Swycaffer v. Saul

Filing 21

REPORT AND RECOMMENDATION on Cross-Motions for Summary Judgment Objections to R&R due by 12/21/2020. Replies due by 1/20/2021. Signed by Magistrate Judge William V. Gallo on 11/18/2020.(jmr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH S. SWYCAFFER

No.: 19-CV-1526-TWR(WVG)
Plaintiff,

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v.

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ANDREW SAUL, Commissioner of Social
Security,

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REPORT AND
RECOMMENDATION ON
CROSS-MOTIONS FOR
SUMMARY JUDGMENT

Defendant.

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This is an action for judicial review of a decision by the Commissioner of Social

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Security, Andrew Saul (“the Commissioner,” or “Defendant”), denying Plaintiff Joseph

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Swycaffer continuing Social Security Disability Insurance benefits under Title II of the

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Social Security Act (the “Act”). The parties have filed cross-motions for summary

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judgment, and the matter is before the undersigned Magistrate Judge for preparation of a

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Report and Recommendation. For the reasons stated below, the Court RECOMMENDS

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that Plaintiff’s motion for summary judgment be DENIED and Defendant’s cross-motion

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for summary judgment be GRANTED.

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I.

OVERVIEW OF SOCIAL SECURITY CLAIM PROCEEDINGS

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Pursuant to the Social Security Act, the Social Security Administration (“SSA”)

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administers the SSI program. 42 U.S.C. § 901. The Act authorizes the SSA to create a
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system by which it determines who is entitled to benefits and by which unsuccessful

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claimants may obtain review of adverse determinations. Id. §§ 423 et seq. Defendant, as

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Commissioner of the SSA, is responsible for the Act’s administration. Id. § 902(a)(4),

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(b)(4).

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A.

The SSA’s Sequential Five-Step Process for Disability Under the Act

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Pursuant to the Social Security Act, claimants who are 18 years old or older and

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whose disability began before attaining age 22 are eligible to receive disabled child’s

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insurance benefits. 20 C.F.R. § 404.350(a)(5). “Disability” is defined in the Act as the

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inability to engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment or combination of impairments that can be

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expected to result in death or that has lasted or can be expected to last for a continuous

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period of not less than 12 months. 42 U.S.C. § 423(d), 20 C.F.R. § 404.1505.

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The SSA employs a sequential five-step evaluation process to determine whether a
claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920.

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At step one, the ALJ considers whether the claimant is currently engaging in

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substantial gainful activity. Id. A claimant is considered to be performing substantial

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gainful activity when engaged in substantial work activity that is usually done for pay or

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profit. 20 C.F.R. §§ 404.1572, 416.972. If the claimant is currently engaged in substantial

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gainful activity, the claimant is not disabled. Id. If the claimant is not currently engaging

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in substantial gainful activity, the analysis proceeds to the next step.

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At step two, the ALJ must determine whether the claimant has a “severe” medically

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determinable impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c),

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416.920(c). A “severe” impairment under the Act is a medically determinable impairment

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which significantly limits an individual’s ability to perform basic work activities. 20

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C.F.R. §§ 404.1522, 416.922. If the claimant does not have a “severe” impairment or

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combination of impairments, the claimant is not disabled. Id. If one or more of the

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claimant’s impairments are “severe,” the analysis proceeds to the next step.

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At step three, the ALJ must determine whether the claimant’s impairment or

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combination of impairments meet the requisite level of severity listed in 20 C.F.R. Part

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404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the

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claimant’s impairments are of a medically equal or greater degree of severity than the

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listed criteria, the claimant is disabled. Id. If the claimant’s impairments do not meet the

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listed requirements, the analysis proceeds to the next step.

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Prior to step four, the ALJ must determine the claimant’s residual functional

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capacity. 20 C.F.R. §§ 404.1520(f), 416.920(f). A claimant’s residual functional capacity

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is defined as their ability to perform physical and mental work activities on a sustained

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basis while taking into account all of the claimant’s impairments, including non-severe

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impairments. 20 C.F.R. §§ 404.1520(e), 404.1545.

