(SS) Neilsen v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATRINA A. NEILSEN, No. 2:18-cv-1168 AC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Petitioner seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under 20 Title II and supplemental security income (“SSI”) under Title XVI of the Social Security Act 21 (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, petitioner’s motion for summary 22 judgment will be DENIED, and defendant’s cross-motion for summary judgment will be 23 GRANTED. 24 25 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and who suffer from a mental or physical disability. 42 U.S. § 423(a)(1); Bowen v. City of New 26 York, 476 U.S. 467, 470 (1986). SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of 27 Keffeler, 537 U.S. 371, 375 (2003) (“Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including 28 children, whose income and assets fall below specified levels …”). 1 I. PROCEDURAL BACKGROUND 2 Plaintiff applied for DIB and SSI on September 14, 2014. Administrative Record 3 (“AR”) 15 (Decision).2 The disability onset date was alleged to be February 17, 2014. AR 15. 4 The applications were disapproved initially and on reconsideration. AR 15. On February 24, 5 2017, ALJ Peter F. Belli presided over the hearing on plaintiff’s challenge to the disapprovals. 6 AR 46-102 (transcript). Plaintiff, who appeared with her counsel, Mr. James Pi, was present at 7 the hearing. AR 15. Ms. Lisa Suhonos, a Vocational Expert (“VE”), also testified at the hearing. 8 Id. 9 On July 19, 2017, the ALJ issued an unfavorable decision, finding plaintiff “not disabled” 10 under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d) and Section 11 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C § 1382c(a)(3)(A). AR 15-26 (decision), 27-31 12 (exhibit list). On March 21, 2018, after receiving “Request for review of hearing decision from 13 Mario A. Davila, Binder, dated July 28, 2017” and “Brief from Carolyn A. Costello, Binder dated 14 September 1, 2017” as additional exhibits, the Appeals Council denied plaintiff’s request for 15 review, leaving the ALJ’s decision as the final decision of the Commissioner of Social Security. 16 AR 1-5 (decision and additional exhibit list). 17 Plaintiff filed this action on May 9, 2018. ECF No. 1; see 42 U.S.C. § 405(g), 1383c(3). 18 The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 9, 16. The parties’ 19 cross-motions for summary judgment, based upon the Administrative Record filed by the 20 Commissioner, have been fully briefed. ECF Nos. 19 (plaintiff’s summary judgment motion), 20 21 (Commissioner’s summary judgment motion), 23 (plaintiff’s reply regarding Commissioner’s 22 summary judgment motion). 23 II. FACTUAL BACKGROUND 24 Plaintiff was born in 1987, and accordingly was 27 years old on the alleged disability 25 onset date, making her a “younger person” under the regulations, when she filed her application.3 26 AR 25. Plaintiff has at least a high school education and can communicate in English. AR 25. 27 2 The AR is electronically filed at ECF Nos. 12-3 to 12-50 (AR 1 to AR 2945). 28 3 See 20 C.F.R. § 404.1563(c) (“younger person”). 1 III. LEGAL STANDARDS 2 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 3 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 4 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 5 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 6 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 7 Substantial evidence is “more than a mere scintilla,” but “may be less than a 8 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 9 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 11 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 12 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 13 Although this court cannot substitute its discretion for that of the Commissioner, the court 14 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 15 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 16 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 17 court must consider both evidence that supports and evidence that detracts from the ALJ’s 18 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 19 “The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 21 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 22 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 23 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 24 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 25 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 26 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 27 evidence that the ALJ did not discuss”). 