attributing it to the Dr. Penn’s failure to be forthcoming,

13

and subsequently attributing it to anxiety and stress. (AR 57.) Plaintiff claimed he was

14

afraid to leave the house and went out just once a week. (Id.) To fill his time, he used the

15

computer, listened to music, and e-mailed people. (AR 58.) When asked whether he could

16

sustain a temporary administrative assistant job for a three-month assignment, plaintiff

17

testified that he did not know, as it had taken him a very long time to get ready that day

18

and he had been very close to being late for work in the past because of local traffic. (AR

19

60.)

20
21

2.

22

An ALJ’s assessment of pain severity and claimant credibility is entitled to “great

23

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

24

F.2d 528, 531 (9th Cir. 1986). Under the “Cotton standard,” where the claimant has

25

produced objective medical evidence of an impairment which could reasonably be

26

expected to produce some degree of pain and/or other symptoms, and the record is devoid

27

of any affirmative evidence of malingering, the ALJ may reject the claimant’s testimony

28

regarding the severity of the claimant’s pain and/or other symptoms only if the ALJ makes

Law applicable to consideration of subjective symptom testimony

16
3:17-cv-01367-JAH (RNB)

1

specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen,

2

799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen, 80 F.3d at 1281; Dodrill v. Shalala,

3

12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991).

4
5
6
7
8
9
10

Here, in his decision, the ALJ succinctly synthesized plaintiff’s subjective symptom
testimony as follows:
“The claimant alleged he is unable to perform or sustain all work activity due
to breathing problems, anxiety, panic attacks, phobias about hygiene and
cleanliness, excessive cleaning rituals, fear of illness, isolative behaviors, poor
memory and concentration, distractibility, and difficulty having contact with
others due to his fears that limit his abilities to sit, stand, walk, lift and carry,
perform postural movements and other activities, understand, remember and
complete tasks and interact with others.” (AR 26.)

11
12

The ALJ then stated:

13

“After considering the evidence of record, the undersigned finds that the
claimant’s medically determinable impairments could have been reasonably
expected to produce the alleged symptoms; however, plaintiff’s statements
concerning the intensity, persistence, and limiting effects of his symptoms are
not entirely consistent with the medical evidence and other evidence in the
record for the reasons explained in this decision.” (AR 26-27.)

14
15
16
17
18

3.

19

The ALJ articulated multiple reasons in support of his adverse credibility

20

Analysis

determination.

21

Among other reasons, the ALJ found that the objective medical evidence did not

22

support plaintiff’s subjective allegations of disability prior to his date last insured. (AR

23

27.) Objective medical evidence “is a useful indicator” to assist in making “reasonable

24

conclusions” about the intensity and persistence of symptoms and the effect of those

25

symptoms on an individual’s ability to work. See 20 C.F.R. § 404.1529(c)(2). Although

26

plaintiff had a history of OCD and anxiety since childhood, findings on mental status

27

examinations during 2012 and 2013 were largely unremarkable. (See AR 291, 295, 299,

28

303.) Even after plaintiff’s date last insured, clinicians noted only mild anxiety and some
17
3:17-cv-01367-JAH (RNB)

1

inappropriate compulsive behavior, which was not consistent with the disabling level of

2

impairment alleged by plaintiff. (See AR 27, citing AR 253, 287-88.) Since the lack of

3

objective support was not the sole basis for the ALJ’s adverse credibility determination,

4

the Court finds that it was a legally sufficient reason on which the ALJ could properly rely.

5

See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical

6

evidence cannot form the sole basis for discounting pain testimony, it is a factor that the

7

ALJ can consider in his credibility analysis.”); Morgan, 169 F.3d at 600 (ALJ may properly

8

consider conflict between claimant’s testimony of subjective complaints and objective

9

medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ

10

may properly rely on weak objective support for the claimant’s subjective complaints);

11

Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on lack of

12

objective evidence to support claimant’s subjective complaints); see also

13

In not crediting plaintiff’s allegations of disabling symptoms, the ALJ also

14

considered plaintiff’s course of treatment, which the ALJ noted was not the type of

15

treatment one would expect from a totally disabled individual. (AR 28.) See 20 C.F.R. §

16

404.1529(c)(3)(v) (course of treatment is properly considered when evaluating symptoms).