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At step four, the ALJ considers whether the claimant has the residual functional

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capacity to engage in any of their past, relevant work. 20 C.F.R. § 404.1520(f). Past

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relevant work is defined as work the claimant has actually performed within the last fifteen

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years, where the claimant was substantially gainfully employed and employed long

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enough to learn the job. 20 C.F.R. § 404.1560(b)(1). If the claimant has the residual

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functional capacity to engage in any of their past relevant work, the claimant is not

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disabled. 20 C.F.R. § 404.1520(f). If the claimant cannot perform any of their past work

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or has no past relevant work, the analysis proceeds to the final step.

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At the final step, the ALJ considers whether the claimant is able to perform any

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other work considering the claimant’s residual functional capacity, age, education, and

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work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g). At this stage, the burden of proof

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shifts from the claimant to the SSA to show that any work claimant can purportedly engage

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in exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1512(b)(3),

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404.1560(c). If the claimant is not able to perform any other work, the claimant is disabled.

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C.F.R. § 404.1520(g). If the claimant is able to engage in other work, the claimant is not

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disabled. Id.

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B.

SSA Hearings and Appeals Process

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In accordance with Defendant’s delegation, the Office of Disability Adjudication

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and Review administers a nationwide hearings and appeals program. SSA regulations

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provide for a four-step process for administrative review of a claimant’s application for

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disability payments. See id. §§ 416.1400, 404.900. Once the SSA makes an initial

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determination, three more levels of appeal exist: (1) reconsideration, (2) hearing by an ALJ,

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and (3) review by the Appeals Council. See id. §§ 416.1400, 404.900. If the claimant is not

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satisfied with the decision at any step of the process, the claimant has sixty days to seek

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administrative review. See id. §§ 404.933, 416.1433. If the claimant does not request

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review, the decision becomes the SSA’s—and hence Defendant’s—binding and final

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decree. See id. §§ 404.905, 416.1405.

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A network of SSA field offices and state disability determination services initially

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process applications for disability benefits. The processing begins when a claimant

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completes both an application and an adult disability report and submits those documents

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to one of the SSA’s field offices. If the SSA denies the claim, the claimant is entitled to a

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hearing before an ALJ in the SSA’s Office of Disability Adjudication and Review. Id.

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§§ 404.929, 416.1429. A hearing before an ALJ is informal and non-adversarial. Id.

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§ 404.900(b).

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If the claimant receives an unfavorable decision by an ALJ, the claimant may request

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review by the Appeals Council. Id. §§ 404.967, 416.1467. The Appeals Council will grant,

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deny, dismiss, or remand a claimant’s request. Id. §§ 416.1479, 404.979. If a claimant

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disagrees with the Appeals Council’s decision or the Appeals Council declines to review

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the claim, the claimant may seek judicial review in a federal district court. See id.

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§§ 404.981, 416.1481. If a district court remands the claim, the claim is sent to the Appeals

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Council, which may either make a decision or refer the matter to another ALJ. Id.

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§ 404.983.

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II.
A.

BACKGROUND

Procedural History

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Plaintiff is a 26-year-old male who alleges he continues to be too disabled to work.

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(AR 61.) On May 26, 2016, Plaintiff filed an application for child’s Disability Insurance

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Benefits as well as supplemental security income pursuant to Title II of the Act. (AR 62.)

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In each application, Plaintiff alleged his disability began on January 1, 2011. (AR 61.) Each

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claim was denied on August 4, 2016. (AR 87-88.) Plaintiff filed a request for

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reconsideration on September 23, 2018. (AR 126.) The request for reconsideration was

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denied on November 2, 2016. (AR 118.) On November 17, 2017, Plaintiff requested a

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hearing before an ALJ. (AR 137.) The hearing occurred on May 8, 2018. (AR 31.) The

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ALJ issued an unfavorable decision on September 27, 2018. (AR 12.) Plaintiff thereafter

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filed a request for review of the ALJ’s unfavorable decision to the Social Security Appeals

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Council, which was denied on June 13, 2019. (AR 1.) On January 4, 2020, Plaintiff filed

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the Complaint in the instant case seeking review of the ALJ’s decision.

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B.

