(SS) McKaughan v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TAMMY MCKAUGHAN, ) Case No.: 1:19-cv-0849 JLT ) 12 Plaintiff, ) ORDER DIRECTING ENTRY OF JUDGMENT IN ) FAVOR OF DEFENDANT, THE 13 v. ) COMMISSIONER OF SOCIAL SECURITY, AND ) AGAINST PLAINTIFF, TAMMY MCKAUGHAN 14 COMMISSIONER OF SOCIAL SECURITY, ) ) 15 Defendant. ) ) 16 ) 17 Tammy McKaughan asserts she is entitled to supplemental security income under Title XVI of 18 the Social Security Act. Plaintiff argues the administrative law judge erred in by not applying the 19 “medical improvement” standard and instead using the five-step sequential process. In addition, 20 Plaintiff asserts the ALJ erred in reviewing the record related to her mental impairments and rejecting 21 the opinion of a consultative examiner. (Doc. 15) For the reasons set forth below, the administrative 22 decision is AFFIRMED. 23 BACKGROUND 24 In 2006, Plaintiff received a “full favorable decision,” finding she was disabled and entitled to 25 supplemental security income. (Doc. 10-3 at 16; see also Doc. 10-4 at 2-11) After the death of her 26 husband, Plaintiff began receiving survivor benefits and her disability benefits were terminated due to 27 excess income in 2013. (See id.; see also Doc. 10-4 at 15) 28 On March 22, 2016, Plaintiff filed a new application for supplemental security income, alleging 1 disability beginning January 2, 2002. (Doc. 10-4 at 13) The Social Security Administration denied the 2 application at the initial level and upon reconsideration. (Id. at 25-37) Plaintiff requested an 3 administrative hearing on the application and testified before an ALJ on January 9, 2018. (See Doc. 10- 4 3 at 17, 41) The ALJ determined Plaintiff was not disabled and issued an order denying benefits on 5 June 11, 2018. (Id. at 17-34) Plaintiff requested review of the decision with the Appeals Council, 6 which denied the request on April 25, 2019. (Id. at 2-7) Therefore, the ALJ’s determination became 7 the final decision of the Commissioner of Social Security. 8 STANDARD OF REVIEW 9 District courts have a limited scope of judicial review for disability claims after a decision by 10 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 11 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 12 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The 13 ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal 14 standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of 15 Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 16 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 17 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 18 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 19 must be considered, because “[t]he court must consider both evidence that supports and evidence that 20 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 DISABILITY BENEFITS 22 To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to 23 engage in substantial gainful activity due to a medically determinable physical or mental impairment 24 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 25 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 26 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work 27 experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in 28 which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 1 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 2 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, 3 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial 4 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 5 ADMINISTRATIVE DETERMINATION 6 To achieve uniform decisions, the Commissioner established a sequential five-step process for 7 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The process 8 requires the ALJ to determine whether Plaintiff (1) is engaged substantial gainful activity, (2) had 9 medically determinable severe impairments (3) that met or equaled one of the listed impairments set 10 forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional 11 capacity to perform to past relevant work or (5) the ability to perform other work existing in significant 12 numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical 13 evidence. 20 C.F.R. §§ 404.1527, 416.927. 