17

In this regard, the ALJ noted that plaintiff did not receive consistent mental health treatment

18

prior to or even after his date last insured. (See AR 27-28, citing AR 252.) In April 2014,

19

plaintiff told Dr. Oshrin that he had never received any psychiatric treatment. (See AR

20

252.) Plaintiff maintains that he did not seek psychiatric treatment until April 2014 because

21

prior to that, his insurance premium would increase every time he went to the doctor, so he

22

went “only when dire.” (See ECF No. 5 at 9.) However, the Court concurs with the

23

Commissioner that the fact that plaintiff sought treatment for such things in 2012 and 2013

24

as an ear infection, an eye problem, joint pain, cysts, and thyroid concerns -- issues that

25

plaintiff does not allege to be disabling – suggests that plaintiff did not think that his mental

26

impairments were sufficiently severe during that time frame to warrant any medical

27

attention. Accordingly, the Court finds that this reason also constituted a legally sufficient

28

reason on which the ALJ could properly rely in support of his adverse credibility
18
3:17-cv-01367-JAH (RNB)

1

determination. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (in assessing

2

credibility, an ALJ may properly rely on unexplained or inadequately explained failure to

3

seek treatment or to follow a prescribed course of treatment); Tommassetti v. Astrue, 533

4

F.3d 1035, 1039 (9th Cir. 2008) (same); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)

5

(same).

6

The ALJ also noted that plaintiff had not been entirely compliant in taking prescribed

7

medications, which suggested that his symptoms might not have been as limiting as he was

8

alleging. By way of example, the ALJ noted that plaintiff had been prescribed Zoloft and

9

Lorazepam, but he had never even filled those prescriptions. (See AR 28, citing AR 252.)

10

Plaintiff criticizes the ALJ’s findings regarding medications, stating that he took

11

Lorazepam in 2006 and other medications before 2008, and he did not like them, because

12

they caused sleepiness and interfered with his ability to work. (See ECF No. 5 at 8-9.)

13

However, plaintiff’s treatment records document no attempts to try the medications

14

prescribed by Dr. Ong on February 25, 2014; nor do they treatment records show that

15

plaintiff ever experienced any side effects of medications during the relevant time period.

16

See Miller v. Hecker, 770 F.2d 845, 849 (9th Cir. 1985) (medication side effects must be

17

medically documented in order to be considered). Under the same authorities cited above,

18

plaintiff’s non-compliance in taking prescribed medications also constituted a legally

19

sufficient reason on which the ALJ could properly rely in support of his adverse credibility

20

determination.

21

The ALJ also noted that plaintiff’s daily activities were not consistent with the level

22

of impairment alleged. Specifically, the ALJ noted that plaintiff exercised 2 to 3 days a

23

week despite his fear of germs, looked for work, prepared some meals, drove a car, was

24

able to go out alone, shopped in stores, and went to grocery and Walmart-type stores on a

25

regular basis despite his allegations that he was uncomfortable around others. (AR 28.)

26

See 20 C.F.R. 404.1529(c)(3)(i). The Court finds that this reason also constituted a legally

27

sufficient reason on which the ALJ could properly rely in support of his adverse credibility

28

determination. See Berry v. Astrue, 622 F.3d 1228, 1234-35 (9th Cir. 2010) (evidence that
19
3:17-cv-01367-JAH (RNB)

1

claimant’s self-reported activities suggested a higher degree of functionality than reflected

2

in subjective symptom testimony adequately supported adverse credibility determination);

3

Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (evidence that

4

claimant exercised and undertook projects suggested that claimant’s later claims about the

5

severity of his limitations were exaggerated); Orn, 495 F.3d at 639 (evidence of daily

6

activities may form basis of an adverse credibility determination where it contradicts the

7

claimant’s other testimony)

8

The ALJ also identified other inconsistencies in plaintiff’s representations. Despite

9

his claimed inability to work, the record showed that he collected unemployment and

10

continued to look for work after the alleged onset date. (AR 28, citing AR 143, 252.) See

11

Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (claimant’s subjective symptom

12

testimony was belied by evidence that she recently worked and sought out other

13

employment); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (ALJ properly found

14

claimant not credible when he apparently considered himself capable of work and held

15

himself out as available for work).

16

The ALJ also noted that there was evidence that plaintiff did not stop work for

17

reasons related to his allegedly disabling OCD impairments. (AR 29.) Plaintiff said he

18

left his administrative assistant position because he was laid off, and claimed he was let go

19

from his last job after he refused to lift a box. (Id., citing AR 252, 317.) See Bruton v.

20

Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ properly considered that claimant was

21

out of work because he was laid off and not because of his allegedly disabling injuries).

