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

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY MALVEAUX, No. 2:18-CV-1952-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, see ECF Nos. 10 and 14, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment, see 28 22 U.S.C. § 636(c). Pending before the Court are the parties’ briefs on the merits. See ECF Nos. 21 23 and 34. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the Commissioner’s final decision is affirmed. 15 16 I. THE DISABILITY EVALUATION PROCESS 17 To achieve uniformity of decisions, the Commissioner employs a five-step 18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. 19 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 20 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 21 not disabled and the claim is denied; 22 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 23 impairment; if not, the claimant is presumed not disabled and the claim is denied; 24 Step 3 If the claimant has one or more severe impairments, 25 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 26 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 27 28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff first applied for social security benefits in February 2010. See CAR 16, 3 133.1 Plaintiff alleged disability beginning on November 8, 2011. See id. The claim was denied 4 and plaintiff did not appeal. In December 2011, plaintiff filed a second application. See id. at 5 232-41. Plaintiff’s second claim was initially denied. Plaintiff requested reconsideration and, on 6 reconsideration, the agency found plaintiff was disabled as of May 7, 2012 – the date plaintiff 7 turned 55. See id. at 92-129. 149-51. Plaintiff appealed and requested a hearing, challenging the 8 May 7, 2012, disability onset date. See id. at 163. In a March 6, 2014, decision, issued following 9 a hearing, Administrative Law Judge (ALJ) Dante M. Alegre found plaintiff was not disabled as 10 of May 7, 2012, or at any time prior to that date. See id. at 130-146. 11 Plaintiff requested review by the Appeals Council, which granted review. See id. 12 at 147-51, 183-84. The Appeals Council vacated the March 6, 2014, decision and remanded for 13 resolution of specific issues during the period of November 8, 2011, through May 6, 2012. See 14 id. In particular, the ALJ was directed to provide further analysis with respect to plaintiff’s 15 ability to maintain social functioning during this period. See id. 16 Another administrative hearing was held on September 27, 2016. See id. at 1502- 17 40. In a January 26, 2017, decision, another ALJ – L. Kalei Fong – concluded plaintiff was not 18 disabled at any time during the relevant time period based on the following relevant findings: 19 1. During the relevant time period, the claimant had the following severe impairment(s): degenerative disc disease of the lumbar 20 spine, depression, and psychotic disorder; 21 2. During the relevant time period, the claimant did not have an impairment or combination of impairments that meets or medically 22 equals an impairment listed in the regulations; 23 3. During the relevant time period, the claimant had the following residual functional capacity: he could perform light work; the 24 claimant was unable to climb ladders, ropes, or scaffolds; the claimant was limited to occasional climbing of ramps or stairs; the 25 claimant was limited to occasional balancing, stooping, kneeling, crouching, and crawling; the claimant was limited to simple 26 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on February 13, 2019, and supplemented on July 17, 2019, to include the November 2013 hearing transcript. 28 See ECF Nos. 16 and 29. 1 repetitive 1-2 step tasks; the claimant was capable of maintaining concentration, persistence, or pace for 1-2 step tasks; the claimant 2 was unable to perform complex or detailed tasks; the claimant was limited to frequent interaction with supervisors and co-workers; the 3 claimant was limited to occasional interaction with the public; the claimant was capable of completing a normal workday and 4 workweek; the claimant required his work environment to be slow- paced and non-competitive; 5 4. Considering the claimant’s age, education, work experience, 6 residual functional capacity, and vocational expert testimony, there were jobs that existed in significant numbers in the national 7 economy that the claimant could have performed during the relevant time period. 8 See CAR 16-33. 9 10 After the Appeals Council declined further review, this appeal followed. 11 12 III. DISCUSSION 13 Plaintiff argues: (1) the ALJ erred in discounting plaintiff’s statements and 14 testimony; (2) the ALJ erred in discounting lay witness evidence from plaintiff’s wife; (3) the 15 ALJ erred in rejecting the opinions of treating psychiatrist, Dr. Ruxin; and (4) the ALJ’s mental 16 residual functional capacity is unexplained. 17 A. Plaintiff’s Credibility 18 The Commissioner determines whether a disability applicant is credible, and the 19 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 20 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 21 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 22 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 23 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 24 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 25 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 26 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 27 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 28 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 1 If there is objective medical evidence of an underlying impairment, the 2 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 3 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 4 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 5 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 6 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 7 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 8 be a reasonable inference, not a medically proven phenomenon. 