14 Pursuant to this five-step process, the ALJ determined Plaintiff had not engaged in substantial 15 gainful activity since the application date of March 22, 2016. (Doc. 10-3 at 18) Next, the ALJ found 16 Plaintiff’s severe impairments included: “morbid obesity; poorly controlled diabetes; obstructive sleep 17 apnea; depression; and anxiety.” (Id. at 19) The ALJ found Plaintiff also had “impairments that are 18 nonsevere,” including: rheumatoid arthritis; soft tissue swelling; right knee bursitis; degenerative 19 changes in the lumbar spine; neuropathy; “back, musculoskeletal, and inflammatory arthritis;” uterine 20 fibroids; ovarian cyst; and digestive problems. (Id. at 19-21) 21 At step three, the ALJ determined Plaintiff’s impairments did not meet or medically equal a 22 Listing. (Doc. 10-3 at 21-24) The ALJ found: 23 [T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). Except, the claimant is limited to occasional climbing of ramps 24 and stairs; she cannot climb ropes, ladders, or scaffolds. She is limited to occasional stooping, kneeling, crouching, and crawling. The claimant must be protected from 25 workplace hazards such as unprotected heights and dangerous moving mechanical parts. She is limited to occasional interaction with supervisors and to brief and 26 superficial interaction with coworkers and the public. She is limited to a low-stress work environment, defined as limited to simple workplace decisions and a structured 27 work environment with little change to the workplace setting and routine. The claimant is anticipated to have one unscheduled absence once per month. 28 1 (Doc. 10-3 at 24) Plaintiff did not have past relevant work to be evaluated at step four. (Id. at 32) 2 However, with the identified residual functional capacity, the ALJ determined at step five that “jobs 3 that exist in significant numbers in the national economy that the claimant can perform,” such as small 4 product assembler, production assembler, and maid/cleaner housekeeping. (Id. at 32-33) Thus, the 5 ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. (Id. at 34) 6 DISCUSSION AND ANALYSIS 7 Plaintiff argues that “the ALJ committed reversible error in failing to properly apply the 8 ‘medical improvement’ standard” in reviewing her application for benefits, due to her prior receipt of 9 benefits. (Doc. 15 at 8, emphasis added) In addition, Plaintiff asserts the ALJ erred in evaluating her 10 psychiatric residual functional capacity, by rejecting limitations identified by a consultative examiner. 11 (Id. at 10-15) 12 A. Governing Standards 13 When a claimant receives SSI, the Commissioner conducts periodic reviews to determine 14 whether that individual continues to meet the requirements. See 20 C.F.R. § 416.990. In conducting 15 continuing disability reviews for SSI benefits, a seven-step sequential evaluation process to determine 16 whether there has been medical improvement in the individual’s impairments that is related to ability to 17 do work. 20 C.F.R. § 416.994. This process is often referred to as the “medical improvement” 18 standard. 19 The parties disagree regarding whether the “medical improvement” standard was applicable to 20 Plaintiff’s application for benefits. Plaintiff contends the ALJ was required to determine whether she 21 had a “medical improvement” to not be entitled to benefits, in light of her prior receipt of SSI benefits. 22 (Doc. 15 at 7-8) The Commissioner argues the “medical improvement standard applies only to 23 [continuing disability reviews], and as such applies only to the issue of whether a current recipient of 24 Title XVI SSI (or beneficiary of Title II Disability Insurance Benefits) is still disabled.” (Doc. 16 at 8- 25 9) Instead, the Commissioner asserts the five-step sequential evaluation for new applications was 26 properly applied by the ALJ. (Id. at 9) 27 The Regulations provide that the payment of SSI benefits may be suspended or terminated in 28 certain circumstances. 20 C.F.R. §§ 416.1320-40. For example, a claimant’s benefits may be 1 suspended for non-medical reasons, including failing to comply with requests for information by the 2 Administration, excess income, incarceration, excess resources. See id. Once benefits have been 3 suspended “for any reason” for twelve continuous months, a claimant’s benefits will be terminated. 20 4 C.F.R. §, § 416.1335. 5 Plaintiff’s benefits were “terminated in 2013 for non-medical reasons,” as Plaintiff had excess 6 income after receiving survivor’s benefits in 2012. (Doc. 10-4 at 15; see also Doc. 10-3 at 16) Because 7 Plaintiff’s benefits were terminated, they could not simply be resumed. See 20 C.F.R. §416.1335; see 8 also Brennan v. Astrue, 501 F.Supp.2d 1301, 1309 (D. Kan. 2007) (“Plaintiff's benefits were terminated 9 when they had been suspended for twelve consecutive months…. [H]er benefits could not be resumed 10 because they had been terminated.”). Thus, Plaintiff was required to file a new application for benefits, 11 which was the application before the ALJ. 12 The ALJ was presented with a new application for benefits and was not evaluating Plaintiff’s 13 prior receipt of benefits. Thus, the five-step sequential