22

Elsewhere in the record, plaintiff represented that he could not perform volunteer work

23

primarily because of his “weak abdominal muscles” and difficulty lifting heavy weights,

24

even though there is no medical documentation of this in the record. (AR 55, 196, 317.)

25

Plaintiff criticizes the ALJ’s finding that he was looking for work, claiming that he had no

26

choice, as this was required of him, and asserting that this did not prove he could work

27

even if he were hired. (See ECF No. 5 at 8.) Regardless of whether plaintiff could perform

28
20
3:17-cv-01367-JAH (RNB)

1

the job if hired, the ALJ found that plaintiff’s representations were inconsistent with his

2

alleged inability to work in any capacity. (See AR 28.)

3
4

C.

Reversal is not warranted based on the ALJ’s alleged failure to properly

5

consider the testimony of plaintiff’s father.

6

1.

7

The Administrative Record includes a Third-Party Function Report completed by

8

plaintiff’s father in June 2014, describing plaintiff’s cleaning rituals and difficulty leaving

9

the house. (See AR 171-79.) Plaintiff’s father indicated that in addition to engaging in

10

personal care and frequent hand washing, plaintiff spent time complaining about his parents

11

and their habits, surfing the computer, and watching television. (AR 172, 175.) He stated

12

that plaintiff was able to tend to personal care, but it took an extraordinary amount of time

13

due to plaintiff’s compulsions and frequent bouts of diarrhea caused by anxiety and pain

14

medications. (AR 172.) Plaintiff was able to drive and go out alone, and he went outside

15

one or two times a week for one or two hours at a time, to shop for snack items, clothing,

16

and personal care products. (AR 174.) Plaintiff previously had been active in religious

17

activities and he occasionally went to the movies or restaurants with friends. (AR 176.)

Plaintiff’s father’s testimony

18

Plaintiff’s father also was a witness at the administrative hearing. He testified that

19

plaintiff had lived with him for 35 years, his whole life. (AR 44.) When asked why

20

plaintiff did not start getting treatment until early 2014 and has not had any treatment

21

subsequent to January 2015, the father testified that plaintiff was “afraid, too anxious to

22

even go out the door,” and that he did not like to drive and was afraid of the parking area

23

in the facility. (Id.) Nonetheless, when plaintiff had some money, he would leave the

24

house up to five or six times a month. (AR 48.) He drove himself to get a haircut or

25

personal items, such as snacks or grooming items. (AR 48-49.) Plaintiff showered for

26

more than an hour at a time, and he would not eat without first washing his hands five or

27

six times. (AR 45.) He covered his plate or put it in the microwave when he was not

28

eating, and he rarely came into the kitchen because he was afraid he might see something
21
3:17-cv-01367-JAH (RNB)

1

that would bother him.” (Id.) Plaintiff’s father stated that plaintiff had been this way since

2

2000, but it had gotten worse. (AR 46, 49.) Plaintiff’s father acknowledged that plaintiff

3

had been able to work for many years, but maintained that it was with much “difficulty,”

4

“agitation,” and “nervousness.” (AR 46.) When plaintiff had worked for a company that

5

offered employees an incentive trip to Hawaii, plaintiff repeatedly had told his father that

6

he did not want to go to Hawaii. (AR 47.)

7

According to plaintiff’s father, plaintiff had tried different medications, including

8

Amitriptyline during the 1990s and Lorazepam during the early 2000s, but he was afraid

9

of medications. (AR 47.) Plaintiff’s mother was “against medication as well.” (Id.) A

10

doctor prescribed Zoloft, but plaintiff never filled the prescription. (Id.) He corresponded

11

with friends by e-mail and on the internet, but otherwise he was “socially a hermit.” (AR

12

49.)

13
14

2.

15

The Commissioner’s regulations require that, in determining whether a claimant is

16

disabled, the ALJ consider inter alia statements provided by nonmedical sources such as

17

family members about the severity of the claimant’s impairments and how the impairments

18

and any related symptoms affect the claimant’s ability to work. See 20 C.F.R. §§

19

404.1513(d), 404.1529(a).

Law applicable to consideration of lay witness testimony

20

Further, the case law is well-established in this Circuit that lay witness testimony as

21

to how a claimant’s symptoms affect the claimant’s ability to work is competent evidence

22

and cannot be disregarded without providing specific reasons germane to the testimony

23

rejected. See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Smolen, 80

24

F.3d at 1288-89; Dodrill, 12 F.3d at 919.

25
26

3.