9 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 10 11 The Commissioner may, however, consider the nature of the symptoms alleged, 12 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 13 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 14 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 15 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 16 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 17 physician and third-party testimony about the nature, severity, and effect of symptoms. See 18 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 19 claimant cooperated during physical examinations or provided conflicting statements concerning 20 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 21 claimant testifies as to symptoms greater than would normally be produced by a given 22 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 23 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 24 Regarding reliance on a claimant’s daily activities to find testimony of disabling 25 pain not credible, the Social Security Act does not require that disability claimants be utterly 26 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 27 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 28 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 1 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 2 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 3 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 4 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 5 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 6 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 7 activities are not easily transferable to what may be the more grueling environment of the 8 workplace, where it might be impossible to periodically rest or take medication”). Daily 9 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 10 his day engaged in pursuits involving the performance of physical functions that are transferable 11 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 12 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 13 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 14 At Step 4, the ALJ considered plaintiff’s subjective complaints in determining 15 plaintiff’s residual functional capacity. See CAR 25-29. The ALJ summarized plaintiff’s 16 complaints as follows: 17 The claimant alleged disability by way of debilitating symptoms resulting from degenerative disc disease of the lumbar spine and depression. At the 18 hearing, the claimant testified that he has frequent and severe back pain. The claimant indicated he was limited due to pain. The claimant advised 19 he would lose balance, and was precluded from prolonged standing or walking. The claimant stated he had difficulty lifting heavy weight. The 20 claimant represented he was restricted in activities of daily living. The claimant advised he required intermittent assistance from his wife. The 21 claimant testified his condition was complicated by mental health issues. The claimant endorsed symptoms of anxiety, nervousness, sweating, and 22 stress. The claimant indicated he had particular anxiety when traveling in unfamiliar places or in large crowds. The claimant reported he was 23 limited in concentration and completing tasks. The claimant stated he had unusual fears related to violence. The claimant represented he was unable 24 to sustain work function due to the combined effect of his physical and mental impairments. . . . 25 Id. at 25. 26 27 / / / 28 / / / 1 After discussing the medical evidence of record, the ALJ then provided the 2 following analysis of plaintiff’s subjective complaints: 3 Based on the review of the evidence above, the undersigned finds that the claimant’s account of the severity of symptoms, as well as his allegations 4 regarding functional limitations, are not fully substantiated for the following reasons: 5 The claimant described daily activities that were not limited to the extent 6 one would expect, given the complaints of disabling symptoms and limitations. At one point or another in the record (found in forms 7 completed in connection with the application and appeal ,in medical reports or records, and in the claimant’s testimony), the claimant reported 8 the following daily activities: took college courses, performed personal care tasks, prepared daily meals, completed some household chores, left 9 his house alone, shopped in stores, counted change, read wrote stories, used the computer, watched television, and attended church and social 10 events. . . . Such activities show the claimant was at least capable of the above residual functional capacity. 11 The claimant did not generally receive the type of medical treatment one 12 would expect for a totally disabled individual. During the period at issue, the claimant sought limited and conservative care for back pain, consisting 13 primarily of medication (Ex. 4F). Clearly, one would expect more frequent and aggressive treatment if the claimant were disabled, as 14 alleged. As to the claimant’s mental impairment the claimant attended monthly office visits for psychotropic medication management (Ex. 5F 15 and 20F). Notably, physicians reported improvement of mental health symptoms while compliant with medication (Ex. 5F, page 47 and 20F, 16 pages 24 and 25). Since the alleged onset date, various mental status examinations showed normal results (Ex. 4F, 5F, and 20F). 17 There is evidence that the claimant stopped working for reasons not 18 related to the allegedly disabling impairment(s). The claimant admitted he stopped working in August 2006, but does not allege onset of disability 19 until November 2011 (Ex. 2E). Such evidence suggests the claimant stopped working for reasons unrelated to disability. 20 CAR 28. 21 22 Plaintiff argues the ALJ improperly relied on plaintiff’s limited daily activities, 23 which plaintiff contends the ALJ mischaracterized. Plaintiff also argues the ALJ erred by relying 24 on plaintiff’s course of treatment. Finally, plaintiff asserts the ALJ’s reliance on plaintiff’s work 25 history is “neither here nor there.” 26 / / / 27 / / / 28 / / / 1 1. Daily Activities 2 According to plaintiff: “The first reason for this [the ALJ’s adverse credibility 3 finding] relies on the mischaracterized daily activities. . . .” ECF No. 21, pg. 13. In a footnote, 4 plaintiff adds: 5 There is one additional item: “took college courses.” The provenance of this must be the testimony we don’t have (Cf. transc., p. 6 137; cf. trans., p. 351, fn. 5, where the undersigned recollects that Mr. Malveaux testified in a completely unqualified way about taking online 7 college classes, and probably not during this period in the months following his serious schizophrenic breakdown. 