evaluation applied to Plaintiff’s claim, rather 14 than the “medical improvement” standard applied to continuing disability reviews. See Brown v. 15 Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990) (rejecting the claimant’s argument that his new 16 applications “should have been treated as a reopening of his termination of benefits” and explaining the 17 medical improvement standard only applies when the Commissioner is considering termination of 18 benefits, “not in later applications for benefits”); see also Harrell v. Bowen, 862 F.2d 471, 477 (5th Cir. 19 1988) (“finding medical improvement … does not apply to new applications for disability benefits”); 20 Brennan, 501 F.Supp.2d at 1309 (“Because this case involved a new application rather than a 21 continuing disability review, the ALJ applied the five-step sequential evaluation process provided in 20 22 C.F.R. § 416.920 rather than the seven-step medical improvement standard provided in 20 C.F.R. § 23 416.994 for continuing disability reviews”). Thus, the ALJ was not required to determine whether 24 Plaintiff had a medical improvement since her prior receipt of benefits and did not err in applying the 25 five-step sequential evaluation to evaluate Plaintiff’s new application for SSI. 26 B. Narrative Discussion Requirement of SSR 96-8p 27 Plaintiff observes that Social Security Ruling 96-8p requires an ALJ “include a narrative 28 discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., 1 laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” (Doc. 15 at 10) 2 According to Plaintiff, “While ALJ Maccione summarized the medical evidence in this case, her 3 psychiatric RFC assessment for Plaintiff's benefits was conclusory and did not contain any rationale or 4 reference to the supporting evidence, as required by Social Security Ruling (SSR) 96-8p.” (Id.) 5 Social Security Rulings are issued by the Commissioner to clarify regulations and policies. 6 Though they do not have the force of law, the Ninth Circuit gives the rulings deference “unless they are 7 plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th 8 Cir. 1989). The purpose of SSR 96-8p was to provide “the Social Security Administration’s policies 9 and policy interpretations regarding the assessment of [a] residual functional capacity (RFC) in initial 10 claims for disability benefits...” SSR 96-8p, 1996 SSR LEXIS 5 at *1. Social Security Ruling 96-8p 11 identifies the evidence that the ALJ must consider, including a claimant’s medical history, signs and 12 objective findings, treatment, daily activities, evidence from lay witnesses, observations, medical 13 opinions, effect of symptoms, any attempts to work, and other evidence in the record. Id. at *12-14. It 14 also instructs that the ALJ include a “narrative discussion,” including “a thorough discussion and 15 analysis of the objective medical and other evidence” and an explanation of the effects of symptoms 16 reported “on the individual's ability to work.” Id. at *19-20. 17 Plaintiff has not identified any specific provision of these standards set forth in SSR 96-8p that 18 she believes the ALJ has not satisfied. The Court’s review of the ALJ's decision indicates she provided 19 a thorough summary of the medical record and non-medical evidence, including Plaintiff’s testimony 20 at the hearing and lay witness statement. (See Doc. 10-3 at 24-32) The ALJ identified the weight 21 given to each medical opinion in the record. (See id. at 29-31) Thus, Plaintiff fails to show any error 22 by the ALJ for failing to comply with the narrative discussion requirements identified by SSR 96-8p. 23 C. Evaluation of the Medical Evidence 24 In this circuit, the courts distinguish the opinions of three categories of physicians: (1) treating 25 physicians; (2) examining physicians, who examine but do not treat the claimant; and (3) non- 26 examining physicians, who neither examine nor treat the claimant. Lester v. Chater, 81 F.3d 821, 830 27 (9th Cir. 1996). In general, the opinion of a treating physician is afforded the greatest weight, but it is 28 not binding on the ultimate issue of a disability. Id.; see also 20 C.F.R. § 404.1527(d)(2); Magallanes 1 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Further, an examining physician’s opinion is given more 2 weight than the opinion of non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 3 1990); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 4 An opinion is not binding upon the ALJ and may be discounted whether another physician 5 contradicts it. Magallanes, 881 F.2d at 751. An ALJ may reject an uncontradicted opinion of a 6 treating or examining medical physician only by identifying a “clear and convincing” reason. Lester, 7 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining physician may be 8 rejected for “specific and legitimate reasons that are supported by substantial evidence in the record.” 