28 //// 1 The court will not reverse the Commissioner’s decision if it is based on harmless error, 2 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 3 ultimate nondisability determination.’” Robbins v. Commissioner, 466 F.3d 880, 885 (9th Cir. 4 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 5 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 6 IV. RELEVANT LAW 7 Disability Insurance Benefits and Supplemental Security Income are available for every 8 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 9 is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically 10 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 11 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 12 The Commissioner uses a five-step sequential evaluation process to determine whether an 13 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 14 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 15 process to determine disability” under Title II and Title XVI). The following summarizes the 16 sequential evaluation: 17 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 18 20 C.F.R. § 404.1520(a)(4)(i), (b). 19 Step two: Does the claimant have a “severe” impairment? If so, proceed to step 20 three. If not, the claimant is not disabled. 21 Id. §§ 404.1520(a)(4)(ii), (c). 22 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 23 404, Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 24 Id. §§ 404.1520(a)(4)(iii), (d). 25 Step four: Does the claimant’s residual functional capacity make 26 him capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 27 Id. §§ 404.1520(a)(4)(iv), (e), (f). 28 1 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, 2 the claimant is disabled. 3 Id. §§ 404.1520(a)(4)(v), (g). 4 The claimant bears the burden of proof in the first four steps of the sequential evaluation 5 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 6 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 7 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 8 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 9 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 10 V. THE ALJ’s DECISION 11 The ALJ made the following findings: 12 1. The claimant meets the insured status requirements of the Social Security Act through December 30, 2017. 13 2. [Step 1] The claimant has not engaged in substantial gainful 14 activity (SGA) since February 17, 2014, the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.). 15 3. [Step 2] The claimant has the following severe impairments: left 16 leg injury, reflex sympathetic dystrophy, hip pain, complex regional pain syndrome, migraines, anxiety, and depression (20 CFR 17 404.1520(c) and 416.920(c)). 18 4. [Step 3] The claimant does not have an impairment or combination of impairments that meets or medically equals the 19 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 20 416.920(d), 416.925 and 916.926). 21 5. [Residual Functional Capacity (“RFC”)] After careful consideration of the entire record, the undersigned finds that the 22 claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is 23 able to lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently; sit for 8 hours in an 8-hour day with normal 24 breaks; sit/stand for approximately 1 hour with changes of position while not leaving the work station; and stand/walk for 6 hours in an 25 8-hour day with no prolonged walking (longer than 30-40 minutes). She is able to climb stairs occasionally; stoop, crouch, crawl, and 26 kneel frequently; and is not to climb ladders, ropes and scaffolds, work at unprotected heights or around unprotected hazardous 27 machinery. The claimant is able to maintain a work schedule; to make adjustments to changes in the workplace; to make workplace 28 judgments; to receive, remember, understand and carry out simple 1 job instructions and occasionally complex and detailed instructions; and to interact with the general public, coworkers and supervisors. 2 6. [Step 4] The claimant is capable of performing past relevant 3 work as a dispatcher, scheduler, checker and a deli worker. This work does not require the performance of work-related activities 4 precluded by the claimant’s RFC (20 CFR 404.1565 and 416.965). 5 7. The claimant has not been under a disability, as defined in the Social Security Act, from February 17, 2014, through the date of 6 this decision (20 CFR 404.1520(f) and 416.920(f)). 7 8. The claimant’s marijuana usage is not a contributing factor material to the determination of disability (20 CFR 404.1535 and 8 416.9635). 9 AR 18-26. 10 As noted, the ALJ concluded that plaintiff was “not disabled” under Sections 216(i) and 11 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d) and Section 1614(a)(3)(A) of Title XVI 12 of the Act, 42 U.S.C § 1382c(a)(3)(A). AR 26. 13 VI. ANALYSIS 14 Neilsen alleges that the ALJ erred (1) by failing to consider her obesity; (2) by failing to 15 consider her need for a hand-held assistive device to ambulate; (3) in his assessment of her 16 Mental Residual Functional Capacity (MRFC); (4) in discounting the opinions of her treating 17 physician, Dr. Kuper; and (5) failing to properly consider lay witness testimony. ECF No. 19 at 18 5-17. Plaintiff requests that the matter be remanded to the Commissioner for an immediate award 19 of benefits. 20 A. The ALJ Did Not Err in Failing to Consider Obesity 21 Neilsen asserts that the ALJ erred by failing to consider her obesity in his RFC 22 assessment. Though a claimant is not barred from bringing a new issue before a District Court 23 upon review (see Sims v. Apfel, 530 U.S. 103, 112 (2000)), it is the claimant who “carries the 24 initial burden of proving a disability,” particularly when they are represented by counsel, and 25 “[a]n ALJ is not required to discuss the combined effects of a claimant’s impairments or compare 26 them to any listing in an equivalency determination, unless the claimant presents evidence in an 27 effort to establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 682-683 (9th Cir. 2005). 