Plaintiff’s Testimony

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Plaintiff testified at the hearing before the ALJ that he suffers from “anxiety attacks”

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that prevent him from working. (AR 41.) He testified his anxiety attacks lasted “two to four

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hours” and would occur “5 or 10 times a week or more.” (Id.) Plaintiff also testified he has

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an imaginary friend, “Lasayis,” who prevents him from working by contacting him while

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he works. (AR 42-43.) Plaintiff reported he spends “30 minutes to an hour” speaking to

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“Lasayis” “almost every day.” (AR 48-49.) Plaintiff claimed “Lasayis” gives him

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instructions which he feels compelled to write down. (AR 50). Plaintiff also testified he

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had sent letters to various government officials (Id.)

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Plaintiff testified that when he experiences anxiety attacks, “sometimes the

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medication works, and sometimes it doesn’t.” (AR 41.) He reported side effects from the

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medication which he described as “panicking” and claimed it caused him to be

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hospitalized. (AR 54.) Plaintiff also claimed he needed reminders to “tend to everyday

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tasks” and that he often stops what he is doing to “write down what ‘Lasayis’ is telling

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[him].” (AR 51-54.)

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Additionally, Plaintiff claimed he visits church and the park with his roommate. (AR

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43.) Plaintiff stated he visits church three to four times per week “for prayers” with

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approximately thirty to sixty other people. (AR 43-44.) He also reported helping his

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roommate with household chores such as cleaning and laundry for “thirty minutes to an

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hour” “once or twice a week.” (AR 44-45.)

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C.

Plaintiff’s Medical History

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Plaintiff’s early educational records reveal he experienced difficulties that led to

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family therapy, psychological counseling, and poor grades during middle and high school.

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(See, e.g., AR 356-72, 381.) At age 16, Plaintiff’s father presented him to San Diego

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County Mental Health Services because Plaintiff was delusional and threatening his family.

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(AR 551.) Based on the assessment, Plaintiff was that same day transported to UC San

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Diego hospital for further psychological treatment. (AR 566.) Plaintiff was hospitalized for

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“about [seven] days” for psychological treatment. (AR 587.) Upon discharge, Plaintiff

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failed to follow through with his outpatient treatment and prescribed medication. (Id.)

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Six years later, on August 28, 2016, Plaintiff was again admitted to UC San Diego

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hospital for psychological treatment after reporting delusions and paranoia. (AR 764.)

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Plaintiff was given Olanzapine and reported his symptoms improved. (AR 772-76.)

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Plaintiff was transferred to Bay View Hospital and discharged on September 1, 2016. (AR

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777.)

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On September 7, 2016, Plaintiff first contacted his treating physician, Dr. Bunner, at

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San Diego County Mental Health Services North Central Clinic. (AR 708.) At this time

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Plaintiff reported paranoia and religious delusions and was prescribed Abilify. (AR 708.)

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Dr. Bunner provided individual progress notes on each appointment with Plaintiff between

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September 2016 and March 2018. (See AR 708-756.)

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On September 14, 2016, Plaintiff denied paranoia or depression since starting

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Abilify. (AR 709.) On September 22, 2016, Plaintiff reported some paranoid symptoms
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and claimed Abilify was making him “restless.” (AR 711-12.) Dr. Bunner reduced

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Plaintiff’s dosage of Abilify and prescribed Quetiapine. (AR 712.)

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On September 23, 2016, Plaintiff was again admitted to UC San Diego after

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reporting paranoid delusions. (AR 572.) Plaintiff was given several medications and was

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discharged the following morning, feeling “great,” with mild, redirectable preoccupation.

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(AR 573.) However, on September 29, 2016, Plaintiff was again brought to the hospital in

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a manic state. (AR 578.) His symptoms abated after medication was brought back to

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therapeutic levels, and Plaintiff was again discharged the following morning feeling “much

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better.” (AR 579-80.)

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Following this period of hospitalization, he returned to regular appointments with

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Dr. Bunner. On October 3, 2016, Dr. Bunner adjusted Plaintiff’s medication dosage after

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Plaintiff denied any paranoia yet reported nausea from his medication. (AR 715-16.) One

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week later, Plaintiff reported an excellent mental status, good response to medication, and

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no paranoia or delusions. (AR 717.) On November 7, 2016, Plaintiff reported feeling

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sedated during the day and Dr. Bunner reduced Plaintiff’s Depakote dose. (AR 722.)