8 Id. at pg. 14, n.9. 9 10 Plaintiff provides no further support for this argument. 11 In connection with his application, plaintiff submitted two function reports. See 12 CAR 278-85 (Exhibit 3E) and 301-09 (Exhibit 7E). The first report was submitted on February 13 21, 2012. See id. at 278-85. In this report, plaintiff stated he lives in an apartment with family. 14 See id. at 278. He also stated that he does not take care of anyone or any pets, and that no one 15 helps him with pet care. See id. at 279. For personal care, plaintiff stated that he has difficulty 16 dressing. See id. He did not identify any other areas of personal care that are affected by his 17 limitations. See id. Plaintiff stated that he does not need reminders to address personal care 18 needs, grooming, or taking medication. See id. at 280. Plaintiff stated that he does no household 19 or yard chores, though he did not elaborate. See id. at 280-81. According to plaintiff, he goes 20 outside two to three times per week to walk for exercise. See id. at 282. He also stated that he 21 shops in stores for food “once a week or more.” Id. Plaintiff stated he engages in social activities 22 such as talking to friends and going to church and other “events” once or twice a week. Id. 23 In a second report, submitted on October 15, 2012, plaintiff did not list any areas 24 of personal care in which he has difficulty. See id. at 302. He stated he prepares his own meals 25 once or twice a week. See id. at 303. Plaintiff reported that he takes out the trash, though he 26 cannot do “a lot of lifting.” Id. Plaintiff reported he shops for groceries. See id. As with the first 27 report, plaintiff also indicated he socializes and attends church. See id. at 305. 28 / / / 1 Plaintiff’s argument is unpersuasive. According to the ALJ, plaintiff’s daily 2 activities included shopping in stores, performing personal care tasks, and attending church. See 3 CAR28. The Court finds this description to be consistent with plaintiff’s written reports. 4 Plaintiff has cited no evidence suggesting otherwise. As to the ALJ’s reference to plaintiff 5 reportedly taking college courses, plaintiff states he attended online college for outside the time 6 period relevant to this case. Defendant concedes the point. See ECF No. 34, pg. 20, n.5. In any 7 event, the ALJ’s citations to substantial evidence regarding plaintiff’s daily activities support the 8 adverse credibility finding because the evidence shows activities inconsistent with totally 9 disabling symptoms, as alleged.2 10 2. Course of Treatment 11 Plaintiff contends: 12 The second reason relies on characterizing Mr. Malveaux’s “medical treatment” as not being sufficiently “frequent and aggressive” to 13 reflect disability. (Transc., p.28) The AC specifically wrote, “Dr. Ruxin has also reported seeing the claimant every 3–6 weeks (citation omitted) 14 which is contra to the hearing decision’s rejection of his [Dr. Ruxin’s] opinion.” (Transc., p.150) So both decisions misunderstood frequency. 15 They also reflect no respect for a reasonable reading of treating Dr. Ruxin’s two medical source statements. In the first, Dr. Ruxin wrote, 16 “Initially improved, then got more paranoid. Trying to assess severity of mood impairment.” (Transc., p.706) In the second, where his assessments 17 were more limiting, Dr. Ruxin wrote, “May still be having some auditory hallucinations (footnote omitted) even though patient denies this,” (transc., 18 p.753), and “Paranoia and AH have decreased with treatment but med compliance with adequate dose is challenging.” (Transc., p.754) None of 19 this, including Dr. Ruxin’s worsening assessments, comports with the decision’s notion that Mr. Malveaux’s “medical treatment” belied the 20 severity of his symptom allegations. (footnote omitted). 21 ECF No. 21, pgs. 13-14. 22 / / / 23 / / / 24 / / / 25 2 In the context of the ALJ’s citation to plaintiff’s daily activities, the Court also finds no error in the lack of specific findings as to whether plaintiff’s daily activities showed an 26 ability to engage in sustained work-related activities. The failure to make such findings constitutes error only when the ALJ relies solely on daily activities. Vertigan, 260 F.3d at 1050. 27 In this case, the ALJ relied on other factors to discount plaintiff’s credibility, such as a conservative course of treatment and work history. These other factors lend further support to the 28 ALJ’s partial reliance on plaintiff’s daily activities. 1 Even assuming the ALJ mischaracterized the frequency of plaintiff’s treatment, the 2 ALJ properly cited the conservative nature of plaintiff’s treatment to discount plaintiff’s 3 credibility. As the ALJ noted, plaintiff’s treatment consisted primarily of medication, which 4 caused improvement. See CAR 28. Again, plaintiff points to no evidence of record indicating 5 more than conservative treatment to address symptoms he claims are totally disabling. 6 3. Work History 7 Regarding the ALJ’s reference to plaintiff’s work history, plaintiff states: 8 That Mr. Malveaux stopped working in 2006 while his mental breakdown was in 2011 is neither here nor there regarding the veracity of 9 Mr. Malveaux’s “testimony” about his mental impairment. (Trans., p. 28). 10 ECF No. 21, pg. 14. 11 The Court disagrees. While plaintiff alleges he became unable to work in 12 November 2011, the fact remains that he actually stopped working in August 2006. If he was 13 unable to work in 2006, it was reasonable for the ALJ to conclude that plaintiff was being less 14 than truthful when he stated he became unable to work in 2011 due to disability. Plaintiff makes 15 no attempt to explain the inconsistency. 