27

Plaintiff contends that the ALJ committed reversible error in failing to provide

28

“specific rationale” for rejecting his father’s testimony. (See ECF No. 5 at 4.) However,

Analysis

22
3:17-cv-01367-JAH (RNB)

1

contrary to plaintiff’s characterization, the ALJ did provide reasons germane to his father’s

2

testimony for according it “little weight.”

3

First, the ALJ noted that most of what the father reported was based on what plaintiff

4

told him or displayed for him, and that plaintiff’s allegations were not fully consistent with

5

the evidence of record as discussed elsewhere in the decision. (See AR 29.) The Court

6

already has found that the ALJ stated legally sufficient reasons in support of his adverse

7

credibility determination with respect to plaintiff’s subjective symptom testimony. It

8

follows that the ALJ’s legally sufficient reasons for rejecting plaintiff’s subjective

9

symptom testimony also constituted legally sufficient reasons for rejecting plaintiff’s

10

father’s lay witness testimony. See Valentine, 574 F.3d at 694 (“In light of our conclusion

11

that the ALJ provided clear and convincing reasons for rejecting Valentine’s own

12

subjective complaints, and because Ms. Valentine’s testimony was similar to such

13

complaints, it follows that the ALJ gave germane reasons for rejecting her testimony.”);

14

see also Molina, 674 F.3d at 1122 (even where ALJ completely failed to discuss lay witness

15

testimony, “given that the lay witness testimony described the same limitations as Molina’s

16

own testimony, . . . the ALJ’s reasons for rejecting Molina’s testimony apply with equal

17

force to the lay testimony”).

18

Second, the ALJ noted that, while it was understandable and commendable that

19

plaintiff’s father would support his claim for disability, the father’s statements were clearly

20

contradicted by the objective evidence of record and other factors discussed in the decision.

21

(See AR 29.)4 As the Commissioner points out by way of example, plaintiff’s father

22

testified that plaintiff did not have medical treatment before his date last insured because

23

he was too afraid and anxious to go out the door (AR 44); yet plaintiff’s father also testified

24

that plaintiff left home five or six times a month to purchase snacks or get a haircut (AR

25
26
27
28

4

An ALJ may dismiss lay witness testimony with germane reasons supported by
evidence discussed “at other points in his decision” even if the ALJ “did not clearly link
his determination to those reasons.” See Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).
23
3:17-cv-01367-JAH (RNB)

1

48). Moreover, during 2012 and 2013, while plaintiff was still insured for purposes of

2

disability insurance benefits, plaintiff met with doctors at Vista Community Clinic for

3

issues unrelated to his allegedly disabling impairments, including a finger injury, an eye

4

injury after observing a welding, joint pain, concern about thyroid problems, and an ear

5

infection (AR (AR 259, 295, 296, 300, 303, 307). Treatment notes from this time period

6

showed normal mental status findings. (See AR 291, 295, 299, 303.) The Ninth Circuit

7

has held that inconsistency with medical evidence constitutes a legitimate reason for

8

discrediting the testimony of lay witnesses. See Vincent v. Heckler, 739 F.2d 1393, 1395

9

(9th Cir. 1984); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis,

10

236 F.3d at 511. 5

11
12

The Court therefore finds that reversal is not warranted based on the ALJ’s alleged
failure to properly consider the testimony of plaintiff’s father.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5

The Court is mindful that the Ninth Circuit also has held that it is error for the ALJ
to reject the testimony of family members because the claimant’s medical records did not
corroborate their statements about the claimant’s alleged symptoms and pain. See Smolen,
80 F.3d at 1289; see also Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th
Cir. 2011); Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). Courts have reconciled
these two lines of cases by concluding that an ALJ may reject lay testimony that is
affirmatively inconsistent with the medical evidence (under the Vincent line of cases), but
that the ALJ may not reject lay testimony merely because of lack of objective medical
support (under the Smolen line of cases). See Rivera v. Colvin, 2013 WL 6002445, at *2*4 (D. Or. Nov. 12, 2013) (explaining that an ALJ may reject lay witness testimony based
on “affirmative contradictory evidence in the medical record, not absence of supporting
evidence”); see also Grisel v. Colvin, 2014 WL 1315894, at *14 (C.D. Cal. Apr. 2, 2014);
Atwood v. Astrue, 742 F. Supp. 2d 1146, 1152 (D. Or. 2010); Staley v. Astrue, 2010 WL
3230818, at *19 (W.D. Wash. July 27, 2010). Here, the Court finds that the Vincent line
of cases is controlling because plaintiff’s father’s statements about the severity of
plaintiff’s mental impairments, to the extent they even applied to the relevant time period
(i.e., the period on or before September 30, 2013), were contradicted by the treatment notes
from that time period showing normal mental status findings.
24
3:17-cv-01367-JAH (RNB)

1

D.