9 Id., 81 F.3d at 830. When there is conflicting evidence, “it is the ALJ’s role to determine credibility 10 and to resolve the conflict.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The Court must 11 uphold the ALJ’s resolution of the conflict when there is “more than one rational interpretation of the 12 evidence.” Id.; see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (“The trier of fact and 13 not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either 14 outcome, the court may not substitute its judgment for that of the ALJ”). 15 Plaintiff asserts the ALJ erred by declining “to assign substantial weight” to the opinion of Dr. 16 Alberto Lopez, who performed a consultative examination. (Doc. 15 at 16-22) Because the opinions of 17 Dr. Lopez were contradicted by the state agency medical consultants—Drs. Schwartz and Murillo (see 18 Doc. 10-3 at 30) —the ALJ was required to identify specific and legitimate reasons for rejecting the 19 examining physician’s opinions. See Lester, 81 F.3d at 831. 20 1. Opinions of Dr. Lopez 21 On November 16, 2017, Dr. Lopez performed an “independent medical evaluation” upon the 22 request of Plaintiff’s counsel. (Doc. 10-14 at 3) Dr. Lopez noted that he spent one hour “in direct, face 23 to face contact” with Plaintiff and two hours reviewing a medical file that was provided. (Id.) Plaintiff 24 reported having an abusive childhood and attempted suicide at the age 17. (Id.) Dr. Lopez indicated 25 Plaintiff was “used to being alone,” had “a tendency to stay at home,” and avoided crowds. (Id. at 4-5) 26 She reported “significant pain” during the examination, which she described as an eight out of ten in 27 her right shoulder and low back. (Id. at 7) Dr. Lopez opined Plaintiff was “open and cooperative,” 28 though her demeanor was dysphoric and she “appear[ed] constricted and depressed.” (Id.) He found 1 Plaintiff was able to “recall one-half out of three objects after five minutes, on short-term memory 2 testing” and her “[d]igit span [was] intact at six.” (Id.) 3 Dr. Lopez administered the Minnesota Multiphasic Inventory-2 (“MMPI-2) test, which he 4 explained was “a psychological inventory designed to assess a number for the major patterns of 5 personality and emotional disturbances.” (Doc. 10-14 at 8) Dr. Lopez opined Plaintiff cooperated with 6 the process, and “endorsed items suggesting she is experiencing a low morale and a depressed mood.” 7 (Id.) He found Plaintiff was “emotionally immature,” “dependent and demanding,” and “irritable when 8 her demands [were] frustrated.” (Id.) He believed Plaintiff was “somewhat shy with social concerns 9 and inhibitions” and “hypersensitive about what others may think of her.” (Id.) Dr. Lopez believed the 10 results “suggested longstanding personality disorder, with elements of anxiety and depression.” (Id.) 11 According to Dr. Lopez, Plaintiff was “not able to compete on the open labor market.” (Doc. 12 10-14 at 12) Dr. Lopez opined Plaintiff would “have difficulties remembering locations given her 13 concentration impairment” and would “not be able to maintain touch-and-go concentration for an 14 extended period of time because of her severe fatigue.” (Id.) He noted that Plaintiff “does not leave her 15 home” on some days and opined she would “have difficulties maintaining a regular work schedule, and 16 would not be reliable to go to work.” (Id. at 13) Dr. Lopez indicated Plaintiff would “not be able to 17 sustain a work pace without special supervision” given her “episodes of severe depression and panic.” 18 (Id.) Dr. Lopez also believed Plaintiff was “unable to complete a normal workday without interruptions 19 from her work routine with severe anxiety, fears, and also panic.” (Id.) He opined “[s]ocial interaction 20 would be problematic,” and Plaintiff would ‘not be able to interact appropriately” with her supervisors 21 and the public. (Id.) 22 Dr. Lopez completed a mental residual functional capacity statement, form, and “medical 23 opinion re: ability to do work-related activities.” (Doc. 10-14 at 16-22) Dr. Lopez indicated Plaintiff 24 was precluded “not precluded” from performance of the following activities: carrying out very short 25 and simple instructions, asking simple questions, and requesting assistance. (Id. at 16-18, 20-21) Dr. 26 Lopez believed Plaintiff’s impairments precluded her from the following activities for “5% or more of 27 an 8-hour work day”: understand, remember, and carry out very short and simple