16 B. Lay Witness Evidence 17 In determining whether a claimant is disabled, an ALJ generally must consider lay 18 witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915, 19 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, “lay 20 testimony as to a claimant's symptoms or how an impairment affects ability to work is competent 21 evidence . . . and therefore cannot be disregarded without comment.” See Nguyen v. Chater, 100 22 F.3d 1462, 1467 (9th Cir. 1996). Consequently, “[i]f the ALJ wishes to discount the testimony of 23 lay witnesses, he must give reasons that are germane to each witness.” Dodrill, 12 F.3d at 919. 24 When rejecting third party statements which are similar in nature to the statements of plaintiff, the 25 ALJ may cite the same reasons used by the ALJ in rejecting the plaintiff’s statement. See 26 Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (approving 27 rejection of a third-party family member’s testimony, which was similar to the claimant’s, for the 28 same reasons given for rejection of the claimant’s complaints). 1 At Step 4, the ALJ considered lay witness evidence from plaintiff’s wife. See 2 CAR 25, 28-29. The ALJ stated: 3 Regarding the third-party statements, Ms. Malveaux corroborated some subjective complaints reported by the claimant. These statements are 4 given some weight regarding the daily activities performed by the claimant. As stated, Ms. Malveaux admitted the claimant remained 5 capable of performing personal care tasks, completing household chores, shopping in stores, using public transportation, reading the bible, watching 6 television, attending family events, and counting change (Ex. 4E and 8E). These accounts of daily activities are based on personal observation and 7 are consistent with other evidence. However, the witness also provided opinions about physical limitations and mental limitations. These 8 opinions regarding functional limitations are inconsistent with medical opinions of record, the objective findings and the record as a whole. The 9 lack of substantial support from the other evidence of record renders these opinions less persuasive. 10 Id. at 28-29. 11 12 Plaintiff argues the ALJ erred by failing to consider Ms. Malveaux’s hearing 13 testimony. See ECF No. 21, pg. 11. Plaintiff also contends the ALJ mischaracterized Ms. 14 Malveaux’s written function reports. See id. at 11-12. 15 1. Hearing Testimony 16 According to plaintiff: 17 First, this decision doesn’t even evaluate Ms. Malveaux’s testimony, as opposed to its supposed review of her written function 18 reports, which really just repeats decision #2, despite the AC’s correction of error. Recall that this third ALJ expressly avowed he wouldn’t credit 19 Ms. Malveaux and didn’t want to hear her testimony. (See fn.1.) Social Security Ruling 16–3p, 20 C.F.R. §§404.1529/416.929, and case law 20 required Ms. Malveaux’s testimony be evaluated and considered (e.g., Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) [“Lay 21 testimony as to a claimant’s symptoms is competent evidence which the Secretary must take into account, (citing Dodrill v. Shalala, 12 F.3d 915, 22 919 (9th Cir. 1993)), unless he expressly determines to disregard such testimony, in which case ‘he must give reasons that are germane to each 23 witness.’ (Quoting id.)”]) — a fortiori, where the AC remand order effectively held that decision #2 had misrepresented Ms. Malveaux. This 24 decision’s failure even to evaluate her testimony, aside from its perpetuation of #2's mischaracterization of her written statements, 25 warrants reversal. 26 ECF No. 21, pg. 11. 27 / / / 28 / / / 1 In a footnote, plaintiff adds: 2 And now her testimony isn’t in our record, so whether the error is harmless can’t be determined. However, Stout v. Commissioner, Soc. Sec. 3 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) held “that where the ALJ’s error lies in a failure to properly discuss competent lay testimony 4 favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when 5 fully crediting the testimony, could have reached a different disability determination.” 6 Id. at 11, n.7. 7 8 As the ALJ noted, Ms. Malveaux testified on November 15, 2013. See CAR 16. 9 There is, however, no discussion of this testimony in the hearing decision. Thus, on the face of 10 the hearing decision, the ALJ failed to consider relevant evidence of record.3 Defendant appears 11 to concede the issue by not offering any response to plaintiff’s argument. 12 Plaintiff’s argument that the error cannot be considered harmless is misplaced. In 13 support of her argument, cites Stout v. Commissioner, 454 F.3d 1050 (9th Cir. 2006). In Stout, 14 the Ninth Circuit considered an ALJ’s silent disregard of lay witness testimony. See id. at 1053- 15 54. Lay witnesses had testified about the plaintiff’s “inability to deal with the demands of work” 16 due to alleged back pain and mental impairments. Id. The witnesses, who were former co- 17 workers, testified about the plaintiff’s frustration with simple tasks and uncommon need for 18 supervision. See id. Noting that the lay witness testimony in question was “consistent with 19 medical evidence,” the court in Stout concluded that the “ALJ was required to consider and 20 comment upon the uncontradicted lay testimony, as it concerned how Stout’s impairments impact 21 his ability to work.” 454 F.3d at 1053. The Commissioner conceded that the ALJ's silent 22 disregard of the lay testimony contravened Ninth Circuit case law and the controlling regulations, 23 and the Ninth Circuit rejected the Commissioner’s request that the error be disregarded as 24 harmless. See id. at 1054-55. In doing so, the court stated that the ALJ’s failure to consider 25 uncontradicted lay witness testimony could only be considered harmless “. . . if no reasonable 26 ALJ, when fully crediting the testimony, could have reached a different disability determination.” 27 3 While a second hearing was held in September 2016 following the Appeals Council remand, Mrs. Malveaux did not testify. See CAR 1503-40 (transcript of September 27, 28 2016, hearing). 1 Id. at 1056; see also Robbins v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) 2 (citing Stout, 454 F.3d at 1056). 