28 Additionally, “the burden of showing that an error is harmful normally falls upon the party 1 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 2 Neilsen’s representatives and physicians have consistently omitted obesity from their 3 claims regarding her disability. AR 52-53 (counsel’s case presented at hearing), 100-101 4 (counsel’s hypotheticals to the vocational expert), 346 (disability report filled out by an intake 5 specialist), 430-434 (counsel’s brief to the Appeals Council), 1656 (Dr. Kuper’s letter stating 6 inability to work). However, obesity is present as a condition throughout Ms. Neilsen’s medical 7 records both explicitly (AR 561, 571, 941, 1028, 1323, 1626, 1640, 1662, 2263, 2289, 2290, 8 2314, 2334, 2423, 2521, 2523, 2531, 2534, 2567, 2571, 2574, 2576, 2579, 2774, 2776, 2799- 9 2800, 2839, 2916) and implicitly through notations of a high BMI, weight gain, and references to 10 weight management risk (AR 435, 437, 440, 442, 444, 452, 455, 457, 462, 467, 472, 474, 539, 11 547, 572, 584, 785, 810, 846, 884, 920, 1033, 1080, 1148-49, 1152, 1220, 1269, 1357, 1376, 12 1381, 1384, 1389, 1449, 1469, 1574, 1592, 1664, 2302, 2312-13, 2332, 2334, 2349-50, 2386, 13 2517, 2525, 2554-55, 2568, 2572, 2575, 2577, 2591, 2806-07, 2865). Obesity was also explicitly 14 noted by State Agency medical consultants Drs. Dipsia, Barrons, and Klein. AR 111-12, 126-27, 15 144-45, 160-61. 16 Like the claimant in Burch, Neilsen’s medical records show only that obesity was present 17 as a condition; plaintiff has not pointed to any evidence of functional limitations due to obesity. 18 See Burch at 683. Neilsen’s medical record is silent as to whether and how her obesity might 19 have exacerbated her condition, and her briefs provide no analysis, explanation, or references to 20 the medical record to support any findings on that issue. See Farley v. Colvin, No. CV-14-08150- 21 PCT-DGC, 2015 WL 1926815, at *5 (D. Az. Apr. 28, 2015) (unpublished). Neilsen makes the 22 general point that obesity can exacerbate other conditions, but does not identify any specific 23 functional limitations she has experienced. ECF 19 at 5-6, ECF 23 at 1-3. Therefore, the ALJ did 24 not commit harmful error by basing his findings on the limitations that were supported by the 25 record, without explicit reference to Neilsen’s obesity. 26 B. The ALJ Did Not Err in Failing to Consider the Need for a Hand-Held Assistive 27 Device to Ambulate 28 The record before the ALJ indicated that Neilsen has been using a cane to ambulate for 1 the last several years, at least since 2012. See AR 472. Neilsen testified that the device was 2 prescribed in 2010 by Dr. Bedell. AR 76, 363. However, there is no record or note attributed to a 3 Dr. Bedell – let alone a prescription for an assistive device – in Neilsen’s medical records. The 4 ALJ’s RFC finding did not include the use of an assistive device, citing claimant’s ability to 5 “walk and move in a satisfactory manner” and that there was “no indication of loss of control or 6 muscle wasting in her legs due to nerve damage.” AR 22-24. Neilsen contends that the failure to 7 consider her need for a hand-held assistive device was error. 8 “To find that a hand-held assistive device is medically required, there must be medical 9 documentation establishing the need for a hand-held assistive device to aid in walking or standing 10 and describing the circumstances for which it is needed.” SSR 96-9p, 1996 WL 374185, at *7. 11 Mentions of a cane that are “traceable to plaintiff’s self-reports and to [their] medical sources’ 12 observations that [they] presented with an assistive device” are not sufficient to constitute 13 “medical documentation establishing the need for an assistive device.” Flores v. Colvin, No. 14 1:14-cv-02096-SKO, 2016 WL 2743228, at *14 (E.D. Cal. May 10, 2016) (unpublished). 15 Ultimately, “the fact that various medical providers noted [a claimant’s] use of a cane [does not] 16 establish the medical necessity of such a device.” Greer v. Comm’r of Soc. Sec., No. SA CV 17- 17 01316-DFM, 2018 WL 5885942, at *5 (S.D. Cal. Nov. 7, 2018) (unpublished) (citing Cashin v. 18 Astrue, No. 09-161, 2010 WL 749884, at *11 (C.D. Cal. Feb. 24, 2010) (unpublished); Quintero 19 v. Colvin, No. 13-478, 2014 WL 4968269, at *10 (E.D. Cal. Sept. 29, 2014) (unpublished); 20 Flores v. Colvin, No. 1:14-cv-02096-SKO, 2016 WL 2743228, at *14 (E.D. Cal. May 10, 2016) 21 (unpublished)). 