instructions; 28 remember locations and work-like procedures; make simple work-related decisions; interact 1 appropriately with the public; and respond appropriately to changes at work. (Id.) Further, Dr. Lopez 2 indicated Plaintiff was precluded from performance of the following activities for “10% of an 8-hour 3 work day”: maintain attention and concentration, perform activities within a schedule, maintain regular 4 attendance, sustain a routine without special supervision, work in coordination with or close proximate 5 to others without being distracted, maintain socially appropriate behavior, accept instructions, be aware 6 of hazards, travel to unfamiliar places, and set realistic goals or make plans. (Id.) 7 Dr. Lopez believed Plaintiff was precluded from activities of daily living and had difficulties 8 with social functioning for about 10% of an eight-hour day. (Doc. 10-14 at 22) In addition, Dr. Lopez 9 concluded Plaintiff was likely to suffer four episodes of decompensation within a twelve-month period, 10 each of at least two weeks in duration. (Id. at 22) 11 2. ALJ’s evaluation of the opinion 12 After summarizing the medical record, the ALJ indicated she gave “very little weight[] to the 13 findings and opinions of Dr. Lopez.” (Doc. 10-3 at 30) The ALJ explained her reasoning as follows: 14 [T]hese findings are not consistent with the objective medical evidence. Dr. Lopez[] is not a treating source, and does not have a treatment history with the claimant, but was 15 a consultant hired by the claimant’s representative to perform a one-time assessment. As noted above, Dr. Lopez found personality disorder and anger management (she 16 may act aggressively if frustrated) problems that are not anywhere in the medical record and then finds severe limitations based on these unsupported conditions. The 17 degree of limitations that Dr. Lopez suggests are not consistent with the mental health records in the file, which show that claimant presented with normal mood and affect 18 and no noted problems with temper control or aggressiveness (Ex. B8F/74, B8F/94, B8F/102, B8F/118, B8F/157, B8F/166, B8F/182, B8F/224, and B8F/248). The 19 claimant takes medication, which was being titrated as of summer 2017, and admitted that she had not been going to psychotherapy and does not have major mental health 20 complaints in her treatment records (Ex. B3F/3). 21 The undersigned gives no weight to Dr. Lopez’ statement that the claimant could not compete on the open labor market as issues of disability are reserved to the 22 Commissioner. Furthermore, there was no basis provided for having difficulties remembering locations or a memory impairment, the record documented intact 23 memory (Ex. B8F/94, B8F/102, B8F/157, B8F/166, B8F/182, B8F/224, and B8F/248). Dr. Lopez gives an extensive mental health, family, and job history, as provided by the 24 claimant in the very same report, which demonstrates intact memory (Ex. B5F). He reported that there was a possibility she contemplated suicide, but this occurred 25 between 2005 and 2008, 8 years prior to the application date (Ex. B2F/7). She has consistently reported no suicidal ideation after the application date (Ex. B2F/5-6, B3F, 26 B3F/12-13, B3F/16, B3F/24, B3F/27, and B5F/5). Dr. Lopez attributes limitations in concentration to fatigue, but this was based on the claimant’s subjective complaint, 27 there was no indication[] of distractibility or concentration issues in mental status examination and indicated that she could remember a digit span of 6 (Ex. B5F/5). 28 Furthermore, the claimant’s medical records attribute her fatigue at the time to her 1 sleep apnea, and Dr. Lopez examined her at a time when she was not receiving treatment in the form of oxygen through a CPAP machine at night. 2 Finally as indicated above, there are serious concerns in the reliability validity and 3 consistency of the MMPI evaluation that is the basis for Dr. Lopez’s opinion. Dr. Lopez attributes to it far more certainty than the test itself and its methodology 4 support. When asked for the underlying test results for this opinion, the claimant produced the results of one administration of the MMPI-2, whereas Dr. Lopez’ report 5 states there were two administrations. Dr. Lopez only cites the results on one administration, and from these results suggests that claimant responds to questions 6 similarly as people who have a personality disorder, have vague physical complaints and have anger management problems. These findings are inconsistent with the 7 objective medical evidence, the claimant’s demeanor and history. She lives independently, drives, shops in stores, attends her children’s functions, and does not 8 have a legal history (Ex. B2F/3). There is no evidence that she required crisis intervention, inpatient psychiatric hospitalization, or other intensive mental health 9 treatment consistent, with Dr. Lopez’s statement that there have been four episodes of decompensation. Moreover, as explained above, the MMPI-2 is primarily a secondary 10 diagnostic tool to assist therapists in ascertaining avenues to approach treatment. Its use as a primary diagnostic tool has been questioned and is the subject of recent study, 11 e.g. Assessment of DSM-5 Section II Personality Disorders with the MMPI-2-RF in a Nonclinical Sample, Journal of Personality Assessment, 2017 Jul-Aug 99(4):384-387. 