The ALJ’s step two determination is supported by substantial evidence and free

2

of legal error.

3

Plaintiff’s first claim, which is premised on the contention that plaintiff is disabled,

4

goes to the issue of whether the ALJ’s determination that plaintiff was not disabled at step

5

two of the Commissioner’s sequential evaluation process is supported by substantial

6

evidence and free of legal error.

7

Plaintiff contends that he is disabled because he has had diagnoses of OCD, anxiety,

8

and asthma since he was a child, which caused him to struggle in work and social settings.

9

(See ECF No. 5 at 3.) However, the fact that plaintiff may have been diagnosed with OCD,

10

anxiety, and asthma as a child and the fact that these impairments may have caused some

11

difficulties in school and social settings are not sufficient to establish that he had any severe

12

impairments prior to the expiration of his insured status. See Verduzco v. Apfel, 188 F.3d

13

1087, 1089 (9th Cir. 1999) (although claimant clearly experienced various impairments,

14

no evidence supported a finding that those impairments were severe). An impairment is

15

severe only if it significantly limits an individual’s ability to perform work-related

16

functions. 20 C.F.R. § 404.1522 (emphasis added). Work-related functions include mental

17

functions, such as the ability to understand, carry out, and remember simple instructions;

18

use judgment; respond appropriately to supervision, coworkers, and usual work situations;

19

and deal with changes in a routine work setting. 20 C.F.R. § 405.1521(b)(3)-(6). Here, as

20

the ALJ noted, although clinicians occasionally noted OCD behaviors in plaintiff as a child,

21

plaintiff was nonetheless an excellent student, able to graduate from high school with

22

honors and work for several years thereafter, with substantial earnings. (See AR 27, citing

23

AR 50, 150, 241, 244, 252, 323, 329.) There are no medical records showing that plaintiff

24

pursued ongoing treatment for his mental impairments prior to his date last insured.

25

Indeed, plaintiff told Dr. Oshrin on April 2, 2014 that he had never received any psychiatric

26

treatment. (See AR 252.) And, there is no medical evidence of record establishing that

27

plaintiff’s mental impairments significantly limited his ability to perform work-related

28

functions prior to his date last insured.
25
3:17-cv-01367-JAH (RNB)

1

Plaintiff further contends that he refilled asthma medications “over and over” since

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he was a child, for “breathing attacks that came on due to panic and anxiety, caused by

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school work and then work in my adult life.” (See ECF No. 5 at 8.) However, as the ALJ

4

noted, while plaintiff’s childhood records do show that plaintiff was diagnosed with asthma

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and used an Albuterol inhaler as needed, there is no medical evidence showing that the

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asthma caused significant work-related limitations. (AR 28). 6 In fact, plaintiff’s childhood

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doctor specifically found that asthma was “not a real problem.” (See AR 244-45.)

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Moreover, as the ALJ noted, plaintiff represented in October 2012 that he had not had an

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asthma attack in a long time. (See AR 28, citing AR 302.) Further, physical examination

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generally documented normal respiratory effort. (See AR 282, 303). Thus, the record does

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not show that plaintiff’s asthma significantly limited his ability to perform work-related

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functions.

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Even evidence dated after the date last insured supports the ALJ’s finding that

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plaintiff’s medically determinable impairments were nonsevere as of September 30, 2013.

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Plaintiff testified that in 2014, he wanted to continue working, but his problems were

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getting worse and he thought he should do something about it. (See AR 54.) This suggests

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that as of September 30, 2013, when plaintiff’s insured status expired, his problems were

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not yet at a level that he thought warranted medical attention. In February 2014, when

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plaintiff first saw a doctor about anxiety, he reported his symptoms as mild. (See AR 287.)

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At an initial psychiatric examination in April 2014, concurrent with plaintiff’s application

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for disability insurance benefits, a clinician noted that plaintiff was oriented and had no

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concentration or memory problems, with no documentation of sustained symptomology or

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pathology. (See AR 326-27). The Court therefore concurs with the ALJ that record does

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not show that Plaintiff’s mental impairments significantly limited his ability to perform

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work-related functions prior to his date last insured.