3 The ALJ, however, need not discuss all evidence presented. See Vincent on 4 Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, he must explain 5 why “significant probative evidence has been rejected.” Id. (citing Cotter v. Harris, 642 F.2d 700, 6 706 (3d Cir.1981). Applying this standard, the court held that the ALJ properly ignored evidence 7 which was neither significant nor probative. See id. at 1395. As to a letter from a treating 8 psychiatrist, the court reasoned that, because the ALJ must explain why he rejected 9 uncontroverted medical evidence, the ALJ did not err in ignoring the doctor’s letter which was 10 controverted by other medical evidence considered in the decision. See id. As to lay witness 11 testimony concerning the plaintiff’s mental functioning as a result of a second stroke, the court 12 concluded that the evidence was properly ignored because it “conflicted with the available 13 medical evidence” assessing the plaintiff’s mental capacity. Id. 14 In Stout, the court found the ALJ erred by disregarding uncontradicted lay witness 15 evidence. Stout is inapplicable in this case because Ms. Malveaux’s November 2013 testimony is 16 not uncontradicted. Ms. Malveaux’s testimony, which is consistent with the limitations alleged 17 by plaintiff, is contradicted by plaintiff’s daily activities, course of treatment, work history, all as 18 discussed above, as well as the medical opinion evidence, as discussed below. As with the lay 19 witness evidence at issue in Vincent, the ALJ did not err in failing to discuss Ms. Malveaux’s 20 contradicted November 2013 hearing testimony. 21 2. Written Function Reports 22 Plaintiff contends the ALJ mischaracterized Ms. Malvezux’s written function 23 reports. Plaintiff argues: 24 And by repeating #2 word-for-word, this decision repeats the mischaracterization of Ms. Malveaux’s written statements pointed out by 25 the AC. Ms. Malveaux completed two written function reports (transc., pp.286–293, 310–318); a full demonstration of the mischaracterization of 26 these would consume considerable space. The decision claims “Ms. Malveaux admitted the claimant remained capable of performing personal 27 care tasks, completing household chores, shopping in stores, using public transportation, reading the bible, watching television, attending family 28 events and counting change.” (Transc., p.28) In fact, she wrote that her 1 husband had problems with personal care (transc., pp.287, 311, 312), problems with household chores (transc., pp.288, 312, 313), and couldn’t 2 shop in stores or use public transportation without accompaniment; indeed, he would start to shake in public. (Transc., pp.289, 290, 292, 293, 3 313, 314, 316) (footnote omitted). Mr. Malveaux’s ability to read the Bible and watch television might be questioned on concentration grounds, 4 since Dr. Ruxin said this was impaired in the first of his two assessment, (transc., pp.704), and prove little about work-functioning. The decision 5 misrepresents Ms. Malveaux about Mr. Malveaux’s ability to attend family events. (Compare transc., pp.290, 291, 314, 315). 6 ECF No. 21, pgs. 11-12. 7 8 In connection with plaintiff’s application, Ms. Malveaux submitted two third-party 9 function reports. See CAR 286-93 (Exhibit 4E) and 310-18 (Exhibit 8E). In these reports, Ms. 10 Malveaux stated plaintiff “sometimes” needed help with bathing, but otherwise had no problems 11 with personal care. Id. She also stated plaintiff can prepare simple meals on a daily basis. See 12 id. Ms. Malveaux stated plaintiff takes out the trash. See id. She reported that plaintiff is able to 13 walk, ride in a car, and use public transportation, and that when plaintiff’s goes out he can do so 14 alone. See id. Ms. Malveaux stated plaintiff can shop in stores, mostly with her assistance. See 15 id. She stated plaintiff can pay bills, count change, handle a savings account, and use a 16 checkbook. See id. Ms. Malveaux stated plaintiff spends time with others, including family and 17 friends, and attends church. See id. She stated plaintiff can walk for 2 blocks and then has to 18 rest. See id. 19 The ALJ characterized Ms. Malveaux’s written statements as follows: 20 In third-party function reports, the claimant’s wife, J. Malveaux, corroborated some of the claimant’s subjective complaints. Ms. Malveaux 21 represented the claimant was limited in lifting, squatting, standing, walking, kneeling, stair climbing, completing tasks, concentration and 22 understanding. Ms. Malveaux estimated the claimant was capable of walking 1-2 blocks before he required a break. She stated the claimant 23 was able to pay attention for 15 minutes. Ms. Malveaux advised the claimant dealt poorly with stress or change. She advised the claimant was 24 less social than prior to onset. Despite the alleged limitations, Ms. Malveaux reported the claimant remained capable of performing personal 25 care tasks, completing household chores, shopping in stores, using public transportation, reading the bible, watching television, attending family 26 events, and counting change (Ex. 4E and 8E). 27 CAR 25. 28 / / / 1 Other than a reference to an ability to pay attention for 15 minutes – which does not appear in 2 either of Ms. Malveaux’s statements – the Court finds that the ALJ’s characterization of Ms. 3 Malveaux’s statements is accurate. Plaintiff’s offers no argument as to the reference to an ability 4 to pay attention for 15 minutes, and the Court does not find that this single error unfairly 5 misrepresents the totality of Ms. Malveaux’s statements. Ultimately, Ms. Malveaux’s statements 6 are consistent with those offered by plaintiff which, for the reasons discussed above, the ALJ 7 properly discounted. See Valentine, 574 F.3d at 694 (9th Cir. 2009). 8 C. Dr. Ruxin’s Opinions 9 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 10 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 11 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 12 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 13 opinion over another. See id. 14 Under the regulations, only “licensed physicians and certain qualified specialists” 15 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 16 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 17 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 18 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 19 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 20 substantial evidence when the opinions are consistent with independent clinical findings or other 21 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 22 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 23 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 24 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 25 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 26 workers may be discounted provided the ALJ provides reasons germane to each source for doing 27 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 28 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 1 when opinions from “other sources” may be considered acceptable medical opinions). 