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Plaintiff continued to report positive response to medication from December 2016 to

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February 2017 despite some unfocused thoughts. (AR 723-27.) On March 23, 2017,

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Plaintiff complained of disorganized thoughts and sedation. (AR 729-30.) Dr. Bunner

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switched Plaintiff’s medication to Ziprasidone 80mg. (Id.) Plaintiff was instructed to

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increase his dosage to 160mg after one week but declined to do so because it caused him

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trouble sleeping. (AR 733.) On May 19, 2017, Plaintiff reported experiencing anxiety and

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paranoia, which Dr. Bunner attributed to Plaintiff’s daily marijuana use. (AR 736.) Dr.

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Bunner’s reports from September 2017 through March 2018 show Dr. Brunner continued

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to adjust Plaintiff’s medication, and Plaintiff responded generally well to medication with

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no delusions despite some depression and anxiety. (See AR 739, 741, 744-50.)

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On August 4, 2016, Dr. Nick Rios performed an Initial Disability Determination

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wherein he diagnosed Plaintiff with bipolar disorder, attention deficit-hyperactivity

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disorder, and depression. (AR 67.) Dr. Rios noted Plaintiff had a history of family trauma,
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psychiatric treatment, and substance abuse. (AR 70-71.) Dr. Rios further noted that

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Plaintiff suffered limitations in the areas of understanding and memory, sustained

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concentration and persistence, social interaction, and ability to adapt. (AR 68.) However,

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Dr. Rios opined that the objective medical record indicated Plaintiff retained the capacity

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to work where social interaction is limited and incidental. (AR 71.) Dr. Rios opined

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Plaintiff would be able to perform unskilled labor involving simple tasks with few

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variables, little judgment, and concrete supervision. (Id.)

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On November 2, 2016, Dr. Gina Rivera-Maya performed a Reconsideration

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Disability Determination in which she reviewed Plaintiff’s file. (AR 90.) During Dr.

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Rivera-Maya’s review, she assessed whether there had been any change in Plaintiff’s

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medical condition since the initial review. (Id.) Dr. Rivera-Maya noted Plaintiff was

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recently hospitalized for psychological treatment and was experiencing delusions and

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outbursts. (AR 94.) However, Dr. Rivera-Maya found that substance abuse was a material

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factor in Plaintiff’s delusions as Plaintiff never tested negative for marijuana while

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experiencing delusions. (AR 95.) Dr. Rivera-Maya opined that without substance abuse,

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Plaintiff would be able to sustain unskilled labor for forty hours per week with limited

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public contact. (Id.)

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E.

ALJ’s Findings

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At step one of the five-step sequential evaluation process described above, the ALJ

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found Plaintiff had not engaged in substantial gainful activity since January 1, 2011. (AR

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18.)

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At step two, the ALJ found that Plaintiff had the following severe impairments:
depression, anxiety, schizoaffective disorder, and post-traumatic stress disorder. (Id.)

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

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combination of impairments that met or medically equaled the severity of one of the listed

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impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

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Prior to step four, the ALJ determined that Plaintiff had the residual functional

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capacity to perform work at all exertional levels, with the following non-exertional

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limitations.

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[Plaintiff] is limited to understanding, remembering, and carrying out simple,
routine, repetitive tasks, with standard industry work breaks every two hours,
to no interactions with the general public, and to occasional work-related, nonpersonal, non-social interactions with co-workers and supervisors involving
no more than a brief exchange of information or hand-off of product.

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(AR 19-20.) At step four, the ALJ found Plaintiff had no past relevant work. (AR 23.)

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At step five, the ALJ determined that there are jobs in significant numbers in the

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national economy that Plaintiff is able to perform. (Id.) In making his assessment, the ALJ

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considered Plaintiff’s age, education, work experience, and residual functional capacity.

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(Id.)

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III.

STANDARD OF REVIEW

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A district court will not disturb the Commissioner’s decision unless it is based on

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legal error or not supported by substantial evidence. Smolen v. Chater, 80 F.3d 1273, 1279

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(9th Cir. 1996). Substantial evidence is such relevant evidence, based on the record as a

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whole, as a reasonable mind might accept as adequate to support a conclusion. See Biestek

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v. Berryhill, 139 S. Ct. 1148, 1154 (2019). “[W]hatever the meaning of ‘substantial’ in

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other contexts, the threshold for such evidentiary sufficiency is not high.’” Biestek, 139 S.