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27
6

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Curiously, when he applied for disability and was asked to list all of the conditions
that limited his ability to work, Plaintiff did not mention asthma (AR 163).
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3:17-cv-01367-JAH (RNB)

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The ALJ’s step two finding also is supported by application of a special technique

2

set forth in the regulations for evaluating whether mental impairments are severe. See 20

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C.F.R. § 404.1520a. Under this technique, the Commissioner determines the extent to

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which a medically determinable mental impairment or impairments results in functional

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limitations in four broad areas – daily activities; social functioning; concentration,

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persistence, or pace; and episodes of decompensation. Under this analysis, the ALJ found

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that plaintiff had mild limitations in activities of daily living. (AR 30.) The ALJ noted in

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this regard that plaintiff exercised two to three days per week, looked for work, prepared

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some meals, drove a car, was able to go out alone, shopped in stores, and went to grocery

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and Walmart-type stores on a regular basis, despite allegations of discomfort around others.

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(Id., citing AR 174, 287.) In the area of social functioning, the ALJ found that plaintiff

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had mild limitations. (AR 30.) Despite an anxious presentation, plaintiff was pleasant,

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friendly, and able to interact in socially appropriate ways. He did not have significant

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difficulty interacting with others in stores. (Id., citing AR 244, 323.) Indeed, the Court

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notes that, in his June 2014 Function Report, plaintiff represented that he was cooperative

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and well-liked, and he denied any work-related issues due to difficulty getting along with

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others. (See AR 193.) Moreover, at his August 19, 2014 appointment with Dr. Penn,

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plaintiff cited “being friendly” as one of his strengths. (See AR323.) In the area of

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concentration, persistence, or pace, the ALJ found that plaintiff had mild limitations. (AR

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30.) As the ALJ noted, there is little to no objective medical evidence of any memory or

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concentration problems, and mental status examinations showed intact memory, attention,

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and concentration. (See id., citing AR 323; see also AR 253, 288, 291, 317-18, 319.)

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Plaintiff himself had characterized his OCD symptoms as “mild” at his appointment with

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Dr. Ong on February 25, 2014, nearly five months after his insured status expired. (See

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AR 287.)

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decompensation of extended duration. (AR 30.) Because plaintiff’s impairments caused

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no more than mild limitations in any functional area, the ALJ properly found that the

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impairments were nonsevere, consistent with the regulations.

Finally, the ALJ found that plaintiff had experienced no episodes of

See 20 C.F.R. §

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3:17-cv-01367-JAH (RNB)

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404.1520a(d)(1); see also Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012) (ALJ’s

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non-severity determination as to mental impairments was supported by the record evidence

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where ALJ made specific findings and discussed evidence as to the degree of limitation in

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each functional area).

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E.

Reversal is not warranted based on the ALJ’s failure to find plaintiff disabled

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pursuant to the Commissioner’s Listing of Impairments.

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Plaintiff appears to be contending that the ALJ should have found him disabled

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pursuant to the Commissioner’s Listing of Impairments, and specifically the listings for

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mental impairments. (See ECF No. 5 at 11, 14.)

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At step three of the Commissioner’s five-step sequential evaluation process, the ALJ

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must determine whether a claimant’s impairment or combination of impairments meets or

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equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, where

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the Commissioner has set forth certain impairments that are presumed to be of sufficient

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severity to prevent the performance of work. See 20 C.F.R. § 404.1525(a); Tackett v. Apfel,

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180 F.3d 1094, 1099 (9th Cir. 1999). Here, based on his finding at step two of the

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sequential evaluation process that plaintiff was not disabled on or prior to his date last

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insured, there was no need for the ALJ to proceed to step three. See 20 C.F.R. §

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404.1520(a)(4) (“If we can find that you are disabled or not disabled at a step, we make

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our determination or decision and we do not go on to the next step.”). Thus, this claim of

21

error is meritless.

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F.

Reversal is not warranted based on the ALJ’s failure to discuss the specific

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mental demands of plaintiff’s past work or plaintiff’s adaptability to other

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work.

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Plaintiff’s sixth claim is that the ALJ committed reversible error by not complying

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with SSR 82-62 (A Disability Claimant’s Capacity to Do Past Relevant Work). (See ECF

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No.5 at 4.) SSR 82-62 addresses the Commissioner’s responsibilities at step four of the
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3:17-cv-01367-JAH (RNB)

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sequential evaluation process, when the ALJ compares the claimant’s residual functional

2

capacity to the demands of his past work. See 20 C.F.R. § 404.1520(a)(4)(iv). Here, as

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noted above, based on his finding at step two that plaintiff was not disabled on or prior to

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his date last insured, there was no need for the ALJ to proceed to any of the remaining

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steps, including step four. The Court therefore concurs with the Commissioner that this

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claim of error is meritless.