22 Neilsen’s medical records are replete with observations from treating physicians that she 23 uses a cane. AR 450, 454, 457, 462, 467, 474, 919, 941, 1022, 1024, 1079-80, 1268-69, 1323, 24 1555, 1690, 1696, 1701, 1726, 1728, 2094, 2096, 2423, 2591, 2701, 2865, 2932. The closest any 25 of these documents come to establishing the need for a hand-held assistive device is a note by 26 Neilsen’s primary care provider, Dr. Godil, stating “[u]se cane” in the activities section of a home 27 health referral. AR 2932. This note falls short of the standard set forth in SSR 96-9p as it does 28 not provide the circumstances for which the cane is needed. See Tripp v. Astrue, 489 Fed.Appx. 1 951, 955 (7th Cir. 2012); see also Howze v. Barnhart, 53 Fed.Appx. 218, 222 (3d Cir. 2002). 2 Neilsen has testified that the cane is primarily used for balance. AR 79. The only 3 statements by medical professionals that come close enough to specifying the circumstances for 4 which Neilsen requires a cane are notes by State Agency examiners Drs. Dipsia and Pong 5 indicating that Neilsen “needs a [cane] for prolonged ambulation.” AR 115, 130, 148, 164. 6 However, the medical records noted that her balance and general ability to ambulate without 7 assistance were intact. AR 532, 1592-93, 1625, 1627, 1641, 2423-24. Additionally, the same 8 State Agency examiners above found that her “coordination was intact” and Dr. Klein found that 9 there was no “support to show necessity for [an assistive device] for all ambulation.” AR 111, 10 114, 126, 129, 144, 160. Accordingly, it was not error for the ALJ to exclude the need for a 11 hand-held assistive device in his decision. Because prolonged ambulation is the only 12 circumstance for which need of a hand-held assistive device has been indicated in the entirety of 13 the record, and the ALJ precluded prolonged walking in his RFC, any such error would have been 14 harmless. AR 98. 15 C. The ALJ Properly Assessed Mental Residual Functional Capacity 16 The ALJ found that the severity of Neilsen’s mental impairments did not meet or 17 medically equal the criteria in 20 C.F.R. Part 404, Subpart P, Appendix 1, Listings 12.04 and 18 12.06. AR 18-19. Specifically, the ALJ concluded that plaintiff has (1) mild limitations in 19 understanding, remembering, or applying information; (2) moderate limitations in interacting 20 with others; (3) mild to moderate limitations in concentrating, persisting, or maintaining pace; and 21 (4) mild limitations in adapting or managing oneself. AR 19. Neilsen alleges that the ALJ should 22 have found her impairments to medically equal the listing criteria for disability, because her 23 treating physician Dr. Kuper identified four areas corresponding to those in the above listings in 24 which she was “markedly” limited. ECF 19 at 9. Neilsen makes an additional, difficult to 25 decipher argument regarding the ALJ’S failure to align his assessment with the opinion evidence, 26 including the evidence of non-examiners. Id. at 13-13. The court does not find error. 27 Listings 12.04 and 12.06 both require that a claimant have an “extreme limitation of one, 28 or marked limitation of two, of the following areas of mental functioning: (1) [u]nderstand, 1 remember, or apply information; (2) [i]nteract with others; (3) [c]oncentrate, persist, or maintain 2 pace; [or] (4) [a]dapt or manage oneself.” 20 C.F.R. pt. 404, subpt. P, appx. 1, §§ 12.04 and 3 12.06 (2017). In assessing mental residual functional capacity (MRFC) the ALJ’s decision “must 4 include a specific finding as to the degree of limitation in each of the functional areas” and 5 “contain a ‘narrative rationale’” for the conclusions reached. Keyser v. Comm’r Soc. Sec. 6 Admin., 648 F.3d 721, 725 (9th Cir. 2011). 7 The ALJ’s assessment of Neilsen’s limitations in each functional area is well supported. 8 The ALJ’s decision initially compares the testimony provided by Neilsen in her 2014 Function 9 Report (Exh. B5E AR 366-374) to the assessments provided by Dr. Kuper in a Mental 10 Impairment Questionnaire (Exh. B12F AR 2941-45), to explain the degree of limitation found in 11 each of the functional areas. AR 19. This section of the decision does lack a narrative rationale 12 to support the specific findings as to functional limitations. However, the subsequent RFC 13 analysis provides discussion of the weight given to Dr. Kuper’s findings, the findings of State 14 Agency medical consultants, and references to the medical record which do support the ultimate 15 conclusions. AR 20-24. 16 Neilsen’s argument that she was rated markedly limited in four categories is unpersuasive 17 for several reasons: because of the little weight assigned by the ALJ to Dr. Kuper’s opinion, 18 which is discussed below; because the Mental Impairment Questionnaire is not equivalent to an 19 MRFC assessment; and because the record does not support the findings that plaintiff urges. The 20 Mental Impairment Questionnaire is essentially a worksheet to help determine a claimant’s RFC; 21 it does not substitute for the ALJ’s RFC finding. See Israel v. Astrue, 494 Fed.Appx. 794, 797 22 (9th Cir. 2012) (finding that a form instructing physicians to rate a claimant’s abilities in broad 23 terms, such as “moderately limited,” in areas of functioning is merely a worksheet and does not 24 constitute an RFC assessment). Though the categories and ratings on the questionnaire mirror the 25 standards articulated in 20 C.F.R. pt. 404, subpt. P, appx. 1 it is separated into broader 26 subcategories for each area of functioning. All but one of the subcategories which Dr. Kuper has 27 rated as a “marked degree of limitation” fall under the broader category of “Concentration and 28 Persistence.” AR 2944. Therefore, even if this questionnaire were to be fully credited, it would 1 support a finding of marked limitation in only one of the four categories specified in listings 2 12.04 and 12.06. 