12 13 (Doc. 10-3 at 30-31) 14 3. Analysis 15 Although Plaintiff contends the ALJ should have adopted the findings of Dr. Lopez, Plaintiff 16 does not address the factors considered by the ALJ, or the finding that her test results were not valid. 17 (See Doc. 15 at 10-15) Plaintiff merely provides a summary of the findings of Dr. Lopez and treatment 18 notes that were identified as reviewed by Dr. Lopez. (Id. at 10-14) The Court is unable to speculate as 19 to what errors Plaintiff believes the ALJ committed when evaluating the opinion. See Valentine v. 20 Astrue, 574 F.3d 685, 692 n.2 (9th Cir. 2009); see also Indep. Towers of Wash. v. Washington, 350 F.3d 21 925, 929 (9th Cir. 2003) (noting the Court “has repeatedly admonished that [it] cannot ‘manufacture 22 arguments for an appellant’”). The Court notes that the ALJ considered a number of factors to evaluate 23 the opinions from Dr. Lopez, including inconsistencies with the objective medical record, 24 inconsistencies with his own report, the treatment Plaintiff received, and Plaintiff’s level of activity. 25 a. Inconsistencies with the record 26 An ALJ may reject medical opinions that are inconsistent with the overall record. See Morgan 27 v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999); see also Batson v. Comm’r of 28 the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2003 (an ALJ may reject an opinion when it is 1 “unsupported by the record as a whole”). However, to reject an opinion as inconsistent with the 2 physician’s notes or medical record, the “ALJ must do more than offer his conclusions.” Embrey v. 3 Bowen, 849 F.2d 418, 421 (9th Cir. 1988). To reject an opinion as contradicted by the medical record, 4 the ALJ must “set[] out a detailed and thorough summary of the facts and conflicting clinical evidence, 5 stating his interpretation thereof, and mak[e] findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th 6 Cir. 1989) (citation omitted). The Ninth Circuit explained: “To say that medical opinions are not 7 supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by 8 the objective findings does not achieve the level of specificity our prior cases have required.” Embrey, 9 849 F.2d at 421-22. 10 The ALJ identified many inconsistencies with the opinion of Dr. Lopez and the objective 11 medical record. First, the ALJ observed that the “personality disorder and anger management” issues 12 identified by Dr. Lopez were “not anywhere in the record.” (Doc. 10-3 at 31) The ALJ noted while 13 questioning the validity of the MMPI-2 results, that Plaintiff “was in treatment for over seven years, 14 and no personality disorder was diagnosed or treated.” (Id. at 28-29) To the contrary, the ALJ found 15 the treatment notes established that Plaintiff “presented with normal mood and effect and no noted 16 problems with temper control or aggressiveness.” (Id. at 30, citing Ex. B8F/74, B8F/94, B8F/102, 17 B8F/118, B8F/157, B8F/166, B8F/182, B8F/224, and B8F/248 [Doc. 10-15 at 75; Doc. 10-16 at 7, 15, 18 31, 70, 79; Doc. 10-17 at 6, 48, 72) In addition, the ALJ found Dr. Lopez’ opinion that Plaintiff would 19 suffer from episodes of decompensation conflicted with the record, because there was “no evidence that 20 she required crisis intervention, inpatient psychiatric hospitalization, or other intensive mental health 21 treatment.” (Doc. 10-3 at 31) 22 Significantly, Plaintiff does not dispute the determination that the treatment notes do not 23 indicate any diagnosis of personality disorder or anger management issues. (See generally Doc. 15 at 24 10-15) Similarly, Plaintiff does not identify any evidence of decompensation that would undermine the 25 ALJ’s findings. Because the ALJ carried her burden to identify specific inconsistencies between the 26 record and the findings of Dr. Lopez, the Court finds the inconsistencies support the ALJ’s decision to 27 give less weight to the opinion. See Morgan, 169 F.3d at 602-03; see also Khounesavatdy v. Astrue, 28 549 F. Supp. 2d 1218, 1229 (E.D. Cal. 2008) (“it is appropriate for an ALJ to consider the absence of 1 supporting findings… in rejecting a physician’s opinion”). 