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Plaintiff also contends that the ALJ erred by not complying with SSR 83-14 (The

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Medical Vocational Rules as a Framework for Evaluating a Combination of Exertional and

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Nonexertional Impairments) and SSR 85-15 (The Medical-Vocational Rules as a

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Framework for Evaluating Solely Nonexertional Impairments) by citing examples of

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specific occupations plaintiff could perform, or otherwise show that other work exists that

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he could perform. According to plaintiff, this was required by 20 C.F.R. §§ 404.1512(f)

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and 404.1560(c). (See ECF No. 5 at 6-8.) However, the assessment whether an individual

14

can adjust to other work is made at step five of the Commissioner’s sequential evaluation

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process. See 20 C.F.R. § 404.1520(a)(4)(v); see also 20 C.F.R. § 404.1560(c). Since the

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ALJ found at step two that plaintiff was not disabled on or prior to his date last insured,

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this claim of error at step five also is meritless.

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19

G.

Reversal is not warranted based on the Appeals Council’s denial of plaintiff’s

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request for review.

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Plaintiff’s eighth claim is that the Appeals Council wrongly refused to consider his

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appeal, and instead let the ALJ decision stand. (See ECF No. 5 at 4.)

23

The fallacy of this claim is that the Social Security Act only permits judicial review

24

of the agency’s “final decision.” See 42 U.S.C. § 405(g). The Appeals Council’s denial

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of a request for review is not a final decision; rather, such denial renders the ALJ’s decision

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as the “final decision” of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000);

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20 C.F.R. § 404.981. Thus, this Court lacks jurisdiction to review the Appeals Council’s

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denial of plaintiff’s request for review. See Brewes v. Comm'r of Soc. Sec. Admin., 682
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3:17-cv-01367-JAH (RNB)

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F.3d 1157, 1161 (9th Cir. 2012) (“We have held that we do not have jurisdiction to review

2

a decision of the Appeals Council denying a request for review of an ALJ's decision,

3

because the Appeals Council decision is a non-final agency action.”); Taylor, 659 F.3d at

4

1231-32 (holding that a reviewing court may review additional evidence submitted to and

5

rejected by the Appeals Council, but may not review an Appeals Council decision denying

6

a request for review); see also Luther v. Berryhill, 891 F.3d 872, 876 (9th Cir. 2018)

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(“[T]he Appeals Council’s reasoning for denying review is not considered on subsequent

8

judicial review.”).

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10

H.

Plaintiff’s subsequent award of SSI benefits does not warrant reversal of the

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ALJ’s decision or warrant remand for further proceedings pursuant to 42

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U.S.C. § 405(g) (Sentence Six).

13

According to plaintiff in his Reply Brief filed on December 18, 2018, at some

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unspecified time apparently subsequent to the ALJ’s decision in the instant case, he applied

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for SSI and was sent by the SSA for a consultative examination by a psychologist, who

16

found plaintiff disabled at some unspecified time. As a result of the psychologist’s report,

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plaintiff was awarded SSI benefits, which he had just started to receive. Plaintiff claims

18

that the award of SSI benefits “should now be applied to pass through” to his claim for

19

disability insurance benefits. (See ECF No. 19 at 2.)7

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27
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7

Although plaintiff has not proffered any evidence of his SSI application, the
supposedly favorable psychologist report, or the ALJ decision awarding plaintiff SSI
benefits, the Commissioner responded to this claim in her cross-motion/opposition to
plaintiff’s summary judgment motion by acknowledging that Social Security records show
that plaintiff applied for SSI on June 2, 2016; that, in a hearing decision dated September
6, 2018, an ALJ found plaintiff disabled as of September 7, 2016, based in part on findings
from a psychiatric examination that day; and that the ALJ acknowledged in his decision
that plaintiff’s previous application for disability insurance benefits was denied by ALJ
decision of May 6, 2016, and explicitly stated that the subsequent claim did not invade the
previously adjudicated period, which was final and binding. (See ECF No. 27-1 at 28.) In
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3:17-cv-01367-JAH (RNB)

1

The fallacy of this claim is that the Court lacks jurisdiction to reverse the

2

Commissioner’s decision based on evidence that is not part of the administrative record.

3

See 42 U.S.C. § 405(g) (“The court shall have the power to enter, upon the pleadings and

4

transcript of the record, a judgment affirming, modifying, or reversing the decision of the

5

Commissioner of Social Security, with or without remanding the cause for a rehearing.”).