3 Dr. Kuper’s own notes from appointments with Neilsen do not support a finding of 4 marked limitations. A marked limitation is one in which a claimant’s “functioning in [the] area 5 independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20 6 C.F.R. pt. 404, subpt. P, appx. 1, § 12.00F2(d). Dr. Kuper rated Neilsen’s Functional Status 7 Impairment at each appointment on a scale where “0 = none and 10 = all the time” and 8 consistently rated Neilsen as a 4. AR 2445, 2453, 2482, 2490, 2499, 2782, 2791, 2815, 2823, 9 2828, 2833, 2853, 2858. Additionally, Dr. Kuper’s notes described Neilsen’s concentration, 10 attention, and memory as “normal” and “intact.” AR 2417. Subsequent notes did state decreases 11 in these abilities and effects on her functional status, however they had no specific discussion of 12 how they were affected or to what degree, and Dr. Kuper did not change his overall rating of 13 Neilsen’s functional status impairment to a higher value. AR 2416, 2446, 2454, 2483, 2491, 14 2500, 2783, 2792, 2816, 2824, 2829, 2834, 2854, 2859. Therefore, Dr. Kuper’s own notes appear 15 to fall short of the standard indicated on the questionnaire. 16 Additionally, Neilsen’s records from other treating physicians and the reports of the State 17 Agency consultants do not support a finding of two or more marked limitations. Neilsen’s 18 treating physicians have consistently found her concentration and overall mental status to be 19 within normal limits or at most moderately impaired. AR 449-50, 456, 460-61, 465, 470, 511, 20 513, 564, 595, 601, 606, 620, 1022, 1024, 1634, 1692, 1698, 1704, 1728, 2094, 2096. The State 21 Agency consultants followed the psychiatric review technique (“PRT”) in evaluating Ms. Neilsen. 22 AR 112-13, 127-28, 145-46, 161-62. These assessments support the ALJ’s findings as to the 23 degree of functional limitation for each category. AR 113, 128, 146, 162. Only one evaluator, 24 Dr. Klein, identified one subcategory in which Neilsen had marked limitations. This was 25 plaintiff’s “ability to interact appropriately with the general public,” which is only one factor to 26 be considered in evaluating an individual’s functional capacity to interact with others. AR 150, 27 166. For all these reasons, the record does not support a finding of any more than one marked 28 limitation. The court concludes that the ALJ properly assessed Neilsen’s MRFC. 1 D. The ALJ Did Not Properly Weigh the Opinion of All Medical Professionals 2 1. The Medical Opinion Evidence 3 The record before the ALJ included the medical opinion of plaintiff’s treating clinical 4 psychologist, Dr. Bradley Kuper, Ph.D., and those of four State agency medical consultants, D. 5 Pong, M.D., A. Dipsia, M.D., H. Barrons, Psy.D., and P. Klein, Psy.D. The treating physician 6 opined that plaintiff’s pain, anxiety, depression, and other symptoms were severe enough to 7 interfere with the attention, concentration, and physical ability needed to perform even simple 8 work-related tasks; that she would not be able to be physically active for more than 30 minutes at 9 a time; that she would require unscheduled breaks every hour and would likely be absent more 10 than three times per month. AR 2944-45. In contrast, Drs. Dipsia and Pong each found that 11 Neilsen was capable of standing or walking for six hours, and sitting for six hours, in an eight- 12 hour work day. AR 107-136 (Dipsia evaluations); AR 139-170 (Pong evaluations). Drs. Barrons 13 and Klein each found that Neilsen was capable of maintaining concentration for simple routines 14 throughout a normal workday and workweek and that she only had mild-to-moderate limitations. 15 AR 107-136 (Barrons evaluation); AR 139-170 (Klein evaluation). 16 The ALJ gave little weight to the opinion of Dr. Kuper, finding that it was not supported 17 by the medical record. AR 23. The ALJ credited the opinions of Drs. Dipsia, Pong, Barrons, and 18 Klein, and incorporated the limitations they found into the assessed RFC and MRFC. AR 23-24. 19 2. Principles Governing the ALJ’s Consideration of Medical Opinion Evidence 20 The weight given to medical opinions depends in part on whether they are proffered by 21 treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 22 1996). “Those physicians with the most significant clinical relationship with the claimant are 23 generally entitled to more weight than those physicians with lesser relationships. As such, the 24 ALJ may only reject a treating or examining physician’s uncontradicted medical opinion based on 25 clear and convincing reasons. Where such an opinion is contradicted, however, it may be rejected 26 for specific and legitimate reasons that are supported by substantial evidence in the record.” 