2 The weight given to medical opinions depends in part on whether they are 3 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 4 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 5 professional, who has a greater opportunity to know and observe the patient as an individual, than 6 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 7 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the 8 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th 9 Cir. 1990). 10 In addition to considering its source, to evaluate whether the Commissioner 11 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in 12 the record; and (2) clinical findings support the opinions. The Commissioner may reject an 13 uncontradicted opinion of a treating or examining medical professional only for “clear and 14 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 15 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 16 by an examining professional’s opinion which is supported by different independent clinical 17 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 18 1041 (9th Cir. 1995). 19 A contradicted opinion of a treating or examining professional may be rejected 20 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 21 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the 22 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 23 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 24 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 25 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 26 without other evidence, is insufficient to reject the opinion of a treating or examining 27 professional. See id. at 831. In any event, the Commissioner need not give weight to any 28 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 1 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see 2 also Magallanes, 881 F.2d at 751. 3 At Step 4, the ALJ evaluated the medical opinions of record. See CAR 29-31. In 4 reaching a conclusion regarding plaintiff’s residual functional capacity, the ALJ considered 5 opinions offered by examining physician, Dr. Chang, treating physician, Dr. Ruxin, a medical 6 expert, Dr. Akins, as well as the state agency physicians. See id. As to Dr. Chang, the ALJ gave 7 “great weight” to the doctor’s assessment that plaintiff was, during the relevant time period, 8 capable of light work with frequent postural activities. Id. at 29. The ALJ, however, rejected Dr. 9 Chang’s opinion that plaintiff was limited due to left shoulder pain. See id. The ALJ found this 10 limitation non-severe.4 Similarly, the ALJ partially accepted the state agency physicians’ 11 opinions. See id. 12 The ALJ accepted Dr. Ruxin’s February 2012 opinion that plaintiff had good 13 ability to complete simple tasks and maintain attendance, and fair ability to complete complex 14 tasks, maintain concentration and attention, complete a normal workday/workweek, and respond 15 to change. See id. (citing Exhibit 14F). As to Dr. Ruxin’s amended opinion, rendered in April 16 2012, the ALJ gave only “some weight” to the doctor’s opinion that plaintiff had poor ability to 17 complete a normal workday/workweek. See id. at 30 (citing Exhibit 19F). Plaintiff argues the 18 ALJ erred with respect to consideration of his treating physician, Dr. Ruxin.5 19 As to Dr. Ruxin’s February 2012 opinion, the ALJ stated: 20 In February 2012, treating physician, Dr. Ruxin, opined as follows: the claimant has good abilities to complete simple tasks and maintain 21 attendance. The claimant has fair abilities to complete complex tasks, maintain concentration/attention, complete a normal workday/workweek 22 and respond to change (Ex. 14F). This assessment is given great weight, as it is consistent with other medical opinion evidence and the record as a 23 whole. 24 CAR 29. 25 / / / 26 27 4 Plaintiff does not challenge this finding. 5 Plaintiff makes no arguments regarding the ALJ’s analysis of any of the other 28 medical opinions. 1 Regarding the doctor’s amended opinion of April 2012, the ALJ stated: 2 In April 2012, treating physician, Dr. Ruxin amended his assessment, and opined as follows: the claimant has fair abilities to complete simple and 3 complex tasks, maintain concentration/attention, maintain attendance and respond to changes. The claimant has poor ability to complete a normal 4 workday/workweek without interruption from a psychologically based symptom (Ex. 19F). This assessment is given some weight to the extent it 5 shows the claimant is capable of simple repetitive tasks with moderate limitations in the ability to maintain concentration and attention. These 6 findings are consistent with medical opinion evidence, treatment reports, and objective evidence. 7 The undersigned gives little weight to the assessment of poor ability to 8 complete a normal workday/workweek without interruption from a psychologically based symptom. According to SSR 96-2p, controlling 9 weight may not be given to a treating source’s medical opinion unless the opinion is well-supported by medically acceptable clinical and laboratory 10 diagnostic techniques. In the instant case, Dr. Ruxin did not support his assessment with ample objective evidence. First, clinical observations 11 from contemporaneous reports (in February and April 2012) indicate logical thought processes and fair judgment. Testing indicates Global 12 Assessment [of] Functioning scores varying from 41-60, consistent with moderate to serious symptoms. One would expect consistently extreme 13 findings, if the claimant had poor ability to complete a normal workday/workweek. 