6

Here, neither plaintiff’s SSI application, nor the ALJ decision awarding plaintiff SSI

7

benefits, nor any of the evidence underlying that decision is part of the administrative

8

record before the Court.

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Section 405(g) does confer on the Court jurisdiction to remand the case to the

10

Commissioner for the consideration of new evidence, but “only upon a showing that there

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is new evidence which is material and that there is good cause for the failure to incorporate

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such evidence into the record in a prior proceeding.” See 42 U.S.C. § 405(g) (Sentence

13

Six); Allen v. Secr’y of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984). The

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good cause requirement is satisfied if new information surfaces after the Commissioner’s

15

final decision and the claimant could not have obtained that evidence at the time of the

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administrative proceeding. See Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). To

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be material, the new evidence must bear directly and substantially on the matter in issue,

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and there must be a real possibility that the new evidence would have changed the outcome

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if it had been before the Commissioner. See Cotton, 799 F.2d at 1408; Booz v. Secretary

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of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984).

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Here, if plaintiff had proffered evidence of the ALJ’s September 6, 2018 decision

22

finding plaintiff entitled to an award of SSI benefits, the Court would have found such

23

evidence new and further would have found good cause for plaintiff’s failure to incorporate

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such evidence into the record earlier. See Burton v. Heckler, 724 F.2d 1415, 1418 (9th Cir.

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26
27
28

his Reply to the Commissioner’s opposition, plaintiff does not dispute any of the foregoing
representations by the Commissioner concerning his SSI application. (See ECF No. 29.)
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3:17-cv-01367-JAH (RNB)

1

1984) (noting that the good cause requirement is met when the new evidence “did not exist

2

at the time of the ALJ’s decision”).

3

However, plaintiff has not even purported to make the requisite showing that the

4

evidence of the award of SSI benefits (or any of the evidence underlying that decision)

5

bears substantially and directly on the matter in issue, named whether plaintiff was disabled

6

on or before September 30, 2013, his date last insured. See Armstrong, 160 F.3d at 589

7

(citing 42 U.S.C. § 423(c)).

8

representations regarding the ALJ’s September 6, 2018 decision finding plaintiff entitled

9

to an award of SSI benefits, the Court fails to see how plaintiff could possibly make such

10

a showing. According to the Commissioner, the ALJ found plaintiff disabled as of

11

September 7, 2016; and, after acknowledging in his decision that plaintiff’s previous

12

application for disability insurance benefits was denied by ALJ decision of May 6, 2016,

13

the ALJ explicitly stated that the subsequent claim did not invade the previously

14

adjudicated period, which was final and binding.

And, based on the Commissioner’s uncontroverted

15

In Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010), the Ninth Circuit found that

16

remand for further administrative proceedings under Sentence Six was appropriate where

17

a favorable decision that was issued in close proximity to an initial denial could not be

18

easily reconciled from the record before the court. Here, by way of contrast, the subsequent

19

favorable decision on plaintiff’s SSI application was not issued in close proximity to the

20

relevant date for purposes of plaintiff’s application for disability insurance benefits (i.e.,

21

September 30, 2013). Rather, it was issued nearly five years later. Moreover, here, the

22

subsequent favorable decision was based on different medical evidence (i.e., the

23

subsequently obtained favorable consultative examination report) and involved a different

24

time period. Thus, this case is governed by Bruton, 268 F.3d at 827, where the Ninth

25

Circuit found that remand for further proceedings under Sentence Six was not warranted

26

when the record reflected that a subsequent favorable decision involved different medical

27

evidence and a different time period.

28
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3:17-cv-01367-JAH (RNB)

1

RECOMMENDATION

2

For the foregoing reasons, the Court RECOMMENDS that plaintiff’s motion for

3

summary judgment be DENIED, that the Commissioner’s cross-motion for summary

4

judgment be GRANTED, and that Judgment be entered affirming the decision of the

5

Commissioner and dismissing this action with prejudice.

6

Any party having objections to the Court’s proposed findings and recommendations

7

shall serve and file specific written objections within 14 days after being served with a

8

copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections

9

should be captioned “Objections to Report and Recommendation.” A party may respond

10

to the other party’s objections within 14 days after being served with a copy of the

11

objections. See id.

12

IT IS SO ORDERED.

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Dated: August 14, 2019
_________________________________
ROBERT N. BLOCK
United States Magistrate Judge

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3:17-cv-01367-JAH (RNB)