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Ct. at 1154. “Substantial evidence, [the Supreme] Court has said, is ‘more than a mere

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scintilla.’ It means—and means only—‘such relevant evidence as a reasonable mind might

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accept as adequate to support a conclusion.’” Id. (citations omitted). Whether the

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Commissioner’s decision is supported by substantial evidence “is a highly deferential

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standard of review.” Valentine v. Comm’r of SSA, 574 F.3d 685, 690 (9th Cir. 2009).

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IV.

DISCUSSION

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Plaintiff argues that the ALJ lacks sufficient evidentiary support to justify

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discounting the Plaintiff’s subjective testimony and the treating physician’s opinions.

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Defendant contends that the ALJ acted reasonably and provided specific and legitimate
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reasons to justify discounting the Plaintiff’s subjective testimony and the treating

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physician’s opinions. This Court agrees with Defendant.

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A.

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Evidence

Substantial Evidence Supports the ALJ’s Evaluation of the Medical Opinion

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When evaluating applications filed before March 27, 2017, the ALJ must evaluate

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all medical opinions, and articulate reasons for the weight given to the medical source

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opinions. 20 C.F.R § 416.927(c)(2). As a general rule, more weight is given to the opinion

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of the treating sources than to the opinions who did not treat the claimant. Lester v. Chater,

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81 F.3d 821, 830 (9th Cir. 1995). If a treating source opinion is both “well supported by

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medically acceptable clinical and laboratory techniques” and is “not inconsistent with other

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substantial evidence in the case record,” that opinion is given “controlling weight.” 20

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C.F.R § 416.927(c)(2). However, unless controlling weight is assigned to the treating

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source opinion, the ALJ is required to consider the factors set out in 20 C.F.R.

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§ 404.1527(c)(2)-(6) in determining how much weight to afford any medical opinion.

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These factors include: (1) the length of the treatment relationship and the frequency

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of examination by the treating physician; (2) the nature and extent of the treatment

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relationship between the patient and the treating physician; (3) the supportability of the

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physician's opinion with medical evidence; (4) the consistency of the physician’s opinion

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with the record as a whole; (5) the specialization of the medical source opinion; and

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(6) other factors raised by the parties. Id. Further, in cases where a treating doctor’s opinion

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is contradicted by another doctor’s opinion, the ALJ may reject or assign little weight to

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the treating doctor’s opinion only by providing “specific and legitimate reasons that are

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

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2007). The ALJ satisfies the substantial evidence requirement by “setting out a detailed

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and thorough summary of facts and conflicting clinical evidence, stating his interpretation

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thereof, and making findings.” Id.

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Here, the ALJ declined to assign controlling weight to Dr. Bunner’s opinion

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concerning the frequency and severity of Plaintiff’s condition after finding the opinion was
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not consistent with the objective medical evidence in the record as a whole. Instead, the

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ALJ assigned little weight to Dr. Bunner’s opinion after considering the frequency of

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treatment and the supportability and consistency of Dr. Bunner’s medical opinion with the

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objective evidence of record. In his assessment of weight, the ALJ considered Dr. Bunner’s

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opinion that Plaintiff experienced marked limitations in most areas and would be off task

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for more than 20% of the day. (AR 22, 544-48.) The ALJ cited specific evidence for

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determining that Dr. Bunner’s medical opinion is inconsistent with the objective evidence

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of record. (AR 22.) The ALJ identified numerous mental status examinations which show

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Plaintiff to be “generally unremarkable.” (See, e.g., AR 21, 682, 696, 765.)

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Based on the Court’s review of the objective medical record, the ALJ’s assessment

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is supported by substantial evidence. Throughout Plaintiff’s period of treatment with Dr.

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Bunner, Plaintiff’s medications were adjusted numerous times and Plaintiff experienced

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periods of both improvement and decompensation in his condition. (See AR 698-750.)

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Plaintiff first visited Dr. Bunner in September 2016. (AR 708.) Plaintiff reported paranoia

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and religious delusions and was prescribed Abilify. (Id.) Just one week later, Plaintiff

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denied experiencing any paranoid delusions. (AR 709.) However, in the subsequent weeks,

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his condition decompensated, and he was hospitalized twice and released upon

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improvement in his condition. (AR 572-74, 578.) During his first appointment with Dr.