14 Here, it is noted that medical expert, Dr. Akins, reviewed the findings and 15 concluded there was not sufficient evidence for “poor ability” or “marked limitation” in the area. In rendering this opinion, Dr. Akins cited to the 16 Global Assessment [of] Functioning scores (from February to June 2012), treatment reports and objective evidence. 17 In addition to the objective evidence, the undersigned notes that treating 18 physicians found the claimant clinically improved or stable with medication (Ex. 20F and Hearing Testimony, 9/27/2016). This finding 19 further undercuts Dr. Ruxin’s opinion. 20 Lastly, the finding is inconsistent with the claimant’s own account of daily activities. As stated, the claimant was capable of attending college 21 courses, completing household chores, shopping in stores, and using the computer. Dr. Ruxin fails to explain how the claimant would be capable 22 of extensive daily activities if he had poor to no ability to complete a normal workday/workweek (as indicated [in] the reports). 23 CAR 30. 24 25 As to the ALJ’s analysis of Dr. Ruxin’s February 2012 opinion, plaintiff argues: 26 . . .[I]t insincerely gave “great weight” to Dr. Ruxin’s first, less disabling, assessments, (transc., p.29), claiming that its many ‘Fair’s 27 (transc., p.706) were consistent with the “other opinion evidence and the record as a whole.” (Transc., p.29) Presumably this means this medical 28 source statement was consistent with the decision’s mental residual 1 functional capacity, since the decision said its RFC was “supported by . . . the mental assessments of [nonexamining Dr. Akins’s hearing testimony] 2 and State agency, findings in the prior decision [Considering the AC reversal, this should be a bad reason] and the record as a whole,” (transc., 3 p.31), and Dr. Akins got great weight because “consistent with treatment records, accounts of daily activities and the record as a whole.” (Id.) 4 However, what the form Dr. Ruxin filled out says “Fair” means is “The evidence supports the conclusion that the individual’s capacity to perform 5 the activity is impaired, but the degree/extent of the impairment needs to be further described.” (Transc., p.706) This is consistent with Dr. Ruxin’s 6 statement “Initially improved, then got more paranoid. Trying to assess severity of mood component.” (Id.) And Dr. Ruxin’s initial assessments 7 no more clearly support the decision’s specific (nondisabling) MRFC than they contradict it. This decision disingenuously coopts, which is to say 8 misuses, Dr. Ruxin’s first MSS. Note that if one takes this decision literally — a mistake, since 9 most of it just reiterates the reversed decision #2 — then the decision’s crediting of this first, uncertain, Dr. Ruxin MSS followed by its 10 discrediting of his more certain and disabling second MSS demonstrates this decision (which didn’t even want to hear from Ms. Malveaux, and 11 which repeated and relied on the earlier decision’s mischaracterization of Mr. Malveaux’s daily activities and symptoms) to be hubristically 12 confident in its greater wisdom than the psychiatrist who the AC remand said tracked Mr. Malveaux during these critical post-breakdown months 13 “every 3–6 weeks,” (transc., p.150), and recommended recontacting. (Transc., p.151) 14 ECF No. 21, pgs. 14-15. 15 16 Regarding the ALJ’s analysis of Dr. Ruxin’s amended opinion of April 2012, 17 plaintiff states: 18 . . . [T]his decision again — without explaining why this is so — claims this too as support for its MRFC (transc., p.30), finding only Dr. 19 Ruxin’s assessment of ‘poor’ for completing workdays and work weeks (transc., p.754) to be inconvenient and rejecting it. (Id.) 20 First, cherry-picking out inconvenient portions of medical opinions is problematic. (Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 21 2001) [cannot rely on selected evidence and ignore other, contradictory evidence; Gallant v. Heckler, 753 F.2d 1450, 1455–56 (9th Cir. 1984); 22 Switzer v. Heckler, 742 F.2d 382, 385–386 (7th Cir. 1984) [cannot pick and choose]; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) [cannot 23 affirm by isolating specific quantum of evidence].) Second, the decision’s expressed rationale does not rest on 24 substantial evidence with adequate explanation and is legally backward. The decision seems to say that evidence showing “logical thought 25 processes and fair judgment” contradict Dr. Ruxin (transc., p.30), but Dr. Ruxin’s MSS reflects goal-directed thought processes and mildly impaired 26 judgment (transc., p.753), which is consistent with this; the decision omits the many abnormal signs/symptoms, which would support the 27 obvious bottom line of Dr. Ruxin’s MSS that Mr. Malveaux is disabled. The decision also asserts that Mr. Malveaux’s serious to moderate global 28 assessments of functioning contradict Dr. Ruxin’s assessment of ‘poor’ 1 ability to complete workdays and work weeks (transc., p.30), but at least without further explanation this doesn’t follow; serious to moderate 2 assessments of global functioning are not so inherently inconsistent with inability to consistently complete workdays and work weeks as to make 3 the decision’s non-expert, non-treating, second-guessing superior to the opinion of a treating specialist who saw Mr. Malveaux every three to six 4 weeks. The decision also gives two factually and one legally wrong reason 5 for discounting Dr. Ruxin. The first factually wrong reason is “that treating physicians found the claimant clinically improved or stable with 6 medication” (transc., p.30); but this is contradicted by treating Dr. Ruxin’s statements that Mr. Malveaux at first improved and then regressed 7 (transc., p.706), might still really be having auditory hallucinations (transc., p.753), and that “med compliance with adequate dose was 8 challenging.” (Transc., p.754) The other factually wrong reason is yet further reliance on the incorrect view of Mr. Malveaux’s daily activities 9 discussed before and significantly contradicted by the AC. The legally wrong reason is to cite nonexamining Dr. Akin as having reviewed 10 “findings” consisting significantly of Dr. Ruxin’s information, and having not found “sufficient evidence for ‘poor ability’.” (Transc., p.30) 11 Ordinarily, more weight should be given a treating doctor’s opinion, (Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)), and “The opinion of a 12 nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician.” (Id. at 13 831, citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) and Gallant v. Heckler, supra, 753 F.2d at 1456.) Moreover, of course, Dr. 14 Akin didn’t even address MRFC, only listing 12.03. 