27 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (internal citations 28 omitted). 1 “The general rule is that conflicts in the evidence are to be resolved by the Secretary and 2 that his determination must be upheld when the evidence is susceptible to one or more rational 3 interpretations.” Winans v. Bowen, 853 F.2d 642, 647 (9th Cir. 1987). However, when the ALJ 4 resolves conflicts by rejecting the opinion of an examining physician in favor of the conflicting 5 opinion of another physician (including another examining physician), he must give “specific and 6 legitimate reasons” for doing so. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 7 1298-99 (9th Cir. 1999) (“Even if contradicted by another doctor, the opinion of an examining 8 doctor can be rejected only for specific and legitimate reasons that are supported by substantial 9 evidence in the record.”). 10 The ALJ will consider (1) the length of the treating relationship, (2) the frequency of 11 examination, (3) the nature and extent of the treatment relationship, (4) the supportability of the 12 opinion, (5) the consistency of the opinion with the record as a whole, and (6) the specialization 13 of the treating source when assessing the weight of a medical opinion. 20 C.F.R. § 14 404.1527(c)(2)-(6). “[A]n ALJ may discredit [a] treating physician[’s] opinion[] that [is] 15 conclusory, brief, and unsupported by the record as a whole … or by objective medical findings.” 16 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citing Matney v. 17 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 18 Cir. 2001)). 19 3. The ALJ Erred in Assigning Little Weight to Dr. Kuper’s Opinion 20 Dr. Kuper’s opinion is contradicted by the opinion of agency physician Dr. Barrons, who 21 assessed only mild to moderate limitations, so the ALJ must provide specific and legitimate 22 reasons for discrediting Dr. Kuper. AR 23, 113. The ALJ’s broad references to the “totality of 23 the record,” and unsubstantiated assertion that Dr. Kuper’s assessed limitations are not consistent 24 with plaintiff’s daily activities, does not suffice. AR 23. The ALJ erred in assigning little weight 25 to Dr. Kuper’s opinion without articulating a specific and legitimate basis for that asessment. 26 4. The ALJ’s Assignment of Little Weight to Dr. Kuper’s Opinion Was Harmless 27 Error. 28 While plaintiff is correct that the ALJ did not provide sufficiently specific reasons for 1 discrediting the opinion of Dr. Kuper, the court finds that the error was harmless because 2 substantial evidence supports the ALJ’s ultimate conclusion on disability and no reasonable ALJ 3 on remand would reach a materially different decision on plaintiff’s limitations. An error is 4 harmless “where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s 5 ultimate disability conclusion.” Stout v. Comm’r, Soc. Sec. Admin, 454 F.3d 1050, 1055 (9th 6 Cir. 2006); see also, Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 7 2008) (holding that an ALJ’s error is harmless so long as substantial evidence supports the 8 ultimate conclusion). “So long as there remains ‘substantial evidence supporting the ALJ’s 9 conclusions’ and the error ‘does not negate the validity of the ALJ’s ultimate conclusion,’ such is 10 deemed harmless and does not warrant reversal.” Id. Other circuits have applied the harmless 11 error standard for the discount of lay witness testimony expressed in Stout to the discount of a 12 treating physician’s opinion. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) 13 (holding that an ALJ’s failure to explain the weight given to a physician’s opinion was harmless 14 error because no reasonable ALJ would reach a contrary decision on remand regarding the 15 claimant’s limitations). This approach comports with the ultimate holding in Stout that an error is 16 harmless when it is “inconsequential to the ultimate nondisability determination.” Stout at 1055. 17 In the present case, the court finds that no reasonable ALJ presented with the same record 18 would reach a different conclusion as to the ultimate disability determination, and that such a 19 finding is supported by substantial evidence in the record. Because Dr. Kuper’s opinion as to 20 disability is inconsistent with his own notes, inconsistent with the findings of other physicians, 21 and is brief, conclusory, based on a limited treatment interaction, and unsupported by the record, 22 it was properly rejected. 23 a. Dr. Kuper’s Assessment is Brief, Conclusory, and Based upon a Limited 24 Treatment Interaction. 25 Dr. Kuper is a clinical psychologist who began seeing Neilsen for pain management in 26 August of 2015. AR 1632. Dr. Kuper had appointments with Neilsen about every 3 to 4 weeks 27 and all but 2 of these appointments were conducted over the telephone. AR 1632 (in person), 28 2415 (in person), 2445, 2453, 2482, 2499, 2782, 2791, 2815, 2823, 2828, 2833, 2853, 2858. 1 Accordingly, Dr. Kuper’s observations are primarily based on Neilsen’s subjective complaints. 