2 b. Inconsistencies within the report of Dr. Lopez 3 Internal inconsistencies within a report support the decision to discount the opinion of a 4 physician. See Morgan, 169 F.3d at 603; see also Khounesavatdy, 549 F. Supp. 2d at 1229 (an ALJ 5 may consider “the inconsistency of conclusions with the physician's own findings, in rejecting a 6 physician's opinion”). 7 The ALJ found the findings of Dr. Lopez regarding Plaintiff’s memory were inconsistent with 8 his own observations during the examination. (Doc. 10-3 at 31) For example, the ALJ noted Plaintiff 9 “remember[ed] a digit span of 6” during the examination. (Id.) The ALJ observed that Dr. Lopez gave 10 “an extensive mental health, family, and job history, as provided by the claimant,” yet opined Plaintiff 11 had “difficulties remembering location or a memory impairment.” (Id.) However, the ALJ found the 12 history provided by Plaintiff “demonstrate[d] intact memory.” (Id.) Because the ALJ identified 13 inconsistencies within the report of Dr. Lopez and his own conclusions, the inconsistencies support the 14 decision to give less weight to the medical opinion. 15 c. Level of activity 16 An ALJ may reject an opinion when the physician sets forth restrictions that "appear to be 17 inconsistent with the level of activity that [the claimant] engaged in.” Rollins v. Massanari, 261 F.3d 18 853, 856 (9th Cir. 2001); see also Fisher v. Astrue, 429 Fed. App’x 649, 652 (9th Cir. 2011) 19 (concluding the ALJ set forth specific and legitimate reasons for rejecting a medical opinion where the 20 assessment was based upon the claimant’s subjective complaints, and limitations identified by the 21 doctor conflicted with the claimant’s daily activities). 22 The ALJ observed that Plaintiff “lives independently, drives, shops in stores, [and] attends her 23 children’s functions, and does not have a legal history.” (Doc. 10-3 at 31) Because Plaintiff's reported 24 level of activity exceeded the limitations assessed by Dr. Lopez—who believed Plaintiff would have 25 difficulty leaving her home to go to work—this was a specific and legitimate reason to give less weight 26 to his opinions. 27 d. Validity of the test results 28 Plaintiff does not challenge—or even address—the ALJ’s determination that the results of the 1 MMPI-2 administered by Dr. Lopez were unreliable and not valid. Thus, Plaintiff waived any 2 challenge to the ALJ’s determination regarding the validity of the test results, and the rejection of Dr. 3 Lopez’ opinion on this basis. See Zango v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 n. 8 (9th Cir. 4 2009) (“arguments not raised by a party in an opening brief are waived”); see also Pendley v. Colvin, 5 2016 U.S. Dist. LEXIS 53470 at *22-23 (D. Or. Mar. 2, 2016) (noting that where the plaintiff 6 “challenge[d] some, but not all, of the reasons provided by the ALJ” and “any argument against those- 7 non challenged reasons [was] deemed waived”). 8 e. Opinion on the ultimate issue 9 The ALJ indicated she gave “no weight to Dr. Lopez’ statement that the claimant could not 10 compete on the open labor market” because “issues of disability are reserved to the Commissioner.” 11 (Doc. 10-3 at 31) Statements “by a medical source that [a claimant] is ‘disabled’ or ‘unable to work’” 12 “are not medical opinions” under the Regulations. 20 C.F.R. §§ 404.1527(e), 416.927(e). Rather, an 13 ALJ “is precluded from giving any special significance to the source” when it is on an issue reserved to 14 the Commissioner, such as the ultimate issue of disability. SSR 96-5p, 1996 WL 374183 at *3 (July 2, 15 1996); McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“[t]he law reserves the disability 16 determination to the Commissioner”); Martinez v. Astrue, 261 Fed. App’x 33, 35 (9th Cir. 2007) (“the 17 opinion that [a claimant] is unable to work is not a medical opinion, but is an opinion about an issue 18 reserved to the Commissioner. It is therefore not accorded the weight of a medical opinion.”). Because 19 Dr. Lopez’ statement rests on the ultimate issue of disability, the ALJ did not err in rejecting the 20 conclusion. 21 4. Substantial evidence supports the determination 22 When an ALJ rejects a medical opinion, the ALJ must not only identify a specific and 23 legitimate reason for rejecting the opinion, but the decision must also be “supported by substantial 24 evidence in the record.” Lester, 81 F.3d at 830. Accordingly, because the ALJ articulated specific and 25 legitimate reasons for rejecting the opinions of Dr. Lopez, the decision must be supported by 26 substantial evidence in the record. 