15 ECF No. 21, pgs. 15-16. 16 While plaintiff’s arguments are difficult to discern, the Court finds no error with 17 respect to the ALJ’s analysis of Dr. Ruxin’s February 2012 opinion, which the ALJ accepted. In 18 February 2012, Dr. Ruxin opined plaintiff has good ability to complete simple tasks and fair 19 ability to complete a normal workday/workweek. In April 2012, Dr. Ruxin opined plaintiff has 20 fair ability to complete simple tasks and poor ability to complete a normal workday/workweek. 21 By citing Dr. Akins’ medical expert testimony that the evidence does not establish “poor ability” 22 in any category of mental functioning, the ALJ provided a valid reason, supported by the record, 23 to discount the change in Dr. Ruxin’s opinion from “good ability” and “fair ability” to “poor 24 ability.” In addition, the change from “good ability” to “fair ability” to complete simple tasks is 25 of no moment given that the ALJ accounted for both by limiting plaintiff to simple one- and two- 26 step tasks. 27 / / / 28 / / / 1 As to the ALJ’s reliance on Dr. Akins’ testimony that the evidence does not 2 establish “poor ability,” plaintiff argues that the ALJ erred by relying on a non-examining source 3 to discount the opinion of a treating source. This argument is unpersuasive for two reasons. 4 First, while the Commissioner must usually defer to an uncontradicted opinion of a treating 5 source, Dr. Ruxin’s April 2012 opinion in this case is contradicted, both by the opinion of Dr. 6 Akins and Dr. Ruxin’s own February 2012 opinion. Second, on this record, the ALJ may 7 properly rely on the opinion from a non-examining source. 8 D. Mental Residual Functional Capacity 9 In determining residual functional capacity, the ALJ must assess what the plaintiff 10 can still do in light of both physical and mental limitations. See 20 C.F.R. §§ 404.1545(a), 11 416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual 12 functional capacity reflects current “physical and mental capabilities”). Where there is a 13 colorable claim of mental impairment, the regulations require the ALJ to follow a special 14 procedure. See 20 C.F.R. §§ 404.1520a(a), 416.920a(a). The ALJ is required to record pertinent 15 findings and rate the degree of functional loss. See 20 C.F.R. §§ 404.1520a(b), 416.920a(b). 16 As stated above, for the time period at issue the ALJ concluded plaintiff had the 17 mental residual functional capacity to engage in simple repetitive one- to two-step tasks, maintain 18 concentration, persistence, and pace for one- to two-step tasks, perform frequent interactions with 19 supervisors and co-workers, and complete a normal workday/workweek. See CAR 23-24. 20 Plaintiff was, however, limited to occasional interaction with the public and a slow-paced and 21 non-competitive work environment. See id. at 24. Plaintiff was incapable of performing detailed 22 or complex tasks. See id. 23 According to plaintiff, the ALJ’s mental residual functional capacity determination 24 is unexplained. Plaintiff argues the ALJ’s mental residual functional capacity assessment is 25 flawed due to the errors argued above. Plaintiff adds: 26 The nonexaminers didn’t bequeath this decision anything other than its simple 1–2 step task limitation; indeed, they posited no public 27 contact, as the decision realized. (Transc., p.30) The decision rejected this based on the same mischaracterization of Mr. Malveaux’s daily activities 28 1 the AC said on remand was wrong and which this brief also shows to be wrong. (Id.) Even if this basis were correct, it still leaves unexplained the 2 precise limitations of frequent coworker and supervisor contact and occasional public contact. (Cf. transc., p.31, where ‘moderate’ limitation 3 in social functioning is asserted as “fully accommodated by the limitations for frequent contact with supervisors and co-workers and occasional 4 contact with the public” as ipse dixit.). Nonexamining Dr. Akin at the hearing can’t be the basis, because 5 he only testified about the mental severity criteria; he expressed no MRFC. 6 Did the decision explain its MRFC on its own somewhere else? Not other than just discussed. The provenance of “slow-paced and non- 7 competitive” is particularly impenetrable, cabalistic. We are back to the same simple, repetitive, one or two-step tasks 8 of decision #2, which the AC reversed, perhaps not doubting that Mr. Malveaux could perform easy tasks in the abstract, but clearly doubting 9 his ability to do so in reality and asking that Dr. Ruxin be considered further, which he wasn’t. 10 ECF No. 21, pgs. 17-18. 11 12 Plaintiff’s argument, which is derivative of errors argued above, is also 13 unpersuasive for the reasons discussed above. First, the Court finds no error with respect to the 14 ALJ’s evaluation of statements and testimony provided by plaintiff and his wife. Second, the 15 Court finds no error with respect to the ALJ’s reliance on Dr. Akins’ expert testimony. Third, the 16 ALJ did not err with respect to evaluation of Dr. Ruxin’s April 2012 opinion. Finally, while 17 plaintiff is correct that the ALJ does not explain why he found plaintiff limited to frequent contact 18 with co-workers and supervisors but less frequent contact with the public, given that Dr. Akins 19 identified limitations only as to public contact, the finding is consistent with the evidence. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / wOAOe 2. LO UV VOUS OMIT OO IR Oe AY OT UI Ot 1 IV. CONCLUSION 2 Based on the foregoing, the Court concludes that the Commissioner’s final 3 | decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 4 | ORDERED that: 5 1. Plaintiff's motion for summary judgment, ECF No. 21, is denied; 6 2. Defendant’s motion for summary judgment, ECF No. 34, is granted; 7 3. The Commissioner’s final decision is affirmed; and 8 4. The Clerk of the Court is directed to enter judgment and close this file. 9 10 11 | Dated: September 30, 2020 Ssvcqo_ 12 DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24