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Bunner following hospitalization, Plaintiff claimed he had only taken Quetiapine “for a

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day” before being hospitalized. (AR 715.) On October 3, 2016, Dr. Bunner again adjusted

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Plaintiff’s medication, and on October 10, Plaintiff reported significant improvement, no

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paranoia or delusions, and more organized thought processes. (AR 715-17.) Plaintiff also

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stated he was seeking to return to work at that time. (AR 717.)

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From October 2016 until January 2017, Plaintiff continued to report generally

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improved conditions despite occasional depression, anxiety, and disorganized thoughts.

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(AR 719-25.) He consistently reported no hallucinations or paranoia despite some anxiety

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and “delusional thinking.” (Id.) On February 22, 2017, Plaintiff reported experiencing heart

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palpitations and anxiety, which Dr. Bunner attributed to Plaintiff’s temporary cessation of
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marijuana while he sought employment. (AR 727.) On March 22, 2017, Plaintiff

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complained of “disorganized thoughts and sedation” and Dr. Bunner again adjusted

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Plaintiff’s mix of medications. (AR 729.) However, Plaintiff failed to comply with Dr.

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Bunner’s recommendation that Plaintiff increase the dosage of his new medication,

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Ziprasidone, from 80mg to 160mg after one week of use. (AR 731.) Despite this, Plaintiff

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reported an improved mental condition, with no hallucinations, delusions, or paranoia. (Id.)

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From May 2017 until the final record from Dr. Bunner in March 2018, Plaintiff

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continued to report occasional depression, paranoia, and audio hallucinations. (AR 733-

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50.) During this time, Dr. Bunner continually adjusted Plaintiff’s mix of medications to

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reduce side effects. (Id.) The record shows Plaintiff continued to use marijuana despite Dr.

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Bunner’s instructions to quit. (AR 736, 738, 741). Additionally, Plaintiff was continually

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seeking employment during this period. (AR 739, 746.)

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The Court’s review of the above medical history indicates that the ALJ properly

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discounted Dr. Bunner’s opinion that Plaintiff would be off task for 20% or more of the

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day. The Court notes that Plaintiff’s condition markedly improved when he complied with

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his physician’s treatment recommendations. (AR 709, 717, 719.) Although Plaintiff was

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hospitalized in a manic state, on each occasion his condition rapidly improved after

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receiving a dose of medication. (AR 577, 578, 772.) Following Plaintiff’s final discharge

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from the hospital, he had a positive mental status exam and “excellent” prognosis, denying

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paranoia, delusions, or side effects from medication. (AR 580, 717.)

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However, Plaintiff thereafter repeatedly failed to comply with Dr. Bunner’s

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treatment recommendations. Plaintiff stated he had taken his prescribed Quetiapine only

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“for a day” before going to the hospital. (AR 715.) On April 18, 2017, Plaintiff failed to

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increase his dose of Ziprasidone from 80mg per day to 160mg per day as instructed by Dr.

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Bunner. (AR 733.) On January 6, 2018, Plaintiff stated he had stopped taking his prescribed

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antidepressant Sertraline after two days because it made him sleepy. (AR 750.)

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Further, Dr. Bunner repeatedly instructed Plaintiff to cease using marijuana—yet

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Plaintiff refused. (See, e.g., AR 736, 738, 741.) The record reflects that on numerous
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occasions Dr. Bunner attributed Plaintiff’s symptoms of anxiety and paranoia to his

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marijuana use. For example, on May 19, 2017, Dr. Bunner noted that he “again

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recommended [Plaintiff] stop marijuana to reduce paranoia.” (AR 736). And on July 14,

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2017, Dr. Bunner opined Plaintiff “has remained paranoid even with [treatment,] but uses

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marijuana daily and declines to stop.” (AR 738.)

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The Court notes that although Plaintiff failed to fully comply with his physician’s

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recommendations, the record reveals he was feeling well enough to apply for work. As

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early as October 10, 2016—just ten days after being released from the hospital—Plaintiff

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reported a desire to go back to work soon. (AR 717.) On July 18, 2017, Plaintiff was

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applying for jobs and stated he was “working at the Swapmeet with his friend.” (AR 739.)