27 Previously, this Court explained: “The role of this Court is not to second guess the ALJ and 28 reevaluate the evidence, but rather it must determine whether the decision is supported by substantial 1 evidence and free of legal error.” Gallardo v. Astrue, 2008 WL 4183985 at *11 (E.D. Cal. Sept. 10, 2 2008); see also German v. Comm’r of Soc. Sec., 2011 WL 924737 at *3 (E.D. Cal. Mar. 14, 2011) 3 (explaining “[i]t is not for this court to reevaluate the evidence”). The term “substantial evidence” 4 “describes a quality of evidence … intended to indicate that the evidence that is inconsistent with the 5 opinion need not prove by a preponderance that the opinion is wrong.” SSR 96-2p, 1996 SSR LEXIS 9 6 at *8. “It need only be such relevant evidence as a reasonable mind would accept as adequate to 7 support a conclusion that is contrary to the conclusion expressed in the medical opinion.” Id. 8 The ALJ’s decision is supported by the opinions of the State Agency physicians, Drs. Joshua 9 Schwartz and Murillo. As the ALJ noted, the physicians opined that Plaintiff “did not meet or equal a 10 listed impairment.” (See Doc. 10-3 at 30) Upon reviewing Plaintiff’s medical record, Dr. Schwartz 11 found Plaintiff had a long history of treatment, and increased symptoms following the death of her 12 spouse. (Doc. 10-4 at 17) According to Dr. Schwartz, Plaintiff “endorsed many anxiety and depressive 13 [symptoms]” but was “not significantly limit[ed].” (Id.) Thus, Dr. Schwartz opined Plaintiff could “do 14 at least simple instructions, relate, and adapt.” (Id.) In addition, he noted Plaintiff’s affect was 15 described between 2015 and 2016 as “constricted,” “restricted,” dysphoric,” and “somewhat sad.” (Id. 16 at 17) Dr. Schwartz believed Plaintiff had “some affective impairment,” and “limited public contact” 17 was appropriate. (Id.) Similarly, Dr. Murillo reviewed Plaintiff’s records in July 2018 and found 18 Plaintiff had a longitudinal history of anxiety. (Id. at 30) Dr. Murillo opined Plaintiff had moderate 19 limitations with public interactions, and should have “limited public contact.” (Id. at 31) 20 Importantly, State Agency medical consultants are “highly qualified” physicians, who are also 21 “experts in Social Security disability evaluation.” 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2); see 22 also Massimo v. Comm'r of Soc. Sec., 2019 U.S. Dist. LEXIS 140366 at *17 (E.D. Cal. Aug. 16, 2019) 23 (“state agency consultants are experts in their respective fields, familiar with Social Security rules and 24 regulations governing disability”), aff’d by Massimo v. Saul, 2020 U.S. App. LEXIS 19067 (9th Cir. 25 Cal., June 17, 2020). “Findings of fact made by State agency medical and psychological consultants ... 26 regarding the nature and severity of an individual’s impairment(s) must be treated as expert opinion 27 evidence of nonexamining sources.” SSR 96-6p, 1996 WL 374180, *1. Thus, the opinions of Drs. 28 Schwartz and Murillo are entitled to weight as expert opinions. 1 The physicians’ findings and opinions were not contradicted in any significant way by the 2 medical record and treatment notes, which indicated Plaintiff had “intact cognitive functioning with 3 normal thought process, intact memory and average intelligence.” (See Doc. 10-3 at 30) (citations 4 omitted) Therefore, the opinions of Drs. Schwartz and Murillo are substantial evidence in support of the 5 ALJ’s determination. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (“the report of a 6 nonexamining, nontreating physician need not be discounted when it is not contradicted by all other 7 evidence in the record.") (emphasis in original); see also Tonapetyan, 242 F.3d 1149 (the opinions of 8 non-examining physicians “may constitute substantial evidence” when consistent with other evidence 9 in the record). 10 CONCLUSION AND ORDER 11 For the reasons set for above, the Court finds the ALJ properly applied the five-step sequential 12 process to Plaintiff’s claim for benefits. In addition, the ALJ identified specific, legitimate reasons for 13 giving less weight to the opinion of Dr. Lopez. Because the ALJ applied the proper legal standards, the 14 determination that Plaintiff is not disabled must be upheld by the Court. See Sanchez, 812 F.2d at 510. 15 Accordingly, the Court ORDERS: 16 1. The decision of the Commissioner of Social Security is AFFIRMED; and 17 2. The Clerk of Court IS DIRECTED to enter judgment in favor of Defendant, the 18 Commissioner of Social Security, and against Plaintiff Tammy McKaughan. 19 20 IT IS SO ORDERED. 21 Dated: September 21, 2020 /s/ Jennifer L. Thurston 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28