2 AR 2447, 2455, 2784, 2793, 2816, 2830, 2835, 2855. Opinions based primarily on subjective 3 complaints have been held to carry little weight in disability determinations. See Bayliss v. 4 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Additionally, Dr. Kuper’s opinions are both brief 5 and conclusory. Dr. Kuper consistently notes that Neilsen is “unable to work due to pain,” 6 however there is no explanation offered for this finding in the accompanying notes. AR 1634, 7 2416, 2446, 2454, 2483, 2491, 2500, 2783, 2792, 2816, 2824, 2829, 2834, 2854, 2859. The only 8 other supporting document is the Mental Impairment Questionnaire completed by Dr. Kuper 9 which offers as explanation for Neilsen’s inability to work opinions that she would be absent 10 more than three times per month and would be unable to remain active for more than 30 minutes 11 at a time. AR 2945. This checklist does not provide sufficient support for the claim that Neilsen 12 is unable to work, because it is itself unsupported by clinical findings. See Batson v. Comm’r of 13 Soc. Sec. Admin., 359 F.3d 1190, 1195 n.3 (9th Cir. 2004) (finding that a checklist was brief and 14 conclusionary in form and did not provide support for a conclusion of disability in the absence of 15 objective medical evidence in the physician’s treatment notes). Dr. Kuper did not identify any 16 specific basis for the opinions as to breaks and absences, and the court’s independent review of 17 the medical record fails to reveal any substantial supporting evidence. 18 b. Dr. Kuper’s Opinion is Inconsistent with His Own Records. 19 Dr. Kuper’s opinion is inconsistent with his own notes generated from his appointments 20 with Ms. Neilsen. As discussed above, Dr. Kuper rated Neilsen’s functional status impairment at 21 each appointment and consistently rated her as being impaired only some of the time (rating of 4 22 out of 10 with a 10 representing being impaired “all the time”) and did not change this rating 23 throughout the treatment relationship. AR 2445, 2453, 2482, 2490, 2499, 2782, 2791, 2815, 24 2823, 2828, 2833, 2853, 2858. This functional status impairment assessed the four areas Dr. 25 Kuper has identified as being affected by Neilsen’s impairments: “normal routine, occupational 26 functioning, social activities or relationships, [and] [r]ecreational activities.” AR 1634, 2416, 27 2446, 2454, 2483, 2491, 2500, 2783, 2792, 2816, 2824, 2829, 2834, 2854, 2859. Therefore, this 28 rating does not support Dr. Kuper’s finding of substantial absences from work. Additionally, Dr. 1 Kuper’s notes show that he maintained a treatment plan with Ms. Neilsen consisting primarily of 2 mindfulness exercises and meditation which did have positive outcomes over the course of 3 treatment. AR 2417, 2447, 2484, 2492, 2784, 2825, 2830, 2855, 2860. Therefore, Dr. Kuper’s 4 own notes offer no explanation or support for the disabling limitations assessed in the Mental 5 Impairment Questionnaire or in his September 13, 2016 letter. AR 1656, 2941-2945. 6 The medical records attributed to Neilsen’s other treating physicians do not support the 7 disability conclusions reached by Dr. Kuper. Neilsen’s medical records from treating physicians 8 show at most moderate impairments in her regular ability to function. AR 449-50, 456, 460-61, 9 465, 470, 1022, 1024, 1634, 1692, 1698, 1704, 1728, 2094, 2096. Neilsen’s physical therapists 10 noted that she was responding to therapy and showed improvements; these records do not support 11 Dr. Kuper’s claim that she would need an unscheduled break every hour. AR 1640 (assessed as 12 able to sit for 2 hours), 2422-24 (now able to sit up to 3 hours and walking has become more 13 even). The only mention of absences in the medical records come from Neilsen’s self-reports of 14 not being recalled from lay-off status for a past job due to absences, and no other physician has 15 assessed her as needing significant amounts of time away from work. AR 563, 594, 640. There 16 is no indication that Neilsen’s treatment for her conditions would require her to be absent from 17 work a significant amount of time as she has not been scheduled for intensive physical therapy. 18 AR 1639. Therefore, Dr. Kuper’s assessment of disabling limitations is inconsistent with the 19 findings of Neilsen’s other treating providers. 20 Because the record provides ample support for the ALJ’s decision to give Dr. Kuper’s 21 opinion light weight, and because the court finds on this record that no reasonable ALJ would 22 reach an alternate conclusion regarding plaintiff’s limitations on remand, the ALJ’s failure to 23 articulate sufficiently specific reasons for discounting Dr. Kuper’s opinion constitutes harmless 24 error. 25 E. The ALJ Did Not Err in Discounting Lay Witness Testimony. 26 The ALJ did not err in his treatment of Neilsen’s subjective testimony. Evaluating the 27 credibility of a plaintiff’s subjective testimony is a two-step process. First, the ALJ must 28 “determine whether the claimant has presented objective medical evidence of an underlying 1 impairment which could reasonably be expected to produce the pain or other symptoms alleged 2 … In this analysis, the claimant is not required to show that [their] impairment could reasonably 3 be expected to cause the severity of the symptom [they] ha[ve] alleged; [they] need only show 4 that it could reasonably have caused some degree of the symptom.” Garrison v. Colvin, 759 F.3d 5 995, 1014 (9th Cir. 2014) (internal citations omitted). Objective evidence of the pain or fatigue 6 itself is not required. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 7 An ALJ must provide clear and convincing reasons for rejecting a claimant’s subjective 8 testimony. Id. While an ALJ’s credibility finding must be properly supported and sufficiently 9 specific to ensure a reviewing court the ALJ did not “arbitrarily discredit” a claimant’s subjective 10 statements, an ALJ is also not “required to believe every allegation” of disability. Fair v. Bowen, 11 885 F.2d 597, 603 (9th Cir. 1989). So long as substantial evidence supports an ALJ’s credibility 12 finding, a court “may not engage in second-guessing.” Thomas, 278 F.3d at 958. An ALJ “must 13 give reasons that are germane to each witness” when determining credibility and the similarity of 14 testimony of an interested witness to the claimant’s own complaints is a sufficiently “germane” 15 reason. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). 16 At the hearing Neilsen testified that she uses a cane to get around. AR 76. She stated that 17 the majority of her day is spent lying down, and that she can sit upright for only about an hour at 18 a time. AR 72, 82, 93. Neilsen also stated that she has issues with her memory, concentration 19 and retention. AR 87, 90, 92-93. She also testified that on a bad day her depression and pain will 20 occasionally prevent her from doing anything at all for an entire day. AR 89. 21 The ALJ found that Neilsen’s “statements concerning the intensity, persistence and 22 limiting effects of [her] symptoms are not entirely consistence with the medical evidence and 23 other evidence in the record.” AR 22. Inconsistency between subjective testimony and objective 24 medical evidence is a permissible basis for rejecting the testimony. See 20 C.F.R. §§ 25 404.11529(c)(4), 416.929(c)(4); Bayliss at 1218. In this case the ALJ permissibly relied on 26 inconsistencies between the medical record and Neilsen’s statements about her physical 27 limitations. One such inconsistency the ALJ identified was the fact that Neilsen “no longer takes 28 opioid or other strong pain medications” as a part of her treatment. AR 22. Additionally, the ALJ 1 noted that Neilsen is “able to walk and move about in a satisfactory manner” and that her 2 “coordination is intact.” AR 22-23; see AR 114, 126, 129, 532, 1592-93, 1625, 1627, 1641, 3 2423-24. 4 The ALJ points to several portions of the record indicating that plaintiff’s subjective 5 assessment of her mental impairments does not match objective examinations. AR 23. The ALJ 6 notes that Neilsen’s insight and judgment were assessed within normal limits. AR 23; see AR 7 455, 532, 564, 595, 1634, 1658, 2265. Additionally, the ALJ relied on Global Assessment of 8 Functioning scores in the 61-70 range to find that Neilsen is able to “function[] pretty well and 9 ha[ve] some meaningful interpersonal relationships.” AR 23; see AR 111, 2218, 2263, 2270. 10 The ALJ reasonably found that Neilsen’s daily activities do not support the degree of 11 debilitation expressed in her subjective complaints. AR 22. Neilsen testified that she could not 12 sit for more than an hour and had trouble concentrating on or engaging in activities. AR 72, 82, 13 92. However, she also stated that she could drive, run errands, perform her physical therapy 14 exercises, care for pets, craft, and handle her own finances. AR 60, 69, 71, 85, 367, 369. 15 Neilsen’s engagement in numerous daily activities that could be transferred to the workplace gave 16 the ALJ a permissible reason to discredit her subjective allegations. Fair, 885 F.2d at 603. 17 Because the ALJ identified substantial evidence that supports the credibility finding, this 18 court “may not engage in second-guessing.” Thomas, 278 F.3d at 958. Therefore, the ALJ did 19 not err in his evaluation of plaintiff’s subjective testimony. 20 The ALJ also did not err in discounting the lay person testimony of Neilsen’s fiancé. The 21 ALJ noted that Mr. Vazquez’s testimony “largely reiterated the claimant’s description of her 22 activities and limitations.” AR 22. The court’s review of the Third Party Function Report 23 submitted by Mr. Vazquez found no significant differences from the Function Report submitted 24 by Ms. Neilsen. Therefore, in light of the proper rejection of Neilsen’s own testimony, the 25 repetitive nature of the witness’s testimony was a sufficiently germane reason to reject it. See 26 Valentine v. Astrue, 574 F.3d 685, 694. 27 //// 28 //// 1 VU. CONCLUSION 2 For the reasons set forth above, IT IS HEREBY ORDERED that: 3 1. Plaintiffs motion for summary judgment (ECF No. 19), is DENIED; 4 2. The Commissioner’s cross-motion for summary judgment (ECF No. 20), is 5 | GRANTED; 6 3. The Clerk of the Court shall enter judgment for the Commissioner, and close this case. 7 | DATED: September 26, 2019 ~ 8 Hthren— Llane ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19