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On November 1, 2017, Dr. Bunner noted Plaintiff was considering using Employment

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Services to assist him in finding a job and that Plaintiff “works some part time with his

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roommate on the weekends.” (AR 746.)

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Ultimately, the ALJ acted reasonably in assigning little weight to Dr. Bunner’s

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opinion due to its lack of support or consistency with the record as a whole. (AR 22.) The

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ALJ provided substantial evidence to support his claim that, although Plaintiff experiences

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some limitations due to his condition, Plaintiff’s limitations are not greater than delineated

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in his residual functional capacity. (AR 21.) The Court’s review of the medical record

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confirms that Plaintiff’s mental status is “generally moderate” when Plaintiff is compliant

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with his physician’s treatment recommendations. (AR 22.) Although Plaintiff experienced

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periods of decompensation in his condition, Plaintiff remained well enough to apply for

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work during those periods. (See, e.g., AR 717, 739, 746.) Accordingly, the ALJ properly

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weighed the medical opinion evidence concerning the frequency and severity of Plaintiff’s

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condition and provided specific and legitimate reasons for assigning little weight and

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discounting Dr. Bunner’s medical opinion. (AR 22.) Because the ALJ’s evaluation of the

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medical opinion evidence was supported by substantial evidence, the Court should affirm

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the ALJ’s decision by granting Defendant’s motion for summary judgment.

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B.

The ALJ Properly Discounted Plaintiff’s Subjective Symptom Testimony

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A claimant’s subjective symptoms are a proper consideration in a disability

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evaluation, but those statements alone cannot be decisive on a disability claim. 20 C.F.R.

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§ 404.1529(a); Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). In deciding whether

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to credit a claimant’s testimony about subjective symptoms or limitations, an ALJ must

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engage in a two-step analysis. Smolen, 80 F.3d at 1281. Under the first step, the claimant

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must produce objective medical evidence of an underlying impairment that could

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reasonably be expected to produce pain or other symptoms. Id. If this step is satisfied, and

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there is no affirmative evidence that the claimant is malingering, then the ALJ must

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determine the credibility of the claimant’s subjective complaints and “evaluate the intensity

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and persistence of [the] symptoms” to determine whether and how these symptoms limit a

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claimant’s ability to work. See 20 C.F.R. § 404.1529(c)(1). The ALJ may reject the

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claimant’s testimony about the severity of symptoms as long as he gives clear, specific,

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and convincing reasons for doing so. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.

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2007). In weighing a claimant’s credibility, the ALJ may consider the following factors:

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(1) reputation for being honest, (2) inconsistencies in the claimant's testimony,

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(3) inconsistencies in the claimant’s conduct, (4) daily living activities, (5) work record,

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and (6) physician’s testimony concerning the symptoms alleged. Thomas v. Barnhart, 278

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F.3d 947, 958-59 (9th Cir. 2002) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792

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(9th Cir. 1997).

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Here, the ALJ declined to fully credit Plaintiff’s subjective symptom testimony

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concerning his mental health limitations due to its inconsistency with the evidence of

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record. The ALJ made specific findings discounting Plaintiff’s testimony when compared

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to the objective evidence of record. In his assessment of weight, the ALJ considered

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Plaintiff’s contention that Plaintiff’s medical record is replete with abnormal mental status

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examinations. (See, e.g., AR 432, 477, 558, 682.) The ALJ acknowledged Plaintiff suffered

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from mental health impairments and had some limitations due to these impairments. (AR

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20.) However, the ALJ determined that Plaintiff’s statements concerning the intensity of

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his limitations were not reflected by the objective medical record. (Id.)

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The ALJ acknowledged that Plaintiff had been hospitalized in August and

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September of 2016 due to his “manic state and schizophrenia issues.” (AR 21). However,

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the ALJ reasoned that Plaintiff’s hospitalization was an acute event in context of Plaintiff’s

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entire medical record and did not establish an ongoing or normative level of functioning

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(Id.) The ALJ noted that during hospitalization, Plaintiff’s condition “recompensated

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quickly with substantial improvement” when medication was “titrated up in the therapeutic

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range.” (AR 21, 529.) The ALJ cited several notes from the latter days of Plaintiff’s hospital

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records which note Plaintiff having much improved cognitive function. (AR 21, 537, 572,

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580.) The ALJ specifically identified Plaintiff’s clinical prognosis report from September

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29, 2016 which states that upon discharge from the hospital Plaintiff was “stable on

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medication” and his prognosis was “excellent.” (AR 21, 580.) Plaintiff had no auditory

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hallucinations, visual hallucinations, or paranoia despite remaining somewhat grandiose at

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this time. (AR 21, 579.)

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The ALJ additionally referenced treatment records prior to Plaintiff’s hospitalization

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which showed Plaintiff experienced only mild social symptoms (AR 21, 356.) The ALJ

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therefore reasoned that Plaintiff’s acute periods of hospitalization were not reflective of his

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normal level of mental functioning. (AR 21.)

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Additionally, the ALJ considered Plaintiff’s subjective reports of depression and

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anxiety following his hospitalization. (AR 21.) The ALJ determined that although Plaintiff

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may experience some limitations based on these conditions, his testimony regarding the

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extent of his limitations was not consistent with the objective medical record. (Id.) The

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ALJ utilized Plaintiff’s reports that his medications were helping him cope with his

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conditions. (AR 21, 585). The ALJ pointed to numerous mental examinations in which

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Plaintiff reported medications helped abate his depression and anxiety. (See, e.g., AR 21,

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585, 731.) Specifically, the ALJ identified a behavioral health assessment dated October 3,

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2017 in which Plaintiff claimed medications had been “very helpful.” (AR 585.)
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Additionally, the ALJ noted that Plaintiff was feeling well enough to search for

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employment at this time. (Id.) The ALJ noted an additional record dated April 5, 2017 in

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which Plaintiff stated he was tolerating medication and was applying for jobs. (AR 731.)

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Furthermore, the ALJ reasoned that Plaintiff only experiences mild social symptoms

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based on his regular daily activities. (AR 21.) The record indicates that in September and

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October of 2017 Plaintiff reported feeling well enough to seek employment. (AR 21, 585,

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731.) The ALJ noted Plaintiff frequently engaged in activities such as visiting a local park

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and church with his roommate. (AR 247.) Plaintiff further reported playing online video

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games and attempting to sell things on the internet. (AR 247, 731-33.) The ALJ also

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identified that on April 5, 2017, Plaintiff was not living with a “caregiver” but a friend, and

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this friend reported he was “less sedated” and “more active” on the current medication.

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(AR 731.)

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Based on the Court’s review of the medical record, the ALJ reasonably determined

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that the Plaintiff’s medically determinable impairments are not entirely consistent with

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Plaintiff’s statements concerning the intensity, persistence, and limiting effects of these

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symptoms. (AR 20.) The ALJ identified specific evidence to support his finding that

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although Plaintiff experienced some limitations based on his affirmative diagnoses, he was

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functioning well enough to apply for jobs and did not experience limitations beyond his

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residual functional capacity. (AR 21.) The ALJ gave specific reasons for finding Plaintiff’s

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periods of hospitalization did not represent a normative, ongoing level of functioning which

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were supported by the objective medical record. (AR 21.) Although Plaintiff experiences

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some limitations based on his affirmative diagnoses of anxiety, depression, schizoaffective

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disorder, and PTSD, the ALJ provided substantial evidence to find that Plaintiff’s claims

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regarding the intensity of his conditions were not reflected by the objective medical record.

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(Id.) Accordingly, the ALJ properly discounted Plaintiff’s subjective symptom testimony

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as inconsistent with the objective medical record.

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C.

Plaintiff is Not Entitled to Summary Judgment
Based on the foregoing recommendation that Defendant’s Cross-MSJ be GRANTED,

this Court necessarily recommends that Plaintiff’s MSJ be DENIED.

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V.

CONCLUSION

This Court RECOMMENDS that Plaintiff’s MSJ be DENIED and that Defendant’s
Cross-MSJ be GRANTED.

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This Report and Recommendation is submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal Rule

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of Civil Procedure 72(b).

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IT IS ORDERED that no later than December 21, 2020, any party to this action

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may file written objections with the Court and serve a copy on all parties. The document

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shall be captioned “Objections to Report and Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objections shall be filed with the

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Court and served on all parties no later than January 20, 2021. The parties are advised

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that failure to file objections within the specified time may waive the right to raise those

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objections on appeal of the Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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DATED: November 18, 2020

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